Terms & Conditions


CHAPTER I - GENERAL TERMS

Article 1 - Definitions

In these general terms and conditions, the following terms shall have the following meanings:

  1. Bitgate: defined in article 2 of these general terms and conditions;
  2. Counterparty: the legal entity or person which Bitgate has an Agreement with; 3. Consumer: a natural person which acts for personal use and not for business purposes; 4. Agreement: any Agreement between Bitgate and the Counterparty for the provision of Services by Bitgate to the Counterparty;
  3. Parties: the Counterparty and Bitgate;
  4. In Writing: by e-mail, by post, by electronic device like Whatsapp;
  5. Third Party(ies): Other natural or legal persons who are not part of an Agreement; 8. Service(s): software related applications, websites and other tech-support services produced by Bitgate.

Article 2 - Bitgate

Name: Bitgate
Address: Ericssonstraat 2
Postal code and city: 5121 ML Rijen
E-mail: [email protected]

Article 3 - General provisions

  1. These general terms and conditions apply to all offers and all (legal) acts of Bitgate and to all Agreements concluded between Bitgate and the Counterparty.
  2. If the Agreement is concluded electronically, then, contrary to the previous paragraph, and before the Agreement is concluded, the text of these general terms and conditions will be made available to the Counterparty electronically in such a way that it can be easily stored by the Counterparty on a durable data carrier. If this is not reasonably possible, then before the Agreement is concluded, it will be indicated where the general terms and conditions can be consulted electronically and that, at the request of the Counterparty, they will be sent electronically or otherwise free of charge.
  3. Unless expressly agreed otherwise In Writing, the applicability of other general terms and conditions is excluded.
  4. Deviations from or additions to these general terms and conditions shall only be valid if expressly agreed In Writing.
  5. If and insofar as no appeal can be made to any provision of these general terms and conditions on the grounds of reasonableness and fairness or its unreasonably onerous nature, the provision in question will in any case be accorded a meaning corresponding as closely as possible to its content and purport, so that an appeal can be made to it.
  6. Bitgate cannot guarantee that the service it carries out will always achieve the result desired by the Counterparty. The accepted order leads to an effort commitment and not to a result commitment.
  7. Bitgate is entitled to engage Third Parties for the execution of the Agreement. 8. The effect of Article 7:404 and/or 7:407 paragraph 2 of the Dutch Civil Code is/are excluded if the Counterparty acts for business purposes.
  8. The Counterparty's right of suspension and right of set-off are excluded if the Counterparty acts for business purposes.

Article 4 - The offer

  1. If an offer has a limited period of validity or is made subject to conditions, this will be explicitly stated in the offer.
  2. The offer contains a complete and accurate description of the digital content and/or Services offered. The description is sufficiently detailed to allow a proper assessment of the offer by

the Counterparty. Obvious errors or mistakes concerning, for example, the amounts displayed are not binding on Bitgate.

Article 5 - The Agreement

  1. The Agreement is concluded at the moment the Counterparty accepts the offer and fulfils the conditions laid down in the offer.
  2. If any provision of these general terms and conditions or an Agreement proves to be invalid or is voided, this shall not affect the validity of these general terms and conditions or the Agreement as a whole. The parties shall consult together in order to agree on a new provision to replace the void or voided provision, taking into account, as far as possible, the objective and purport of the void or voided provision.
  3. Bitgate reserves the right not to execute an Agreement, for example if it has reasonable doubt or information that the Counterparty will not (be able to) meet its (financial) obligations. If Bitgate refuses to execute, it will inform the Counterparty In Writing of this refusal within a reasonable time after entering into the Agreement.
  4. These general conditions also apply to future, additional and/or follow-up Agreements. 5. Agreed delivery dates are always indicative. The delivery dates are not final deadlines. Exceeding a delivery date therefore does not give the Counterparty a right to compensation. 6. If the Counterparty has accepted the offer electronically, Bitgate will confirm receipt of acceptance of the offer electronically.

Article 6 - Dissolution and notice periods

  1. If the Counterparty does not fulfil one or more of its obligations, or does not fulfil them on time or adequately, is declared bankrupt, applies for (temporary) suspension of payments and/or deferral of payments, proceeds to liquidate its business, or if its assets are seized in whole or in part, Bitgate has the right to suspend the execution of the Agreement or to terminate and/or dissolve the Agreement by operation of law and without prior notice of default in whole or in part by means of a Written statement, all this at its discretion and always without prejudice to any of its rights to compensation for costs, damages and interest.
  2. If the Agreement is terminated on the grounds of force majeure, Bitgate is entitled to payment for the hours already worked or the investments already made at the time of the termination of the Agreement.
  3. An Agreement can always be terminated by the end of the month by both parties, unless otherwise agreed upon.

Article 7 - Liability

In case the Counterparty is a Consumer:

  1. The total liability of Bitgate is limited to compensation for damage up to the amount of the fee (excluding VAT) stipulated for that Agreement. Under no circumstances will the total compensation for damage amount to more than the amount to be paid out by the liability insurance of Bitgate.
  2. If the Agreement is a continuing performance contract with a term of more than six months, the fee stipulated for that contract shall be set at the total of the fees (exclusive of VAT) for the past six months prior to the event causing the damage.
  3. Not limited is the liability of Bitgate for damage caused by intent or gross negligence of Bitgate.

In case the Counterparty is acting in the course of a profession or business:

  1. Bitgate is not liable for indirect and direct damages. Not excluded is the liability of Bitgate for damages resulting from intent or gross negligence of Bitgate.
  2. If Bitgate is nevertheless liable for direct damage, Bitgate's total liability will be limited to compensation for damage up to the amount of the fee (excluding VAT) stipulated for the Agreement.
  3. The amount of the compensation shall never exceed the amount paid out by the liability insurance.
  4. If the Agreement is a continuing performance contract with a term of more than six months, the fee stipulated for that contract will be set at the total of the fees (excluding VAT) for the past six months.
  5. Direct damage is understood to mean:
    • Reasonable costs that the Counterparty would have to make to make the performance of Bitgate to meet the Agreement; however, this replacement damage will not be compensated if the Agreement is dissolved by or at the suit of the Counterparty;
    • Reasonable costs incurred by the Counterparty in being forced to keep its old system or systems and associated facilities operational for a longer period because the Company failed to deliver on a final delivery date that was binding for it, less any savings resulting from the delayed delivery;
    • Reasonable costs incurred in determining the cause and extent of the damage insofar as the determination relates to damage within the meaning of these terms and conditions;
    • Reasonable costs incurred to prevent or limit damage insofar as the Counterparty demonstrates that these costs have led to limitation of damage within the meaning of these terms and conditions.
  6. The Counterparty indemnifies Bitgate for any claims by Third Parties, who suffer damage in connection with the execution of the Agreement.

General provisions on liability:

  1. The existence of any right to compensation is always conditional upon the Counterparty reporting the damage In Writing to Bitgate as soon as possible after the damage arose. Each claim for compensation against Bitgate expires by the mere lapse of 12 (twelve) months after the claim arose.
  2. The Company is not liable for damage caused by auxiliary persons as referred to in Article 6:76 of the Dutch Civil Code.
  3. Bitgate is not liable for damage of any kind, because Bitgate has relied on incorrect and/or incomplete information provided by the Counterparty.

Article 8 - Force majeure

  1. In addition to the provisions of Article 6:75 of the Dutch Civil Code, a failure by Bitgate to comply with any obligation towards the Counterparty cannot be attributed to Bitgate in the event of a circumstance independent of the will of Bitgate, as a result of which the compliance with its obligations towards the Counterparty is wholly or partially impeded or as a result of which the compliance with its obligations cannot reasonably be required from Bitgate. These circumstances include non-performance by suppliers or other Third Parties, (power) failures, computer viruses, extreme weather conditions, fire (danger), (imminent) danger of war, pandemics, epidemics, quarantines, absenteeism of irreplaceable employers, disability, strikes, government measures and the failure equipment with which the Services are operated.
  2. If a situation as referred to in paragraph 1 of this article occurs as a result of which Bitgate cannot fulfil its obligations towards the Counterparty, these obligations will be suspended for as long as Bitgate cannot fulfil its obligations. If the situation referred to in the previous sentence has lasted 30 (thirty) calendar days, both Parties are entitled to dissolve the

Agreement in whole or in part In Writing. In that case, Bitgate will not be obliged to pay compensation for any damage, even if Bitgate gains any advantage as a result of the force majeure situation.

Article 9 - Guarantee

  1. Bitgate guarantees that the Services meet the Agreement, the specifications listed in the offer, the reasonable requirements of reliability and / or usability and on the date of the conclusion of the Agreement existing legal provisions and / or government regulations. 2. The warranty does not apply if:
  2. The delivered Services have been exposed to abnormal conditions or otherwise carelessly treated or contrary to the instructions of Bitgate;
  3. The software or hardware from Counterparty is non-compliance with the Service Bitgate delivers.
  4. The inadequacy is wholly or partly the result of regulations which the government has laid down or will lay down with regard to the nature or quality of the materials used.

Article 10 - Fee/Price

  1. All amounts are in Dollars or Euros and inclusive of sales tax and other government levies, unless otherwise agreed.
  2. Bitgate reserves the right to make an inflation correction once a year.
  3. The agreed amounts are based on cost price determining factors at the time of the offer. Bitgate reserves the right to pass on any changes in cost price determining factors to the Counterparty, three months after concluding the Agreement, over which Bitgate has no reasonable influence, such as increases in excise duties, social security contributions, insurance payments or turnover tax, up to a maximum of 20% of the original amount.
  4. A compound quotation does not oblige Bitgate to execute a part of the Agreement for a corresponding part of the quoted amount.
  5. Discounts and quoted amounts do not automatically apply to future Agreements.

Article 11 - Payment and invoicing

  1. Insofar as not otherwise provided for in the Agreement or supplementary conditions, the amounts owed by the Counterparty must be paid within 14 (fourteen) days after the invoice date.
  2. The Counterparty has the duty to report inaccuracies in data provided or specified payment immediately to Bitgate.
  3. If the Counterparty does not meet its payment obligation(s) on time, it will be pointed out by Bitgate that the payment is too late and the Counterparty will be given a period of 7 (seven) days to meet its payment obligations. If payment is not made within this seven-day period, the Counterparty will be in default and will owe the statutory (commercial) interest on the outstanding amount. Furthermore, Bitgate is entitled to charge extrajudicial collection costs.
  4. In the event of (a reasonable prospect of) bankruptcy, liquidation or suspension of payments or a debt restructuring within the framework of the WSNP, the claims of Bitgate on the Counterparty and the obligations of the Counterparty towards Bitgate are immediately due and payable.
  5. Payments made by the Counterparty shall first be applied to settle all interest and costs due, and secondly to settle due and payable invoices that have been outstanding the longest, even if the Counterparty indicates that the payment relates to a later invoice.

Article 12 - Complaints

  1. The Counterparty can no longer invoke a defect in the performance if it has not protested to Bitgate within 2 (two) months of discovering the defect or when it should reasonably have discovered it. If there is a visible defect on delivery, a period of 48 (forty-eight) hours applies.
  2. The Counterparty must give Bitgate at least 4 (four) weeks to resolve the complaint in mutual consultation.
  3. If a complaint is not reported to Bitgate within the time limits mentioned in the previous paragraphs, the product is deemed to comply with the Agreement and to function in accordance with the Agreement.
  4. Complaints do not suspend the Counterparty's payment obligation if the Counterparty acts for business purposes.

Article 13 - Transfer of rights and obligations

  1. Rights of a party under this Agreement cannot be transferred without the prior Written consent of Bitgate. This provision is a clause with effect under property law as referred to in Article 3:83 (2) of the Dutch Civil Code.

Article 14 - Additional work

  1. If Bitgate, at the request of the Counterparty or at its own request and with the prior Written consent of the Counterparty, has carried out activities or other performances which go beyond the content or scope of the Agreement, these activities or performances will be compensated by the Counterparty according to the usual tariffs of Bitgate. The Counterparty is never obliged to comply with such a request and may demand that a separate Written Agreement be concluded for this purpose.
  2. The Counterparty accepts that work or performance as referred to in paragraph 1 of this article may influence the agreed objectives and expectations.
  3. Insofar as a fixed amount has been agreed for the Services, Bitgate will always inform the Counterparty in Writing in advance of the financial consequences of the additional work.

Article 15 - Intellectual Property

  1. All intellectual property rights relating to and/or resulting from the Services provided by Bitgate are vested in Bitgate. The Counterparty only obtains the non-exclusive and non transferable user rights that are explicitly granted by these conditions and the law. Any other or further rights of the Counterparty are excluded.
  2. The documents provided by Bitgate to the Counterparty are exclusively intended to be used by the Counterparty. The Counterparty is not allowed to publish and/or reproduce the obtained information in whatever form. This includes editing, selling, making available, distributing and integrating - whether or not after editing - in networks, except that such disclosure and/or reproduction is permitted In Writing by Bitgate and/or such disclosure and/or reproduction arises from the nature of the Agreement with Bitgate.
  3. Bitgate reserves the right to use the knowledge acquired in the execution of the Agreement for other purposes, provided that no confidential information of the Counterparty is provided to Third Parties.
  4. Unless otherwise agreed, the Counterparty is not authorized to grant sub-licenses to Third Parties.
  5. Bitgate has the right to use the name and logo of the Counterparty as a reference or promotion.
  6. The Counterparty indemnifies Bitgate for the claims of Third Parties concerning intellectual property rights.
  7. If the Counterparty acts in violation of this article, the Counterparty will owe an immediately payable penalty equal to three times the stipulated amount for that Agreement, without prejudice to Bitgate's right to compensation.

Article 16 - Management of technical services

  1. Bitgate is at all times entitled to make changes to the technical facilities with regard to the Services.
  2. The Counterparty will act and behave in accordance with what may be expected from a responsible and careful user of the service(s).
  3. The Counterparty is always responsible for any use - including unauthorized use - that is made of the rights of use and access granted to it and will act and behave in accordance with what may be expected from a responsible and careful user.
  4. The Counterparty will at all times follow the instructions given by Bitgate for the use of the service(s).
  5. Bitgate is entitled to change the non-technical facilities of its Services. A change that, in the reasonable opinion of Bitgate, requires a significant, non-temporary adjustment on the part of the Counterparty, will be made known to the Counterparty as soon as possible. Counterparty cannot claim compensation or damages, but has the right to terminate the Agreement as of the date of the announced change.
  6. Bitgate reserves the right to discontinue/remove technical services if these services cause a disruption and/or delay to the system. Bitgate will assess whether there is a disruption and/or delay and can, without prior notice to the Counterparty, block the technical services or take other measures to eliminate the disruption and/or delay.
  7. Bitgate is entitled, without prior notice, to put its Services (temporarily) out of use or to limit the use of the Services insofar as this is necessary for the reasonably required maintenance or for the necessary adjustments or improvements to the Services to be carried out by Bitgate, without this giving rise to a right to compensation from the Counterparty towards Bitgate.

Article 17 - Confidentiality

  1. The Counterparty is obliged to keep all confidential information, which the Counterparty has obtained from Bitgate in the context of the Agreement, confidential. Information is confidential if this is communicated by Bitgate or if this reasonably follows from the nature of the information.
  2. If the Counterparty breaches paragraph 1 of this provision, the Counterparty will, irrespective of whether the breach is attributable to the Counterparty and without prior notice of default or legal proceedings, owe Bitgate an immediately payable penalty of 10,000 euros (ten thousand euros) for each breach without the need for any form of damage, without prejudice to Bitgate's other rights, including its right to claim damages in addition to the penalty.

Article 18 - Exclusivity

  1. For the duration of the Agreement, the Counterparty grants Bitgate the exclusive right to carry out the assigned Agreement.

Article 19 - Applicable law

  1. Agreements between Bitgate and the Counterparty and these general terms and conditions are governed exclusively by Dutch law.
  2. Disputes between Parties will be resolved as much as possible through proper consultation. All disputes between the Counterparty and Bitgate will be settled exclusively by the competent court in the district where Bitgate has its registered office.

Article 20 - Survival

  1. The provisions of these general terms and conditions and the Agreement which are intended to remain in force after termination of the Agreement shall remain in full force after the termination of the Agreement.

Article 21 - Amendment or supplementation

  1. Bitgate is entitled to unilaterally amend or supplement these general terms and conditions. In that case, Bitgate will inform the Counterparty in time of the changes or additions. 2. There will be a minimum of 30 (thirty) days between this notification and the entry into force of the amended or supplemented terms and conditions.
  2. If the amendment gives Bitgate the authority to deliver a performance that differs substantially from the promised performance, the Counterparty is entitled to refuse the amended terms and conditions or to dissolve the Agreement.


CHAPTER II - DATA PROCESSING TERMS

Article 22 - Processing of personal data

  1. Should Bitgate be designated as a processor as referred to in article 4 paragraph 8 of the Algemene Verordening Gegevensbescherming (AVG), articles 22 to 27 of these general terms and conditions qualify as agreements to be made in accordance with article 28 paragraph 3 of the Algemene Verordening Gegevensbescherming (AVG).
  2. Bitgate will process personal data on behalf of the Counterparty. Bitgate processes, among other things, the personal data of Counterparty’s clients, such as: name, address, place of residence, telephone number, email address and salutation.
  3. Bitgate processes personal data of Third Parties in order to execute the Agreement entered into with Counterparty.
  4. Such data is never the property of Bitgate. Data provided by the Counterparty for the above-mentioned purpose will remain the property of the Counterparty.

Article 23 - Obligations of Bitgate

  1. Bitgate is only responsible for the processing of personal data which, in the context of the Services offered, is processed under the conditions set out in these general terms and conditions. Bitgate is explicitly not responsible for any other processing of personal data, including the collection of personal data by Counterparty and/or Third Parties, unless such Third Party has been appointed by Bitgate.
  2. Bitgate will not, unless it has obtained express prior written consent from the Counterparty and complies with legal requirements, process personal data in countries outside the European Economic Area ("EEA"). Transfer of personal data to countries outside the EEA that do not have an adequate level of protection is prohibited. Bitgate will promptly notify the Counterparty in Writing of any planned permanent or temporary transfers of personal data to a country outside the EEA and will only implement the transfer(s) with the Counterparty’s written consent.
  3. Bitgate will keep personal data concerning Counterparty separate from personal data it processes for itself or on behalf of Third Parties.
  4. Bitgate will process the personal data in a proper and careful manner and in accordance with Bitgate's obligations under privacy legislation, including European Regulations and the AVG.

Article 24 - Data security

  1. Bitgate will, in accordance with Article 32 AVG, take all appropriate technical and organizational measures to secure personal data against loss or any form of unlawful processing. These measures will, given the costs involved and the state of the art, correspond to the nature of the personal data to be processed.
  2. Bitgate makes every effort to prevent breaches of security with respect to personal data as much as possible, to detect them and to take action against them if necessary.

Article 25 - Reporting data breach

  1. In the event of a security breach and/or a data leak as referred to in the Algemene Verordening Gegevensbescherming, Bitgate will inform the Counterparty as soon as reasonably possible.
  2. The obligation to report will at least include reporting the fact that there has been a leak or incident, as the (alleged) cause of the leak or incident, the as yet known and/or expected consequence and the (proposed) solution.
  3. Counterparty will, if in its opinion necessary, inform data subjects and other Third Parties including the Personal Data Authority of a data leak or other incident.
  4. Bitgate is not permitted to provide information about a data breach or other incidents directly to Data Subjects or other Third Parties, except to the extent Bitgate is required to do so by law or has obtained consent from the Counterparty.

Article 26 - Privacy rights of individuals

  1. Bitgate cooperates with Counterparty to, upon approval of, and at the behest of Counterparty:
  2. Provide Data Subjects with access to personal data concerning them;
  3. delete or correct personal data relating to data subjects;
  4. demonstrate that personal data has been deleted or corrected, if it is incorrect (or there is discussion about the correctness of personal data).
  5. Bitgate shall, to the extent reasonably possible, cooperate with the Counterparty in complying with its obligations under the Algemene Verordening Gegevensbescherming or other applicable laws relating to the processing of personal data. The responsibility for compliance with these obligations rests entirely and exclusively with the Counterparty. The costs associated with such cooperation are not included in the agreed prices and fees of Bitgate and shall be borne entirely by the Counterparty

Article 27 - Inspection

  1. Bitgate will permit Counterparty to inspect Bitgate's compliance with the security measures or, at Counterparty’s request, to have Bitgate's processing facilities inspected by a designated investigative agency.
  2. Counterparty will pay all costs, fees and expenses associated with the Inspection, including reasonable internal costs incurred by Bitgate.
  3. Counterparty will provide Bitgate with a copy of the report of the Inspection. 4. If the Agreement is terminated, Bitgate will destroy all personal data it has regarding that Agreement.