In these General Terms and Conditions, the references, interpretations, and definitions for capitalized terms apply as described in Annex A.
The Service is offered over the internet in the form of Software-as-a-Service by the company Datatrics. The use of the Service is subject to the below terms and conditions. Using the Service constitutes acceptance of these terms and conditions. Deviations from these terms and conditions is possible only by means of written confirmation by Datatrics.
Article 1 Use of the service
- With the Service, you can bring data from various internal and external sources together in one central environment, in order to centralize internal and external data sources, to create unique customer profiles, to predict customer needs by means of algorithms and machine learning, to create relevant and personalized customer journeys, to provide automated dynamic content through different platforms and/or to advance online conversions by means of more relevant, personalised content.
- To use the Service, you are first required to conclude the Master Agreement.
- To use the Service after concluding the Master Agreement, you need to register for an Account.
- You must secure access to your Account using an email address and password against third parties. In particular you must keep the password strictly confidential and the particular email account adequately secured. Datatrics may assume that all actions undertaken from your Account after logging in with your email address and password is authorized and supervised by you. This means you are liable for these actions, and you indemnify Datatrics from all claims and damages resulting from that use. In the event you know or have reasons to assume that the email address and password are used by someone else, you should immediately notify Datatrics thereof, notwithstanding your own obligation to take measures to prevent any (further) damages.
- The Master Agreement will be concluded as soon as you check “I agree to the master agreement” and you click “Accept & Sign”, or if Datatrics may reasonably consider your behavior as (impression of) (argued) consent.
- You may include personal data in your Account. You warrant that the information you enter or provides when registering for the Service and when you include contact data in your Account is complete, up to date and accurate.
Article 2 Rights and Obligations
- It is not permitted to use the Service for any purpose that violates laws of The Netherlands or other applicable law or regulation.
- Should Datatrics discover that you violate any of the above, or receive a complaint alleging the same, Datatrics will issue a warning. If the warning does not lead to an acceptable resolution, then Datatrics may intervene to end the violation. In urgent of serious cases Datatrics may intervene without warning.
- If in the opinion of Datatrics the continued functioning of the computer systems or network of Datatrics or third parties is actually or under threat of being damaged or jeopardized, for example through excessive transmission of data, leaks of personal data or virus activity, Datatrics may take all steps it deems reasonably necessary to end or avert such damage or jeopardy.
- Datatrics is at all times entitled to file a criminal complaint for any offenses committed through or using the service. In addition Datatrics is entitled to supply your name, email address, IP-address and/or other identifying data to a third party alleging that you violate its rights or these terms and conditions, provided the validity of the complaint is clear, no other way of obtaining this information exists and the third party has an evident interest in obtaining this information.
- You acknowledge that the success of the Service is co-dependent on proper use of the Service. Datatrics is in no event liable or responsible for the results of the use of the Service.
- You warrant that third party rights do not oppose to the use of information through the Service, such as rights to personal data, confidential data files, video, text, music, software, logos, design material and such.
- You indemnifies Datatrics from all claims, procedures, losses and / or direct and / or indirect damage suffered by third parties based on, or arising out of, or in any way related to, (a violation of) the Master Agreement or the General Terms and Conditions, unless this is the result of gross negligence or intent by Datatrics and / or its management staff. Datatrics may recoup from you all damages it suffers as a result of your violation of these General Terms and Conditions.
Article 3 Availability and maintenance
- Datatrics does not give you any warranties, commitments or indemnifications in any form whatsoever regarding the quality, safety, legality, integrity, suitability and correctness of the Service.
- Datatrics uses its best efforts to have the Service available at all times, and is only willing to make specific guarantees if a separate service level Master Agreement is concluded with Datatrics.
- Datatrics actively maintains the Service. Maintenance can take place at any time, even if this may negatively impact the availability of the Service. Maintenance is announced in advance whenever possible.
- Datatrics may from time to time adapt the Service. Your feedback and suggestions are welcome but ultimately Datatrics decides which adaptations to carry out (or not).
Article 4 Intellectual Property Rights
- The Service, the Platform, the Website and all accompanying software as well as all information, images, audiovisual material and texts are protected by Intellectual Property Rights of Datatrics and/or its licensors. None of these items may be copied or used without prior written permission of Datatrics, except and to the extent permitted by mandatory law.
- You obtain the usage rights to the Service arising from the Master Agreement, which will always be non-exclusive, non-transferable and non-sublicensable, and under the condition precedent of payment of the applicable fees (Article 5). You may use the Service solely in, and on behalf of, your own company or organization and for the intended use only.
- Information you store or process using the Service is and remains yours and your risk and responsibility. In as far as necessary, Datatrics receives a limited license to use this information for the Service, including for future aspects thereof. You can cancel this license by removing the information in question and/or terminating the Master Agreement.
- If you send information to Datatrics, for example a bug report or suggestion for improvement, you grant Datatrics a perpetual and unlimited license to use this information. This does not apply to information you expressly mark as confidential.
- Datatrics shall refrain from accessing data you store or transfer using the Service, unless this is necessary for a good provision of the Service or Datatrics is forced to do so by law or order of competent authority. In these cases Datatrics shall use its best efforts to limit access to the information as much as possible.
- You are not authorized to use Datatrics’ trade name(s), trademark(s) and/or logo(s) in the context of promotional activities, including listing on your website, without Datatrics’ prior written consent.
- will consult each other before they will express any press release or other publication or advertisement regarding the Master Agreement;
- will not express press release, publication or advertisement without the prior consent of the other Party, which consent will not be withheld or delayed for unreasonable reasons;
- may, without the prior consent of the other Party, make a public or non-public statement if this is required by law or by a court order.
Article 5 Payment
- The use of the Service is subject to fees, as stated in the Master Agreement and/or on the Website. The applicable fee may vary according to the (additional) Services agreed upon.
- Datatrics offers various subscriptions, including to the Customer Data Platform (CDP) and the CDP Actionable Tool, as described in the Master Agreement and/or on the Website. With regard to these subscriptions, you can choose an annual subscription (standard) or a monthly subscription.
- When you subscribed to the CDP, you can always upgrade to a CDP Actionable subscription as of the next month.
- When you subscribed to the CDP Actionable, you can downgrade to a CDP subscription. With an annual CDP Actionable subscription, you can downgrade to a CDP subscription as of the moment the Master Agreement shall be renewed. With a monthly CDP Actionable subscription, you can downgrade to a CDP subscription as of the month after the next month.
- The fees are due periodically, as described within the Service, and must be paid in advance. Datatrics is allowed to bill in advance.
- The fee of the Services is depending on the traffic (sessions) on your website. Datatrics monitors the amount of sessions on your website each month. If Datatrics detects there is an overuse (= more sessions than on the base of the license is allowed) on your website of 10% for 4 months or 50% for 1 month, Datatrics is entitled to raise the fee of the Services to the amount of the fee belonging to the license which corresponds with the actual amount of sessions on your website.
- Payment is possible through direct debit order, by making a wire transfer to the bank account of Datatrics, or as explained further on the Website and in the Service.
- You agree with electronic invoicing.
- All amounts mentioned by Datatrics are exclusive of VAT and in euro’s.
- Datatrics handles a payment period of 30 (thirty) calendar days. You are obliged to pay the fees within the agreed payment period. The end of this payment period is a fatal deadline.
- In the case you do not pay within the payment period, Datatrics is allowed to suspend (partly or fully) and/or to terminate the Master Agreement. Also, you are obliged to pay the legal interest rate for the outstanding amount on the base of article 6:119a Dutch Civil Code. This is owed from the first day after expiration of the payment period, without requiring a notice of default. You are also held to pay full compensation for all extrajudicial and judicial (collection) costs, including but not limited to costs for attorneys, bailiffs and debt collection agencies. Datatrics is entitled to charge 15% of the outstanding amount to you, with a minimum of EUR 40, -, without prejudice to Datatrics’ right to charge the actual costs to you if these actual costs exceed 15% of the outstanding amount.
- You are not entitled to settle or suspend any payment or due amount, for any reason whatsoever.
- Datatrics is entitled to revise its rates periodically. If Datatrics decide to do this, it will notify you about this before the date of revision.
Article 6 Confidentiality
- You shall treat information confidentially when Datatrics has appointed this information as confidential or when you know or reasonably should suspect that the information was intended to be confidential. You shall in any event treat the contents of the Master Agreement(s) as confidential.
- You shall require your employees and staff to abide the same confidentiality obligation.
- The confidentiality obligation continues after the termination of the Master Agreement.
Article 7 Privacy
- The responsibility for the personal data processed by you with the Service is exclusively with you. You qualify as the controller in the sense of the General Data Protection Act. Datatrics qualifies as the processor in the sense of the General Data Protection Act. You are required to conclude a data processing agreement with Datatrics.
Article 8 Limitation of liability
- Datatrics’ liability for damages resulting from an attributable failure in the Performance of the Master Agreement, from any unlawful act or otherwise, is excluded, unless otherwise provided in this article.
- Datatrics’ liability for Direct Damages resulting from an attributable failure in the Performance of the Master Agreement, from any unlawful act or otherwise, is per event (a series of successive events is seen as one event) limited to the amount paid by you in the three months prior to the moment the cause of the damage occurred, with a maximum of EUR 15,000.-.
- Datatrics in no event liable for indirect damages, consequential damages, lost profits, missed savings or damages through business interruption.
- Damages may only be claimed if reported in writing to Datatrics at most two months after discovery.
- Unless Performance of the Master Agreement by Datatrics is permanently impossible, Datatrics’ liability for attributable failures in the performance of the Master Agreement will be incurred only if you immediately send Datatrics a written notice of default (“ingebrekestelling”), setting a reasonable term for the recovery of the failure, and Datatrics also after that term is attributable failing to fulfill its obligations. The notice of default must contain a complete and detailed description of the failures so that Datatrics is given the opportunity to respond adequately.
- In case of Force Majeure Datatrics is never required to compensate damages suffered by you.
Article 9 Term and termination
- The Master Agreement enters into force as soon as you first use the Service and then remains in force for twelve (12) months. It is also possible to agree upon a term of one (1) month instead, by separate written agreement, for an additional fee of 10% per month.
- After this period the Master Agreement is silently renewed with successive terms of the same period. You can terminate the Master Agreement by the end of the term indicated in the previous clause with a notice period of one (1) calendar month by clicking “Cancel subscription” under the heading “Billing” in the Platform. You also need to stop all use of the Service, including but not limited to deactivate the use of all synchronisation activities such as deleting the online tracking pixel, before the end of the term indicated in the previous clause, or the Master Agreement is silently renewed with successive terms of the same period.
- You are allowed to upgrade the Service by agreeing upon additional modules at any time. You can only downgrade the Service by terminating added modules at the end of the term indicated in clause 9.1, taking into account the formalities indicated in clause 9.2.
- Datatrics is entitled to terminate the Master Agreement at any time taking into account a notice period of one months.
- You can export the data you store or process using the Service at any time through the Platform.
- If, at the time of a rescission, you has already received Performance of the Master Agreement, these Performance(s) and the related payment obligation will not be subject to cancellation.
- Datatrics will never be held to refund any money received, or be liable for any compensation regarding cancellation, rescission or other termination of the Master Agreement. Amounts invoiced by Datatrics before cancellation remain unaffected and will be due immediately upon cancellation.
Article 10 . Changes to terms
- Datatrics may change or add to these General Terms and Conditions as well as any prices at any time.
- Datatrics shall announce through the Service changes or additions at least thirty days before their taking effect.
- If you do not want to accept a change or addition, you can terminate the Master Agreement until the date the changes take effect. Use of the Service after the date of effect shall constitute your acceptance of the changed or added-to General Terms and Conditions.
Article 11 Conflict management
- The laws of the Netherlands apply to these General Terms and Conditions, the Master Agreement, as well as any other (legal) acts between Parties.
- Except to the extent determined otherwise by mandatory applicable law all disputes arising in connection with the Service shall be tried to be resolved between the Parties. Any dispute that may arise between Parties and can not be resolved through mutual efforts thereto, may be submitted by any Party to mediation. If this mediation does not lead to a determination within sixty calendar days, or if the dispute is not submitted to mediation the dispute can be submitted to the competent court of Overijssel in Almelo, the Netherlands. This does not affect the right of either Party to obtain a provisional provision through the competent court of Overijssel in Almelo, the Netherlands.
Article 12 Applicability
- Applicability of any your terms, including your terms and conditions of purchase, is hereby explicitly rejected.
- Datatrics is entitled to modify or supplement these General Terms and Conditions.
- If a provision of the Master Agreement and/or the General Terms and Conditions is void or is voided, the other provisions will remain fully in effect. In such case, Parties will consult with one another to agree new provisions to replace the void or voided ones, in which the purpose and meaning of the void or voided provisions will be taken into account as far as possible.
- The version of any communication and/or (monitored) information as recorded by Datatrics shall be deemed to be authentic, unless you supply proof to the contrary.
- Datatrics is entitled to transfer its rights and obligations under this Master Agreement to a third party as part of an acquisition of the Service or the associated business activities.
Annex A References, Terms and Interpretations
- In the General Terms and Conditions and the Master Agreement:
- reference to any statute includes a reference to that statute as amended, extended or re-enacted and to any regulation, order, instrument or subordinate legislation under the relevant statute;
- reference to any recital, clause, paragraph or schedule is to a recital, clause, paragraph or schedule (as the case may be) of or to these General Terms and Conditions;
- reference to the singular includes a reference to the plural and vice versa;
- reference to “or” is not exclusive and “include” and “including” shall not be construed or read to be limiting;
- reference to “hereby”, “herein”, “hereof”, “hereunder” and any like words refer to the General Terms and Conditions, except where on the basis of the context another meaning can be the only reasonable interpretation;
- reference to a law or regulation includes any amendment or modification to such law or regulation and any further rules issued thereunder or any law or regulation in replacement therefor;
- reference to any gender includes a reference to all other genders;
- references to a natural person or legal entity includes its successors or assigns, to the extent permitted under the Master Agreement and/or General Terms and Conditions;
- any rights of either Party may be exercised at any time and from time to time unless specified otherwise in the Master Agreement and/or General Terms and Conditions;
- reference to “written/in writing” in this Master Agreement also refers to email communication, provided the identity of the sender and the integrity of the contents is adequately established;
- reference to an article in the General Terms and Conditions or the Master Agreement shall be a reference to such section of the body of the General Terms and Conditions respectively the Master Agreement, and not to any attachment or other document, unless where explicitly provided otherwise; and
- specific references in (the body of) the General Terms and Conditions or the Master Agreement to other parts of the Master Agreement shall be without prejudice to the full general applicability of any unreferenced provision or part thereof.
- In the General Terms and Conditions and the Master Agreement:
- the headings of articles, sections, portions or paragraphs of the General Terms and Conditions and the Master Agreement are for ease of reference only and shall not affect the interpretation of the respective rights and obligations of the Parties and shall not form any part of the General Terms and Conditions and the Master Agreement for the purposes of construction;
- in the event of any inconsistency or conflict between the various parts of the General Terms and Conditions and/or the Master Agreement, the following order shall apply, whereby any document mentioned in an earlier category shall prevail over any document mentioned in a later category hereunder, and not listed itself in any category hereunder, shall have the same rank and be as binding as the document through which it is referred:
- The Master Agreement;
- The General Terms and Conditions;
- the body of the General Terms and Conditions respectively the Master Agreement, or where appropriate, any legally valid change made thereto, which change shall then prevail over conflicting provisions in the body of the General Terms and Conditions respectively Master Agreement;
- the Annexes respectively the appendices, whereby an Annex / appendix with an earlier alphabetical letter shall prevail over any Annexes / appendices with a later alphabetical letter (A will prevail over B, B will prevail over C, etc.), unless the Annex / appendix with the later alphabetical letter expressly states it takes precedence over the inconsistent or conflicting term in the Annex / appendix with an earlier alphabetical letter;
- the recitals to the Master Agreement;
- the wording of the General Terms and Conditions and the Master Agreement shall be decisive in interpreting the mutual rights and obligations of the Parties under the Master Agreement.
- In these General Terms and Conditions, the following terms shall have the following meaning:
- Annex: an attached document to these General Terms and Conditions, that is hereby incorporated by reference;
- Datatrics: the private limited liability company incorporated under the laws of The Netherlands (“besloten vennootschap”) Datatrics B.V., registered at the Chamber of Commerce (“Kamer van Koophandel”) under number 60772824;
- Platform: The web based Platform made available by Datatrics through the Website to the Customer to provide the Service;
- Force Majeure: means an event or circumstance beyond the reasonable control of a Party, including natural catastrophes, governmental acts, war, terrorism, interruptions or failure of the Internet, failures of third-party networks, equipment or hardware
- Intellectual Property Rights: any and all intellectual property rights and related rights, including but not limited to copyrights, database rights, design rights, domain names, know how, patents, trademarks, trade name rights, trade secrets;
- Master Agreement: the Master Agreement for access to and use of the Service, including its appendixes;
- Performance: fulfilling a commitment under the Master Agreement;
- Service: The service provided by Datatrics by providing the Customer access to the Platform by means of which the Customer can bring data from various internal and external sources together in one central environment, in order to centralize internal and external data sources, to create unique customer profiles, to predict customer needs by means of algorithms and machine learning, to create relevant and personalized customer journeys, to provide automated dynamic content through different platforms and/or to advance online conversions by means of more relevant, personalised content;
- General Terms and Conditions: these general terms and conditions;
- Website: the website made available by Datatrics through the URL https://www.datatrics.com/ and all underlying pages;