Terms and Conditions

1. GuestWave’s solutions
   • GuestWave is a trade name of Hummingbird Data Group B.V. (“GuestWave”) and GuestWave provides digital services for the hospitality industry in the broadest sense. GuestWave helps organizations to be able to maximize their guest experience and maximize the return from their data by unlocking it, analyzing it and deploying the knowledge and data thus obtained.
   • These terms and conditions apply to all offers, quotations, assignments by or to GuestWave or other agreements between GuestWave and Client relating to data quality and customer insight.
     
2. Entering Agreement
   • An offer or quotation from GuestWave is without obligation. If no other period of validity is stated in the offer, the offer is valid for a period of 30 days.
   • An agreement shall be established upon written order confirmation by GuestWave, or, in the absence of confirmation, upon GuestWave’s execution of an order, at GuestWave’s discretion.
   • After verification of the order confirmation for accuracy and completeness by Client, GuestWave’s order confirmation and/or agreement is binding. Client shall notify GuestWave of any comments or inaccuracies in writing or by email within five (5) business days.
   • Client may request to modify or amend an order already granted. A change is only considered agreed upon if GuestWave has confirmed it in writing or by email. GuestWave may adjust previously agreed prices and conditions for changes to an existing order or agreement and shall inform Client in advance.
     
     

3. Prices
   • Prices and rates are exclusive of VAT and other levies, unless otherwise agreed in writing.
   • Any price increases imposed on GuestWave by third party suppliers during the execution of an order may be passed on to Client. GuestWave will inform Client of such price increases as soon as possible, after which Client may decide whether or not to continue purchasing the service.
   • Agreed prices may be adjusted by GuestWave annually on January 1 based on the Consumer Price Index (CPI) as determined over the preceding year, as determined by CBS, unless the parties agree otherwise in writing.
     
     

5. Invoices and payment
   • The payment period for GuestWave invoices is 14 days from invoice date, unless otherwise agreed in writing.
   • Immediately upon formation of an agreement, GuestWave may invoice in whole or in part, unless otherwise agreed in writing.
   • Should the invoice amount be incorrect in the opinion of the Client, the Client shall respond in writing to GuestWave within 5 business days of the invoice date.
   • If an invoice is not paid within the agreed period, GuestWave’s claim shall become immediately due and payable and GuestWave shall be entitled to reimbursement of all reasonable judicial and extrajudicial costs incurred by GuestWave in this regard and, in addition, the statutory commercial interest on the amount owed by the Client from the first day that the payment period has expired.
   • If a payment is late, or remains outstanding, GuestWave has the right to (i) suspend (further) performance of its obligations under the agreement with Client until full payment of outstanding receivables has been made; and (ii) retain and suspend the surrender of items and/or files made available to GuestWave by Client, until all payment obligations have been met.
   • Client is not entitled to suspend or offset payment of amounts due.
   • GuestWave may ask the Client to provide adequate security, such as a prepayment (full or partial) before GuestWave provides its services (further) to the Client.
     
     
6. Cancellation
   Except with GuestWave’s express written consent, Client may not terminate or cancel the assignment and/or agreement in the interim. If GuestWave agrees to prematurely terminate the agreement, or cancel a confirmed assignment, GuestWave will receive from Client proportional compensation for costs incurred up to that point, including reasonable compensation for lost profits.
   
   
7. Dissolution / interim termination
   • If:
     a) a party – despite proper written notice of default – is unable to fulfill its obligations under the agreement between the parties, properly or in a timely manner, and/or;
     b) there is bankruptcy, suspension of payments or receivership, liquidation and/or attachment of a substantial part of the assets of a party,
     the other party may, without any obligation to pay damages, dissolve the agreement in whole or in part, or suspend further performance of the agreement.

7. Duration of agreement; prohibition on assignment
   • An agreement is for the duration of the assignment and ends upon completion of the assignment.
   • If no further term is agreed upon in writing, and the agreement provides for GuestWave to perform work and/or provide services periodically, the agreement shall be for an indefinite period of time. An indefinite term contract may be terminated by either party with a notice period of three (3) months, unless otherwise agreed in writing.
   • Except with GuestWave’s express written consent, the Client is not permitted to transfer rights and/or obligations under the agreements concluded with GuestWave, in whole or in part, to third parties. If GuestWave consents to such transfer at the request of Client, GuestWave may attach conditions to the consent.

8. Liability
   • The parties shall make every effort to perform the agreement properly.
   • In the event of an attributable failure to perform an obligation under the agreement, one party shall give the other party written notice of default, in which the defaulting party shall be granted a reasonable period of time to still perform its obligations.
   • The parties shall give each other such cooperation as is necessary to enable one party to investigate and, if desired, remedy where possible any deficiency reported by the other party.
   • The liability of the parties is limited:
     • Liability of a party for indirect damages, including but not limited to consequential damages, lost profits, missed savings, damages due to business interruption and/or image damage is excluded.
     • Direct damages, which are the direct result of a shortcoming attributable to the other party, shall be compensated by the other party. Such damages shall be limited to the net invoice amount relating to the delivery and/or services provided from which any damages have arisen and which invoice amount was actually paid to GuestWave. Direct damages shall in any case not include costs for printing, shipping and other costs necessary for the dissemination of (marketing) information.

9. Force majeure
   • If a party cannot fulfill its obligations due to force majeure, those obligations shall be suspended for the duration of the force majeure condition. If the state of force majeure lasts longer than 3 months, both parties have the right to dissolve the agreement in writing in whole or in part.
   • In the event of force majeure, Client is not entitled to any compensation (damages).
   • GuestWave shall notify the Client as soon as possible of an (expected) force majeure situation.

10. Services provided by GuestWave
    • GuestWave makes every effort to perform its services to the best of its knowledge and ability, in accordance with the agreements made with the Client. Client is solely responsible for the manner in which the services and advice provided by GuestWave are used.
    • GuestWave will perform the work at its own discretion, whether or not by engaging third parties. This possibility is without prejudice to the provisions of any processor agreement between the parties regarding the engagement of any sub-processors.
    • Unless otherwise agreed in writing, compensation for services shall be based on the number of calls to GuestWave’s system in combination with or on the basis of hours spent. If it is agreed that the services will be provided by a specific person, GuestWave is always entitled, after consultation with the Client, to replace this person by one or more other persons with (similar) qualifications. The Client shall cooperate in the performance of the services requested from GuestWave and make any necessary equipment available to GuestWave for this purpose.
    • Any delivery times given are indicative and not a deadline.
    • If Client would like a job to be completed more quickly or more work to be done, GuestWave may, in its sole discretion, be able to comply with that request under additional conditions such as an adjustment to the agreed upon prices.
    • Any defects or complaints about GuestWave’s performance of an order must be notified by the Client to GuestWave in writing, stating reasons, within eight days of the performance of the order, failing which the Client shall lose its claim for alleged defects and GuestWave shall be deemed to have delivered what was agreed with the Client.
    • If a complaint is justified in GuestWave’s opinion, GuestWave will still perform the services and/or supply the data as previously agreed, unless this has become demonstrably pointless for the Client and the Client has confirmed this in writing or by email. In that case the parties will jointly seek another solution.

11. Processor agreement and confidentiality
    • If an assignment or agreement relating to services provided by GuestWave entails the processing of personal data by GuestWave for which the Client is the “data controller” as referred to in the General Data Protection Regulation (AVG), GuestWave shall comply with the legal obligations as applicable to “processors” as referred to in the AVG and a processor agreement shall additionally be concluded between the parties.
    • GuestWave shall strictly follow any instructions given by Client around processing of personal data for which Client is “controller”.
    • Parties will treat confidential information of each other, including the data of GuestWave and Client, as well as personal data, (background) information about the (construction of the) services of the other party, including methods, systematics, strategies and working methods, confidential. They shall take the utmost care in doing so and shall not disclose confidential information to third parties in any way. Employees of the parties have an equal obligation to keep confidential that information which has been recorded in writing. This duty of confidentiality continues after the end of an assignment.
    • Upon violation of the provisions of this article, the violating party, after a notice of default, shall owe a fine of €10,000 for each violation and €750 for each day that the violation continues, regardless of all other rights of the other party to performance, dissolution, and additional damages.

12. Secure handling of data
    • GuestWave maintains an information security policy.
    • Only GuestWave’s secure transfer environment will be used for the transmission of (personal) data, unless otherwise agreed in writing with Client. GuestWave is not responsible for the consequences of sending or transporting data to be processed and results obtained if sent by other means at the instruction of the Client.
    • For any storage of (personal) data, only GuestWave’s secure environment in the Netherlands will be used, unless otherwise agreed in writing with Client.
    • Personal data for which the Client is responsible will be deleted after 3 months after termination of the assignment, unless otherwise agreed in writing with the Client.
    • GuestWave may provide Client with login credentials (such as a password) to access a secure transfer environment. These login details are strictly personal and Client shall keep these details confidential. Client shall make the necessary (contractual) provisions to this end, including but not limited to imposing the obligation on its employees to keep the obtained login data confidential.

13. Trusted (third party) party
    • For questions regarding the processing of personal data, the Client may contact GuestWave’s privacy officer and/or GuestWave’s data protection officer who is registered with the Dutch Data Protection Authority.
    • GuestWave may receive and match (personal) data from one or more clients upon request. GuestWave guarantees that one party will not obtain access to the other party’s data and will enter into a multi-party agreement upon request.

14. Services Data
    • GuestWave provides services and solutions as a result of which data is made available to it that includes personal data – data traceable to an individual natural person.
    • “Data” means all data belonging to GuestWave or which GuestWave may use.

15. Usage Rights Data
    • Client is only entitled to use the Data for the purposes as agreed in writing with GuestWave. Use of the Data is permitted only by Client itself, unless otherwise agreed in writing.
    • GuestWave makes best efforts to keep the Data accurate and current. To prevent the use of inaccurate Data, Client is required to always use the most recent Data and any software made available by GuestWave in its applications. Client shall indemnify GuestWave for any damages or claims resulting from the use of outdated Data and/or software provided by GuestWave.
    • Other than when using Data for data quality purposes, Client is not entitled to incorporate Data, whether edited or not, in its entirety into its own files or databases unless expressly agreed otherwise in writing.
    • Client acknowledges that GuestWave is a data controller with respect to its Data as far as personal data is concerned.
    • The Client itself is also the data controller and is therefore responsible and liable for the purposes and manner of use of the Data and personal data contained therein and/or knowledge insights based thereon and the provision of information to data subjects. Client shall indemnify GuestWave for claims by third parties, including supervisory authorities, to the extent that these are the direct result of an incorrect basis for processing used by Client or inadequate provision of information to data subjects.
    • After the end of the agreed period of use and at GuestWave’s first request (for example, due to changed legislation or a changed view of a regulator, at GuestWave’s discretion), Client shall immediately destroy or delete the personal data contained in the Data from its systems.
    • With regard to the use of the (supplied) Data, Client is only entitled to deviate from the provisions of this agreement and terms and conditions after GuestWave has expressly confirmed this in writing. For each deviation from the agreed use established by GuestWave, the Client shall owe an additional (usage) fee, based on the nature and extent of the additional or non-agreed use.

16. Intellectual property rights
    • GuestWave owns all intellectual property rights, including database rights and copyrights, in all Data, any software and (SaaS) services or otherwise, that it makes available to Client under the Agreement. Client shall prevent those proprietary rights of GuestWave from being limited or nullified in any way, or encumbered or encumbered by any third party rights.
    • GuestWave warrants that no copyright or other intellectual property right of any third party is infringed and indemnifies Client against any third party claims in this regard.
    • Except for the rights of use expressly granted to Client in writing, Client shall not be entitled to copy or otherwise reproduce, disclose or exploit any items, data, software, services rendered or results of services made available to Client by GuestWave, other than for the agreed use as set forth in terms of use and/or in a further agreement. Insofar as the goods made available consist of data or data files, they may not be “retrieved” or “reused” within the meaning of the Databases Act, except insofar as this is necessary for the realization of the agreed use of such data or data files. The foregoing restrictions shall not affect the Client’s rights arising from Sections 45j and 45k of the Copyright Act (the permitted own use for backup and archive purposes).
    • Any data provided by the Client shall remain the property of the Client, as well as the intellectual property rights vested therein. Client guarantees that no copyright or other intellectual property rights of third parties are infringed and indemnifies GuestWave against any claims of third parties in this regard.
    • All information, methods, formulas, techniques, systems, etc. are and shall remain the intellectual and physical (as applicable) property of GuestWave. These terms and conditions or any concluded agreement to which these terms and conditions apply does not have as its subject the transfer of any ownership. GuestWave indemnifies the Client against claims of third parties regarding intellectual property rights of these third parties on the materials and data provided by GuestWave.
    • Without prior written consent of the other party, the parties are not permitted to use logos, trademarks, trade names or other intellectual property of the other party in communications (such as advertisements and other advertising) with third parties.

17. Check
    • Client agrees that any delivery of Data, whether or not containing (email) addresses/files, may have control addresses or attributes added to it. These control addresses or characteristics may have been added both by GuestWave and by the relevant file owner. Such control addresses or characteristics have been added to protect the Data, in order to control the way the Data is used. Misuse and/or use of the Data in violation of what has been agreed upon is deemed to be demonstrated at all times, if this can be made plausible on the basis of the control addresses or characteristics explicitly designated as such by GuestWave and/or the file owner and is therefore conclusive evidence.
    • GuestWave, as the “responsible party” as referred to in the AVG with respect to the Data, is authorized to periodically perform (or have performed) an audit of the use and the processes of security used by the Client of the Data provided or put into use by GuestWave. Client shall provide the necessary cooperation to this end and, among other things, provide insight into actual use of the Data by Client and the security procedures and protocols used. GuestWave shall inform Client in writing (or by email) 4 weeks prior to the audit and indicate in which information Client would like to have insight.
    • Information obtained from an audit shall be treated confidentially and kept secret by GuestWave and thus not shared in any way with third parties. If and to the extent that inspection of Client’s security procedures would, in Client’s judgment, pose an unacceptable risk to that security, Client may suffice with a more general description of the security measures taken.

18. Data breach
    If and to the extent that there is a breach of the security of the Client’s systems by unauthorized third parties, as a result of which GuestWave’s Data is (has been) accessed, which has serious adverse consequences for the protection of the personal data processed, the Client shall notify GuestWave of this as soon as possible after discovery so that GuestWave can comply with its reporting obligation to regulators and data subjects. Client will then contact GuestWave’s privacy officer.
    
    
19. Other
    • Client and GuestWave enter into a partnership with each other. In the event of a dispute, a solution will always first be sought in consultation. If it is not possible to reach a mutual solution within 14 days of a dispute arising, the dispute will be submitted to the management of both parties, who will then try to reach a mutual solution. If no solution is reached within 4 weeks after a management consultation, the dispute may be submitted to the competent court, unless the parties agree on another form of dispute resolution.
    • Any claims shall expire one year after delivery or performance of a service.
    • Changes in legislation or changing views of regulators may be an immediate reason for the parties to change (provisions in) the agreement and/or these terms and conditions. The parties will then agree on an amendment that does justice as much as possible to the intentions of the provisions in the agreement and/or these terms and conditions, without prejudice to the other provisions in these terms and conditions.
    • The applicability of general terms and conditions of the Client is expressly rejected by GuestWave.

In the event of a dispute over the amount owed to GuestWave by the Client, the administrative records are