Terms of Service SnipTech Services
Version 1.0 per 16 May 2023
1. Scope of application
These terms of service ("Terms") apply to the Agreement and the DPA between you, the client ("Client") and Service Provider and apply to the Services provided by Service Provider to the Client.
Service Provider facilitates Client with various services enabling Clients’ customers to manage their personal finances made available to Clients’ customers through an API that will be implemented on Clients’ platform. Service Provider may also provide Client with certain support services in this respect. These Terms apply to the usage of the Licenses and Services provided by the Client. Any new features or tools which are added to the current Services will also be subject to the Terms and therefore these Terms will be updated from time to time. The current version of these Terms are available at www.sniptech.com/legal-documentation.
2. Definitions.
2.1. Account Information Service Provider: BudgetBakers s.r.o. with registered address on Radlická 180/50, Smíchov, 150 00, Prague 5, Czech Republic, registered with the Czech Public Register under number: 02882957 and licensed as and account information services provider.
2.2. Affiliate Marketing Network: (legal) person acting as an intermediary between a Merchant and Service Provider in order to, amongst others, have publishers such as Service Provider display the brand of a Merchant to incite customers to buy that Merchant’s products and/or services.
2.3. Agreement: the agreement between Service Provider and Client including all commercial agreements where these Terms are attached to, and which are integral part thereto.
2.4. API License: the intermediary software license that allows the application of the Service Provider to connect, communicate and transmit data with the operating system of Client and which is purposely built to facilitate the Services to the Users.
2.5. Applicable Law: any applicable law and/or regulation.
2.6. BudgetBakers AIS API: an account information API provided by BudgetBakers s.r.o. with registered address on Radlická 180/50, Smíchov, 150 00, Prague 5, Czech Republic, registered with the Czech Public Register under number: 02882957 and licensed as and account information services provider made available through the Open Banking & PFM API.
2.7. Business Day: any day not a Saturday or Sunday or a bank holiday in the relevant Target Market(s).
2.8. Cancellation Request: request for the termination of a Subscription initiated by a User and shared by Client with Service Provider.
2.9. Cancellation Service: as defined in Clause 4.34
2.10. Cashback: the reward a User is entitled to after (i.) finalizing the purchase of goods or services and/or (ii.) met other pre-requested tasks or conditions on the Platform in connection with the Cashback Service.
2.11. Cashback Deal: agreement between Service Provider and an Affiliate Marketing Network pertaining to the displaying of a Merchant's brand by Service Provider in exchange for a fee per product and/or service purchased by Users through Service Provider.
2.12. Client Cashback Deal: a Cashback Deal following a direct agreement entered into at the initiative of Client or as a result of Clients' efforts to bring about such agreement, between Service Provider and a Merchant, pertaining to such Cashback Deal to the sole benefit of its Users.
2.13. Cashback Service: a technical infrastructure enabling Users to earn Cashbacks for purchasing goods and services with Merchants through the API using the Platform, see Clause 4.6.
2.14. Confidential Information: information in relation to the negotiation and the execution of the Agreement, the contents of the Agreement and all documents and information received or obtained thereunder.
2.15. Connected Bank Account: Users’ bank account that is connected with the Account Information Service Provider.
2.16. Customer Support Service: as defined in Clause 4.39.
2.17. Default Event: as defined in Clause 14.2.
2.18. Enquiry: any enquiries, complaints or issues reported by the Client.
2.19. Force Majeure: failure or delay in performance of its obligations hereunder (but excluding any payment obligation cause by reasons beyond Clients’ or Service Providers’ control, including but not limited to epidemics, wars or any kind of military operations, blockaded, acts of terrorism, communication failures, labor strikes (other than labor strikes involving the Client or Service Provider) normative acts issued by state and/or government institutions and binding for Parties.
2.20. General Support Service: as defined in Clause 4.43
2.21. Liquidity Relief Funds: funds to resolve Service Providers’ liquidity shortage due to Pre-financed Pay-out.
2.22. Main Email Address: as defined in Clause 3.3 and inserted in the Agreement.
2.23. Merchant: (legal) person that maintains a Webshop.
2.24. Platform: the web and/or mobile application(s) of the Client where the Services are made available to Users.
2.25. Pre-finance Limit: predetermined limit for granting the Pre-finance Pay-out of a certain Cashback to a certain User.
2.26. Pre-finance Pay-out: the direct pay-out of a Cashback subject to the conditions set out in the Service Provider Terms and Conditions applicable to User.
2.27. Pre-finance Amount Outstanding: total amount of Pre-financed Pay-outs corrected for the total amount of Pre-financed Pay-out which has been paid by Client.
2.28. Purchase: an online or offline purchase made by usage of the Connected Bank Account.
2.29. Reward: a compensation to which a User is entitled to by making a Purchase.
2.30. Services: one or more of the services as defined in article 4.
2.31. Service Provider: one or more subsidiaries of Snippet Technologies Holding B.V. that offer Services included in these Terms. See Clause 4.1 for an extensive overview.
2.32. Users: customers of the Client, being consumers based in a Target Market that make use of the Services through the Platform.
2.33. VAT: Value Added Tax as applicable in the country where the Services are provided by Service Provider.
2.34. Open Banking & PFM Service: as defined in Clause 4.4.
2.35. Sales Consultancy Service: as defined in Clause 4.43.
2.36. SDD Mandate: authorization given by the User to perform a SEPA Direct Debit from his/her bank account to enable Pre-financed Pay-out.
2.37. Subscription: ongoing consumer agreement with a Subscription Provider that the User wishes to terminate.
2.38. Subscription Provider: provider of a Subscription.
2.39. Subscriptions Terminated: Cancellation Requests processed by Service Provider where either a confirmation of termination was received, or no information reached Service Provider 60 (sixty) days after submission of a termination request to the provider of a Subscription.
2.40. Transaction-Based Rewards Service: as defined in Clause 4.31
2.41. Users: being the customers of Client that make use of the Services via the Platform.
2.42. Wallet: personal overview of a User including its Cashbacks and Rewards.
2.43. Wallet Infrastructure: as defined in Clause 4.12.
2.44. Webshop: the online sales channel of goods and/or services of a Merchant that is (indirectly) a partner of Service Provider.
3. Onboarding process Client. Client Information.
3.1. The services of Service Provider are exclusively available for legal entities, partnerships, and constructions and explicitly not for consumers.
3.2. To access and use the Services, a Client must complete and sign the Agreement. During the onboarding process Client shall provide Service Provider with its full legal name, company registration number, country of registration, VAT number, business address, phone number, email address and any other relevant business information that may be requested by Service Provider.
3.3. Client acknowledges that Service Provider will use the email address that Client provided to Service Provider as the primary method for communication with Client.
3.4. Service Provider shall always be entitled to offer you additional means of communication, e.g., customer service by telephone.
3.5. The person signing the Agreement on behalf of the Client must be: (i) older than 18 years, or (ii) have at least the legal age in the Target Market(s) where Client will make use of the Services and may legally enter into agreements on behalf of the Client.
3.6. It is mandatory for the Client to inform Service Provider in a timely matter in the event of amendment of the company name, company structure, type and extent of service providing or any other relevant amendment that may affect the Services.
3.7. Service Provider will make documentation available to Client how to implement the Services on Clients’ Platform. Any deviation from this advised implementation cannot lead to liability of the Service provider if the Services shall not work properly on the Platform as a consequence thereof.
4. Services.
4.1. The following Services including the name of the respective Service Provider:
4.1.1. Open Banking & PFM Service provided by Snippet Technologies Operations B.V. (See Clause 4.4);
4.1.2. Transaction Based Reward Service provided by Snippet Technologies Operations B.V. (See Clause 4.6);
4.1.3. Cashback Service provided OrangeBuddies Media B.V. (See Clause 4.6);
4.1.4. Wallet Infrastructure provided by OrangeBuddies Media B.V. (See Clause 4.12);
4.1.5. Transaction-based Rewards Service provided by OrangeBuddies Media B.V. (See Clause 4.31);
4.1.6. Cancellation Service provided by GoCancel B.V. (See Clause 4.34);
4.1.7. Customer Support Service provided by Snippet Technologies Operations B.V. (See Clause 4.39);
4.1.8. Sales Consultancy Service provided by Snippet Technologies Operations B.V. (See Clause 4.43); and
4.1.9. General Support Service provided by Snippet Technologies Operations B.V. (See Clause 4.44).
4.2. Service Provider provides Client with an API License for the use of the Services and Client acknowledges and accepts usage of the API License in accordance with the Agreement and these Terms.
4.3. The Cancellation Service and the Cashback Service may also be provided by the respective Service Provider via a Widget.
Open Banking & PFM Service
4.4. The Open Banking & PFM Service enables the BudgetBakers AIS API to provide account information services to the Users. Service Provider solely acts as technical service provider of the BudgetBakers AIS API and is therefore not liable for the use and functioning thereof.
4.5. The Open Banking & PFM Service will only be made available under the condition precedent that Client entered into a separate PSD2 service agreement and any related legal documents thereto with BudgetBakers to facilitate the integration of the BudgetBakers AIS API.
Cashback Services
4.6. The Cashback Service provides Users with Cashback Deals that are made available on the Platform of the Client. A User will be rewarded with Cashback if a Cashback Deal has been successfully activated.
4.7. Service Provider shall provide reasonable efforts to ensure that sufficient relevant Cashback Deals are entered into with Affiliate Marketing Networks and/or Merchants, which are competitive with the Cashback Deals offered by peers in the Target Markets where the Cashback Services are offered.
4.8. Cashback Deals may be originated through three (3) different channels:
4.8.1. at the initiative of an Affiliate Marketing Network through a generic Cashback Deal;
4.8.2. Service Provider Cashback Deal; and
4.8.3. Client Cashback Deal.
4.9. Service Provider shall enter any type of Cashback Deal on the Platform as soon as possible.
4.10. Service Provider shall, by default, per Cashback Deal define the amount or percentage applicable to a certain Cashback and makes this available on the Platform. However, Client may, per Client Cashback Deal, have Service Provider modify the amount or percentage height of a certain Cashback.
4.11. Service Provider shall make available Cashback Deals to Users at the Affiliate Marketing Network or Merchant unless good grounds exist not do so, which includes products and/or services that breach applicable laws or present a reputational risk.
Wallet infrastructure
4.12. Service Provider offers a wallet infrastructure service to Client on its Platform through which Client can manage Wallets for each of its Users.
4.13. Provider shall administer Cashback generated by Users in its Wallet.
4.14. The Wallet Infrastructure shall allow Client to debit and/or credit the Wallet of Users following certain actions performed by such Users and/or based on certain pre-set rules of Client.
4.15. Service Provider shall, after a valid pay-out request for Cashback, immediately and at least within two (2) Business Days initiate the pay-out of the amount requested by the User out of its Wallet. Such payment shall be realized no later than within 5 (five) Business Days unless legal requirements or other good grounds exist to refrain from effectuating the pay-out of the requested amount.
4.16. Client commits to provide best-efforts in collecting the information needed from the Users to realize a pay-out of a Cashback.
4.17. Service Provider shall provide Client at least once every calendar month an overview of Cashbacks including at minimum the following data:
4.17.1. number of Users with status Active;
4.17.2. the total value of Cashback administered in the Wallet of all Active Users and per individual User;
4.17.3. Cashback amount that has been paid out during the reporting month, in total and per User; and
4.17.4. Total value of Pre-financed Amount Outstanding.
4.18. Service Provider offers to the Client a pre-financing service whereby Cashbacks under certain conditions as set forth in the Agreement between the Service Provider and the Client shall be pre-financed by Service Provider. In this respect, the maximum amount of Pre-financing Service Provider may provide to each User.
4.19. Client shall ensure that Users that wish to make use of Instant Pay-Out provide Consent for Data Sharing by Client on its Platform with Service Provider for the purpose of the PD Calculation and store such consent and communicate to Service Provider the maximum amount of Pre-financing Service Provider may provide to each User.
4.20. Client shall share such Payment Data every time this is needed for Service Provider to perform the PD Calculation. Service Provider shall share such Payment Data within a reasonable timeframe not exceeding 4 hours.
4.21. Service Provider shall only grant Instant Pre-financed Pay-out up to the Instant Pre-finance Pay-out Limit.
4.22. Client shall make the User requesting an Instant Pre-finance Pay-out agree to the conditions applicable to such service such as privacy statement and/or terms and conditions and store such acceptance.
4.23. Client shall obtain a valid SDD Mandate from a User, with Service Provider as the beneficiary, and share such SDD Mandate with Service Provider.
4.24. Client commits to provide best-efforts in collecting the information needed from the Users to realize the Instant Pre-finance Pay-out of a Cashback.
4.25. When a User uses Instant Pre-finance Pay-out, Service Provider shall immediately and at least within 36 (thirty-six) hours initiate the pay-out of the amount requested by the User. Such payment shall be realized no later than within 5 (five) Business Days unless legal requirements or other good grounds exist to refrain from effectuating the pay-out of the requested amount.
4.26. In case a User does not or no longer fulfil the requirements for Instant Pre-finance Pay-out for a certain Cashback leading to a User owing any amount to Service Provider, Service Provider will make use of the following tools to recollect, which shall be used in the following order:
4.26.1. settlement of the claim with any amount due to the User pursuant to the Wallet;
4.26.2. execution of a SEPA Direct Debit as authorized by the User pursuant to the SDD Mandate given; and
4.26.3. hand-over of recollection of an Instant Pay-out claim to Client and transfer of such claim to Client.
4.26.4. Client will bear the default risk of Users related to Instant Pre-finance Pay-out.
4.27. Service Provider may temporarily discontinue Instant Pre-finance Pay-out and request Client to provide Liquidity Relief Funds up to the Instant Pre-finance Pay-out Amount Outstanding. In case of refusal or inability of Client to provide the Liquidity Relief Funds, Service Provider may discontinue Instant Pre-financed Pay-out until the Liquidity Relief Funds have been provided to Service Provider. Service Provider shall immediately inform Client of the discontinuation or resumption of Instant Pre-finance Pay-out.
4.28. Service Provider shall provide any cooperation needed to effectuate a transfer of any claim as set out in this Clause to Client and/ or Clients’ affiliate.
4.29. Service Provider will provide monthly reports on Instant Pre-financed Pay-out to Client which include at least the following:
4.29.1. User ID;
4.29.2. Cashback Sock balance;
4.29.3. Number of failed collection attempts;
4.29.4. Date first failed attempt; and
4.29.5. Date last failed attempt.
4.30. Should any of the components of Instant Pre-financed Pay-out as described above no longer be possible because of technical or regulatory inabilities, then Parties will, in good faith, explore an alternative solution.
Transaction-based Rewards Service
4.31. The Transaction-based Rewards Service provides Users with a Reward by purchasing of goods or services of merchants included on the Platform. Specific commercial terms and conditions pertaining to a Reward will be set forth in a separate agreement.
4.32. The Transaction-based Rewards Service is only available to the Client under the condition precedent that Client entered into a separate PSD2 service agreement with the Account Information Service Provider and any related legal document thereto to facilitate the integration of the account information service on the Platform.
4.33. The Account Information Service Provider strives to detect Purchase within two (2) hours after the Purchase was made.
Cancellation Service
4.34. The Cancellation Service enables Users of the Client to terminate one or more Subscriptions on request of the User.
4.35. Service Provider shall provide best-efforts to make sure a Subscription is terminated following a Cancellation Request to that effect and within ten (10) Business Days. Such best-efforts shall include any follow-up to realize termination of a Subscription and initiating legal proceedings on behalf of the relevant User as the case may be.
4.36. Service Provider is able to make a Cancellation Request to a Subscription Provider in the following ways:
4.36.1. email, facsimile and postal mail (Type A Cancellation); or
4.36.2. registered mail (Type B Cancellation). For the aforementioned Cancellation Requests, the following mailing terms apply:
4.36.3. a request via email will be sent directly on a Business Day;
4.36.4. a request via facsimile will be sent directly on a Business Day;
4.36.5. a request via postal mail will be sent the same Business Day in case the Cancellation;
4.36.6. Request arrived before 14:45 local Amsterdam time. Requests that arrive after 14:45 local Amsterdam time will be handled the following Business Day; and
4.36.7. a request via registered postal mail will be sent once per week on Monday. In the event Monday is not a Business Day, the request will be sent the first Business Day afterwards.
4.37. Service Provider shall handover an overview including all Subscription Providers in a Target Market included in the Cancellation Service and this is considered as a complete overview. However, this overview may be updated from time to time. Client is not allowed to ‘cherry pick’ Subscription Providers from this overview.
4.38. Service Provider undertakes best efforts to technically enable Service Provider to provide at least once every calendar month an overview for Cancellation Services including at minimum the following:
4.38.1. number and type of Cancellation Requests processed; and
4.38.2. number of Subscriptions Terminated.
Customer Support Service
4.39. The customer support service consists of providing customer support via different communication channels to the Users of the Client. Client and Service Provider may enter into make specific arrangements regarding protocols, workflows, and business strategy in relation to the Customer Support Service in a separate agreement.
4.40. Service Provider uses third-party tools to provide the Customer Support Service. Client is responsible to connect these tools to its Platform to enable Service Provider providing high-level Customer Support Service to the Users.
4.41. At its full discretion, the Service provider may adapt contents of the Help Centre pages, (phone) responses. The client will be informed three (3) days upfront of any changes.
4.42. Client can choose opening hours of the customer support desk anywhere from 08:00 – 21:00.
Sales Consultancy Service
4.43. Service Provider shall provide consultancy with respect to the different products developed by Client which includes:
4.43.1. mapping of competition in relevant Target Markets;
4.43.2. business development for relevant Target Markets;
4.43.3. approaching prospective Business Customers including Fundraisers on Clients' behalf;
4.43.4. negotiating agreements with prospective Business Customers; and
4.43.5. acting as account manager for Business Customers.
General Support Service
4.44. Service Provider may also provide additional services to Client, which may include:
4.44.1. Support of Clients’ marketing department in the Target Market(s);
4.44.2. Translation of documents;
4.44.3. Business development support in the Target Markets;
4.44.4. Collecting of feedback from Users and supporting Client with respect to the implementation of such feedback; and
4.44.5. Additional ancillary tasks that due to their specific nature are requested by Client from time to time.
Fair Use Policy.
5.1.
5.2. All Services are provided on a best-effort basis on a good faith relationship. It is expected that both Parties will act in a transparent, trusted and fair manner.
5.3. A Client violates the Fair Use Policy with regard to the Services if its used in a manner a described below:
5.3.1. violation of any clause in the Agreement or these Terms.
5.3.2. violation of any local law or costume, with a risk the reputation of Service Provider will be damaged.
5.3.3. Usage of Personal Data in violation with the GDPR;
5.3.4. Hacking, phishing, unauthorized intrusion into the system and/or network infrastructure of Service Provider, intermediaries, suppliers and/or third parties.
5.3.5. The deliberate misleading of Users, Service Provider, public institutions, banks and third parties;
5.3.6. In the event Client does not make use of the Customer Support Service and fails to establish its own suitable client support for appropriate handling of User complaints and disputes;
5.3.7. Committing fraud, financing of terrorism, money laundering, illegal activities, hosting fake User accounts or contribute to and/or allow fraudulent or unlawful activities;
5.3.8. Client is obliged to inform Service Provider of all Platform(s) the Services will be included. Client is not permitted to use the Services on any other platform without explicit registration with the Service Provider. Registered Platform(s) may not include any illegal, libelous, defamatory, obscene, pornographic or profane materials or expressions. Service Provider is allowed to terminate the Agreement upon discovery upon such Platforms.
5.4. To maintain a high-level service level in performance of the Services, it is the responsibility of the Client to inform Service Provider in writing of any changes in its business and/or (external) technical issues that may affect the provision of the Services.
6. Beta Services
6.1. From time to time, Service Provider may, at its sole discretion, invite Client on a trial basis to use pre-released or beta features that are in development and not yet available to the grand public ("Beta Services"). Beta Services are explicitly not part of the Services, and Beta Services may be subject to additional terms and conditions, which Service Provider will issue to the Client prior to the use of the Beta Services.
6.2. Beta Services and all associated conversations and materials relating thereto will be considered Confidential Information and subject to the confidentiality provisions in these Terms. Without limiting the generality of the foregoing, Client agrees that it will not make any public statements or otherwise disclose its participation in the Beta Services without Service Providers’ prior written consent. Service Provider makes no representations or warranties that the Beta Services will function. Service Provider may discontinue the Beta Services at any time in its sole discretion. Service Provider will have no liability for any harm or damage arising out of or in connection with a Beta Service. The Beta Services may not work in the same way as a final version. Service Provider may change or not release a final or commercial version of a Beta Service in its sole discretion.
7. Pricing. Terms of Payment.
7.1. Service Provider provides the Services for the prices as included in the Agreement.
7.2. All fees are excluding VAT. Client is solely responsible for determining what taxes or fees, if any, are applicable in connection with the Services provided. Client is responsible for determining, collecting, reporting and remitting taxes to the appropriate tax authorities. If Service Provider is required to withhold taxes, Service Provider will inform Client regarding the relevant taxes or fees upfront, state this in the invoice and remit them to the appropriate tax authority.
7.3. Service Provider is allowed to adjust the prices annually and will inform the Client about this at least one (1) month in advance.
7.4. Service Provider will issue an invoice for:
7.4.1. the one-time Onboarding fee, will be sent after signing the Agreement and is due within ten (10) Business Days after the Effective Date or within ten (10) Business Days after the date of the invoice in the event the Effective Date is later;
7.4.2.The monthly License Fee and Volume-based fee will be sent on a monthly basis in arrears and is due within ten (10) Business Days after the date of the invoice.
7.5. Invoices will be sent electronically to the Main Email Address, unless expressly agreed otherwise.
7.6. All payments made by Client will first be applied against the oldest of any outstanding invoices from Service Provider, irrespective of any other indication by Client. Client may not postpone payment or withhold payment of any amount due to Service Provider because of any set-off, counterclaim, abatement, or other reason.
7.7. All sums payable by Client to the Service Provider shall become due immediately on the termination of the Agreement, regardless any other provision.
7.8. A failure of Client to pay any amount due to Service Provider in time shall be considered as a Default Event.
8. Intellectual Property.
8.1. All intellectual property rights in connection with the use of Services, including, but not limited to, all existing and future rights and claims to, or with respect to the use of, copyright and neighboring rights, chip rights, trade name rights, trademark rights, domain names, patent rights, design rights and database rights in respect of the Services or related matters, are vested exclusively in Service Provider or its affiliates.
8.2. Client has a non-exclusive, non-transferable limited right of use the API License and connected intellectual property rights thereto for the term of the Agreement. None of the provisions in the Agreement or these Terms shall otherwise confer any right on you with respect to the platform and/or related matters.
8.3. Client is never entitled to make any modifications to the intellectual property rights relating to the License, nor is a Client entitled to make any copy thereof, decompile and/or otherwise (attempt to) edit it.
8.4. Infringement of any intellectual property rights as described in this Clause 8 is considered as a Default Event.
9. Warranties and indemnification
9.1. Service Provider and Client represent and warrant to each other that they have implemented and will maintain technological and organizational security measures to protect the Personal Data in their possession or custody acquired or accessed via the Services from unlawful and unauthorized use, access and/or disclosure, and to ensure secure processing of such data in conformity with the generally prevailing industry standards and otherwise as set forth in this Terms and any applicable law.
9.2. Service Provider and Client agree to indemnify, defend and hold the other party and its officers, directors, personnel, agents, subcontractors, successors, assigns and representatives harmless from all claims losses damages, fines liabilities, penalties, costs and expenses (including all reasonable legal and other professional fees, expenses and disbursements) incurred or suffered by the indemnified party due to the indemnifying party’s intent or gross negligence (including without limitation fraud or any other unlawful act) in performing in its obligations under these Terms and the Agreement.
9.3. Service Provider and Client indemnify each other for any claims following from damages incurred by data subjects, or fines and/or other penalties, which directly arise from the non-compliance with applicable privacy laws such as Regulation (EU) 2016/619 (GDPR) with respect to the Services.
Client represents and warrants that Client will only request, use, access and/or collect any personal Data from Users which is necessary and essential for the provision of the Services and otherwise as set forth under these Terms.
9.4. Both Parties shall notify each other promptly of any such suit, claim or proceeding and give each Parties authority, information, and assistance (at Parties own expense) for the defense of the same, and each Party shall pay its own damages and costs awarded therein.
9.5. This Clause shall survive termination of the Agreement.
10. Scope of Liability
10.1. Liability of Service Provider must be in writing after Service Provider has been given a reasonable period of time to provide an appropriate remedy. If Service Provider is liable in connection with failure to perform its obligations or otherwise for damages suffered by the Client, Service Provider shall only be liable for direct damages and not for indirect or consequential damages, even if such damages could have been foreseen. Indirect damages include, but are not limited to loss of goodwill, lost profits, missed (investment) opportunities.
10.2. If and to the extent that Service Provider is liable to Client, such liability shall in all cases be limited:
10.2.1. to an amount equal to the amount Client paid to Service Provider in the form of fees charged in connection with the Service(s) to which the damage relates.
10.2.2. for an Agreement with a term longer than six (6) months, Service Provider’s liability shall be limited to a maximum of the amounts received by Service Provider under the Agreement, excluding VAT, for the last six (6) months.
10.3. Notwithstanding the foregoing clauses, Service Provider’s liability, unless and to the extent prohibited by applicable laws and regulations, shall in all cases be limited to EUR 1,000 (one thousand euros) per damage-causing incident. A series of incidents counts as one (1) incident. Any claim against Service Provider shall expire by the expiration of a period of three (3) months after the loss-causing incident has become known to the Client subject to Service Provider’s written acknowledgement of the claim.
11. Force Majeure.
11.1. Service Provider shall not be in breach of the Agreement, nor liable for any failure or delay in performance of its obligations under the Agreement arising from or attributable to force majeure. Force majeure includes a failure of a supplier of Service Provider, epidemics, war of any kinds or military operations, blockades, acts of terrorism, government measures or instructions, strikes, power cuts, internet or telephone interruptions and other circumstances beyond Service Providers’ reasonable control.
11.2. If any event included in Clause 11.1 causes a delay continuing for a period of sixty (60) days or more, either Party may terminate the Agreement by giving written notice to the other Party of its intention to terminate the Agreement at the expiry of ten (10) Working Days from the date of such notice, unless in the meantime the delay in performance has ended.
12. Confidentiality.
12.1. Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under the Agreement. A Party’s Confidential Information shall not be deemed to include information that:
12.1.1. Is or becomes officially known other than through any act or omission of the receiving Party;
12.1.2. Was in the other Party’s lawful possession before the disclosure;
12.1.3. Is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;
12.1.4. Is independently developed by the receiving Party, which independent development can be proved with evidence.
12.2. Each Party ensures that all Confidential Information received from the other Party is treated confidentially and each Party shall not make the other’s Confidential Information available to any third-party or use the other’s Confidential Information for any purpose other than the correct execution of the Agreement.
12.3. Each Party warrants that their employees with access to Confidential Information are bound to confidentiality provisions that are at least as stringent as the confidentiality provisions contained herein. Confidential Information will not be disclosed to third parties without prior written consent of the disclosing Party. Parties are allowed to reasonably share Confidential Information with their external legal consultants or lawyers, but only if such legal consultants or lawyers are also contractually obligated to refrain from disclosing any Confidential Information to third parties.
12.4. Confidential Information may be disclosed in response to a valid court or other governmental order, provided (if permitted by law or by such order) the disclosing Party is notified as soon as possible after receipt of the order and given an opportunity to seek legal redress against such disclosure.
13. Amendments.
13.1. Amendments or variations to the Agreement shall not be effective unless it is in writing and signed by both Parties.
13.2. Amendments to these Terms will be communicated by the Service Provider to the Client at least thirty (30) days before they come into effect. If Client rejects the amendments to the Terms, the Agreement may be terminated.
14. Termination/Suspension of Agreement.
14.1. The Agreement is entered into for the period stipulated in the Agreement.
14.2. Each Party is allowed to terminate or suspend the performance of the Services of the Agreement upon its own discretion and with immediate effect by written notice upon occurrence of one or more of the following events ("Default Events"):
14.2.1. a material breach of Applicable Laws, regulations or contractual provisions;
14.2.2. culpable breach of material contractual obligations that has not been remedied despite a reasonable period of grace provided in a written default notice;
14.2.3. material weaknesses regarding other Party’s management and security of confidential, personal or otherwise sensitive data or information are identified;
14.2.4. a legal merger, demerger, dissolution or share transfer of more than fifty percent (50 %) of the issued and outstanding shares in the capital of a Party, without prior written notification thereof to the other Party;
14.2.5. court insolvency proceedings have been initiated regarding a Party;
14.2.6. measures to satisfy third party creditors have been implemented against the other Parry in temporal connection with cash flow difficulties;
14.2.7. a Party sold all or a substantial part of its assets;
14.2.8. a Party ceases to provide Services generally;
14.2.9. any other breach of clause included in these Terms or the Agreement which is explicitly referred to as a Default Event.
14.3. Upon termination of the Agreement for any reason:
14.3.1. Client shall no longer have access to the Web portal/Services/License of Service Provider;
14.3.2. Clients License will terminate the Services with immediate effect and Client shall cease use of all Services;
14.3.3. Service Provider is no longer responsible for any data pertaining to the use of the Services by Client, including (personal) data of Users. Aforementioned data shall be made available to Client.
14.3.4. In the event Client wishes for Service Provider to continue to save Client’s data after the termination date of the License, Service Provider shall charge an agreed fee.
14.3.5. Client shall have the right, without limitation, to transfer its Users to another Services provider. Service Provider will provide reasonable efforts in facilitating the transfer of the Users to another Services provider. Any reasonable costs incurred by Service Provider in the assistance for the transfer of the Users to another Service Provider will be paid for by the Client. Service Provider does not warrant that such transfer will be possible within the timeline and specifications required by the Client and will not incur any liability in respect of such transfer.
14.4. All terms and provisions of this Partnership Agreement, which by their express terms or by nature and context are intended to come into force or to survive termination or expiration of the Partnership Agreement, shall not be affected by, and shall survive, any such termination or expiration.
14.5. Should any of the aspects of the Agreement be impeded for regulatory reasons such as but not limited to concerns raised by a regulatory authority, changes in applicable laws or case law, Parties will strive to resolve such problem in good faith.
15. Transfer and Assignment
15.1. Service Provider shall have the right to transfer or assign all of its rights and obligations and conditions to any third party or affiliated party. Such transfer of rights or assignment shall only take place if this will not significantly affect Clients’ rights.
15.2. You shall not transfer any rights or obligations to third parties without prior consultation of Service Provider.
16. Governing law and Dispute Resolution.
16.1. The Agreement and these Terms and any non-contractual obligations arising out of or in connection with it, will be governed by and construed in accordance with the laws of the Netherlands.
16.2. Any dispute related to the Agreement and these Terms will be submitted to the District Court of Amsterdam, the Netherlands.
17. Severability.
17.1. If any provisions of the present Agreement and these Terms is held to be unenforceable, the enforceability of all remaining provision shall not be affected thereby.
18. Final Provisions.
18.1. All notices and other communications by Client to Service Provider must be in writing and can be sent by e-mail. Client will bear the burden of proof that an e-mail or other written communication has been received by Service Provider. All notices to Client by Service Provider may be given by email or other written communication.
18.2. No amendment or variation of the Agreement shall be effective unless it is in writing and signed by both Parties.