Capivara Capital BV · James Ensorlaan 13, 2840 Rumst · Company number 0636.978.709
This is an English translation provided for convenience. In case of any discrepancy, the Dutch version prevails.
Customer: a natural or legal person who has completed Registration and with whom the Supplier has concluded a 1wire Agreement.
1wire Website: the Supplier's website.
1wire Agreement: the agreement concluded between the Supplier and the Customer concerning the 1wire Website and the Web Application.
Supplier: Capivara Capital BV, James Ensorlaan 13, 2840 Rumst, Belgium, with company number 0636.978.709.
Web Application: the software as described in the Agreement, to which the Supplier grants the Customer access for use in accordance with the 1wire Agreement.
These terms and conditions apply to all services offered via the 1wire Website and to all negotiations, orders, quotations, as well as to all other agreements between the (future) Customer and the Supplier, unless the parties have expressly agreed otherwise. These terms replace all previous proposals and agreements.
The Supplier is entitled to amend these terms and conditions unilaterally. The Supplier will inform the Customer of the intended changes via the 1wire Website at least two (2) months before the changes take effect. If the Customer does not agree with the intended changes, the Customer may terminate the agreement with the Supplier as of the date on which the changes take effect. If the Customer does not expressly object to the announced changes in writing or via the Web Application within fifteen calendar days of receiving the Supplier's notice and before the announced changes take effect, the Customer is deemed to accept the changes.
All proposals or quotations concerning the Web Application are without obligation and revocable.
The Customer can place an order directly via the website. The Customer can also place orders via the Web Application after gaining access to it. The Supplier confirms the order placed by the Customer electronically, upon which a 1wire Agreement is concluded.
In the case referred to in article 2.4, the Supplier may decide, without giving reasons, not to accept or not to confirm the order placed by the Customer, in which case the agreement is not concluded.
Under an agreement, the Supplier grants the Customer the non-exclusive and non-transferable right to use the Web Application for the duration of the agreement for the Customer's internal business operations.
The right of use commences when the Supplier has received payment of the fee referred to in article 7.
The Customer will only use the Web Application and the 1wire Website in accordance with these terms and conditions.
The Supplier may, at its own discretion, make improvements to the Web Application. The Supplier will inform the Customer in good time of the implementation of updates and/or upgrades insofar as these are relevant to the use of the Web Application, in the Supplier's judgement.
The Customer may not allow the Web Application or the 1wire Website to be used for the benefit of and/or by any (legal) person other than the Customer and its employees.
The Customer is not permitted to transfer rights or obligations arising from the agreement or the terms and conditions to third parties.
The 1wire Agreement commences when the conditions of article 2.4 of the terms and conditions have been met and is concluded for the period for which the customer made a payment, unless the parties have expressly agreed otherwise.
The Supplier may terminate the agreement immediately when the Customer informs the Supplier that it is no longer able to meet its payment obligations, or when the Supplier must infer from the circumstances that the Customer can no longer meet its payment obligations, or when the Customer ceases its activities, is dissolved or is declared bankrupt.
If the Customer fails to meet its obligations on time, the Supplier has the right to suspend its obligations at any time. The Supplier may then also dissolve the agreement electronically, without judicial intervention, if the Customer, after an electronic notice of default, still fails to meet its obligations under the agreement.
The Supplier is under no circumstances obliged to pay any compensation as a result of a termination as described in articles 5.2 and 5.3.
All prices and other rates charged by the Supplier exclude VAT and exclude any other government levies, which are for the Customer's account.
The Supplier may adjust the fee referred to in article 7, as well as the usage limits, on a monthly basis. If the customer does not agree with that adjustment, the Customer may terminate the 1wire Agreement via the Web Application as of the first possible date as laid down in the terms and conditions.
Invoicing and collection of the fee can take place either monthly or via an annual advance payment. If the Customer pays via an annual advance payment, the Customer is entitled to a refund of the remaining amount paid in advance, pro rata to the number of months still to be used. The Supplier will make this refund no later than one month after the termination of the 1wire Agreement or one month after receiving the Customer's Belgian bank account number.
The Customer owes the Supplier a monthly fee, with the exception of consultancy services for which a separate fee is charged. This fee is set out in the Agreement. The fee will be paid to the Supplier. The Customer can choose to pay this fee monthly or once a year via an advance payment.
The fee is due from the moment the 1wire Agreement has been concluded in accordance with article 2.4 and regardless of whether the Customer uses the Web Application.
The Supplier ensures that a snapshot (copy) of the data in the Web Application is made regularly (at least once a day). This copy is made solely for the Supplier's internal security purposes (for example in the event of calamities). This copy is not provided to the Customer.
The Supplier ensures that the data entered by the Customer via the Web Application is protected as well as reasonably possible against loss, theft, unauthorised access and modification by non-users.
Except for the circumstances described in article 12.6, the Supplier will not view any data that the Customer has placed with the Supplier via the Web Application, and will not make any data available to third parties, unless the Supplier is obliged to do so by law or a court order.
The Customer is responsible for the functioning of its hardware and software, configuration, peripherals and internet connection required to use the Web Application.
The Customer guarantees that the equipment and software it uses for the Web Application meet the system requirements. The Customer is responsible for taking the necessary measures to protect its equipment, software and telecommunication and internet connections against viruses, computer crime and unlawful use by its own users or by third parties.
The Customer will provide the Supplier with all information and cooperation, including providing the Supplier with correct and up-to-date address and billing details, that the Supplier needs to maintain the Web Application.
The data entered by the Customer via the Web Application is stored in a database managed by a third party engaged by the Supplier.
The Customer remains the owner of the data it has entered at all times.
Up to 1 (one) year after the end of the Agreement, the Customer may ask the Supplier to reactivate all functionalities of the Web Application from the moment the first payment of the fee relating to the reactivation has been received. After reactivation, the Customer can again use all functionalities of the Web Application. Upon reactivation, the Supplier has the right to charge a fee for the months between deactivation and reactivation, even if the Customer has not used the Web Application during this period. This fee, expressed per month of deactivation, is limited only to the monthly price for new customers as shown on the 1wire Website at the time of activation.
The Supplier will not respond to the request referred to in this article 10.3 if the fee has not been paid.
The Customer must ensure adequate compliance with applicable legal retention periods for all information that was not entered in the Web Application and after its use of the Web Application has been deactivated.
The Customer will in no way cause nuisance or damage to (the Customers of) the Supplier when using the Web Application and the 1wire Website. The Customer is not permitted to perform actions that can be assumed to be capable of causing damage to the systems of (the Customers of) the Supplier.
The Supplier is not responsible for the content and accuracy of the data that the Customer has placed with the Supplier via the Web Application.
During the Agreement, the Customer is entitled to technical support.
Technical support includes the right to consult documentation. In addition, questions about the use and functioning of the Web Application can be submitted 24 hours a day via the Web Application.
Technical support does not include: a) services relating to system configurations (set-up), hardware and networks; c) on-site support; d) extending the functionality of the Web Application at the Customer's request; e) converting files or restoring backup files; f) services relating to external databases of producers other than the Supplier; g) training or other services not expressly described in the 1wire Agreement; h) support for software of producers other than the Supplier; i) file repairs where the cause cannot be attributed to the Web Application; j) providing newly available products; k) support for the internet connection; l) support in an environment that is not supported according to the system requirements.
In the context of providing support, the Supplier is entitled to view the Customer's data referred to in article 10.
The Supplier makes every effort to ensure optimal availability of and access to the Web Application.
The Supplier may, without prior notice, (temporarily) take access to the Web Application and the 1wire Website out of service or restrict its use, insofar as this is necessary for maintenance or for adjustments or improvements to the Web Application or 1wire Website, without this giving the Customer any right to compensation from the Supplier. The Supplier makes every effort to keep this to a minimum and, where possible, to inform the Customer in good time.
The Customer is obliged to follow the login procedure.
The Supplier may adjust the login procedure at its own discretion. The Supplier will inform the Customer of this in good time.
The Customer must handle the login details with care and is responsible for them. The login details are not transferable and may not be used outside the Customer's organisation. The Customer is obliged to observe strict confidentiality with regard to the login details towards everyone. The Customer is liable for any use of its login details.
The Supplier gives the Customer access to the Web Application by providing login details that must be entered on the 1wire website.
The Supplier has the right at any time, without giving reasons, to restrict or block the Customer's access to the Web Application for an indefinite period if abuse or other improper use is suspected.
The Supplier, its employees, its legal representatives and third parties engaged by it in the performance of its obligations can only be held liable for direct damage to property or persons resulting from intent or gross negligence of the Supplier, its employees, its legal representatives and third parties engaged by it. Insofar as statutory provisions exclude a limitation of the Supplier's liability for damage resulting from intent or gross negligence, the Supplier, its employees, its legal representatives and third parties engaged by it are only liable for damage as described in the following paragraphs of this article.
The Supplier is never liable for indirect damage, which includes, but is not limited to: loss of profit, missed savings, reduced goodwill, damage due to business interruption, damage resulting from claims by the Customer's customers, corruption or loss of data, damage related to the use of items, materials or third-party software prescribed by the Customer to the Supplier, damage related to the engagement of suppliers prescribed by the Customer to the Supplier, and consequential damage, regardless of the nature of the action (breach of contract, tort or otherwise), even if the Supplier has been informed of the possibility of such damage.
The Supplier is never liable for any damage of any kind suffered by the Customer in connection with the Web Application or the 1wire website being temporarily not correctly or not fully available.
The Supplier is never liable for any damage of any kind suffered by the Customer in connection with the (non-)functioning of the software of the Customer or third parties, of equipment of the Customer, the Supplier or third parties, or of internet connections of the Customer, the Supplier or third parties.
The Supplier accepts no liability for the incorrect, incomplete or untimely sending or receiving of data placed with the Supplier via the Web Application.
Insofar as the Supplier cannot rely on the exclusions or limitations of liability described in this article, its liability is at all times limited per event to an amount of 50% of all amounts invoiced to the Customer in the six (6) months preceding its default, less credits issued by the Supplier to the Customer in that period. Insofar as the Supplier also cannot rely on the limitation referred to in this article 16.6, the Supplier's liability is in any event limited to EUR 5,000.
The Customer acknowledges and accepts that the fee for the Web Application has been set taking into account the limitation of liability referred to in this article.
The Customer acknowledges and accepts that the Web Application or the 1wire Website can never be perfect or 100% free of imperfections and that not all imperfections will (or can) be remedied.
The Customer indemnifies the Supplier against claims by third parties arising from or related to the 1wire Agreement or the terms and conditions, unless the Customer could have asserted these claims against the Supplier, taking into account the provisions of this article, if the Customer had suffered the damage itself.
The Supplier's liability for an attributable failure to perform an agreement with the Customer arises in all cases only if the Customer gives the Supplier prompt and proper electronic notice of default, granting a reasonable period to still (correctly) fulfil its obligations, and the Supplier still attributably fails to fulfil its obligations after that period. The notice of default must contain a description of the failure that is as complete and detailed as possible, so that the Supplier is able to respond adequately.
Any right to compensation lapses in any event if the Customer has failed to take measures to (I) limit the damage immediately after it has occurred; (II) prevent (other or additional) damage from arising; or (III) if the Customer fails to notify the Supplier of the damage as soon as reasonably possible and to provide it with all relevant information.
Any claim for compensation against the Supplier lapses 24 months after the claim arises.
Insofar as the Customer processes personal data using the Web Application or the 1wire Website, the Customer is the controller within the meaning of the Personal Data Protection Act. The Customer guarantees that it processes the personal data lawfully. The Supplier will process the personal data solely on behalf of the Customer and in accordance with the Customer's instructions, within the limits of the Agreement.
The Customer indemnifies the Supplier against all claims by third parties relating to the 1wire Agreement between the Supplier and the Customer and/or the data processed by the Customer in the context of the 1wire Agreement that may be brought against the Supplier for a breach of the Personal Data Protection Act and/or other legislation concerning the processing of personal data that is not attributable to the Supplier.
All (delivery) periods are set by the Supplier to the best of its knowledge and are observed as far as possible. As soon as the Supplier becomes aware of a circumstance that may prevent timely delivery, it will consult with the Customer on a new (delivery) period. The Customer is in no case entitled to compensation in connection with late delivery.
Except as expressly included in the 1wire Agreement, the Supplier gives no other or further warranties, undertakings or conditions with regard to services provided and hereby disclaims all other warranties, undertakings or conditions, whether express, implied or statutory (including but not limited to warranties or conditions regarding merchantability, non-infringement of other rights or fitness for a particular purpose) with regard to the Web Application.
In the event of force majeure, a party is not obliged to fulfil a contractual obligation, with the exception of a payment obligation, arising from the 1wire Agreement or the terms and conditions. Force majeure includes, but is not limited to: military action, government action, weather conditions, failure of or disruptions in telecommunication and internet connections, delay or failure in the performance of obligations by the Supplier's suppliers, transport problems and strikes.