Terms & conditions - Tweakwise

Terms & conditions

  1. Definitions
    1. Tweakwise as a product of the private company Netivity Internet Software B.V. (CoC 05073885) established in (8042PB) Zwolle at the address Punterweg 2;
    2. Client: the natural person or legal entity who has given Tweakwise the Assignment to perform Work or supply products;
    3. Assignment: the agreement of assignment, whereby Tweakwise undertakes towards the Client to provide certain Services and/or goods of any nature and under any name to the Client;
    4. Service: Tweakwise, through the Software, makes and keeps available to Client an intelligent tool that optimizes personalized search, navigation, merchandising (ranking/sorting, product re-commendations) in e-commerce websites.
    5. Party: each party to the Agreement.
    6. Software: the SaaS application of Tweakwise.
    7. Content: Licensee's data with which the databases of Tweakwise are filled.
    8. Production environment: The version of the web application (in which the Tweakwise is integrated) that is actually used by visitors of the website/shop.
    9. Product: The article that can be ordered by a visitor via the website/shop.
    10. Licensed Software: Licensed use of a Tweakwise.com standard software product. This concerns standard software which is made available to the Licensee via the Internet by the Licenser as a SAAS (Software As A Service) and is intended for integration and application in a Web application.
    11. Tweakwise: license software for optimizing and managing the search, navigation and sorting functions of a Web application
    12. Integration Party Licensee: Internet company or Licensee's own Web developers, responsible for the realisation and/or maintenance of the Web application into which Licensor's Licensed Software must be integrated.
    13. Hosting: Ensuring that Licensed Software can be called up and used by others for the purpose intended by Licensee.
    14. Support Level: The degree to which support is provided in the event of problems relating to the functioning and availability of the Licensed Software.
  2. General
    1. These General Terms and Conditions shall apply to all offers and agreements whereby Tweakwise provides Services and/or goods of any nature and under any denomination to the Client.
    2. Deviations from and additions to these conditions are only valid if they have been agreed in writing between the parties.
    3. The applicability of any purchase conditions or other conditions of the Client are expressly rejected.
    4. If one of the provisions of these terms and conditions is invalid or is nullified, the other provisions shall remain in full force. In that case, the parties shall consult with each other with a view to making other arrangements regarding the void or voided provision.
  3. Offers and conclusion of agreements
    1. All offers and statements made by Tweakwise are without obligation unless expressly stated otherwise by Tweakwise. The principal guarantees the accuracy and completeness of the details provided by him/her or on his/her behalf on which Tweakwise has based its offer. Tweakwise shall not be liable if the Client has provided incorrect or incomplete information.
    2. The agreement is concluded after signing or otherwise agreeing to the offer and/or quotation. The order is in any case deemed to have been concluded in the following cases:
      1. upon approval by e-mail of the offer and/or quotation by or on behalf of the Client;
      2. signing of the offer or agreement by or on behalf of the Client;
      3. in the case of orders, an order form, letter, fax or e-mail sent by the Client;
      4. if Tweakwise has started the implementation of the agreement.
    3. All images, drawings, data regarding weights, dimensions, colors, prices, etc. included in Tweakwise's documents shall only be approximate. Changes to the order shall only be valid if agreed upon in writing.
    4. In the case of additional work, the Client shall have to give Tweakwise a separate order. Tweakwise shall be entitled to refuse this separate order.
  4. Prices
    1. All prices are exclusive of sales tax (VAT) or other government levies. The prices are in euros. Payments by the Client must be made in euro.
    2. The Client may not derive any rights from any pre-calculation or budget issued by Tweakwise, unless otherwise agreed in writing. An available budget communicated to Tweakwise by the Client shall not be deemed to be an agreed price, unless the parties have agreed to this in writing.
    3. Prices quoted are based on factors prevailing at the time of the quotation. Subsequent increases in price factors, such as wage costs, etc., in so far as these do not relate to the normal commercial risk, may be passed on to the Client.
    4. With regard to the Services performed by Tweakwise and the amounts owed by the Client in this regard, the data from Tweakwise's administration shall constitute full evidence. The Client shall be entitled to present evidence to the contrary.
    5. In the case of a periodic payment obligation on the part of the Client, Tweakwise shall be entitled to amend the applicable prices and rates by the deadline stipulated in the agreement in accordance with the index or other criterion included in the contract. If the agreement does not expressly provide for the possibility for Tweakwise to amend the prices or rates, Tweakwise shall be entitled to amend the applicable prices and rates in writing, subject to a period of at least three months. If, in the latter case, the Client does not wish to agree to the amendment, he/she must respond in writing within thirty days of the notification and the parties shall consult with each other. If the parties do not reach an agreement, the Client is entitled to terminate the agreement in writing as from the date on which the new prices and/or rates would take effect.
    6. Amounts due shall be paid by the Client in accordance with the agreed payment conditions, in default of which payment shall be made within 30 days of the invoice date. Client shall not be entitled to suspend any payment or to set off amounts due.
    7. If the Client fails to pay the amounts due or fails to pay them on time, the Client shall owe statutory commercial interest on the outstanding amount, without a reminder or notice of default being required. If the Client fails to pay the claim after a reminder or notice of default, Tweakwise may pass on the claim, in which case the Client shall be obliged to pay all judicial and extrajudicial costs and costs charged by external experts, in addition to the total amount due. This shall not affect Tweakwise's other statutory and contractual rights.
    8. If the Client withdraws an agreed assignment, postpones it or provides the required files incompletely or too late, Tweakwise shall be entitled to reimbursement of all costs incurred by Tweakwise, including personnel costs up to the moment of termination or postponement of the assignment.
  5. Objective of the agreement

    The Agreement describes and agrees on the licence use of and support for a standard software product. It concerns standard software that is made available to the Licensee by the Licensor as a SAAS (Software As A Service) via the Internet and is intended for integration and application in an existing web application.

  6. Description of the Licensing Software

    Licensor grants through the agreement to Licensee, and Licensee accepts, the right to use Tweakwise in Licensee's E-Commerce Platform during the agreed contract period.

  7. Duration of the agreement
    1. If the parties have entered into a continuing performance agreement, then the agreement has been entered into for the term agreed between the parties. If no term has been agreed, the agreement has been entered into for the duration of one year.
    2. The duration of the agreement is each time tacitly extended for the duration of the originally agreed period, unless one of the parties terminates the agreement in writing with due observance of a notice period of three months before the end of the period concerned.
    3. If the end date of the contract is on another day than the first day of a month, then the contract period will be continued until the first day of the next month.
  8. Execution of the assignment
    1. Prior to issuing the quotation and thereafter, the Client shall provide Tweakwise with all the information necessary for the execution of the agreement, fully and correctly. The parties are entitled to verify the accuracy and completeness of the information and, in the case of inaccuracy or incompleteness, to suspend the work, the other party has fulfilled its obligation under the first sentence of this article.
    2. Tweakwise shall endeavor, to the best of its ability, to perform its Services with due care and, where appropriate, in accordance with the arrangements and procedures set down in writing with the Client. All Services provided by Tweakwise shall be carried out based on an obligation to perform to the best of one's ability, unless Tweakwise has promised a result and the result concerned has also been sufficiently defined in the agreement.
    3. The execution of a project shall commence on the agreed starting date of the project, but not before all the necessary information for the execution is in Tweakwise's possession. If the Client does not provide the information required for the execution of the agreement in a timely manner or does not provide this information correctly, which means that the starting date of the activities must be postponed, Tweakwise may suspend the assignment and the Client shall bear the costs incurred as a result (loss of scheduled capacity, infrastructure costs, etc.). Tweakwise shall endeavour to limit these costs as much as possible.
  9. Completion of the assignment
    1. The actual handover will take place on the agreed date. Agreements on the delivery shall be recorded in the completion agreement and/or completion report.
    2. If the parties have not agreed on any acceptance test, the Client shall accept the software or the system in the condition it is in at the time of delivery ('as is, where is'), therefore with all visible and invisible errors and defects. In the aforementioned case, the software or system shall be deemed to have been accepted by the Client upon delivery.
    3. If the parties have agreed on acceptance criteria in the agreement, the Client will be deemed to have accepted the software or system if the acceptance criteria have been met.
    4. In addition to the cases referred to under b and c, the Client is obliged to check the software/Service to be delivered for visible defects/bugs immediately upon delivery and to notify Tweakwise in writing of any complaints within fourteen days of delivery, stating the reasons, failing which the delivered goods/Services shall be deemed to have been accepted.
    5. If the Client uses the software or system before delivery or has placed it under the control of third parties, its right to claim non-conformity shall lapse.
    6. Non-conformity of the delivered goods shall not entitle the Client to refuse or suspend payment.
  10. Dissolution of the agreement
    1. Licensor reserves the right to terminate the agreement at any time without judicial intervention if the Licensee fails to comply with any of the obligations referred to in the General Terms and Conditions.
    2. Licensor is entitled to terminate the agreement with immediate effect if the Licensee is dissolved or liquidated or applies for a suspension of payments or if a petition for bankruptcy of the Licensee has been filed or if the Licensee is in a state of bankruptcy.
  11. Liabilities
    1. The Licensor shall make every reasonable effort to fulfil his obligations under the agreement The Licensor is never liable and bears no responsibility for the accuracy and correctness of data and/or information provided by the Licensee.
    2. The Licensor shall not be held liable for the temporary unavailability of Tweakwise if this is due to a fact which the Licensor could not reasonably avoid or due to the actions of a third party including in particular, but not limited to, cyber-attacks. The Licensor shall never be liable for costs resulting from Tweakwise's downtime and/or the temporary unavailability of Tweakwise.
    3. The Licensor cannot be held liable for the way in which rights are passed on to third parties or used by the Licensee in combination with other data. Nor can it be held liable for any damage the Licensee, or third parties may suffer as a result.
    4. The Contractor is not liable for (damage resulting from) failures on the part of the data center where the hosting takes place but undertakes to do everything reasonably possible to persuade the said data center to comply.
  12. Deadlines
    1. Tweakwise shall make reasonable efforts to meet the deadlines (of delivery or otherwise) and/or dates (of completion or otherwise) stated by it or agreed between the parties as much as possible. (Delivery) dates stated by Tweakwise or agreed between the parties shall always be considered target dates; they are not binding on Tweakwise and shall always be of an indicative nature.
    2. If any period threatens to be exceeded, the parties will consult with each other to discuss the consequences of the delay for further planning.
    3. In all cases - therefore, even if the parties have agreed on a deadline (for delivery or otherwise) - Tweakwise shall only be in default for exceeding the deadline after the Client has given written notice of default, whereby the Client shall set Tweakwise a reasonable period within which to remedy the breach and this reasonable period has expired. The notice of default must contain as complete and detailed a description of the breach as possible, so that Tweakwise is given the opportunity to respond adequately.
    4. If it has been agreed that the performance of the agreed work will take place in phases, Tweakwise shall be entitled to postpone the commencement of the work that is part of a phase until the Client has approved in writing the results of the preceding phase.
    5. Tweakwise shall not be bound by any deadline (delivery) date or deadline (delivery) if the parties have agreed to a change in the content or scope of the agreement (additional work, change in specifications, etc.) or a change in approach to the execution of the contract, or if the Client fails to fulfill his obligations under the agreement, or fails to do so on time or in full. The fact that (the demand for) additional work arises during the performance of the agreement shall never be a ground for cancellation or dissolution of the agreement by the Client.
  13. Privacy and data processing
    1. If this is necessary for the execution of the agreement, the Client shall inform Tweakwise in writing about the way in which the Client will fulfill his obligations under the legislation on the protection of personal data.
    2. The parties consider Tweakwise to be a 'processor' within the meaning of the General Data Protection Regulation regarding the processing of personal data.
    3. The responsibility for the data processed by the Client using a Service provided by Tweakwise shall lie entirely with the Client. The Client guarantees to Tweakwise that the content, use and/or processing of the data are not unlawful and do not infringe any right of a third party. The Client shall indemnify Tweakwise against any legal claim by a third party, for whatever reason, in connection with these data or the implementation of the agreement.
  14. Security
    1. If, under the agreement, Tweakwise is required to provide a form of information security, that security shall meet the security specifications agreed between the parties in writing. Tweakwise shall not provide any guarantee to the Client regarding security against cyber-attacks. Tweakwise does not guarantee that the information security is effective under all circumstances. If an explicitly described method of security is not included in the agreement, the security shall meet a level that is not unreasonable given the state of the art, the sensitivity of the data and the costs associated with implementing the security.
    2. The access or identification codes and certificates provided by or on behalf of Tweakwise to the Client shall be confidential and shall be treated as such by the Client and shall only be disclosed to authorized staff from the Client's own organization. Tweakwise shall be entitled to change the assigned access or identification codes and certificates.
    3. The Client shall secure its systems and infrastructure adequately and shall always have anti-virus software in operation. The costs of repairs or loss of data and/or data resulting from a direct attack, including DDoS attacks, on the systems and infrastructure of the Client will be borne by the Client.
  15. Service Level Agreement
    1. The Licensor guarantees regarding the functioning, availability, and support of Tweakwise the following:
      • Standard Support Plan
        • Operations support: Online support portal, onboarding, email, and phone support during weekdays (09:00 - 17:00)
        • Technical support: Online developer portal, support via email and phone during weekdays (09:00 - 17:00)
        • Best Practices: Quality rating & benchmark at Go-Live, check-ups every 6 months
        • Status monitoring: Website status
        • Response time to tickets: Normal priority: best effort during business hours, High priority: < 8 hours during business hours.
        • Uptime: 99.8% per year
    2. Regarding the response times of the API calls of the Tweakwise platform, Licensor makes the following guarantees:
      • Percentile: 99.9%
        Response time: 2000
        99.9% of requests result in a response within 2000 ms
      • Percentile: 99.5%
        Response time: 1500
        99.5% of requests result in a response within 1500 ms
      • Percentile: 99%
        Response time: 1000
        99% of requests result in a response within 1000 ms
      • Percentile: 95%
        Response time: 500
        95% of requests result in a response within 500 ms
      • Percentile: 50%
        Response time: 250
        50% of requests result in a response within 250 ms

      The following demarcation applies:

      • Agreed parameters as reflected in the agreement with a maximum of
        • 100,000 products
        • 2,250 categories
        • 1,000,000 requests per day
      • Guarantees apply to instances where no beta features are running.
      • We assume 'normal' use of Tweakwise.
      • The default (max) number of 8 properties per product in response.
      • Measured percentiles over a month
      • Measured performance excluding maintenance window and disturbances (patches, updates, failures)
      • With throttling we limit the maximum load that an instance can generate at any given time. With throttling we do not mean a certain number of requests per second. Because that implies nothing about the load on an instance. It is also about the severity of a request.
        With throttling we limit the number of concurrent requests an instance can have at any given time. We call these workers:
        • One worker can process exactly one request at a time. For example: In one second, a worker can handle 10 requests if they last 0.1 sec each.
        • If all workers of the Client are occupied a request is placed in the queue.
        • If a request is in the queue for more than 10 seconds it will be fired with the code: 429 TOO MANY REQUESTS (https://developer.mozilla.org/en-US/docs/Web/HTTP/Status/429)
    3. The throttling method can be compared to a shop counter/checkout. Only one person can always be helped at a counter, and not all requests for help take the same amount of time. When all counters are occupied, a queue arises. We can give a Client more capacity by reserving more counters.
    4. Notes on Support Level Licensing Software
      1. The following fault reports (calls) can be made by the Licensee:
        • Tweakwise unreachable
        • Error message on Tweakwise environment
      2. The following reports/issues are not covered by this support agreement:
        • Adjustments to imports and exports
        • All matters relating to test environments
        • All other matters that are not turnover threatening
      3. The agreed availability of the Licensed Software is calculated as follows:
        % availability = (actual available time/opening time-scheduled maintenance) * 100%
      4. The start of the unavailability measurement takes place from the moment an incident is reported to Licensor. This can be either by automatic detection or by notification of a user. Scheduled maintenance does not affect availability.
      5. Any agreements concerning a Service level (Service Level Agreement) shall only be explicitly agreed in writing between the parties.
      6. If agreements regarding a Service level are made, then the availability of the software, systems and related Services shall be measured in such a way that the shutdown due to preventive, corrective or adaptive maintenance or other forms of Service by Tweakwise, as well as circumstances that are beyond the control of Tweakwise, are not taken into consideration. Unless the Client provides evidence to the contrary, the availability measured by Tweakwise shall constitute full proof.
  16. Intellectual property rights
    1. All intellectual property rights to the software made available and/or the Service, shall be held exclusively by Tweakwise or its Licensors. During the term of the agreement, the Client shall only acquire a non-exclusive and non-transferable right to use the Service and/or software and the powers expressly granted in these terms and conditions or otherwise, and for the rest, the Client shall not reproduce or make copies of the Service and/or software or other materials.
    2. Tweakwise is permitted to take technical measures to protect the software and/or the Service. If Tweakwise has secured its software by means of technical protection, the Client shall not be allowed to remove or evade such protection.
    3. If Tweakwise is willing to undertake to transfer an intellectual property right, such an undertaking may only be made in writing and expressly. If the parties agree in writing that a right of intellectual property with regard to software, websites, databases, equipment or other materials specifically developed for the Client, shall transfer to the Client, this shall not affect the right or the ability of Tweakwise to use and/or exploit the components, general principles, ideas, designs, algorithms, documentation, works, programming languages, protocols, standards and the like that underlie such development for other purposes, either for itself or for third parties, without any restriction. Nor shall the transfer of an intellectual property right affect Tweakwise's right to do developments for itself or a third party that are similar or derived from the developments that have been or are being done for the benefit of the Client.
    4. A right of use granted to the Client is non-exclusive, non-transferable, non-pledgeable and non-sublicensable.
    5. The Client shall indemnify Tweakwise against any claim by a third party based on the allegation that software, websites, databases, hardware or other materials developed by Tweakwise infringe an intellectual property right of that third party, on the condition that the Client notifies Tweakwise immediately in writing of the existence and content of the claim and leaves the handling of the matter, including the conclusion of any settlements, entirely to Tweakwise. To this end, the Client shall provide the necessary authorization, information and cooperation to Tweakwise to defend itself against these claims. This indemnification obligation shall lapse if the alleged infringement is related to (i) materials provided by the Client to Tweakwise for use, adaptation, processing or maintenance, or (ii) changes that the Client has made or caused to be made to the software, website, databases, equipment or other materials without the written consent of Tweakwise. If it is irrevocably established in a court of law that the software, websites, databases, equipment or other materials developed by Tweakwise themselves infringe any intellectual property right belonging to a third party or if, in Tweakwise's opinion, there is a reasonable chance that such infringement will occur, Tweakwise shall, if possible, ensure that the Client can continue to use the delivered software, websites, databases, equipment or materials. Any other or more extensive indemnification obligation of Tweakwise for infringement of an intellectual property right of a third party is excluded.
  17. Property Rights Licensed Software
    1. Tweakwise shall remain the property of the Licensor at all times and shall therefore not be transferable. The Licensee acknowledges that the Licensor is the owner(s) of the intellectual property rights and other rights of an exclusive nature with regard to Tweakwise. The full intellectual property rights are and shall remain the property of the Licensor and are therefore not transferable.
    2. Under the agreement, the Licensor is obliged to make Tweakwise available to the Licensee insofar as the Licensee is reasonably able to do so and insofar as this can be reasonably expected of the Licensor within the scope of use and purposes of use of Tweakwise.
    3. The content is delivered by the Licensee. All content in the form of filled databases, data feeds and file uploads (insofar as this data belongs to the Licensee) will remain the property of the Licensee. In the event of calamities, the database information will be made available in the Microsoft SQL Server back-up format.
    4. The Licensee shall not be permitted to copy, adapt, supplement, modify and/or develop, rent, lease, sub-license, sell, dispose of, pledge, transfer as security or transfer Tweakwise under any title - whether or not free of charge - to third parties for any purpose whatsoever or allow third parties to use it.
    5. The Licensee will take all necessary technical, organizational and legal measures to ensure or have its personnel and Client ensure compliance with the Agreement.
    6. If the Licensee acts in breach of any of the provisions of Articles 6.4 and 6.5 of the Agreement, the Licensee shall owe the Licenser a penalty in the amount of € 10,000 (ten thousand euros) for each breach, without prejudice to the Licenser's right to claim compensation for the damage suffered. This provision shall remain in effect even after termination of the Agreement. Tweakwise is a SaaS solution and any form of plagiarism is not allowed.
  18. Dissolution and cancellation of the agreement
    1. Each of the parties shall only be entitled to dissolve the agreement on account of an attributable failure to perform the agreement if the other party, in all cases after having received a written notice of default which is as detailed as possible and in which a reasonable period is set for curing the failure, attributably fails to meet the essential obligations under the agreement. Payment obligations of the Client and all obligations to cooperate and/or supply information by the Client or a third party engaged by the Client are in all cases considered as essential obligations under the agreement.
    2. Amounts that Tweakwise has invoiced prior to the dissolution in connection with what it has already properly performed or delivered in execution of the agreement shall remain due in full and shall be immediately payable at the time of dissolution.
    3. If a agreement which, by its nature and content, does not end in completion, has been entered into for an indefinite period, each of the parties may terminate it in writing after proper consultation, giving reasons. If the parties have not agreed to a term of notice, a reasonable notice period must be observed when giving notice of termination. Tweakwise shall never be liable for any compensation due to termination.
    4. The Client is not entitled to terminate an assignment agreement entered into for a definite period of time.
    5. Either party may terminate the agreement in writing with immediate effect, in whole or in part, without notice of default being required, if the other party is granted a suspension of payments - provisional or otherwise - if a petition for bankruptcy is filed with regard to the other party, if the other party's company is liquidated or terminated. Tweakwise may also terminate the agreement, in whole or in part, with immediate effect and without notice of default, if the decisive control over the Client's business changes, either directly or indirectly. On account of the termination referred to in this paragraph, Tweakwise shall never be obliged to refund monies already received or to pay compensation. In the event that the Client is irrevocably declared bankrupt, the Client's right to use the software, websites, etc. provided and the Client's right to access and/or use Tweakwise's Services shall terminate without this requiring any act of termination on Tweakwise's part.
  19. Liability
    1. Tweakwise's total liability for an attributable breach of contract or on any legal grounds whatsoever, including any breach of a warranty obligation, shall be limited to compensation for direct loss up to the amount paid by Tweakwise's insurer per occurrence per year. In no event shall Tweakwise's total liability for direct loss, on any legal grounds whatsoever, exceed €500,000 (five hundred thousand euros).
    2. Tweakwise's total liability for damage for death, physical injury or material damage to property shall never exceed €1,250,000 (one million two hundred and fifty thousand euros).
    3. Tweakwise shall not be liable for any indirect damage, consequential loss, loss of profits, lost savings, loss of goodwill, damage due to business interruption, damage resulting from claims filed by customers of the Client, damage related to the use of goods, materials or software of third parties prescribed by the Client for Tweakwise and damage related to the engagement of suppliers that have been prescribed by the Client for Tweakwise. Also excluded is any liability for Tweakwise related to mutilation, destruction or loss of data or documents.
    4. Tweakwise shall not be held liable for the temporary unavailability of the Client's web server and/or website and/or other ICT solutions, in particular when this is due to a fact that Tweakwise could not reasonably avoid or due to the actions of a third party including, but not limited to, cyber-attacks. Tweakwise shall never be liable for costs resulting from the temporary inaccessibility of the Client's website.
    5. The exclusions and limitations of liability of Tweakwise described in Article 16 under a to c shall not affect the other exclusions and limitations of liability of Tweakwise described in these general terms and conditions.
    6. The exclusions and limitations referred to in subparagraphs (a) to (c) of this article shall not apply if and insofar as the damage is the result of intent or recklessness on the part of the Tweakwise company management.
    7. Unless fulfillment by the Tweakwise is permanently impossible, the liability of Tweakwise for attributable failure in the fulfillment of an agreement shall arise only if the Client immediately gives Tweakwise notice of default in writing, whereby Tweakwise shall be given a reasonable period to remedy the breach, and Tweakwise remains in breach of its obligations even after that period. The notice of default shall contain a description of the breach that is as complete and detailed as possible, so that Tweakwise is given the opportunity to respond adequately.
    8. The condition for any right to compensation to arise shall always be that the Client reports the loss to Tweakwise in writing as soon as possible after it occurs. Any claim for compensation against Tweakwise shall lapse by the mere lapse of twenty-four months after the claim arose, unless the Client instituted legal proceedings for compensation before the end of that period.
    9. All limitations and exclusions of liability set out in these general terms and conditions shall also apply to all (legal) persons which Tweakwise engages in the performance of the agreement.
  20. Confidentiality
    1. For the purposes of the agreement, "Confidential Information" means all information, program code(s), Functional Application Design, communications, design, interaction models, documents, data of a technical, strategic, financial or commercial nature (non-exhaustive list), regardless of the form or on what medium, including the existence of discussions between the parties, such information as aforementioned has been or is exchanged between the parties - in any way - at any time.
    2. The parties undertake:
      1. To use the Confidential Information exclusively in the context of their consultation on further cooperation;
      2. Not to disclose Confidential Information to any third party without the prior written consent of the other party;
      3. To disclose the Confidential Information only to staff members who have a real need to know in the context of consultation on further cooperation and to ensure that each staff member to whom such information is disclosed is aware of the existence and content of this confidentiality agreement and is bound by confidentiality in the same way;
      4. The parties shall guarantee the proper implementation of the confidentiality commitment by its employees; in particular, they shall take all appropriate security measures to ensure such confidentiality.
    3. This confidentiality obligation shall not apply:
      1. To information which is in the public domain or widely known, without that disclosure being the consequence of a breach of this agreement;
      2. To Information lawfully obtained from a third party without restriction and without violation of this Agreement (whether or not in doing so);
      3. To information which a party can prove was lawfully in its possession before it was communicated to it by the other party in execution of the present agreement;
      4. When its dissemination is necessary under any legal obligation; in such case, the other party will be informed in writing as soon as possible, if possible before the information is released;
      5. On information independently developed by a party without violation of this agreement.
    4. All confidential information and reproductions thereof shall remain the exclusive property of the disclosing Party. Upon the first written request of the other party, each party shall return all disclosed information. No provision of this undertaking shall be construed to impose any obligation on either party to disclose confidential information to the other or to contract with the other party in the future.
    5. Failure by one party to comply with a provision of this undertaking shall entitle the other party to seek an injunction from the competent court against further dissemination, whereby the party receiving the confidential information may not disclose it further to third parties. In addition, the Party that has not respected the confidentiality shall be obliged to pay to the other Party compensation determined by the competent court ex aequo et bono.
    6. The Agreement will enter into force on the date of its signature and will cover all Information exchanged between the Parties from the beginning of the discussions until 5 years after the signing of the Agreement.
  21. Force Majeure
    1. Failure of Tweakwise to fulfill the contract due to war, mobilization, riots, flooding, blocked shipping, other disruptions to transportation, stagnation in, or restriction or termination of supplies by public utilities, lack of gas, petroleum products or other means for energy generation, fire, machinery breakdown and other accidents, strikes, lockouts, union actions, export restrictions, other government measures, non-delivery of necessary materials and semi-finished products by third parties, intent or gross negligence of auxiliary persons and other similar circumstances, shall not be deemed to be attributable to Tweakwise and shall not entitle the Client to dissolve the contract or to any compensation.
    2. If due to force majeure, extraordinary or unforeseen circumstances, the implementation of the assignment proves impossible, Tweakwise shall endeavour to make the implementation of the assignment possible. In doing so, we shall try to match the implementation with the original implementation as much as possible. This shall not apply if the execution of the order has become permanently impossible due to force majeure, extraordinary or unforeseen circumstances.
    3. Tweakwise shall, in all reasonableness, do everything in its power to repel a (D)DoS attack or other attacks by third parties in any way, including cyber-attacks, acts by hackers and all similar or comparable attacks and acts, based on a protocol that forms part of the agreements concluded between the parties.
  22. Fair use of the Services and the Platform
    1. Tweakwise does not provide any guarantee regarding the availability and functioning of the Service.
    2. Tweakwise shall endeavour to achieve an uninterrupted availability (7 days a week, 24 hours a day) of the Service. The efforts to be made by Tweakwise are described in the Service Level Agreement (SLA). In the event of a conflict between the SLA and these General Terms and Conditions, the General Terms and Conditions shall prevail.
    3. Tweakwise shall make every effort to inform the Client of the nature and expected duration of the interruption in the event of the unavailability of the Service, due to failures, maintenance or other causes. Tweakwise will support the Client by phone and online in the use of the Service. The support shall be provided via telephone and email. Tweakwise shall endeavour to answer the questions adequately and within a reasonable timeframe. However, Tweakwise cannot guarantee the correctness and/or completeness of the answers. Support is limited to functional topics related to the Service.
  23. Special Software as a Service (SaaS) provisions
    1. The Client is not free to allow third parties to use the Services and/or software provided by Tweakwise, unless the parties have expressly agreed to this.
    2. Tweakwise is entitled to make changes to the content or scope of the SaaS Service. If such changes result in a change to the Client's applicable procedures, Tweakwise shall inform the Client of this as soon as possible. In this case, the Client may terminate the agreement in writing by the date on which the change takes effect, unless this change is related to amendments to relevant legislation or other regulations issued by competent authorities or if Tweakwise pays the costs of this change.
    3. Tweakwise reserves the right to temporarily put the Service out of commission for the purposes of maintenance, modification or improvement of the Service and Tweakwise's web servers or other forms of Service. Tweakwise shall not allow the period of inactivity to last longer than necessary and shall notify the order in a timely manner of the outage. Tweakwise shall never be liable to the Client for any loss due to such a shutdown of the Service.
    4. Tweakwise shall be entitled to amend the software and/or Service from time to time to improve the functionality and to fix errors. If a modification leads to a significant change in functionality, Tweakwise shall notify the Client prior to the change. Because the Service and/or software is made available to multiple Clients, it is not possible to waive a certain modification only for the Client. Tweakwise shall not be obliged to pay any compensation for damage when modifying the Service and/or software. Tweakwise shall be entitled to no longer provide updates or maintain components of the Service.
    5. After delivery of the agreed Service, a period of three months (commencing on the date of delivery) shall apply within which the Client may require the contractor to carry out any functional errors (bugs) and items detected within this initial three-month period and which it has been irrefutably established are within the scope of the project and have not been carried out to date. No extra costs will be charged for this work. Hereafter to be referred to as: standard warranty period.
    6. Following on from this standard warranty period, an extended warranty period of three months will commence during which the Client may require the contractor to rectify functional defects (bugs) and points that have been identified within this second three-month period and which can be determined conclusively that they are part of the scope of the project and have not been performed to date. For this work, the number of hours multiplied by 50% of the agreed hourly rate will be charged to the Client on a subsequent costing basis.
    7. The guarantee periods shall lapse if the work delivered is processed by a party other than the Client or a third party designated by the contractor.
    8. The Client agrees that the software and the Service will only have the functionalities that exist at the start of the use of the software and the Service ("as is basis").
  24. Terms of use of the Service and/or software
    1. The Client determines which information is stored and/or exchanged using the Service. Tweakwise has no knowledge of this information. Therefore, the Client is responsible for ensuring that this information is legitimate and does not infringe on the rights of third parties. Tweakwise shall not accept any liability for the information stored and/or exchanged using the Service. The Client shall indemnify Tweakwise from third party claims based on the assertion that the information stored and/or exchanged by the Client using the Service is unlawful.
    2. Should Tweakwise be aware or come to the realization that information which the Client has stored and/or exchanged using the Service and/or software is unlawful, Tweakwise shall immediately act to remove that information or block the access to it. In such a case, Tweakwise also reserves the right to remove or block the Client's information. This shall be at Tweakwise's discretion. In no event shall Tweakwise be liable for any damage resulting from such actions.
    3. In case of suspected fraud or abuse of the Service, Tweakwise is entitled to hand over the Client's personal data to the competent authorities.
  25. Other provisions
    1. Any agreement concluded with Tweakwise shall be governed by Dutch law.
    2. Disputes between the parties will be submitted to the competent court in the district of Overijssel, location Zwolle, to the exclusion of all other bodies, except in those cases where the law imperatively provides otherwise.
    3. If any provision of these General Terms and Conditions is invalid and/or unenforceable in whole or in part, the other provisions will remain in full force. The parties will consult with each other about the void and/or unenforceable provision and adapt this provision so that it can be invoked, whereby the intention of the parties with regard to the original provision or the original part remains intact as far as possible.
    4. Provisions in the agreement and/or in these terms and conditions that explicitly or by their nature should also remain in force after expiry or termination of the agreement and/or assignment, will remain in force after expiry or termination.
    5. Client shall never sell, transfer or pledge his rights and obligations under the agreement to a third party.
  26. Disputes

    Dutch law shall apply to the agreement and the competent Dutch court in the district of the District Court of Overijssel shall have jurisdiction, to the exclusion of other courts, to take cognisance of any disputes arising between the parties in connection with the execution of the agreement.