Terms and Conditions

Last update: 28-12-2020

1 Definitions

1.1 In these general terms and conditions, “user” means the private company Zzapps BV, with its registered office and principal place of business at High Tech Campus 9, (5656 AE) in Eindhoven, registered in the trade register of the Chamber of Commerce under number 62297023 and under “client the other party of the user or the customer / supplier.

2 Applicability of these terms

2.1 These terms and conditions apply to every offer and every agreement between the user and the client to which the user has declared these terms and conditions applicable.

2.2 Deviations from and additions to these general terms and conditions are only valid if agreed in writing between the parties.

2.3 The present terms and conditions also apply to all agreements with the user, for the implementation of which third parties must be involved.

3 Quotation

3.1 All our offers are without obligation, unless the user explicitly states a term for acceptance in the quotation.

3.2 Conditions and prices as included in the user’s offers are in no case valid for longer than 2 weeks, unless indicated otherwise.

3.3 The User is only bound by a quotation it has issued if a term for acceptance is stated in this quotation and the acceptance of this quotation is confirmed in writing by the Client within this term.

3.4 Contrary to the provisions of art. 6:225 paragraph 2 of the Dutch Civil Code, an acceptance by the client that deviates from the offer or quotation of the user on minor points does not bind the user.

3.5 The prices in the quotes mentioned are exclusive of VAT, unless indicated otherwise.

4 Performance of the agreement

4.1 The User strives to perform the agreement to the best of his knowledge and ability and in accordance with the requirements of good workmanship and on the basis of the current state of knowledge.

4.2 The client shall ensure that all data, which the user indicates are necessary or which the client should reasonably understand to be necessary for the execution of the agreement, are provided to the user in a timely manner. If the information required for the execution of the agreement has not been provided to the user in time, the user has the right to suspend the execution of the agreement and/or to charge the client for the additional costs resulting from the delay in accordance with the usual rates. . The client guarantees the correctness of all data provided to the user.

4.3 The user is in no way liable for damage, of whatever nature, caused by the fact that the user has relied on incorrect and/or incomplete information provided by the client.

4.4 If it has been agreed that the agreement will be executed in phases, the user can suspend the execution of those parts until the next phase until the client has approved the results of the preceding phase in writing or has made payment for these phases.

5 Scope of the right of use

5.1 Rights that the client acquires under the agreement with the user are, unless expressly agreed otherwise in writing, non-transferable and non-sublicensable.

5.2 The client is in no way entitled to allow the services provided by the user to be used for the benefit of any other (legal) person than the client and its employees. Information provided by the user to the client may only be used by the client.

5.3 The client is expressly not permitted to use the services provided by the user for or by more than the number of users agreed upon at the conclusion of the agreement, or subsequently. If the client does so, the user is entitled to a fee based on the agreement for the period in which and the number of users with whom the services have been used without a right of use.

5.4 The client is not permitted to transfer any rights or obligations arising from the agreement or the terms and conditions to third parties.

6 Third parties and third-party products

6.1 For the execution of the agreement with the client, the user is at all times entitled to use products or services that originate from third parties and of which the intellectual property rights and other rights do not, in principle, rest with the user. These products are referred to as “Third Party Products”, their suppliers are “Third Parties” and the terms and conditions that the third party has declared applicable to the agreement regarding the use or provision of this Third Product are “Third Terms”.

6.2 One of the third parties that the user may engage is Google LLC or one of its related companies, for the provision of the third product ‘Google Workspace’ and ‘Google Cloud Platform’ services. The agreement for the delivery of this third product is entered into between the user and the client.

6.3 A category of third parties that can be engaged by the user are the third parties that make source codes available under specific usage rights. The agreement for the delivery of this third product is entered into between the user and the client.

6.4 User provides rights to products of the aforementioned and further engaged or engaged third parties only under the conditions as described in the third conditions and not further or more than stipulated in the agreement between the user and the third party. User will send these third terms and conditions, if available to user, upon request. In the event that the provisions of the user’s general terms and conditions and the third-party terms and conditions conflict or conflict with each other, the user has the right to declare the provisions of the third-party terms and conditions inapplicable.

6.5 The user is at all times entitled to invoke force majeure vis-à-vis the client if the third party engaged by the user is unable to make its product available, or to make it available on time, either during a certain period or at a specific time. available at the moment.

6.6 The user is in no way liable or responsible for a failure attributable to a third party engaged by the user in the fulfillment of an agreement with the client.

7 Maintenance and Support

7.1 The user only provides maintenance if and insofar as agreed in writing with the client. In principle, the user does not provide maintenance on third products, unless otherwise agreed in writing by the user and the client.

7.2 The User only provides support for the most recent versions, releases and updates of the (third) products as made available to the Client.

7.3 Support includes consulting documentation. In addition, questions may be submitted twenty-four (24) hours a day via email. Only if support by e-mail cannot be offered, the client is entitled to telephone support during office hours (on working days we strive to be reachable from 9:00 a.m. to 5:00 p.m.), with due observance of the provisions of paragraph 5 of this article. . The support concerns the functionality of the services provided by the user when actually used by the client.

7.4 Support does not include:

a) system configuration, hardware and network services;

b) structural work such as defining layouts, overviews, setting up roles and rights schemes, import definitions and links to third-party software;

c) on-site support;

d) expanding the functionality of the web application at the request of the customer;

e) converting files;

f) third-party database services from manufacturers other than suppliers;

g) installation, configuration, training or other services not expressly described in the agreement, unless otherwise agreed;

h) support for (operating) software from manufacturers other than the user, which also includes third-party software that can be started from the web application;

i) file repairs, where the cause cannot be attributed to the web application;

j) providing newly available products;

k) Internet connection support;

I) support in an environment that is not supported according to the system requirements.

7.5 Support may only be requested by the client. If the user so wishes, the client will designate one contact person within the client’s company who is entitled to request support from the user.

7.6 Before contacting the user for support by telephone, the client is obliged to first consult the applicable documentation, to submit questions by e-mail and to try in any other way to solve the present problem without the intervention of the user.

7.7 In the context of providing support, the user is entitled to view the client’s data.

7.8 If the user carries out work on the instructions of the client with regard to the subjects referred to in paragraph 3 a) to I), the user will charge the client for these activities separately in accordance with the prices and costs incurred by the user at that time.

8 Contract duration; execution time

8.1 The agreement is entered into for an indefinite period of time, unless the parties expressly agree otherwise in writing.

8.2 No term stated by the user shall be regarded as a strict deadline. If the execution term is exceeded, the client must therefore give the user written notice of default.

9 Amendment of the agreement

9.1 If during the execution of the agreement it appears that for a proper execution it is necessary to change or supplement the work to be performed, the parties will adjust the agreement accordingly in good time and in mutual consultation.

9.2 If the parties agree that the agreement will be amended or supplemented, the time of completion of the execution may be affected as a result. User will inform the client of this as soon as reasonably possible.

9.3 If the change or addition to the agreement has financial and/or qualitative consequences, the user will inform the client about this in advance.

9.4 If a fixed fee has been agreed, the user will indicate to what extent the amendment or supplement to the agreement will result in this fee being exceeded.

10 Secrecy

10.1 Both parties are obliged to maintain the confidentiality of all confidential information that they have obtained from each other or from another source in the context of their agreement. Information is considered confidential if this has been communicated by the other party or if this results from the nature of the information.

10.2 All documents provided by the user, such as reports, advice, designs, sketches, drawings, software, animations, music, etc., are exclusively intended to be used by the client and may not be reproduced by him without the prior consent of the user , made public or disclosed to third parties.

10.3 The User reserves the right to use the knowledge gained through the performance of the work for other purposes, insofar as no confidential information is disclosed to third parties.

11 Intellectual Property

11.1 Unless explicitly provided otherwise in writing, all intellectual property rights to the software, websites, files, images, scripts, documentation and source codes developed on the basis of the agreement or made available to the client are vested in the user or its suppliers or licensors. Unless explicitly provided otherwise in writing, the Client will only acquire the user rights that have been expressly granted to it by the User. Every right of use granted to the client is non-exclusive, non-transferable, non-pledgeable and non-sublicensable.

11.2 These terms and conditions do not extend to any transfer of intellectual property rights from the user to the client.

11.3 Without prejudice to the provisions of article 11 of these terms and conditions, the user retains the rights and powers that accrue to it under the Copyright Act.

12 Protection of personal data

12.1 The parties acknowledge that personal data are processed by the parties during the execution of the agreement and can be exchanged by the parties. For the personal data that are processed by the (third) products as made available to the client, the client is at all times regarded as the ‘controller’ and the user as the ‘processor’ as stipulated in the General Data Protection Regulation.

12.2 The Client is at all times responsible and liable for the processing of personal data in respect of which it is the ‘controller’. If a third party processes personal data on behalf of the client, the client is at all times obliged to record the rights and obligations of the third party and the client in an agreement between these parties.

13 Cancellation

13.1 Both parties may terminate the agreement in writing.

13.2 In that case, the parties must observe a notice period of at least 2 months.

14 Dissolution of the agreement

14.1 The claims of the user on the client are immediately due and payable in the following cases:

– circumstances that have come to the attention of the user after the conclusion of the agreement give the user good reason to fear that the client will not fulfill its obligations;

– if the user has asked the client when concluding the agreement to provide security for compliance and this security is not forthcoming or is insufficient.

14.2 In the cases mentioned, the user is authorized to suspend further execution of the agreement, or to proceed to dissolve the agreement, without prejudice to the user’s right to claim compensation.

14.3 If, after accepting an order, the user comes to the conclusion that adequate execution thereof is permanently or temporarily impossible for whatever reason, it is entitled to suspend further execution or to waive further execution.

15 Defects, complaint terms

15.1 Complaints about the work performed must be reported to the user in writing by the client within 8 working days after discovery, but at the latest within 10 working days after completion of the work in question.

15.2 If a complaint is well-founded, the user can, if possible and reasonable, choose to still perform the work as agreed, unless this has become demonstrably pointless by the client in the meantime. The latter must be made known in writing by the client. Under no circumstances is the client entitled to have the work performed by a third party and to recover the costs from the user.

15.3 If the performance of the agreed services is no longer possible or useful, the user will only be liable within the limits of article 19.

16 Fee

16.1 The provisions of the agreement apply to offers and agreements in which a fixed fee is offered or has been agreed. If no fixed fee is agreed, the provisions of paragraphs 3 to 6 of this article shall apply.

16.2 The parties can agree on a fixed fee when the agreement is concluded.

16.3 If no fixed fee is agreed, the fee will be determined on the basis of hours actually spent. The fee is calculated in accordance with the user’s usual hourly rates, applicable for the period in which the work is performed, unless a deviating hourly rate has been explicitly agreed in writing.

16.4 Our standard rate, if any, is € 105.00 per hour excl. VAT unless otherwise indicated by the user.

16.5 For assignments with a term of more than 30 calendar days, the costs owed may be charged periodically.

16.6 If the user agrees a fixed fee or hourly rate with the client, the user is in all cases entitled to increase this fee or rate. User may pass on price increases of third parties or third products if user can demonstrate that significant price changes have occurred between the time of offer and delivery with regard to, for example, costs of freelancers working on behalf of user.

17 Payment

17.1 Payment must be made within 14 days of the invoice date, in a manner to be indicated by the user in the currency in which the invoice is made.

17.2 After the expiry of 14 days after the invoice date and full payment of the amount as stated in the invoice has not been made, the client is in default; from the moment of default, the client is the statutory interest on the amount due.

17.3 In the event of liquidation, bankruptcy or suspension of payment of the client, the user’s claims and the client’s obligations towards the user will be immediately due and payable and the user is entitled to terminate the agreement with the client without observing a notice period.

17.4 Payments made by the client always serve in the first place to settle all interest and costs owed, in the second place for payable invoices that have been outstanding the longest, even if the client states that the payment relates to a later invoice.

18 Collection costs

18.1 If the client is in default or fails to fulfill one or more of its obligations, all reasonable costs incurred in obtaining payment out of court will be borne by the client. In any case, the client owes:

18.2 If the user demonstrates that he has incurred higher costs, which were reasonably necessary, these also qualify for compensation.

19 Liability

19.1 Except in the event that special statutory provisions limit the liability of the user solely for damage resulting from intent or gross negligence, the user is only liable for damage as described in the following paragraphs of this article.

19.2 In the event of physical injury, regardless of whether this injury results in death, the user’s liability is in any case limited to an amount of EUR 500,000 per event causing damage. In the event of property damage, the supplier’s liability is in any case limited to EUR 50,000 per event causing damage. In both cases, a series of connected events counts as one event.

19.3 The user is never liable for indirect damage, lost profit, lost savings, reduced goodwill, damage due to business interruption, damage as a result of claims from customers of the client, mutilation or loss of data, damage related to the use of goods, materials or software of third parties, damage related to the engagement of suppliers prescribed by the client to the user, for consequential damage, regardless of the nature of the act (breach of contract, tort or otherwise), even if the user has been informed of the possibility on the occurrence of that damage.

19.4 The user is never liable for any damage of whatever nature suffered by the client in connection with the temporary non-availability, the temporarily incorrect or the temporarily not fully available of the internet, the services provided by it via the internet or damage caused by third parties. Products.

19.5 The user is never liable for any damage of whatever nature suffered by the client in connection with the (non-) functioning of the software of the client or of third-party suppliers, of equipment of the client, user or third-party products, or of internet connections of the client, user or third parties.

19.6 The User accepts no liability for incorrect, incomplete or late sending or receiving of data that is placed with the User by means of the User’s services.

19.7 To the extent that the user cannot claim the liability exclusions or limitations described in this article, his liability is at all times limited on a case-by-case basis to an amount of fifty percent (50%) of all liability in the two (2) months prior to its default amounts invoiced to the client, less credits by the user to the client in that period. Insofar as the user cannot claim the limitation referred to in this article, the supplier’s liability is in any case limited to EUR 10,000.

19.8 The Client acknowledges and accepts that the compensation for the services of the user has been determined with due observance of the limitation of liability as referred to in this article.

19.9 The Client acknowledges and accepts that the services of the user can never be perfect or one hundred percent (100%) free of imperfections and that not all imperfections will (can) be repaired.

19.10 The client indemnifies the user against claims from third parties arising from or related to the agreement or the conditions, unless the client could assert these claims against the user with due observance of the provisions of this article if the client would have suffered the damage itself.

19.11 The liability of the user due to an attributable shortcoming in the fulfillment of an agreement with the client arises in all cases only if the client gives the user immediate and proper notice of default in writing, whereby a reasonable period is set to remedy the shortcoming, and the user is attributable after that period. continues to fail to fulfill its obligations. The notice of default must contain a description of the shortcoming that is as complete and detailed as possible, so that the user is able to respond adequately.

19.12 Any right to compensation will in any case lapse if the client has failed to take measures to (I) limit the damage immediately after it has occurred; (II) prevent (other or additional) damage from occurring; or (III) if the client fails to notify the user of the damage as soon as reasonably possible and to provide him with all relevant information.

19.13 Any claim for compensation against the user lapses by the mere lapse of twenty-four (24) months after the claim arose.

20 Force majeure

20.1 In these general terms and conditions, force majeure is understood to mean, in addition to what is understood in this regard in law and jurisprudence, all external causes, foreseen or unforeseen, over which the user has no influence, but as a result of which the user is unable to fulfill its obligations. This includes strikes at the user’s company and any failure to perform by a supplier of a third product.

20.2 The User also has the right to invoke force majeure if the circumstance that prevents (further) fulfillment occurs after the User should have fulfilled its obligation.

20.3 During force majeure, the obligations of the user are suspended. If the period in which fulfillment of the obligations by the user is no longer possible due to force majeure is longer than 2 months, both parties are entitled to dissolve the agreement without there being any obligation or compensation in that case.

20.4 If the user has already partially fulfilled its obligations at the start of the force majeure, or can only partially fulfill its obligations, it is entitled to the already performed or. executable part separately and the client is obliged to pay this invoice as if it concerned a separate contract. However, this does not apply if the already performed or. executable part has no independent value.

21 Dispute Resolution

21.1 The court in the user’s place of residence has exclusive jurisdiction to hear disputes. Nevertheless, the user has the right to sue the other party before the competent court according to the law.

22 Applicable law

22.1 Dutch law applies to every agreement between the user and the client, even if the client is not established in the Netherlands. Insofar as any provision in an agreement with the client or any provision in these general terms and conditions is not legally valid, an equal but legally valid meaning will be assigned to it in content and purport. An agreement concluded with the user remains in full force if one or more provisions of the agreement or of the general terms and conditions are invalid.