General Terms and Conditions Eatcard B.V. for restaurant owners

Article 1: Definitions

In these General Terms and Conditions, the following definitions are used, both in the singular and the plural, and are written with capital letters:

1. Offer: the offer made or previously made by Eatcard to the Client for the assignment and/or the delivery of products and/or services by Eatcard, whether or not in the form of a (written) quotation;
2. General Terms and Conditions: these general Terms and Conditions of Eatcard, also available to consult and/or download via https://eatcard.nl/termsconditions-for-restaurants/;
3. Eatcard: the private limited company Eatcard B.V., established at Helftheuvelweg 11 (5222AV) in ‘s-Hertogenbosch and registered in the commercial register of the Chamber of Commerce under KvK number 76388832;
4. Intellectual Property Rights: all rights of intellectual property and related rights, including but not limited to copyrights, trade secrets, database rights, domain name rights, trade name rights, trademark rights, design rights, neighboring rights, patent rights, and rights to know-how;
5. Client: the natural person or legal entity that has concluded the Agreement with Eatcard;
6. Agreement: the agreement concluded between Eatcard and the Client on the basis of which Eatcard performs the assignment for the Client and/or delivers the products and/or services, and of which these General Terms and Conditions form an inseparable part;
7. Party: Eatcard or the Client;
8. Parties: Eatcard and the Client;
9. Confidential Information: all information (in any form whatsoever) that the receiving Party receives from or via the disclosing Party before, during, or after the Agreement, or that becomes known to the receiving Party in the context of the Agreement if this information contains trade secrets within the meaning of the Trade Secrets Act (Wet bescherming bedrijfsgeheimen), contains personal data, is marked as confidential, or if the receiving Party knows or reasonably ought to know that the information was and/or is intended to be confidential. Confidential Information on the part of Eatcard includes in any case, but not exclusively, software, (source) code, programs, applications, client data, know-how, technical specifications, documentation, and images/videos of Eatcard’s software;
10. Website: the Eatcard website, available at https://eatcard.nl.

Article 2: Applicability

1. These General Terms and Conditions apply to the Offer, the Agreement, every assignment, the services and/or products to be delivered and/or delivered, and to (the performance of) (other) (legal) acts between the Parties.
2. In the event of any conflict between the Agreement and these General Terms and Conditions, the Agreement shall take precedence over these General Terms and Conditions.
3. The applicability of any Terms and Conditions of the Client, including but not limited to purchasing conditions and General Terms and Conditions, is hereby expressly rejected.

Article 3: Formation of the Agreement

1. Eatcard shall make an Offer to the Client specifying which assignment will be performed and/or which products and/or services are offered and what compensation the Client owes upon acceptance of the Offer.
2. An Offer is non-binding and does not oblige the Client to anything.
3. If an Offer is made in a (written) quotation, the Offer is valid for a duration of 14 (fourteen) calendar days after the date of dispatch by Eatcard, unless otherwise indicated in the Offer.
4. The description of the assignment, products, and/or services in the Offer is binding. Eatcard is not bound by a deviating response from the Client intended to accept the Offer, even if this response deviates from the Offer only on minor points.
5. The Offer may be based on information provided by the Client. In that case, if this information turns out to be incorrect, Eatcard is entitled to adjust the Offer and/or the fees owed to the correct information, even after the Agreement has already been formed.
6. The Agreement is formed as soon as the Offer is accepted. The Offer is deemed to be accepted as soon as the Client agrees to the Offer, or if Eatcard may reasonably interpret a conduct of the Client as (the impression of) (generated) consent.
7. Eatcard cannot be held to the Offer if the Client can reasonably understand that the Offer, or a part thereof, contains an obvious mistake or clerical error.

Article 4: Performance of the Agreement

1. Eatcard will make every effort to execute the Agreement for the Client in accordance with the Agreement, the Offer, and the General Terms and Conditions.
2. All work and/or services performed by Eatcard are executed on the basis of an obligation to perform best efforts (inspanningsverbintenis). Eatcard provides no guarantees regarding the results of the work, products, and/or services.
3. In the execution of the Agreement, Eatcard is not obliged to follow instructions from the Client, particularly not if the content and/or scope of the Agreement changes or is supplemented as a result of the instructions. If Eatcard chooses to follow these instructions anyway, it is entitled to charge an (additional) fee to the Client.
4. The Client acknowledges and accepts that Eatcard, for the execution of the Agreement, may also depend on work, services, and/or products of third parties. Eatcard is not liable for work, services, and/or products of third parties.
5. Deadlines specified or confirmed by Eatcard regarding the execution or completion of the Agreement (or parts thereof) always have an indicative character. These deadlines are never fatal deadlines. In the event of an exceeded deadline, Eatcard is always only in default after the Client sends Eatcard a reasonable and proper notice of default in which Eatcard is granted a reasonable period to still perform.
6. Eatcard is explicitly not responsible for achieving certain (intended) results, such as achieving a specific turnover or profit.
7. Any agreements regarding a service level can only be expressly agreed in writing between the Parties, for example in a service level agreement (SLA). In such case, the Client will always immediately inform Eatcard of all circumstances that have or may have an influence on the service level and/or the availability of the services.
8. If agreements regarding a service level have been expressly made in writing, the availability of software, systems, and related services will always be measured in such a way that the temporary decommissioning previously announced by Eatcard due to maintenance and/or all circumstances beyond Eatcard’s control are left out of consideration. The availability measured by Eatcard shall serve as authentic and binding proof, subject to counter-evidence provided by the Client.

Article 5: Responsibilities of the Client

1. The Client is obliged to always do that which is necessary for a timely and correct performance of the Agreement or delivery by Eatcard. The Client shall enable Eatcard as much as possible to comply with its obligations. This includes, but is not limited to, the Client’s obligations to ensure timely payment, a properly functioning internet connection, and complete and correct data provided and to be provided which are or may be of importance for the execution of the Agreement by Eatcard. This provision also applies in the event of a change in agreements which has taken place either on the initiative of the Client or Eatcard. If the Client has breached the obligations resting upon it and Eatcard has had to perform extra work as a result, the Client shall owe the agreed (hourly) rates, and in the absence thereof, the customary (hourly) rates of Eatcard.
2. Eatcard accepts no liability and is not liable for any damage arising as a result of incorrect and/or incomplete data provided by the Client. The Client indemnifies Eatcard against all damages, costs, and claims in this regard.
3. The Client is responsible for the correct choice of computer, data, or telecommunication facilities, including internet, and for the timely and full availability thereof.
4. The Client is responsible for maintaining the confidentiality of username and password and all other privacy-sensitive information, such as its PIN-codes and, for example, the login(s) of employees, and everything related thereto in the broadest sense. The Client is responsible and liable for all use made of the service via its username and password (and/or that of its employees). Eatcard may rely on the fact that the Client is actually the one logging in with the Client’s username and password. As soon as the Client suspects that its username and/or password (and/or that of its employees) has fallen into the hands of unauthorized persons, the Client is obliged to inform Eatcard thereof without delay, without prejudice to the Client’s obligation to immediately take effective measures itself to prevent further breach, such as changing the password and/or username.

Article 6: (The use of) services

1. The Client acknowledges and accepts that through the services, Eatcard merely endeavors to make software available (as a service), which the Client can use.
2. The Client accepts that the services are delivered ‘as is’. Eatcard does not guarantee that the services will be free of errors, complete, or up-to-date at all times. Eatcard does not guarantee that the services or any part thereof will be accessible at all times and without interruptions or disruptions. Disruptions in the services may occur, among other things, as a result of disruptions in the internet connection, disruptions in software (of third parties), disruptions in hardware (of third parties), and/or as a result of viruses and/or defects.
3. The services are exclusively intended for the use as described in the Agreement. It is expressly prohibited to use the services for other purposes.
4. The Client is expressly not permitted to use the services for unlawful acts or for acts that are otherwise prohibited under applicable laws and regulations, or to otherwise abuse the services.
5. In the event of a breach of the preceding provision by the Client, Eatcard is entitled to take all measures it deems advisable, including but not limited to restricting, suspending, or terminating access to and/or use of (parts of) the services. Eatcard is not liable for any loss of data suffered as a result of measures taken due to a breach of the aforementioned provision, such as the restriction, suspension, or termination of access to and/or use of (parts of) the services.
6. Eatcard is entitled to take all reasonable measures to prevent or avert dangers or damage to the extent it deems necessary, including but not limited to restricting, suspending, or terminating access to and/or use of (parts of) the services, all at the sole discretion of Eatcard and without being held to any compensation.
7. Eatcard always has the right to implement changes to and/or upgrades of the services, including expanding, changing, or removing certain functionalities, regardless of whether the services subsequently cease to be available via certain operating systems and/or hardware.
8. Eatcard has the right to temporarily take the services out of service for the purpose of performing maintenance, making changes and/or upgrades, without the Client being able to make any claim for compensation.
9. Eatcard is entitled to implement a restriction on the use of data traffic and storage capacity in the services and to adjust this at any desired time.
10. Eatcard is authorized to change (or have changed) the login procedure, passwords, and/or usernames of the Client if Eatcard deems this necessary in the interest of the functioning of the services.
11. Eatcard is not responsible for any decision whatsoever made by the Client by means of the services. Eatcard provides no guarantees on achieving results by means of the services.
12. The Client itself is fully responsible and liable for all acts it performs with the help of the services. The Client indemnifies Eatcard against any claim arising from its acts with the help of the services.
13. The services may contain links to other services, software, platforms, and/or websites that are not managed by Eatcard, and exchanges and/or integrations with other services, software, platforms, and/or websites may take place within the services. Eatcard has no control or say over this, gives no guarantees or representations with respect thereto, and accepts no responsibility therefor or for any loss or damage that may arise from the use thereof. The Client accepts this. It is possible that terms of use or service provisions of the relevant third party apply to the use of these services, software, services, and/or websites of third parties. Eatcard is not a party to any agreement between the Client and such a third party.

Article 7: Fees and payment

1. The Client owes a fee to Eatcard for the execution of the Agreement. The amount of the fee for the execution of the Agreement is stated in the Offer and/or in the Agreement.
2. Payment of the amounts due shall be made exclusively via direct debit. By signing the quotation, the Client grants Eatcard permission to automatically collect the agreed monthly amounts. The amount due is collected monthly in advance from the account number specified by the Client.
3. All prices stated by Eatcard are in euros and exclusive of turnover tax (VAT), other levies imposed or to be imposed by the government, and any costs of third parties, unless expressly stated otherwise.
4. In the event that, after the Agreement has been formed, the taxes and/or other levies imposed or to be imposed by the government under the Agreement and any costs of third parties, at home or abroad, are increased in the interim, Eatcard reserves the right to pass on these increases in the fees owed by the Client.
5. The Client must pay the agreed fees:
   1. Annually by advance payment prior to the execution of the Agreement by Eatcard by means of direct debit (SEPA); or
   2. Monthly by advance payment prior to the execution of the Agreement by Eatcard by means of direct debit (SEPA).
6. The payment term of an invoice is 15 (fifteen) days after the date of the invoice, unless expressly agreed otherwise. The agreed payment term of an invoice is a fatal deadline.
7. The Client is responsible for a sufficient balance and the correctness of the provided bank details, including but not limited to the account number and the account holder’s name.
8. If the Client reverses (storno) or blocks a direct debit, or if a direct debit transaction fails twice, Eatcard is entitled (but not obliged) to suspend the execution of the Agreement. The fees, however, remain due. Eatcard is entitled to send the Client a (digital) invoice therefor and/or to engage a third party for this purpose.
9. Eatcard is entitled to increase its fees. To the extent possible, Eatcard shall announce an increase to the Client at least 3 (three) months before the increase takes effect. In the event of a price increase, the Client has the right to terminate the Agreement within 30 (thirty) days after notification of the increase, with due observance of a notice period of 3 (three) months. The aforementioned right of the Client to terminate the Agreement does not exist to the extent Eatcard increases prices in accordance with the consumer price index (CPI) of the CBS or by a maximum of 5% starting from the month of January of a new calendar year and/or when it concerns an increase as referred to in paragraph 3 of this article.
10. Suspension or set-off of the payment of the fee due by the Client is not permitted.
11. In the event of late payment, the Client is in default by operation of law. In that case, the Client owes the statutory commercial interest and is, without a notice of default being required, in addition to the principal amount and the aforementioned interest, bound to full compensation of the full collection costs. This concerns both extrajudicial and judicial costs, including costs for collection agencies, lawyers, and bailiffs, all without prejudice to Eatcard’s other contractual or statutory rights, including the right to compensation. The extrajudicial collection costs are calculated on the basis of the Extrajudicial Collection Costs Decree (Besluit vergoeding voor buitengerechtelijke incassokosten – BIK), unless the extrajudicial costs actually incurred are higher. In the latter case, the costs actually incurred will be charged to the Client.
12. In the event of liquidation, of (application for) suspension of payments or bankruptcy, of debt restructuring, or any other circumstance as a result of which the Client can no longer freely dispose of its assets, Eatcard is free to terminate the Agreement immediately with immediate effect without any obligation arising on Eatcard, such as the obligation to pay compensation. Eatcard’s claims against the Client are immediately enforceable in these cases.

Article 8: Intellectual Property Rights

1. All Intellectual Property Rights to the Service and all works developed in the context of the Agreement or made available to the Client, such as materials, software, training courses, designs, documentation, analyses, advice, quotations, photos, videos, files, and other content on which Intellectual Property Rights may rest, vest in Eatcard and/or its licensor(s). Nothing in the Agreement or in the use of the Services extends to the transfer of any Intellectual Property Rights to the Client.
2. The Client only acquires the user rights and powers granted to it under the Agreement or the law. Unless expressly agreed otherwise in writing, this concerns a non-exclusive, non-transferable, and non-sublicensable right to use the works developed or made available by Eatcard for itself and exclusively for the duration and intended purpose of the Agreement. The right of the Client to use the Service is expressly limited to the use of the modules purchased by the Client.
3. The Client is expressly not permitted to download, copy, modify, reverse engineer, publish, or use for direct or indirect commercial purposes the works referred to in paragraph 1 or other information made accessible in the context of the Agreement, unless mandatory Dutch law permits this use or if this has been expressly agreed.
4. Unless expressly agreed otherwise in writing, the working drawings, illustrations, prototypes, scale models, molds, designs, design sketches, films, and other materials, files, or works brought into existence by Eatcard in the context of the Agreement remain the property of Eatcard, regardless of whether these have been handed over to the Client or third parties.
5. The Client warrants that the information, in any form whatsoever, that it provides to Eatcard does not infringe the rights of third parties.
6. The Client indemnifies Eatcard against all claims, procedures, losses, and/or directly and/or indirectly suffered damages of third parties based on or arising from the allegation that any activity of the Client is in any way unlawful, including but not limited to activities that violate the Agreement and/or constitute an infringement of Intellectual Property Rights.
7. The Client provides Eatcard with an unrestricted license to distribute, store, copy, or publish all information made available by the Client to Eatcard at Eatcard’s own discretion, all to the extent reasonably necessary for the performance of the Agreement.
8. The Client grants Eatcard permission to use its (trade and/or brand) name, logo, and/or other information in the context of promotional, publicity, and/or commercial activities, including express mention on Eatcard’s website.
9. Eatcard is entitled to use the knowledge increased on its side through the execution of the Agreement for other purposes as well, provided that no strictly confidential information of the Client is brought to the knowledge of third parties.

Article 9: Transfer of risk

1. The risk of loss, theft, embezzlement, or damage to materials, hardware, software, data files, and/or other works transfers to the Client at the moment these are brought into the actual control of the Client or an auxiliary person of the Client.

Article 10: Confidentiality

1. Each Party shall treat all Confidential Information of the other Party strictly confidentially. Parties shall also impose this obligation on their employees. The Client shall only use Eatcard’s Confidential Information for the purposes for which the relevant information was provided to the Client. The Client shall only provide confidential information of Eatcard to employees to the extent deemed necessary in the context of the Agreement.
2. In the event that the Client acts in violation of the provisions of the first paragraph, the Client shall owe to Eatcard, per violation, without a notice of default and/or attributability being required, an immediately payable penalty of €10,000 (ten thousand euros) per violation, and €500 (five hundred euros) per day (where a part of a day counts as one day), without prejudice to Eatcard’s other statutory or contractual rights, including but not limited to (additional) compensation and/or performance.

Article 11: Maintenance

1. Eatcard is entitled to interrupt (the use of) its services if it deems this necessary in the context of maintenance. The Client acknowledges and accepts that performing maintenance can cause interruptions in the use of the services. Eatcard may, in the context of maintenance, perform (or have performed), among other things but not exclusively, the following acts: checking files and/or data for signals of unsafe or illegal acts, computer attacks, and computer viruses, and everything related thereto in the broadest sense.
2. If Eatcard expects that the maintenance will negatively affect the provision of services to the Client, Eatcard shall:
   1. Make every effort to inform the Client thereof prior to the maintenance. If a state of emergency occurs or if informing the Client otherwise proves impossible, Eatcard is entitled to perform maintenance work without prior notice of notification;
   2. To the extent possible, have the maintenance take place before 10:00 AM to keep the effects as limited as possible, and make every effort to keep any interruption of services as limited as possible.
3. Eatcard reserves the right to implement changes in the technical characteristics of the services, changes in data and telecommunication network(s), or any other changes with respect to its services and service provision at any time. The Client acknowledges and accepts that changes may potentially influence the peripheral and computer equipment in use by the Client. Eatcard is not liable for possible damage that will arise as a result of the changes as referred to in this article. The Client indemnifies Eatcard against all damages, costs, and claims in this regard.

Article 12: Relocation

1. Eatcard is permitted at all times to relocate (or have relocated) its data center and/or co-location space(s). Furthermore, Eatcard is authorized to interrupt its services in the context of a relocation.
2. The Client shall not oppose such a relocation.
3. The Client agrees that any interruption of the services as a result of a relocation does not qualify as downtime (insofar as agreements have been made about this), provided Eatcard informs the Client about this no later than 5 (five) working days prior to the relocation. This includes via email or via the online platform of Eatcard to be consulted by the Client.
4. The costs that the Client must incur due to the relocation as referred to in this article shall be borne by the Client, unless deviating agreements have been made and these have been laid down in writing by the Parties.

Article 13: Property (Retention of Title) and Right of Retention

1. Eatcard remains the owner of goods, property rights, and equivalent legal objects, such as delivered hardware, as long as the Client:
   1. fails to perform its obligations under the Agreement;
   2. does not pay for work and/or services performed or to be performed under the Agreement; or
   3. does not satisfy claims arising from the non-performance of the Agreement, such as damages, interest, and costs.
2. As long as a retention of title rests on what has been delivered by Eatcard, as referred to in the preceding paragraph, the Client is not permitted to encumber it. The Client is obliged, as long as the ownership of the delivered goods has not yet transferred, to ensure during that period that the delivered goods remain in the same state and quality as they were at the time they were made available.
3. After Eatcard has invoked the retention of title, it may immediately retrieve the delivered goods on which the retention of title rests. The Client allows Eatcard to enter the place(s) where the delivered goods are located. Eatcard is entitled to charge costs to the Client for this. If it appears that the delivered goods are in a different state than the state in which the delivered goods were at the moment they were made available, Eatcard is entitled to charge any repair costs to the Client.
4. Eatcard is authorized not to hand over to the Client the funds paid by the Client, which Eatcard has collected or holds under the Agreement, as long as the Client fails to perform its obligations under the Agreement.
5. If products have not yet been delivered by Eatcard, but the agreed advance payment or price has not been paid by the Client in accordance with the agreement, Eatcard has the right of retention. The products will then not be delivered until the Client has paid fully and in accordance with the agreement.

Article 14: Conditions for Guarantees, Exchanges, and Repairs of Delivered Hardware

1. The products delivered by Eatcard comply with the customary requirements and standards that can reasonably be set at the time of delivery and for which they are intended during normal use.
2. The hardware delivered by Eatcard is intended for use within the European Economic Area (EEA). Eatcard guarantees that the hardware delivered by it complies with the applicable EU technical regulations at delivery, including the CE marking requirements and the applicable European product directives. The Client is responsible for compliance with any additional local installation and usage regulations applicable in the country of use. Eatcard informs the Client upon request about the technical specifications of the delivered hardware.
3. In the event that a delivered product is incomplete or shows defects immediately after delivery, the Client must report this in writing as soon as possible, but in any case within 1 (one) week after delivery, so that Eatcard is enabled to repair the defect or replace the product. If Eatcard is informed after the aforementioned period, the defect will be treated as a defect within the guarantee period.
4. The guarantee period for delivered hardware is equal to the guarantee period as provided by the relevant producer or supplier. Eatcard informs the Client upon request about the applicable guarantee period of the delivered products. Within this period, any defects will be repaired by the relevant producer or supplier, provided that the defects fall under the guarantee.
5. In some cases, Eatcard may decide, at its discretion or the discretion of the relevant producer or supplier, to proceed to the delivery of a replacement product under the guarantee instead of repair/rectification of the defective product. The replacement product is not always a new identical product, but it is a representative product.
6. The Client cannot invoke any guarantee if defects and/or errors are wholly or partially the result of incorrect, careless, or incompetent use. This includes, but is not limited to, external causes such as lightning strike or fire, or the situation in which the Client makes or has changes made to the delivered products without prior consent of Eatcard, or upon use for other purposes and/or applications than those for which the delivered products are intended.
7. If a defect does not fall under the guarantee, Eatcard will charge the repair, replacement, shipping, and any other (remediation) costs to the Client.
8. If the guarantee relates to a product produced by a third party, the guarantee is limited to the guarantee provided by the producer of this product. The Client must then settle the matter with that relevant third party. Eatcard can mediate in this, but it is not obliged to do so. For such mediation, Eatcard may charge the agreed (hourly) rates, and in the absence thereof, its customary (hourly) rates to the Client.
9. Eatcard is entitled to establish further rules regarding the conditions for guarantees, exchanges, and repairs of delivered products (at any time), and to potentially refer the Client to the documents that the Client needs to fill out for a claim under the guarantee.

Article 15: Data

1. Eatcard is the right-holder to all Intellectual Property Rights regarding the Services, the underlying software, the platform, and all works and materials independently developed by Eatcard. Data entered into the Services by the Client, as well as data generated by the use of the Services by the Client and its guests, remain the property of the Client respectively fall under the control of the Client as data controller within the meaning of the GDPR. Eatcard has no right to use this data for its own purposes outside the execution of the Agreement. This article leaves Eatcard’s rights to anonymous, aggregated statistical data unaffected, provided this data is not traceable to individual users or clients.
2. Eatcard is never bound to follow requests from the Client for modification of data regarding the service, such as turnover data.
3. Eatcard is not obliged to provide or make available security, backup, emergency fallback, or recovery services. If the Client wishes a backup of data, it must make this itself.
4. The Client is and remains responsible for compliance with all statutory administration and retention obligations applicable to it.
5. The Client has at all times the right to request the data generated by its use of the Services from Eatcard. Eatcard makes this data available to the Client without undue delay and free of charge in a common, structured, and machine-readable format. Eatcard determines the technical export format in consultation with the Client, on the understanding that the format must make the data usable and transferable to another system. After termination of the Agreement, Eatcard returns or destroys all personal data of the Client at the choice of the Client, in accordance with the data processing agreement. Requests submitted after termination will be handled by Eatcard in accordance with applicable laws and regulations, including the GDPR and the Data Act.

Article 16: Privacy

1. Eatcard will not process personal data other than for the purpose of executing the Agreement and/or as mentioned in its privacy policy.
2. The responsibility for the (lawfulness of the) (processing of) personal data provided by the Client to Eatcard lies with the Client. If required, the Client shall conclude an agreement with Eatcard for the processing of personal data.

Article 17: Liability

1. The liability of Eatcard for damages suffered by the Client as a result of an attributable failure in the performance of its obligations, error (dwaling), and/or as a result of an unlawful act (tort) of Eatcard, its employees, or third parties engaged by it, is excluded.
2. Insofar as Eatcard’s liability cannot be excluded, Eatcard’s liability per event (a series of consecutive events counts as one event) is limited to compensation of direct damage up to a maximum of the amount that Eatcard’s insurer pays out for the relevant case.
3. If Eatcard’s insurer, for whatever reason, does not make a payout, or if no insurance has been concluded by Eatcard for the damage-causing event, Eatcard’s liability is limited to compensation of direct damage up to the amount that Eatcard received in fees from the Client under the Agreement in the 12 (twelve) months prior to the damage-causing event. The total liability shall never exceed €5,000 (five thousand euros).
4. Direct damage shall exclusively mean:
   1. material damage to property;
   2. reasonable costs incurred to prevent or limit direct damage that could be expected as a result of the event on which the liability is based; and
   3. reasonable costs incurred to determine the cause of the damage.
5. Eatcard’s liability for indirect damage is excluded. Indirect damage means all damage that is not direct damage and therewith includes in any case, but is not limited to, consequential damage, lost profit, missed savings, reduced goodwill, and damage due to not achieving desired or promised results.
6. The exclusions and limitations of liability referred to in this article shall lapse if and to the extent the damage is the result of intent or willful recklessness of Eatcard or its management.
7. Unless performance by Eatcard is permanently impossible or there is a situation as referred to in Section 6:83 sub c of the Dutch Civil Code (BW), Eatcard’s liability due to an attributable failure in the performance of its obligation(s) under the Agreement arises only if the Client immediately gives Eatcard a written notice of default, whereby a reasonable period for rectification of the failure is granted to Eatcard, and Eatcard continues to attributably fail in the performance of its obligation(s) even after the expiry of that reasonable period.
8. A condition for the arising of any right to compensation is always that the Client reports the damage in writing to Eatcard within 30 (thirty) days after the occurrence thereof.
9. In the event that the Parties have made agreements about the service levels of the services, for example in a service level agreement (SLA), the remedies agreed thereby apply expressly as the sole remedy. These remedies qualify as penalties and take the place of any compensation.
10. The Client indemnifies Eatcard against all claims and other demands of third parties and the damages arising therefrom as a result of a failure of the Agreement by the Client or any other act or omission of the Client.

Article 18: Force majeure

1. Eatcard cannot be held to perform any obligation if there is a situation of force majeure.
2. Force majeure on the part of Eatcard includes, in addition to what is understood in law and jurisprudence in that respect, illness of employees and/or absence of personnel crucial for the execution of the Agreement or crucial third parties, electricity disruptions, strikes, riots, government measures, fire, natural disasters, floods, war, epidemics, pandemics, general transport problems, failures of suppliers of Eatcard, failures of third parties engaged by Eatcard, disruptions in the internet connection, disruptions in (telecommunication) networks, DDoS attacks, hacks, other cybercrime activities, and other unforeseen circumstances.
3. If a force majeure situation lasts longer than 90 (ninety) days, or if it is certain that the force majeure situation will last longer than 90 (ninety) days, both Parties are entitled to dissolve (ontbinden) the Agreement in writing, without being bound to compensation for any damage as a result of this dissolution, unless the nature or scope of the non-performance does not justify the dissolution.

Article 19: Duration and Termination of the Agreement

1. The Agreement enters into force at the moment the Offer or the Agreement is signed, or at the moment the Client agrees to the Offer or the Agreement in another manner, unless a different effective date is included in the Offer or the Agreement.
2. The contract duration of 12 (twelve) months commences on the date on which the Client actually takes the software into use, being the installation date as confirmed in writing by Eatcard. The date of signing the quotation serves exclusively as the commencement date of the Agreement, not as the commencement date of the contract duration.
3. The Client can terminate (opzeggen) the Agreement towards the end of the agreed contract duration, with due observance of a notice period of 3 (three) calendar months. Termination by the Client must be made via email, addressed to support@eatcard.nl.
4. In the event of early termination of the Agreement by the Client for any reason whatsoever, other than due to an attributable failure of Eatcard, all remaining fees for the full contract duration are immediately due and payable by operation of law.
5. All modules purchased by the Client form an integral part of the Agreement and fall under the same contract duration and notice period as referred to in this article. Early termination of separate modules within the contract duration is not possible. If the Client nevertheless desires early termination of one or more modules, Eatcard can only allow this if the Client satisfies all remaining fees for the relevant module(s) until the end of the contract duration. Addition of extra modules during the contract duration is permitted; such modules run along until the end of the current contract period and fall under the same contract duration and notice period as the other existing modules from 30 (thirty) days after addition. This article applies exclusively to the Eatcard Select pricing model and does not apply to the Eatcard Complete pricing model.
6. The Eatcard Complete pricing model is exclusively available for new clients who conclude an Agreement after 1 June 2026. Existing clients who already make use of the Eatcard Select model cannot switch to the Eatcard Complete model during the running contract duration, unless Eatcard agrees to this in writing.
7. Eatcard can terminate (opzeggen) the Agreement at any time with immediate effect.
8. Each Party is authorized to dissolve (ontbinden) the Agreement as a result of an attributable failure of the other Party in the performance of the Agreement, if the other Party continues to attributably fail in the performance of the Agreement even after proper notice of default and the expiry of the reasonable terms given therein.
9. If at the moment of dissolution services have already been delivered and/or other work has already been performed by Eatcard for the Client, these delivered services and/or performed work and the corresponding payment obligation(s) are not subject to the obligations to undo (ongedaanmakingsverplichtingen) as a result of the dissolution.
10. Invoices already sent by Eatcard to the Client prior to termination, in any manner whatsoever, in connection with what has already been (partially) executed or delivered in the context of the Agreement must be paid by the Client. These invoice amounts are immediately due and payable at the moment of termination of the Agreement.
11. All provisions from the Agreement and these General Terms and Conditions intended to survive the termination of the Agreement remain in force after that termination. These provisions include (but are not limited to) the provisions regarding the exclusions and limitations of the liability of Eatcard, the Intellectual Property Rights, the applicable law, dispute resolution, and this provision.

Article 20: Additional Work

1. At the request of or with the consent of the Client, Eatcard can perform work and/or services falling outside the content or scope of the Agreement (additional work). The Client shall compensate this work and/or services at the agreed (hourly) rates, and in the absence thereof, at the customary (hourly) rates of Eatcard.
2. Eatcard is not obliged to execute additional work, as referred to in the preceding paragraph, and can demand that a separate agreement be concluded for the additional work.
3. The Client acknowledges and accepts that additional work can influence the execution of the Agreement, the responsibilities of the Parties, the potentially previously agreed fixed price, and/or deadlines.
4. Insofar as additional work is necessary with respect to an Agreement in which a fixed price was agreed, Eatcard shall inform the Client in writing upon request about the financial consequences of the additional work.
5. The fact that (the demand for) additional work arises during the execution of the Agreement is no ground for termination, dissolution, or nullification of the Agreement by the Client.

Article 21: Applicable Law

1. The Agreement is governed by Dutch law, with the exclusion of the Vienna Convention on Contracts for the International Sale of Goods (CISG). If the Client is not established in the Netherlands, but in another member state of the European Union, the choice of Dutch law leaves unaffected that the Client can claim the protection offered to it by mandatory provisions of the law of the member state of its establishment, insofar as those provisions cannot be validly set aside by contract

Article 22: Complaints and Dispute Resolution

1. Complaints must be submitted by the Client to Eatcard via email (support@eatcard.nl) as soon as possible, but in any case within 30 (thirty) days after the occurrence of the complaint.
2. All disputes between the Parties in connection with the Agreement will in first instance be resolved in mutual consultation.
3. All disputes arising from or related to the Agreement that cannot be resolved in mutual consultation within 30 (thirty) days shall be submitted for resolution to the competent court of the District Court of Oost-Brabant, location ‘s-Hertogenbosch, the Netherlands. In deviation from this, Parties can agree in writing to let their dispute be resolved by arbitration in accordance with the Rules of the Netherlands Arbitration Institute (NAI), with Amsterdam as the place of arbitration and Dutch law as the applicable law. If the Client is established outside the Netherlands, it has the right to bring a claim before the competent court of its place of establishment, insofar as the applicable European regulations grant it that right mandatorily.
4. The preceding paragraphs leave unaffected the power of the Parties to take protective measures and/or seek provisional remedies.

Article 23: Other Provisions

1. In these General Terms and Conditions, ‘in writing’ also means communication by email, if and insofar as the identity of the sender and the integrity of the content of the communication is sufficiently established.
2. Deviations from the Agreement and/or the General Terms and Conditions are only valid if they have been expressly accepted in writing by Eatcard.
3. If the Agreement is or becomes partially invalid or proves partially void, the Parties remain bound to the remaining part of the Agreement. Eatcard shall replace the invalid or void part with clauses that are valid and not void and whose legal consequences, given the content and purpose of the Agreement, correspond as much as possible with those of the invalid and/or void part.
4. All communications or notifications permitted or required under the Agreement must be made in writing.
5. Eatcard is entitled to change and/or supplement these General Terms and Conditions. The most current General Terms and Conditions can be found on the Website or will be brought to the attention of the Client. If the Client continues to use the services and/or products after modification and/or supplementation of the General Terms and Conditions, the Client thereby irrevocably accepts the new General Terms and Conditions.
6. The version of any communication and/or documents received or stored by Eatcard serves as authentic and binding proof, subject to counter-evidence provided by the Client.
7. Correspondence or communication from Eatcard taking place via electronic means is deemed by the Client to have been received at the moment of dispatch, subject to counter-evidence provided by the Client. If correspondence or communication proves not to have been received as a result of delivery and/or accessibility problems, this shall in all cases be for the account and risk of the Client.
8. Eatcard has the right to engage third parties for the full or partial execution of its rights and/or obligations under the Agreement.
9. The Client can only transfer its rights and/or obligations under the Agreement to a third party with prior written consent of Eatcard.