FlexWizard - Site management via e-mail distribution permissions and end-user license agreement
Article 1. Offer and agreement.
1.1. These General Terms and Conditions of FlexWindow shall apply to all offers and agreements under which Digital Architects B.V. supplies to Customer FlexWindow services as offered on the FlexWindow site, even if such services are not (further) specified herein.
1.2 All offers shall be without engagement unless expressly stated otherwise on the FlexWindow site. An agreement will not be concluded until Customer completes the full application procedure.
1.3 Any applicability of any terms and conditions of Customer are rejected.
1.4 In the event of nullity or annulment of any provision of these General terms and Conditions of Flexwindow, the other provisions hereof shall remain in full force and effect and FlexWindow and Customer shall consult together in order to agree on new provisions to replace the provisions that are null or, as the case may be, annulled, duly observing as much as possible the objects and purport of the provision that is null or annulled.
Article 2. Service.
2.1 FlexWindow will offer the services as described on our web site.
2.2 FlexWindow shall use its best efforts to perform the services with due care in accordance with the procedures and instructions laid down on the FlexWindow site.
2.3 FlexWindow makes a destinction between personal and business use by Customer. Personal use means the use of FlexWindow by any natural person who is acting for purposes which are outside his trade, business or profession. Business use includes use of FlexWindow for the benefit of a company, a for-profit entity, a not-for-profit entity, a governmental entity and an educational institution.
Flexwindow reserves the right to ask customer to provide additional information on the type of use of its services by Customer. FlexWindow may investigate the type of use of its services by Customer, using Customer´s account information or any other information that may be obtained by using FlexWindow. FlexWindow can decide at its descretion after such investigation to assign a different type of account to Customer which is in accordance with the actual use of FlexWindow.
2.4 Customer is obliged to follow the procedures and instructions for use on the FlexWindow site. All data to be processed by FlexWindow shall be prepared and delivered by Customer in accordance with conditions laid down in the instructions for use on the FlexWindow site.
2.5 Customer guarantees that all data, software and other materials are free of any viruses, logic bombs or other corrupted procedures which could interfere or interrupt the FlexWindow Service. Customer guarantees that he is allowed to use the data, software and other materials and guarantees that no rights of third parties are infringed by the transmission, use or treatment of this data, software or other materials to or by FlexWindow. Customer indemnifies FlexWindow against any action based on the allegation that any transmission, use or treatment of the data, software or other material by FlexWindow infringes any right of third parties.
2.6 FlexWindow may make alterations in the substance or extent of the services. These changes could involve changes in procedure or updates of software. If such alterations result in a change in the procedures applied by Customer, FlexWindow shall inform Customer as soon as possible and the costs of such change shall be for Customer´s account. In such a case, Customer may give notice of termination of the agreement, effective on the date when the alterations takes effect.
2.7 FlexWindow cannot guarantee that the Service will be available at all times. The Service can f.i. be down because of a malfunctioning content server, because of maintenance work or due to bad internet connections.
Article 3. Price and payment
3.1 All prices shall be inclusive of VAT and any other levies imposed by the authorities.
3.2 FlexWindow is entitled to adjust the prices and rates in force by giving at least three months notice to Customer. If Customer is unwilling to accept such adjustment of prices and rates declared by FlexWindow as is referred to in this article Customer shall be entitled within seven work-days from the notice referred to in this article to terminate the agreement with effect from the date stated in the FlexWindow notice on which the adjustment of process or rates would become effective.
3.3 Fee´s must be paid in advance for a one year term. Customer will receive an electronic invoice by email after registration. All invoices shall be paid by Customer in accordance with the terms of payment set forth in the invoice. Failing any specific terms, Customer shall pay within 30 days from the invoice date.
3.4 In the event that Customer fails to pay the amounts due within the agreed period, legal interest shall be due by Customer on the outstanding amount without any notice of default being required. Should Customer, after notice of default, fail to settle the claim, the same may be placed out of hand, in which case customer shall be liable to pay in full, in addition to the total amount then due, any legal and non-legal expenses including any fees charged by external experts in addition to the costs assessed in court, relating to the collection of this claim or other enforcement of rights, the amount of which is fixed at 15% at least of the total amount.
Article 4. Intellectual property rights
4.1 All intellectual property rights to any software, equipment, or other materials provided under the Agreement, such as designs, documentation, offers, etc. shall solely be held by FlexWindow or its licensers. Customer shall exclusively acquire such rights of use and powers as are explicitly granted hereunder or otherwise and for the rest Customer shall not multiply the software or other materials or make any copies thereof.
4.2 Customer will not be permitted to remove from or change in the software, equipment or materials any designation concerning copyrights, trademarks, tradenames or other intellectual or industrial property rights. FlexWindow is allowed to secure the software by technical means. Customer is not permitted to remove or evade such protection.
4.3 Customer is allowed to use the software, equipment and materials to create, use and change his account and the flexwindows (content windows) he created as described in the instructions for use.
4.4 FlexWindow indemnifies customer against any action at law based on the allegation that any software, equipment or materials developed by FlexWindow itself infringe(s) any intellectual or industrial property rights valid in the Netherlands, provided that customer shall forthwith inform FlexWindow about the existence and substance of the action at law and leave the handling of the case entirely to FlexWindow, including the making of any settlements. For that purpose customer shall give FlexWindow all co-operation necessary to defend such actions. In the event that it is judicially and irrevocably established that the software, equipment or materials developed by FlexWindow itself infringe(s) any intellectual or industrial property right belonging to any third party or that in the opinion there is a fair chance that such infringement will occur, FlexWindow shall stop the Service supplied and credit the paid fees under deduction of a reasonable user fee, or see to it that customer is able to continue to use the Service supplied or some other Service, functionally equivalent to the previously provided Service. Any other or further liability or obligation to indemnify of FlexWindow in respect of infringement of any intellectual or industrial property right of third parties is excluded, including any liability and obligations to indemnify of FlexWindow for any infringements caused by the Services while being used in connection with any objects or software not supplied by FlexWindow or if used in any manner other than that for which the Service was developed and intended.
Article 5. Term and termination
5.1 An agreement will be entered into for a period of one year, starting from the date of registration. An agreement will be tacitly renewed for the duration of the same period unless one of the parties gives a 3 months notice of termination before the end of the period concerned.
5.2 FlexWindow may forthwith terminate the agreement either in whole or in part by giving notice, or without notice of default and without judicial intervention, or to suspend the service immediately and without any notice if Customer is in breach of any material obligation following from this Agreement. The service can also be suspended if Customer compromises FlexWindow or its service in any way. FlexWindow will not be liable for any damages by reason of such termination.
5.3 If at the time of termination as referred to in art. 5.2 customer has already received any performance in the in the execution of the Agreement, such performance and the obligations to pay connected therewith shall be incapable of being undone unless FlexWindow is in default with respect of such performance. Any amounts invoiced or paid by Customer before termination shall remain fully due and shall become immediately payable upon termination.
Article 6. Liability and indemnity
6.1 FlexWindow accepts liability to pay damages to the extend as shown by this article 6. Apart from the cases mentioned here no liability in any damages shall attach to FlexWindow irrespective of the grounds on which any action for damages would be based. However, the maximum amounts specified in this article 6 shall cease to apply if and insofar as the loss is due to FlexWindow´s wilful intent or gross negligence.
6.2 FlexWindow´s total liability in respect of a failure to perform the agreement as is imputable to the same shall be limited to making compensations for any direct loss up to the amount of fee´s (not including VAT) agreed for one year. In no event however, shall the total compensation for any direct loss exceed 10.000,-- Euro.
6.3 In no event shall FlexWindow´s total liability for any loss by death or bodily injury or for any material damage to property exceed 100.000 Euro. Per event, a series of connected events being considered a single event.
6.4 FlexWindow liability for indirect loss, including consequential loss, loss of profits, lost savings, loss of data and loss caused by interruption of operations is excluded.
6.5 Customers liability in respect of such failure to perform an agreement as is imputable to the same shall not arise unless Customer forthwith and properly declares FlexWindow in default in writing, stating a reasonable period in which to remedy the failure, and FlexWindow continues, and can be blamed for continuing, to fail in the fulfillment of its obligations even after such period. No rights to damages shall ever arise unless Customer reports the loss to FlexWindow in writing as soon as possible after it has arisen.
Article 7. International aspects, Export
7.1 In case of export of any software by customer, the relevant export regulations shall apply. Customer shall indemnify FlexWindow against all claims of third parties relating to any breaches of the applicable export regulations for which customer can be held liable.
Article 8. Applicable law and jurisdiction
8.1 The agreement between Customer and FlexWindow shall be governed by Dutch Law.
8.2 Any disputes that might arise between Customer and FlexWindow in connection with any agreement concluded with Customer by FlexWindow or in connection with any further agreement that might result therefrom, shall be resolved by the competent courts of the district of Utrecht.