Algemene voorwaarden

General terms and conditions Spont.Cash | version 1.2 | January 03, 2018

Article 1. Definitions
1.1. Agreement: the agreement regarding the delivery of the Service.
1.2. App: the native Apple Spont.Cash app, as available in the Apple Appstore.
1.3. Client: party in the Agreement.
1.4. Defect: a sudden shortcoming, fault, or imperfection in the Service.
1.5. Emergency Maintenance: maintenance which needs to be executed immediately
to avoid security breaches or to fix security breaches.
1.6. Functionality: the functions and possibilities of the Service.
1.7. General Terms and Conditions: these general terms and conditions.
1.8. Maintenance Window: non-Working Days.
1.9. Service: the functionality of Spont.Cash which is delivered through the internet
(HTML app) and/or the App to Client.
1.10. Service Window: all available time minus Maintenance Window minus time spent
for Emergency Maintenance.
1.11. Support: providing Client with information and advice regarding the use of the
Functionality by Vendor through e-mail and/or the website of Vendor during
Working Hours, as well as supporting Client with finding the causes of Defects
during Working Hours, as well as solving the Defects, support regarding
hardware such as pin terminals and receipt printers is explicitly excluded.
1.12. User: a user that can be attributed to Client, inter alia, an employee, who uses
the Functionality.
1.13. Vendor: the sole proprietorship company “Crypton”, registered at the chamber
of commerce under number 30181362, also trading under the trade name
“Spont.Cash”, or every affiliated company which uses these General Terms and
Conditions, or any successor thereof, also the other party in the Agreement
1.14. Working Hours: from 9.00 en 17.00 (Dutch time) on Working Days.
1.15. Working Days: Monday to Friday, with the exception of national Dutch holidays.

Article2. Applicability general terms and conditions and formation of the Agreement
2.1. The Agreement is entered into online, on the website Spont.Cash. The
Agreement is confirmed through a confirmation by e-mail. During the
enrollment, Client agreed with these General Terms and Conditions by checking
a checkbox. Alternatively, the Agreement is entered into by signing a Vendor
issued quote by Client, on which quote these General Terms and conditions are
applicable.
2.2. These General Terms and Conditions are applicable on all Agreements between
Vendor and Client.
2.3. Applicability of other general terms and conditions and/or purchase terms and
conditions is explicitly declined.

Article 3. Rendering the Service
3.1. The Service, with the exception of the App, is rendered as SaaS (Software as a
Service). Therefore Client only pays for the use of the Functionality. Client is
therefore not granted any license, but is granted a right to use the Functionality
of the underlying software. Client pays a subscription fee as agreed upon.
3.2. Hosting is included in the Service. Therefore Client does not have to select and
contract a vendor for hosting.
3.3. Client is not allowed to use the Service in a way it can damage the Service,
and/or it can damages third parties, nor in a way it can cause interruptions in the
availability of the Service.
3.4. Vendor offers its Service on the basis of “fair use”, that means that it will not
impose Client any other than the agreed upon limitations regarding system and
network load. However, Vendor is entitled to take measures in case of excessive
load caused by Client. Excessive load in this case, is load that is significantly
higher than the load of an average client of Vendor. In case of excessive system
and/or network load parties will consult each other regarding possible solutions
and/or changes and the involved costs.
3.5. Client will make sure that its Users will administer their login credentials
regarding the Service with great due care.
3.6. Client will use the by Vendor designated software, including but not limited to
internet browsers and hardware.
3.7. Client will use the by Vendor designated hardware, including but not limited to
pin terminals and receipt printers.
3.8. Client indemnifies Vendor of claims of third parties regarding the breach of
paragraphs 3.3 en 3.6.
3.9. Client is responsible to acquire the necessary facilities, inter alia, installing and
configuring appropriate telecommunication services, software (designated
internet browsers), hardware (pin terminals and receipt printers) and
infrastructure, in order to make use of the Service. Therefore Vendor is not
responsible for the unavailability of the Service due to internal failures in the
infrastructure of Client or other aforementioned facilities. Beer Consultancy is
not responsible for the costs incurred by Client regarding the use of the
aforementioned facilities, inter alia, the costs of use and data. Furthermore
Client is responsible to acquire at least one fixed IP address, since a fixed IP
address is necessary to let the Service or the App communicate with the
hardware.
3.10. Vendor strives to an availability of the Service of 99,9 (ninety nine comma nine
percent) within the Service Window in a calendar year..
3.11. Vendor only installs the hardware as mentioned in article 3.7 in case it was
agreed upon in the Agreement. Vendor is never responsible for defects in the
aforementioned hardware. In case of defects, Client needs to contact de vendor
of the hardware.
3.12. Vendor makes backups of the data Client accrued whilst using the Service.
However, the backups are for internal use of Vendor. Therefore, Client is not
entitled to request to restore a backup.

 

 

Article 4. Support, updates and upgrades.
4.1. Support will be rendered on the basis of best effort.
4.2. Vendor will strive to start with activities regarding a support call issued by Client,
inter alia questions of Users and solving Defects, as soon as possible.
4.3. A Defect will only be processed in case the Defect can be proved by Client and in
case the Defect can be reproduced by Client and Vendor.
4.4. In case Vendor presumes that solving a Defect will take such period of time that
it can affect the availability of the Functionality, Vendor shall provide a
temporary sufficient solution.
4.5. Repaired Defects will be put in production as soon as possible. In case of
repaired Defects in the App, it might take a while before the App with the fixes is
available in the appstore, since the App needs to be approved by the vendor of
the appstore.
4.6. Defects caused by:
a. improper use by User;
b. using hardware and/or (browser) software other than the designated
hardware and/or software;
are never covered by the Agreement.
4.7. In case Users do not have proper knowledge regarding the Functionality and/or
Service, Vendor is entitled to demand that Client will acquire training from
Vendor in order to bring the level of knowledge of the Users to an adequate level
so that Users will not use Support disproportionately. Vendor will support its
claim of insufficient knowledge by records of the (Support) history of Client.
4.8. Vendor will consult with Client prior to the implementation of updates and/or
other changes in the Functionality in case this can result in an expected loss of
the performance of the Service and/or loss of Functionality and/or partial or
complete unavailability. This paragraph does not apply in case of Emergency
Maintenance.
4.9. Vendor maintains a roadmap for future Functionality or future versions of the
App. No rights may be derived from the roadmap by Client.
4.10. Updates and upgrades will be put in production within the Maintenance
Window.
4.11. In case Client uses the App, the App will show a popup in case the App is three
(3) versions behind, in which popup is stated that Client is obliged to download
the newest version. In case Client in that case wishes to continue the use of the
old version, it acknowledges that some functionality might not work anymore as
intended.
4.12. Vendor will always put the newest versions of the Service at the disposal of
Client.

 

 

Article 5. Intellectual property rights
5.1. Vendor guarantees that it owns all the necessary intellectual property rights
and/or licenses regarding the Service, inter alia, rights and/or licenses regarding
the underlying software.
5.2. All intellectual property rights regarding by Vendor to Client provided material,
inter alia, documentation regarding trainings, manuals and presentations,
reports, roadmaps, remain vested in Vendor, its licensors and/or suppliers. Client
is solely granted a license to use this material, which license does not encompass
more than using the material for internal (training) purposes.

 

 

Article 6. Prices and rates, invoicing and payment
6.1. The prices and rates mentioned in the Agreement. All prices and rates are
exclusive of V.A.T. or sales tax. Vendor is yearly entitled, per January 1st, to
increase the agreed upon prices and rates.
6.2. The remuneration for the Service is invoiced monthly in arrears. Every month
Client receives an invoice by e-mail. The e-mail contains a link to a payment
service provider which enables the Client to pay the aforementioned invoice.
The payment term is stated in the aforementioned e-mail or invoice.
Functionality that was added in the interim is immediately invoiced pro rata until
the next invoice date.
6.3. Other services and activities which are not covered by the Agreement, are
rendered against the applicable rates for the involved employees of Vendor. In
that case invoicing will be done in monthly arrears on the basis of time and
materials, unless explicitly agreed otherwise. What is stipulated in this
paragraph also applies for (the parts of the Agreement covering) consultancy
activities, unless explicitly agreed upon otherwise.
6.4. The by Vendor to Client issued invoices are due and payable within thirty (30)
days after invoice date.

 

 

Article 7. Duration, termination and exit
7.1. The Agreement is entered into for an indefinite period of time. The Agreement
is terminated in case the invoice as mentioned in article 6.2, is not paid within
the payment term. The account of Client is saved for a period as set out in article
7.5, withint that period of time the Agreement can be revived by Client.
7.2. Without prejudice to what is agreed upon, Vendor is entitled to terminate the
agreement, partially or completely and with immediate effect, in writing
without any prior notice: (i) in case Client commits an imputable failure
regarding one or more of its obligations and/or compliance is impossible; (ii) in
case it becomes clear to Vendor that Client is not in a position and/or willing to
fulfill its obligations; (iii) in case Client has applied for a suspension of payments,
has been granted this suspension of payments or has filed for bankruptcy, has
been declared bankrupt, is about to liquidate its company, ceases its operations
or appears to be insolvent.
7.3. All rights granted to Client under the Agreement regarding the use of the
Functionality expire in case of termination of the Agreement, regardless in
which way the Agreement was terminated.
7.4. Obligations, which, by their nature are intended to survive the termination, will
remain in force after termination. The termination of the Agreement will not
explicitly exempt parties from inter alia confidentiality, intellectual property
rights, applicable law and dispute resolution. This also applies in case the
termination was due to an attributable shortcoming on the part of Vendor.
7.5. After termination of the Agreement, regardless reason of termination, Client is
entitled to access the backend of the Service for a period of three (3) months, to
let Client export its data accrued whilst using the Service.
7.6. Vendor is entitled to suspend the Service or App temporarily or indefinitely,
without being liable towards Client.

 

 

Article 8. Limitation of Liability
8.1. The total liability of Vendor due to an attributable shortcoming in the fulfillment
of the agreement, or due to any other reason, inter alia, tort, is limited to a
compensation for direct damages and limited to an amount that equals the
remuneration (v.a.t. exclusive) Vendor received from client in the one (1)
calendar month prior to the damage causing event, where a series of
consecutive events is deemed as one event.
8.2. The liability of Vendor for indirect damages, consequential damages, lost turn
over, lost profits, lost savings, loss of goodwill, damage due to business
interruption, damages resulting from claims of customers of client, damages
related to the use of by client to Vendor designated procedures, third party
materials or third party software and damages related to the use of suppliers
designated by client to Vendor is excluded.
8.3. Unless compliance by Vendor is permanently impossible, the liability of Vendor
for an attributable shortcoming in the fulfillment of the agreement will only be
valid if client immediately notifies Vendor of the default situation, giving Vendor
a reasonable period of time to remedy the situation and Vendor remains in
default after the aforementioned period of time. The notice must give a detailed
and complete description of the shortcomings, so that Vendor will have the
opportunity to respond adequately.
8.4. Any claim for damages against Vendor lapses three (3) months after the date
the damage causing event, or so much sooner by virtue of law.
8.5. The stipulations as set out in this article and all other limitations and exclusions
of liability specified in these general terms and conditions, also apply for the
benefit of all persons and/or legal entities used by Vendor during the execution
of the agreement.
8.6. The limitations of liability as set out in this article are void in case of willful
misconduct or conscious recklessness of the top level management of VVendor.

 

 

Article 9. Force majeure
9.1. Vendor is not obliged to perform any obligation if prevented from doing so due
to a circumstance for which Vendor cannot be attributed, nor under the law,
legal act or due to generally prevailing opinions. In case Vendor invokes force
majeure against Client, Vendor shall notify Client in writing as soon as possible,
however, within a reasonable period of time.
9.2. Under force majeure for Vendor is understood, inter alia, as not being able to
properly fulfill its obligations due to the lack of personnel, (long duration of)
illness of personnel, strikes, traffic congestions, loss of data and documents,
power failures, late deliveries of goods and services, regardless of the fact that
these events take place at Vendor and/or its suppliers.
9.3. In case of force majeure situation that lasts longer than ten (10) days and Client
has sent Vendor a notice of default, Client has the right to terminate the
Agreement extra-juridical and with immediate effect by means of a registered
letter. Client is not entitled to any damages. Work which has already been
performed under the terms of the Agreement will be paid pro rata. In order to
determine what work has already been accomplished, the time sheets of Vendor
will prevail.

 

 

Article 10. Confidentiality
10.1. Information and/or documentation is considered confidential if it is designated
by one party as such, or if the other party has knowledge of the fact, or should
have known, that information and/or documentation is confidential.
10.2. The parties, and the staff of the parties, shall make use of confidential
information which has been received or made available only in accordance with
the stipulations in the agreement. They shall not make this material available to
third parties directly nor indirectly, nor approve the use of, without prior
approval of the other party. Parties, and the staff of the parties, shall take all
necessary precautions in order to protect the information from unauthorized use
and disclosure.
10.3. The provisions in this article shall not apply if one party has to disclose
confidential information pursuant to a court order or government decree.
10.4. Client is obliged to take measures to prevent unauthorized persons from gaining
(possible) access to the delivered services and data. Client is liable for damages
suffered by Vendor in case third-parties make illegal or unauthorized use of
delivered goods, software and/or services.
10.5. Client acknowledges that the screen lay outs, the interfaces, graphical elements
and icons are subject to intellectual property rights as mentioned in Article 5.
The stipulations regarding non-disclosure, as set out in this article also apply to
inter alia the screen prints / captures of the Service.

 

 

Article 11. Processing personal data
11.1. The following paragraphs of this article are deemed as a basic processing
agreement in accordance with the Dutch Personal Data Protection Act and are
applicable if personal data, as described in the aforementioned law, are being
processed. Upon first request of Client, Vendor is willing to cooperate in order to
make further arrangements regarding processing (and securing) personal data.
11.2. Under the aforementioned law, Vendor should be deemed as processor and
Client as the controller.
11.3. Vendor shall process personal data in favor of Client within the agreed upon
scope. Vendor is not allowed to use the personal data obtained from Client for
its own benefit, other than agreed upon, process or disclose this personal data to
third parties.
11.4. Vendor will never be able to guarantee that the safeguarding of information is
effective under all circumstances. In case an explicitly described level of
protection is not agreed upon the security shall meet a level which, given the
standard of the current technology and sensitivity of the data and involved
costs, is not unreasonable.
11.5. Upon the first request by Client, Vendor will cooperate with an independent
audit in order for Client to be able to get an accurate perception of the measures
taken by Vendor as described in the preceding paragraph. Any involved costs
with this will be borne by Client.
11.6. Adequate protection of the workstations and devices of Client and Users , as
well as taking appropriate technical and organizational measures is always the
responsibility of Client, therefor Vendor is never responsible or liable.
11.7. In case it is possible to upload documents within the Service, it is the
responsibility of Client to assess whether the documents it wishes to upload do
not contain sensitive (personal) data, since the organizational and technical
measures Vendor has in place regarding the protection of personal data are of
basic level, and do not meet the requirements for processing sensitive (personal)
data. Client indemnifies Vendor for claims of third parties regarding the (illegal)
processing of sensitive (personal) data.

 

 

Article 12. Transfer of rights and obligations
12.1. Client is not entitled to transfer rights and obligations to a third party, without
prior written permission of Vendor. The aforementioned permission cannot be
withheld unreasonably by Vendor.
12.2. Vendor is entitled to transfer all rights and obligations ensuing from the
agreement, without any limitations, to third parties. Client shall be notified
thereof as soon as possible.
12.3. Vendor is entitled to make use of third parties to execute the Agreement,
whether by of subcontracting or the hiring of personnel.

 

 

Article 13. General stipulations
13.1. The Agreement is governed by the Laws of the Netherlands. Disputes arising
out of the Agreement will be solely submitted to the court in Amsterdam.
13.2. To the extent that any provision of the general conditions is declared void and/or
annulled, all other conditions between parties remain in force. In such a case,
parties will agree to a new set of provisions, which will correspond as much as
possible to the void or annulled conditions.
13.3. Delivery terms given by Vendor at any given moment are approximate deadlines
and can not to be considered as binding terms. The lapse of the delivery term
will not result in an attributable shortcoming. In that case Client is not entitled to
any compensation or damages.
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