Terms of service

These terms of service are valid as of February 15, 2023 and replace previous terms and conditions of De Digitale Gesprekscyclus. They will soon be made available in PDF format.

1. Definitions

1. The following terms indicated with capital letters have the following meaning in these Terms:

• Audit: an independent review/assessment of an activity, process, system, or organization based on a pre-agreed explicit norm.
• Bug: a technical imperfection in the Software that – given the nature and purpose of the Software – does not reasonably stand in the way of its use, at the discretion of DDGC;
• DDGC: the company De Digitale Gesprekscyclus BV, having its statutory seat in Castricum;
• Error: a technical imperfection in the Software that – given the nature and purpose of the Software – does stand in the way of its use, at the discretion of DDGC;
• Implementation: the process of implementing the software, consisting of an intake, delivery, and training;
• Intellectual Property Rights: The worldwide intellectual property rights and similar and related rights in the broadest sense, including in particular – but not exclusively – (1) copyrights, (2) database rights, (3) model rights, (4) trademark rights, (5) know-how, (6) domain names, and (7) patent rights, including all powers (including at least the exclusive right to disclose and reproduce) which the relevant national and international legislation grants or will grant to it, including any future intellectual property rights;
• Linkage: a part of the Software that can exchange data with third parties, such as (payroll) administration packages, HR applications, or other office software;
• Client: the natural person or legal entity that enters into an Agreement with DDGC;
• Agreement: the agreement between Parties to which these Terms apply;
• Parties: DDGC and the Client collectively;
• Software: the web application De Digitale Gesprekscyclus of DDGC for performance and competence management, with which, among other things, easy performance and appraisal interviews can be recorded. This software is accessible via https://app.ddgc.nl. The Software is further specified on the Website;
• Support environment: online environment where the Client can find articles with explanations regarding the Software;
• Terms: these general terms and conditions, including annexes;
• Website: the website of DDGC, accessible via https://ddgc.nl.

2. Applicability

1. These Terms and Conditions apply to all offers, general proposals, (legal) actions, agreements and the like of DDGC, regardless of whether they relate to or follow up on previously made offers, general proposals, (legal) actions, agreements and the like. These Terms and Conditions specifically apply to agreements relating to usage rights and subscriptions.
2. Client enters into an Agreement with DDGC for the use of the Software at the moment he signs up for it via the Website, or in any other way enters into an Agreement with DDGC for the use of the Software. These Terms and Conditions apply to this Agreement.

3. Usage Rights and Subscription

1. At the moment Client agrees to the Agreement regarding usage rights and subscription and has fully complied with his payment obligations, DDGC grants Client a personal, non-exclusive, non-transferable right to use the (Intellectual Property Rights in the) Software for the duration of one year for the type of subscription specified in the Agreement.
2. Subscriptions can only be purchased for at least 40 users and then in increments of 10 additional users, with the set maximum number of users being decisive for the amount of the annual subscription fees;
3. The Agreement regarding usage rights and subscription is tacitly renewed annually.
4. Client is not allowed to grant sub-licenses for the Software or otherwise transfer or provide this right of use to third parties.
5. Client is not allowed to provide personal login details to third parties. Client is responsible for this.

4. Implementation

1. DDGC has a mandatory implementation process for the use of the Software;
2. Implementation consists of three steps: intake, delivery, and training;
3. Costs, planning, and meetings for implementation will be tailored to the size and complexity of the organization and will be coordinated with the Client;
4. In exceptional cases, DDGC may decide to partially or fully skip the implementation process for the Client.

5. Integration

1. DDGC offers various integrations with third-party systems for exchanging data with the Software;
2. DDGC charges a one-time fee for setting up an available integration with a third-party system for the Client's account;
3. DDGC charges a one-time fee for removing an available integration with a third-party system from the Client's account;
4. DDGC reserves the right to charge an annual fee, in consultation with the Client, if it appears that maintaining an integration (with the third-party or with the Client) requires additional work;
5. DDGC has a Fair Use policy for troubleshooting and inquiries about an integration and reserves the right to charge hourly fees in consultation with the Client;
6. DDGC will make reasonable efforts to detect and resolve errors in an integration. If the error in the Software makes it impossible to use the Software, DDGC will make reasonable efforts to resolve the error as quickly as possible;
7. DDGC cannot be held liable for errors caused by third parties in an integration.

6. Account termination

1. The Client can terminate the Agreement regarding the license and subscription at any time by deleting their account within the Software. Fees already paid will not be refunded by DDGC. If termination occurs after the start date of the new extended subscription period of one year, the full subscription fee for that new period of twelve months is still due.

7. Fair-use

1. DDGC provides the Software based on a fair-use policy for data usage. If the Client uses more data than allowed by the fair-use policy, at DDGC's discretion, the Client will be instructed to remove data or reduce data usage. DDGC may charge separately for excessive data usage.

8. Support

1. DDGC provides users of the Software with a Support environment with instructions and visual aids. All users have access to this Support environment.
2. If users cannot find the answer to their question on the Support environment, they should contact the responsible person of the Client.
3. If assistance from the DDGC support department is necessary to answer a question, the user should send the question by email to DDGC, via the administrator of the Client at support@ddgc.nl, through the support form in the Software, or via the form on the Support environment.
4. If the question cannot be resolved via email, the administrator of the Client organization may contact the DDGC support department by phone.
5. DDGC's rate includes full support as described above. More extensive user instructions or training are possible at an additional cost.
6. A condition for claiming the included support is that at least one administrator on the client side successfully completes the e-learning for administrators.

9. Contract Termination

1. DDGC may terminate an Agreement immediately if the Client is using the Software in an improper manner and/or acting in violation of what is stipulated in this Agreement, at DDGC's complete discretion, for example, but not limited to, if the Client is in breach of the usage rights as regulated in these Terms, without any liability of DDGC or the right to reimbursement of advance payments made by the Client.
2. An Agreement may be terminated by DDGC without any prior notice period and with immediate effect from the day:

• that the bankruptcy of the Client is requested or the Client applies for bankruptcy itself;
• that the Client is declared bankrupt;
• that the Client renounces its estate;
• that suspension of payments is granted to the Client or the Client makes an arrangement with its creditors;
• that the Client loses free disposal over (a substantial part of) its assets, for example, by seizure;
• that the liquidation of the Client is started, or a claim for dissolution of the Client is made, or a dissolution decision regarding the Client is made, unless there is a legal successor;
• that the Client fails to comply with any obligation imposed on it by law;
• that the Client acts in violation of what is stipulated in Article 10 of these Terms;
• that the Client does not (fully) comply with its payment obligations under an Agreement and/or these Terms.

10. Consequences of termination

1. Termination of an Agreement, in any way, does not affect any payment obligations of the Client.
2. After termination of the Agreement, the Client's access to the Software will be blocked and the Client will no longer be able to use the Software. The Client's data within the database may be deleted, without any liability of DDGC towards the Client and/or third parties.
3. After termination, all provisions of these Terms and Conditions that by their nature continue to have effect after termination, shall remain in full force and effect. These provisions include, but are not limited to, provisions relating to liability, indemnification, intellectual property rights and protection of personal data.

11. Payment

1. All prices charged by DDGC are in Euro and exclusive of VAT (high rate). DDGC has a payment term of 14 days after the invoice date for all its invoices.
2. If the Client has not paid an invoice within the payment term, the Client is automatically in default without any further notice of default being required. In that case, the Client is also obliged to pay interest of 1% per month, calculated over the outstanding invoice amount, from the due date to the date of full payment, with a part of a month being considered as a whole.
3. If the Client fails to pay or fails to pay on time, any resulting costs for DDGC will be borne by the Client. These costs include all full legal and extrajudicial costs, such as, but not limited to, the costs of reminders, collection, bailiff, legal counsel/lawyer. The extrajudicial costs are set at least 15% of the amount to be claimed.
4. DDGC has the right to suspend its obligations towards the Client if payment of any invoice has not been made, until the payment obligations have been fulfilled, without this leading to any liability of DDGC and without detracting from the Client's obligation to pay.
5. The Client is not permitted to offset (outstanding) invoices against alleged claims of the Client against DDGC. The Client cannot suspend its obligations under an Agreement and/or these Terms and Conditions and the Client is not entitled to any discount.
6. DDGC is entitled to adjust the applicable prices and rates annually. If the Client does not agree to such an adjustment, the Client is entitled to terminate the Agreement in writing before the date on which the adjustment would come into effect for him. If the Client decides to take out an annual subscription to DDGC, an invoice will be drawn up based on the requested maximum number of users. If there is a need for any expansion of the number of users within the subscription during the current year, this will be invoiced pro rata of the remaining part of the subscription period.
7. In case of a mid-year reduction in the number of users within the subscription, no refund will be made. Invoicing for the reduced number of users will be done at the start of a new subscription period for the Agreement;

12. Maintenance and updates

1. DDGC will make every effort to detect and resolve errors in the Software. If the error in the Software makes it impossible to use the Software, DDGC will make every effort to correct the error as soon as reasonably possible.
2. DDGC may make the Software inaccessible at any time to perform updates and/or maintenance on the Software. DDGC will make every effort to do this at times that cause the least possible inconvenience to the Client. To the extent reasonably possible, DDGC will notify the Client in advance of the planned maintenance. Inaccessibility of the Software due to maintenance or updates can never lead to liability for damages on the part of DDGC.
3. DDGC will regularly implement updates in the Software. This automatically ensures that the Client always works with the latest version of the Software. It is not possible to continue working with an older version.

13. Liability

1. DDGC accepts legal and contractual obligations to pay damages only to the extent specified in this article.
2. DDGC is only liable to Client (a) in the event of an attributable failure to perform an Agreement and/or these Terms and Conditions, including an attributable failure to perform DDGC's obligations, and then only for substitute damages, i.e. compensation for the value of the performance that has not been provided, or (b) in the event of an attributable wrongful act committed by DDGC, causing damage or bodily injury to persons.
3. Any liability of DDGC for any other form of damage is excluded, including any additional compensation in any form, as well as compensation for indirect or consequential damages or damages resulting from loss of turnover or profit, delay damage, damages resulting from loss of data, damages resulting from exceeding deadlines due to changed circumstances, theft, loss or damage to property and damages resulting from information or advice provided by DDGC whose content is not explicitly part of DDGC's obligations.
4. The amount of any compensation payable by DDGC in the event of liability is limited to the amount paid by DDGC's liability insurer in the relevant case, plus its own risk under that insurance. To the extent that the insurer does not pay out in any case and/or if the limitations of liability set out in this article do not hold for any reason (in law), DDGC's liability for the total damage arising from or related to the agreed-upon work, including in this regard all direct and indirect damage, as well as interest, is limited to the amount paid by Client to DDGC for the work in connection with which the damage has arisen. DDGC's liability for the total damage referred to in the previous sentence shall never exceed € 5,000 (five thousand euros).
5. DDGC's liability for attributable failure to perform an Agreement and/or the Terms and Conditions arises only if Client promptly and properly notifies DDGC in writing of the failure, specifying a reasonable period for remedying the failure, and DDGC continues to fail to perform its obligations after that period. The notice of default must contain the most detailed possible description of the failure, so that DDGC is able to respond adequately.
6. The exclusion and limitation of liability, as referred to in the preceding paragraphs, do not apply if and to the extent that the damage is the result of intent or deliberate recklessness on the part of DDGC or its management.
7. Client indemnifies DDGC against all claims by third parties relating to the performance of an Agreement and/or the Terms and Conditions.
8. The Software, updates, maintenance, support, and any other work performed by DDGC are explicitly provided on a best-effort basis. Client acknowledges that the Software may contain Errors and Bugs and acknowledges that DDGC is not liable for this. Client also acknowledges that it is responsible for arranging backups of its data and ensuring the availability of a system that can take over the functionality of the Software in the event of a malfunction.

14. Force Majeure

1. In case of force majeure, including but not limited to malfunctions or failures of the internet and telecommunications infrastructure, power outages, domestic unrest, mobilization, war, transport obstructions, strike, lockout, business disruptions, illness of personnel, stagnation in supply, fire, flood, import and export restrictions that make it reasonably impossible for DDGC to perform the service as intended in the Agreement and these Terms, the performance of these services will be suspended, or the Agreement will be terminated if the force majeure situation has lasted for more than ninety (90) days, all without any obligation to pay damages.

15. Intellectual Property Rights

1. The Intellectual Property Rights relating to the Software and any other documents/products belong to DDGC. There is no transfer of these rights.
2. It is not permitted for the Client to remove or modify any indication of the confidential nature or relating to Intellectual Property Rights from the Software, Website, database files, or materials.
3. DDGC is allowed to take technical measures to protect the Software or with a view to agreed limitations in the duration of the right to use the Software. The Client is not permitted to remove or bypass such a technical measure.

16. Protection of personal data

1. The Client guarantees and ensures that they comply with all relevant laws and regulations relating to the processing of personal data when using the Software, such as - but not limited to - the General Data Protection Regulation (Regulation EU 2016/679). The Client indemnifies DDGC against claims from third parties in this regard.
2. The Client grants DDGC the right to use their company name and logo in advertising materials, such as brochures or the Website, unless explicitly agreed otherwise in writing.

17. Other provisions

1. Any purchasing conditions of the Client are explicitly and expressly rejected by DDGC and have no application or legal validity with respect to the Agreement and/or these Terms and Conditions. The Client cannot rely on such conditions.
2. If the Client starts using a new version of the Software, and/or modifies and/or expands their subscription, these Terms and Conditions shall also apply in full.
3. If any provision of an Agreement is invalid or declared null and void, the other provisions of the Agreement shall remain in full force and effect. The invalid or nullified provision shall be replaced by a valid provision that is as close as possible to the purpose of the invalid or nullified provision.
4. DDGC may modify and/or amend an Agreement and/or these Terms and Conditions at any time by means of a written notification to the Client. The Client shall accept reasonable changes. However, if a Client cannot agree with the changes, the Client is free to terminate the Agreement. The changes shall take effect at the announced time of entry into force. If no time of entry into force has been announced, changes shall take effect with respect to the Client as soon as the Client has been notified in writing of the change.
5. Both Parties shall maintain confidentiality with respect to the Software and the content of the Terms and Conditions in the broadest sense, unless a legal obligation requires disclosure of that information.

18. Applicable law

1. Only Dutch law shall apply to an Agreement and these Terms and Conditions, as well as to the resulting or related agreements and other legal acts.
2. All disputes, including those that are only considered as such by one Party, arising from or related to (the execution of) an Agreement and/or these Terms and Conditions and/or the resulting or related agreements and other legal acts, which cannot be settled amicably, shall be settled by the competent judicial authority in Amsterdam.