Terms and Conditions Brockmeyer Vacaturemarketing B.V.

These are the general terms and conditions applying to the services of Brockmeyer Vacaturemarketing B.V. We provide services in the field of Job Marketing. We are located at Hardwareweg 36 in Amersfoort. We are registered with the Chamber of Commerce under file number 64904709.

These general terms and conditions comprise various sections. Section A. General provisions applies to all agreements with Brockmeyer Vacaturemarketing B.V and all services provided by Brockmeyer Vacaturemarketing B.V. Additionally, sections B, C and D may also apply if you procure the services concerned. The provisions in the service-specific sections take precedence in the event of any conflict with the general provisions in section A.

The annex contains the processing agreement and detailed information on personal data and data subjects. The agreements in these annexes will apply if personal data are processed in connection with your agreement with Brockmeyer Vacaturemarketing B.V.

Contents of these General Terms and Conditions.
- Section A. General provisions
- Section B. Job Postings and advice
- Section C. Software
- Section D. Training
- Section E. Resale by Partners
- Annex 1. Processing Agreement
- Annex 2. Detailed information on personal data and data subjects

Module A. General

Article 1. Definitions

The capitalised terms in the General Terms and Conditions have (in their singular as well as plural forms) the meanings set out below:

Academy training: all training, courses or workshops offered by Brockmeyer, other than Customised Training.
Account: the personal account of the Contracting Party or of its end users, through which he or she can access (parts of) the Service.
Customer: Contracting Party procuring the Services from Brockmeyer and/or the natural person or legal entity acting in carrying on a profession or business to whom or which the Services of Brockmeyer are delivered by a Partner without further intervention of Brockmeyer or involvement of Brockmeyer in the agreement between the Partner and the Customer.
General Terms and Conditions: the present terms and conditions including annexes.
API: Brockmeyer’s Application Programming Interface for its Services.
Brockmeyer: Brockmeyer Vacaturemarketing B.V. with its registered office at Hardwareweg 36 in Amersfoort and registered with the Chamber of Commerce under number 64904709.
Contracting Party: the natural person or legal entity, acting in carrying on a profession or business, with whom or which Brockmeyer concludes the Agreement.
Service(s): the services as described in the Agreement.
Intellectual Property Rights: intellectual property rights, including, but not limited to, copyright, database rights, domain names, trade name rights, trademark rights, design rights, neighbouring rights, patent rights as well as rights to know-how.
Job Posting: a vacancy of the Customer placed (by means of an Order executed).
Job Posting Channel: a portal, website or channel offered by a third party on which Job Postings are or can be placed.
Office Hours: the hours between 8:30 and 17:30 (Dutch time) on working days (Monday to Friday), excluding official Dutch national holidays and days on which Brockmeyer has stated in advance that it will be closed.
Customised Training: training customised for the Customer, or training at a location designated by a Customer.
Materials: all websites, applications/web applications, visual identities, logos, texts concerning vacancies or other texts, flyers, brochures, leaflets, lettering, advertisements, marketing and/or communication plans, drafts, images, texts, sketches, documentation, advice, reports and other intellectual creations, as well as the preparatory material for them and the data carriers on which these Materials are located.
Offer: a Written proposal of Brockmeyer, on the basis of which the Agreement can be formed or an Order entered by a Customer by means of the Portal or the API and not approved.
Order: a request from the Customer to Brockmeyer to place a Job Posting.
Agreement: agreement between Brockmeyer and the Contracting Party pursuant to which Brockmeyer will provide, or arrange for the provision of, the Service to the Contracting Party and of which the General Terms and Conditions are an integral part.
Party (Parties): Brockmeyer and the Contracting Party jointly or individually.
Partner: Contracting Party that resells the Service of Brockmeyer for its own account and risk to Customers of its own.
Portal: the software-as-a-service as described in the Agreement that is deployed for delivering the Service.
Written/in Writing: in these General Terms and Conditions, the terms 'Written/in Writing' also include, besides communication put down in writing, communication by email or via the Contracting Party's Account, provided that the identity of the sender and integrity of the contents have been sufficiently established.
Software: the software delivered by Brockmeyer pursuant to the Agreement, including the Portal and, where applicable, the API.
Confidential Information: non-public information that is marked as confidential, in relation to which a Party states that this information is confidential or that, by virtue of the nature of the information or in the circumstances in which it is disclosed, must be treated as confidential.
Website: the website of Brockmeyer, which is accessible via the domain www.brockmeyer.nl, or associated subdomains or other domains of Brockmeyer.

Article 2. Applicability and interpretation

These General Terms and Conditions shall apply to all Offers, all Orders confirmed by Brockmeyer, all activities carried out by Brockmeyer and all agreements between the Contracting Party and Brockmeyer.
Departures from and additions to the General Terms and Conditions shall only be valid if they are agreed in Writing between the parties. Any terms and conditions set by the Contracting Party shall only be binding if and insofar as these have been expressly accepted in Writing by Brockmeyer.
The applicability of any purchase conditions or other terms and conditions of the Contracting Party is expressly excluded.
If any provision in the Agreement is null and void or is nullified, the other provisions of the Agreement will remain in force in full. The Parties shall replace the void or nullified provisions with new provisions, taking into account, to the greatest extent possible, the purport and intent of the void or nullified provision.
The records of Brockmeyer shall be decisive, unless the Contracting Party provides proof to the contrary.

Article 3. Formation of the agreement

All Offers made by Brockmeyer are valid until the date stated in the Offer. If no date is stated, the proposal shall be valid until 30 days after receipt. Brockmeyer is not obliged to accept an indication of acceptance after the expiry of this period, but if Brockmeyer does so, the proposal will be deemed to be accepted. The Agreement shall be formed at the time when the Offer is accepted within the term stated above, or the acceptance after this term is confirmed by Brockmeyer and/or Brockmeyer commences the activities for the Contracting Party.
Offers requested electronically, by means of the Portal or the API, do not have a specific period of validity. If the Contracting Party subsequently confirms and submits an Offer requested electronically, Brockmeyer will assess this. If the data in the Offer have become outdated and/or Brockmeyer is no longer able to deliver the Service (at the price concerned), Brockmeyer shall at all times be entitled to refuse the request.
Brockmeyer shall only be bound by an acceptance by a potential Contracting Party that differs (on subordinate or other points) from a proposal made by Brockmeyer if Brockmeyer expressly accepts the differing acceptance in Writing and the Agreement is also formed in this manner.
If the Contracting Party does not explicitly state that it agrees to the Offer, but nevertheless agrees to Brockmeyer carrying out activities or delivering products that fall within the scope of the description of the Offer or the proposal, or gives that impression, the Offer or the proposal is deemed to have been accepted and the Agreement shall also be formed. The same applies if the Contracting Party requests Brockmeyer to carry out certain activities or to deliver products without waiting for an Offer.
The Contracting Party guarantees that the data and texts provided to Brockmeyer are correct and complete.
The application of Sections 227b (1) and 227c of Book 6 of the Dutch Civil Code is excluded.

Article 4. Performance of the Agreement

After the formation of the Agreement, Brockmeyer will endeavour to commence the performance of the Agreement as soon as possible. Any delivery or other periods stated by Brockmeyer are indicative and are not to be considered as strict deadlines.
The Contracting Party shall provide to Brockmeyer all the support that is required and desirable to enable the correct and timely delivery of the Services. In any case, the Contracting Party shall provide to Brockmeyer all data and other information in relation to which Brockmeyer states that these are necessary, or which the Contracting Party should reasonably understand to be necessary for the performance of the Agreement, and also provide access to all locations, services and accounts managed by it if and to the extent required for the performance of the Agreement.
Brockmeyer is entitled to engage third parties for the performance of the Agreement.
If the performance of an assignment is part of the Agreement and the assignment was issued with a view to that assignment being performed by a specific person, Brockmeyer can also have the assignment performed, under its responsibility, by another person.
If the staff of Brockmeyer or third parties engaged by Brockmeyer carry out activities at the offices of the Contracting Party or at a location designated by the Contracting Party, the Contracting Party shall provide free of charge all reasonable support and facilities required for this.
If the Contracting Party requests supplementary work or services falling outside the scope of the Agreement, i.e. requests contract extras, the Parties will consult on this and Brockmeyer can prepare a proposal. Brockmeyer will not carry out the contract extras until the Contracting Party has accepted the proposal. Brockmeyer shall never be obliged to carry out contract extras if the Customer requests this.

Article 5. Intellectual Property Rights

All Intellectual Property Rights pertaining to the (elements of the) Service, including Software and Materials made available or supplied by Brockmeyer, are vested and shall continue to be vested in Brockmeyer or its licensors.
The Customer is not authorised to make modifications to any Software made available in connection with the Services and is not entitled to a copy of any source files thereof, except in cases in which that is permitted by mandatory law, the Parties have agreed otherwise or Brockmeyer has given permission in Writing to the Customer.
Brockmeyer can take technical and other measures to protect the Software. Where Brockmeyer has implemented such security measures, the Customer may not remove or circumvent, or arrange for the removal or circumvention of, that security.
The Customer is not permitted to remove from the Services or modify any designation of Intellectual Property Rights, insofar as this is not intended by Brockmeyer with a view to the white label forwarding of the Service and the Customer has Brockmeyer's permission in Writing for this. It is also not permitted to remove from the Services any designation concerning their confidential nature.
All Intellectual Property Rights pertaining to Materials and data supplied by the Customer shall continue to be vested in the Customer. The Contracting Party indemnifies Brockmeyer against all third-party claims due to infringement of any Intellectual Property Right or other right owing to these data or Materials as stemming from the Customer.
Brockmeyer is permitted to use the (company) name, the logo and a general description of the Contracting Party for its own promotional purposes and/or publicity.

Article 6. Support

Brockmeyer shall provide a reasonable level of support to the contact persons at the Contracting Party designated in the Agreement with regard to questions concerning the Service. Support will be provided during Office Hours.
The support as described in the preceding provision will be offered via a help desk that can be reached during Office Hours by email (support@brockmeyer.nl) for support to be provided to the designated contact persons.
Brockmeyer endeavours to handle requests submitted to the help desk within a reasonable term. The time needed to respond to and resolve reported issues may vary.
If the Contracting Party reports a defect in the Service to Brockmeyer, this will only be accepted for processing if the defect is a demonstrable defect.
The Contracting Party can request Brockmeyer to provide an export of data generated by means of the Service. Brockmeyer will inform the Contracting Party what data can be exported and may charge an additional compensation for this export.

Article 7. Advice and reporting

The completion time of an assignment in the field of advice depends on various factors and circumstances, including but not limited to the quality of the data and information provided by the Customer and the cooperation of the Customer and relevant third parties. Brockmeyer shall not be liable for any damage or loss suffered by the Customer due to delays arising from this.
The use that the Customer makes of any advice, report or reporting provided by Brockmeyer shall always be at the Customer’s risk.
Without Brockmeyer’s prior Written permission, the Customer is not entitled to disclose Brockmeyer’s way of working, methods and techniques and/or the content of Brockmeyer’s advice, reports or reporting to third parties.
If the Parties have included this in the Agreement, Brockmeyer shall periodically provide information, in the manner agreed in Writing, about the performance of the activities. The Customer shall notify Brockmeyer in Writing in advance of circumstances that are or may be relevant.

Article 8. Personal data and security measures

Agreements concerning the processing and the protection of personal data by Brockmeyer are laid down in the processing agreement included in Annex 1 of these General Terms and Conditions.

Article 9. Confidentiality

The content of the Services and the Agreement shall in any case be Confidential Information.
The prices, discounts, rates, price lists and personal prices for the Contracting Party applied by Brockmeyer are Confidential Information. The Contracting Party guarantees that strict confidentiality will be observed with regard to this content.
Both Parties will keep Confidential Information strictly confidential and only use it insofar as that is necessary for the performance of the Agreement.
The receiving Party will ensure that the Confidential Information is given the same level of protection against unauthorised access or use as its own confidential information, but at least a reasonable level of protection.
The Parties shall also impose the obligations described in the two preceding paragraphs on employees, Customers and any third parties that may be engaged to whom or which the Confidential Information is disclosed.
This obligation to observe confidentiality remains in force after termination of the Agreement for any reason whatsoever, and for as long as the disclosing Party can reasonably lay claim to the confidential nature of the information.
The duty of confidentiality does not apply to information that:
1. is public or becomes public without the receiving Party breaching its duty of confidentiality;
2. is lawfully made available to the receiving Party by a third party that is not subject to an obligation to observe confidentiality;
3. has been designated in Writing as non-confidential by the other Party; or
4. the receiving Party discloses the information to a third party pursuant to a legal obligation or court order, provided the receiving Party informs the disclosing Party of the legal obligation or the court order and gives the disclosing Party an opportunity to lodge an objection or appeal or to seek other legal remedies against the disclosure of the information concerned.

Article 10. Staff and competition

For the duration of the Agreement plus one year after the Agreement has ended, the Contracting Party is not permitted to employ any of Brockmeyer's employees or to allow such employees to work for the Contracting Party in any other manner, either directly or indirectly, without Brockmeyer’s prior permission in Writing.
In this connection, Brockmeyer's employees are understood to be persons employed by Brockmeyer or by one of its affiliates, or those who were employed by Brockmeyer or by one of its affiliates no longer than one year ago.
Brockmeyer is free to deliver to third Parties besides the Contracting Party, even if they are competitors of the Contracting Party. Brockmeyer shall never disclose personal data or Confidential Information of the Contracting Party and Customers to other potential customers for the Services.
Except with permission in Writing to do so, the Contracting Party shall not, during the Agreement and 1 year thereafter, engage in or arrange for the delivery of similar services to clients of Brockmeyer, nor attempt to do so. The above shall however not apply if these clients approach the Contracting Party independently and without any initiative on the part of the Contracting Party.

Article 11. Liability and force majeure

Brockmeyer is only liable in respect of the Contracting Party for direct loss or damage arising from an attributable failure in the performance of this Agreement. Direct loss or damage must be understood to mean exclusively any loss or damage ensuing from:
1. the damage caused directly to tangible objects ('property damage');
2. the reasonable and demonstrable costs the Contracting Party has had to incur in demanding that Brockmeyer properly perform the Agreement (again);
3. the reasonable costs incurred in determining the cause and the extent of the damage or loss, insofar as it relates to direct damage or loss as referred to here;
4. the reasonable and demonstrable costs incurred by the Contracting Party to ensure that the performance complies with the Agreement;
5. the reasonable and demonstrable costs incurred by the Contracting Party to prevent or minimise the direct damage or loss as referred to in this article.
The total liability of Brockmeyer in respect of the Contracting Party due to attributable non-compliance with an Agreement or otherwise is limited for each event (for which purpose a series of related events counts as a single event) to a maximum amount of 1,000 euros (one thousand euros) (excl. VAT), subject to a maximum of 10,000 euros (ten thousand euros) per annum.
With regard to Partners, in derogation from the preceding paragraph, the total liability of Brockmeyer in respect of a Partner, due to attributable non-compliance with an Agreement or otherwise is limited for each event (for which purpose a series of related events counts as a single event) to a maximum amount of 10,000 euros (ten thousand euros) (excl. VAT), subject to a maximum of 100,000 euros (one hundred thousand euros) per annum.
The liability of Brockmeyer due to attributable non-compliance with the Agreement shall come into effect only if the Contracting Party sends Brockmeyer without delay but within 30 days at the latest proper Written notice of default, setting a reasonable period of time in which to comply, and Brockmeyer continues attributably to fail to meet its obligations after that period of time. The notice of default must describe the non-compliance in the greatest possible detail, so as to enable Brockmeyer to provide an adequate response.
However, any limitations of liability in the Agreement will cease to apply if and insofar as any loss is the result of intent or deliberate recklessness of the management of Brockmeyer, or in the event of damage or loss due to death or physical injury.
Application of Section 6:271 et seq. of the Dutch Civil Code is excluded.
The Contracting Party indemnifies Brockmeyer against all claims by third parties, including Customers contracted by the Contracting Party, which involve compensation for damage or loss, costs or interest, relating to this Agreement.
If the Contracting Party (or its Customer) violates the provisions of article 8 (confidentiality) and/or 9 (staff and competition), the Contracting Party shall incur for this, without any demand or notice of default being required, a penalty immediately due and payable to Brockmeyer of 20,000 euros (twenty thousand euros) for each instance of a violation. This penalty stipulation does not impair Brockmeyer's right to full compensation from the Contracting Party.
Brockmeyer cannot be obliged to perform any obligation under the Agreement if performance is prevented due to force majeure. Nor can Brockmeyer be held liable for any loss or damage arising therefrom.
Force majeure will in any case be understood to include power outages, internet failures, failures in the telecommunications infrastructure, network attacks (including (D)DOS attacks), attributable failures of suppliers, attacks by malware or other harmful software, internal civil commotion, mobilisation, war, terror, strikes, import and export barriers, a stagnation in supplies, fires, and floods.
If a force majeure situation has lasted for more than 90 (ninety) days, both Parties shall be entitled to terminate the Agreement In Writing with immediate effect.

Article 12. Compensation and payment

The Contracting Party will pay Brockmeyer a compensation for the Service as stated in the Agreement. Certain compensation for components of the Service may be specified in detail in the Portal.
Unless expressly stated otherwise, all prices referred to by Brockmeyer exclude turnover tax (VAT) and other duties levied by the government.
Prices may be increased or decreased at any time by Brockmeyer in the interim if the rates of its suppliers increase or market conditions change.
Brockmeyer is authorised to invoice the Contracting Party in advance for any one -off amounts payable.
Brockmeyer can send electronic invoices to the email address of the Contracting Party that is known to Brockmeyer. The Contracting Party agrees to this invoicing method.
Unless agreed otherwise in Writing, the payment term is 14 (fourteen) days after invoice date.
The Contracting Party will be in default by operation of law in the absence of payment from the due date of the invoice, without prior notice of default being required. Brockmeyer is then entitled to charge the Contracting Party the full amount due, plus the statutory commercial interest on the amount owed calculated from the due date.
Notwithstanding the above, all costs associated with the collection of outstanding amounts – both judicial and extrajudicial (including lawyer, enforcement agent and collection agency fees) – shall be borne by the Contracting Party.
The Contracting Party is not entitled to set off any payment obligation to which the Contracting Party is subject against any claim in respect of Brockmeyer for whatever reason or to suspend obligations, regardless of the grounds for this. Brockmeyer is entitled to set off the claims of the Contracting Party on Brockmeyer against any claims, for whatever reason, of Brockmeyer on the Contracting Party.

Article 13. Amendment of the General Terms and Conditions

Brockmeyer retains the right to make unilateral changes or additions to the General Terms and Conditions, including in relation to existing Agreements. Contractual amendments also apply with respect to Agreements already concluded subject to a term of 30 (thirty) days following the announcement of the amendment via the Portal or by email to the Contracting Party.
If the amendment(s) referred to above have a significant negative impact on the (application of) the Services or the Contracting Party's position, the Contracting Party may terminate the Agreement, provided Brockmeyer receives notice of termination prior to the date on which the change takes effect.
Minor amendments, amendments on the basis of the law and amendments to the benefit of the Contracting Party or Customers can be implemented at any time.

Article 14. Duration and end of the Agreement

The duration of the Agreement is laid down in the Agreement. If no duration is stated with regard to a continuing performance agreement, the latter shall be entered into for a duration of 1 year and shall be tacitly extended by the same term in each instance and may be terminated in Writing at any time with immediate effect.
A once-only Agreement shall continue until the completion of the Agreement.
Brockmeyer can suspend or terminate the Agreement at any time and with immediate effect without any notice of default being required if:

the other Party has been declared bankrupt;
the other Party has been granted a moratorium;
the business of the other Party is dissolved or liquidated;
attachment has been levied on all or part of the assets of the other Party.

If the Contracting Party is in default with regard to a significant obligation in respect of Brockmeyer, Brockmeyer will be entitled to suspend or terminate or dissolve the Agreement with immediate effect, without the Contracting Party being able to claim any compensation as a result.

Article 15. Other

The Agreement is subject to Dutch law.
Insofar as not provided for otherwise under the rules of mandatory law, all disputes arising from or connected with this Agreement will be referred to the competent court in the court district in which Brockmeyer has its registered office, subject to the proviso that Brockmeyer shall also be at liberty to refer the dispute to a court having jurisdiction on other grounds.
All legal claims of the Contracting Party under this Agreement shall lapse – with the exception of mandatory legal provisions – after the expiry of one year, to be calculated from the date on which fulfilment of the obligations arising from the Agreement between the Parties became demandable. This article shall not affect the standard time limit for Brockmeyer’s claims.
The Contracting Party authorises Brockmeyer in advance, without being required to have the Contracting Party's express permission, to transfer the Agreement concluded between the Parties in full, or parts thereof, to parent companies, sister companies and/or subsidiaries or a third party in the case of a merger or acquisition. Brockmeyer shall notify the Contracting Party if such a transfer has taken place.

Section B. Job Postings

The provisions in this section apply if Brockmeyer provides services in the field of placement of Job Postings.

Article 16. Responsibilities with regard to Job Postings

Brockmeyer is not responsible for the content of the Job Postings distributed by means of the Service, unless these Job Postings have been drawn up by Brockmeyer and the Parties have expressly agreed that Brockmeyer will assume this responsibility. Any form of (standard) checks that Brockmeyer carries out on the content of Orders and Job Postings shall always be without guarantees with regard to their correctness or accuracy. The Customer must at all times itself check Orders and Job Postings.
Brockmeyer offers no guarantees with regard to and does not guarantee the result, success or success rate of a Job Posting. Brockmeyer shall under no circumstances be liable for any damage or loss if a Job Posting does not produce the expected or intended results.
In delivering components of the Service, Brockmeyer is dependent on third parties such as the Job Posting Channels. Job Posting Channels offered in the Service may apply additional terms and conditions for placing Job Postings and the content of Job Postings. The Customer is itself responsible and liable for complying with those terms and conditions and for ensuring that the Order and Materials supplied to Brockmeyer comply with the conditions of the Job Posting Channel where the Job Posting is to be placed.
The Customer is itself responsible for entering, or supplying on Brockmeyer's request, the information required for the Job Posting. Brockmeyer will inform the Customer what information is required, which may vary per Job Posting Channel. If the Customer does not provide this information (in a timely manner), Brockmeyer cannot guarantee (correct) placement of the Job Posting. Brockmeyer shall not be liable for any damage or loss arising from this.
If Brockmeyer receives notification from a Job Posting Channel that the Job Posting does not comply with the conditions of the relevant Job Posting Channel, Brockmeyer shall be entitled to proceed to move, or arrange for moving, the Job Posting offline. Brockmeyer is not liable for any damage or loss suffered by the Customer as a result of this.

Article 17. Orders

The Customer can place Orders by means of the Portal and via email (sales@brockmeyer.nl).
Brockmeyer will endeavour to confirm submitted Orders within a reasonable period of time, or to reject them stating the reasons for this.
Brockmeyer will endeavour to execute approved Orders within a reasonable period of time. Brockmeyer is however dependent for this on the Job Posting Channels concerned, which may apply differing placement time frames over which Brockmeyer has no control. Brockmeyer is not liable for delays as a result of placement time frames of Job Posting Channels.
If it is not possible to place the Job Posting on a specific Job Posting Channel selected by the Customer, due to unavailability of the Job Posting Channel, Brockmeyer may, but is not obliged to, place the Job Posting on another similar Job Posting Channel.
After placement of the Job Posting, the Customer will receive a confirmation stating the Job Posting Channels on which the Job Posting has been placed.
Brockmeyer shall not be liable or responsible for any cross-postings of Job Postings by job banks.

Article 18. Job Posting Channels

The Customer may request Brockmeyer to add a specific new Job Posting Channel to its Service. If the Customer submits such a request, Brockmeyer will assess this request and process it.
Brockmeyer will endeavour to approve the request referred to in the preceding paragraph within a reasonable term, or to reject it, at Brockmeyer's discretion. Brockmeyer shall be entitled at all times to reject such a request, without stating any reason, unless agreed otherwise between the Parties.
If Brockmeyer approves the Customer's request, Brockmeyer will endeavour to integrate the new Job Posting Channel in the Service within one month.
Brockmeyer will endeavour to keep the information relating to (available) Job Posting Channels that is available in the Service up-to-date and correct at all times. Brockmeyer does not provide any guarantees for this, however.

Section C. Software

The provisions in this section apply if Brockmeyer provides services in connection with Software that (partly) enable the Customer to use the Portal and/or the API.

Article 19. Right of use for Portal

For the duration of the Agreement and subject to the conditions of the Agreement, Brockmeyer grants to the Customer a non-transferable, non-sublicensable and non-exclusive right to use the Portal.
The right of use referred to in the previous paragraph is also taken to mean all future updates of the Portal.

Article 20. Account

The Customer may require an Account for the Portal in order to make use of (certain elements of) the Service. Brockmeyer will provide login details for one (or more) Account(s) to the Customer. The Customer is responsible for choosing a strong password in this connection at all times.
An Account and the login details are strictly personal and must not be shared with any other person. The Customer and/or End User must treat the login details as confidential.
The use of Accounts falls under the responsibility and risk of the Customer. Brockmeyer may assume that all the activities carried out through the Accounts take place under the supervision and control of the Customer.
If login details of an Account have been lost or leaked, the Customer will immediately take all measures that are reasonably required and desirable to prevent abuse of the Account. These measures may for instance consist in changing the password. The Customer shall also immediately notify Brockmeyer, to enable possible additional measures to be taken to prevent abuse of the Account.

Article 21. API

If the Parties have agreed that the Service (partly) includes the use of an API, Brockmeyer will provide an API to the Customer that the Customer can use subject to the conditions of the Agreement and for the duration of the Agreement. The right to this use is non-transferable, non-sublicensable and non-exclusive.
Authentication is required to use the API. An API key is only to be used by the Customer. The Customer is responsible for implementing the API.
In addition, the Customer must only use the API key for the use of the API by the Customer. Third parties are not permitted to use the API key without permission in Writing from Brockmeyer.
The use of the API must be reasonable (‘fair use policy’). In particular, the use by the Customer must not deviate extremely from the average. An extreme deviation will be deemed to apply if the Customer regularly uses the API more often, in Brockmeyer's opinion, than the average. In addition, Brockmeyer may temporarily limit or discontinue the use of the API in the event of maintenance, malfunctions or abuse.
If the Customer exceeds the normal use of the API, Brockmeyer shall not be liable if the API is no longer accessible or no longer operates properly. In addition, Brockmeyer is entitled to charge costs for the excessive use at Brockmeyer's rates applying at that time. Further, Brockmeyer is entitled to limit or block access to the API.

Article 22. User rules and notice-and-takedown

The Customer guarantees that the Software will not be used for activities that violate any applicable laws and regulations. Moreover, it is expressly prohibited (regardless of whether this is lawful or not) to offer, store or distribute any Materials via the Software that:
1. incorporate malicious content (e.g. malware or other damaging software);
2. infringe on the rights of third parties (e.g. Intellectual Property Rights), or in Brockmeyer's opinion are defamatory, libellous, offensive, discriminatory or inflammatory;
3. violate the privacy of third parties, in any case including but not limited to the distribution of the personal data of third parties without permission or necessity; or
4. contain hyperlinks, torrents or links to (the location of) Materials that infringe copyrights or other Intellectual Property Rights;
The Customer will refrain from hindering other clients or inflicting damage on the systems or networks of Brockmeyer or (other) clients of Brockmeyer. The Customer is forbidden from starting up processes or programs, via Brockmeyer's systems or otherwise, which the Customer is aware or may reasonably assume will obstruct or inflict damage or loss on Brockmeyer or its clients.
If the Customer fails to comply with the rules of use as described in paragraph 1 and paragraph 2 of this article, Brockmeyer shall be entitled to terminate the Agreement with immediate effect, without prejudice to its right to additional compensation. The Customer shall under no circumstances be entitled to compensation for damage or loss as a result of this termination of the Agreement by Brockmeyer.
If, in Brockmeyer's opinion, the operation of the computer systems or network of Brockmeyer or third-parties and/or the services provided through the internet threaten to be hindered or damaged or are otherwise at risk, in particular as a result of the transmission of excessive amounts of email or other data, (distributed) denial-of-service attacks, inadequately secured systems or virus activities, Trojan horses and similar software, Brockmeyer is authorised to take all reasonable measures it deems necessary to avert or prevent such risk. Brockmeyer may recover the costs that are reasonably associated with these measures from the Customer.
If in Brockmeyer's opinion the Services are being used to store or distribute unlawful Materials, or the Services are being used to otherwise act unlawfully or in breach of the Agreement, Brockmeyer may block the Account of the Customer and/or remove the Materials concerned, without being required to make a back-up. Brockmeyer will endeavour to prevent this from affecting other Materials and will inform the Customer as soon as possible of the measures taken.
Brockmeyer is authorised to provide the name, address and other data identifying the Customer to a third party who has complained that the Customer has violated its rights, provided that:

it is sufficiently plausible that the Materials, on their own, are unlawful and harmful with regard to the third party;
the third party has a genuine interest in obtaining the data;
it is plausible that, in the specific case, there is no less far-reaching measure to obtain the data;
the weighing of the interests involved entails that the third party’s interest should prevail.

In the event that the Materials concern Materials that may involve a criminal offence, Brockmeyer is entitled to report this to the authorities. Brockmeyer may in this connection hand over the data and all relevant information on the Customer and third parties (including clients of the Customer) to the competent authorities and perform all other acts that these authorities request Brockmeyer to perform as part of the investigation.
Brockmeyer shall under no circumstances be liable for damage or loss of any nature whatsoever incurred by the Customer as a result of the shut-down of the Service or as a result of the removal of the data or the disclosure of personal data.
The Customer indemnifies and will hold Brockmeyer harmless against any type of claim, charges or proceedings instituted by a third party in connection with the content of the data traffic or data placed on or distributed via the Service by the Customer, the clients of the Customer and/or other third parties.

Article 23. Availability and maintenance

Brockmeyer will endeavour to ensure the uninterrupted availability of its systems and networks but provides no guarantees to that effect, unless the Parties have agreed otherwise in a service level agreement.
The Customer accepts that the Software contains only the functionality and other features in the condition in which the Customer finds them in the Software at the time of completion/delivery ('as is'), hence with all visible and invisible errors and defects.
Brockmeyer will endeavour to remedy problems/defects in the Software. Brockmeyer provides no guarantees to that effect, however.
The Customer is required itself to check the processing of Materials carried out by the Software. Brockmeyer does not guarantee that all processing will be free of error at all times.
Brockmeyer has the right to take its Software or parts thereof temporarily out of operation for the purpose of maintenance, modification or improvement. Brockmeyer will endeavour to ensure that such inoperative periods take place outside Office Hours as far as possible and to inform the Customer in good time of the planned inoperative periods.
If Brockmeyer is of the opinion that taking the Software out of operation - whether or not during Office Hours - is essential for ensuring the proper operation of the Software, Brockmeyer is entitled to take the Software out of operation without delay without notifying the Customer in advance. However, Brockmeyer shall under no circumstances be liable for any compensation for damage or loss arising from such inoperative periods.
Brockmeyer may modify the functionality of the Software from time to time. While Brockmeyer welcomes feedback and suggestions from the Customer, Brockmeyer has the right not to carry out any modifications.
Brockmeyer aims, but is not obliged, to provide advance notification that updates with functional modifications will be carried out. Under no circumstances may the Customer continue to use the old version of the Software or be entitled to an announced update that has not been implemented due to circumstances, unless Brockmeyer states that the old version can continue to be used.
It is not possible to implement customised modifications in the Software (such as functional and/or other modifications specifically developed or added for the Customer).

Section D. Training

The provisions in this section apply if Brockmeyer provides services in the field of placement of training or courses.

Article 24. Training provided by Brockmeyer Academy

If the delivery of the Service (also) includes the provision of one or more Academy training courses to the Customer, the conditions in this article shall apply.
In the case of an Academy training course, Brockmeyer will ensure the necessary facilities.
Acceptance for participation is in order of registration. Brockmeyer will confirm the registration by email or refuse it, stating the reasons for this. If a registration of the Customer only reaches Brockmeyer after the maximum number of registrations has been reached, Brockmeyer will inform the Customer in good time and retain the registration and subsequently accept it in the event of a cancellation by another participant.
Brockmeyer may change the location, date and time of an Academy training course. Brockmeyer will notify the Customer of this no later than two (2) weeks before commencement of the Academy training course. If a Customer does not wish to accept such a change, the Customer is permitted to cancel its registration in Writing provided the cancellation is received at least one week before commencement of the Academy training course.
If there are insufficient registrations for an Academy training course, to be determined at Brockmeyer's discretion, Brockmeyer is entitled to cancel the training course at any time. The Customer will be informed of this in good time.

Article 25. Customised training

If the delivery of the Service (also) includes the provision of Customised training to the Customer, the conditions in this article shall apply.
In the case of Customised training at a location designated by the Customer, the Customer shall be responsible for ensuring the facilities that are necessary for the Customised training (including in any case adequate and suitable space for the training, computers, beamers, internet connection) as well as for handling the registrations.
If the provision of the Customised training has been agreed with a view to being provided by a specific person, Brockmeyer can also arrange for the Customised training to be provided, under its responsibility, by another person.

Section E. Resale by Partners

The provisions in this section will additionally apply if the Contracting Party is also a Partner and resells the Services of Brockmeyer to Customers. In the event of any conflicts between this section and any other section of the General Terms and Conditions, the provisions in the present section shall take precedence.

Article 26. Resale

Brockmeyer grants the Partner the right to use the Services and to resell them to Customers in its own name and for its own risk, within the scope of the provisions in this Agreement. The aforementioned right is non-exclusive, non-sublicensable and non-transferable, and is valid for the duration of and in accordance with the provisions in the Agreement.
Where the Agreement and these General Terms and Conditions impose obligations on and lay down agreements that are applicable in respect of Customers, those provisions must to the same extent also be imposed by the Partner on Customers and/or the agreements also imposed by the Partner on Customers must contain the same guarantees as a minimum. The Partner is fully responsible and liable for the Customers contracted by it.

Article 27. Conditions of sale for Partners

Brockmeyer offers the Partner the possibility of purchasing the Services and reselling them for its own account and risk. Brockmeyer is therefore not a party to the agreements that the Partner concludes with Customers.
The Partner is not permitted to give rise to the impression or to present itself in a way that gives rise to confusion about the nature of the relation of the Partner with Brockmeyer. The Partner may not represent itself as being part of Brockmeyer or an agent or employee of Brockmeyer, unless otherwise expressly agreed in Writing.
The Partner will likewise impose relevant provisions from the Agreement and other applicable conditions regarding the Service concerned on the Customers or also impose comparable conditions, providing a comparable or higher level of safeguards for the agreements set out in this Agreement.
Brockmeyer is entitled to ask for and inspect agreements with Customers.
On Brockmeyer's request, the Partner shall cooperate in promotional activities of Brockmeyer. The Partner may charge reasonable costs for doing so.
Brockmeyer may at all times provide non-binding recommended prices to the Partner for the sale of the Service.
The Partner is not entitled to remove any references to Brockmeyer from the Service and/or to introduce references to the Partner in the Service, except with Brockmeyer's Written permission.

Article 28. Obligations of Brockmeyer

Brockmeyer shall provide all reasonably necessary cooperation to the Partner in connecting Customers of the Partner. The Partner shall however itself be responsible for connecting Customers.
Brockmeyer will endeavour to warn the Partner in good time if Brockmeyer envisages that it will be impossible to enter into or perform new agreements with Customers.
Brockmeyer will regularly inform the Partner of matters regarding the Service that Brockmeyer deems relevant for the Partner, such as technical developments, updates, patches, changes, etc.
Brockmeyer will provide the Partner with the required information material at its discretion. At the request of the Partner, Brockmeyer will, against payment, provide information material for Customers of the Service as well.

Article 29. Support

The Partner will offer its Customers a reasonable level of support in using the Services. Brockmeyer may formulate additional guidelines in consultation with the Partner for the purpose of providing this level of support, to which guidelines the Partner will conform.
If in Brockmeyer's opinion the level of support provided by the Partner does not comply with the preceding paragraph, the Partner shall be required to take part in a training course and/or programme of Brockmeyer to enable it to provide a reasonable level of support for its Customers. Brockmeyer may charge costs to the Partner for this.

Article 30. End of the Agreement

The duration of the Agreement is laid down in the Agreement. If no duration is stated with regard to a continuing performance agreement, the latter shall be entered into for a duration of 1 year and shall be tacitly extended in each instance and may be terminated in Writing observing a period of notice of at least 3 months with effect from the end of that period.
Brockmeyer is entitled to approach the former Customers after the termination of the Agreement with a view to concluding new agreements.

Annex 1. Processing Agreement

Article 1. Scope of application and definitions

If Brockmeyer (referred to hereinafter as: 'the Processor') processes personal data in the performance of the Agreement for the Customer (referred to hereinafter as: 'the Controller'), the present processing agreement (referred to hereinafter as: 'Processing Agreement') shall apply in addition to the General Terms and Conditions.
In the event of any conflict between the provisions of this Processing Agreement and other provisions in the General Terms and Conditions or Agreement, the provisions in this Processing Agreement shall take precedence.
Where terms are used in this Processing Agreement that correspond with definitions in article 4 of the GDPR, those terms shall have the meaning of the definitions in the GDPR.
The following definitions apply to the terms or wording used in this Processing Agreement:

GDPR: Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
Data breach: means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed (as referred to in article 4.12 of the GDPR);
Sub-processor: the party that processes the personal data on the instruction of the Processor.

Article 2. Commencement date and duration

This Processing Agreement commences at the time when the Agreement between the Parties is formed.
The duration of this Processing Agreement is identical to the duration of the Agreement.

Article 3. Subject matter of this Processing Agreement

The Processor shall process the personal data made available by or via the Controller solely on the instruction of the Controller in connection with the performance of the Agreement and for the purposes determined in Writing by further agreement.
The Processor will endeavour, in connection with the activities referred to above, to process the personal data made available by or via the Controller with due care.
The processing relates to the purposes of the processing set by the Controller, with regard to the the categories of personal data and data subjects as included in Annex 2 of the General Terms and Conditions.

Article 4. Obligations

The Processor shall process data for the Controller for the purposes referred to in article 3. The Processor uses anonymised data for analytical and statistical purposes, to improve its own service provision. The Processor will only perform other processing operations on and in accordance with the written instruction of the Controller. The Processor will not process personal data for its own purposes.
The Processor shall act in accordance with the GDPR when processing personal data.
The Processor shall inform the Controller immediately if, in its opinion, instructions breach the applicable laws concerning the processing of personal data or are otherwise unreasonable.
The Processor shall, if this is within reason within the scope of its control, provide assistance to the Controller in fulfilling the latter's legal obligations. This concerns providing assistance in fulfilling the latter's obligations under articles 32 to 36 of the GDPR, such as providing assistance in performing a data protection impact assessment (DPIA) and prior consultation for processing operations involving a high risk. The Processor may charge the costs incurred for this to the Controller.
The Controller guarantees that the content, the use and the instruction for the processing of the personal data pursuant to the Processing Agreement are not unlawful and do not infringe any rights of third parties, and indemnifies the Processor against all claims that are related to this.

Article 5. Duty of confidentiality

The Processor is obliged to maintain the confidentiality of the personal data that are disclosed to the Processor by the Controller. The Processor shall ensure that the persons authorised to process the personal data are contractually obliged to maintain the confidentiality of the personal data that come to their knowledge.

Article 6. Duty to report data breaches

After a Data Breach is discovered, the Processor shall inform the Controller thereof without undue delay. In that connection, the Processor shall implement reasonable measures to limit the consequences of the Data Breach and to prevent further and future Data Breaches.
The Processor shall provide assistance to the Controller, taking account of the nature of the processing and the information available to it, with regard to (new developments relating to) the Data Breach.
The notification to the Controller must include in any case include, insofar as known at that time:

the nature of the Data Breach;
the (likely) consequences of the Data Breach;
what categories of personal data are impacted by the Data Breach;
the (proposed) measures to limit the consequences of the Data Breach or to prevent further Data Breaches;
the categories of data subjects;
the (estimated) number of data subjects; and
the contact details for the follow-up of the notification;

Article 7. Rights of data subjects

In the event that a data subject submits a request to exercise his statutory rights set out in Chapter III of the GDPR to the Processor, the Processor will forward the request to the Controller and the Processor may inform the data subject thereof. The Controller will subsequently process the request independently.
In the event that a data subject submits a request to exercise of one of his statutory rights to the Controller, the Processor will, if the Controller so desires, cooperate in this insofar as this is possible and reasonable. The Processor may charge the Controller reasonable costs for doing so.

Article 8. Security measures and audit

The Processor will endeavour to implement appropriate technical and organisational measures to protect the personal data that are processed for the Controller against loss or any form of unlawful processing.
The Controller is entitled to arrange for the compliance with the obligations of the Processor in this Processing Agreement to be audited. The Controller can arrange for this to be audited at most once a year by an independent third party that is subject to a duty of confidentiality, if there is a reasonable and well-founded suspicion of a breach of this Processing Agreement.
If an audit has already been performed by an independent third party in any year, the Processor can, by contrast to what is provided in the preceding paragraph, limit itself to providing access to the relevant part of the report on that audit, if another audit is requested within that same year of compliance with the obligations of the Processor in the Processing Agreement.
The Processor and the Controller will decide jointly on the date, the time and the scope of the audit.
The costs of the audit described above shall be borne by the Controller.
The audit and its results shall be treated confidentially by the Controller. The Parties shall decide in mutual consultation what they will do with the results of the audit.

Article 9. Engagement of sub-processors

The Processor can subcontract the performance of the processing in full or in part to Sub-processors without the prior Written permission of the Controller.
At the Controller's request, the Processor will inform the Controller as soon as possible of the Sub-processors engaged by it. The Controller is entitled to lodge an objection, stating reasons, to any Sub-processors who are new or are to be changed, in Writing and within two weeks after the notification concerning this has been sent by the Processor. If the Controller lodges an objection, the Parties will enter into consultation in order to reach a solution.
The Processor shall also inform the Controller, upon request, of the identity and place of business of Sub-processor(s) already engaged by it.
The Processor shall impose on the Sub-processors engaged by it obligations corresponding to those agreed between the Controller and the Processor.

Article 10. Transfer to third countries

The Processor can process the personal data in countries within and in third countries outside the European Economic Area, provided those third countries ensure an adequate level of protection.
The Controller hereby authorises the Processor to conclude, where required, a standard contract in its name for the transfer from a controller established within the EU to a processor in a third country in accordance with the Commission Decision of 5 February 2010 (2010/87/EU).
The Processor shall inform the Controller, if the Controller expressly requests this, to what third country or third countries the personal data are transferred, unless the Processor is required to process the data under Union law or Member State law to which the Processor is subject. In such a case, the Processor shall inform the Controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.

Article 11. Administrative fine

An administrative fine imposed on the Controller can under no circumstances be recovered from the Processor if the supervisory authority has taken account of the degree of culpability of both Parties in imposing the administrative fine and accordingly imposed the fine(s) on one or both Parties.

Article 12. Termination of the Agreement

Upon the termination of the Agreement, the Processor shall without undue delay, on the request and at the expense of the Controller:

return to the Controller the personal data as they are located on the infrastructure (under the management) of the Processor; or
delete the personal data as soon as possible.

Annex 2. Detailed information on personal data and data subjects

Overview of the categories of personal data and the categories of data subjects:

Categories of personal data

Categories of data subjects

Type: ‘Regular’ personal data

Contact details

Name and address details

Email address.

Telephone number

Fax number

Social media profile

Position

Personal details

Sex

Nationality

Company details

Financial data

Bank account number (IBAN)

VAT number

Chamber of Commerce no.

Sector

Website

Internal references (e.g. order numbers)

Other

IP address

Log-in name

Password

Customer number

Visual material (e.g. photo)

Employees

Clients

Suppliers

Clients

Contractors

Service Providers

Interns

Job applicants