Please read these general terms and conditions carefully. We recommend that you save a copy for future reference. These general terms and conditions set out the applicable terms relating to the Services (as defined below) provided by FeedbackFruits. Please visit our website to learn more about how we have made learning more engaging and teaching easier.
Unless agreed otherwise in the Order Form:
2.1 Subject to Customer purchasing the Services in accordance with clause 4, complying with the Requirements and the other terms and conditions of this Agreement, FeedbackFruits shall grant to Customer a non-exclusive, non-transferable right, to permit the Academic Unit(s) and/or Users to access and use the Services during the Subscription Term (the Subscription).
2.2 In relation to the Academic Unit(s) and/or Users, Customer undertakes that:
2.3 Customer will not, and will not permit, or authorize any third party to: (i) sell, rent, lease, transfer, sublicense, share or otherwise make the Services or deliverables provided by FeedbackFruits hereunder available to any third party, except as expressly authorized by this Agreement; (ii) create any derivative works, functionally equivalent product(s) or translations of the Services or any deliverables, or otherwise use the Services other than as expressly permitted by this Agreement; (iii) copy any feature, design or graphic in, or disassemble, reverse engineer or decompile, the Services or deliverables; (iv) access or use the Services or deliverables to develop any products or services that are competitive with or similar to any of FeedbackFruits’ products or services or to assist a third party to do so; (v) remove or modify any proprietary markings or restrictive legends placed on the Services or deliverables; (vi) take any action that jeopardizes FeedbackFruits’ rights or that of its affiliates, business partners, licensors or suppliers in the Services or deliverables; (vii) use the Services or deliverables in a manner that is defamatory, hateful, infringing or otherwise causes damage or injury to any person or property, including, without limitation, to FeedbackFruits and its affiliates, business partners, licensors or suppliers; (viii) publicly publish the results of any performance, benchmarking or comparison testing, or analysis of the Services or deliverables; (ix) use the Services or deliverables to provide the following services to third parties: outsourcing, hosting, or application service provider; (xi) transmit viruses or other deleterious code; (xii) perform unauthorized penetration testing, vulnerability scans, or automated testing; or (xiii) damage, disable, overburden through unauthorized load testing.
2.4 Customer acknowledges and agrees that the Users’ use of the Services is subject to any applicable terms of use upon registration. FeedbackFruits shall not be required to provide access to the Services to any User who fails to accept the terms of use and/or FeedbackFruits’ reasonable instructions.
2.5 Customer shall procure that Users shall use the Services only in accordance with any applicable terms of use. In the event Customer obtains knowledge that a User or a third party is attempting or may attempt to take any of the actions prohibited by the terms of use it shall immediately inform FeedbackFruits of such action.
2.6 In addition to and without affecting any other remedy available to FeedbackFruits in this Agreement or under applicable law, FeedbackFruits shall have the right, at its sole discretion, to (i) suspend or deny access to the Services by any or all Academic Unit(s) and/or Users in the event that FeedbackFruits reasonably believes that Customer is in breach of this Agreement or if Customer fails to make a payment due under this Agreement on the due date and/or (ii) suspend or deny access to the Services by a User in the event that FeedbackFruits reasonably believes such User is in breach of any applicable terms of use or FeedbackFruits’ reasonable instructions. In addition, FeedbackFruits shall have the right, at its sole discretion, to suspend or deny access to the Services by Customer and any or all Academic Unit(s) and/or Users if FeebackFruits believes that it is necessary to address any security, availability or similar issues requiring expedient measures.
3.1 During the term of the Agreement, FeedbackFruits shall provide Customer with the Services in accordance with the Agreement and the FeedbackFruits Service Level Agreement. FeedbackFruits shall provide the Services substantially in accordance with the Agreement using commercially reasonable skill and care. If the Services do not conform with the agreed specifications, FeedbackFruits will use reasonable commercial endeavors to correct any such non-conformance promptly. Such correction constitutes Customer's exclusive remedy for any breach of this clause 3.1.
3.2 In addition to the Additional Services, following Customer’s prior written request and subject to acceptance by FeedbackFruits of the additional Fees, FeedbackFruits shall provide Customer consulting, training, and integration services as set out in the Order Form or as may be agreed between the parties from time to time and recorded in writing.
4.1 Customer shall pay FeedbackFruits the Fees for the Services in accordance with the Order Form. The Fees are in the currency specified in the Order Form (or EUR if not specified) and are exclusive of applicable taxes (which shall be added to FeedbackFruits' invoices at the appropriate rate). Customer shall be responsible for all sales taxes, similar taxes, and surcharges due under this Agreement.
4.2 Unless otherwise set forth in an Order Form, all payments are due within thirty (30) days of the invoice date. Except as expressly provided in clause 5.5., all such payments are non-refundable. Invoices are not subject to offset or reduction by Customer unless approved in writing by FeedbackFruits.
4.3 In addition to and without affecting any remedy available to FeedbackFruits in accordance with this Agreement or applicable law, (i) Customer shall reimburse FeedbackFruits for all collection costs and interest for any overdue amounts, and (ii) any late payment of the Fees or any part thereof shall bear interest from its respective due date hereunder until its actual payment, at the maximum rate interest rate permitted by applicable law or one and a half percent (1.5%) per month, whichever is lower.All payments to FeedbackFruits hereunder shall be in the currency specified in the Order Form (or in euros if not so specified) and without deductions or set-offs. Customer will bear all applicable fees and taxes involved with the performance of this Agreement.
4.4 FeedbackFruits has the right to annually adjust its Fees in accordance with the consumer price index (CPI) (2015 = 100) published by the 'Centraal Bureau voor de Statistiek' (CBS).
5.1 This Agreement shall enter into effect on the Effective Date and shall continue for the duration of the Subscription Term laid down in the Order Form. The Agreement will automatically renew following the Partnership End Date (as defined in the Order Form) for a successive term equal in duration to the immediately preceding term unless terminated by either party on giving not less than ninety (90) days’ prior written notice to the other party, in which case the relevant Order Form shall terminate upon the expiry of the Subscription Term (to the extent applicable).
5.2 Services and Subscription Terms shall be limited to the specific period set forth in the Order Form.
5.3 Customer may terminate any affected Service with immediate effect by giving written notice to FeedbackFruits if at any time during the term of this Agreement FeedbackFruits materially breaches this Agreement and fails to remedy that breach within a period of thirty (30) days after being notified in writing by Customer specifying the details of the material breach.
5.4 In the event that termination pursuant to clause 5.3 takes effect before the end of a Subscription Term, FeedbackFruits shall refund the amount of Fees paid in advance calculated on a pro-rata basis for the remaining full months of the Subscription Term. Any such refund shall be in full and final settlement of all liabilities of Customer arising out of termination under clause 5.3.
5.5 FeedbackFruits may terminate any affected Service with immediate effect by giving written notice to Customer if at any time during the term of this Agreement Customer materially breaches this Agreement and fails to remedy that breach within a period of thirty (30) days after being notified in writing by FeedbackFruits specifying the details of the material breach.
5.6 Each party may terminate all Services and this Agreement as a whole with immediate effect by giving written notice to the other party if at any time during the term of this Agreement:
5.7 Without affecting any other right or remedy available to FeedbackFruits, in the event that FeedbackFruits terminates this Agreement in accordance with its rights under clause 5.5 or 5.6 above, then Customer shall pay FeedbackFruits the full amount of all Fees until the end of the Term, in accordance with clause 4.
5.8 Upon termination and/or expiration of this Agreement for any reason whatsoever:
5.9 The following provisions shall survive expiration or any termination of this Agreement: 7, 8, 9, 12 and 13. Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry.
6.1 Customer shall:
7.1 To the fullest extent permitted by applicable law, FeedbackFruits does not make any warranties or representations, and hereby specifically disclaims any and all warranties and representations of any kind with respect to (a) (the availability, operation, performance and/or use of) the Services, or any other information and materials on or accessed via the Services, (b) satisfactory quality, fitness for a particular purpose or use, adequacy, accuracy, timeliness, availability or completeness of the Services, or any other information, content or materials accessible via the Service (c) the Services being uninterrupted, secure, or free of errors, viruses, or other harmful components. The Services and all components thereof, and any other information, content or Materials contained in or accessed via the Services, are provided on an "as is" and "as available" basis
7.2 Nothing in this Agreement excludes the liability of either party for intent or gross negligence, and in no event shall either party be liable for any indirect, incidental, consequential (including lost profits), exemplary, special, or punitive damages, losses or costs, arising out of or relating to the Agreement. Additionally, FeedbackFruits shall not be liable for any claims relating to: (i) loss or corruption of data; (ii) inability to access the Service; (iii) performance-related delays; (iv) non-delivery or mis-delivery of communications; and (v) loss or liability resulting from acts beyond its reasonable control.
7.3 Excluding Customer’s failure to pay amounts due, in no event shall either party’s liability under this Agreement exceed an amount equal to the Fees paid or payable by Customer in the twelve (12) month period preceding the event that gave rise to the liability. This limitation of liability is in aggregate and not per incident.
7.4 Any liability of FeedbackFruits is conditional on FeedbackFruits being in default of its obligations, whereby it remains in breach of the relevant obligation after Customer provided FeedbackFruits with a written notice of the default specifying in detail the respective breach and allowing FeedbackFruits to cure its breach within a reasonable time of at least thirty (30) days.
7.5 Customer shall defend and hold FeedbackFruits harmless against all liabilities, costs, expenses, damages and losses suffered or incurred by FeedbackFruits arising out of or in connection with any claim made against FeedbackFruits by a third party (including Academic Unit(s) and/or Users) for actual or alleged infringement of a third party's IP Rights arising out of or in connection with FeedbackFruits’ use of Customer’s name, logo and/or trademarks or Customer Material.
7.6 FeedbackFruits shall defend Customer against any claim by a third party that the Services purchased by Customer in accordance with this Agreement infringes the copyright or right of confidentiality of such third party and shall pay any amounts finally awarded by a court of competent jurisdiction to such third party or the settlement agreed to by FeedbackFruits. The foregoing obligations will not apply (a) if Customer or its users (i) alter or misuse the Services, or (ii) uses a version of the Services which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Services which was made available to Customer, (b) to the extent that an infringement claim is based upon any materials not furnished by FeedbackFruits, or (c) to the extent that an infringement claim is based on third party content or any material from a third party portal or other external source that is accessible or made available within or by the Services.
7.7 Where one party (the Indemnifying Party) is required to indemnify the other party (the Indemnified Party) pursuant to this Agreement, then the Indemnified Party shall:
8.1 Each party shall not (except in the proper course of its duties), either during or at any time after the term of the Agreement, directly or indirectly, use for its own purposes or those of any third party or disclose to any third party any Confidential Information provided by the disclosing party and shall only release the Confidential Information to those individuals who need to know it strictly for the purpose of this Agreement. Each receiving party shall treat Confidential Information with the same degree of care and apply no lesser security measures than it affords to its own confidential information. This restriction does not apply to Confidential Information:
8.2 Customer hereby grants a license to FeedbackFruits to use Customer’s name, logo and/or trademark(s) in FeedbackFruits' client list or otherwise present, distribute or publish such name, logo(s) and/or trademark(s) for the purpose of or in connection with FeedbackFruits' marketing and sales activities, including (but not limited to) in press release(s), and in case study(ies) and on the client page of the Website, during and after the Subscription Term.
9.1 Customer acknowledges and agrees that FeedbackFruits (and/or its licensors) own all IP Rights in or connected to the Services and any deliverables, content or other materials provided by FeedbackFruits in connection with the Services. Neither Customer, Academic Unit(s) nor any User will acquire any ownership of any IP Rights in the Services, Materials, Documentation or the Tools, including but not limited to use cases, learning journeys, workflows or other learning solutions, by virtue of this Agreement, the permissions granted hereunder or any agreement or arrangement entered into between Customer, Academic Unit(s) and/or any User.
9.2 Any and all IP Rights acquired and/or developed and/or implemented by FeedbackFruits, whether developed solely by FeedbackFruits, jointly by parties or solely by Customer's employees or contractors, and/or any (user) data generated during, as a result of, or in connection with the provision of the Services or Materials to Customer, Academic Unit(s) and/or the Users, shall solely belong to FeedbackFruits, and Customer hereby waives any and all rights in respect of such IP Rights. Customer hereby irrevocably assigns and transfers to FeedbackFruits any and all ownership rights and title to such IP Rights in advance. Customer shall execute such documents and take such steps as FeedbackFruits may reasonably require to give effect to this clause 9.2.
9.3 All right, title, and interest (including all IP Rights) in and to the Customer Material uploaded by Customer, the Academic Unit(s) and/or Users to the Tools shall be owned by Customer or the relevant Academic Unit(s) and/or User, respectively.
9.4 FeedbackFruits may collect and disclose anonymized information about Customer’s use of Services. Customer hereby grants to FeedbackFruits a perpetual, non-cancellable, worldwide, royalty-free, non-exclusive right to utilize any anonymized data, information or material provided by Customer, Academic Unit(s) and/or Users during their use of the Services for any legitimate purpose, including the right to sublicense such data to third parties, subject to all legal restrictions regarding the use and disclosure of such information.
9.5 To the extent not already owned by FeedbackFruits, Customer hereby grants FeedbackFruits a perpetual, non-exclusive, royalty-free, irrevocable, worldwide license to use or disclose any suggestions, enhancement requests, recommendations, proposals, ideas or other feedback Customer, Academic Units or Users provide to FeedbackFruits concerning the Services, and create derivative works thereof, without restriction, compensation, obligation or liability of any kind to Customer or to any third party.
FeedbackFruits shall process all personal data collected from Customer, and/or Users in connection with the performance of this Agreement and the provision of the Services in accordance with applicable laws and FeedbackFruits' Data Processing Agreement.
FeedbackFruits shall not be liable to Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of FeedbackFruits or any other party), failure of a utility service or telecommunications network, act of God, epidemic, pandemic, flu outbreak, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood, storm or default of suppliers or sub-contractors, provided that FeedbackFruits, without undue delay, notifies Customer of such an event and its expected duration.
12.1 No variation of the Order Form shall be effective unless it is in writing and signed by the authorised representatives of each party. Each party signing the Order Form or any amendment thereof warrants to be duly authorised to do so and bind the respective party.
12.2 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.3 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable by court decision, statute or rule, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
12.4 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
12.5 Customer cannot assign, subcontract, sublicense, transfer or encumber all or any of its rights under this Agreement nor grant, declare, create or dispose of any right or interest in it. This limitation of the transferability of rights of claim has effect both under the law of obligations and under property law as described in section 3:83(2) of the Dutch Civil Code.
12.6 Any notice under this Agreement may be delivered in person or sent by electronic mail, by registered mail, postage prepaid, or by recognized delivery service, using the legal contact information of the recipient indicated in the Order Form or the most recent contact information provided by the recipient (by means of notice complying with this paragraph).
13.1 This Agreement shall be governed by and construed in accordance with Dutch law (excluding any conflict of laws rules).
13.2 If any dispute arises out of this Agreement, parties will first attempt to resolve the matter informally through designated senior representatives of each party to the dispute. If the parties are not able to resolve the dispute informally within a reasonable time not exceeding two (2) months from the date the informal process is requested by notice in writing, they will attempt to settle it by mediation in accordance with the 'Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure'. Should informal resolution and mediation not be possible then the dispute shall be resolved pursuant to clause 13.3.
13.3 Any dispute, whether contractual or non-contractual, arising from or in connection with this Agreement shall be submitted exclusively to the competent court of Amsterdam, the Netherlands. The UN Convention for the International Sale of Goods shall not apply to this Agreement.
