Terms and Conditions
Version 1.0 | 25/07/2022
This document contains the Terms and Conditions of d.is.xt B.V., with its principal office located at Danzigerkader 15 C in (1013AP) Amsterdam, the Netherlands, registered with the Dutch Chamber of Commerce under registration no. 67011128 (hereinafter referred to as “Disxt”).
These Terms and Conditions apply to all proposals, Quotations, Agreements and Services provided by Disxt.
Capitalised terms in this Agreement, both singular and plural, are considered to have the meaning as described in this article.
1.1. Agreement: the Quotation, the Terms in this document and any attachments.
1.2. Business Day: Monday through Friday, excluding any bank holidays observed in the Netherlands and holidays observed and announced by Disxt.
1.3. Customer: any natural or legal person acting in the exercise of their profession or business that concludes an Agreement with Disxt.
1.4. Customer Data: the data provided by Customer for Disxt to provide the Services to Customer.
1.5. Intellectual Property Rights: all intellectual property rights wherever in the world, whether registrable or registrable, registered or unregistered, including any application or right of application for such rights (including indemnify, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs).
1.6. Materials: all materials that Disxt develops or supplies under an Agreement, including documentation, layouts, designs, advice, reports, advertisement, displays, images, texts, logos, house styles, concepts, sketches and other creations of the mind.
1.7. Office Hours: 08:30 – 17:30 CET on Business Days, unless specified otherwise in a Service Level Agreement.
1.8. Parties: Customer and Disxt.
1.9. Quotation: a document to accompany these Terms and Conditions containing a detailed description and pricing of the Services and, if applicable, deviating terms.
1.10. Service(s): any services that Disxt provides to the Customer or has an obligation to provide to the Customer under this Agreement. Including, but not limited to determining strategy for advertising purposes and providing Materials for advertising purposes.
1.11.Service Level Agreement: the service level agreement of Disxt in which specific key performance indicators are described for the Services.
1.12. Terms and Conditions: this document.
1.13. Website: https://disxt.com/ including any and all subdomains and extensions.
2. Agreement: applicability and interpretation
2.1. The Terms and Conditions apply to all proposals, Quotations, Agreements and Services provided by or on behalf of Disxt and the execution of future Agreements.
2.2. Any other (general) terms and conditions of Customer shall expressly not be applicable.
2.3. Deviations from and additions to the Terms and Conditions shall only be valid if they have been agreed upon in writing by the Parties.
2.4. The application of sections 227b (1) and 227c of Book 6 of the Dutch Civil Code is excluded.
2.5. The following order of priority shall apply in the event of inconsistencies between the applicable documents:
a. additional written and signed agreements;
b. the Quotation;
c. the Service Level Agreement;
d. the Non-Disclosure Agreement;
e. data processing agreement (if applicable); and
f. Terms and Conditions.
3. Conclusion and fulfilment of the Agreement
3.1. The Agreement is concluded with:
a. the signing of the Quotation by the Parties;
b. the signing of the Quotation by Customer;
c. the digital signing of the Quotation by Customer;
d. the written acceptance of the Quotation by Customer.
3.2. Any Quotation from Disxt is valid for a period of thirty (30) days. Customer may still notify Disxt of its acceptance in writing after this period. However, in such a case, the Agreement is only concluded upon confirmation by Disxt.
4. Term and termination of the Agreement
4.1. The Agreement will be entered into for the term as stated in the Quotation. If the term is not specified in the Quotation and if certain Services are provided for an indefinite period (such as a subscription, web hosting or maintenance), the term shall be deemed to have a duration of twelve (12) calendar months and is tacitly renewed for the same term. This Agreement may be terminated in writing with one (1) month’s notice to the end of the term. The term for a single agreement to develop or modify Materials will continue for the duration of the Agreement’s completion. Customer may prematurely terminate a Service for the development or modification of Materials against payment equal to the hours worked at the hourly rate of Disxt.
4.2. Parties may immediately terminate the Agreement by written notice to the other Party, without the requirement for notice of default or judicial intervention:
a. if the other Party has been granted suspension of payments, whether provisionally or not;
b. if the other Party is declared bankrupt; or
c. if the other Party’s company is dissolved or terminated.
4.3.Where Disxt suspends the performance of the Agreement, Disxt will retain all its rights and claims under the Agreement and the applicable laws and regulations.
4.4. In the event that the Agreement is terminated, the amounts owed to Disxt by Customer will become immediately due and payable (irrespective of the reason for the termination).
4.5. Thirty (30) Business Days after the termination or expiration of the Agreement, for whatever reason, Disxt is entitled to delete or destroy all copies of Customer Data, unless agreed otherwise in writing.
5.6. The provisions of the Agreement which, by their nature and content, are intended, expressly or impliedly, to continue to have effect notwithstanding the completion, rescission, termination or expiration of the Agreement shall survive and continue to bind the Parties, and shall in any event include Clauses 11, 12, 13 and 15.
5. Performance of the Agreement
5.1. After the Agreement has been concluded, Disxt shall make every effort to start performing the Services as soon as possible, with due observance of sufficient care and expertise.
5.2. After the Agreement has been concluded, Disxt will make a debriefing. In this debriefing Disxt will explain what the Services contain and what Materials will be delivered. The schedule for the delivery will also be explained in the debriefing. If the Customer wishes changes in this debriefing, Customer shall make a written notice of the changes it wishes within seven (7) days after receiving the debriefing.
5.3. When Customer has no objections to the debriefing, Disxt will start working on the Materials as soon as possible. Disxt will deliver the Materials according to the schedule as explained in the debriefing. However, this is not a strict deadline unless Parties have explicitly agreed otherwise. Customer then has an opportunity to provide feedback on the delivered Materials seven (7) days after delivery. After these seven (7) days Disxt may assume that Customer has accepted the delivered Materials if no feedback is provided during this period.
5.4. When Disxt has processed the provided feedback, it will deliver the Materials after which Customer has a final opportunity to assess whether the previously given feedback has been processed correctly.
5.5. After delivery, all liability for defects in the delivered Materials lapses unless Disxt was aware or should have been aware of the defect at the time of delivery. In any case any liability for defects in the Materials lapses one (1) year after the delivery of the Materials for whatever reason.
5.6. After delivery when using the developed Materials, the responsibility for correct compliance with the relevant third-party licences lies with the Customer. Disxt will inform the Customer of the applicable conditions.
5.7. Disxt gives no guarantees with regard to the functioning when using non-current or outdated operating systems, browsers, plugins, scripts, other software and hardware unless and insofar as stated otherwise in the Quotation.
5.8. Disxt has the right to engage third parties in the execution of the Agreement. Any related costs will only be borne by Customer if this has been agreed in writing.
5.9. Customer will provide Disxt with all the support and cooperation needed and desirable to enable the correct and timely delivery of the Services and/or Materials. Customer will in any event provide all the specifications and other information which Disxt indicates as necessary, or which Customer should reasonably understand are essential for the provision of the Services and/or Materials.
6. Intellectual Property Rights
6.1 Customer acknowledges and agrees that Disxt and/or its licensors own all Intellectual Property Rights in and to the Services and the Materials, unless and to the extent expressly agreed otherwise by means of signed document.
6.2. Customer is not permitted to remove or alter any statement concerning copyright, trademarks, trade names or other Intellectual Property Rights from the Services and/or Materials.
6.3. Unless otherwise agreed in writing and provided that Customer fulfils its payment obligations under the Agreement, Customer shall have a perpetual licence to use the Materials under the Agreement for its business operations. This is without prejudice to the Customer’s obligation to treat Disxt’s Confidential Information confidentially.
6.4. Customer is entitled to make changes to the end result of Materials supplied by Disxt and is not entitled to a copy of the source files of the Materials, except in cases where this is legally permitted or insofar as this follows from the Agreement.
6.5. Customer is not permitted to retrieve the source code by means of reverse engineering or decompilation, except insofar as this is legally permitted or insofar as this follows from the Agreement.
6.6. Disxt can take (technical) measures to protect the Materials supplied by Disxt. If Disxt has taken such security measures, Customer is not permitted to evade or remove this security, insofar as this follows from the Agreement.
6.7. Disxt is allowed to use the (company) name, the logo and a general description of Customer for its own promotion and/or publicity.
7. Customer Data
7.1. Customer shall own all right, title, and interest in and to all Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data. Disxt receives a limited licence to Customer Data for the purpose of providing the Services, including any and all future aspects thereof.
7.2. Customer indemnifies Disxt against any claims by third parties on the basis of the infringement of an (Intellectual Property) right on the part of Customer Data or Materials as originating from Customer.
7.3. Disxt is entitled, but never obliged to investigate the correctness, completeness or coherence of Customer Data and the requirements or specifications made available to it and to suspend the agreed activities if any deficiencies are found until Customer has removed the relevant deficiencies.
8. Charges and payment
8.1. Customer shall pay the fees set out in the Quotation for the Services. All fees are in Euros and exclusive of VAT.
8.2. Payment can be made by transferring the amount to Disxt’s bank account, as specified in the invoice.
8.3. Each invoice is due and payable thirty (30) days after the invoice date, unless the Agreement specifies otherwise. If Disxt has not received payment within five (5) days after the due date, and without prejudice to any other rights and remedies of Disxt:
a. Disxt shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid;
b. Disxt may increase the amount due by 5%; and
c. the statutory commercial interest, as referred to in Section 6:119a of the Dutch Civil Code, shall accrue on the outstanding amount. Furthermore, Customer shall be obliged to pay all the judicial and extrajudicial collection costs, including the costs of lawyers, bailiffs and debt-collection agencies and the full amount of the remaining period of the Agreement is due and payable immediately to Disxt.
8.4. Disxt is authorised to increase its fees once per year on the basis of the CBS Consumer Price Index, or on the basis of any other changes in the market, in any event not to exceed 5%. In the event that a supplier of Disxt increases its prices for a specific product or service, Disxt is entitled to pass on this increase to Customer. Customer is not entitled to terminate the Agreement in relation to adjustments under this clause.
8.5. Disxt is always authorised to require that Customer provides sufficient security to ensure that it can comply with its payment obligations, for instance by requiring a bank guarantee or surety or to demand payment of a deposit.
9. Additional work
9.1. In the event of Disxt performing Services, or providing other services at Customer’s request, which go beyond the scope of the agreed upon Services, Customer shall pay for such Services retrospectively on a time and materials basis at Disxt’s then current hourly rates. However, Disxt will under no circumstances be obliged to comply with such a request and can require that a separate Agreement is entered into for that purpose.
9.2. Customer accepts that the Services as referred to in Clause 9.1 can affect the agreed or anticipated time of completion of the Services, as well as the Parties’ mutual responsibilities under the Agreement. Disxt may adjust any agreed timetable or delivery schedule as reasonably necessary. The need for or occurrence of additional work during the performance of the Agreement never constitutes a reason for Customer to give notice of termination or to (partially) dissolve the Agreement. To the extent a fixed price is agreed for the provision of the Services, Disxt will, upon request, inform Customer in writing of the financial consequences of the additional work.
10. Availability and support
10.1. Disxt will make every effort to provide support and to realise uninterrupted availability of its Services but offers no guarantees unless otherwise agreed by means of a Service Level Agreement.
10.2. If Customer wishes changes in the Material during the campaign, Customer can contact Disxt. After Parties agree about the changes and pricing in writing, Disxt will make the changes according to the written agreement.
11.1.A Party receiving confidential information from the other Party shall treat this as strictly confidential and use this solely in connection with its rights and obligations under the Agreement.
11.2. Confidential information includes all information of which it can be assumed from the context that the disclosing Party would deem this to be confidential or of which the receiving Party should reasonably have recognized its confidential nature from the content of the information. Confidential information also includes all information and data concerning or pertaining to the Agreement, the Services, pricing, service levels, Customer Data, and more generally data concerning business operations, marketing, research, development, inventions, know-how, samples, product and service specifications, software, business relations, irrespective of the form in which this has been recorded or is provided.
11.3. The obligation to treat certain information as confidential no longer applies if the receiving Party can prove that this information:
a. is or becomes publicly available through no act or omission of the receiving Party;
b. was already in possession of the receiving Party prior to the date on which it was issued by the disclosing Party;
c. is available from a third party without this party being in default towards the disclosing Party arising from a confidentiality clause by distributing the information to the receiving Party; or
d. was developed by the receiving Party independently and without the use of the information of the disclosing Party.
11.4. Should a competent court or other government authority demand access to confidential information, the receiving Party is entitled to grant such access. However, to the extent permitted by applicable law, the receiving Party shall contact the disclosing Party prior to doing so, to enable the disclosing Party to take legal action against such access (e.g. an interim measure with a competent court). However, the receiving Party shall never be liable for granting access if legally obligated.
11.5. The provisions of this Clause 11 shall continue to be effective after the expiration or termination of the Agreement.
12. Limitation of liability
12.1 Disxt’s liability for loss and/or damages resulting from a failure in the performance of the Agreement, an unlawful act or otherwise, is limited to the amount that Customer has paid under the Agreement immediately preceding the breach or the act giving rise to liability (exclusive of VAT) but shall in any event not exceed the amount of EUR 25.000 on an annual basis.
12.2. Disxt is only liable for direct loss and/or damage arising from an attributable failure in the performance of the Agreement. Direct loss and/or damage is solely understood to mean any and all loss and/or damage consisting of:
a. reasonable and demonstrable costs Customer has had to incur in demanding that Disxt properly performs the Agreement, unless the defective performance is not attributable to Disxt;
b. reasonable costs to determine the cause and the extent of the direct loss and/or damage;
c. reasonable and demonstrable costs incurred by Customer to prevent or limit the direct loss and/or damage, insofar as Customer can demonstrate that such costs have resulted in limitation of the direct loss and/or damage.
12.3. Any limitation or exclusion of liability stipulated in this Agreement shall not apply in the event that the loss and/or damage is attributable to (1) wilful misconduct or deliberate recklessness of Disxt’s management, (2) death or bodily injury, or (3) any other matter for which it is unlawful to limit or exclude liability.
12.4. Unless performance by Disxt is permanently impossible, Disxt shall only be liable due to an attributable failure in the performance of a contract if Customer declares Disxt to be in default in writing without delay and grants Disxt a reasonable term to remedy the breach, and Disxt culpably fails to fulfil its obligations also after this term has passed. The notice of default must describe the breach as comprehensively and in as much detail as possible in order to give Disxt the opportunity to respond adequately.
12.5. Any right to claim compensation is at all times subject to the condition that Customer notifies Disxt of the loss and/or damage in writing within no more than thirty (30) days of its discovery.
12.6 Customer shall indemnify, defend and hold harmless Disxt and its officers, agents and employees, from and against any and all claims, damages, liabilities, losses and/or expenses (including attorneys’ fees and costs) incurred by Disxt and arising out of or in connection with Customer’s use of the Services and/Customer’s breach of the Terms and Conditions of the Agreement.
13. Force majeure
13.1. Neither Party will be bound to comply with any obligation if the Party is prevented from doing so as a result of force majeure. Force majeure includes in particular but is not limited to domestic disturbances, mobilisation, war, transportation blocks, strikes, network attacks such as SYN (synchronous) floods or (distributed) denial of service attacks, business interruptions, supply stagnation, fires, floods, import and export obstructions, internet failures and in the event Disxt’s suppliers prevent Disxt from complying with its obligations under the Agreement.
13.2. In case of force majeure, the affected Party will use its best efforts to find a suitable remedy or alternative source to overcome said force majeure.
13.3. Each Party has the right to suspend compliance with its obligations under the Agreement during the period of force majeure. If this period exceeds sixty (60) days, each Party will have the right to terminate the Agreement without being obliged to pay compensation to the other Party.
14. Amendments and severability
14.1. Disxt reserves the right to change or supplement the Agreement at any time. If the change negatively affects the position of Customer, Customer has the right to terminate the Agreement on and at the latest until the date on which the change takes effect, subject to a notice period of one (1) month. If and insofar the amendment is necessary because of (changing) legislation or if it concerns a change of minor importance, Customer is not entitled to terminate the Agreement. Other changes will only take place if agreed between the Parties in writing.
14.2. If any provision, or part of a provision, of the Agreement is found by any court or authority of competent jurisdiction to be illegal, invalid or otherwise unenforceable, that provision or part-provision shall be deemed not to form part of the Agreement, and the legality, validity or enforceability of the remainder of the provisions of the Agreement shall not be affected, unless otherwise required by operation of applicable law.
14.3 The Parties shall use all reasonable endeavours to agree within a reasonable time upon any lawful and reasonable variations to the Agreement which may be necessary in order to achieve, to the greatest extent possible, the same commercial effect as would have been achieved by the provision, or part-provision, in question.
15.1. The Agreement shall be governed by Dutch law, excluding any conflict of law provisions contained in Dutch law.
15.2 To the extent not otherwise provided for in mandatory law, all disputes related to the Service or this Agreement will be submitted to the competent Dutch court in the jurisdiction where Disxt has its registered office.
15.3. The version of any communication of information as recorded by Disxt shall be deemed to be authentic and conclusive, unless Customer supplies proof to the contrary.
15.4. Where the Agreement refers to “written” or “in writing”, this also includes e-mail communication provided the identity of the sender and the integrity of the content can be adequately established.
15.5. Customer will not be authorised to transfer the Agreement and all its rights and obligations arising therefrom to a third party (including but not limited to its affiliates) without the express prior written consent of Disxt. Disxt will be authorised, at any time, to assign, novate or otherwise transfer the Agreement and all its rights and obligations arising therefrom to an entity of the Disxt’s group and/or to a third party that acquires the business operations to which the Agreement is subject, without the need for Customer’s prior consent.