Terms & Conditions
Terms & Conditions
PART A: GENERAL TERMS
1. APPLICABILITY AND PRIORITY
1.1 These Terms and Conditions apply to all (legal) acts between Bringly and Customer and will remain applicable until termination unless stipulated otherwise in the Agreement. The applicability of Customer’s or other parties’ general conditions is explicitly rejected, unless and insofar as Parties have explicitly agreed on their applicability.
1.2 The General Terms in this Part A are an integral part of the Agreement. Parts B – D of these Terms and Conditions are applicable if the services are within the scope of application described in that specific Part. Where a specific Part is applicable, it will prevail over this Part (A: GENERAL TERMS).
1.3 The following (specific) Parts are included: Part B. Software Integration Terms; Part C. Platform Terms of Use and D. Freight Forwarding terms.
1.4 Transfer by Customer of the Agreement and/or the rights and obligations contained in it requires Bringly’s prior written permission, which permission will not be withheld unreasonably.
1.5 Customer hereby gives Bringly permission in advance, as referred to in Book 6, Section 159 of the Dutch Civil Code (BW), to transfer the Agreement at any time desired to a third party to be indicated by Bringly.
1.6 Any changes to the Agreement are to be agreed upon between the Parties in writing. If changes made upon Customer’s request lead to additional costs, these additional costs are borne by Customer.
2. DEFINITIONS
2.1 The terms spelled with capital letters in these Terms and Conditions have the following meaning:
• Agreement: the Customer Forwarding Platform Agreement between Bringly and Customer as defined in the Introduction under subsection D.
• Bringly Chosen Courier: the Courier Bringly chooses on a case-by-case basis to handle the transportation of the parcels for Customer, corresponding article 1.4 (a) of the Agreement.
• Consignee: the party for whom the parcels are intended;
• Courier(s): the natural or legal persons with whom Bringly enters into a contract in order to arrange the delivery of parcels on behalf of Customer to the Consignee, irrespective of whether Bringly concludes the contract in its own name or in the name of Customer;
• Customer: the legal entity with whom Bringly has entered into the Agreement;
• Customisation: the (supplementary) modules developed specifically for Customer for the use of the Software and which form part of the Software;
• End User(s): natural person(s) with access to the Software or making use of functionalities of the Software under Customer’s responsibility;
• Fees: payments due to Bringly by Customer, such as the Platform Fee, Delivery Fee, Maintenance Fee and Surcharges agreed to in Appendix 2.
• Intellectual Property Rights: all intellectual property rights and related rights, including but not limited to copyrights, database rights, domain names, trade name rights, trademark rights,
design rights, neighbouring rights, patent rights, trade secrets as well as rights to know how;
• License: the non-exclusive, non-transferable and non-sublicensable right of use that has been granted by Bringly to Customer with a view to the use of the Bringly Software;
• Major Updates: systematic modifications and upgrades of the Software in connection with adding functionalities;
• Minor Updates means modifications and updates in the Software in connection with bug fixing, improving the functionality and/or correcting errors;
• Own Courier: the Courier Customer has chosen to handle the transportation of his parcels for the duration of the agreement, corresponding article 1.4 (b) of the Agreement.
• Part: a chapter of these Terms and Conditions containing provisions relating to a specific area of activity or Services;
• Parties: Bringly and Customer jointly;
• Platform: the Bringly platform as defined in the Introduction under subsection B;
• SaaS: the software-as-a-service of Bringly, in which connection Bringly grants access to Customer. Available in Bringly’s cloud environment;
• Services: the service(s) that Bringly will perform for Customer under this Agreement, including but not limited to freight forwarding services, delivering the Software and/or providing access to the Platform;
• Signing Date: the date on which the Agreement becomes effective;
• SLA: the Service Level Agreement concluded separately between Bringly and Customer in which the agreements on the level, the quality and the method of solving problems with regard to the Services are set out;
• Software: any developed or licensed software related to Bringly’s Services, including any future corrections and/or updates developed which may be released by Bringly during the term of this Agreement.
• Support: all actions to be performed by Bringly in connection with supporting the communication between the Parties and the performance of the Software, including but not limited to answering Customer’s questions concerning the operation of the Software;
• Terms and Conditions: the terms and conditions in this document, comprising of Part A – D;
• Updates: the Major Updates and Minor Updates jointly.
2.2 Capitalized terms used in these Terms and Conditions but not defined herein will have the meaning assigned to them in the Agreement or its Appendices. If the term is not defined in the Agreement or its Appendices, the term will have the meaning corresponding with the common meaning of the term in the industry.
3. OFFERS AND AGREEMENT
3.1 Agreements are concluded by the written acceptance of the offer by Customer.
3.2 If Customer does not explicitly indicate that it agrees to the offer, but nevertheless agrees to Bringly carrying out work that falls within the scope of the description of Services, the offer shall be deemed to be accepted. The same applies if Customer requests Bringly to carry out certain work, without waiting for a formal offer to be made.
3.3 Offers made by Bringly are non-binding and revocable, and have validity for the term stated in the offer. If no term is stated, the offer shall be valid until fourteen (14) days after the date on which the offer is issued.
3.4 The Agreement commences on the Signing Date.
4. PERFORMANCE
4.1 Bringly will deliver the agreed Services, which may include (i) freight forwarding services; (ii) Software, such as app’s, API’s, or custom integration programming, (iii) Software-as-a-Service (Saas), such as the Bringly Forwarding Platform, and other (iv) Services, such as site commissioning, training remote support and integration services, or any other agreed deliverable(s). Bringly will deliver the Services to the best of its ability and with due care and professional competence, in accordance with its offer.
4.2 Bringly is authorised to have certain activities performed by third parties. Any unforeseen additional costs relating to the above will only be borne by Customer if this has been agreed upon in writing in advance.
5. OBLIGATIONS OF CUSTOMER
5.1 Customer shall do everything that is reasonably required and desired to facilitate the correct and timely performance of the Agreement. In particular, Customer shall ensure that information and data required for the provision of the Services, is made available to Bringly correctly and in time. The period within which Bringly is required to perform the Agreement will not commence until such data that Bringly has requested and requires have been received.
5.2 If Customer knows or can assume that Bringly will need to take additional or other measures to comply with its obligations, Customer will inform Bringly thereof without delay.
5.3 If so requested by Bringly, Customer shall designate a permanent contact person and provide the latter’s contact details.
5.4 Customer shall inform Bringly without delay of any changes in its contact details or of the contact persons that are relevant for the performance of the Agreement.
5.5 Bringly cannot be held liable for loss or damage due to data supplied incorrectly or incompletely or incorrectly processed data as a result thereof.
5.6 Storage and provision of data by Customer via the Services takes place at Customer’s own risk. Bringly is in no case obliged to provide support for exporting or supplying the data
7. GRANT OF LICENSE
7.1 Bringly grants to Customer, for the term and subject to the Agreement, a License for the use of its Software. These Terms and Conditions apply automatically if Customer uses the Software.
7.2 Customer is entitled to use the Software under the License for Customer’s business.
7.3 Customer is expressly not permitted to sell, rent out, transfer, grant or otherwise make available to third parties any rights with regard to the Software. In derogation from the above, Customer is permitted to make available the Software to End Users.
7.4 The following is also not permitted:
a) to reverse engineer the source code of the Software or to decompile the Software, except where this is permitted pursuant to mandatory law;
b) to give a copy of the Software to third parties;
c) to sublicense or make the Software available to third parties by means of rental, Software-as-a-Service constructions or otherwise;
d) to modify the Software, except where this is permitted pursuant to mandatory
law;
e) to delete or render unreadable designations of Bringly and/or its licensor(s) as the right holder of the Software or parts thereof.
7.5 Customer shall as a minimum impose the same terms and conditions as included in this Agreement on the End Users with regard to the use of the Software.
7.6 Customer shall if requested provide without delay its full cooperation in an investigation performed by or on behalf of Bringly concerning compliance by Customer and/or End User with the agreed restrictions on use. Customer shall on the first request of Bringly provide access to its buildings and systems to Bringly or a third party engaged by Bringly
8. MAINTENANCE, UPDATES AND CUSTOMISATION
8.1 It will be necessary to maintain or update the Software from time to time. Bringly has the right to adapt the Software, in its entirety or in part, in order to improve its functionality and/or to correct errors. From time to time, Bringly will therefore issue Minor Updates that can rectify errors or improve the operation of the Software. No separately agreed SLA is required in order to obtain Minor Updates.
8.2 If separately agreed by means of an SLA, Bringly will from time to time issue Major Updates that implement systematic modifications and upgrades of the Software in connection with the addition of functionalities.
8.3 Bringly may depend on its supplier(s) carrying out Updates. Bringly is entitled not to install certain corrections or updates if it believes installing such corrections or updates will not benefit the correct operation of the Software.
8.4 Bringly is entitled to stop providing (components of) the Software with Updates or maintenance.
8.5 Customer can request Bringly to add modifications and new functionality to the Software. Bringly is however at all times entitled to refuse such a request for any reason whatsoever.
8.6 If the modifications and/or new functionalities as referred to in the preceding section are developed specifically for Customer, those modifications and/or new functionalities will be considered to be Customisation. Bringly is entitled to charge additional costs for performing Customisation. Customisation includes, but is not limited to, the integration of new Courier’s and delivery options on request of Customer.
9. SUPPORT
9.1 Bringly shall provide Support upon delivery of the Services in the form of support by telephone or assistance from a distance that in Bringly’s opinion is of a supporting nature and can be carried out swiftly and simply. However, Bringly provides no guarantees for the response times or extent of support, unless otherwise agreed in the offer or by means of an SLA.
9.2 In addition to the Support referred to in section 1, Bringly may perform certain other activities for Customer upon Customer’s request. Bringly will in such case prepare an offer for the activities concerned and the additional costs involved.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 The Intellectual Property Rights with regard to the Software, including, but not limited to, the Intellectual Property Rights to the source code, documentation, look-and-feel, interfaces, (third) party connectors and lay-out, shall be vested exclusively in Bringly or its licensor(s).
10.2 Nothing in this Agreement is intended to transfer any Intellectual Property Rights to Customer. The use that Customer can make of the Software is limited to what is described in these Terms and Conditions. Customer shall not perform any actions that may infringe the Intellectual Property Rights of Bringly or its licensors, including but not limited to publishing and/or making copies of the Software or licensing or selling it to third parties and registering domain names, trademarks or Google Adwords search terms (keywords) that are similar to or identical with any mark in respect of which Bringly or its licensors can assert Intellectual Property Rights. Customer acknowledges and accepts that any unauthorised use of the Software, documentation, look-and-feel, interfaces, lay-out or other materials subject to Intellectual Property Rights infringes the Agreement and the applicable legislation.
10.3 Customer is not permitted to modify the Software in whole or in part, without the prior permission of Bringly. Bringly is always entitled to refuse its permission or to attach conditions to its permission. Customer shall bear the entire risk of all changes that it makes or changes made by third parties on its instructions, whether or not with Bringly’s permission.
10.4 Customer will only acquire the rights of use and powers expressly assigned in writing under these Terms and Conditions, the Agreement or otherwise, and in all other respects Customer will not make copies of or publish the Software.
10.5 Bringly is entitled not to grant, or to withdraw, the right of use as referred to in the preceding section if Customer has not fulfilled its obligations pursuant to the Agreement.
10.6 Bringly is entitled to take technical measures to protect the Software against unlawful use and/or against use in a manner or for purposes other than the manner or purposes agreed between the Parties. Customer may not remove or bypass such technical measures or have such technical measures removed or bypassed.
10.7 Bringly can provide software of third parties to Customer and the Software can contain open source software components. The (open source) (Licence) conditions of those third parties may be applicable to this while setting aside the conditions from these Terms and Conditions. Customer guarantees that it will accept and strictly comply with these conditions of third parties.
10.8 Customer is not permitted to remove, make unreadable, to conceal or to modify notifications or statements with regard to Intellectual Property Rights.
10.9 Bringly shall at no time be obliged to provide the Software in source code or other software used in the development of the Software (whether or not in source code form) to Customer, unless this is necessary for the performance of the Agreement.
10.10 Any use, reproduction or publication of the Software falling outside the scope of the Agreement or issued License is deemed an infringement of the Intellectual Property Rights. Customer shall pay to Bringly a penalty due and payable immediately amounting to EUR 25,000 for each act of infringement, and EUR 1,000.- for each day that the infringement continues, irrespective of whether the infringement is attributable to Customer, and without prejudice to the right of Bringly to demand compensation for loss or damage as a result of the infringement or to take other legal action for the purpose of terminating the infringement.
11. PRICES
11.1 Unless expressly stated otherwise with regard to an amount, all prices referred to by Bringly
are exclusive of VAT and other duties levied by the government.
11.2 Updates are included in the fees stated by Bringly.
11.3 If a price is based on information provided by Customer and the information proves to be incorrect, Bringly is authorized to adjust the prices accordingly, even after the Agreement has already been formed.
11.4 Whenever the Agreement is extended Bringly is entitled to change the prices. If Customer does not agree to the price increase, it will have the right to terminate the Agreement. The termination shall be effective at the date the increase would have entered into effect.
11.5 Bringly shall be entitled once a year to increase its Fees in accordance with the Services Price Index (“Dienstenprijsindex”). The reference index shall be the latest published index before the Signing Date of this Agreement. The second sentence of article 11.4 does not apply to a price increase in accordance with the Service Price Index (“Dienstenprijsindex”).
11.6 If Customer exceeds the maximum number of stores/cities allowed according to Agreement, Customer automatically upgrades its Starter/ Essential/ Business/ Enterprise Plan (as defined in Appendix 1) for the same term as stated in the offer.
12. TERMS OF PAYMENT
12.1 Bringly shall invoice Customer in arrears on a monthly basis in accordance with the Agreement.
12.2 Bringly can issue electronic invoices to the e-mail address of Customer as known to Bringly. Customer accepts this invoicing method.
12.3 Bringly will send Customer an invoice for all amounts payable by Customer. Payment of the invoices is made by direct debit or by a transfer made within fourteen (14) days after receipt of the invoice and to a Dutch bank account to be designated by Bringly, as agreed in the Agreement.
12.4 If Customer has failed to pay within fourteen (14) days of the due date, Bringly will send Customer a reminder. If an amount owed is not paid within the extended payment term, the outstanding amount will be subject to statutory interest without any further notice of default by Bringly being required.
12.5 In the event Customer fails to pay by the due date, Customer is obliged to pay any and all judicial and extra-judicial collection costs in addition to the amount payable and the relevant interest due.
12.6 In the event that Customer fails to comply with any obligation under the Agreement, Bringly will be authorised, without any notice of default being required, to suspend the Services, without prejudice to Bringly’s right to compensation of loss or damage, lost profit and interest. Customer is not entitled to any compensation of loss or damage that may arise from this.
12.7 In the event that Customer is held in default, Bringly will be authorised to restrict its service provision, for instance by restricting access to the Service and/or the Software, provided it notifies Customer thereof at least 48 hours in advance. Customer is not entitled to any compensation of loss or damage that may arise from this.
12.8 A demand for payment will be due and payable immediately in the event that Customer is declared bankrupt, applies for a suspension of payments, or an attachment is made on all of Customer’s capital assets, and furthermore if Customer’s business is wound up or dissolved.
13. PERSONAL DATA AND SECURITY
13.1 Where Customer provides personal data in the performance of this Agreement, both the Parties are subject to the General Data Protection Regulation (GDPR), where Customer is the controller and Bringly the processor. Customer indemnifies Bringly against any and all claims by third parties/data subjects under the GDPR.
13.2 Pursuant to the GDPR, the controller and processor must conclude a processing agreement with regard to the processing of personal data carried out. This is provided as Appendix 4 to this Agreement.
13.3 Bringly will ensure a level of security appropriate to the risks involved in the processing and the nature of the personal data to be protected, but only if and in so far as they are located in Bringly’s Services or infrastructure.
13.4 Customer guarantees to only enter personal data in a fully lawful manner and bears full responsibility for this.
13.5 If in the context of a legal obligation, for example under the GDPR, Customer is required to change, delete or hand over data stored in Bringly’s Software, Bringly will assist with this to the extent possible. The costs of any work can be invoiced separately based on the applicable hourly rate.
14. LIABILITY
14.1 Bringly shall only be liable to Customer for direct loss or damage as a result of an attributable shortcoming in the fulfilment of the Agreement by Bringly. Direct loss or damage is understood exclusively to comprise any loss or damage consisting of:
a) damage inflicted directly on tangible objects (“property loss or damage”);
b) reasonable and demonstrable costs that Customer had to incur to remind Bringly to properly comply (again) with the Agreement;
c) reasonable costs incurred in determining the cause and the extent of the loss or damage, insofar as this relates to direct loss or damage as referred to here;
d) reasonable and demonstrable costs that Customer has incurred to prevent or limit the direct loss or damage as referred to in this article.
14.2 Bringly’s liability is limited to the amount covered under Bringly’s professional liability insurance or, if not covered, to the total amount of the Fees payable to Bringly over the preceding calendar year (excluding VAT). Under no circumstances, however, will the total compensation for direct loss or damage exceed a sum of EUR 5,000.- (five thousand) (excluding VAT).
14.3 Bringly cannot be held liable for compensation of indirect loss or damage or consequential loss or damage such as lost turnover or profit, loss or damage arising from delay, data loss, exceeding of stipulated terms as the result of changed conditions; loss or damage arising from inadequate cooperation, information or materials provided by Bringly and loss or damage arising from information or advice provided by Bringly of which the content is not explicitly part of this Agreement.
14.4 The exclusions and limitations of liability referred to in the preceding articles cease to apply if and insofar as the loss or damage is a consequence of an intentional act or wilful recklessness on the part of Bringly’s management.
14.5 Bringly’s liability for an attributable failure to perform the Agreement will only arise if Customer gives Bringly proper notice of default in writing without delay, providing a reasonable period to remedy its failure, and Bringly continues to attributably fail to comply with its obligations even after that period. The notice of default must contain the most detailed description possible of the failure to fulfil the obligations to enable Bringly to provide an adequate response.
14.6 Application of Section 6:271 et seq. of the Dutch Civil Code is excluded.
14.7 Customer indemnifies Bringly against all claims by third parties (including customers of Customer), which involve compensation for damage, costs or interest and bear a relation to the Agreement, the Service and/or the use of the Software.
15. FORCE MAJEURE
15.1 Neither Party may be bound to perform any obligation if a circumstance beyond the Parties’ control, that could not or should not have been foreseen when the Agreement was entered into, negates every reasonable opportunity to perform.
15.2 Force majeure shall be understood to include, but not be limited to: failures of public infrastructure that is normally available to Bringly and on which the delivery of the Services depends, but over which Bringly has no actual control or in respect of which Bringly can make no contractual obligation to perform, such as Internet networks with which Bringly has not concluded a contract; failures of the Bringly infrastructure and/or Services of Bringly caused by computer crimes, such as (distributed) denial of services attacks (DoS or DDoS) or successful or unsuccessful attempts to circumvent network security or systems security; failures of Bringly’s suppliers, which Bringly was unable to foresee and where Bringly is unable to hold its supplier liable, because force majeure similarly applied to the relevant supplier, for instance; defective items, equipment, software or other source material, the use of which has been stipulated by Customer; unavailability of staff (due to illness or otherwise); government measures; general transport problems; strikes; wars; terrorist attacks; and civil commotion.
15.3 Either of the Parties shall have the right to terminate the contract in writing if a situation of force majeure continues for more than thirty (30) days. In such case, the Services that have already been performed under the Agreement will be paid for on a proportional basis without the Parties owing each other anything else.
16. CONFIDENTIALITY
16.1 The Parties will treat the information they provide each other before, during or after the performance of this Agreement as confidential if such information has been marked as confidential or if the receiving Party is aware or should reasonably assume that the information was intended to be confidential. The Parties will also impose this obligation on their employees, as well as on any third parties they have engaged to perform the Agreement.
16.2 Bringly will not access data stored by Customer and/or distributed by Customer via Bringly’s systems and/or Software, unless this is required to ensure the proper performance of the Agreement or Bringly is obliged to do so pursuant to a legal provision or an injunction. In such case, Bringly will undertake to limit access to the information as far as possible, to the extent that this is within its power.
16.3 Customer agrees to the processing of data stored by and/or distributed by Customer via Bringly’s system and/or Software on aggregated level in order to improve the Software and Services.
16.4 Bringly will not share any data with any third parties unless this is required to ensure the proper performance of the Agreement or Bringly is obliged to do so pursuant to a legal provision or an injunction. In such case, Bringly will undertake to limit access to the information as far as possible, to the extent that this is within its power.
16.5 The duty of confidentiality also remains in force after termination of the Agreement for any reason whatsoever, and for as long as the party providing the information can reasonably lay claim to the confidential nature of the information.
17. DURATION AND TERMINATION
17.1 The Agreement is entered into for the term stated in the Agreement and is automatically extended for a term of one (1) year unless agreed otherwise by the Parties. If no term is stated in the Agreement, the Agreement will be entered into for a period of twelve (12) months.
17.2 Bringly shall never be obliged to provide any compensation for damage owing to notice of termination, dissolution or another method of termination of the Agreement.
17.3 After termination of the Agreement for whatever reason Customer shall cease and not resume any use of the Software. Customer shall remove any back-up file (and any other copies) of the Software from its systems or return them to Bringly.
18. AMENDMENTS
18.1 Bringly will need to amend its Terms and Conditions from time to time.
18.2 Customer will be informed by e-mail to Customer or via another channel or mode that allows Bringly to determine that notice was given to Customer. Non-substantive minor changes can be implemented at all times, without requiring express notification. If no written objection is received from Customer within two (2) weeks following the notice, Customer will have deemed to accepted the amendments.
18.3 Should Customer not wish to accept an amendment, it can inform Bringly so, in writing. This may give Bringly cause to review the amendment. If Bringly does not subsequently retract the amendment, Customer may terminate the Agreement with effect from the date on which the new terms and conditions take effect.
19. MISCELLANEOUS
19.1 The Agreement is governed by Dutch law.
19.2 All disputes that may arise between Bringly and Customer shall be submitted to the district court of Amsterdam.
19.3 The term “written” in this Agreement also includes communication by e-mail or fax.
19.4 If any provisions in the Agreement are declared null and void, this will not affect the validity of the entire Agreement. In such case, the Parties will stipulate a new provision or new provisions to replace any such provisions, reflecting the purport of the original Agreement and the Terms and Conditions as much as legally possible.
19.5 The Parties will inform each other in writing without delay of any changes in name, postal address, e-mail address and telephone number, as well as bank and giro account numbers.
PART B. SOFTWARE INTEGRATION TERMS
If the Service comprises (in part) the delivery of Software, the provisions of this Part B shall also apply.
20. INSTALLATION AND DELIVERY
20.1 Unless agreed otherwise in writing, Customer shall be responsible for its hardware, software and network environment, as well as the installation of the Software.
20.2 Bringly shall provide reasonable support in respect of the installation of the Software.
20.3 The selection, purchase and management of hardware, software and network environment are the sole and full responsibility of Customer. Bringly shall give instructions with regard to the desired configuration. If the designated environment does not meet the requirements of Bringly, Bringly shall not be responsible for any failure in the operation of the Software.
20.4 On request, Bringly shall inform Customer of system requirements, but can in no case be held responsible and liable for any failure in the operation of the Software delivered on the systems of Customer or a third party engaged by Customer (including a hosting provider). In addition, Bringly shall not be obliged to carry out modifications of the Software with a view to the proper operation on the above-mentioned systems of Customer. Bringly shall however provide assistance in seeking a suitable solution, insofar as it deems this reasonable. This is at the sole discretion of Bringly. With regards to system modifications, Bringly specifically stipulates that Customer is responsible for the modification of their printer settings.
21. GUARANTEES AND AVAILABILITY
21.1 Customer accepts that the Software contains only the functionality and other features as found by Customer in the Software at the time of delivery (“as is”), i.e. with all visible and invisible errors and defects. Unless otherwise agreed by means of an SLA, Bringly does not guarantee that the Software will be available at all times and without interruptions or defects.
21.2 Bringly is not obliged to rectify problems/defects in the Software that are identified more than three (3) months after delivery and are attributable to changes in the environment or other technical factors (including browsers, infrastructure, operating systems and modified standards).
21.3 Modifications that are required to be carried out as a result of technical factors as referred to in the preceding section shall be performed in Minor Updates.
21.4 Customer recognizes that Bringly has no control of the hardware and infrastructure on which the Software has been installed. Bringly therefore does not provide any guarantees with regard to the availability of the hardware and infrastructure, and the availability of the Software as a result of non-availability of the hardware and/or infrastructure.
PART C. PLATFORM TERMS OF USE (SAAS)
Where the Service comprises (in part) the delivery of the Platform or any other software-as-a-service (together: SaaS), the provisions of this Part C shall also apply.
22. USE OF THE SERVICE
22.1 The SaaS will be made available to Customer as online software service from the Signing date or any other date agreed in writing. Bringly shall inform Customer of when the SaaS is made available.
22.2 Bringly shall endeavour to send the login details of the SaaS to Customer as soon as possible after the Starting Date of the Agreement. Customer is aware that loss of these login details can lead to unauthorised access to the SaaS. Customer shall protect the login details against unauthorised access and unauthorised persons.
22.3 Bringly hereby grants Customer a non-exclusive and non-transferable right of use for the duration of the Agreement in order to use the SaaS in accordance with the Agreement and these Terms and Conditions.
22.4 In particular, Customer must keep the password strictly confidential. Bringly may assume that everything that takes place from the account of Customer after login with the associated user name and password, takes place under the management and supervision of Customer. This means that Customer is liable for all these actions, unless Customer has informed Bringly that another person knows the password.
22.5 In the event of suspected misuse of the account, Customer shall inform Bringly without delay and Customer shall change the (login) details.
22.6 Personal data are processed when using the SaaS. The provisions in Article 12 of these Terms and Conditions apply to the processing of personal data.
23. CONDUCT
23.1 Customer guarantees that the SaaS will not be used for activities that conflict with Dutch law, other applicable laws and regulations or public decency.
23.2 Customer is only permitted to use the SaaS for its own use. It is expressly prohibited to use the SaaS on behalf of third parties, or to provide access to the account to third parties.
23.3 In particular, it is prohibited to use the SaaS in such a way that it causes nuisance or inconvenience to third parties. This includes using own scripts or programs to upload or download large quantities of data, or excessive use of the SaaS.
23.4 Customer is prohibited to test the limits of the SaaS. This includes but is not limited to stress testing of the Software. If Bringly ascertains that Customer has violated this condition, Bringly has the right to block Customers account temporarily or permanently to safeguard the stability and proper performance of the SaaS.
23.5 In addition, it is prohibited to use the SaaS:
a) to distribute information that is pornographic or erotic (even if this is legal in itself);
b) to distribute information in violation of copyrights, or to place hyperlinks to such information;
c) to violate the privacy of third parties, for instance by distributing third-party personal data without permission or necessity, or repeatedly harassing third parties by providing them with unwanted communications.
23.6 If in Bringly’s judgment Customer has violated the above conditions, or receives a complaint, it will give Customer a warning. If this does not lead to a satisfactory solution, Bringly itself may intervene to end the violation. In urgent or serious cases, Bringly may intervene without warning.
23.7 If, at Bringly’s discretion, the operation of Bringly’s computer systems or network, third-party networks and/or service provision via the internet is obstructed, damaged or otherwise put at risk, in particular as a result of excessive amounts of data being sent, leaked personal data or virus activity, Trojan horses and similar software, Bringly is authorised to take any reasonable measures it deems necessary to avert or prevent such risk.
23.8 Bringly is entitled at all times to report any criminal acts discovered. In addition, Bringly is authorised to provide Customer’s name, address and other identification data to a third party who has complained that Customer has breached its rights or the Agreement, provided that, according to the principles of reasonableness and fairness, the accuracy of the particular complaint is sufficiently plausible and the third party has a clear interest in being provided with these data.
23.9 Bringly may recover from Customer any losses or damage suffered as a result of violation of these rules of conduct. Customer indemnifies Bringly against all third-party claims pertaining to losses or damage arising from a violation of these rules of use.
24. AVAILABILITY OF THE SERVICE
24.1 The SaaS will be performed on the basis of a best-efforts obligation, unless and to the extent that Bringly has pledged an explicit result in the SLA and the relevant result has also been adequately described.
24.2 Bringly will make the SaaS available via the internet and ensure that it achieves the best possible response time for this for Customer.
24.3 Bringly has the right to take its systems, including the SaaS, in their entirety or in part, temporarily out of operation for the purpose of maintenance (planned or unplanned), adjustment, or improvement. Bringly will endeavour to ensure that as far as possible any downtime periods are scheduled outside office hours, and will undertake to inform Customer in good time of the scheduling of downtime periods. However, Bringly is never liable for compensation for damages arising from such downtime periods.
24.4 Bringly has the right to adapt its systems, including the SaaS, in their entirety or in part, from time to time in order to improve their functionality and/or to correct errors. If an adjustment causes a considerable change in functionality, Bringly will undertake to inform Customer of this. In the event of modifications that are relevant to multiple Customers, it is not possible to waive a specific modification only for Customer. Bringly is not liable for any compensation for loss or damage resulting from such a modification.
24.5 In the event of unavailability of the SaaS due to disruptions, maintenance or other causes, Bringly will make every effort to inform Customer of the nature and expected duration of the interruption.
25. PROCEDURE UPON TERMINATION OF THE AGREEMENT
25.1 After termination of the Agreement, as a result of cancellation, all data stored for Customer will be kept available until one (1) month after the termination, so that Customer itself can download the data. After this period, all Customer data will be deleted, regardless of whether Customer has downloaded it or not, unless otherwise agreed by means of an SLA. Bringly is not obliged to provide Customer with back-up files on its own initiative, unless agreed otherwise in writing by means of an SLA.
25.2 The deletion of data stored for Customer will take place as standard without special precautions to make the deletion irreversible, but can on request be carried out, against additional payment, with the use of a software-based data shredder.
PART D. FREIGHT FORWARDING TERMS
Where the Service comprises or concerns the arrangement of the delivery of parcels, the provisions of this Part D of shall apply with precedence over the preceding Parts of the Terms and Conditions, in so far as they deviate, notwithstanding the provisions of mandatory law. Where the Service comprises or concerns the arrangement of the delivery of parcels, Bringly will always act as a freight forwarder and never as a courier, not even when Bringly uses all in or fixed rates. Bringly will not exclusively be understood to be the freight forwarder referred to in Book 8 of the Dutch Civil Code.
26. COURIERS AND THIRD PARTIES
26.1 In the execution of the Agreement Bringly is authorised to enter into agreements with Couriers and third parties and to accept the (general) terms and conditions of the Courier and those third parties at Customer’s expense and risk, unless otherwise agreed upon in writing.
27. HANDLING OF PARCELS
27.1 In respect of the Goods as well as in respect of the handling thereof, Customer shall supply Bringly in good time with all details and documents he knows or ought to know, are of importance to Bringly or the Courier. Customer shall specify at least: the chosen delivery service, the parcel size (S,M,L,XL), the pick up address (street, house number, postal code, city, name contact person and phone number), the delivery address (name, street, house number, postal code, e-mail address or optionally phone number), and the Bringly Tracking code.
27.2 Customer offers the Goods to the Courier in suitable packaging on the agreed location, at the agreed time and in the manner, as specified in the order and the Agreement and its Appendices.
27.3 Bringly is allowed to verify the accuracy and completeness of the details and documents provided by Customer as it sees fit.
27.4 Customer is liable for any damage Bringly suffers as a result of the fact that the details and documents provided by Customer, and that are required for the execution of the Services by Bringly, are not properly present.
28. ADDITIONAL INSURANCE
28.1 If Customer so requires, the possibility to take out an additional insurance and the costs and remunerations of it can be discussed between Bringly, Customer and Bringly’s insurance company.
28.2 Bringly does in no way guarantee up front that taking out an additional insurance is possible.
29. LIABILITY
29.1 All Services performed by Bringly are performed at Customer’s expense and risk.
29.2 Bringly is not liable for the consequences of refusal by the Courier to sign for the quantity, weight etc. of the parcels to be transported.
29.3 Bringly is not liable for any damage whatsoever, unless Customer proves that the damage has been caused by fault or negligence of Bringly.
29.4 Bringly can only be held liable for an attributable failure to perform his duties as a freight forwarder if Customer has given Bringly proper notice of default in writing within seven (7) days after discovery of the default. After Bringly has received the notice, Customer shall provide Bringly a reasonable period to remedy its failure. The notice of default must be sufficiently detailed to enable Bringly to provide an adequate response.
29.5 If the order picked up by the Courier is not delivered at its destination in the same condition in which he picked it up, but its content can still be used for the purpose for which it was intended, Bringly’s liability is always limited to EUR 454,- per shipment.
29.6 If the order picked up by the Courier is not delivered at its destination or not delivered at its destination in the same conditions in which he picked it up, as a consequence of which the content of the order can no longer be used for the purpose for which it was intended, Bringly’s liability is always limited to:
i) EUR 454,- per shipment for damage to the goods;
ii) Two times the freight for damage as a result of not being able to use the content of the order for the purpose for which it was intended.
29.7 If the order is being delivered outside the timeframe specified in the order or the Agreement, Bringly’s liability for the resulting damage is always limited to two times the freight. If, in addition, the goods are also damaged, Bringly’s liability is limited to EUR 454,- per shipment.
29.8 Bringly cannot be held liable for lost profit, consequential loss and/or immaterial damage, whatever the cause.
29.9 Bringly’s liability is always limited to the amount paid out by Bringly’s professional liability insurance with regard to the respective claim of Customer.
29.10 In no way do any of the provisions in these Freight Forwarding Terms expand Bringly’s liability under Dutch law.
30. MANDATORY LAW
30.1 These Freight Forwarding Terms shall not affect articles 8:61 paragraph 1, 8:62 paragraph 1 and 2 and 8:63 paragraph 1, 2 and 3 of the Dutch Civil Code.
31. LEGAL PROCEDINGS AND RECOVERY OF DAMAGES
31.1 To recover Customer’s loss or damage incurred during the execution of the Agreement and for which Bringly cannot be held liable, Customer will notify Bringly, after which Bringly will inform Customer without delay of the relevant contract(s) Bringly has entered into in the