- The Merchant, hereinafter referred to as “Client”, wishes to use a customer-friendly payment method for its customers who place orders via its webshop(s) and who qualify to pay in three (3) equal instalments, without having to take unnecessary financial risks;
- In3 has the necessary knowledge and know-how with regard to Payment in Instalments, thereby offering the Client the opportunity to receive and process payments on behalf of the Client;
- The parties further wish to make agreements about the sale of claims of the Client to In3 or to a third party, with In3 facilitating the Assignment to the third party;
- The parties wish to lay down their agreements with regard to the above in these Conditions of Use.
Article 1 – Definitions
1.1 In these Conditions of Use, the following capitalised terms are defined as stated below:
Reminder Procedure: The procedure to be followed by In3 if a Customer of the Client who has opted to use Payment in Instalments fails to pay within the specified period;
Purchase: The purchase of the Customer within the webshop of the Client, for which the Customer has opted to use Payment in Instalments;
In3: The party that is the Contractor of the Client and that qualifies as the Assignee after Assignment;
Assignor: The party that transfers the Debt in the name of the Assignee in the event of an Assignment;
Assignee: The party that receives the Debt in its name from the Assignor in the event of an Assignment;
Assignment: The Assignor selling the Debt to the Assignee;
Third Party: The party that, as the Assignee, qualifies to take over the Debt from the Client or In3;
Conditions of Use: The conditions for collaboration between the Client and In3, which conditions form an integral part of the agreement, hereinafter jointly referred to as the Agreement;
Payment in Instalments: The online service of In3 which offers the Customer, subject to a positive outcome of the Credit Check, to pay for an order through Payment in Instalments, as part of which one-third (1/3) of the purchase price must be paid immediately after placing the order and the remaining two-thirds (2/3) of the purchase price within 60 days of placing the order, without this causing unnecessary financial risks for the Client;
Customer: Consumers and/or companies that want to purchase products from the Client through the Client’s webshop;
Credit Check: The creditworthiness of the Customer to be verified by In3 within the framework of Payment in Instalments;
Amicable Debt Collection Process: The debt collection process to be carried out by ACCS on behalf of In3 if a Customer of the Client fails to pay during the Reminder Procedure;
Client: The Merchant who wishes to make use of the services of In3;
Portfolio: The total of the Debts that have been transferred to In3 through Assignment after completing the Reminder Procedure and the Amicable Debt Collection Process;
Repurchase: The resale and return by the Assignee to the Assignor of a Debt previously sold and delivered by the Assignor to the Assignee;
Debt: The legal relationship between the Client and the Customer following a purchase agreement concluded between these parties, under which the Customer has opted to use Payment in Instalments, on the basis of which the Client is entitled to receive from the Customer the amount as agreed in the purchase agreement, including associated ancillary rights including but not limited to any default interest, extrajudicial costs and other (collection) costs due.
Article 2 – Payment in Instalments
2.1 In3 provides the Payment in Instalments service to the Client. One-third (1/3) of the purchase price must be paid by the Customer immediately after placing the order with the Client. One-third (1/3) of the purchase price must subsequently be paid to In3 no later than 30 days after the order. The remaining third (1/3) of the purchase price must be paid by the Customer to In3 no later than 60 days after the order.
2.2 The delivery address specified by the Customer must match the billing address. If the delivery address does not match the billing address, In3 and/or the third party have the right to decide against purchasing the Debt or, alternatively, the Assignee will be entitled to cancel the Assignment, as laid down in Article 8 of this Agreement.
2.3 The Client undertakes to ensure that the Customer, after placing an order, is not given the opportunity to adjust the delivery location through (or via the website of) the Client, or through the transport company or via track & trace. If the Client acts in breach of this provision, it is obliged to fully compensate the damage suffered or to be suffered by In3 or another Assignee, without prejudice to the right of In3 or another Assignee to cancel the Assignment pursuant to Article 8 of this Agreement.
2.4 The Client undertakes to actively offer Payment in Instalments to its Customers by displaying (figurative) marks and/or logos of In3 on its website. The Client will at all times observe the instructions of In3 in that respect.
2.5 Except for the purposes referred to in this paragraph, the Client is not permitted to use the intellectual property rights of In3 in any way.
2.6 The Client, on its website, must ensure to make a clear reference to the payment conditions of In3.
2.7 All payments made by In3 to the Payment Service Providers (hereinafter referred to as PSP) must be regarded as a discharge from all obligations. The PSP subsequently pays the received amounts to the Client.
Article 3 – Credit Check
3.1 When a Customer, within the framework of a Purchase, opts for Payment in Instalments, In3 will subject the Customer to a Credit Check. The outcome of the Credit Check determines whether the Customer qualifies for use of the service offering Payment in Instalments. The results of the Credit Check are shown to the Customer by means of a notice granting or rejecting the application for Payment in Instalments. In the event of a positive outcome of the Credit Check, the Customer, in order to complete the Purchase, can opt to use the service offering Payment in Instalments.
3.2 In3 may engage third parties to carry out the Credit Check.
3.3 The costs for the service offering Payment in Instalments, including the Credit Check, are calculated and charged to the Client in accordance with the table below.
|Purchase price order||Fee for Payment in Instalments (exclusive of VAT)|
|€100 to €1000||See the agreement|
|€1000 to €2000||See the agreement|
|€2,000 to €3,000||See the agreement|
The costs are based on a minimum credit score (based on a creditworthiness check) of >800 and <3.5% of outstanding receivables after 120 days.
The fee for the Payment in Instalment service can be charged by In3 to the Client weekly in arrears, but at least once a month in arrears.
In3 reserves the right to change rates in the interim. The Client will be notified of any price changes at least 30 days in advance.
3.4 Within the framework of the Credit Check and Payment in Instalments, the Client provides In3 with all data of the Customer which, in the opinion of In3, are necessary for the provision of its services, including but not limited to surname, first name(s) and initials, date of birth, address, postal code, IP address, telephone number, e-mail address, correspondence, products ordered and invoice amount. In the case of companies, this information must also include the Chamber of Commerce number.
3.5 The Client also has a best effort obligation towards In3 to prevent fraud. The Client must immediately notify In3 of a non-valid and/or a non-existing e-mail address and/or telephone number of a Customer. The Client, after detection, must immediately notify In3 of any (suspected) fraud in relation to an order placed with the Client.
3.6 The Client is not permitted to pass on any costs or another type of fee for the Payment in Instalments service. In3 cannot be held liable for any breach, in whatever form, of this provision. If the Client acts in breach of this provision, it must fully compensate the damage suffered or to be suffered by In3 and assessed during separate follow-up proceedings. In3 is entitled to dissolve the Agreement without prejudice to its right to full compensation.
Article 4 – Payments by the Customer
4.1 All instalments by the Client in connection with the Purchase will be paid to In3.
4.2 If the Client receives a payment from the Customer, the Client will be obliged to immediately notify In3 thereof in writing and to immediately transfer the amount received to In3 in accordance with the instructions to be issued by In3 in that instance. In the event of an Assignee other than In3, In3 will transfer the funds received from the Client to the other Assignee. If the Client proceeds to (partially) credit the invoice, the Client must immediately notify In3 and/or the third party thereof.
4.3 In3 is at all times entitled to set off the funds received from the Customer or funds to be credited against anything the Client owes In3 under this Agreement, irrespective from which Customer Relationship of the Client the amounts received or to be credited and owed by the Client arise.
Article 5 – Amicable Debt Collection Process
5.1 If after the expiry of the final payment deadline, the Customer has not or has not fully complied with the payment obligation pursuant to the Debt, In3, by signing this Agreement and without any (legal) action being necessary, will transfer the collection of the Debt to the private company with limited liability Active Collecting Control & Services B.V. (hereinafter referred to as ACCS) as the collection agent. By signing this Agreement, the Client agrees to the above.
5.2 ACCS takes over the Debt for collection on behalf of In3 and also charges any outstanding interest and extrajudicial collection costs to the Customer.
5.3 The Amicable Debt Collection Process to be pursued by ACCS pursuant to this article consists of sending multiple demand letters, initially by e-mail, then by post, followed by a final collection attempt by telephone.
Article 6 – Assignment
6.1 The Client, should that occasion arise, hereby commits itself to assign to In3, or to a third party, hereinafter also jointly referred to as the Assignee, all Debts of Consumers and/or companies residing and/or established in the Netherlands and which qualify for Assignment pursuant to Article 7, on the day that the Debts arose, more specifically on the invoice date as stated on the invoice that forms the basis of the Debts.
6.2 After the Assignment In3, as the Assignor, is entitled to resell the Debt to a third party, hereinafter also referred to as the Assignee, by means of a subsequent Assignment.
6.3 In3 is further entitled to act only as an intermediary in the sale and delivery of the Debt to an Assignee, by the Client as the Assignor.
6.4 The Client guarantees and warrants the Assignee to be the only party having title to these Debts and is consequently entitled to assign the Debts. The Client grants an irrevocable power of attorney to In3 to perform all (legal) acts that may be necessary within the framework of the Assignment, for each current and future claim. Debts are assigned by means of a Deed of Assignment to be signed by the parties.
6.5 The Assignment will be made known to the Customer by means of a written notice by the Assignee.
6.6 The Deed of Assignment that is entered into between the Client and In3 pursuant to this article forms an integral part of these Conditions of Use. In3 will notify the Client electronically as to which claims against the Customer will be assigned.
6.7 The Debt will be assigned to the Assignee on day 0 after the invoice date. The purchase price of the Debt amounts to 100% of the principal including VAT, minus the costs in accordance with Article 3.3. The Assignee pays the Client the purchase price for the Debts within the agreed upon days of the Assignment. In3 is free to set off any claim it has against the Client, for whatever reason, against the purchase price of the Debt.
6.8 ACCS has the exclusive right to accept and execute the judicial collection of the Debt on behalf of the Assignee.
6.9 In addition to the provisions of the General Terms and Conditions, In3 will not be liable vis-à-vis the Client in respect of any direct or indirect damage or loss suffered by the Client and/or third parties acting at its expense and risk, if this damage or loss results from In3 fulfilling its obligations under these Conditions of Use, except insofar as it concerns intent or gross negligence on the part of In3 and/or further liability that cannot legally be excluded or limited.
6.10 The Client expressly indemnifies In3 against any claim from third parties, being Customers or otherwise, in the broadest sense of the word, resulting from In3 fulfilling its obligations under these Conditions of Use.
Article 7 – Conditions of the Assignment
7.1 Only Debts that meet the following (cumulative) criteria qualify for Assignment:
- The Debt is due and payable, ensues from an agreement between the Client and the Customer, under which the Customer acts as a natural and/or as legal persons residing and/or registered in the Netherlands and to which only the standard payment conditions of the Client have been declared applicable. The Debt can be specified and be substantiated with documents;
- The Debt is not disputed by the Customer, in the sense that no refutation has been submitted as a result of which, in the opinion of In3 and/or the third party, there is no or only a small chance of a positive decision in court;
- The principal of the Debt ranges between a minimum of € 100 and a maximum of € 3,000;
- The Client has performed a Credit Check in relation to the Debt;
- The Debt has not been pending before a bailiff, the Customer has not previously been summoned in the name of a bailiff or any organisation other than ACCS and/or In3;
- The Debt has not been encumbered with any security interest and/or another limited right;
- The Seller is entitled to sell the Debts;
- The Debt does not consist only of credit amounts and does not qualify for set-off or compensation;
- The Customer is a Consumer and/or a company residing and/or established in the Netherlands.
- The delivery address of the Purchase which the Debt relates to is in the Netherlands and does not concern a service point or PO Box and is equal to the billing address. The Client undertakes to ensure that the Customer, after placing an order, is not given the opportunity to adjust the delivery location through (or via the website of) the Client, or through the transport company or via track & trace.
- The Debt does not consist only of additional costs such as dispatch costs and/or costs for payment methods;
- The Customer did not die at the time of the Assignment;
- The Client has proof of delivery of the goods delivered (including serial number, if applicable) and will make these available on request within 7 days.
- The Debt does not consist of any of the following products and/or product groups: iPhones, refurbished iPads, refurbished Apple laptops and refurbished iWatches.
7.2 In3 and/or the third party have the right to reject the Assignment of a Debt subject to a written statement of reasonable grounds, regardless of whether it qualifies for Assignment pursuant to Article 7.1.
7.3 The Client, on demand of In3 and/or the third party, will render In3 and/or the third party all cooperation reasonably possible with regard to any collection activities to be carried out by In3 and/or the third party including but not limited to the provision of information and documentation.
7.4 The Client remains at all times responsible for the VAT payment on the Debt. This responsibility will never be transferred to In3 and/or the third party. In the event of an Assignment to In3 and/or the third party as referred to in Article 6 of this agreement, the Client will reclaim the VAT on the difference between the invoice amount of the Debt that is outstanding and the purchase amount of the Debt that has been received, from the Tax Authorities.
7.5 The Client must immediately notify In3 and/or the third party after becoming aware of (suspected) fraud of a claim already transferred and assigned to In3 and/or the third party. The Client is further obliged to report in the event of fraud in respect of a claim transferred and assigned to In3 and/or the third party.
8.1 In3 and/or the third party are at all times entitled to transfer all or part of a Debt assigned to it back to the Client (“retrocede”), insofar as the Debt or Debts which this Deed of Assignment relates to do not appear to meet the conditions as set out in Article 7 of these Conditions of Use, as well as the documentation and specification provided by the Client appear to be incorrect or incomplete and the Client fails to rectify this in writing within 15 working days of receiving a written request to that end by In3 and/or the third party.
8.2 The delivery of a Debt by the Client to In3 and/or the third party that fails to meet the provisions of Article 7.1 of this Agreement will result in a breach of contract, on the basis of which the Client will have an obligation to undo under this Agreement and the provisions of Section 6: 271 of the Netherlands Civil Code vis-à-vis In3 and/or the third party. The Client’s obligation to undo includes, among other things, the Client rendering all necessary cooperation to a return of the aforesaid Debts by In3 and/or the third party as the (retro) assignor to the Client as the (retro) assignee.
8.3 In the event of a full or partial repurchase of a Debt as referred to in Article 8.1, In3 and/or the third party will notify the Client thereof in writing, stating the grounds for dissolution.
8.4 In the event of Repurchase, the Debt will be transferred back to the Client in accordance with Section 3:94, subsection 3, of the Netherlands Civil Code (undisclosed assignment). In that case, the Client itself is responsible for communicating the Repurchase to the Debtor.
8.5 In that case, the Client, within 10 (ten) working days of this notification, will credit and refund the purchase price that In3 and/or the third party paid to the Client in respect of this debt or these debts, under forfeiture of interest payable of 1% per month and an immediately due and payable fine of € 1,000 (in words: one thousand Euros) per month. Insofar as the Client has not made a refund within 10 (ten) working days, In3 and/or the third party will have the right to set off the amount to be refunded by the Client against any amount still owed by In3 and/or the third party to the Client under any other Assignment. For the sake of completeness, it is noted that after dissolution, the Client once again has title to the Debt and, for that reason, is free to collect it (or have it collected).
Article 9 – Processing of personal details
9.1 Personal data are processed in accordance with Appendix 2: Processor’s Agreement In3. By signing the agreement, the Client expressly agrees to this.
Article 10 – Term of the agreement
10.1 The agreement is entered into for an indefinite period of time subject to a notice period of one month.
10.2 In3, in addition to the other rights vested in it, may at all times terminate the Agreement with immediate effect and without liability for compensation vis-à-vis the Client, in writing, by post or by e-mail:
- if the business of the Client is dissolved, transferred or liquidated;
- if the Client or a third party declares the Client to be insolvent or has been granted a suspension of payments, provisional or otherwise;
- if the Client did not adhere to the instructions concerning the use of the intellectual property rights of In3;
- if the Client fails to fulfil (any of) its obligations under the agreement and has not remedied this within 10 working days of the date of the letter in which the Client is notified of its default.
10.3 After the expiry or termination of this Agreement, the Parties undertake to finalise all current cases, including amicable and/or legal processes, all this in accordance with the provisions of this agreement unless mutually agreed otherwise.
10.4 Each of the parties is entitled to immediately dissolve the agreement if the other party fails to fulfil its obligations under the agreement, subject to being declared in default in writing by registered letter by the other party and after the expiry of a reasonable term to remedy. The agreement is dissolved by means of a notice of termination by registered letter, bailiff’s notification and/or by e-mail with receipt and read confirmation.
10.5 Each of the parties, without any demand or notice of default being required and without judicial intervention, is entitled to dissolve the agreement by registered letter effective immediately if the other party files or is granted a winding-up petition or applies for or is granted a (provisional) suspension of payments.
Article 11 – General Terms and Conditions
11.1 In3 provides its services on the basis of the provisions of the General Terms and Conditions which are appended to these Conditions of Use and which form an integral part thereof, with the explicit exclusion of any general conditions or purchase conditions of the Client.
11.2 Insofar as any provision of these Conditions of Use deviates from the General Terms and Conditions, the provisions of these Conditions of Use prevail.
Article 12 – Final provisions
12.1 All amounts expressed in these Conditions of Use are exclusive of VAT.
12.2 Changes or supplements to the Conditions of Use and/or the appendix are valid only if documented in writing in so-called amendments that are signed by both parties. The lack thereof constitutes the (partial) voidness or voidability of the change or supplement to this Conditions of Use.
12.3 If and insofar as one or more provisions of these Conditions of Use do not prove to be valid or enforceable, they will be replaced by provisions that are and which will regulate the same as the invalid or unenforceable provision(s), as much as possible. The Parties will consult each other further on the precise wording of the replacement provision(s), insofar as necessary.
12.4 These Conditions of Use are governed by Dutch law.
12.5 In the event of a dispute between the Parties about the interpretation of the Conditions of Use and the legal consequences attached to it, the parties will initially attempt to resolve the dispute amicably, insofar as possible. If the amicable dispute resolution failed to lead to a solution, the dispute will be submitted to the competent court in the district of East Brabant.
APPENDIX 1 – GENERAL TERMS AND CONDITIONS
Article 1. APPLICABILITY
- These general terms and conditions apply to all quotations, offers, Instructions, legal relationships and agreements, by whatever name, in respect of which In3 commits/undertakes to perform Work for the Client, as well as to all ensuing Work for In3. These general terms and conditions at all times apply to (offers to perform) Work of In3 (hereafter referred to as “Contractor”) for the Client unless explicitly stated otherwise hereinafter. In3 will be able to rely on the general terms and conditions.
- 2. Deviations from and additions to these general terms and conditions are valid only if expressly agreed in writing in the form of, for instance, a (written) agreement or confirmation of instruction.
- If any condition in these general terms and conditions and in the Agreement is contradictory, the provisions of the Agreement prevail.
- The applicability of the general terms and conditions of the Client is expressly rejected by the Contractor.
- The quotations and/or offers of the Contractor are valid for 30 days after the offer date. The Contractor reserves the right to revoke an offer within 7 days of receiving the Client’s written acceptance. Such revocation will not result in any rights for the Client, nor can the Contractor be held liable in any way for damage caused by the revocation.
Article 2. OBLIGATIONS OF THE CLIENT
- The Client is obliged to provide the Contractor with all documents the latter deems necessary to correctly and promptly execute the Instruction it has been given and to execute it in the desired form and manner.
- The Client guarantees the correctness, completeness and reliability of the documents made available by it, also when provided by a third party unless the nature of the Instruction dictates otherwise.
- The Contractor is entitled to suspend execution of the Instruction until the Client has fulfilled the obligations referred to in paragraphs one and two.
- The Client indemnifies the Contractor against damage resulting from incorrect or incomplete documents.
- Additional costs and additional hours incurred by the Contractor are at the expense and risk of the Client, as well as other damage suffered by the Contractor due to the Client failing to provide the documents required to perform the Work or failing to do so in time or correctly.
- On the Client’s demand, the Contractor must return the original documents provided by the Client.
- 7. If for whatever reason, the customer has dissolved or annulled the Agreement with the Client or had it set aside and has returned the goods, the Client must immediately inform the Contractor thereof.
Article 3. OBLIGATIONS OF THE CONTRACTOR
- The Contractor will execute the Instruction to the best of its ability and with due observance of the applicable laws and regulations.
- The Contractor determines the manner in which the Instruction is executed and has the right to have Work performed by a third party to be appointed by the Contractor.
- 3. The Contractor will ensure the service is provided within a secure online environment.
Article 4. SERVICES OF IN3
- During the term of the Agreement, In3 will provide the Client with the agreed payment service ‘Payment in Instalments’, all this in accordance with the provisions of the Agreement and these General Terms and Conditions.
- 2. The ‘Payment in Instalment’ service includes but is not limited to the performance of consumer and business checks.
- In3 has the right to charge an agreed fee for the checks carried out as stipulated in the Agreement, payable within the applicable payment terms.
Article 5. PRIVACY AND DATA PROCESSING
- The responsibility for the data processed through the services provided by the Contractor rests exclusively with the Client. The Client guarantees the Contractor that the content, use and/or processing of the data are not unlawful and that they do not infringe any third-party right. The Client indemnifies the Contractor against all third-party claims, for whatever reason, in connection with these data or the execution of the agreement.
- 2. Under legislation concerning the processing of personal data (such as the Personal Data Protection Act and the General Data Protection Regulation), the Client has obligations towards third parties, such as the obligation to provide information, as well as giving access to, correcting and deleting personal data of data subjects. The responsibility for fulfilling these obligations rests entirely and exclusively with the Client. The parties will deem the Contractor a ‘processor’ within the meaning of the Personal Data Protection Act. The Client agrees that the Contractor may engage so-called ‘sub-processors’ for a variety of services, all this under the same conditions as described in this article.
- If the Contractor deems this important for the execution of the agreement, the Client, if so requested, will immediately inform the Contractor in writing of the manner in which the Client performs its obligations under legislation concerning the processing of personal data.
- The Client indemnifies the Contractor against claims from persons whose personal data have been registered or are processed within the scope of a personal records database that the client keeps or for which the client is otherwise responsible pursuant to the law, unless the Client demonstrates that only the Contractor is accountable for the facts on which the claim is based.
- The Contractor will render its cooperation to the Client as much as technically possible, in order to ensure the Client meets its obligations. The costs associated with this cooperation are not included in the Contractor’s agreed prices and fees and are fully payable by the Client.
- If under the agreement the Contractor is obliged to provide a form of information security, the security must comply with the specifications regarding security as agreed between the parties in writing. The Contractor does not guarantee that the information security is effective under all circumstances. If the Processor’s Agreement does not explicitly specify and describe the security, the security must comply with a level which, given the prior art, the sensitivity of the personal data and the security implementation costs involved, is not unreasonable.
- If the performance of the agreement involves the use of computer, data or telecommunications facilities, or if it is used otherwise, the Contractor is entitled to assign the Client access or identification codes. The Contractor is entitled to change access or identification codes that have been assigned. The Client will treat the access and identification codes as confidential and with due care and will only disclose them to authorised personnel. The Contractor will never be liable for damage or costs resulting from the use or misuse of access or identification codes, unless the abuse was made possible as a direct consequence of an act or omission on the part of the Contractor.
Article 6. CREDIT MANAGEMENT AMICABLE DEBT COLLECTION PROCESS
- By signing the Agreement, the Client declares it wishes to make use of the services provided by ACCS as stipulated under the Agreement.
Article 7. INTELLECTUAL PROPERTY
The execution of the Instruction by the Contractor does not include the transfer of intellectual property rights that are vested in the Contractor. All intellectual property rights that arise during or ensue from the execution of the Instruction accrue to the Contractor.
- The Client is explicitly prohibited from reproducing, publishing or utilising products containing intellectual property rights of the Contractor or products in which intellectual property rights are vested in respect of their use and with regard to which products In3 has acquired the rights to use, which in this framework includes but its not limited to computer programs, system designs, work methods, advice, (model) contracts, reports, templates, macros and other intellectual products.
- The Client, without prior written permission from the Contractor, is not permitted to make the products referred to in paragraph two available to third parties for purposes other than to obtain an expert opinion regarding the execution of the Work by the Contractor. In that case, the Client will impose its obligations by virtue of this article on third parties it has engaged.
Article 8. FORCE MAJEURE
- If the parties are unable to fulfil their obligations under the agreement as a result of force majeure within the meaning of Section 6:75 of the Netherlands Civil Code, or if they are unable to do so in time or adequately, these obligations will be suspended until the moment that the parties are able to meet them again in the agreed manner.
- If the situation as referred to in paragraph one occurs and continues for more than 1 month, the parties have the right to fully or partially terminate the agreement with immediate effect, in writing, without this resulting in a right to any compensation.
Article 9. REIMBURSEMENTS
- The Work performed by the Contractor will be charged to the Client on the basis of the agreed rates. Payment of the agreed rate does not depend on the result of the Work unless otherwise agreed in writing.
- In addition to the agreed remuneration, the expenses incurred by the Contractor and the invoices of third parties engaged by the Contractor will be charged to the Client.
- The Contractor has the right to request advance payment from the Client.
- The Contractor reserves the right to adjust its rates, prices and fees in the interim. If the rates, fees or prices have changed after the conclusion of the Agreement, yet before the completion of the Instruction, the Contractor is entitled to adjust the agreed rate accordingly.
- Turnover tax will be charged separately on all amounts owed by the Client to the Contractor if so required by law.
Article 10. PAYMENT
- Payment by the Client of the amounts owed to the Contractor must be effected within 14 days of the invoice date, without the Client being entitled to any deduction, discount or set-off, unless agreed otherwise. The day of payment is the day on which the amount due is credited to the Contractor’s account.
- If the Client failed to pay within the period referred to in paragraph one, the Client will be in default by operation of law and from that moment on, the Contractor will be entitled to charge the statutory (commercial) interest rate.
- If the Client failed to pay within the period referred to in paragraph one, the Client will be obliged to reimburse all judicial and extrajudicial (debt collection) costs incurred by the Contractor, which costs are set at an amount equal to 15% of the total outstanding principal, subject to a minimum of € 250 exclusive of VAT. Reimbursement of costs incurred will not be limited to the possible court order to pay the costs of the proceedings.
- In the event of a joint Instruction, Clients are jointly and severally liable for payment of the invoice amount and interest and costs due.
- If in the opinion of the Contractor, the Client’s financial position or payment record gives rise to this or if the Client fails to pay an advance or an invoice within the payment term set for that purpose, the Contractor will be entitled to require the Client to immediately provide (additional) security in a form to be determined by the Contractor. If the Client fails to produce the requested security, the Contractor, without prejudice to any other of its rights, will be entitled to immediately discontinue the further execution of the agreement, while the total amount owed by the Client to the Contractor, for whatever reason, will become immediately due and payable.
Article 11. TERMS
- If a term/date has been agreed between the Client and the Contractor within or before which the Instruction must be executed and the Client fails to: (a) make an advance payment, if one was agreed, or
(b) make the necessary documents available in time, in full, in the desired form and in the desired manner, the Client and the Contractor will consult each other on a new term/date within or before which the Instruction must be executed.
- Terms within which the Work must have been completed can only be regarded as final deadlines if expressly agreed between the parties in so many words.
Article 12. LIABILITY AND INDEMNITY
- The Contractor is not liable for damage or loss suffered by the Client because of the Client having provided the Contractor with incorrect or incomplete documents.
- The Contractor is not liable for any consequential damage or loss, direct trading loss or indirect loss resulting from Contractor failing to performance or failing to perform timely or properly.
- The Contractor is only liable vis-à-vis the client for damage or loss that is the direct result of a(n) (connected series of) imputable failure(s) in the execution of the Instruction. All liability is limited to the amount paid out under the professional liability insurance in such cases, subject to a maximum of €1,000,000 (in words: one million Euros).
- If for whatever reason, the liability insurer does not pay out, the Contractor’s liability will be limited to the fees charged for the execution of the Instruction. A coherent series of attributable shortcomings is considered to be a single attributable shortcoming.
- The limitations of liability set out in this article do not apply if and insofar as there is intent or deliberate recklessness on the part of the Contractor or its management.
- The client is obliged to take measures aimed at limiting any damage or loss. The Contractor has the right to undo or limit the damage or loss by repairing or improving the Work.
- The Client indemnifies the Contractor against third-party claims for damage or loss caused by the Client failing to provide the Contractor with documents or failing to provide correct or complete documents.
- The Client indemnifies the Contractor against claims by third parties (including staff of the Contractor and third parties engaged by the Contractor) that suffer damage in connection with the execution of the Instruction resulting from the actions or omissions of the Client or unsafe situations in its company or organisation.
Article 13. NOTICE OF TERMINATION
- Notices of termination must be submitted in writing by registered mail and/or by e-mail with a receipt and read confirmation with due observance of the notice period of 1 month.
- If the Client terminates the contract (early), the Contractor is entitled to compensation for loss resulting from lower capacity utilisation suffered and to be made plausible by the Contractor, as well as to compensation of additional costs already incurred by the Contractor and costs arising from the possible cancellation of third parties that have been engaged (such as costs related to subcontracting, among other costs).
- If the Contractor terminates the contract (early), the Client will be entitled to the Contractor’s co-operation in the transfer of Work to third parties, unless in the event of intent or deliberate recklessness on the part of the Client, as a result of which the Contractor is obliged to proceed to terminate the contract. The right to cooperation as determined in this paragraph is subject to the condition of the Client having paid all underlying and outstanding advances or all invoices.
Article 14. RIGHT OF SUSPENSION
- The Contractor, after careful weighing of interests. is entitled to suspend the fulfilment of all its obligations, including the delivery of documents or other items to the Client or third parties, until all debts due and payable by the Client have been settled in full.
- Paragraph one does not apply with regard to documents of the Client that have not (yet) been processed by the Contractor.
Article 15. EXPIRY PERIOD
- 1. Insofar as not stipulated otherwise in these general terms and conditions, rights of action and other powers of the Client, of whatever nature, vis-à-vis the Contractor in connection with Work carried out by the Contractor, will, in any event, expire one year after the time that the Client became aware of or could reasonably have been aware of the existence of these rights and powers. This period does not refer to the possibility of submitting a complaint to the appropriately appointed body or bodies for complaints handling and/or the Disputes Council.
Article 16. ELECTRONIC COMMUNICATION
- During the execution of the Instruction, the Client and the Contractor can, at the request of the former, communicate with each other with the aid of electronic means.
- The Client and the Contractor are not liable towards each other for damage or loss that may be suffered by one or either of them as a result of the use of electronic means of communication including but not limited to damage or loss caused by non-delivery or delays in the delivery of electronic communication, interception or manipulation of electronic communications by third parties or by software/equipment used to send, receive or process electronic communications, the transfer of viruses and the poor performance or failure of the telecommunications network or other means required for electronic communication, unless insofar as the damage or loss is the result of intent or gross negligence.
- Both the Client and the Contractor will do or omit everything that can be reasonably expected from them in order to prevent the aforesaid risks.
- The data excerpts from the sender’s computer systems provide binding proof of (the contents of) the electronic communications sent by the sender until the contrary is proved by the recipient.
Article 17. SECRECY
- The parties accept that the data they provide to each other are confidential and they undertake to treat this data as private and confidential at all times.
- The parties will neither use this data themselves nor will they allow it to be used by any of its members of staff or any of their affiliated companies for any purpose other than within the framework of the agreed provision of services.
- 3. The parties will not disclose the data to third parties without the explicit written permission from the other party.
- 4. The parties will take all necessary measures to guarantee the fulfilment of their obligations pursuant to this confidentiality clause and to prevent disclosure of the data to any third parties or the use thereof by any third parties without the other party’s consent.
- The private limited company Capayable B.V., with its registered office in Eindhoven, duly represented in this matter by Mr P. van de Graaf, hereinafter referred to as ‘Processor’,
- The company referred to under ‘Company details’ (‘Merchant’), hereinafter referred to as ‘Controller’,
hereinafter jointly referred to as the Parties;
- The Processor processes personal data within the framework of the partnership between the Processor and the Controller, concluded on [date];
- The Parties wish to detail their arrangements with regard to the Processing of Personal Data by the Processor in this Processor’s Agreement;
- Within the framework of the instruction and the personal data processed within that context, the Processor can be regarded as the Processor and the client as the Controller as defined in the General Data Protection Regulation (hereinafter referred to as the GDPR);
- The Controller and the Processor undertake to abide by the GDPR;
The Processor and the Controller document their mutual rights and obligations in this Processor’s Agreement.
AGREE AS FOLLOWS:
The definitions of the terms used are in line with Article 1 of the GDPR. The following definitions are understood to mean:
1.1 Data Subject: the person who the Personal Data relates to.
1.2 A violation in connection with Personal Data: a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or unauthorised access to data that has been transmitted, stored or otherwise processed.
1.3 Agreement: the agreement between the Client and the Other Party.
1.4 Personal Data: all information about an identified or identifiable natural person, which data the Other Party processes for the Client within the framework of the Agreement.
1.5 Regulation: Regulation (EU) 2016/679 of the European Parliament and 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, and repealing Directive 95/46/EC (General Data Protection Regulation).
1.6 Processor’s Agreement: this agreement, including considerations and any associated appendices.
1.7 Processing (Operations): any operation or set of operations within the framework of the Agreement, performed on Personal Data or on sets of Personal Data, whether or not by automated procedures, such as collecting, recording, organising, structuring, storing, adapting or altering, retrieving, consulting, using, disclosing by transmission, disseminating or otherwise making available, aligning or combining, blocking, erasing or destructing of data.
1.8 Sub-Processor: every data processor (including third parties and companies affiliated to the Processor) appointed by the Processor in order to process Personal Data on behalf of the Controller.
2.1 The Controller hereby appoints the Processor as a processor and instructs the Processor:
2.1.1 to process the Personal Data for all legitimate and relevant purposes in connection with the Services of In3 as set out in Appendix 3;
2.1.2 to process the Personal Data insofar as necessary to comply with the legal obligations of the Controller or In3, including disclosure of Personal Data to the competent local authorities;
2.1.3 to transfer the Personal Data to a possible Sub-Processor, if necessary or relevant.
2.2 In3 will not continue to process the Personal Data in a way that is contrary to the purposes as set out in Article 2.1. GDPR
2.3 At the request of the Controller, In3 will provide the Controller with name and address details with regard to the Sub-Processors, as well as with the nature of the processing activities performed by such a Sub-Processor.
3.1 In3 will treat the Personal Data as private and confidential and will instruct its personnel, authorised representatives and/or Sub-Processors to do the same.
3.2 Without prejudice to any other safety standards agreed by the parties, In3 must take appropriate technical and organisational measures to ensure a risk-adapted level of security and take all measures as required under Article 32 of the GDPR.
4.1 The Controller hereby authorises In3 to outsource the processing of Personal Data to Sub-Processors. The Sub-Processors are listed in Appendix 4. The Sub-Processors are in all cases subject to the conditions applicable between In3 and Sub-Processors and will not offer a level of protection that is lower than the conditions as set out in this Processor’s Agreement. At the written request of the Controller, In3 will provide the latter with the necessary information about such a Sub-Processor. In3 will inform the Controller in advance of any intended changes with regard to the addition or replacement of Sub-Processors, thereby giving the Controller the opportunity to object to such changes. If the Controller has not submitted a written notice of objection within five (5) days of receiving the notification, the Controller will be deemed to have accepted the new Sub-Processor, which will be added to Appendix 4 of this Processor’s Agreement. If the Controller objects in writing within five (5) days of receiving the notification, In3 and the Controller will discuss any possible solutions between them.
5.1 If In3 receives a request from a data subject on the basis of the GDPR, it will inform the Controller thereof as soon as possible, including requests from data subjects to exercise rights from the GDPR, providing all information about that request in the process.
5.2 At the request of the Controller, In3 will render its assistance to enable the Controller to comply with any data subjects exercising their rights under the terms of the GDPR and cooperate with regard to a possible assessment, request for information, notification or investigation by virtue of the GDPR with regard to Personal Data or this Processor’s Agreement. The Controller will in all cases fully reimburse all costs reasonably incurred by In3 in the fulfilment of these obligations.
6.1 Without unreasonable delay, In3 notify the Controller of any Personal Data breaches, whilst providing the Controller with sufficient information to enable the latter to comply with all conditions for reporting a breach of Personal Data under the GDPR. Such notification will, in any event, contain the following information:
6.1.1 the nature of the data breach, categories and number of data subjects involved and the categories and number of files with Personal Data involved;
6.1.2 the name and address details of the In3 data protection officer or any other relevant contact who can provide additional information;
6.1.3 the potential consequences of the data breach; and
6.1.4 the measures taken or proposed to address the Personal Data breach.
6.2 At the request of the Controller, In3 will fully cooperate with the Controller and take such reasonable measures as indicated by the Controller to assist in the investigation, restriction and resolution of any breach of Personal Data in order to enable the Controller to: (i) conduct a thorough investigation into the Personal Data breach, (ii) formulate an appropriate response and take appropriate further action in respect of the Personal Data breach in order to comply with all requirements under the Data Protection legislation.
6.3 The Controller will fully compensate In3 for all costs (including internal resources and any costs incurred by third parties) reasonably incurred by In3 in fulfilling the obligations under Article 6.2.
Article 7. Data protection impact assessment and prior consultation
7.1 In3 will provide the Controller with reasonable assistance in the event of any Data Protection Impact Assessments required under Article 35 of the GDPR and in the event of possible prior consultation with any supervisory authority of Controller as required under Article 36 of the GDPR, in any case with regard to the processing of personal data by In3 on behalf of the Controller and taking into account the nature of the processing and the information available for In3.
Article 8. Removal or return of personal data by Controller
8.1 At the discretion of the Controller, In3 will remove or return the Personal Data at the end of the processing Services to be provided, insofar as this is reasonably possible, unless further processing of the Personal Data is obligatory by virtue of EU legislation or the legislation of a Member State which In3 is subject to.
Article 9. Audits
9.1 Following a reasonable request and at the expense of the Controller, In3 will render its assistance to any inspection or investigation reasonably necessary to demonstrate that In3 complies with the obligations laid down in this Processor’s Agreement, subject to the condition that this will never require or oblige In3 to grant access or allow access to information regarding (i) internal price information of the supplier; (ii) information regarding other customers of the Processor; (iii) any non-public external reports of In3; or (iv) any internal reports drawn up by the In3 internal audit department. The investigation will be carried out in close collaboration with In3.
9.2 The Controller will notify In3 of any investigation or inspection to be carried reasonably in advance, thereby avoiding any damage, injury or disruptions to equipment, staff and business operations of In3 during such an investigation or inspection. In addition, a maximum of one investigation or assessment may be initiated on the basis of this article within a period of 12 months.
Article 10. International transfer of Personal Data
10.1 If and insofar as Personal Data are passed on by In3 to one or more Sub-Processors in a country outside the EEA without an adequate level of data protection, In3 will provide appropriate additional safeguards under Article 46 of the GDPR to ensure the Personal Data are protected. At the request of the Controller, In3 will inform the Controller of the applicable basis for transferring Personal Data.
Article 11. Miscellaneous
11.1 The Controller guarantees that all Personal Data processed by In3 are collected and processed by the Controller in accordance with the GDPR including but not limited to: (a) a guarantee that all notices to and approvals of regulatory authorities required under the GDPR are effected and maintained by the Controller; and (b) a guarantee that all Personal Data are collected and processed fairly and lawfully, are accurate and up-to-date and that data subjects receive a reasonable notification of the processing to be performed by the Processor on the basis of the Services agreed in this Processor’s Agreement.
11.2 The Controller must indemnify In3 against all actionable causes, procedures, claims from third parties or the Dutch Data Protection Authority, loss, damage and costs resulting from any breach of this Processor’s Agreement caused by the Controller.
11.3 The Processor’s exclusions and limitations of liability as laid down in the Main Agreement will apply to this Processor’s Agreement as well.
11.4 In the event of deviations between the provisions of this Processor’s Agreement and any other agreements between the Parties including but not limited to the Main Agreement, the provisions of this Processor’s Agreement in relation to its subject matter will take precedence in relation to the parties’ data protection obligations concerning Personal Data.
11.5 If a provision of this Processor’s Agreement is invalid or unenforceable, the remaining provisions of this Processor’s Agreement remain unaffected. In that case, the invalid or unenforceable provision will either be (i) modified in a way necessary to guarantee validity and enforceability, while maintaining the intentions of the parties as much as possible or, if this is not possible, (ii) deemed to have never formed a part of the provision.
11.6 This Processor’s Agreement is governed by Dutch law and the Dutch courts have jurisdiction to take cognizance of all disputes ensuing from or in connection with this Agreement.
Appendix 3: Particulars concerning the Processing of Personal Data
This Appendix 3 contains certain particulars regarding the processing of Personal Data as required under Article 28 (3) of the GDPR.
The nature and purpose of processing Personal Data
In3 processes Personal Data because this is necessary for the provision of services and the implementation of the Agreement with the Controller. In addition, to protect your and our interests (fraud investigation) and on account of a legal obligation. The above enables In3 to carry out its main activity, i.e. the processing of payments.
Types of Personal Data to be processed
In3 processes the following data (depending on payment method) of the payer at the Controller
- First name and surname
- Address details (home address, billing address & delivery address)
- E-mail address
- Telephone number
- Date of birth
- IP address
- Account details (IBAN)
- of Comm. no.:
- Purchase details.
Categories of data subjects whom the Personal Data relate to
Buyers of products and services.
Appendix 4: Sub-Processors
- Active Collecting Control & Services B.V.
5600 HB Eindhoven
- Graydon Nederland B.V.
1101 BV Amsterdam Zuidoost
- Experian B.V.
2501 EC The Hague
Appendix 5: Introduction, purposes for processing, category of persons, category of data, retention periods, provision of personal data, technical and organisational measures
5652 BJ Eindhoven
5600 HB Eindhoven
Telephone number: +31 (0)40-2595072
Fax number: +31 (0)40-2595079
- Data Protection Officer
Ms Sanne van der Meer-Verboogen
Telephone number: +31 (0)40-2595072
- Purposes for processing
Performing instructions ensuing from agreements with clients
- Transactions of payments
- Performing data check
- Collecting outstanding claims
- Receivables management
- Protecting natural persons from overindebtedness on the basis of an individual score
- Categories of persons
We process personal data from the following categories of persons:
- Business relationships
- Visitors (of website)
- Third parties
- Categories of data
The personal data we process include:
- Name and address details;
- Dates of birth;
- IP addresses;
- Contact details;
- order information such as product names;
- financial information such as a negative payment record;
- historical information such as order history;
- device IDs and other device information such as browser, operating system;
- data collection device such as web browser, mobile browser, application;
- geographical information.
- Retention periods
The personal data are kept for a certain period of time. The following retention periods apply:
|Segment||Purpose||Legal basis||Automatically||Retention period|
|Identification, Risk & Fraud Management||To confirm your identity and verify your personal data.||The implementation of the payment agreement (Section 8(b) of the GDPR)||Yes||2 years|
|Risk analysis, risk management and fraud prevention.||Legitimate interests (Section 8(f) of the GDPR). Our legitimate interest is to protect In3 against insolvency and fraud.|
|To check your data with a credit agency.||Complying with a legal obligation (Section 8(c) of the GDPR).|
Legitimate interests (Section 8(f) of the GDPR). Our legitimate interest in sharing your data with an external party is to have sufficient data for a credit check.
|To prevent misuse of the In3 payment method and to improve risk assessment.||The implementation of the payment agreement (Section 8(b) of the GDPR)|
Complying with a legal obligation (Section 8(c) of the GDPR).
Legitimate interest (Section 8(f) of the GDPR). Our legitimate interest is to protect In3 against insolvency and fraud.
|The administration of payments & customer relationship management||To manage payments and customer data.|
|The implementation of the payment agreement (Section 8(b) of the GDPR)|
We need your details in order to enter into a payment agreement with you and to be able to offer our service.
|To manage the services of In3 and for internal processes.||The implementation of the payment agreement (Section 8(b) of the GDPR)|
|General||To comply with applicable Directives and legislation, such as the Money Laundering and Terrorist Financing (Prevention) Act.||Complying with a legal obligation (Section 8(c) of the GDPR).||No||Depending on the relevant legislation|
- Provision of personal data
We provide personal data to the following persons/organisations:
- Third parties
- Working Conditions Service
- Employee Insurance Agency (UWV)
- Bailiffs’ Network Foundation (SNG)
- Outsourcing partners
- Tax and Customs Administration
- Technical and organisational measures
Suitable technical and organisational security measures are taken so that the personal data can be processed safely. We demonstrably comply with the policy rules and/or the guidelines with regard to security measures of the Dutch Data Protection Authority.
When taking the security measures, the risks to be mitigated, the state of the art and the costs of the security measures are taken into account. The security risks are reviewed at least once a year, as well as the extent to which the security measures taken sufficiently mitigate these risks.
- Why we collect data
When carrying out our activities, we process personal details of (temporary) employees of the client (hereafter referred to as personal details of clients). This privacy statement explains which personal details we collect, use and store and for what purpose.
Capayable B.V. is responsible for the use of personal data of clients. During our operations, we adhere to the relevant laws and regulations.
Our contact information
5652 BJ Eindhoven
We process personal details of (temporary) employees who work at or act on behalf of the client. This concerns the employees whom we maintain business relations with or whom we have contact with in terms of the operational coordination of the instruction.
- Why we collect data
As the contractor, we register and maintain personal data of the employees of the client (contact person). These data are used to get in touch, make business appointments, exchange dossier data and to communicate and/or coordinate the execution. When communicating, we record with whom this communication took place.
When entering into a business relationship, starting from the request for information up to and including the interactions during the handling of files, we record the contact details of the contact person. This concerns name, job title, e-mail address and direct (mobile) telephone number.
Before sending any newsletters, we explicitly ask for permission for the processing of personal data.
We process the details of the client’s contact persons on the basis of the execution of an agreement. This includes the processing operations in preparation for an agreement. In addition, we process data on the basis of a legitimate interest that we have as a commercial party.
- How we protect data
We take appropriate security measures to protect the personal details of contact persons. We pay particular attention to ensuring that your data do not end up with others and that access to our systems is adequately secured.
We do not store personal data any longer than necessary. In many cases, we have a statutory duty to retain data. As far as this concerns tax-related data, the retention period is 7 years.
The retention period for other personal data of contact persons ends 2 years after the end of the last time there was contact.
Right of inspection
The contact person has the right to inspect the data processed about him or her. The contact person can submit a request to that end via our website or by sending an e-mail to the data protection officer. We will respond by sending an overview of all personal data held on record by us on the contact person as soon as possible.
Right to correction
The contact person may ask us to improve or supplement personal data. This applies if these data contain errors or are incomplete. We will immediately implement these changes, subject to an internal inspection by us. The contact person can submit a request for correction to the human resources department by mail.
Objection to processing your data
The contact person can object to personal data being processed. When it concerns personal data that are processed subject to consent, we will immediately terminate that processing operation. In other situations, we often have the obligation or another basis to continue to use the personal data.
The right to data portability
In the event of personal data that are digital and processed with the contact person’s consent or on the basis of the execution of an agreement, the contact person has the right to ask for these data to be collated in a digital file and have it forwarded to him or her, or a third party.
The right to delete data
The contact person has the right to have personal data deleted. When it concerns personal data that are processed subject to consent, we will immediately delete those data. In most situations, we have a legal obligation to store data for a number of years. In that case, we cannot delete those data straight away. We will always carefully review any requests and notify the person making the request whether we can delete the personal data. If deletion is not possible, we will state the reason.
- Further information and questions
The data protection officer at our office ensures that we handle personal data appropriately and that we adequately protect these. You can contact data protection if you have questions or concerns.
Contact details of the data protection officer
Name : Sanne van der Meer-Verboogen
Address : Meerenakkerplein 5, 5652 BJ Eindhoven
Telephone : +31 (0)40-2595070
E-mail address : firstname.lastname@example.org
If we collect information from you and you are dissatisfied with this privacy statement or the way in which we handle your data, you can submit a complaint to the regulator, which is the Dutch Data Protection Authority.
Dutch Data Protection Authority
Visiting address : Bezuidenhoutseweg (by appointment only) 30
2594 AV The Hague
Postal address : Postbus 93374
2509 AJ The Hague, the Netherlands
Telephone : 0900 200 12 01 (standard call charges)
Opening hours : on working days from 9am to noon and from 2pm to 5pm
We make sure this privacy statement is always up to date. We will update this statement if we collect new or different data, in the event of new parties or in the event of changes to retention periods or security measures.