Terms & Conditions
This Agreement is entered into by and between ServiceApp B.V. (“Facilitee”) and the Customer that is purchasing a subscription to the Service (“Customer”) and is effective as of the date Customer first accesses the Service.
Admin Users means individuals who are authorized by Customer to access and use the Service on behalf of Customer, and who have been supplied user identifications and login credentials by Customer. Customer shall not exceed the maximum number of Admin Users in the subscription package at any given time.
Clients means all Customer's clients and customers.
Customer Data means all electronic data or information submitted by Customer or Admin Users to Facilitee via the Service.
Malicious Code means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
Partners means Suppliers resellers, channel partners or other members of Supplier's partner networks that provide services and/or sell products on behalf of Supplier.
Service means the online, cloud-based software applications, modules and content provided by Facilitee to Customer via the Internet. The specific applications, modules and content that will be provided are outlined in the Service description page on the Web Site.
Subscription Term means the period beginning on the Effective Date and continuing until the end of the Subscription Term, unless terminated earlier or renewed or extended as provided in this Agreement.
Use Limit means the quantity of the Service that Customer is authorized to use or access as mutually agreed. Use Limit is based on the license use meter (which may include, but is not limited to, Employees, Recipients, Clients, or Licensees, as applicable) by which Facilitee measures, prices and licenses the right to use the Service.
Users means individuals who are authorized by Customer to access and use the Service, and who have been supplied user identifications and login credentials by Customer. Users may customers of Customer; users of the property. Customer shall not exceed [..] active Users at any given time.
2. THE SERVICE
2.1 Provision of Service. Subject to the terms and conditions of this Agreement, and upon Customer's payment of the applicable fees, Facilitee shall use commercially reasonable efforts to make the Service available to Customer and its Admin Users and Users via the Internet 24/7 during the Subscription Term, except for planned maintenance and unscheduled maintenance performed outside normal business hours, upon 6 hours written notice. Customer's right to access and use the Service is limited to Customer's internal use only.
2.3 Partner Agreements. Supplier shall enter into agreements (each, a Partner Agreement) with each of its Partners and provide them access to the Service. Such Partners will offer additions to the Service which are deemed helpful to Customer and Users.
2.4 Third-Party CRM Applications. Customer understands and agrees that the Service does not include a license to any third-party CRM application.
2.5 Hosting Services. Facilitee or its hosting service providers shall host the Service.
2.6 Additional Services. To the extent that Customer requires any additional products or services, such as customizations, program modifications or additions, new modules (which add new functionality), new releases of new products (which have different names and different functionality from the Service), professional services or professional consulting services, Customer may order such additional products and/or services as shall be mutually agreed to by the Parties. Additional services (including, without limitation, professional services or professional consulting services) may be provided by Facilitee or her partner Typeqast B.V. upon the mutual agreement of the Parties for additional fees.
3. FEES AND PAYMENT
3.1 Subscription Fees. The subscription fees payable for the Service are per month after the month, based on Customer’s Subscription including the Use Limit. Except as otherwise set forth herein, (i) fees are quoted and payable in EURO, (ii) fees are based on Service subscriptions purchased and not actual usage, and (iii) payment obligations are non-cancelable and fees paid are non-refundable, except as permitted herein. If at any time Customer exceeds its authorized Use Limit but does not exceed its Use Limit by more than 5% then there will be no change to Customer’s pricing or Use Limit. However, if at any time Customer does exceed its authorized Use Limit by more than the applicable overage allowance, then (a) the Use Limit applicable to Customer’s Service subscription will be automatically increased to the next authorized Use Limit (b) Facilitee will notify Customer of the new Use Limit; and (c) Facilitee will invoice Customer for the difference between the subscription fees applicable to Customer at the prior Use Limit and Customer’s new Use Limit for the remainder of the Subscription Term. For the avoidance of doubt, all renewals shall be invoiced at the applicable Use Limit in place at the conclusion of the prior Subscription Term. Facilitee will adjust the pricing annually in line with inflation based on the CBS consumentenprijzen, 2015=100 (https://opendata.cbs.nl/#/CBS/nl/dataset/83131NED/table?dl=3AD62).
3.2 Expenses. Customer shall reimburse Facilitee for all expenses incurred by Facilitee with the prior approval of Customer in the performance of implementation or requested professional services, including, but not limited to, expenses of transportation in connection with providing services, reasonable expenses for out-of-town travel including meals, rental cars and lodging, professional and programming services which may be required such as secondary employees and other experts, as well as outside services such as programmers. Records of reimbursable expenses including statements and receipts shall be provided to Customer along with the invoice to which they pertain.
3.3 Invoicing and Payment. Fees will be invoiced in arrears in accordance with the agreed subscription. Fees are due thirty (30) days from the invoice date. All fees shall be paid in Euro into the bank account Facilitee has specified on the invoice. With each payment, Customer shall provide Facilitee with a listing of the Facilitee invoices that Customer is making payment against. If any amounts invoiced hereunder are not received by Facilitee by the due date, then such amounts shall accrue interest at the rate of 3% over the then current EURIBOR rate of the outstanding balance per month, or the maximum rate permitted by law, from the date such payment was due until the date paid. Notwithstanding anything to the contrary in this Agreement, and without limiting any remedies available to Facilitee, Customer shall be liable to Facilitee for all reasonable expenses, including but not limited to collections and legal fees, associated with Facilitee’s efforts to collect on an overdue invoice, with a minimum amount of 15% of the invoice or EUR 375.
3.4 Suspension of the Service. If any charge owing by Customer is thirty (30) days or more overdue, Facilitee may, without limiting its other rights and remedies, suspend the Service until such amounts are paid in full.
3.5 Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Service or on Customer's use thereof, which shall be separately invoiced, excluding taxes based on the net income of Facilitee. Customer shall provide to Facilitee any certificate of exemption or similar document required to exempt any transaction under this Agreement from sales tax or other tax liability.
4. PROPRIETARY RIGHTS
4.1 Reservation of Rights. As between the Parties, the Service and all intellectual property rights therein are and will remain the sole property of Facilitee (and her licensors if any), and no rights are granted to Customer with respect to the Service, or the intellectual property rights therein, other than the limited rights and licenses specified in this Agreement. Customer will not access or use the Service, or the intellectual property rights therein, except as expressly permitted by this Agreement.
4.2 Restrictions. Customer shall not at any time, directly or indirectly, and shall not permit any Admin User or User to (i) permit any third party to access or use the Service except as permitted herein, (ii) copy, modify or create derivative works based on the Service or the documentation, (ii) rent, lease, lend, sell, license, sublicense, publish, frame, mirror or otherwise distribute any part or content of the Service or documentation, (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Service, in whole or in part, or (iv) access the Service in order to (a) build a competitive product or service, or (b) copy any content, features, functions or graphics of the Service.
4.3 License to Feedback. Facilitee shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Service.
4.4 Customer Data. As between the Parties, Customer owns all right, title and interest in and to all Customer Data; provided that Facilitee will have the right to use the Customer Data to perform its obligations under this Agreement, to offer Users (in cooperation with her Partners) any additional services as part of the Services hereunder, and the ongoing right to use and disclose any Customer Data in an anonymized, de-identified or aggregated form (including, without limitation, the number of records in the Service, the number and types of transactions, configurations, and reports processed in the Service, and the performance results for the Service) ("De-Identified Data") both during and after the Term, in order to, among other things, share best practices and other data insights with its customers and to otherwise improve the Service, but only so long as the De-Identified Data is not individually identifiable. Customer is responsible for any (i) Customer Data submitted or contributed to the Service by Customer or Users, and (ii) Customer's and Users' use of such content, including without limitation its legality, reliability, accuracy, and appropriateness.
4.5 Service Suspension. Notwithstanding anything to the contrary in this Agreement, Facilitee may temporarily suspend Customer's and/or any Admin User's access to any portion or all of the Service if: (i) Facilitee reasonably determines that: (A) Customer's or any Admin User's use of the Service disrupts or poses a security risk to Facilitee or to any other customer or vendor of Facilitee; (B) Customer, or any Admin User, is using the Service in breach of this Agreement or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) Facilitee's provision of the Service to Customer is or becomes prohibited by applicable law; (ii) any vendor of Facilitee has suspended or terminated Facilitee's access to or use of any third-party services or products required to enable Customer to access and use the Service; or (iii) in accordance with Section 3.4 (any such suspension described in subclause (i), (ii), or (iii), a Service Suspension). Facilitee shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Service following any Service Suspension. Facilitee shall use commercially reasonable efforts to resume providing access to the Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Facilitee will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
5.1 Confidential Information. As used herein Confidential Information shall mean all confidential or proprietary information disclosed orally or in writing by one Party to the other that is identified as confidential or whose confidential nature is reasonably apparent. Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no fault of the receiving Party; (b) was in the receiving Party's lawful possession prior to the disclosure; (c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure or any breach of confidence; (d) is independently developed by the receiving Party; (e) is required to be disclosed by law; or (f) De-Identified Data.
5.2 Protection of Confidential Information. Each Party agrees to (i) hold the other's Confidential Information in confidence for a period of three (3) years after the date of disclosure, (ii) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care), and (iii) not use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder or as otherwise authorized by this Agreement. Notwithstanding the foregoing, either Party may disclose any of the other Party's Confidential Information to its employees or consultants or partners that have a need to know such Confidential Information in connection with such Party's performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section.
5.4 Compelled Disclosure. The receiving Party may disclose the Confidential Information of the disclosing Party if it is compelled by law to do so, provided the receiving Party gives the disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing Party's cost, if the disclosing Party wishes to contest the disclosure. If the receiving Party is compelled by law to disclose the disclosing Party's Confidential Information as part of a civil proceeding to which the disclosing Party is a party, the disclosing Party will reimburse the receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
5.5 Obligations on Termination. Upon expiration or termination of this Agreement, each Party will: (a) immediately cease all use of the other Party's Confidential Information; and (b) within ten (10) calendar days after such expiration or termination, confirm in writing to the other Party that it has permanently erased from computer memory, destroyed or returned to the other Party the other Party's Confidential Information, as well as any copies thereof on any media or in any form. Notwithstanding the foregoing, Facilitee may retain (i) Customer Data for a period of thirty (30) days in order to fulfill its obligations, (ii) De-Identified Data in accordance with Section 4.4; and (iii) any personally identifiable data as required by applicable laws, regulations, court orders or other legal process. In addition, any failure of Facilitee to return or destroy electronic copies of Customer Data that are automatically generated through data backup and/or archiving systems shall not be deemed to violate the provisions of this section, provided that Facilitee shall not use such back-ups or archived copies and such copies shall be subject to all confidentiality obligations set forth herein.
6. WARRANTIES, REMEDIES AND DISCLAIMERS
6.1 Facilitee Warranties. Facilitee warrants that the Service shall be provided materially in accordance with Facilitee's published documentation for the Service (which is available via the Service and on the Web Site). Facilitee further represents and warrants that it has taken commercially reasonable steps to prevent the introduction of any Malicious Code or any other internal components, devices or mechanisms designed to disrupt, disable, harm, or otherwise impair in any material respect the normal and authorized operation of the Service. In the event of any breach of the foregoing warranty, Facilitee will use commercially reasonable efforts to promptly repair the Service so as to be conforming. In the event of any breach of the foregoing warranty extending for thirty (30) days or more, or in the event that Facilitee is not able to repair the Service, Customer's sole remedy shall be the termination of this Agreement and the receipt of a refund of any amounts pre-paid for the Service for any period of time following such termination.
6.2 Mutual Warranties. Each Party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other Party any Malicious Code (except for Malicious Code previously transmitted to the warranting Party by the other Party).
6.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICE IS PROVIDED ON AN AS IS BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING. WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. FACILITEE DOES NOT WARRANT THAT THE SERVICE WILL SATISFY CUSTOMER'S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER'S ACCESS THERETO WILL BE UNINTERRUPTED.
7.1 Facilitee Indemnification. Facilitee agrees to defend Customer against any claims, demands, suits, or proceedings (each, a "Claim") made or brought against Customer by a third party alleging that Customer's use of the Service infringes or misappropriates the intellectual property rights of such third party and to indemnify Customer from any damages finally awarded by a court of competent jurisdiction against Customer or amounts agreed to in settlement by Facilitee in connection with any such Claim. Facilitee's obligations under this paragraph shall only apply to the extent that: (a) Customer promptly notifies Facilitee in writing of the Claim; (b) Facilitee has control of the defense and all related settlement negotiations relating to the Claim, provided however the settlement of any Claim shall not be made without advance written permission of Customer, which shall not be unreasonably withheld; and (c) Customer provides Facilitee with the assistance, information and authority reasonably necessary to perform the above. In no event will Facilitee have any obligation or liability under this paragraph for any Claim or action under any legal theory if the Claim or action is caused by, or results from: (i) Customer's combination, operation or use of the Service with software or other materials not supplied by Facilitee, (ii) any alteration or modification of the Service by Customer, (iii) Customer's continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, or (iv) the actions or omissions of any person or entity other than Facilitee.
7.2 Remedy for Infringement. Should Customer's right to use the Service pursuant to this Agreement be subject to a Claim of infringement or if Facilitee reasonably believes such a Claim of infringement may arise, Facilitee may, at its option and in its sole discretion (i) procure for Customer the right to continue to access and use the Services; (ii) modify the Service to render it non-infringing but substantially functionally equivalent to the Service prior to such modification; or (iii) if the alternatives described in clauses (i) and (ii) of this paragraph are not commercially practicable, then Facilitee may terminate this Agreement and refund to Customer any amounts pre-paid by Customer for the Service for the unused portion of the Subscription Term.
7.3 Customer Indemnification. Customer agrees to defend Facilitee against any Claims made or brought against Facilitee by a third party alleging that the Customer Data or any other information provided by Customer to Facilitee for use in connection with the Service, infringes or violates the intellectual property rights or privacy rights of a third party and to indemnify Facilitee from any damages finally awarded by a court of competent jurisdiction against Facilitee or amounts agreed to in settlement in connection with any such Claim. Customer's obligations under this paragraph shall only apply to the extent that: (a) Facilitee promptly notifies Customer in writing of the Claim; (b) Customer has control of the defense and all related settlement negotiations relating to the Claim, provided however the settlement of any Claim shall not be made without advance written permission of Facilitee, which shall not be unreasonably withheld; and (c) Facilitee provides Customer with the assistance, information and authority reasonably necessary to perform the foregoing. Facilitee shall promptly provide Customer with written notice of any Claim which Facilitee believes falls within the scope of this section. Facilitee shall not be responsible for any delay or disruption to the Customer's use of the Service, including any damages stemming therefrom, caused by a Claim falling under this section.
8. LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ITS OBLIGATIONS UNDER SECTION 7 (INDEMNIFICATION), IN NO EVENT SHALL FACILITEE'S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, EXCEED THE AMOUNT OF MONEY PAID BY CUSTOMER FOR THE SERVICE DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. WITH RESPECT TO ITS OBLIGATIONS UNDER SECTION 7 (INDEMNIFICATION) ABOVE, THE LIABILITY OF FACILITEE TO CUSTOMER FOR ACTUAL DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE), SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID (OR PAYABLE) BY CUSTOMER TO FACILITEE HEREUNDER IN THE PRECEDING 12 mONTHS. THE FOREGOING SHALL NOT LIMIT THE PARTIES' PAYMENT OBLIGATIONS UNDER SECTION 3 ABOVE. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO FACILITEE HEREUNDER REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT FACILITEE WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION.
9. TERM AND TERMINATION
9.1 Term of Agreement. Unless otherwise terminated as provided herein, this Agreement commences on the Effective Date and continues until termination thereof.
9.2 Termination. A Party may terminate this Agreement upon thirty (30) days' written notice to the other Party. This Agreement may be terminated forthwith if (i) a material breach remains uncured at the expiration of a reasonable notice period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Notwithstanding the foregoing, if at any time Customer is not satisfied with the Service or otherwise believes that Facilitee has failed to satisfactorily complete the setup of the Service, then Customer's sole remedy shall be to notify Facilitee of the failure and Facilitee shall then use commercially reasonable efforts to correctly set up the Service.
9.3 Refund or Payment upon Termination. Upon any termination by Customer, and subject to any adjustment under Section 3.1, Facilitee shall refund Customer any prepaid fees covering the unused portion of the Subscription Term. In no event shall any termination relieve Customer of its obligation to pay any fees payable to Facilitee for any period prior to the effective date of termination.
10. COMPLIANCE WITH LAW
10.1 Compliance. Customer shall comply with all applicable laws, rules, or regulations in its use of the Service.
10.2 Standards for Accepting Client Email Lists. Customer shall send emails on an "Opt-In" basis only; no emails may be sent via the Service unless they are "Opt-In" and are in compliance with all applicable laws. Facilitee strongly urges Customer to send to double Opt-In lists only. In no event may Customer use the Service to send Spam. As used herein, "Spam" shall mean (a) unsolicited commercial email sent to a recipient who has not provided his/her/its email address directly to the sender, or sent to a recipient who would not have a reasonable expectation of receiving email from the sender, or who has entered their email address on a recognized list in order not to receive unsolicited communications (unless Customer has an explicit opt-in consent to receive direct marketing from Customer from that recipient addressed directly to Customer), or (b) any email advertising illicit or illegal activities, or (c) any electronic message sent to email addresses provided by a third party. Customer accepts all liability for, and agrees to indemnify and hold Facilitee and its owners, officers, employees, representatives, agents, licensors, successors and assigns harmless from and against, any and all claims, damages, charges, costs, expenses, liabilities, causes of action and other obligations arising in connection with or as a result of (i) Customer's supplying Facilitee with email address lists that were provided by a third party or that are not "Opt-in", or (ii) Customer's sending electronic mail that does not comply with the requirements of this Section 10. Nothing in this Section 10.2 shall limit or prejudice the general obligations of Customer set forth in Section 10.1 above.
10.3 Surviving Provisions. All emails built and/or sent by or on behalf of Customer using the Service must include a built-in unsubscribe link. Clicking unsubscribe links in the Service will flag an email address of a contact in Customer's database as an "Opt-Out" and prevent sending of email to that contact email address in the future. Customer shall remove all contacts that have elected to unsubscribe via mail within forty-eight (48) hours of receipt of the written request or earlier where required under applicable law.
11. GENERAL PROVISIONS
11.1 Force Majeure. Neither Party shall be in default if a failure to perform any obligation hereunder is caused solely by supervening conditions beyond that Party's reasonable control, including acts of God, civil commotion, strikes, labor disputes and governmental demands or requirements. When a Party's delay or non-performance continues for a period of fifteen (15) days or more, the other Party may terminate this Agreement without penalty. Any prepaid amounts shall be refunded on a prorated basis.
11.2 Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
11.3 Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and delivered to the addresses set forth on the first page of the Agreement and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after overnight delivery, (iii) the first business day after sending by email.
11.4 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.5 Assignment. Customer may not assign, sublicense, or transfer this Agreement, the Service, any right to maintenance and/or support, or any rights or obligations hereunder without prior written consent of Facilitee. Any such purported assignment, sublicense, or transfer shall be null and void. Facilitee may terminate this Agreement in the event of any such attempted assignment, sublicense, or transfer upon written notice to Customer.
11.6 Governing Law; Venue. This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the laws of the Netherlands, without regard to its conflicts of laws rules. The courts located in Amsterdam, the Netherlands shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each Party hereby consents to the exclusive jurisdiction of such courts.
11.7 Entire Agreement. This Agreement, including all exhibits and addenda hereto, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.