DSD Europe BV | March 2022
Article 1 - Definitions
In these general terms and conditions the following terms have the following meaning:
We or us
The user of these General Terms and Conditions, acting under the name DSD Europe BV, hereinafter referred to as: 'we' / 'us'.
DSD Europe B.V.
Hintham 152 a
5246 AK Rosmalen
Registered in the trade register under the number: 51672413.
The commercial party that purchases the License (s) and / or Service (s) from us via our Platform.
The right to use Software granted by us or Supplier for a fixed period of time or issued for a specific version.
An online software service that is billed monthly for usage, developed by the Supplier or a service developed by ourselves.
The online environment where the Reseller receives Licenses and / or Services on Software against payment.
The natural or legal person who purchases license (s) and / or service (s) from the Reseller.
The party that provides us with Licenses or Services, which can be expressed in cash.
The computer software, in computer readable form (object code), as made available to us by the Supplier.
The end of each 3 month accounting period of ours, starting on January 1 of each year.
Article 2 - Subject of agreement
- We hereby give Reseller permission to distribute Licenses and / or Services to End Customers during the term of the agreement, in accordance with the conditions included in the agreement.
- Reseller acts for his own account and risk and cannot bind us. An agreement does not involve a partnership, agency or representation. Nor does an agreement create a relationship of authority between parties. Reseller may present himself as a Reseller of the Supplier vis-à-vis third parties, but will never give the impression that he is acting as the authorized representative of the Supplier or that he can bind the Supplier in any way.
- Without prior written permission from us, the Reseller is not permitted to appoint subresellers or agents or to sell Licenses and / or Services to resellers.
- There is no exclusivity in favor of Reseller. We and the Supplier may also offer Licenses and / or Services to the market in another way.
Article 3 - Applicability
- The conditions apply to all agreements and to all (legal) acts between us and the Reseller.
- Provisions deviating from these conditions are only valid if they have been accepted in writing and in advance by us. Unless otherwise agreed, the deviating conditions only apply to the relevant agreement for which the deviating provisions have been agreed.
- If one or more of the provisions in these terms and conditions do not legally apply, then this provision will be replaced by a provision with a legally valid provision that legally corresponds as much as possible to the invalid provision. All other provisions remain in full force in the case just described.
- General terms and conditions of the other party are expressly rejected.
- We are entitled to unilaterally change these conditions. In that case we will inform the Reseller of the changes in a timely manner. There will be at least one month between this notification and the entry into force of the amended conditions. If the Reseller is a natural person who does not act in the exercise of a profession or business, and the change has the effect of providing the Reseller with a performance that differs substantially from the original performance, this Reseller has the authority to terminate the agreement as of the date that the amended conditions take effect.
Article 4 - Entering into an agreement
- Parties enter into an agreement when the Reseller places an order on our Platform and we have confirmed that order in writing (digitally).
- The order confirmation as referred to in paragraph 1 is binding on both parties and will indicate as clearly as possible which Licenses or Services are being purchased, the price, the delivery date and the term of the License (if applicable).
Article 5 - Delivery and delivery time
- We will deliver the Licenses and Services as agreed in the agreement to the Reseller from our Platform and / or by e-mail, whereby Reseller receives an electronic access key that allows Reseller to access the Licenses and / or Services. Reseller must treat these access keys confidentially at all times and not provide them to third parties.
- Notwithstanding the provisions of Article 9, the physical licenses during transport are for the account and risk of Reseller, from the moment the licenses leave our warehouse.
- Digital Licenses and Services are for the account and risk of the Reseller from the moment access is provided.
- We are authorized to deliver in parts. Each partial delivery can be considered as an independent delivery. Costs for shipping partial deliveries are for us. Unless otherwise agreed.
- If there is a need for the Reseller to cooperate in the performance of the agreement, the Reseller will always provide us with all useful and necessary data or information in a timely manner and furthermore provide all other desired cooperation. The consequences of non-compliance with these obligations are for the account and risk of the Reseller.
- If for the implementation of an agreement the necessary data, equipment and / or materials are not available to us, in time or in accordance with the agreements, or if the Reseller does not fulfill his obligations in any other way, we have the right to suspend the agreement and the right to charge extra costs according to the usual rates.
- Licenses or Services will be delivered within the Platform or sent to the email address specified by the Reseller. All damages resulting from communicating an incorrect e-mail address will always be at the expense and risk of the Reseller.
Article 6 - Complaints and complaints
- Any complaint or reclamation regarding defects must be submitted to us in writing within eight days of delivery. If that period is exceeded, the right to complain will lapse.
- A complaint does not suspend payment obligations.
- Minor deviations in quality of the Licenses and / or Services supplied, which are technically unavoidable or generally accepted in trade, cannot provide grounds for complaint or for dissolution of the agreement.
- Only Licenses that are complete, in unopened and undamaged condition and in their original packaging, without (printed) tape and without written text on the packaging, can be returned. Reseller bears all responsibility regarding the Licenses and Services that are returned. Except in the case of a clear error by us, the costs for return shipment are borne by the Reseller and we have the right to charge a fee for handling the returned Licenses.
- Reclamations are not possible for Licenses and Services that:
a. have not been taken into use by Reseller or End customer;
b. have been used by Reseller or End Customer for more than 24 hours.
Article 7 - Prices and payment
- Unless explicitly agreed otherwise, Licenses and Services are only made available or sent after payment.
- The prices shown on the Platform are only target prices, based on price-determining factors that apply at the time the agreement is concluded, excluding VAT and any other taxes.
- All offers made by us, including calculations, brochures and price lists, are not binding, subject to an agreement, and can be withdrawn without delay, even after the Reseller has accepted the offer. Withdrawal of the offer after acceptance will take place as soon as possible.
- The price for Licenses and Services is final from the moment the Reseller receives the written (digital) order confirmation. However, we still have 24 hours from the moment the Reseller receives the confirmation to adjust the price.
- Unless otherwise agreed in the agreement, payment will be made within 14 days after we have sent the invoice.
- In the event of late payment, we have the right: (1) without requiring a notice of default or notice, to charge the statutory commercial interest on the full amount due from the date on which payment should have been made to the date on which the due amount has been received by us, plus a surcharge of 1% on a monthly basis, a part of a month is calculated as a whole and (2) after a notice of default to transfer the claim for collection to a third party. Reseller will reimburse all costs that we and this third party have to incur to collect the owed amount, including costs of legal assistance, litigation costs and extrajudicial costs, with a minimum of € 175 including VAT, or a minimum of 15% of the outstanding sum, whichever this is higher.
Article 8 - Delivery times
- All (delivery) periods mentioned by us are approximate and are never strict deadlines.
- Exceeding the delivery times specified by us, for whatever reason, will not be considered as non-compliance and will not affect the Reseller's obligation to purchase the Licenses and / or the Services.
- The Reseller is never entitled to compensation in the event of late delivery.
Article 9 - Retention of title
- Regardless of the provisions in Article 7.1, all Licenses and / or Services remain our property until the Reseller has paid the invoice in full.
- In the event that we provide a License or Service, this License or Service is provided on the condition that payment is made within the specified period. If payment is not made within the period and the License or Service has nevertheless been granted, we have the right to withdraw the License or Service. Any use of the License or Service before and after the withdrawal will be reimbursed at € 500 per day of use. If the actual damages are higher than this amount, then we have the right to claim the full damages.
Article 10 - Intellectual Property Rights
- Nothing from these terms and conditions or an agreement can be understood as a transfer of any intellectual property right. The intellectual property with regard to Software and Services, used logos, (logo) brands, designs, trade names, etc. rests with us or Supplier and will also remain with us or Supplier.
- We provide Licenses and / or Services from Suppliers to which we ourselves have no intellectual property right. This means that every decision regarding those intellectual property rights that are taken by the Supplier that influence our agreement with the Reseller, counts as force majeure.
Article 11 - Liability and indemnity
- We and our employees or third parties engaged by us are never liable for any indirect damages suffered by Reseller or third parties, including consequential damages, lost revenue and profit, loss of data and immaterial damages, related to or arising from the agreement or use by Reseller of the Licenses and /or Services, unless these damages are the result of intent or gross negligence on our part.
- Without prejudice to the provisions of the agreement, our liability for direct damages to Reseller, for whatever reason, per event (in which a related series of events counts as one event) is limited to the invoice amount of the agreement actually paid to us by Reseller. VAT.
- The Reseller indemnifies us against all claims from third parties, for whatever reason, with regard to compensation for damages, costs or current interest payments, related to the agreement in the event that we cannot invoke these general terms and conditions.
Article 12 - Cancellation and termination
- In the case of an agreement for a longer duration than a one-off purchase, the parties are entitled to cancel the agreement subject to a notice period of three months.
- Contrary to the first paragraph of this article, the parties cannot prematurely terminate a service if that service is linked to a period longer than 3 months, unless the parties jointly decide otherwise.
- Both parties are entitled to terminate the agreement with immediate effect and without judicial intervention in the event of bankruptcy, suspension of payment, liquidation or any other circumstance that threatens the survival of the other party.
Article 13 - Force majeure
- In the event of force majeure, we are entitled to dissolve the agreement, in whole or in part, without judicial intervention, and without having to pay any compensation in this regard. In addition, we are entitled to suspend our obligations until after the situation of force majeure ends. It is up to us to make a decision for one of the two choices, depending on the precise nature of the force majeure.
- Force majeure is understood to mean any external situation that is not attributable to us, as a result of which we are unable to meet our obligations, or make it so difficult to fulfill our obligations that we cannot reasonably be expected to we fulfill our obligations. Force majeure includes among other things; calamities, natural disasters, government measures, war, riots, strikes, unusual stagnations in production or transport, non-availability of internet and non-compliance with suppliers.
Article 14 - Renewal Solution
- In the event that a License issued by us is approaching the end of the term, we will send the Reseller's End Client an email with the options for renewing the License. When the End Customer accepts and has paid the new term, we will forward the License directly to the End Customer, thereby renewing the License. The Reseller receives a credit invoice from us for every renewed License. The Reseller pays us the current Reseller price of the License, supplemented with an amount of € 0.90 per renewal. The amount collected by us from the End customer is added to this to arrive at a credit amount in favor of the Reseller.
- No agreement is ever concluded between us and the End Customer, we facilitate a new agreement between the Reseller and the End Customer through our Platform.
- If an extension of the License as described above takes place, the general terms and conditions of My-ESD will apply, and the Reseller is obliged to act towards the End Customer in accordance with those terms and conditions.
- The Reseller is at all times responsible for correct invoicing to the End Customer as well as the fiscal and administrative (accounting) processing of the renewal as referred to in this article.
- All amounts resulting from credit invoices to Reseller will be paid to Reseller in the month following a Quarterly Closing and any outstanding items will be settled with this.
Article 15 - Other provisions
- Dutch law applies to our offers and agreements and to these conditions.
- All disputes between parties are submitted to the competent court in the district of East Brabant.
- We are entitled to share all relevant information about our Resellers with our Suppliers. This concerns, but is not limited to, sales data, Licenses sold and / or Services and profit margins. The Reseller also ensures that the End Customer gives permission for the sharing of data from the End Customer by us with the Suppliers. The Reseller indemnifies us in the event that there is no permission from the End Customer while the Reseller has communicated that permission to us.
- In the event of a dispute regarding the different versions of our terms and conditions, the Dutch version is always leading and decisive.
Thus deposited with the Chamber of Commerce in Eindhoven.