General Terms and Conditions
Cocoon Software Technology BV
This document contains the general terms and conditions of Cocoon Software Technology B.V., with its registered office and principal place of business at Hulswitweg 14 in Haarlem, the Netherlands. These general terms and conditions are applicable to every legal act of Cocoon Software Technology B.V. and every Agreement concluded with Cocoon Software Technology B.V.
Artikel 1. Definitions
In these general terms and conditions, the following terms are defined as below, regardless of whether these terms are used in their singular or plural form or within a certain compound term:
1.1 Account: a Customer’s account, which can be taken out through the website of Cocoon.
1.2 Cocoon: Cocoon Software Technology B.V., with its registered office and principal place of business at Hulswitweg 14 in Haarlem, the Netherlands, and listed in the Trade Register of the Chamber of Commerce under file reference number: 34342726.
1.3 Content: all information, including data, documents and materials in any way made available or exchanged by the Customer and Users through the Portal, including, yet not limited to, media files and Personal Data.
1.4 Service/services: the specific service agreed by Cocoon with the Customer, as described in the Offer or Agreement/Agreements, which consists of the (continued) remote availability of the Portal.
1.5 User: a natural or legal person authorised by the Customer to use the Service.
1.6 IP rights: all intellectual property and related rights, such as copyrights, trademark rights, patent rights, design rights, trade name rights, database rights and neighbouring rights, as well as rights to know-how.
1.7 Offer: a quotation made by Cocoon by mail or post to provide a Service or Services. The offer does, in any case, describe what is included in the Service and the payment owed by the Customer when accepting the offer.
1.8 Agreement: the arrangements between Cocoon and the Customer which, for example, arise from the Offer/Offers and on the basis of which the Service is provided, of which these general terms and conditions form a part.
1.9 Party/Parties: The Customer and Cocoon, individually and jointly.
1.10 Personal Data: data that can be directly or indirectly traced to a person.
1.11 Portal: the Internet application supplied by Cocoon which provides for digital asset management and on which the Customer and Users can make Content available and exchange it, among other things.
1.12 In Writing/Written: In addition to hard copies, In Writing or Written is taken to mean e-mail, communication through the Account and communication by fax, provided the integrity of the message and the identity of the recipient have been established to a sufficient extent.
1.13 SLA: a Service Level Agreement as agreed or to be agreed between the Customer and Cocoon for the Service and which lays down specific levels of service provision.
1.14 Website: the website www.use-cocoon.nl of Cocoon and underlying pages.
Artikel 2. Offers & quotations
2.1 Offers may be sent by Cocoon by e-mail and the Customer has the option to accept Offers from Cocoon by e-mail.
2.2 Offers or other quotations from Cocoon are free of obligation and remain valid for up to 30 days after the offer date. Other quotations remain valid for up to 30 days after the date on which the relevant quote was issued.
2.3 Contrary to the provisions of Section 6:225, subsection 2, of the Dutch Civil Code, Cocoon will not be bound by a prospective Customer’s deviating acceptance of an offer made by Cocoon.
2.4 Any delivery times stated by Cocoon or other terms for performances on the part of Cocoon are for indicative purposes only. Exceeding the aforesaid delivery times or terms does not give a (prospective) Customer the right to compensation or termination.
2.5 Any prices quoted by Cocoon are exclusive of VAT and other government levies unless stated otherwise.
2.6 Cocoon is not obliged to abide by an Offer if the Customer can reasonably understand that the Offer, or a part thereof, contains an apparent error or mistake.
Artikel 3. Agreements & ranking order
3.1 Agreements between Cocoon and the Customer are formed only if the Customer accepts an Offer, Agreement or other quotation from Cocoon.
3.2 Agreements are formed for the duration set out in the Agreement, corresponding Offer or other quotation from Cocoon. In the absence thereof, the Agreement is entered into for an indefinite period of time, unless the nature of the Agreement dictates otherwise.
3.3 Fixed-term Agreements are tacitly renewed for periods of 12 calendar months, unless otherwise agreed and/or unless one of the Parties terminates the Agreement, In Writing, at least three months in advance.
3.4 An Agreement can only be changed In Writing, subject to approval from both Parties.
3.5 Either Party is entitled to terminate the Agreement, without observing any notice period and without the need for a notice of default or judicial intervention, with immediate effect, if and insofar as:
the other Party has been declared bankrupt;
the other Party has been granted a moratorium;
one of the Parties has been dissolved or wound up.
3.6 If the Customer fails to fulfil any of its obligations under the Agreement or these general terms and conditions, Cocoon will be entitled to suspend or dissolve the performance of all Agreements entered into with the relevant Customer, without the need for a notice of default or judicial intervention and without prejudice to the right of Cocoon to compensation of damage, lost profits and interest.
3.7 In the event of conflicting provisions in and between the documents below, the following ranking order applies:
the SLA, if agreed separately by the Parties;
these general terms and conditions.
Artikel 4. Access to the Service
4.1 As soon as possible after commencement of the Agreement, Cocoon will provide the URL of and access to the Portal, depending on the authentication method opted for by the Customer. This enables Users to use the Service, through an account or otherwise.
4.2 Cocoon, the Customer and Users are obliged to keep all user codes and passwords confidential.
4.3 Cocoon cannot be held liable for the misuse or loss of user codes or passwords and may assume that Users logging in with a user code and password are authorised to do so by the relevant Customer. As soon as the Customer knows or has reason to believe that user codes or passwords have been disclosed to unauthorised parties, Cocoon must be notified thereof as soon as possible. The Customer indemnifies Cocoon against all damage and costs arising from and/or related to this third-party use of the Service.
Artikel 5. Use of the Service
5.1 Cocoon, for the duration of the Agreement, hereby grants the Customer a limited, personal, revocable, non-exclusive, sub-licensable and non-transferable right to use the Service.
5.2 The Customer can sub-license the right referred to in the previous paragraph to Users who, in their turn, are granted a limited, personal, revocable, non-exclusive, non-sub-licensable and non-transferable right to use the Service.
5.3 The Customer is responsible for the selection, use, application and management of the Service. The Customer is personally responsible for putting the Service into operation, the correct settings of the Service and the correct choice of computer data or telecommunication facilities, including the Internet, as well as the timely and full availability thereof. In order to use the Service, the Customer and its Users must have a working Internet connection, a peripheral (such as a PC, laptop or smartphone) and a (reasonably recent version of a) common web browser. Cocoon can specify which Internet connection, peripheral and web browser are supported and which are not.
5.4 The Customer guarantees that Users act in compliance with the provisions set out in this Agreement at all times. The Customer is also personally responsible for any use made of the Service by the Users. The Customer must make the appropriate measures to detect and, where possible, prevent misuse.
5.5 The Customer indemnifies Cocoon against all third-party claims based on the allegation that use of the Service by the Customer or the User is somehow unlawful, as well as against all third-party claims as a result of non-compliance of the Agreement by the Customer or Users.
Artikel 6. Consultancy
6.1 The Parties can agree that Cocoon provides the Customer with advice or other services on a consultancy basis. Such a consultancy agreement must be agreed in writing. Cocoon will endeavour to provide its consultancy service as befits a professional contractor and in accordance with the consultancy agreement. Consultancy services are provided on the basis of an obligation to use best endeavours, also if Cocoon has promised a certain result.
6.2 If the Parties have agreed that the consultancy services will be provided in phases, Cocoon will be entitled to postpone the start of a phase until the Customer has approved the result of the previous phase in writing.
6.3 Cocoon is only obliged to follow the instructions of the Customer with regard to the (execution of the) consultancy services if so agreed in advance in writing, if it does not involve additional work and the instructions are reasonable and were given in time.
6.4 If it has been agreed that the consultancy services are to be provided by a certain person, Cocoon is nevertheless entitled to replace this person by another, after having notified the Customer thereof.
Artikel 7. Content
7.1 The Users determine what Content to store and exchange by means of the Portal. Cocoon does not inspect this Content. It is the responsibility of the Customer to ensure that the Content that is stored and exchanged by Users through the Portal is lawful and does not infringe any third-party rights. Cocoon does not accept any liability for the storage and exchange of data through the Portal. More in particular, the Customer must ensure that Users refrain from storing and/or distributing Content in violation of any provisions of Dutch law, in any case including (yet not limited to) Content that:
is injurious, defamatory, offensive, racist, discriminatory or hate-mongering,
contains child pornography or bestiality,
infringes third-party rights, including yet not limited to copyrights, trademark rights and portrait rights or which is otherwise unlawful towards titleholders,
constitutes an intrusion on third-party’s privacy, including, yet not limited to, distributing third-party Personal Data without consent or necessity or the repeated harassment of third parties with inappropriate communication,
contains hyperlinks, torrents or similar information of which the Customers knows or should know that they refer to material that infringes third-party rights,
can cause a nuisance or breakdowns at other Customers of Cocoon or other Internet users,
Contains malicious content such as viruses or spyware.
7.2 Cocoon cannot be held responsible for the correctness of Content entered by Users or the compliance of (procedural) rules by Users. Cocoon endeavours that Content is processed and validated correctly. Incorrect entries by Users are not recognised as such by the Service and will, therefore, be processed and stored incorrectly. The Customer agrees to backups being made of the Content. Cocoon endeavours to make backup copies of the Content.
7.3 If Cocoon finds that Content stored or exchanged by means of the Service is unlawful, it will delete this Content or block access to it. Cocoon can never be held liable for any damage arising as a result thereof.
7.4 If Cocoon is notified of any unlawful Content by a third party when Content may be liable to punishment, Cocoon is also entitled to provide the Personal Data of the Customer or User to the third party (only in the event of a major interest, as judged by Cocoon) or to the competent authorities. In that case, Cocoon will notify the Customer, unless Cocoon is not permitted to do so by law.
7.5 If Cocoon suspects that (one of) the conditions in the previous paragraphs of this article are violated, Cocoon will be entitled to take all reasonable measures in order to stop this violation. Cocoon will inform the Customer of this as soon as possible and include the Customer in any measures to be taken, where possible. However, Cocoon will never be obliged to pay any compensation for damage or losses caused by such measures.
7.6 Cocoon is entitled to submit the name, address and other identifying details of the Customer to a third party that brings a legal claim, provided the correctness of the claim has been reasonably established. Furthermore, Cocoon is entitled to report any offences it identifies.
7.7 Cocoon cannot be held liable for any damage whatsoever suffered by the Customer as a result of an intervention of Cocoon within the framework of a third-party report, even if the report appears to be wrong.
Artikel 8. Resellers
8.1 The Customer is entitled to resell the Service of Cocoon only under its own name or otherwise if the Parties have agreed on this in a separate agreement.
Artikel 9. IP Rights
9.1 All IP rights to the Service, which in any case include the Portal and the Website, as well as the information made accessible via the Portal and the Service, rest exclusively with Cocoon and/or its licensor/licensors. The Customer obtains only the rights granted in this article and/or as part of the Agreement.
9.2 Except insofar as permitted by virtue of mandatory law, the Customer is not permitted to change, reproduce or decompile the Service, or apply reverse-engineering to the Portal. Nor is the Customer permitted to take any action with the objective or purport of retrieving or obtaining the source code of the Portal, or to engage third parties or cooperate in such activities aimed at removing or altering any details in respect of IP rights, including any details in respect of the confidential character and the secrecy of works.
9.3 Cocoon is permitted to take technical measures in order to protect its IP rights. In the event that Cocoon has protected the works by means of a technical protection measure, the Customer is not permitted to remove or bypass this protection.
9.4 All IP rights of the Customer to the Content remain the property of the Customer. By making use of the Service, the Customer provides Cocoon with a royalty-free, unencumbered, sub-licensable, non-exclusive licence for the use and reproduction of the Content, insofar as this is necessary in connection with providing the Service and carrying out analyses on anonymised Content. The Customer guarantees that it is entitled to grant this licence to Cocoon and indemnifies Cocoon against third-party claims with regard to Content.
Artikel 10. Availability and support
10.1 Cocoon will endeavour to provide the Services to the best of its ability but does not issue any guarantees with regard to its performances, unless the Customer has entered into an SLA containing such commitments.
10.2 If so required for the purpose of maintenance, modification or improvement of the Service/Services, Cocoon is entitled to temporarily take its systems, including the Portal and the Website, or parts thereof, offline. Cocoon will endeavour to schedule any such shut-downs outside office hours as much as possible and to promptly notify the Customer of scheduled periods of inactivity. However, Cocoon is never liable to pay compensation for damage or loss in connection with such periods of inactivity.
10.3 Cocoon is entitled to modify its systems from time to time, including the Portal and the Website, or parts thereof, so as to improve functionality and to correct errors. In the event a modification leads to a considerable change in functionality, Cocoon will endeavour to notify the Customer thereof. In the case of modifications that are relevant to multiple Customers, it will not be possible to abandon a certain modification for the Customer only. Cocoon will not be obliged to pay any compensation for the damage or loss caused by such modification.
10.4 In the event of the Service being unavailable due to breakdowns, maintenance or other causes, Cocoon will endeavour to notify the Customer of the nature and expected duration of the interruption.
10.5 Cocoon will endeavour to keep the software it uses up-to-date. However, Cocoon is dependent on its supplier/suppliers in that respect. Cocoon is entitled to decide against installing certain updates or patches if, in its opinion, this is not conducive to a correct provision of the Service.
10.6 Any compensation clause stipulated in an SLA by virtue of which the Customer can claim compensation if Cocoon fails to perform as agreed must be deemed as a penalty clause as described in Book 6 of the Dutch Civil Code (Title 1, Section 9, subsection 4).
10.7 Breakdowns can be reported by sending an e-mail to the e-mail address listed on the website of Cocoon. Breakdowns can be also be reported by calling the general telephone number listed on the website of Cocoon.
Artikel 11. Processing Personal Data
11.1 Using the Service can involve the processing of Personal Data. Within this context, Cocoon acts as a processor as referred to in Section 1.e of the Personal Data Protection Act [Wet bescherming Persoonsgegevens]. With regard to these Personal Data, the Customer is regarded as a controller within the meaning of Section 1.d of the Personal Data Protection Act and must comply with the obligations arising from it.
11.2 Cocoon will only process the Personal Data it receives from the Customer on the instruction of the Customer and within the framework of the Service and/or other purposes agreed with the Customer, as part of which Cocoon will endeavour to follow the reasonable instructions of the Customer with regard to Personal Data. The Customer guarantees that the instruction to process Personal Data complies with all applicable legislation.
11.3 The Customer guarantees that (i) it meets all applicable legal obligations, including, but not limited to, the obligations stipulated by the Personal Data Protection Act, with regard to Personal Data. The Customer guarantees towards Cocoon that these data are not unlawful and that they do not infringe third-party rights, (ii) that it is entitled to provide Cocoon with the Personal Data and (iii) that it is entitled to engage Cocoon as processor of the relevant Personal Data and to grant Cocoon the right to engage processors or sub-processors itself.
11.4 The Customer fully indemnifies Cocoon against all third-party claims which in any way arise from and/or are related to the processing of Personal Data by Cocoon and/or which are the result of the Customer breaching the aforesaid guarantees.
Artikel 12. Confidentiality
12.1 The parties will treat information made available to one another before, during or after the performance of the Agreement as private and confidential when this information is earmarked as such, or when the receiving Party knows or should reasonably suspect that the information is intended to be treated as private and confidential. The Parties also impose this obligation on their members of staff, as well as third parties they engage for the performance of the Agreement.
12.2 This obligation to observe strict secrecy applies throughout the term of the Agreement and for a period of up to two years after termination of the Agreement.
12.3 Cocoon is entitled to demonstrate to third parties that it provides Services to the Customer, in order to promote its Services.
Artikel 13. Liability
13.1 The liability of Cocoon for an attributable failure to perform the Agreement, an unlawful act or any other act or omission by Cocoon, its employees or third parties engaged by it, which explicitly includes any failure in the performance of a warranty obligation agreed with the Customer, is limited to the compensation of direct damage. The total cumulative liability of Cocoon in relation to direct damage per calendar year is limited to the maximum amount paid out by the insurer of Cocoon in the relevant case and, if the insurer of Cocoon does not pay out or to a limited extent only, to the maximum invoice amount paid by the Customer to Cocoon in the month preceding the month in which the loss event occurred.
13.2 Direct damage or loss is limited to:
reasonable expenses incurred by the Customer in order to ensure that the performances of Cocoon are in accordance with the Agreement, except in the event that the Agreement has been dissolved by the Customer (including setting aside by the competent court for the Customer) (Section 6:265 of the Dutch Civil Code);
reasonable expenses incurred by the Customer in order to establish the cause and extent of the damage, insofar as the conclusion relates to direct damage within the meaning of this Agreement;
reasonable expenses incurred in order to prevent or limit damage, insofar as the Customer can demonstrate that these expenses have led to a reduction of direct damage within the meaning of this Agreement;
13.3 Every liability of Cocoon other than for direct damage, including, but not limited to, indirect or consequential damage, the loss or exchange of or damage to Content or other electronic data or software and/or damage due to delays in the transmission of data traffic, loss of profits, loss of sales, missed savings, reduced goodwill, damage caused by business interruptions and damage as a result of third-party claims, is excluded.
13.4 The limitations referred to in the previous paragraphs of this article do not apply if and insofar as the damage has been caused by the intent or gross negligence on the part of Cocoon or its executive directors.
13.5 Cocoon can never be held liable for damage in the event of force majeure, as referred to in Article 14.
13.6 The right to compensation is subject to the condition of the Customer reporting the damage to Cocoon in writing within 14 days of it having occurred.
Artikel 14. Force majeure
14.1 In the event of force majeure, which in any case includes disruptions in or breakdown of the Internet, the telecommunications infrastructure, network attacks (such as SYN flood, DoS or DDoS attacks), power cuts and cases in which Cocoon, due to failure on the part of its suppliers, regardless of the reason thereof, is unable to supply, as a result of which Cocoon cannot reasonably be expected to perform the Agreement, Cocoon will be entitled to suspend the performance of the Agreement or, if the force majeure event has exceeded a ninety-day period, to terminate the Agreement, all this without being obliged to pay any compensation.
Artikel 15. Consideration and payment
15.1 The Customer owes Cocoon one or more payments for the provision of the Services.
15.2 The aforesaid payment/payments will be specified further in the Offer and/or Agreement.
15.3 Invoices are sent electronically. The Customer agrees to this method of invoicing.
15.4 Invoices must be paid within 14 calendar days, calculated from the invoice date, unless stated otherwise in the Offer or Agreement.
15.5 If the Agreement is a continuing performance contract, Cocoon will be entitled to change the applicable rates at any time after the first three months following commencement of the Agreement. Cocoon will notify the Customer of any rate changes at least two months in advance.
15.6 If, after the expiry of the payment term referred to above, the Customer has failed to pay, the Customer will be in default by operation of law, without a notice of default being required.
15.7 If an amount payable by the Customer has not been paid within the payment term, statutory interest on the outstanding amount is owed, without further notice of default by Cocoon.
15.8 In the event of late payment, the Customer, in addition to the principal sum and interest accrued, is obliged to pay all judicial and extrajudicial collection costs, including the costs of lawyers, bailiffs and debt collection agencies.
15.9 The claim for payment is immediately due and payable in the event the Customer is declared bankrupt, has applied for a moratorium or has all of its assets seized, dies or is wound up or dissolved.
15.10 Prior to performing the Agreement or accepting it, Cocoon is at all times entitled to demand that the Customer provides sufficient security, thereby ensuring that it can and will fulfil its payment obligations.
15.11 Cocoon is entitled to set off any amounts it is owed by the Customer. The Customer is never entitled to set off any claims it has against Cocoon.
15.12 The Customer can never suspend the payment of invoices.
15.13 If the Customer purchases one of more Services and subsequently fails to effect payment of a single Service within the given payment term, all claims with regard to the other Services that have been purchased become immediately due and payable. In addition, Cocoon will be entitled to also suspend the other Services or terminate the Agreement, without the Customer being entitled to compensation suffered as a result.
Artikel 16. Changes to the general terms and conditions
16.1 Cocoon reserves the right to make changes or additions to these general terms and conditions.
16.2 Changes also apply to Agreements entered into earlier, with due observance of a 30-day period from the date on which the Customer has been notified of the change by means of electronic messaging.
16.3 If the Customer does not wish to accept a change in these general terms and conditions, it will be entitled to terminate the Agreement in writing, up until and before the date on which the new conditions take effect.
16.4 Minor changes and changes as a result of a legislative amendment can be implemented at any time. In the event of the aforesaid changes, Cocoon is not obliged to announce them in advance.
16.5 Nor do these changes give the right to terminate, as described in the previous paragraph of this article.
Artikel 17. Consequences of termination
17.1 Following termination of the Agreement, for whatever reason, all rights granted by Cocoon to the Customer lapse with immediate effect and the Customer must refrain from issuing licences or sub-licences to new Users.
17.2 In the event of termination of the Agreement, Cocoon will destroy the Content and Cocoon will no longer be responsible for the preservation of Content in the Customer’s environment on the Portal. The Content will be made available to the Customer provided the Customer submits a request to that end within one month of termination of the Agreement. In that case, Article 17.3 applies.
17.3 Cocoon will make the Content available to the Customer at its expense, in a commonly accepted and readable file format, provided the Customer submits a request to that end to Cocoon in writing within one month, subject to an agreement having been reached between the Parties on the conditions set out below. If Cocoon receives a request, it will submit a proposal to the Customer regarding the Content to be transferred, the consideration and any other conditions regarding the transfer. Cocoon does not guarantee the availability, completeness, integrity and usability of the Content. Cocoon is not obliged to convert the Content that has been made available or to otherwise prepare it for use.
17.4 The provisions which are intended to continue to apply after cancellation, dissolution or another form of termination of the Agreement will remain unaffected following cancellation, dissolution or another form of termination of the Agreement.
Artikel 18. Other provisions
18.1 The Customer agrees that Cocoon, without the consent of the Customer, can transfer the rights and obligations vested in the Customer by virtue of the general terms and conditions and the Agreement, to a third party. If the Customer wishes to transfer any rights vested in the Customer by virtue of the general terms and conditions and the Agreement he needs the written consent of Cocoon.
18.2 Changes to management or legal form will not affect the Agreement.
18.3 The version of any communication, administration and log files received or stored by Cocoon, e.g. in respect of the number of messages purchased and sent, will serve as authentic and mandatory evidence, except in the event of evidence to the contrary to be produced by the Customer.
18.4 A provision in the Agreement and/or general terms and conditions appearing to be null and void will not affect the validity of the Agreement/general terms and conditions as a whole. The Parties will agree on a new provision or provisions to replace the null and void provision, which must reflect the purport of the original Agreement/general terms and conditions to the greatest extent legally possible.
18.5 This Agreement is governed by Dutch law.
18.6 Insofar as the rules of mandatory law do not dictate otherwise, any disputes arising as a result of the Agreement will be submitted to the competent Court in Almelo, the Netherlands.