Terms and Conditions

General Terms and Conditions of Delivery of Payt
Version 2022

1. Definitions

In these general terms and conditions, the terms below indicated with Capital letters are always used with the following meaning:

2. Applicability

1. These General Terms and Conditions apply to any use of the Applications and the Website and all other services provided to the Client by Payt. Any terms and conditions of the Client are hereby expressly rejected.
2. These General Terms and Conditions may only be amended and/or supplemented by Payt.
3. Payt has the right to amend and/or supplement these General Terms and Conditions. The most up-to-date General Terms and Conditions will be available on the Website or will be brought to the Client’s attention during the use of the Applications. Payt will make the amended General Terms and Conditions available to the Client through the Applications and/or the Website no later than three (3) months before they come into effect. If the Client continues to use the Applications after these General Terms and Conditions have been amended and/or supplemented, the Client irrevocably accepts the amended and/or supplemented General Terms and Conditions.
4. If any provision of these General Terms and Conditions is found to be void or voidable, or for any other reason becomes wholly or partially invalid, the other provisions of the General Terms and Conditions shall continue to apply in full. Payt will replace the invalid stipulation by a stipulation that is valid and whose legal consequences, given the content and intent of these General Terms and Conditions, correspond as much as possible to those of the invalid stipulation.

3. Use of the Applications

1. The Applications are developed continuously with the objective of improving functionality. Payt has the right to modify its Applications and platform frequently, including but not limited to expanding, removing or changing functionality, modifying the user interface and changing their operation. When updates and/or amendments lead to substantial changes in the user experience of Users and/or debtors, and/or activities of Users and/or debtors that are necessary to continue to use the Applications, Payt will inform the Client in good time about the changes and keep any effort required by the Client to a minimum.
2. The Client will only receive from Payt a non-transferable and non-exclusive right of use of the Applications.
3. The Client and the User shall, at their own expense and risk, ensure the purchase and/or proper functioning of the infrastructure, suitable telecommunication facilities (including internet connection) and the most recent version(s) of the software on their hardware required to use the Applications. Among other things (but not exclusively), they must always download and install operating system updates.
4. The Client remains entitled to the data provided by the Client for the use of the Applications. The Client also remains responsible for the data it provides. Payt has the right to process, store, reproduce and remove the data provided by the Client, at least to the extent necessary to execute the Applications. In doing so, Payt will observe the usual confidentiality.
5. If the Client or others use a different operating system than indicated by Payt, a different browser than indicated by Payt, software or hardware that is not up-to-date, or in any other way do not follow the recommendations or instructions of Payt regarding the optimal usability of the Applications, Payt cannot offer the same service level of its Service and is not liable for any damages.

4. Execution of the Agreement – general

1. Payt continuously monitors the functionalities, availability and performance of the Applications. Payt will make the best possible effort to execute and offer the Applications with due care and will do this in accordance with the standards recognised in the industry. However, Payt does not guarantee that the Applications will always function without interruptions or faults. Payt shall in no way be liable or obliged to pay compensation to the Client for any damages arising from or as a result of the (temporary) unavailability or (interim) failure of the Applications, Environment or Website.
2. Use of the Applications does not guarantee that the claim will be paid in full or in part by the debtor.
3. If a performance by Payt is defective and is reported by the Client in a timely manner, Payt shall repeat or repair the defective performance as soon as reasonably possible and without defects. If it is not reasonably possible to repeat or repair the defective performance within a reasonable period of time, Payt has the right to pay the Client compensation for this up to a maximum of the invoice amount for the relevant performance for the period of one month.
4. Payt has the right to engage auxiliary persons, including subordinates, and Third Parties for the execution of the Agreement at its own expense and risk.
5. If the Client does not fulfil any of its obligations based on the Agreement and/or these General Terms and Conditions, Payt shall inform the Client of this and give a reasonable period to fulfil the obligation. If the Client does not comply within the stipulated period, Payt reserves the right to suspend its obligations under the Agreement. Suspension by Payt may include blocking access for the Client and Users to the Applications.

5. Access and Acceptable Use Policy

1. On behalf of the Client, the User obtains access to the Applications by entering the username and password (access data) which Payt has registered for the User. The Client and the User are prohibited from providing the access data to Third Parties for whom they are not intended.
2. The Client is responsible for any use of the access data for the Applications. All actions that can be traced back to the Client, for example by means of the access data, regardless of whether they were performed by the Client, persons employed by or affiliated with the Client, or Third Parties, shall be attributed to the Client.
3. The Client bears sole responsibility for entering the Data, the instruction and the timely updating or current instructions, whether or not by means of an automated and/or linked system. In principle, Payt executes the instructions automatically and continues to do so until the Client has updated the status itself.
4. The Applications may not be used in contravention of the law, public order, common decency, the Agreement, these General Terms and Conditions and the terms and conditions and rules of Third Parties on which Payt or the User is dependent for the use of the Applications.
5. The User must behave as befits a good user. In particular, the following rules apply:
   – The Applications may not be used for the invoicing and/or collection of non-existent, fictitious, or improper claims or claims arising from an obligation that is contrary to the law, public order or common decency;
   – If Payt observes any Improper Conduct by the Client and/or User, Payt will inform the Client of this and give a reasonable time to explain the observed behaviour and/or take appropriate measures to end this behaviour. If the Client cannot explain the observed behaviour and/or appropriate measures within the stipulated period, Payt will give one more (1x) short period to still explain the observed behaviour and/or take appropriate measures to end this behaviour. If the Client does not comply with this, Payt has the right to take appropriate and reasonable measures, including immediately and without further notice blocking the access data of the Client and/or User, removing the content and/or other data, and terminating current billing and collection files. With this, the Client and/or User can lose all their rights with regard to the Applications, without the Client and/or User being entitled to compensation of damages. In case of Improper Conduct, Payt has the right, and sometimes the obligation under legislation and regulations, to inform the authorities.

6. Prices, payment and payability

1. All prices stated are in euros and do not include VAT, unless explicitly stated otherwise in writing.
2. The fee for the use of the Applications is invoiced monthly by email. The Client can request to receive the invoice by post.
3. The Client must pay invoices from Payt within fourteen (14) days after the invoice date. An invoice sent electronically shall be regarded as having been received on the day it was sent. An invoice sent by post shall be regarded as having been received within two (2) working days following the postmark if the addressee is established in the Benelux, or within five (5) working days following the postmark if the addressee is established outside the Benelux.
4. If the Client has an objection against an invoice, it must make this known to Payt within two (2) months after the invoice date by post (PO Box 1188, 9701 BD Groningen or by email: servicedesk@paytsoftware.com. Objection to (part of) the invoice does not suspend the Client’s payment obligation.
5. If no objection is made to (a part of) the invoice within the period stipulated in Article 6.4, this confirms the invoice amount due. In the event of late payment, the Client shall be in default. Failure to make timely payment shall be considered a material breach of the obligations under the Agreement.
6. Payments by the Client shall first be applied to pay the oldest invoice from Payt still outstanding, even if the Client wishes to apply the payment to another purpose. The Client does not have the right to withhold or to offset any amount it owes or to suspend payment of the amount.
7. If the Client does not pay the invoice in full on time, Payt will send the Client a reminder once (1x), in which the Client is again given a payment term. If the (full) invoice is still not paid after the expiry of this payment term, Payt will send the Client a reminder. If (timely and full) payment of the invoice is not made following this reminder, Payt will issue a final warning to the Client, with a final deadline. After the expiry of this period, Payt has the right to take the measures referred to in Article 6.8.
8. If the Client fails to pay an invoice from Payt on time, Payt is entitled:
   a. to claim the statutory interest on the amount owed from the Client pursuant to Article 6:119a of the Dutch Civil Code;
   b. to suspend Client’s access to the Service until the Client has fulfilled its payment obligations, if the Client has not objected to the invoice pursuant to Article 6.4 and has completed the process referred to in Article 6.8.
9. All amounts owed by the Client to Payt shall become due and payable immediately upon termination of the Agreement.
10. Payt is entitled to increase its prices annually based on the CPI index, and the price change will be announced at least 40 days in advance by email. These price changes take effect automatically. If Payt has not implemented an annual increase, Payt remains entitled to include this in a subsequent increase.

7. Force majeure

1. A shortcoming in the fulfilment of the obligations under the Agreement cannot be attributed to Payt and Payt will not be obliged to pay any compensation of damages if the shortcoming is due to force majeure under Article 6:75 of the Dutch Civil Code.
   Force majeure shall in any case include shortcomings of Payt’s suppliers that are in force majeure themselves, electricity, internet, telephone, cable and any other connection malfunctions, malfunctions due to excavation work other than at the instruction of Payt, government measures, regulations and strikes.
2. If a shortcoming in the performance of the obligations under the Agreement by Payt due to force majeure lasts longer than 14 days, either Party may terminate the Agreement, provided they have made their intention to terminate known at least 14 days before the termination and Payt has not resumed the performance of the Agreement in the meantime.

8. Availability and dependence on Third Parties

1. Payt strives for a high level of service. Payt continuously monitors the functionalities, availability and performance of the Applications. Payt will make the best possible effort to execute and offer the Applications with due care and will do this in accordance with the standards recognised in the industry. However, Payt does not guarantee that the Applications will always function without interruptions or faults. Payt will treat all comments and remarks on the Applications seriously and make improvements where Payt deems it necessary. Any inaccuracies can be reported using the Payt email address known between the parties.
2. Payt is entitled to take its Applications out of use temporarily, including (but not limited to) taking them offline, for maintenance, updates or for any other reason. Payt will endeavour to do this outside office hours as much as possible and, if reasonably possible, announce this in advance.

9. Liability, indemnity and damages

1. In case of liability, Payt shall only be liable for direct damages.
2. Payt can never be held liable for indirect losses, including, but not limited to, loss of profit, loss of savings, business shutdown or damage to Third Parties, including in the event of non-performance or improper performance of a remedial obligation.
3. If Payt can be held liable, its liability per event or series of events with a common cause shall in any case be limited to the amount that its liability insurance pays out for the case in question.
4. The liability shall be limited to the current net monthly fee (the fee in the month in which the damage occurs, as referred to in Article 6(2) of these General Terms and Conditions) multiplied by 12.
5. All limitations or exclusions of liability in the Agreement and these terms and conditions do not apply if the damage is due to intent or wilful recklessness on the part of Payt or its managerial subordinate(s).
6. Each Party shall indemnify the other party against (possible) claims from Third Parties that are related to the execution of the Agreement and for which the origin of the claim is attributable to the Party. All costs and damages incurred by the other party as a result shall be borne in full by the Party causing the damage.

10. Intellectual property rights

1. The intellectual property rights to all Applications shall remain with Payt or with the Third Party from whom Payt has obtained the right to make (a part of) these services or Applications available to the Client. With this, Payt only grants the Client a non-exclusive and non-transferable right of use, unless the Agreement expressly provides for this in writing. Payt guarantees that it is authorised to grant this user right.
2. If Payt is held liable by a Third Party or otherwise (directly or indirectly) held responsible for claims regarding intellectual property rights relating to the content, Applications, publications or other disclosures from or affiliated with the Client, the Client is obliged to provide Payt with all necessary assistance in and out of court.

11. Privacy and data processing

1. The Client is the data controller pursuant to the legislation and regulations governing the processing of personal data (General Data Protection Regulation (GDPR), Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC; General Data Protection Regulation: GDPR) responsible for compliance with this legislation and regulations. The Client is responsible for the personal data processed in the context of the services provided. Where necessary, the Client shall obtain the explicit permission of the natural person/third party in accordance with Article 7 of the GDPR before entering personal data.
2. Payt acts within the Agreement as “processor”.
3. The Client guarantees to Payt that the content, use and/or processing of the personal data is not unlawful and does not infringe any right of a third party, that these personal data are collected and shared lawfully and indemnifies Payt against any legal claim and/or fine by a third party, for whatever reason, in connection with the processing of these personal data, unless the Client proves that the facts underlying the claim are attributable to Payt.

12. Termination and Dissolution

1. Client has the right to terminate the Agreement with due observance of a notice period of 1 month.
2. Payt has the right to terminate the Agreement with due observance of a notice period of 3 months.
3. Parties have the right to dissolve the Agreement with immediate effect, in addition to the grounds stated in the law or in these General Terms and Conditions and the Agreement, therefore extrajudicially with immediate effect, without prejudice to the right to (full) compensation of damages, if:
   – the other party has applied for a suspension of payments, is declared bankrupt or its legal entity is dissolved;
   – the other party ceases its business, or the business is liquidated;
   – the other party fails to comply with any substantial obligation under this agreement and does not remedy its default within the set reasonable period of at least 30 (thirty) days.
4. As soon as the Agreement ends for any reason:
   – the Client shall no longer have access to the Applications;
   – the Client’s right to use the Applications shall end and the Client shall immediately cease using and desist from all use of the Applications;
   – Payt is no longer responsible for retaining the Data. With due observance of the GDPR, Payt is prepared to consult with the Client regarding the retention of the Data in the Application/Service for a limited period of time to be determined by Payt after termination of the Agreement;
   – only after full payment has been received by Payt of all amounts due by the Client to Payt, at the written request of the Contractor, the Data will be made available to the Contractor by means of a download and/or otherwise, at Payt’s discretion. The costs associated with the download and/or provision of the Data may be charged to the Client by Payt.

13. Miscellaneous, applicable law and disputes

1. The Client agrees to receive announcements, newsletters, advertising and other messages from Payt at the email address provided by the Client. If the Client does not wish to receive these messages, it may inform Payt by email to servicedesk@paytsoftware.com.
2. All notifications by the Client to Payt must be in writing and can be made by email to servicedesk@paytsoftware.com. The Client bears the burden of proof that an email or other written communication has been received by Payt. All notifications to the Client may be made by means of an email or a message in the Service.
3. The Client may not transfer or pledge its rights and obligations under the Agreement without permission from Payt in writing.
4. If it has reasonable grounds for doing so, including for the continuity of the services of Payt, Payt is entitled to transfer its rights and obligations under the Agreement to third parties, or to outsource the execution of the Agreement in full or in part to third parties.
5. The Agreement, these terms and conditions of delivery and privacy conditions and all agreements that may ensue from the Agreement shall exclusively be governed by Dutch law.
6. All disputes which may arise between the parties will be settled by the District Court in Groningen.

General Privacy Conditions

14. General

1. If the Client and Payt conclude or have concluded a separate (processor) agreement with regard to privacy and the processing of personal data, the provisions of this separate (processor) agreement shall apply. In the event of incompatibility or conflict with provisions of general terms and conditions, the provisions of the separate (processor) agreement shall prevail.
2. Payt only processes personal data within the Application at the instruction of the Client. Payt shall in no case be regarded as the controller (within the meaning of the Dutch Personal Data Protection Act/GDPR) for the processing of these personal data. Insofar as personal data are processed by the Client in connection with the use of the Applications, Payt can only be regarded as a processor of personal data.
3. Client must comply with all legislation and regulations regarding privacy and the processing of personal data, such as (but not limited to) European Regulations and the Dutch Personal Data Protection Act/GDPR.
4. Payt will ensure that the processing of personal data is done in accordance with these privacy conditions.
5. If Payt is held liable by a Third Party, including (but not limited to) government agencies, due to the Client’s non-compliance with the Agreement, general terms and conditions or legislation and regulations with regard to privacy and the processing of personal data by the Client, or any sanction, penalty or other measure is imposed, the Client is obliged to indemnify Payt and the Client shall provide Payt with all necessary assistance in any related proceedings. All resulting costs and damages incurred by Payt shall be borne in full by the Client.
6. The Client guarantees to Payt that the content, use and/or processing of the personal data is not unlawful and does not infringe any right of a third party, that these Personal Data are collected and shared lawfully and indemnifies Payt against any legal claim by a third party, for whatever reason, in connection with the processing of these personal data, unless the Client proves that the facts underlying the claim are attributable to Payt.

15. Duration, termination and retention periods

1. These privacy conditions are applicable if the Client uses the Applications from Payt.
2. These privacy conditions apply as long as Payt processes personal data on behalf of the Client and cannot be terminated in the interim.
3. Payt may deviate from the provisions in both previous paragraphs, insofar as a statutory retention period should apply to personal data or insofar as it is necessary to prove compliance with its obligations towards the Client.
4. The account data and/or personal data used to keep the complete account data up to date may be retained by Payt for at least seven (7) years, or longer if the account is still activated. This does not affect Payt’s right to remove personal data that Payt deems no longer to be relevant for the execution of the service. Further, Payt shall remove account data and/or personal data of the Client within 30 days if the Client requests Payt to do so.
5. The Client is responsible for complying with the legal obligations to administer and retain the personal data and other data that the Client makes available to Payt. The Client shall always have its own copy (e.g. backup) of this personal data and other data available. Payt bears no responsibility in this regard and cannot be held liable for the possible loss or inaccessibility of such data.
6. The agreement is subject to a contract of an indefinite term. Both parties have the right to terminate this agreement with a notice period of 1 month.

16. Subject, type of personal data and processing purposes

1. Payt will process personal data on behalf of the Client. In this context, Payt will in any case process the following personal data of debtors and/or customers of the Client:
   – Name, address, telephone number, email address, title, debtors and invoice data.
2. Payt shall not process the personal data for any purpose other than the processing purposes set out in paragraph 3 of this article.
3. Payt will process personal data for the purpose of:
   – obtaining payment of the claims presented by the Client through Payt; or
   – performing the services as agreed between the Client and Payt.
4. The personal data to be processed by Payt at the instruction of the Client, obtained in any way whatsoever, remain property of the Client and/or the respective data subject.
5. The Client shall issue to Payt the data that are necessary for the execution of the tasks. The Client shall only provide the (personal) data necessary for the performance of Payt’s tasks and which the Client may provide for that purpose.

17. Performance of processing

1. Payt is only responsible for the processing of personal data which it processes in the context of the services offered under the conditions stated in these privacy conditions. Payt is explicitly not responsible for other processing of personal data, including the collection of personal data by the Client and/or third parties.
2. Unless it has received the explicit prior written consent of the Client and legal requirements are met, Payt shall not process personal data in countries outside the European Economic Area (EEA). Transfer of personal data to countries outside the EEA that do not have an adequate level of protection is prohibited. Payt shall immediately inform the Client in writing of any planned permanent or temporary transfer of personal data to a country outside the EEA and shall only implement the transfer(s) with the written consent of the Client.
3. Payt shall keep the personal data regarding the Client separate from the personal data that it processes and stores for itself or on behalf of third parties.
4. Payt will process the personal data in a proper and careful manner and in accordance with the Payt’s obligations under the privacy legislation, such as European Regulations, the Wbp/GDPR.

18. Personal data protection

1. Payt applies appropriate technical and organisational security measures, which in view of the current state of the art and the associated costs are in line with the nature of the personal data to be processed, to protect the personal data against loss, unauthorised access, corruption or unlawful processing, and to ensure the (timely) availability of the personal data.
2. The Parties recognise that security requirements are constantly changing and that for effective security, frequent evaluation and regular improvement of outdated security measures are required. For this reason, Payt shall constantly evaluate the security measures to protect personal data and tighten, supplement or improve them as necessary in order to continue to fulfil its obligations.
3. Payt does not guarantee that the security is effective under all circumstances.

19. Data breach & monitoring notification obligation

1. In the event of a security and/or data breach as referred to in the Dutch Data Breach Notification Act (Wet meldplicht datalekken), Payt shall inform the Client of this as quickly as reasonably possible.
2. The notification obligation in any case includes reporting the fact that a breach or incident has occurred, as well as the (alleged) cause of the breach or incident, the consequence known and/or expected at the time, and the (proposed) solution.
3. The Client shall, if it deems necessary, inform data subjects and other third parties, including the Dutch Data Protection Authority about a data breach or other incidents. Payt is not permitted to provide information about a data breach or other incidents directly to data subjects or to other third parties, except insofar as Payt is legally obliged to do so or has obtained permission from the Client.

20. Confidentiality

1. All personal data that Payt receives from the Client and/or collects itself within the scope of the Agreement is subject to a duty of confidentiality towards third parties.
2. Payt shall ensure that its employees are bound by the duty of confidentiality contained in this article.
3. The duty of confidentiality does not apply insofar as the Client has specifically consented to the transfer of information to third parties, if transfer of the information to third parties is logically necessary in view of the nature of the instruction given, and the performance of these privacy conditions, or if there is a legal requirement to transfer the information to a third party.

21. Data subject rights

1. Payt shall cooperate with the Client, after approval of and at the instruction of the Client:
   – to allow data subjects access to their personal data in a structured, commonly used and machine-readable form;
   – to temporarily limit the processing of personal data to its storage, or to the processing to which the data subject gives consent, until such time as the Client determines that the limitation of the processing should be lifted;
   – to remove or correct personal data of data subjects;
   – to demonstrate that personal data has been deleted or corrected if it is incorrect (or, in the event that the Client does not agree that personal data is incorrect, record the fact that the data subject considers his/her personal data to be incorrect).
2. Insofar as reasonably possible, Payt shall cooperate with the Client to fulfil its obligations under the Dutch Personal Data Protection Act (Wet bescherming persoonsgegevens, Wbp) and/or the General Data Protection Regulation (GDPR) or other applicable legislation in the area of processing of personal data. The responsibility to comply with these obligations rests entirely and exclusively with the Client. Any costs incurred in providing such assistance are not included in the Payt’s agreed prices and fees and will fall to the Client in full.
3. Payt shall further, at the Client’s first request, proceed as soon as possible to:
   – Provide in writing all the necessary information that the Client may require;
   – Improve, supplement, delete or protect personal data.

22. Use and share personal data with third parties

1. Payt has the right to engage third parties for the processing of personal data if:
   – Payt has announced this in advance in writing; or
   – Payt has received permission from the Client for this; or
   – If engaging Third Parties is logically necessary in view of the nature of the instruction and/or the implementation of these terms and conditions.
2. Payt shall ensure that the third party/parties concerned will at least take on the same obligations as those stated for Payt in these privacy conditions.
3. For the correct execution of the services, Payt engages third parties and shares the personal data collected at the instruction of the Client with at least (but not exclusively) bailiffs, hosting partners and mail processors.
4. If the third party that Payt wishes to engage is located outside the EEA, Payt shall ensure, without prejudice to the previous paragraph, that this third party guarantees an adequate level of protection and security of personal data within the meaning of the Dutch Personal Data Protection Act.
5. Payt bears responsibility towards the Client for the third party/parties it engages.
6. If the Client requests Payt to install a specific link in a system of a third party and Payt engages a third party for this purpose, the provisions of this article do not apply and the Client is fully liable for any damages that may directly or indirectly result from this.
7. Payt may also provide personal data to Third Parties if Payt is required to provide the data to a Third Party pursuant to a request or an authorised order from a governmental body or judiciary or in connection with a legal obligation.