Terms and Conditions

Definitions

In these General Terms and Conditions terms that begin with a capital letter are used, which terms and meanings as set out in this article, regardless of whether the terms are used singular or plural.

API: the Winedata Application Programming Interface.
API-key: the subscription key required for a Service to use the API, if and insofar as this is necessary for the operation of a Service.
App: an application made available by Winedata that enables a Customer to request an Advice with a computer, mobile phone, tablet computer or any other personal mobile device.
Advice: advice requested with regard to a wine, data about a wine, wine-food combination, cheese-wine combination, a wine glass or a serving temperature.
Terms and Conditions: these terms and conditions.
Availabilty: the percentage of time of the Service Window in which the Customer can use (a part of) a Service undisturbed.
Consumer: a natural person not acting in the exercise of a profession or business.
Commercial Use: any commercial use as a non-Consumer, including but not limited to: the use of an App where Customer advises hotels, restaurants, bars, liquor stores and (wine) distributors, participants of a wine tasting where Customer is involved in the organization, to based on the outcomes of an App.
Service: a service from Winedata, among other things, but not exclusively: an App, the API, Winedata and / or one or more Kiosks.
EULA: end user license agreement
Kiosk: a combination of various Services, items (such as furniture or tablet holders), Wine data software and equipment (such as tablets) with which consumers, usually customers of the Customer, can interactively obtain a wine-food combination on location of the customer.
Customer: counterparty of Winedata in the Agreement.
Maintenance Windowthe other party of Winedata in the Agreement: the period in which (a part of) a Service does not have to be available and is reserved for maintenance.
Agreement: the agreement between Winedata and the Customer, to which these General Terms and Conditions apply.
Parties: Winedata and Customer together.
Service Window: the time period outside the Maintenance Window in which a Service is available.
Store: the (online) app store in which an App from Winedata can be purchased.
Winedata: the Dutch private limited liability company “WineWineWine B.V.”, trading under the trade name “Winedata”, any legal successor, or any affiliated company that uses these General Terms and Conditions.
In-App Purchase: any purchase of additional functionality from an App from Winedata.
Webshop: a shop on the internet in which wines, cheese, food or related products are sold remotely.
work hours: hours on Working Days between 9 a.m. and 5 p.m. Dutch time.
- Working days: Monday to Friday, with the exception of Dutch national holidays.

Intellectual property rights

The intellectual property rights with regard to Winedata and the Services rest with Winedata and / or its licensors. Winedata reserves all rights that are not explicitly granted in these Terms and Conditions or the Agreement.

Prices, invoicing, rates and payment

The agreed prices and rates can be increased annually, starting in January, with a maximum of 5% (five percent).
If the automatic debit or the debit from the credit card or bank account (with direct debit) fails, or if another payment method has been agreed upon, the Client is obliged to pay Winedata within 7 (seven) days after the invoice date.
- The customer hereby gives permission to be allowed to invoice digitally (PDF by e-mail).

Support and maintenance

Customer is entitled to ask questions regarding the Services by sending an email to support@Winedata.com. A question must be asked in the English or Dutch language. If the Customer is a user of a business Service of Winedata, it is also possible to make use of support through telephone contact. In that case, the support number must be used, as provided separately.
Support as set out in this article is delivered on the basis of “best effort”. Therefore, Winedata cannot give any guarantees with regard to a specific result or service level to be achieved, unless a service level agreement has been agreed.
Maintenance is part of the delivery of Winedata, the API and the software present in a Kiosk. Errors in standard functionality are always solved by Winedata without additional costs. Errors in the custom functionality are resolved after mutual consultation. If Winedata needs to come to the Customer for errors or malfunctions, the applicable hourly rate applies.
- Customer is obliged to go along with new versions of an App, the API and Winedata. If a new version of the API entails that the Customer has to adjust its own software, Winedata will communicate in time which changes are necessary to be able to use the new version.

confidentiality

Both Parties will maintain strict confidentiality regarding the information about each other’s organization, the operation of functionality, algorithms and the Services. Subject to the prior written consent of the other Party, a Party shall not make information, data carriers and data available to it available to third parties and only make its personnel known to the extent necessary for the performance of the agreed performance. Parties will oblige their staff to comply with these confidentiality provisions.
- With regard to data originating from the other Party, which are held in any form or on any data carrier by a party or have been provided to it, the receiving Party undertakes:

1. 1. to take all reasonable measures for safe storage or storage;
  2. not to use the data for any purpose other than the agreed purpose;
  3. not to keep the data in its possession for longer than is reasonably necessary for the performance of the agreed obligations and to make this data, including copies made, available again to another Party immediately after full compliance with said obligations, or after obtaining permission from another party to destroy;
  4. to have the agreed obligations carried out exclusively by persons for whom the Party on whom the obligation rests reasonably believes that they are reliable;
  5. to cooperate in the supervision by or on behalf of the other Party of data retention and use.

Each of the Parties shall ensure that its employees and / or third parties involved in the work are contractually bound to secrecy with regard to what is stated in this article.

Processing of personal data

Winedata is entitled to include the personal data concerning the Customer in the personal registration of Winedata which is required for its administration and management tasks.
In the context of the processing of personal data, the following roles are distinguished and acknowledged by the parties (including the associated responsibilities): the Customer is the controller, Winedata is considered a processor, any third party engaged by Winedata who has processed personal data is a sub-processor .
Winedata processes personal data within the framework of the agreed and made available Service (s) in accordance with the General Data Protection Regulation (hereinafter: AVG).
In the context of the execution of the agreed work for the Client, Winedata will process personal data, whereby Winedata is not permitted to process the personal data obtained from the Customer for purposes other than those agreed upon and / or to provide them to third parties.
Winedata may use the obtained and collected personal data for analysis and marketing purposes, such as conducting statistical, trend or marketing research. If and insofar as Winedata processes the (personal) data for its own purposes, it will be the controller of that part.
If Winedata deems this important for the implementation of the Agreement, the Client will, upon request, immediately inform Winedata in writing about the manner in which the Client implements its obligations under legislation with regard to the protection of personal data.
Customer guarantees that the content, use and order to process the personal data is not unlawful and does not infringe any rights of third parties. The Customer shall in particular ensure that no special personal data is processed using the Service. Customer indemnifies Winedata against any legal claim from third parties, for whatever reason, in connection with this data or the implementation of the Agreement.
The Client indemnifies Winedata against claims from persons whose personal data are registered or processed in the context of a personal registration that is held by the Client or for which the Client is otherwise responsible under the law, unless the Client proves that the facts related to the claim basis must only be attributed to Winedata.
Customer guarantees that it will implement appropriate technical and organizational measures internally to protect personal data against loss or any form of unlawful processing, such as timely patching of the hosting environment, an adequate password policy and an authorization structure that fits the functions of users , where the Customer has the responsibility to properly set up this authorization structure.
If on the basis of the Agreement Winedata is obliged to provide a form of information security, that security will meet the specifications regarding security as agreed in writing between the parties. Winedata never guarantees that information security is effective under all circumstances. If an explicitly described security is missing in the Agreement, the security will meet a level that, given the state of the art, the sensitivity of the data and the costs associated with taking the security, is not unreasonable.
Winedata implements appropriate technical and organizational measures to protect personal data against loss or against any form of unlawful processing. These measures guarantee, taking into account the state of the art and the costs of implementation, an appropriate level of security in view of the risks involved in the processing and the nature of the personal data to be protected. The measures are also aimed at preventing unnecessary collection and further processing of personal data. The measures are also aimed at preventing unnecessary collection and further processing of personal data.
If computer, data or telecommunication facilities are used in the performance of the Agreement or otherwise, Winedata is entitled to allocate access or identification codes to the Customer. Winedata is entitled to change assigned access or identification codes. The customer treats the access and identification codes confidentially and with care and only makes these known to authorized staff members. Winedata is never liable for damage or costs resulting from use or misuse made of access or identification codes, unless the misuse has been possible as a direct result of an action or omission by Winedata.
Winedata guarantees at the first request of the Client to cooperate in an audit if the Client wishes to determine to what extent Winedata meets its obligations under the General Data Protection Regulation, as long as the costs of the audit and the costs associated with the deployment of employees of Winedata for are and remain the Client’s account. Winedata cannot guarantee that an audit can take place at a subcontractor of Winedata who also processes personal data.
Winedata may use a sub-processor within the framework of the agreement. The customer hereby gives general permission in advance for the use of sub-processors. At the Customer’s first request, Winedata provides the list of sub-processors. This list can be expanded by Winedata at its own discretion and judgment. If the Win data extends the list to include new sub-processors, the Client will be notified in good time, whereby the Client will be given the opportunity to object to the intended new sub-processors.
If Winedata suspects, or has come to know, that the personal data of the Customer have been or have been compromised (security breach or data breach), Winedata will immediately inform the Customer of this. As a result, the Client itself assesses whether or not it will inform those involved and whether an incident must be reported to the competent authorities. Customer remains responsible for all legal obligations incumbent upon him in this context. Insofar as necessary, Winedata provides cooperation at the request of the Customer in order to be able to meet those legal obligations.
In the event that a data subject submits a request regarding inspection, correction or removal to Winedata, or wishes to exercise any other right that belongs to him, Winedata will forward the request to the Client, and the Client will further process the request. Winedata informs the data subject of the forwarding of the request to the controller. Insofar as this is not in conflict with any legal provision, Winedata will, upon request, cooperate with the Client in the handling and processing of the request.
After the expiry of the duration of the agreement / assignment or the stated processing time of the personal data or termination of the agreement / assignment, Winedata will give the Client the opportunity to obtain the personal data before deleting the personal data.
- Article members 6.1 to 6.17 apply as a basic processing agreement between the Parties. At the Customer’s first request, Winedata cooperates in concluding a separate processing agreement as referred to in the GDPR.

Limitation of liability

Despite the fact that the Services have been developed with the greatest possible care, Winedata cannot be held liable for any errors, omissions or defects in the Services or Advice.
Winedata is only liable for direct damage as a result of an attributable shortcoming in the performance of the Agreement, or as a result of damage from any other reason, such as unlawful act, up to a maximum of what Winedata in the three (3) months prior has charged the damage-causing event and has actually been paid by the Customer, excluding VAT, with a maximum of € 1,000 (one thousand euros). A series of related events causing damage counts as one (1) event.
Winedata is not liable for indirect damage, consequential damage, lost revenue, lost profits and missed savings.
- The limitations of liability expire in the event of personal or property damage, and / or of intent or deliberate recklessness on the part of Winedata management.

Duration and termination

The Agreement enters into force when both Parties have signed it.
The Agreement is entered into for a period of twenty-four (24) months.
The Agreement will be tacitly extended for one (1) calendar month if neither of the Parties has canceled the Agreement in writing (also by e-mail) to the other party no later than 30 (thirty) days before the end date.
- Winedata is without prejudice to the provisions of the Agreement, entitled to dissolve the Agreement in whole or in part with immediate effect by written statement and without prior notice of default or notification:

1. 1. if the Customer is accountably in breach of one or more of your obligations and / or compliance is impossible;
  2. if it is plausible for Winedata that the Customer is or will not be able or willing to meet its obligations;
  3. if the Client has applied for a moratorium, is in a situation of moratorium, is filed for bankruptcy, is in a state of bankruptcy, proceeds to liquidate its business or ceases your activities or is found to be insolvent in any way (including admission of debt restructuring in case the Client is a natural person concerns);
  4. if Winedata leads to damage to its image through cooperation with the Customer or further cooperation with the Customer will lead to foreseeable damage to its image.

In the event of dissolution as referred to above, Winedata will never be held to any form of compensation.
In the event of termination as referred to in Article 8.4, the Client is obliged to immediately reimburse all costs already incurred by Winedata, without prejudice to Winedata’s right to claim full compensation.
Obligations which, by their nature, are intended to continue even after termination of the Agreement, continue to exist. The termination of the Agreement expressly does not relieve the Parties from the provisions regarding: confidentiality, intellectual property rights, applicable law and choice of forum. This also applies to termination due to dissolution on the basis of an attributable shortcoming on the part of Winedata.
- For subscriptions that have been purchased by means of In-App Purchases, the provisions in Article 10 regarding maturities, cancellation and termination apply.

The API and Winedata

Winedata strives for an Availability of 99% (ninety-nine percent) per year. If a possible Non-Availability lasts a maximum of four (4) consecutive hours, the Availability will be considered to be complete and undisturbed.
Winedata reserves the non-Working hours for maintenance. This reservation falls under the Maintenance Window.
If maintenance to the API or MyWinedata is necessary outside of the non-Working Hours, Winedata will inform the Customer of this at least 3 (three) Working Days in advance. This planned maintenance also falls under the Maintenance Window.
Winedata determines the version policy independently and without consulting the Client and ensures that the latest functionality is available to the Client whenever and to the extent possible.
The Client is not permitted to use the API or MyWinedata in such a way that damage may occur to the service, to Winedata, to third parties, or as a result of which a disruption in the Availability may arise or may occur.
Winedata offers the API and MyWinedata on the basis of “fair use”, which means that it does not in principle impose any restrictions on the system and network load caused by the Customer. Winedata reserves the right to take measures in the event of excessive use, being use that is significantly higher than that of the average user of the API or MyWinedata.
Customer must, immediately after first notification by Winedata of excessive system and / or network load, take measures to put an end to this. Winedata is entitled to suspend the provision of services and / or any other obligation to be performed under the Agreement in the event of a constantly excessive system and / or network load.
In the event of a structurally excessive system and / or network load, the Parties will consult on the costs thereof.
Customer is obliged to ensure careful handling of login data provided by Winedata. The customer is obliged at least if a good family man takes care of that data.
The customer indemnifies Winedata against claims from third parties on the basis of acts or omissions that are contrary to this article.
If and insofar as the API will be implemented, a Web Store must be submitted for approval by Winedata or as soon as possible at Winedata ‘s first request, if so far as there are functional and / or graphic designs. This approval will not be withheld by Winedata on unreasonable grounds.
You are required to use the logo and registered trademark of Winedata if results from the API or MyWinedata are displayed online or offline.
For this, Winedata provides the Client with a right of use for this purpose. For all other situations, the use of that logo and brand name is not permitted and the rights remain reserved, unless other use is permitted by law.
The user rights as referred to above are granted non-exclusive, immediately revocable and non-transferable by Winedata to the Customer.
If the Agreement shows that the payment for the API depends on the number of calls on the (underlying) API, it applies that the data that the API supplies to the Client will not be stored by the Client’s software for longer than is strictly necessary for the processing of that data. The data will in that case never be stored for improper purposes, including but not limited to reverse engineering of the algorithm of the API and / or for minimizing the number of calls on the API.
- An issued API key is only valid for one (1) location and one (1) device, unless otherwise agreed.

Apps

The Client is not permitted to use the App for Commercial Use without permission from WineWineWIne. This on pain of an immediately, without judicial intervention claimable, non-moderation, fine to be paid by the Customer to WineWineWine of € 1,000 (one thousand euros) per violation, and € 500 (five hundred euros) for each day that the violation continues. The foregoing is without prejudice to the right of WineWIneWine to claim the damage actually suffered.
In the case of In-App Purchases the same license applies to the purchased functionality that the Customer was initially granted.
In case an In-App Purchase is a subscription to certain functionality, the duration depends on which type of subscription is purchased. Before purchasing, Winedata will let the Customer know what type of subscription is being purchased.
The subscription is always automatically extended after the expiry of that initial or extended period, for the same duration as the initial period, and for the same price as agreed for the initial period.
The subscription can be canceled by Customer at any time by using the settings in the Store. In that case the subscription remains valid, including the associated functionality, until the end of the period as referred to in Article 10.2.
- An EULA may apply for the use of the App. This is shown to the user or Customer for first use of the App or new version of the App for approval.

Kiosks

The Agreement shows which Services and matters are purchased by the Client in the context of the Kiosks.
The (warranty) conditions that suppliers of the equipment (such as tablets) which equipment is part of a Kiosk apply to the Customer. Therefore, Customer has no more claim to warranty than those (warranty) conditions show. The guarantee must be exercised by the Customer towards the suppliers. At the Customer’s first request, Winedata will provide the Customer with those (warranty) conditions.
If there is no rental of the Kiosks, it applies to the Kiosks that they are delivered by Winedata under retention of title. Therefore ownership of the Kiosks supplied will only be transferred to the Customer after the invoices relating to the delivery of the Kiosk have been paid by the Customer. Until full payment, the ownership of the delivered Kiosks remains with Winedata.
The Agreement shows whether the Kiosks are being bought or rented. If the Kiosks are purchased, the Agreement will also show whether they are being financed. If the Kiosks are financed, the Kiosks are pledged to Winedata by means of a silent pledge. To effectuate the lien, Winedata is entitled to have the Agreement to which the General Terms and Conditions apply, with the marking of this provision, registered with the tax authorities.
As long as there is still retention of title, as long as the financing is still running and during the lease of Kiosks:
a. the Client must take good care of the Kiosks, and the Client must ensure that insurance is in place which covers loss (for example, theft) and / or is wholly or partially destroyed (such as fire and water damage) at the Kiosks;
b. the Client is not permitted to relocate the Kiosks without informing Winedata thereof.
In addition to what is stipulated in Article 12, the Customer is responsible for the timely acquisition of wired internet (ethernet, CAT5 or higher). The operation of a kiosk depends on the quality of the internet connection. Winedata is not responsible for the costs associated with the data traffic caused by Winedata. Winedata is also not responsible for the loss or malfunction of the internet connection. A mains connection must be present at every location of the Client where a Kiosk is installed. The customer is responsible for the mains connection, therefore Winedata cannot accept liability for damage as a result of a (faulty) connection, such as for example damage as a result of a short circuit.

Connections and required communication equipment

Customer is responsible for the timely selection and acquisition of (a) suitable telecommunication facility and (computer) equipment in order to actually use the Services.
The Client acknowledges that the Client is responsible for concluding a contract with a supplier to purchase the services and (computer) equipment as referred to in the previous paragraph.
- Winedata is not liable for the costs relating to the telecommunication facilities and (computer) equipment as referred to in Article 12.1, which costs are caused by the use of the Services.

Applicable law and disputes

Dutch law applies to the Agreement.
Disputes that may arise between the Parties as a result of an Agreement concluded between the Parties or as a result of further agreements that result therefrom, shall be settled by means of arbitration in accordance with the Arbitration Regulations of the Foundation for the Disputes of Automation Disputes, having its registered office in The Hague, one and other without prejudice to the right of each of the Parties to request interim relief and to the right of each of the Parties to take precautionary legal measures (see www.sgoa.org).
Only if Winedata and / or the Client has not yet or has instituted arbitration proceedings in accordance with the Arbitration Regulations for settling disputes as a result of the Agreement concluded between the Parties or as a result of further agreements resulting therefrom. of this foundation, each of the Parties is entitled, but not obliged, to deviate from the aforementioned provisions, to refer the matter to the District Court, Location Kanton if the matter relates to a dispute that according to the legal jurisdiction rules belongs to the absolute jurisdiction of the District Court, Location Canton. If, with due observance of the previous sentence, the case has been brought before the District Court, Location District, by one or more of the Parties for consideration and decision, the District Court District Court is authorized to handle the case and decide on it.
Before initiating an arbitral procedure as referred to in Article 13.2, the most ready party will start an IT Mediation procedure in accordance with the IT Mediation Regulations of the Automation Dispute Resolution Foundation. An ICT Mediation procedure in accordance with these regulations is aimed at mediation by one or more mediators. The other party undertakes to actively participate in an ICT Mediation that has been submitted, to which legally enforceable obligation in any case includes attending at least one joint meeting of mediators and Parties, in order to give this extrajudicial form of dispute resolution a chance. Each of the Parties is free to terminate the ICT Mediation procedure at any time after a joint initial discussion of mediators and Parties. The provisions of this paragraph do not preclude a party that considers it necessary to request a provision in (arbitral) proceedings or take precautionary measures (see www.sgoa.org and www.sgoa.eu).

Other provisions

If one of the provisions of the Agreement or these General Terms and Conditions is invalid or is annulled, the other provisions of the Agreement or General Terms and Conditions will remain in force and the Parties will enter into consultation to agree on a replacement provision.