General Terms and Conditions
Last updated: 3 June 2019
Flex-Appeal B.V. ("Flex-Appeal", "we", "us") provides the Customer with various innovative solutions to share knowledge and connect with employees as a company in an effective and easy way.
The General Terms and Conditions ("General Terms and Conditions"), together with the other signed conditions, set out all the conditions applicable between the Customer and Flex-Appeal. If any agreements are made with the Customer in the Agreement that are not in accordance with/are in conflict with the General Terms and Conditions, the specific agreements in the Agreement prevail.
Article 1 – Definitions
- Software: the application developed by Flex-Appeal including updates;
- Service: making the Software and Maintenance available;
- Fault(s): substantial non-compliance with Software specifications as described on the Website. A fault shall only be deemed to exist if the Customer demonstrates the fault, the fault can be reproduced, and if the Customer reports the fault to Flex-Appeal, as soon as can be reasonably expected of the Customer after discovery of the fault;
- Customer: the company that enters into the Agreement with Flex-Appeal for the benefit of the Service;
- Agreement: the agreement that Flex-Appeal enters into with the Customer with regard to the use of the Service, concluded by a partnership agreement, including processor agreement and general terms and conditions;
- Parties: Flex-Appeal and the Customer jointly;
- Help Desk: Flex-Appeal's help desk which the Customer and/or User(s) can contact from 9:00 a.m. to 5:00 p.m. from Monday through Friday with questions about the Service and/or Software. The Help Desk will respond as quickly as reasonably possible and try to support the Customer and/or User(s) to the best of its ability;
- User(s): employee(s) to whom the Customer offers the option to use the Service on the basis of the Agreement;
- Website: the Flex-Appeal website www.flex-appeal.nl as well as all underlying web pages;
- Data: all data, content and information entered into the Service by the Customer, User(s) and/or third parties - with the exception of Flex-Appeal and/or third parties designated by it;
- Maintenance: the maintenance of the Software performed by Flex-Appeal, including support by means of the Help Desk;
- In writing: in writing or "by electronic means" as referred to in Article 6:227a of the Dutch Civil Code.
Article 2 – General
- These General Terms and Conditions apply to any offer we make to the Customer or to any agreement we conclude with the Customer;
- We will send these General Terms and Conditions by email at the request of the Customer. These can also be read on www.flex-appeal.com/en/terms;
- We reserve the right to change these General Terms and Conditions. The Customer agrees that the latest version of these General Terms and Conditions shall apply at all times. If a crucial change is made, we will inform the Customer of this by email;
- If any part of this agreement is null and void or voidable, this shall not affect the validity of the rest of these General Terms and Conditions or the agreement to which they apply. The void or voidable part shall be replaced by a provision which reflects, as far as possible, the content of the void provision.
Article 3 – Right of use
- Within the framework of the Service, the Customer and each User of the Customer will have access to a username and password. The Customer is responsible for maintaining the confidentiality of its own username and password combination, as well as for ensuring that its Users keep their username and password confidential. The Customer is therefore liable for any use of the Service by it or (one of) its User(s) through the username and password. Flex-Appeal can assume that the Customer is actually the person logging in under the username of the Customer;
- Provided that the Customer has fulfilled its payment obligations in full, Flex-Appeal shall grant the Customer a non-exclusive, non-transferable and non-sublicensable limited licence to use the Software in accordance with the provisions of the Agreement and these General Terms and Conditions;
- The Customer is responsible for the technical operation and maintenance of its Internet connection, internal network and all other IT systems required by our system requirements for the use of the Software;
- The Customer is not permitted to (attempt to) lease, encumber, license or make the Software available to a third party for any reason;
- The Customer may only use the Service in and for its own company or organisation and only for the intended use. The Customer is fully responsible for the acts and omissions of its Users in their use of the Service. The Customer indemnifies Flex-Appeal against claims from its Users in connection with all damage and costs arising from and/or related to the use of the Service by the Users;
- We have the right to block a User account. We will do so if it appears or if we have reasonable suspicion that one or more of the User accounts is in violation of the law or the Agreement. In addition, we reserve the right to attach other consequences to the use described above;
- As soon as the Customer becomes aware or should reasonably know that the password and/or user name has come into the hands of unauthorised persons, the Customer shall notify Flex-Appeal as soon as reasonably possible, without prejudice to the Customer's own obligation to take effective measures in the shortest possible time, such as changing the password.
Article 4 – Maintenance and availability
- We will ensure that the Customer can use the Software during the term of the Agreement with the Customer. We will endeavour to make the Software available 24 hours a day, 7 days a week. We are responsible for the operation and maintenance of the Software;
- We reserve the right to (partially) disable the Software for maintenance. In principle, we carry out maintenance outside office hours. The Customer will receive a notification from us regarding the scheduled maintenance 2 working days prior to the scheduled maintenance. Only in an emergency we will logically not be able to send maintenance notifications;
- In case of questions regarding the Services and/or the Software, the Customer can contact the Help Desk through the Software and Website. The Help Desk will make every effort to answer the Customer's questions within three (3) working days;
- The User shall inform Flex-Appeal as soon as possible if there is a fault in the use of the Software, such as error messages, unexpected reduction in quality, failure of a component or functionality of the Software. The User can do this by telephone on telephone number: (+31) 10 268 14 60, by email at email@example.com or via the Help Desk;
- We reserve the right to modify the Software and to change, remove or add certain features or functionalities of the Software;
- Unless expressly agreed otherwise in writing, Flex-Appeal shall not be obliged to maintain, amend or add features or functionalities of the Service or Software specifically for the Customer;
- If the renewed version of the Software contains new functionalities, Flex-Appeal may enable these at the Customer’s request. Flex-Appeal may charge the Customer additional costs for this. The purchase of this new functionality is not mandatory;
- We do not guarantee that the Service and/or the Software to be made available and kept available to the Customer is fault-free and functions without interruptions; despite our best efforts, we cannot offer a full guarantee that the Service and/or the Software to be made available and kept available to the Customer is fault-free and without shortcomings;
- We cannot guarantee that Faults will not occur and that they will be resolved. Flex-Appeal will, however, make every effort to correct any Faults in the Service as soon as possible; despite our best efforts, we cannot offer a general guarantee regarding the non-occurrence of Faults and the resolution of Faults concerning the Service;
- We shall be entitled to charge maintenance costs to the Customer if it appears that there are user faults, incorrect use of the Software by the Customer or any other cause not attributable to Flex-Appeal;
- Flex-Appeal shall not be responsible or liable for any loss of Data due to improper or incorrect use of the Software by the Customer. Nor shall Flex-Appeal be obliged to carry out repair work in such a case.
Article 5 – Security
We consider the safety of the Software and the security of the Data to be very important. As a result, we use comprehensive security systems and modern technologies to ensure the highest possible level of safety and security. In any case, we apply the following measures:
- Secure network connections with Secure Socket Layer (SSL), or similar technology, so that data is always transmitted securely to and from the relevant device;
- Data security in accordance with the ISO 27001 standard;
- Access to stored Data is limited to a strict number of Flex-Appeal employees;
- Confidentiality statements for each employee within Flex-Appeal;
- Sensitive Personal Data such as passwords are stored by means of encryption;
- Data is regularly automatically copied to other data centres in other locations through a secure and encrypted connection.
Article 6 – Force majeure
Neither the Customer nor Flex-Appeal may be held liable by the Party in default for any breach in respect of this Agreement where force majeure is involved. If the breach of the Agreement due to force majeure lasts longer than one (1) month, the Agreement may be terminated in writing by the party in breach. No right to compensation shall exist in such a case.
Article 7 – Intellectual property rights
- We (or our licensors or suppliers) are the exclusive owners of all existing and future intellectual property rights, excluding Data, such as copyrights, trademark rights, design rights, patent rights, source code and know-how, vested in or arising from the Software;
- The Customer merely obtains the right to use the Software. No claim can be made to the intellectual property rights referred to in paragraph 1. The right to use the Software is non-exclusive and it is not permitted to transfer or license the right to use the Software;
- The Customer hereby grants Flex-Appeal the right to use the Customer's name as well as any of the Customer's logos in various communications, including - but not limited to - advertising, promotional communications, in a pitch and on the Website.
Article 8 – Confidentiality
We are obliged to maintain the confidentiality of the Customer's confidential information. By 'confidential information' we refer to all information which the Customer has indicated is confidential or which arises from the nature of the information. The following is, under any circumstance, considered confidential information:
- information relating to research and development, trade secrets or business information;
- personal data as referred to in the Personal Data Protection Act. An exception to this is when we have to disclose confidential information due to legal obligations and when we intervene for ourselves in disciplinary, civil or criminal proceedings in which this information may be important.
Article 9 – Liability
- We are not liable for the content of the Data that the Customer has stored, collected or processed in the Software;
- We are not liable for damage caused by improper use of the Software by the Customer or its Users;
- We shall only be liable for direct damage which is the direct and exclusive consequence of a shortcoming on our part; we may only be held liable by the Customer to the extent that Flex-Appeal has acted wrongfully towards the Customer, by which the Customer has suffered direct damage, and only after the competent court has decided on the matter and that court decision has become final and conclusive;
- Our liability is always limited to the maximum amount that our insurer pays in the relevant case;
- We will carefully store the Customer's Data. We shall not be liable for any damage to or loss of the Data stored with us or with third parties;
- Flex-Appeal's liability for indirect loss, consequential loss, loss of profit, loss of savings, reduced goodwill, loss due to business interruption, loss resulting from claims by third parties, materials, services and/or software of third parties and loss relating to the engagement of suppliers is excluded. Liability for mutilation, destruction or loss of data is also excluded;
- Any right to compensation shall always be subject to the condition that the Customer reports the damage to Flex-Appeal in Writing as soon as possible after its occurrence. Any claim for damages against Flex-Appeal shall lapse twelve (12) months after the damage occurs;
- The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence on our part.
Article 10 – Prices and payment
- All prices are exclusive of VAT and other levies imposed or to be imposed by the government. Unless stated otherwise, all prices are stated in euros and the Customer must make all payments in euros;
- The Customer will receive an annual invoice, unless otherwise agreed in writing between the Parties. Payments must be made within fourteen (14) days of the invoice date, unless otherwise agreed in writing or stated on the invoice;
- During the term of an Agreement, Flex-Appeal shall be entitled to increase the prices for its Services annually, with effect from 1 January, in accordance with the price index figure for the previous calendar year, as published by Statistics Netherlands (Consumer Price Index 'All Households');
- If (full) payment has not been received by Flex-Appeal after expiry of the term referred to in paragraph 1, the Customer shall automatically be in default. In that case, the Customer shall owe statutory (commercial) interest on the outstanding amount. The interest on the amount due and payable shall be calculated from the moment the Customer is in default until the moment the Customer pays the amount due in full;
- If the Customer fails to comply with its payment obligation towards Flex-Appeal after the first demand for payment, Flex-Appeal shall be entitled to assign the claim. All costs incurred by Flex-Appeal, including litigation and judicial and extrajudicial costs, as well as costs of legal assistance, bailiffs and debt collection agencies, shall be borne by the Customer;
- The relevant documents and data from Flex-Appeal's records or systems shall constitute conclusive evidence of the Services performed by Flex-Appeal and the corresponding amounts due by the Customer, without prejudice to the Customer's right to provide evidence to the contrary;
- Flex-Appeal shall be entitled to increase the prices for its Services in the event of an increase in the costs to be incurred by Flex-Appeal or a change in the functionalities of the Service. Flex-Appeal shall notify this price increase at least one (1) month before the date on which the price increase takes effect. Flex-Appeal will implement this price increase at the next billing cycle.
Article 11 – Duration and termination
- The Agreement is entered into for an indefinite period of time, unless the Agreement provides otherwise. The Agreement is always tacitly renewed for a period of one (1) year. Termination of this Agreement is subject to a notice period of one (1) calendar month. This means that an Agreement with an Effective Date of 25 May must be terminated before 1 May.;
- Parties may terminate the Agreement in writing with immediate effect in the following cases:
- when the other Party applies for a moratorium of payments;
- upon a moratorium is granted to the other Party;
- when the other Party files for bankruptcy;
- if the other Party is declared bankrupt;
- in the event of the administration, receivership or debt restructuring of the other Party;
- Termination of the Agreement on the grounds of attributable breach by one of the Parties shall only be permitted by the Party against whom the breach is made after a detailed written notice of default has been sent to the Party in default, whereby the Party in default is given a reasonable period of time to remedy the breach and the breach is not remedied by the Party in default within that reasonable period of time;
- The Customer may, within one year after termination of this Agreement, download and store the Data collected, processed and stored with the Software. At the end of this period, the Customer will no longer have access to the Data. The Customer is solely responsible for downloading and storing the Data.
Article 12 – Privacy
Article 13 – Costs, absence
- The Customer shall reimburse all costs incurred by Flex-Appeal to compel the User to comply with the Agreement; in the event that Flex-Appeal incurs costs to ensure that the Customer complies with its obligations under this Agreement, the Customer shall be required to reimburse Flex-Appeal for such costs;
- If a particular obligation is not fulfilled or a particular term for the fulfillment of an obligation expires, Flex-Appeal shall first serve notice of default on the Customer. If the Customer fails to comply with the obligations of the notice of default, the Customer shall be in default;
- The Customer shall only be in default to the extent that the Customer fails to fulfil any of its obligations to Flex-Appeal under this Agreement after Flex-Appeal has sent the Customer a notice of default and given the Customer a reasonable period within which to do so and the Customer fails to comply with its obligations within such reasonable period.
Article 14 – System requirements
For the systems listed below, the use of Service always requires an Internet connection.
Internet browser support:
- Internet Explorer 10 or higher
- Google Chrome
Mobile operating systems support:
- iOS 10.0 or higher
- Android 5.0 or higher
Article 15 – Transfer
The Customer is not entitled to transfer the Agreement or the rights and/or obligations under the Agreement to a third party.
Article 16 – Nullity
If any part of the Agreement is null and void or voidable, this shall not affect the validity of other parts of the Agreement. The void part shall be replaced by a provision which, as far as possible, reflects the content of the void provision.
Article 17 – Applicable law and dispute resolution
- The Agreement, including these General Terms and Conditions and the execution of it shall be governed exclusively by Dutch law;
- All disputes which may arise between the Parties in connection with the Agreement shall be submitted to the competent court in Rotterdam.