Terms & Conditions Vote Company BV’s OnlineVotingtool.com (hereafter called Vote Company)

 

Version 09/06/2020

 

 

1. Definitions

In these Terms & Conditions, the capitalised concepts are defined as follows, whereby singular words also denote the plural version and vice verse, and different verb forms will cover the same meaning as the infinite form of that same verb, including the consideration of the context:

Service: The service Vote Company with OnlineVotingtool.com delivers to Client as specified in the Agreement.

End User: A Client's end user/customer or person allowed to vote;

Costs: the agreed one-off costs, monthly fixed costs, possible development costs and the agreed variable costs of the Service all cumulatively.

Minimum Term: The minimum time period of a Service as set out in the Agreement.

Maintenance: planned and emergence maintenance for the used systems, software, infrastructure or connections or any other part of the Service.

Quotation: the written offer of Vote Company for the providing of the Service(s).

Agreement: the quotation in which the Service(s) is (are) described and which refers to the Terms & Conditions as set out on www.onlinevotingtool.com

Client, You or Your: The entity that is included in the Quotation and uses the Services provided by Vote Company.

Vote Company, We, Us or Our: Vote Company B.V.

Malfunction: The Service is not available or has degraded.

Working Hours: Monday to Friday 9 AM to 5.30 PM with the exception of generally recognised Dutch public holidays. Any other times and dates are negotiable and often include a surcharge.

 

2. Applicability

1. These Terms & Conditions are exclusively applicable to all legal relationships (including offers, Quotations and Agreements) that We agree upon with You for providing the Services.

2. These Terms & Conditions form an integral part of any Quotation. In case of any conflict between the provisions in the Quotation or/and a provision in these Terms & Conditions, the Quotation provision shall prevail.

3. The applicability of general terms imposed by You is herewith explicitly rejected.

 

 3. Realisation

1. All Quotations are non-binding and in any case lapse after 1 month or after the date set out in the Quotation.

2. An Agreement is concluded at the moment Our Quotation is accepted by You in writing or at the date when You start using the Service.

3. You will guarantee that You have supplied all the information requested by Us and all other relevant information relating to the Agreement and have done so truthfully.

4. Commitments, messages and arrangement from or with Us related to obligations from Us which are communicated/made by Our employees or representatives, only commit Vote Company to You if they are confirmed to You in writing by a legally valid representative of Vote Company.

 

4. Agreement Duration

1. Assignments are accepted and are valid up and to 24 hours after the closing of the voting period. Unless otherwise agreed. Both Vote Company and client do not have obligations to extending the cooperation.

 

5. Execution of the Agreement

1. We provide the Service as set out in the Agreement for the agreed rates. We ourselves determine the way how and by whom (possibly including third-party subcontractors) the Agreement is carried out and if requested will update You as much as possible.

2. Any mentioned deadlines in the Agreement (including delivery and performance deadlines) do not count as a firm dates. The mentioned deadlines (including delivery and performance deadlines) are, among others, given on the basis of the information issued by the suppliers involved. If for some reason whatsoever it turns out that during the implementation of the agreement delays incur, We will inform You forthwith and the deadlines will be extended in line with the accumulated delays.

3. We will take care of:

(a) the 24/7/365 availability of the systems and networks, with exception of Maintenance periods, technical malfunctions, power cuts and malfunctions falling under the responsibility of third parties;

(b) project management, digitalisation and introduction of the Services on the systems;

(c) financial administration related to the operation of Services;

(d) all reasonably expected measures needed to optimally run the system facilities required for the Services, in the knowledge that it is technically impossible to prevent all malfunctions or restrictions. In case of malfunctions; the biggest priority is resolving these, We are however dependent on other parties regarding the accessibility of the Service. Which is why We cannot be held responsible for the functioning of telecommunication networks used by the other parties or for the services offered by them.

4. In case it is necessary for Us to develop applications and/or systems for You for the providing of the Service, We will take care of the project management and system design and development on the available systems. Using specifications supplied by You as a starting point, we will pinpoint which applications and/or systems will be developed and how this will take place. We reserve the right to use third party services when developing the applications, systems and/or devices.

 

6. Client Obligations

1. You are responsible for supplying all relevant details that are required for providing the Service(s) as requested by You in a timely manner. You are fully responsible for the editorial content of the Service(s) unless otherwise agreed and all related necessary work is entirely at Your expense and risk.

2. You will comply with all relevant rules and regulations (including rules and regulations regarding privacy).

3. It is not allowed to use the Services for uses other than those intended and in accordance with the intended purpose. You will not undertake actions or let others undertake actions that are fraudulent, misleading, unlawful or lead to improper use of the Service(s). In case of improper use (or in case of reasonable grounds of expecting improper use) of the Service by You or Your End Users, You are fully responsible for the incurred costs by Us and the related damages. We are authorised to inform competent governmental institutions and third parties with relevant interests with all details that are relevant for the improper use, including personal data, and without bringing about any accountability.

4. In case telecommunication traffic disturbances are caused by the use of the Service provided to You or if We or a third party incur damage from the use of the Service provided to You, You will be obliged to follow Our instructions and accept the related financial consequences. In case this is necessary in Our opinion, We can suspend the Service (temporarily) in full or partially if needed. 5. You will indemnify Us for the effects of the infringement and/or breach of the relevant rules and regulations caused by either You or Your End Users. You are responsible and accountable for any use of the Service by Your End Users.

 

7. Decommissioning and postponing

1. We are authorised to decommission the Service, if You do not comply with an obligation from the Agreement or if this is deemed necessary with regard to carrying out Maintenance, implementing changes or with regard to taking measures related to occurred disturbances to the telecommunication traffic.

2. In case We are not able to meet Our obligations with regard to the Agreement in the event of a force majeure, those obligations will be postponed in line with the time period of said force majeure. Force majeure is defined as: any occurrence We could not have predicted in a reasonable manner, We have no influence on, or in any way reasonably falls beyond Our powers. This includes, among others, the occurrence of regulated network providers not fulfilling their obligations (or them being unable to fulfil those obligations due to force majeure) needed for the proper provision of the Service, governmental or lawful restrictions or regulatory restrictions.

 

8. Invoicing and Payments

1. The Costs and Payments for Services and the instances when these are payable, are included in the Agreement. Our details are decisive in determining the amounts owed, unless You prove that these details are incorrect.

2. All Costs and Payments are excluding VAT and any other government-imposed charges or taxes.

3. Payment deadline is 14 days after invoice date. We will transfer Payments to You, or set them off against outstanding invoices within 14 days after We have received the payouts from the telecom suppliers. We receive the payouts from telecom suppliers sixty days after the end of the operation's month at the latest. The non-payment by Your End User is at Your own expense and risk. We are not required to disburse Payments for conversations and/or messages for which We have not received remuneration from the telecom suppliers.

4. We are allowed to adjust the Costs annually in accordance with the CBS consumer price index.

5. We are allowed to offset Payments from You with any unpaid invoices.

6. We can postpone the implementation of the Agreements with You until all unpaid invoices are settled.

7. Any recovery costs and all related costs to be made by Us are always at Your expense with a minimum of 15% of the unpaid amount.

8. Objections to the amounts claimed need to be expressed to Us in writing within thirty days after the invoice date. After that date has lapsed You are deemed to have agreed to the amount specified on the invoice.

 

9. Intellectual property and confidentiality

1. All copyrights and intellectual properties of the Service(s) and other software, ideas and concepts developed at Your behest rest with Vote Company. Transfer of these rights can only take place through an separate agreement related to that.

2. You are not allowed to delete or amend any indications regarding intellectual property of/in the Services (including indications with regard to the confidential nature and non-disclosure).

3. We exclusively grant You a non-exclusive, non-transferable, revocable, not for sub-licensing unwaivable right to use the Services for the length of the Agreement and solely for the conventional and intended purpose.

4. We will indemnify You against every claim based on the allegation that the Services are breaching an intellectual property right valid in the Netherlands unless:

− You will inform Us forthwith about the existence and contents of the allegation;

− You will leave the handling (including the settlement) completely to Us;

− You will fully cooperate with Us in availing this allegation;

− The allegation is not related to the hardware used by You and/or to the changed Services from anyone other than Vote Company.

5. If for some Services You wish to make use of background music that is not duty-free, You will take care of the necessary remittance to entitled parties such as BUMA and Client will indemnify Vote Company against these matters.

 

10. Personal Data Processing

1. Terms in this article such as ‘Personal Data', ‘Data Processing’, ‘Responsible Entities’ and ‘Processor’ have the meaning given to it in the General Data Protection Regulation (2016/679/EU, henceforth called ‘GDPR’). Vote Company is - because of providing of the Services - considered the ‘Processor’ as set out in the GDPR.

2. You are the Responsible Entity for the Processing of the Personal Data and determine the purposes and means of the Processing of Personal Data. You will always adhere to the GDPR provisions and applicable rules and regulations from competent government authorities. In particular, You need to ascertain whether there is a legal basis for the Processing of Personal Data. You indemnify Us for all receivables, actions, receivables from third parties, losses, damages and expenses made by Us which directly or indirectly stem from or are related to a GDPR breach incurred by You.

3. In relation to the implementation of the Agreement and the provision of the Services, We process Personal Data on behalf of Your organisation as Processor for the length of the Agreement. During the processing of Personal Data, We will always adhere to the appropriate legislation, including the GDPR, and appropriate rules and regulations of competent government authorities. The Processing concerns the following:

− Categories of Personal Data: landline and mobile numbers of End Users and names and email addresses of Your employees we are in contact with for the provision of Services.

− Categories of Involved Entities: End Users and Your employees.

− Nature and purpose of the Processing: the implementation of the Agreement with You/the provision of the agreed Services.

− Retention period: after 6 months at the latest the Personal Data are deleted or at the least depersonalised or pseudonymised.

4. We will solely Process Personal Data in accordance with the Agreement and for no longer and not more extensive than necessary for the implementation of these Services. The Processing takes place according to Your instructions in writing, unless We are bound by law or regulations to act differently, in which case We will inform You of the legal requirement, unless the legislation prohibits this on the basis of important grounds of public interest. If in Our opinion, an instruction breaches GDPR, We will inform You of this forthwith. With Your cooperation we will seek a suitable solution in case external developments jeopardise the legality of the Procession.

5. We guarantee that all Personal Data and notices based on article 10 will be considered as confidential with regard to third parties, including government organisations. We will ensure that all persons authorised for the Processing of Personal Data are bound to confidentiality and will act according to the Agreement. These obligations do not prevent Us from sharing details with a third party as far as this disclosure is required by the appropriate legislation.

6. Notwithstanding any other security measures agreed upon in the Agreement, We will guarantee to undertake appropriate technical and organisational measures. The risks to be mitigated, state of technology and costs for the security measures are taken into account when security measures are undertaken. You are properly informed about the security measures We have undertaken and agree that these measures ensure a security level as befitting to the nature of the Personal Data and the scope, context, purposes and risks of the Procession.

7. By agreeing to the Agreement You give Us your general consent for using subcontractors.

8. We will ensure that all subcontractors are bound in writing to the same obligations as set out in this article 10 and we will monitor their compliance.

9. We will assist You as much as possible with meeting Your obligations to dealing with requests for the exercising of rights of Involved Entities. If We (directly) receive requests of an Involved Entity or Involved Entities regarding the exercising of their rights (e.g. deletion of, or access or amendments to Personal Data), We will forward these requests to You and inform you accordingly. You will deal with these requests yourself, or naturally with Our assistance if needed. We may charge a fee for this.

10. We will only Process the Personal Data within the EU, unless We have reached different agreements with You. These additional agreements will be set out in writing.

11. In case of an investigation or request of confiscation of the Personal Data by an competent authority, or if there are any indications this will happen, We will inform You forthwith.

12. In case of a data leak or breach of the confidentiality or security as set out in this article 10 we will inform You about this within 24 hours since disclosure to Us. We will cooperate with You and follow all reasonable instructions so You can perform a thorough investigation, formulate a proper reaction and carry out the appropriate further steps. In particular, We guarantee to supply to You all necessary details in order to comply with Your legal obligations, such as the obligation to report data breaches on the grounds of articles 33 and 34 of the GDPR.

13. Unless objections are raised on the basis of regulations applicable to Us, We will destroy the Personal Data or return these to You after termination of the Agreement, in the manner and format as stated by You. We will also ensure that all subprocessors employed by Us will comply with this.

14. You have the right to conduct an audit at Ours or outsource one, to ascertain to what extent the Procession of Personal Data as carried out by Us complies to the provisions of this article 10. Such an audit will be conducted by an independent third party and will take place on a time predetermined and agreed upon by both parties, two months after Your first request at the latest. We will give access to the facilities, staff, policies and documents that may be reasonable required for the purposes of the audit. Costs for such requests, audits or inspections are at Your expense. Any audits at subprocessors are also at Your expense.

 

11. Responsibility

1. Our liability concerning direct damages as a result of attributable shortcomings or unlawful acts is limited (per occurrence or interrelated series of occurrences) to the amount of EUR 500. If multiple non-related occurrences happen within one calendar year, the maximum liability for direct damages in the respective calendar year will be limited to the amount of EUR 5,000.

2. We are not responsible for the circumstances as set out below and not responsible for any damages occurring as a result thereof:

a. direct or indirect damage, including, but not limited to, reputational damage, lost profit, lost savings, loss of goodwill, corruption or loss of data as a result of claims from Your customers or End Users or immaterial damage;

b. shortcomings in the provision of services from third parties (including telecommunication network or service suppliers and information, content or text message services);

c. the non-functioning of the Services as a result of necessary Maintenance or force majeure.

d. the postponement or decommissioning of the Service based on the example set out in these Terms & Conditions;

e. damage as a result of non-compliance of appropriate rules and regulations, including the GDPR, by the Client.

3. You will inform Us in writing as soon as possible and no later than within 6 weeks after damage has been discovered or could have reasonably been expected to have been discovered. We are not held to reimburse damages that have not been reported in writing within this period. You are held to undertake appropriate measures forthwith to limit damages as much as possible.

4. This article can also be invoked by Our employees and third parties employed by Us.

 

12. Availability and Maintenance

 

12.1 Availability

1. We take the utmost care to the organising, monitoring and Maintenance of the Services, the systems and the applications for 24 hours a day, 7 days a week. We ensure optimal availability by, among others, distributing the required line capacity for the service across multiple systems, taking into account the usage of other customers who also make use of this.

 

12.2 Maintenance

1 We are solely responsible for carrying out maintenance work in case the Service is not functioning in accordance with the agreed specifications, the fault has been reported to Us in a detailed manner immediately after the fault has occurred and the fault is reproducible. Recovery of corrupted or lost data is not included in Maintenance.

2 We aim to prevent malfunctions in a proactive manner, if however a malfunction does occur, we aim to recover this as soon as possible. After receipt of the alert We will aim to recover the fault to the best of Our abilities on a time to be determined by Us. We are authorised until the moment of final recovery to implement temporary solutions (including diversions or issue-avoiding restrictions). We will keep you updated as much as possible concerning the progress.

3 Maintenance will be carried out during Working Hours. We will inform You about the Maintenance and the possible ramifications for the Service 5 days beforehand.

4 As part of the Maintenance, continuation or measurements, We are authorised to temporarily decommission one or more Services.

5 If it turns out that the fault is not caused by an attributable failure on Our side (including faults caused by user mistakes or incompetent use or amendments to the Services by You or third parties), we are authorised to charge You for the tracking down and/or recovery of the fault.

 

12.3 Amendments

1. If You would like to implement amendments to the Service, You will need to request this in a timely manner. We will subsequently inform You regarding the impact of the amendment on the service and the agreed Costs. Only after Your agreement to the amended conditions (if applicable) will the amendment be implemented.

2. Work will be carried out during Working Hours. These works will not impact the continuity of the service. Emergency amendments can be implemented outside Working Hours, although We reserve the right to charge additional implementation costs.

 

13. Termination of the Agreement

1. Unless otherwise agreed upon in writing, both Parties are authorised to terminate every Service with observance of the notice period of one (1) month near the end of or after the expiration of the Minimum Term.

2. Every party can only dissolve the Agreement if the other party is accountable with regard to lack of compliance to one or more essential requirements, the other party has received a notice of default in writing that is as detailed as possible in which he/she has been proposed a reasonable term with regard to the compliance and compliance is not met within this term.

3. We can terminate the Agreement intermediately with immediate effect without any judicial intervention if:

a. the actual use of the Services is not in compliance to the Agreement, is not in compliance with the normal use to which the applicable rates are aligned or if it significantly deviates from the use that may be reasonably expected;

b. We have sent You a reminder and You have not fulfilled Your payment obligations after the lapse of the aforementioned deadline stated in the reminder;

c. You inflict damage to the Services, Our systems and networks and/or other telecommunication networks;

d. force majeure instances occur so the implementation of the Agreement is made impossible or disproportionately problematic;

e. in case of bankruptcy, moratorium of payment, liquidation, termination or relocation of Your business activities or if You offer Your creditors a private agreement, or if You realise or will realise any other means of debt restructuring.

5. During the (intermediate) termination of the Agreement the provision of all (incl. any additional) Services ends and all Our receivables (including already-invoiced amounts) become claimable immediately and completely. Insofar commitments are already met, the termination of the Agreement will not give rise to obligations for parties to undo the services already received by them.

6. If the Agreement is terminated before the Minimum Term has lapsed, all fixed costs for the remaining period of the Minimum Term for the Agreement, among others, will be owed immediately and completely.

7. Provisions from the Agreement that are meant to be kept in place after termination of the Agreement, will be kept in place after termination of the Agreement.

 

14. Other provisions

1. Amendments to the Agreement can only be agreed upon in writing. We are authorised to implement amendments to the Services, the functions of the Services and the technical manner in which the Services are provided. We will disclose the amendments that impact You at least one (1) month before introduction in an adequate manner.

2. All parties are prohibited from entering a (work) agreement with employees of the other party or employees allotted by the other party during the term of the Agreement or within twelve months after termination of the Agreement or to employ these employees in any other way, unless otherwise agreed upon beforehand.

3. You will not transfer the (rules and obligations from the) Agreement without Our prior written consent.

4. Both parties are authorised to publicly announce that We will be providing services to You after the Agreement has been signed. Any other press release, advertisement or other coverage regarding the Agreement or the Services requires prior endorsement of the other party. Use of brands or logos of the other party in press releases, advertisements/promotions or other coverage requires prior endorsement of the other party.

5. If any provision from the Agreement and/or these Terms & Conditions turns out to be void, voidable or unenforceable, the other provisions will remain in full force and effect. Parties will negotiate about a alternate provision which will adhere as best as possible to the intention of the void, voidable or unenforceable provision.

6. Dutch law is applicable to this Agreement and Terms & Conditions. All differences arising from the Agreement that cannot be settled by agreement, will be dealt with by the competent judge in Amsterdam.