Article 1: Definitions
|Account:||the personal environment which is managed by the Client and to which the Client gains access after entering his/her login details;|
|General Conditions:||these general conditions;|
|App:||the Client’s mobile application, in which the Plot Plugin is/will be integrated;|
|Data||all information provided to the Client in the ambit of the Service (whether or not automatically), including the Geofences, the Location Based Notifications, information concerning Users and (when applicable) the Database;|
|Database:||the Client’s database, with information concerning Geofences, Location Based Notifications and Users, based on which it is determined whether a Location Based Notification is sent;|
|Service:||the Service that the Supplier provides to the Client, as described in Art. 2.1 of these General Conditions;|
|Login details:||a username and password granting the Client access to the Plot Dashboard;|
|Client:||natural or legal entity who has entered into an Agreement with the Supplier for the use of the Service;|
|Supplier:||Floating Market B.V., established in Wibautstraat 129-8, 1091 GL Amsterdam;|
|Geofence:||virtual perimeter for a geographic area, established by client, to which a Location Based Notification is linked (for example the area around one of the Client’s shops);|
|Location Based Notification:||a push message that is sent from the App, of which the content is drafted by the Client. The message can be sent automatically when a User enters or is in a Geofence, within a client set period of time;|
|User:||the person who uses the App;|
|Device:||mobile phone or tablet on which the App is installed;|
|Information:||all information about the User, which is available to the Supplier as a result of the use of the App by the User;|
|Intellectual Property:||All intellectual property rights and related rights, such as copyright, trademark, patent, design right, database right and related rights and rights to know how and one line performances;|
|Agreement:||every agreement that the Client enters into with the Supplier;|
|Plot Backend:||The Supplier’s servers with which the Client can connect via a supposed API;|
|Plot Dashboard:||online content management system wherein the Client can create and manage Location Based Notifications and the Database;|
|Plot Platform:||the platform through which the Service is provided, consisting of the Plot Plugin, the Plot Dashboard and the accompanying Plot Backend;|
|Plot Plugin:||The software library that is developed and used by the Supplier and which is integrated in the App, intended to reach users when they enter or are in a Client Geofence.|
Article 2: The Service
2.1 The Service consists of the Supplier supplying and continuing to supply the Plot Platform to the Client. The Client can reach the Users via the Plot Platform by sending a Client dispatched, Plot Dashboard setup Location Based Notification when a User enters or is in a Geofence within a Client defined time interval. The Plot Plugin will be made available to the Client for the communication between the Plot Backend and the App, which should be integrated in the App.
2.2 The Client should create an Account to use this Service. The Client is personally responsible for the confidentiality of the Login details for his/her Account. As soon as the Client knows or suspects that his/her Login details have come into the hands of unauthorized persons he/she must notify the Supplier immediately, without prejudice to his/her own commitments to take immediate effective measures, such as changing the Login details. Therefore the client accepts and agrees that the Client is always responsible and liable for the use of the Service by external parties via the Clients Account. The Client indemnifies the Supplier of all damages and costs arriving from and/or related to the use of the Services, via the Clients Account, by external parties.
2.3 The Supplier will do its best to ensure that the Service is provided with care. Unless specifically agreed to in writing, the Service by the Supplier is carried out based on a commitment to best efforts.
2.4 The Supplier may make changes to the content or extent of the Service or continue the implementation of the Service with the use of a new or altered version of the Plot Platform. The Supplier will inform the Client of this as quickly as possible. Unless specifically agreed to in writing the Supplier is not bound to maintain, change or add specific Client specified characteristics or functions of the Platform.
2.5 The Supplier can fully or partially (temporarily) decommission the Service and/or limit the use thereof if this if it believes this is necessary, for example for preventive, corrective or adaptive maintenance of the Platform. The Supplier will inform the Client as quickly as possible, but at least five (5) work days before of a (temporary) inaccessibility or limit of the use of the Service. In the event of an emergency requiring the Service to be ceased or limited immediately, the Supplier will inform the Client as quickly as reasonably possible.
Article 3: Responsibilities of the Client
3.1 To activate the Plot Plugin with existing Users (users who already had the App installed before the Plot Plugin was integrated in the App) the User must open the App at least once after he/she has updated the App.
3.2 The proper function of the Service depends on the integration of the Plot Plugin in the App and the input of Geofences, Location Based Notifications and other Data in the Plot Dashboard. The Client is Responsible for the correct integration of the Plot Plugin and managing the Data.
3.3 If the Client makes a connection between the Database and the Plot Backend, it would be best if the Client makes the connection with its Database and/or Data as quickly and accurately as possible. If changes are needed in the (settings of) hardware or software of the Client or the Users, the Client is responsible for this.
3.4 The Client can acquire Data on the Users while using the Service. The Client is responsible for the rightful processing of the details as intended in The Personal Data Protection Act (“PDPA”) when using the personal details of Users, including the personal details that the Client acquires in the ambit of the Service.
3.5 The Parties agree that, as far as the Supplier processes personal data on the Users, the Supplier is seen as the processer in accordance with the PDPA and the client as the responsible person. The Supplier will only process personal data of the Users in the ambit of the presentation of the Service to the Client, and at the request of the Client. For as far as is necessary and technically possible, the Supplier will cooperate with the Client in meeting its commitments in accordance with the PDPA. The expenses involved in this cooperation will be accountable to the Client.
3.6 The Client is not allowed to:
a. use the Service with a (mobile) device containing viruses, Trojan horses, worms, bots or other software capable of damaging, disabling or removing the Service or the Plot Platform;
b. sell, rent out or otherwise make available the (access to the) Service to external parties or provide other third parties access to the Service, unless specifically agreed otherwise;
c. use the Service to send unsolicited commercial, non-profit or charitable messages in violation of the relevant regulations regarding the sending of spam
d. use the Service to send messages in violation of the relevant regulations including the policies of Apple and/or Google;
e. use the Service in way that can harm the interests or reputation of the Supplier; or
f. Send Location Based Notifications that are discriminating, misleading, incorrect, or hate speech or otherwise inappropriate, or that contain viruses, Trojan horses, worms, bots or other harmful software, at the discretion of the Supplier.
Article 4: Guarantees and indemnities
4.1 Any use of the Service, including all information or results arising from the use of the Service is at the expense and risk of the Client. The Client is completely liable for all Location Based Notifications sent via the Service. The Supplier is not liable for any loss, damage, inaccuracy and/or incompleteness of the Data, the App or other information.
4.2 Unless specifically agreed to otherwise in writing the Supplier guarantees that the Service is always accessible without interruptions or malfunctions. Malfunctions in the Service may result from, but are not limited to, internet malfunctions or telephone connection malfunctions or viruses or defects/faults. The Supplier is under no circumstances responsible or liable to the Client for damages arising out of or resulting from the (temporary) unavailability of or (interim) failure of the Service.
4.3 The Client also understands and accepts that the Supplier is not responsible for the Users and cannot influence the way in which the Users use the Plot Plugin and provide their details. The Client indemnifies the Supplier from all damages and expenses resulting from claims in this regard.
4.4 The Supplier does not guarantee that the providing and maintaining of the Plot Platform to the Client, in the ambit of the Service, will be faultless and without interruptions.
4.5 The Supplier is not responsible for the purchase and/or proper function of the Client’s infrastructure or that of external parties, including the Users. The Supplier is also not liable for damages or expenses resulting from transmission errors, malfunctions or unavailability of computer, data or telecom facilities, including the internet.
4.6 The Client guarantees that it will NOT use the Service, the Plot Platform and/or the Data in a way that:
a. infringes on the rights of the Supplier or external parties, including, but NOT limited to, intellectual Property Rights or rights regarding the protection of the privacy of Users;
b. is contradictory to any applicable laws and regulations; and/or
c. is contradictory to any provision from the General Conditions of the Agreement.
4.7 The Client indemnifies the Supplier of all damages and expenses resulting from and/or relating to claims of external parties based on the statement that the information requested by the Client using the Service in any way infringes on the rights of external parties and/or against external parties is unjustifiable.
Article 5: Prices and payment
5.1 The Services are available to the Client against payment.
5.2 The supplier is entitled to adjust the current price in writing after a period of three months. If the Client does not agree with such an adjustment, the Client is entitled to, within thirty days after notice, terminate the Agreement in writing, before the date on which the adjustment would take effect.
5.3 All amounts that pertain to the Service supplied by the Supplier are each periodically payable as agreed in the Agreement, unless otherwise agreed to. Payments should be made within 30 days after date of invoice, unless specifically agreed to otherwise in writing.
5.4 If, after the expiry of this period, the Supplier has not yet received (full) payment, the Client is immediately in breach, without prior summons and default notice required. From the moment of default the Client owes interest equal to the statutory trade interests.
5.5 If the Client, after reminder of the default notice, continues to remain in default, the Supplier can hand the claim over for further action. In that case all the costs incurred by the Supplier, such as litigation expenses and extra-judicial and legal expenses, including the expenses for legal assistance, bailiffs and collection agencies, made in connection with the late payments, are accountable to the Client.
5.6 Complaints regarding invoices and/or the Service do not suspend the payment obligations of the Client.
Article 6: Intellectual Property Rights
6.1 The supplier and its licensors shall own the Intellectual Property rights relating to the Service which includes the Intellectual Property rights on the Platform and Data. The Supplier is exclusively authorized for this for as far as such a right can only be achieved by filing a registration. No part of this Agreement extends to any transfer of Intellectual Property rights to the Client.
6.2 All (Intellectual Property) rights with regard to Data and/or the Database resides with the Client. The Client issues the Supplier a license to use the Data and/or the Database for as far as necessary for the supply of the Service and for the Duration of the Agreement.
6.3 If the Client fully complies with its obligations under the Agreement, the Supplier awards the Client a limited, personal, revocable, non-exclusive, non-sub-licensable and non-transferrable right to (i) gain access to the Plot Platform and use the Service and the Data and (ii) to integrate the Plot Plugin in the App, as provided in the General Conditions and the Agreement.
6.4 Provided that the provision of Data is included in the Agreement and the Client has fulfilled its payment obligations with regard to the Service, the Supplier awards the Client a limited, personal, retractable, non-exclusive, non-sub-licensable and non-transferrable right to use the Details purely for internal business purposes and in accordance with the purpose for which the Client received the Details.
6.5 Except where compellingly legally permitted, the Client may not reproduce, decompile or reverse engineer the Platform or the Plot Plugin. Security or technical (use) limitations of the Service and removal and/or bypassing of the Plot Platform is also not allowed.
6.6 The Client awards the Supplier the right, for the duration of the Agreement, to use the name, the word mark and/or image mark of the Client, as well as information regarding the use of the Service to be used on the Suppliers website and for promotion of the Service.
6.7 The Supplier is not obliged to provide the Client with a physical carrier with a Plot Platform, in the ambit of the Service, to the Client.
Article 7: Duration and termination
7.1 The Agreement is entered into for the period mentioned in the Agreement.
7.2 If the Supplier believes that the Client has made an infringement on the Intellectual Property rights of the Supplier or the privacy of the Users, including but not restricted to a violation of the Articles 3 and 6 of these General Conditions, the Supplier reserves the right, without further communication and without being liable for damages, to terminate the Agreement with immediate effect, notwithstanding the Suppliers rights to take further measures and/or its right to claim compensation.
7.3 The Supplier is entitled to cease the Service with immediate effect and to terminate the Agreement without being held liable for any damages if applicable laws or regulations stand in the way of the Service.
7.4 Every Party is entitled to dissolve the Agreement entirely or partially in the event of the insolvency or suspension of payment of the other party, as well as in the event of closure or liquidation of the company of the other Party. In the event of the insolvency of the Client the Supplier has the right to terminate the issued right of use, unless the consequences thereof are in violation of reasonability and fairness.
7.5 In all other cases the Client can only terminate the Agreement after an as detailed as possible written default notice, whereby a reasonable period was suggested for purification of the default.
7.6 In the event of the dissolution of the Agreement, there is no dissolution of that which the Supplier has already supplied and/or performed. Amounts that the Supplier invoiced before the dissolution, with regard to activities or supplies supplied by the Supplier before the dissolution, considering that which is defined in the previous sentence, remain due and is immediately claimable at the moment of dissolution.
7.7 Upon termination of the Agreement, for whatever reason, the right of the Client to use the Service and the Plot Platform immediately expires and access to the Account is immediately declined. The Client is not obliged to remove the Plot Plugin from the App. The Supplier will make the Data and/or Database inactive. The Supplier is not obliged to provide and or to convert any Data or other information to the Client after termination of the Agreement.
Article 8: Liability
8.1 The total liability of the Supplier due to an accountable flaw in the observance of the Agreement or any other virtue, including also other shortcomings in the fulfillment of a Client agreed guarantee obligation, is exclusively restricted to compensation of immediate loss to maximum the total of the compensation (excl. VAT) negotiated for one year. Under no circumstances will the total liability of the Supplier, for direct damages, from any origin, amount to more than $ 1.000 (thousand US Dollars).
8.2 The liability of the Supplier for any other damages, including indirect loss, consequential loss, loss of profit, missed savings, reduced goodwill, damage resulting from stagnation, damages resulting from claims of Clients regarding the use of Client specified matters, materials or software of external parties and damages relating to the use of sub-contractors prescribed by the Client to the Supplier. The liability of the Supplier due to mutilation, destruction or loss of data or documents is also excluded.
8.3 The exclusions and limitations of the liability of the Supplier, as described in the previous paragraphs of this Article, leave the other exclusions and limitations of the liability of the Supplier under this Agreement unaffected.
8.4 The exclusions and limitations specified in this Article expire if and for as far as the damages were intended or as a result of the gross negligence of the company management of the Supplier.
8.5 A precondition for the emergence of any right to compensation remains that the Client reports the damages to the Supplier in writing as soon as possible. Every claim for damages against the Supplier expires twelve months after the onset of the claim.
Article 9: Other
9.1 The applicability of buying or other conditions of the Client are specifically excluded.
9.2 Deviations and additions to these General Conditions are only valid if agreed to in writing between parties.
9.3 The Client is not allowed to transfer any rights from an Agreement entered into with the Supplier to external parties, without the prior written consent of the Supplier. This consent will not be withheld on unreasonable grounds.
9.4 The Supplier is entitled to transfer its claims on payment of compensation to an external party. The Supplier is also allowed to have the Agreement implemented, entirely or partially, by an external party or to involve external parties in the execution of this Agreement.
9.5 The Agreements between the Supplier and the Client are governed by Dutch law. The applicability of the Vienna Sales Convention 1980 is excluded.
9.6 For as far as not compellingly otherwise specified by national of international rule or law, all disputes resulting from or connected to the General Conditions of these Agreements, or Agreements flowing from there, are exclusively brought before the competent Court in Amsterdam.