Terms & Conditions

Article 1. Applicability, formation of the agreement

1.1. These general conditions apply to all agreements, legal relationships and quotations with, or by the private company with limited liability “Mystery Review B.V.”, having its registered office in Hilversum, hereinafter to be called “Mystery Review”.

1.2. The applicability of general or specific (purchasing) conditions by client are hereby expressly rejected by Mystery Review and are therefore not applicable.

1.3. All offers or quotations made by Mystery Review are without obligation unless stated otherwise. If a term is mentioned in the offer or quotation, this term only refers to the validity of the offer or quotation and will not affect the commitment thereof.

1.4. Unless explicitly otherwise agreed upon, the agreement between Mystery Review and client is entered into by full acceptance of the quotation by client. Acceptance takes place by the signing of the order confirmation by client or the acceptance page in the quotation.

1.5. In case the acceptance of the offer differs from the conditions of the offer, Mystery Review reserves the right to issue a new offer, which replaces the old one. In that case the old offer is no longer valid. Client can accept that offer in the same manner as described above.

1.6. The actual commencement of the agreement by client, including but not limited to the payment of invoices issued by Mystery Review, construes acceptance of these General Terms and Conditions.

Article 2. Executing the agreement

2.1. Client must provide Mystery Review in a timely fashion and free of charge with all information and data necessary for the execution of the agreement. Client warrants and guarantees the accuracy of the aforementioned data. Client is also responsible for, and accepts the risk of potential problems or claims arising from the content, accuracy, completeness and consistency of all such data and information provided by client. Furthermore, client is obliged to inform Mystery Review in due time about facts or circumstances which can influence the execution of the agreement.

2.2. In the event that information necessary for the implementation of the agreement has not been provided to Mystery Review in a timely manner, or not at all, in accordance with the agreement, or if client and/or its suppliers cannot meet its obligations, including but not limited to adequately or deploy, Mystery Review is entitled to suspend the fulfillment of her obligations.

2.3. All delivery times given at any time by Mystery Review are to be considered approximate times and are never to be considered as firm terms.

2.4. To achieve the best result for client Mystery Review performs its duties to the best of its knowledge and ability.

2.5. Duties not part of the agreement will only be performed after prior written approval by client.

Article 3. Prices and rates, invoicing and payment

3.1. All prices and rates are indicated in Euros, exclusive of VAT and other levies imposed by authorities.

3.2. Mystery Review is entitled to yearly increase the prices and rates for its services. In case of continuing performance agreements, client can terminate the agreement if the increment is more than three (3) percent compared with the previous year.

3.3. All invoices shall be paid by client within 14 (fourteen) days after date of the invoice. Lack of payment within the stated terms shall mean that client, without a reminder or official notice, is in default. In such a case all other pending and open invoices become due and payable. In addition, Mystery Review is entitled to the statutory business interest on the outstanding invoices. All of the above without prejudice of the right of Mystery Review to claim additional damages from client. This includes all reasonable extrajudicial expenses.

3.4. Potential claims based on (alleged) incorrect invoices or (alleged) deficiencies in the performance of the agreement must be received in writing by Mystery Review within seven (7) working days after the invoice date or execution of the agreement. If not received within this time period, any claim regarding an invoice lapses.

3.5. The moment the agreement is entered into force, Mystery Review invoices 25% (twenty five percent) of the agreed upon amount for the agreement, however, in case the agreed upon amount does not exceed the amount of € 5.000 (five thousand Euros) VAT excluded, the agreed upon amount for the agreement is after the agreement enters into force, invoiced at once by Mystery Review. Mystery Review is not obliged to perform until the amount as set out in previous sentence of this paragraph, is paid .

3.6. In case Mystery Review visits a location, and the location is closed, or there is no one there, and this information was not disclosed to Mystery Review in advance, Mystery Review is entitled to invoice the price and/or rates for the agreed upon activities.

Article 4. Intellectual property rights

4.1. All intellectual property rights pursuant to the agreement and developed or made available to client remain solely vested in Mystery Review, unless agreed upon otherwise.

4.2. Client is explicitly allowed to present or publish the results of research done by Mystery Review for client, provided that Mystery Review is referred to as “Mystery Review <month of research> <year of research>”.

4.3. The retention of the intellectual property rights as set out in paragraph 1 of this article applies especially for (online) questionnaires. Therefore client is not allowed to use or reuse the (online) questionnaires without prior approval of Mystery Review.

Article 5. Non-disclosure, confidentiality

5.1. Information or documentation is considered confidential if it is designated by one party as such, or if the other party has knowledge of the fact, or can presume, that information or documentation is confidential.

5.2. The parties, and the staff of the parties, shall make use of confidential information which has been received or made available only in accordance with the stipulations in the agreement. They shall not make this material available to third parties, or approve the use of, without prior approval of the other party. Parties, and the staff of the parties, shall take all necessary precautions in order to protect them from unauthorized use and disclosure.

5.3. The provisions in this article shall not apply if one party has to make public confidential information pursuant to a court order or government decree.

5.4. Mystery Review is entitled to use Client’s trade name, pictorial mark and / or word mark on its website or in commercial material to demonstrate that Mystery Review has rendered activities and accomplished (a) solution(s) for Client. Hereby Client grants its permission to Mystery Review thereto.

5.5. The provisions in this article apply mutatis mutandis to the period of time before parties enter into an agreement, as well as to the period of time after termination, regardless the reason of termination.

Article 6. Processing personal data

6.1. Mystery Review is entitled to use and include the personal data of client which are required for its administration and management purposes in the internal registration system of Mystery Review.

6.2. On the basis of the GDPR and applicable laws and regulations and within the context of the processing of personal data, parties recognize and distinguish the following roles (including the associated responsibilities): the Client is the controller, Mystery Review is considered as processor, a third party contracted by Mystery Review that processes the personal data will be considered as a sub-processor.

6.3. Mystery Review will in the context of the execution of an Agreement process personal data on behalf and in accordance with instructions of client. Therefore, Mystery Review is not allowed to process personal data for its own purposes and/or provide it to third parties. Mystery Review will insofar possible follow up the directions of client regarding the processing of personal data of client.

6.4. Client warrants that the contents, the agreed upon use and the assignment to process personal data is not unlawful and will not infringe any right of third parties. Client shall in particular ensure that by the use of services special categories of personal data will not be processed. Client indemnifies and holds Mystery Review harmless for all claims related hereto.

6.5. Client takes appropriate technical and organizational measures in accordance with GDPR to protect personal data against loss or against any form of unlawful processing. These measures ensure, taking into account the current state of the technology and the cost of implementation, a level of security appropriate to the risks represented by the processing and the nature of the personal data to be protected. The measures are also aimed at unnecessary collection and further processing of personal data.

6.6. Mystery Review takes appropriate technical and organizational measures to secure the personal data against any illegal processing. These measures warrant, taking the current state of technology and the costs of implementing those measures into account, an adequate level of protection, considering the risks of processing, and the nature of, the personal data. The measures are also aimed at preventing unnecessary processing of personal data.

6.7. Client is for the duration of this agreement allowed to audit the aforementioned measures, which audit can be executed by Client an independent third party. Mystery Review hereby warrants to cooperate with such an audit, provided that: (i) the costs for the audit itself are borne by Client; (ii) the costs and/or time of Mystery Review regarding the cooperation (including time of staff), are borne by Client; (iii) the audit is not executed more than once a calendar year; (iv) there is a valid reason for the audit, such as loss of data; and (v) the scope of the audit is provided by client and the audit is limited to the aforementioned scope. Points (iii), (iv) and (v) do not apply in case the audit is due to investigation of a supervisory authority. Mystery Review cannot guarantee that an audit can take place by a subcontractor of Mystery Review which processes personal data.

6.8. Mystery Review is allowed to use a sub-contractor in the process of rendering its services. Upon first request of client Mystery Review will provide a list of sub-processors. Mystery Review may at its own discretion and judgment change and/or extend the list. In case Mystery Review expands or changes the list with new sub-processors, client will be notified at least two (2) weeks prior to using the intended sub-contractor and given the opportunity to object to the proposed new sub-processors.

6.9. In case Mystery Review suspects or knows that personal data of client is compromised, due to a data or security breach, Mystery Review notifies Client without delay. In response to this notification client assess independently whether it should notify data subjects and/or supervisory authorities. Client is and remains responsible for any legal obligation to notify. However, Mystery Review is willing to support client to fulfill its obligations under the applicable laws and regulations regarding the processing of personal data.

6.10. In case a data subject invokes his or her rights under the General Data Protection Regulation, it will forward the request to client. Client will follow up the request of the data subject. Mystery Review will inform data subject about the forward and will await further instructions of client.

6.11. After the expiry of the duration of the agreement / order or the stated processing period of the personal data or termination of the agreement / assignment Mystery Review will give client the opportunity to obtain the personal data before deleting the personal data.

6.12. The foregoing paragraphs of this article are deemed to be a basic data processing agreement in accordance with the GDPR.

Article 7. Transfer of rights and obligations, sub-contracting

7.1. Client is not entitled to transfer rights and obligations to a third-party, without prior written permission of Mystery Review. The permission referred to above cannot be withheld unreasonably by Mystery Review.

7.2. Mystery Review is entitled to make use of third parties when executing the agreement, whether by virtue of subcontracting or the hiring of personnel. Mystery Review shall contract the nondisclosure obligation, as described in the previous article, with these third parties.

7.3. Mystery Review is entitled to transfer all rights and obligations under the agreement, without any limitations, to third parties. Client shall be informed thereof as soon as possible.

Article 8. Attributable and non-attributable shortcomings

8.1. The total liability of Mystery Review caused by an attributable shortcoming in the performance of the agreement or any other reason, is limited to a compensation for direct damages up to the amount as stipulated in the agreement agreed upon for the agreement, exclusive of VAT. If the agreement is a continuing performance agreement, the liability is limited to a compensation up to half of the amount stipulated in the agreement agreed upon for the agreement for one (1) year, excluding VAT. In no event shall the total liability for direct damages to Mystery Review be more than € 40.000 (forty thousand Euros).

8.2. The liability of Mystery Review for indirect damages, consequential damages, lost profits, lost savings, loss of goodwill, damage due to business interruption, damages resulting from claims by customers of client, damage related to the use of goods, procedures, materials, software, suppliers dictated by client to Mystery Review, is excluded. Liability for damages due to mutilation, destruction or loss of data or documents is also excluded.

8.3. The aforementioned exclusions and limitations do not apply if and insofar as the damage is caused by willful misconduct or conscious recklessness of Mystery Review’s top level management.

8.4. Unless compliance by Mystery Review is permanently impossible, the liability of Mystery Review for an attributable shortcoming of an agreement will only be valid if client immediately notifies Mystery Review of the default situation, giving Mystery Review a reasonable period of time to remedy the situation, and after that period of time Mystery Review remains culpable in not complying with its obligations. The notice must give a detailed and complete description of the failure to perform, so that Mystery Review will have the opportunity to respond adequately.

8.5. The provisions of this article and all other restrictions and exclusions of liability specified in these general conditions, are also for the benefit of all persons or legal entities used by Mystery Review during the execution of the agreement.

8.6. Mystery Review is not obliged to perform any obligation if prevented from doing so due to a circumstance for which Mystery Review cannot be blamed, nor under the law, legal act or due to general and burdensome opinions. If Mystery Review invokes force majeure against client, Mystery Review shall notify client in writing as soon as possible regarding this issue.

8.7. Under a non-attributable shortcoming (force majeure) for Mystery Review is understood, among other things, as not being able to properly fulfill its obligations due to the lack of personnel, illness of personnel, strikes, traffic disruptions, loss of data and documents, power failures, late deliveries of goods and services, regardless of the fact that these take place at Mystery Review or its suppliers, unsuitability of materials, software or equipment provided by client and to be used by Mystery Review.

Article 9. Duration and termination

9.1. This agreement shall enter into force at the moment that parties have entered into an agreement, according to article 1 unless the agreement states otherwise. If the agreement is not a continuing performance agreement, the agreement terminates when the obligations of both parties have been executed according to the agreement. If the agreement is a continuing performance agreement, paragraphs 8.2 to 8.4 apply.

9.2. An agreement is concluded for the duration as specified in the quotation or order confirmation. If no duration is specified, a duration of one (1) year applies.

9.3. After expiry of the (initial) term of the agreement, the agreement is extended for a period equal to the initial period, unless client terminates the agreement taking into account a notice of thirty (30) days from the end of the period.

9.4. Early termination of a continuing performance agreement is not possible without explicit permission of Mystery Review. Mystery Review can pose additional conditions with such permission.

9.5. Despite what has been agreed upon in the agreement, Mystery Review is entitled to immediately terminate the agreement in writing and without any prior notice, in whole or in part:
a. in case of an attributable shortcoming in the performance of client’s obligations or compliance by client is impossible;
b. if it is clear to Mystery Review that client is not in a position nor willing to fulfill its obligations;
c. if client has applied for a suspension of payments situation, has been granted this suspension or has filed for bankruptcy, has been declared bankrupt, is about to liquidate its company, ceases to operate or appears to be insolvent in any other way;
d. If Mystery Review will suffer reputational damage through the cooperation with client or if further cooperation will lead to foreseen reputational damage of Mystery Review.

9.6. In case of termination as referred to above, Mystery Review cannot be held accountable for any payment of damages. Client is obligated to hold Mystery Review harmless and indemnify with respect to claims of third parties which could arise in connection with the dissolution as described in the preceding paragraph.

9.7. In case of termination pursuant to paragraph 8.5, client is bound to immediately reimburse expenses made by Mystery Review, notwithstanding the right of Mystery Review to claim a full indemnification.

9.8. If parties at the time of dissolution or termination of the agreement as mentioned above, already have performed and delivered activities, this performance and connected payments shall not be subject to the obligations to reverse.

9.9. Obligations, which, by their nature are intended to survive the termination, will remain in force. The termination of the agreement will not explicitly exempt parties from: confidentiality, intellectual property rights, applicable law and competent court.

9.10. In case Mystery Review granted client access to online environments, the access is revoked three (3) months after termination.

Article 10. Applicable law, competent court and other stipulations

10.1. All offers, agreements and agreements resulting from the agreement to which these conditions apply, are subject to Dutch law exclusively.

10.2. Parties preferably resolute their disputes through mediation.

10.3. In case parties cannot resolute their dispute regarding, or connected to, the agreement through mediation, parties submit the dispute to the competent court in the district (“arrondissement”) where Mystery Review has its registered office.

10.4. In case of confliction provisions, the order confirmation prevails upon these General Terms and Conditions and these General Terms and conditions prevail upon the quotation.

10.5. To the extent that any provision of these General Terms and Conditions are annulled or declared void, all other conditions between parties remain in force. In such a case, parties will agree to a new set of provisions, which will correspond as much as possible to the void or nullified conditions.