Terms and conditions
General terms and conditions By Your Site B.V., Bys Hosting B.V. and Source International B.V. (hereinafter referred to collectively as "By Your Site", based on the Netherlands ICT Terms and Conditions
Classification and content
These general terms and conditions consist of 9 sections, namely a general section and a number of specific sections, relating to the services and/or products provided by By Your Site.
The provisions of paragraph 1 shall apply at all times, and regardless of the service or product, the provisions of one or more other paragraphs shall apply in addition thereto, as will always be indicated for each paragraph.
Content:
- Section 1 - General provisions
- Section 2 - Service provision
- Section 3 - Software-as-a-Service (SaaS)
Section 1. General provisions
1. Definitions
1.1. In these terms and conditions, the following definitions shall apply:
| BW: | Civil Code of The Netherlands; |
| IP Rights: | All intellectual property rights, including but not limited to copyrights, trademarks, trade names, database rights, designs and patents; |
| Customer: | The natural or legal person who has entered into an Agreement with By Your Site; |
| User: | The person who, as proxy or authorized representative, is authorized to act on behalf of or under the responsibility of the Customer, who is authorized by the Customer to use the Services and who is designated as such upon Registration. This may also be the Customer itself if it is a natural person. |
| Agreement: | The agreement between By Your Site and the Customer to enter into the legal relationship whereby By Your Site undertakes to provide certain services and/or products to the Customer and the Customer undertakes to make a payment and/or performance in return; |
| Parties: | By Your Site and the Customer; |
| Software: | Provided by By Your Site on the basis of a user license to the Customer for use of the agreed computer programs and the agreed user documentation during the term of the Agreement; |
| SaaS: | Software as a Service, which is defined as By Your Site making and keeping technology available "remotely" to the Customer via the Internet or another data network, without providing the Customer with a physical carrier containing the relevant technology; |
| Terms and Conditions: | The present general terms and conditions of By Your Site; |
| Website: | The digital, administrative, hiring platform of By Your Site, including the one or more application programming interfaces (APIs), which provide the User with an integrated solution for, among other things, finding, assessing and recruiting applicants; |
| Works: | The technology, online (media) expressions, data files, equipment or other materials such as analyses, designs, documentation, reports, quotations, as well as preparatory materials thereof developed under the Agreement or made available to the Customer, including any applications to be delivered. |
| Privacy Statement: | By Your Site's privacy statement that applies to ByYourSite's processing of personal data and can be found on the Website. |
| Registration: | the procedure prescribed by By Your Site that the User must follow to register the Customer with ByYourSite in order to be able to use the Services via the App and the ByYourSite Platform for the first time. |
| Website: | the By Your Site website as accessible via the URL ByYourSite.nl |
1.2. Where in this Agreement words are used in the singular, they should also be understood to include the plural and vice versa, except to the extent that the text or context indicates otherwise.
2. General
| 2.1 | Deviations from and additions to these Terms and Conditions are valid only if expressly agreed in writing between the Parties. |
| 2.2 | Nullity or nullification of one of the provisions of these Conditions or of any provision of the Agreement shall not affect the effect of the other provisions of these Conditions or of the Agreement. In the event of nullity or nullification, the Parties shall replace those provisions with an arrangement that approximates the scope of the void or voidable provision as closely as possible. |
| 2.3 | All offers made by By Your Site are entirely without obligation, unless otherwise expressly stated in writing by By Your Site. Offers made by By Your Site are valid for thirty (30) days after the date of the offer unless another term has been expressly agreed upon in writing or a different acceptance term is mentioned in the offer. |
| 2.4 | The Customer warrants the accuracy and completeness of the information provided by or on its behalf to By Your Site on which By Your Site based its offer. |
3. Price and payment
| 3.1 | All prices stated on the Website, in offers and/or Agreements are exclusive of sales tax (VAT) and other levies imposed or to be imposed by the government, unless expressly agreed otherwise in writing. |
| 3.2 | Unless otherwise agreed, all purchase for services on the Website are upfront and non-refundable. |
| 3.3 | If, according to the Agreement concluded between the Parties, the Customer consists of several natural persons and/or legal entities, each of these (legal) persons is jointly and severally liable to By Your Site for compliance with the obligations under the Agreement. |
| 3.4 | With regard to the performances carried out by By Your Site and the amounts owed by the Customer for them, the data from By Your Site's administration provide full proof, without prejudice to the Customer's right to provide evidence to the contrary. |
| 3.5 | If there is a periodic payment obligation of the Customer, By Your Site is entitled to periodically adjust the applicable prices and rates without having to notify the Customer in advance or give the Customer's prior consent for an adjustment. |
| 3.6 | The parties shall set out in the Agreement the date or dates on which By Your Site shall invoice the Customer for the fee(s) for the agreed performances, failing which a payment term of fourteen (14) days shall always apply, unless these Terms and Conditions expressly state otherwise. Amounts due shall be paid by the Customer in accordance with the agreed or invoiced payment terms. |
| 3.7 | The Customer is not entitled to suspend any payment or to set off any amounts due. |
| 3.8 | If the Customer fails to pay the amounts due, on time or in full, the Customer shall owe statutory commercial interest on the outstanding amount without the need for a reminder or notice of default. If the Customer remains in default of payment after a reminder or notice of default, By Your Site can pass on the claim for collection, in which case the Customer is obliged to pay all judicial and extrajudicial costs, including all costs charged by external parties, in addition to the total amount then due. This does not affect the other legal and contractual rights of By Your Site. |
4. Privacy and data processing
| 4.1 | If necessary for the execution of the Agreement, the Customer shall, upon request, inform By Your Site in writing of the manner in which the Customer implements its obligations under personal data protection legislation. |
| 4.2 | The Customer indemnifies By Your Site from claims of persons whose personal data have been registered or are being processed in the context of a registration of persons held by the Customer or for which the Customer is otherwise responsible under the law, unless the Customer proves that the facts underlying the claim are attributable to By Your Site. |
| 4.3 | The responsibility for the data processed using By Your Site's service or product for the Customer lies entirely with the Customer. The Customer warrants to By Your Site that the content, use and/or processing of the data is not unlawful, and does not infringe on the rights of third parties. |
| 4.4 | The provisions of the previous three paragraphs do not apply if and as long as a separate (sub)processor or processor agreement has been concluded between By Your Site and the Customer, in which case the provisions of that (sub)processor or processor agreement replace the provisions of the previous three paragraphs of this article. |
5. Intellectual property
| 5.1 | All IP rights to Works and Website(s) and products belong exclusively to By Your Site, its licensors or its suppliers. The Customer acquires for the duration of the Agreement the user rights expressly granted by the Agreement, these terms and conditions and/or the law. Any right of use granted to the Customer is non-exclusive, non-transferable, non-pledgeable and non-sublicensable. This provision has property law effect. |
| 5.2 | The Customer shall not remove or alter (or cause to be removed or altered) any indication(s) concerning the confidential nature or IP rights from the Works and/or Website(s) provided. |
| 5.3 | Even if the Agreement does not expressly provide for this, By Your Site is always permitted to make technical provisions to protect the delivered Works and/or Website(s) to which access is (directly or indirectly) provided to the Customer, in connection with an agreed restriction in the content or duration of the right to use these objects. The Customer shall not remove or circumvent such technical device(s). |
6. Duration, termination and dissolution of the Agreement
| 6.1 | An Agreement is concluded by acceptance by the User on behalf of the Customer during the Registration of a valid offer by ByYourSite to provide Services, subject to the condition precedent of subsequent confirmation by ByYourSite of successful Registration. |
| 6.2 | The Agreement shall enter into force on the date of dispatch by ByYourSite of the confirmation referred to in the previous paragraph. The Agreement is entered into for an indefinite period. |
| 6.3 | The Customer can end the agreement at any time by closing their account on the Website. |
| 6.4 | Each of the Parties is authorized to dissolve the Agreement in whole or in part due to an attributable failure in the performance of the Agreement only if the other Party - always in all cases after a written notice of default that is as detailed as possible and in which a reasonable term is given to remedy a failure - still imputably fails to comply with essential obligations under the Agreement. The Customer's payment obligations and all obligations to cooperate and/or provide information by the Customer or a third party engaged by the Customer shall in all cases be considered essential obligations under the Agreement. |
| 6.5 | Each of the Parties may terminate the Agreement in writing with immediate effect, in whole or in part, without notice of default, if the other Party is granted a moratorium on payment - provisional or otherwise -, bankruptcy is filed with regard to the other Party or the other Party's company is liquidated or terminated other than for the purpose of reconstruction or merger of companies. By Your Site may also terminate all or part of the Agreement with immediate effect without notice of default if the decisive control over the Customer's company changes directly or indirectly. Due to termination as referred to in this paragraph, By Your Site shall never be obliged to refund any monies already received or to pay damages. |
| 6.6 | In the event that the Customer has irrevocably entered into a state of bankruptcy, the Customer's right to use the Works and/or Website(s) made available and the like, as well as the Customer's right to access and/or use the services of By Your Site, shall terminate without any notice of termination being required on the part of By Your Site. |
| 6.7 | The applicability of the provisions of Article 6:227b(1) of the Dutch Civil Code (relating to the provision of information in electronic commerce) and of the provisions of Article 6:227c of the Dutch Civil Code (relating to the manner in which Agreements are entered into in electronic commerce) is expressly excluded. |
7. Registration
| 7.1 | Upon Registration, the User must provide various details, including but not limited to: |
| 7.1.1 | details about the Customer; |
| 7.1.2 | details about the User; and |
| 7.1.3 | acceptance of (the applicability of) these General Terms and Conditions. |
| 7.2 | In addition to the information referred to in the previous paragraph, the User may be requested to provide additional documentation (such as one or more authorization forms and/or powers of attorney completed and signed by or on behalf of the Customer) as part of the Registration. |
| 7.3 | By Your Site is entitled to verify and validate the accuracy of the information provided by the User during Registration with third parties, as well as to conduct independent research on the Customer and User in public sources. |
| 7.4 | By Your Site is entitled to amend the applicable procedure(s) during Registration at its own discretion and will inform the User of this in a timely manner. |
| 7.5 | The User guarantees that if he performs the Registration on behalf of the Customer, he is authorized to perform acts for or under the responsibility of the Customer. By Your Site accepts no liability in this regard. |
| 7.6 | After completion of the Registration on the part of the Customer, the User must confirm the Registration by using the Authorization Details provided to him during the Registration in accordance with the provisions of Article 10. |
| 7.7 | Every Registration completed and authorized by the User is subject to acceptance by By Your Site. By Your Site may accept or refuse a Registration at its own discretion. |
| 7.8 | After By Your Site has determined, at its own discretion, that all (information) obligations in the context of the Registration have been fulfilled and it decides, at its own discretion, to accept the Registration, it will confirm to the User that the Customer has successfully completed the Registration. In accordance with the provisions of Article 2.4, the Agreement between By Your Site and the Customer is concluded upon sending the aforementioned confirmation of successful Registration. |
| 7.9 | If By Your Site, at its sole discretion, decides to refuse the Registration, By Your Site will notify the User thereof. In accordance with the provisions of Article 2.4, no Agreement will then be concluded between By Your Site and the Customer. |
8. Liability of By Your Site
| 8.1 | The liability of By Your Site for damages and costs (including fines) as a result of an attributable failure in the fulfillment of the Agreement, or in an unlawful act or otherwise, is limited to compensation for direct damages and furthermore to an amount that the insurance company of By Your Site pays out in the concrete case. In the event the insurer does not pay out in the specific case, for whatever reason, the total liability of By Your Site is limited to compensation of the direct damage up to a maximum of the amount of the price stipulated for that Agreement. If the Agreement is primarily a continuing performance agreement with a term of more than one (1) year, the price stipulated for that Agreement shall be set at the total of the fees (excluding VAT) stipulated for one (1) year. In no event shall the total liability of By Your Site for direct damages, on any legal basis whatsoever, exceed€ 50,000 (fifty thousand euros). |
| 8.2 | The liability of By Your Site for indirect damage is excluded. Indirect damage is understood to mean all damage that is not direct damage and therefore in any case, but not limited to, consequential damage, loss of profit, missed savings, reduced goodwill, damage due to business stagnation, damage as a result of claims from Customers of the Customer, reputation damage, data loss or damage. |
| 8.3 | Damages related to the use of third party items, materials or technology prescribed by the Customer to By Your Site and damages related to the engagement of suppliers prescribed by the Customer to By Your Site are also excluded. |
| 8.4 | The exclusions and limitations of liability of By Your Site described in the preceding paragraphs of this article are without prejudice to the other exclusions and limitations of liability of By Your Site described in these Terms and Conditions. |
| 8.5 | The exclusions and limitations referred to in this article lapse if and insofar as the damage is the result of intentional or deliberate recklessness on the part of By Your Site and/or its executives. |
| 8.6 | Unless fulfillment by By Your Site is permanently impossible, By Your Site's liability due to an attributable failure in the fulfillment of an Agreement only arises if the Customer gives By Your Site written notice of default, whereby a reasonable period is given to remedy the failure and By Your Site continues to fail attributably in the fulfillment of its obligations even after that period. The notice of default must contain as complete and detailed a description of the failure as possible, so that By Your Site is given the opportunity to respond adequately. |
| 8.7 | Any claim for damages by the Customer against By Your Site shall expire by the mere expiration of twelve (12) months after the claim arises. |
| 8.8 | The Customer indemnifies By Your Site against all third party claims due to product liability as a result of a defect in a product or system delivered by the Customer to a third party that consisted in part of equipment, software or other materials delivered by By Your Site, unless and insofar as the Customer proves that the damage was caused by this equipment, software or other materials. |
| 8.9 | The provisions in this article as well as all other limitations and exclusions of liability mentioned in these Terms and Conditions also apply in favor of all (legal) persons which By Your Site makes use of in the execution of the Agreement. |
9. Force majeure
| 9.1 | Neither Party shall be bound to fulfill any obligation, including any legal and/or agreed warranty obligation, if prevented from doing so as a result of force majeure. |
| 9.2 | Force majeure on the part of By Your Site includes, but is not limited to: (i) force majeure of By Your Site's suppliers, whether or not prescribed by the Customer, (ii) defectiveness of goods, equipment, technology or materials of third parties, the use of which has been prescribed to By Your Site by the Customer, (iii) government measures, (iv) electricity failure, (v) failure of Internet, data network or telecommunication facilities, (vi) war and (vii) general transport problems. |
| 9.3 | If a force majeure situation lasts longer than sixty (60) days, each of the Parties has the right to dissolve the Agreement in writing. What has already been performed under the Agreement shall in that case be settled proportionately, without the Parties owing each other anything else. |
10. Transfer of rights and obligations
| 10.1 | The Customer shall never sell, transfer, pledge or otherwise encumber its rights and obligations under the Agreement to a third party without By Your Site's consent. |
| 10.2 | By Your Site is entitled to sell, transfer, pledge or otherwise encumber its claims to payment of fees to a third party, or to engage a third party in the execution of the Agreement. |
11. Applicable law and disputes
| 11.1 | Dutch law applies to the Agreement between By Your Site and the Customer, as well as to all other agreements resulting from, resulting from or related to it, with the exception of the provisions of the Vienna Sales Convention and with the exception of rules of Dutch law that do not declare Dutch law applicable. |
| 11.2 | In respect of all disputes relating to the Agreement, or further agreements arising therefrom, resulting therefrom or related thereto, the District Court of Noord-Nederland, location Groningen shall have exclusive jurisdiction in the first instance, without prejudice to the Parties' right of appeal and cassation. |
Section 2 Services
The provisions contained in this Section "Services" are applicable, in addition to the General Provisions, if By Your Site provides services of any kind (and whether or not detailed in any of the other Sections of these Terms and Conditions) to the Customer.
12. Implementation
| 12.1 | By Your Site shall use its best efforts to perform its services with care, where appropriate in accordance with the agreements and procedures established in writing with the Customer. |
| 12.2 | All services of By Your Site are performed on the basis of an obligation of effort, unless and insofar as By Your Site has expressly promised a result in the Agreement and the result in question is also described with sufficient definiteness in the Agreement. |
| 12.3 | By Your Site's services will be performed exclusively on By Your Site's usual business days and hours. |
| 12.4 | By Your Site shall not be liable for damages or costs resulting from use or misuse made of access or identification codes or certificates unless the misuse is the direct result of an intentional or knowingly reckless act or omission by By Your Site. |
| 12.5 | If the Agreement was entered into with a view to performance by a specific person, By Your Site is always entitled to replace this person by one or more persons with the same and/or similar qualifications. |
| 12.6 | In the execution of the Agreement, By Your Site is not obliged to follow instructions from the Customer, in particular not if these are instructions that change or supplement the content or scope of the Agreement. By Your Site shall only follow what it deems to be reasonable instructions from the Customer. However, if such instructions are followed, the relevant work shall be compensated in accordance with By Your Site's usual rates in accordance with Article 12 from the General Terms and Conditions. |
Section 3 Software-as-a-Service (SaaS).
The provisions contained in this paragraph Software-as-a-Service (SaaS) shall, in addition to the General Provisions and the provisions in the Section 'Provision of Services', apply if By Your Site provides services under a name or in the field of SaaS, including but not limited to the provision of a web application.
13. Implementation SaaS service
| 13.1 | By Your Site only provides a SaaS to the Customer. The Customer is not free to allow third parties to use the SaaS services provided by By Your Site. |
| 13.2 | If, pursuant to a request or authorized order issued by a government agency or in connection with a legal obligation, By Your Site performs work with respect to data of the Customer, its employees or users, related costs will be charged to the Customer. |
| 13.3 | By Your Site may make changes to the content or scope of the SaaS Service. If such changes result in a change in the procedures in force at the Customer, By Your Site will inform the Customer of this as timely as possible and the costs of this change will be borne by the Customer. In that case, the Customer may terminate the Agreement in writing by the date on which the change takes effect, unless this change relates to changes in relevant legislation or other regulations issued by competent authorities or By Your Site bears the costs of this change. |
| 13.4 | By Your Site may adapt or modify the SaaS Service as it sees fit. By Your Site is not required to maintain, modify or add any features or functionality of the service or technology specifically for the Customer. |
| 13.5 | By Your Site may temporarily take the SaaS Service out of service in whole or in part for preventive, corrective or adaptive maintenance or other forms of service. By Your Site will not allow the outage to last longer than necessary and, if possible, will allow it to occur outside business hours. |
| 13.6 | By Your Site is never obliged to provide the Customer with a physical carrier containing the technology to be made and kept at the Customer's disposal as part of a SaaS service. |
| 13.7 | The Customer shall ensure that it has the facilities necessary for the use of the SaaS service at its disposal immediately after entering into the Agreement. |
14. Warranty
| 14.1 | By Your Site does not warrant that the technology to be provided and maintained as part of the SaaS Service is error-free and functions without interruptions. Nor does By Your Site warrant that information provided or displayed by means of the SaaS Service to the Customer originating from third parties is accurate, complete and non-misleading. |
| 14.2 | By Your Site shall endeavor to repair defects in delivered Works and/or Website(s) within a reasonable period of time, if and insofar as it concerns technology developed by By Your Site itself and the defects in question have been reported to By Your Site by the Customer in writing and described in detail. Where appropriate, By Your Site may postpone repairing the defects until a new version of the technology is put into use. By Your Site does not guarantee that defects in technology not developed by By Your Site itself will be remedied. By Your Site is entitled to make temporary solutions or program bypasses or problem-avoiding restrictions in the technology. If the technology was developed on behalf of the Customer, By Your Site may charge By Your Site for the costs of repair according to its usual rates. |
| 14.3 | Based on the information provided by By Your Site regarding measures to prevent and limit the consequences of breakdowns, defects in the SaaS services, mutilation or loss of data or other incidents, the Customer shall make an inventory of the risks to its organization and, if necessary, take additional measures. By Your Site is prepared, at the request of the Customer, to reasonably cooperate with further measures to be taken by the Customer, subject to (financial) conditions to be set by By Your Site. By Your Site is never obliged to repair mutilated or lost data. |
| 14.4 | By Your Site does not warrant that technology to be made available and maintained in the context of the SaaS Service will be updated in a timely manner to reflect changes in relevant laws and regulations. |