These Terms and Conditions apply to all special offers and resulting agreements between Hellodialog in Haarlem, Chamber of Commerce 63401274 and its counterparties (“Commissioning Party”).
Provisions or conditions set by the Commissioning Party that deviate from, or do not appear in these Terms and Conditions shall only be binding for Hellodialog if and to the extent that these are expressly agreed in writing.
The previous Terms & Conditions of Hellodialog are no longer applicable as of December 1st 2016.
Article 1. Services
1. Hellodialog makes the online software application “Hellodialog” (“the Application”) available for the Commissioning Party, and in addition, may conduct additional work such as advice and support (“the Services”).
2. The agreement for use of the Application and/or delivery of Services is affected by agreement on an offer or quotation for this purpose.
3. If the Commissioning Party does not expressly indicate approval of an offer or quotation, but nevertheless agrees, or gives that impression, that Hellodialog conducts work that falls within the description of the Services, this shall be considered as being accepted. This also applies if the Commissioning Party Hellodialog requests to conduct certain work without waiting for a formal quotation.
4. Amending the Services is only possible with the consent of both parties, unless stated otherwise in these terms and conditions.
Article 2. Delivery of the Services
1. After the agreement has been concluded the Services will be conducted in accordance with the quotation by Hellodialog, taking any reasonable wishes of the Commissioning Party into account.
2. The Commissioning Party is obliged to do all that is reasonably necessary or desirable to enable a proper and timely implementation of the Services. In particular, the Commissioning Party shall ensure that all information that Hellodialog indicates is necessary, or which the Commissioning Party should reasonably understand is necessary for carrying out the Services, is provided to Hellodialog in a timely manner.
3. If a proper implementation of the Services so requires, Hellodialog is entitled to have certain work carried out by third parties. Hellodialog is and remains the Responsible Party towards the Commissioning Party.
4. Hellodialog is entitled but not obliged to investigate the correctness, completeness or consistency of the source materials, requirements or specifications made available to him and in case of discovery of any omissions to suspend the agreed work until the moment that the Commissioning Party has removed these omissions.
5. All rights of intellectual property on the Application and on Services developed or delivered in the framework of the agreement are exclusively vested with Hellodialog or its licensors.
Article 3. Availability of the Application
1. Hellodialog will configure the Application for use by the Commissioning Party and provide a user account and password.
2. Hellodialog will endeavour to make the Application available to the Commissioning Party and the associated services and to realise access to information stored by Hellodialog. Hellodialog explicitly does not guarantee uninterrupted availability.
3. Hellodialog will endeavour to amend the Application from time to time to improve the functionality and to correct errors. In case of new functionalities or changes that may substantially change the functionality of the Application Hellodialog shall inform the Commissioning Party in advance. However, because the Application is available through internet service, Hellodialog shall decide which amendments are implemented when.
4. Hellodialog will endeavour to keep the Application up-to-date. However, Hellodialog depends on its supplier(s) and third parties. Hellodialog is entitled to not install certain updates or patches if Hellodialog takes the view that it does not benefit a proper operation of the Application or is not in the interest of the Application.
1. Commissioning Party may only use the Application for one trademark of his company or organisation. If the Commissioning Party wants to use the Application for multiple brands, a subscription must be purchased per brand.
2. The Commissioning Party shall only use the Application for its own purposes and shall provide access to the Application to third parties, except for its employees and subcontractors.
3. The Commissioning Party shall not sell, rent out, lease or lend access to the Application to third parties whether or not for payment. The manufacture of a document and/or sending a mailing through the Application for a party not involved in the agreement is not permitted.
4. The Commissioning Party shall refrain from hindering other users or internet users or causing damage to the systems or network. The Commissioning Party is prohibited from starting up processes or programs, whether or not through the systems of Hellodialog, of which Commissioning Party knows or should reasonably suspect that this hinders Hellodialog, other users or internet users or causes damage.
Article 5. Provisions with respect to email messages
1. The Commissioning Party shall ensure that all email addresses and other contact details imported into the Application are correct and that the recipients concerned have given their explicit consent to receive the messages to be sent with the Application, or that there is a legal provision that entitles him to send these messages without explicit consent. At the request of Hellodialog, the Commissioning Party shall provide proof thereof.
2. Commissioning Party will ensure that the contents and format of the messages meet all legal requirements with respect to electronic communication, including his identity, contact details and opt outs and an explicit, prominent mention of the Commissioning Party as the sender of the mail. This obligation only applies to the extent that the contents and format are created or supplied by the Commissioning Party.
3. The Commissioning Party is fully responsible for the contents of the information that is sent via the Application. The purport and intent of this content may in any case not be of pornographic, discriminatory or otherwise offensive in nature, or in any way harm the reputation of Hellodialog (including its reputation with spam fighters), all this at the discretion of Hellodialog. If this nevertheless seems to be case, Hellodialog can take any appropriate actions, including termination of the Agreement (without refund), to mitigate the consequences.
4. The Commissioning Party must adhere to the relevant (international) laws and regulations relating to the intellectual property, such as (but not limited to) copyright. Moreover, the Commissioning Party declares to be aware of the relevant legislation concerning unsolicited sending of commercial or charitable email messages, in particular with regard to obtaining consent of the recipients and when this is or is not required. The Commissioning Party declares to have assessed his actions under the framework established by the ACM.
6. The content as referred to in Paragraph 3 will be presented in line with the brand of the Commissioning Party. Using trademarks or trade names of third parties (including of affiliated companies) is only permitted with explicit consent of Hellodialog.
Article 6. Dealing with personal data
1. The user is fully responsible for using the personal data collected via the Application, in accordance with the Data Protection Act and other (international) relevant laws and regulations. Upon the conclusion of the Agreement, the Processor Agreement is also concluded between the parties as set out in Annex 1.
2. The Personal data that the Commissioning Party stores on the systems of Hellodialog using the Application at all times remain the property of the Commissioning Party. Hellodialog will under no circumstances sell, rent out, lend or otherwise provide this personal data to third parties, unless doing so as required by any mandatory provision or (inter)national legislation.
3. Upon termination of the Agreement between the parties, or if Hellodialog (for any reason whatsoever) terminates its activities, Hellodialog will digitally transfer the personal data owned by the Commissioning Party.
Article 7. Support to Commissioning Party
1. Support is provided by phone, email and other channels to be agreed jointly.
2. Upon request, Hellodialog will endeavour (on business days between 0900 and 1800 hrs) to offer support as soon as possible.
Article 8. Rates and payment
1. The fixed and variable costs for using the Application depend on the type of subscription the Commissioning Party has chosen. Additional costs must be paid for sending email and SMS messages. A one time trial subscription of 30 days is free.
2. Payments of certain variable costs – such as, but not limited to, email and text messages – is made by means of a credit system. The Commissioning Party buys a certain amount of credits in advance and spends this on variable costs services at his own discretion. Credits are not refunded.
3. For services or variable costs that are not otherwise specified, Hellodialog will invoice for them on a monthly basis based on the actual hours worked, unless another form of compensation is specified in the quotation.
4. Hellodialog will send an electronic invoice to the Commissioning Party for the amounts owed by the Commissioning Party.
5. The payment period of invoices is fourteen days from the date of the invoice, unless a longer payment period is specified on the invoice. If the Commissioning Party fails to pay on time, after the expiry of this period he shall be legally in default without the need for notice of default. If an amount due is not paid within the payment period, statutory interest is due on the outstanding invoice amount.
6. In the event of a late payment, in addition to the amount owed and the interest thereon, the Commissioning Party is obliged to make reimbursement in full of both extrajudicial and judicial collection costs, including the costs for lawyers, bailiffs and debt collection agencies. In particular, Hellodialog is in this case is entitled to charge administration fees of € 50 as well as to terminate access to the Application.
Article 9. Confidentiality
1. The Parties shall treat any information that they provide to each other before, during or after the execution of the Agreement, confidentially if this information is marked as confidential or if the receiving party knows or should know that the information was intended to be confidential. The Parties shall also impose this obligation on their employees as well as on third parties engaged by them for the implementation of the Agreement.
2. Hellodialog will endeavour to prevent taking cognizance of information that the Commissioning Party stores and/or distributes via the hardware or software to which the Services relate, unless this is required for a proper implementation of the Agreement or the Service provider is obliged to do so under a statutory provision or court order. In that case the Service provider will endeavour to do everything within its power to minimise cognizance of the information as much as possible.
3. Hellodialog may use the knowledge that we have gained in performing the agreement for other assignments, insofar as no information provided by the Commissioning Party that would breach obligations regarding confidentiality is made available to third parties.
4. The obligations under this Article also continues in existence after termination of the Agreement for whatever reason, and for as long as the providing party can reasonably make claim for the confidential nature of the information.
Article 10. Liability
1. Hellodialog is only liable towards the Commissioning Party in the event of an attributable failure to fulfil the Agreement and only for compensatory damages, i.e. compensation of the value of the omitted performance.
2. Any liability of Hellodialog for any other form of damage is excluded, including additional compensation in any form, compensation for indirect or consequential damages, damages for lost sales or profits, reputational damage, damages for loss of data as well as due to exceeding the delivery terms as a result of changed circumstances.
3. The maximum amount of Paragraph 1 shall not apply if and insofar as the damage is caused by intent or gross negligence on the part of Hellodialog.
4. Notwithstanding Paragraph 1, Hellodialog is not liable for damage as a result of Services provided for free.
5. In the event of force majeure, which in any case includes malfunction or breakdown of the internet, breakdown of the telecommunication infrastructure, power failures, civil unrest, mobilisation, war, obstruction in transport, strike, lock-out, business disruptions, delay in supply, fire, flood, import and export restrictions and in the event that Hellodialog is not able to deliver due to its own suppliers, for whatsoever reason, as a result of which fulfilment of the Agreement cannot reasonably be expected from Hellodialog, the execution of the Agreement will be suspended, or the agreement will be terminated if the force majeure situation lasts longer than ninety days, all the above without any obligation to pay compensation.
Article 11. Duration and termination
1. The agreement is entered into for a period of a year. After this period the agreement shall be extended for a similar period, unless either party terminates the agreement in writing with a notice period of two months.
2. The agreement may only be terminated prematurely as provided in these Terms and Conditions, or with the consent of both parties.
3. After cancellation, termination or dissolution for whatsoever reason, Hellodialog is entitled, from one month after the date on which the Agreement expires, to erase all information stored for the Commissioning Party at Hellodialog. Upon termination, Hellodialog will provide the Commissioning Party with copy of this information in a generally useable digital format.
4. The Agreement ends automatically if a party is declared bankrupt, applies for a moratorium or his assets are seized, dies, goes into liquidation or is dissolved.
Article 12. Amendments to Agreement
1. Hellodialog is at all times entitled to unilaterally amend or expand these Terms and Conditions. Hellodialog shall inform the Commissioning Party accordingly at least two months before the amendments or expansions take effect. Any amendments to the Terms and Conditions may however not set a specific agreement aside.
2. If the Commissioning Party objects within this period, Hellodialog shall consider whether to withdraw the objectionable amendments. Hellodialog will inform the Commissioning Party of this decision. If Hellodialog does not choose to withdraw the objectionable amendments or expansions, the Commissioning Party is entitled to terminate the Agreement on the date that this will take effect.
3. Hellodialog may at any time implement amendments to these Terms and Conditions if this is required as a result of changes in legislation. The Commissioning Party cannot object to such changes.
4. The abovementioned arrangement also applies to prices.
Article 13. Final provisions
1. This agreement is governed by Dutch law. Unless otherwise prescribed by mandatory law, any dispute that may arise under this Agreement shall be submitted to the competent Dutch court of the district in which Hellodialog is established.
2. If any provision in this Agreement should become void, the other provisions in this agreement will remain in full force and effect. In that event the Parties will replace the void provision(s) with (a) provision(s) that comes closest to the original agreement and these Terms and Conditions.
3. In these Terms and Conditions “in writing” also includes email and communication by fax, provided the identity of the sender and the integrity of the content is sufficiently established. The Parties will endeavour to confirm the receipt and content of communication by email.
4. The version received or stored by Hellodialog of any communication applies as authentic, unless evidence to the contrary is provided by the Commissioning Party.
5. Each party shall only be entitled transfer its rights and obligations under the Agreement to a third party with the prior written consent of the other party. Notwithstanding this, Hellodialog is always entitled to transfer its rights and obligations under the Agreement to a parent, subsidiary or sister company.
ANNEX 1: The Processor Agreement
This Processor Agreement is an integral part of the Agreement. In the Agreement Hellodialog is the Processor (“The Processor”) of the personal data. In the Agreement the User is responsible (“Responsible Party”) for the personal data. After this both parties will be referred to as The Responsible Party or The Processor.
1. The Responsible Party has personal data of various stakeholders;
2. The Responsible Party wants certain types of processing to be executed by the Processor, data for the execution of the Agreement;
3. For which the Responsible Party shall appoint the purposes and resources required, subject to the conditions mentioned herein;
4. The Processor is prepared to execute the processes and also to comply with the obligations regarding the security and other aspects of the Wbp, as much as possible;
5. The Responsible Party can be regarded as a Responsible Party within the meaning of Article 1 sub d of the Data Protection Act (hereinafter: ‘’Wbp’’);
6. The Processor can be regarded as the Processor within the meaning of Article 1 sub e of the Wbp;
7. Where this Agreement refers to personal data, this personal data refers to personal data within the meaning of Article 1 sub one of the Data Protection Act (hereinafter: “Wbp”);
8. The Parties, also in view of the requirement in Article 14 Paragraph 5 of the Wbp, wish to record their rights and obligations in writing by means of this Processor Agreement (hereinafter: “The Processor Agreement”).
have agreed as follows
Article 1. Purposes of processing
1. The Processor undertakes to process personal data under the conditions of this Processor Agreement on behalf of the Responsible Party. The processing will solely take place to provide the application by the Processor for the execution of the Agreement, and those purposes to be specified by further agreement.
2. The Processor will not process the personal data for any other purpose than established by the Person Responsible. The Responsible Party shall inform The Processor of the purpose of processing to the extent that this is not already specified in this Processor Agreement. The Processor may, however, use the personal data for statistical and/or quality purposes and also conduct statistical research into the quality of its services. The Processor may also use the information in aggregated, identifiable, form for its own purposes.
The Responsible Party shall ensure that processing personal data falls under one of the exemptions under the Wbp, or, where this is not the case, the Dutch Data Protection Authority (College Protecting Persoonsgegevens) has been notified. The Responsible Party shall indemnify The Processor against any and all claims related to the failure to correctly apply this duty to report.
Article 2. Obligations of the Processor
1. With respect to the processes specified in Article 1, the Processor shall comply with the applicable laws and regulations, including in any case the laws and regulations in the field of the protection of personal data, such as the Data Protection Act.
2. The Processor shall inform the Responsible Party, upon first request, about the measures it has taken with respect to its obligations under this Processor Agreement.
The obligations of the Processor under this Processor Agreement also apply to how personal data under the authority of the Processor is processed, including but not limited to employees, in the broadest sense of the word.
Article 3. Transfer of personal data
1. The Processor may process personal data in countries within the European Union. Transfer to countries outside the European Union is not permitted without the prior written consent of the Responsible Party.
2. The Processor shall inform the Responsible Party which country or countries this concerns.
Article 4. Distribution of responsibilities
1. The permissible processes will be executed by employees of the Processor within an automated environment.
2. The Processor is solely responsible for processing the personal data under this Processor Agreement, in accordance with the instructions of the Responsible Party and under the explicit (final) responsibility of the Responsible Party. The Processor is explicitly not responsible for further processing of personal data, including but not limited to the collection of the personal data by the Responsible Party, processes by third parties and/or for other purposes.
3. The Responsible Party shall ensure that the content, the use and the assignment to process the personal data as referred to in this Processor Agreement, is not unlawful and does not infringe any right of third parties and shall indemnify the Processor against any and all claims related thereto.
Article 5. Commissioning third parties or subcontractors
1. Within the framework of the Processor Agreement, the Processor may use a third party without the prior consent of the Responsible Party.
2. The Processor shall ensure that these third parties take on the same obligations in writing that the Responsible Party and the Processor have agreed upon. The Processor is responsible for proper compliance of these obligations by these third parties and is liable towards the Responsible Party in the event of errors of these third parties for all damages as if the Responsible Party himself committed the error(s). The Responsible Party has the right to consult any agreements concerned.
3. If the Responsible Party expressly requests, the Processor will always state the third parties that The Processor commissions in the performance of the Processor Agreement.
Article 6. Security
1. The Processor will endeavour to take adequate technical and organisational measures with regard to processing personal data, against loss or against any form of unlawful processing (such as unauthorised disclosure, damage, amendment or provision of the personal data). The Processor does not guarantee that the security is effective under all circumstances.
2. The Processor has in any case taken the following measures:
• logical access control, using passwords;
• automatic logging of all activities with regard to the personal data;
• encryption (scrambling) of digital files with personal data;
• security of network connections through Secure Socket Layer (SSL) technology.
3. The Responsible Party shall only make any personal data available to the Processor for processing if he has ensured that the required security measures have been taken. The Person Responsible is responsible to comply with the measures agreed by the Parties.
Article 7. Obligation to report
1. In the event of a security breach and/or a data breach, the Processor shall inform the Responsible Party, following which the Responsible Party shall assess whether or not to inform the stakeholders and/or the relevant supervisor(s). The Person Responsible is and will remain responsible for any legal obligation for this purpose.
2. A notification must be given for events with a great impact, and only if such an event has actually occurred.
Article 8. Handling requests from stakeholders
1. In the event that a stakeholder requests an inspection as referred to in Article 35 Wbp, or correction, addition, amendment or foreclosure as referred to in Article 36 Wbp, the Processor shall forward the request to the Responsible Party and the Responsible Party shall further handle the request. The Processor may inform the party concerned accordingly.
Article 9. Confidentiality
1. All personal data that the Processor receives from the Responsible Party and/or collects himself within the framework of this Processor Agreement is subject to a duty of confidentiality towards third parties.
2. This duty of confidentiality does not apply if the Responsible Party has given explicit consent to provide the information to third parties, if providing the information to third parties is logically necessary in view of the nature of the assignment and the implementation of this Processor Agreement, or is legally obliged to provide the information to a third party.
Article 10. Audit
1. The Responsible Party has no right to conduct audits.
Article 11. Duration and termination
1. This Processor Agreement is entered into for the duration as specified in the Agreement and failing that in any case for the duration of the collaboration.
2. The Processor Agreement may not be terminated prematurely.
3. The Parties may only amend this Processor Agreement by mutual consent.
Article 12. Other provisions
1. The Processor Agreement and its implementation are governed by Dutch law.
2. Any disputes that may arise between the Parties in connection with the Processor Agreement will be submitted to the competent Court in the district where the Processor is established.
3. Logs and measurements made by the Processor serve as compelling evidence, except for counter-evidence to be supplied by the Responsible Party.