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, without the right to grant sublicenses, to permit the Academic Unit(s) and/or Users to use the Services during the License Term (the License).
2.2 In relation to the Academic Unit(s) and/or Users, Customer undertakes that:
2.3 Customer acknowledges and agrees that the Users’ use of the Services is subject to the Users accepting any applicable terms of use and privacy policy upon registration and shall not be required to provide access to the Services to any User who fails to accept the terms of use and/or privacy policy.
2.4 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.
2.5 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) deny access to the Services by any or all Academic Unit(s) and/or Users in the event that Customer is in breach of this Agreement or fails to make a payment due under this Agreement on the due date and/or (ii) deny access to the Services by a User in the event that such User is in breach of any applicable terms of use.
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.
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 exclusive of VAT (which shall be added to FeedbackFruits' invoices at the appropriate rate).
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, all such payments are non-refundable, save as set out in clause 5.5. Invoices are not subject to offset or reduction by Customer unless approved in writing by FeedbackFruits.
4.3 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 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 applicable commercial statutory interest rate.
4.5 Upon automatic renewal pursuant to clause 5.3, FeedbackFruits has the right to 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 License Term laid down in the Order Form.
5.2 Services and License Terms shall be limited to the specific period set forth in the Order Form.
5.3 Upon expiration of the Partnership Period, the License Term shall automatically renew 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 License Term (to the extent applicable).
5.4 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 commits a breach of this Agreement and which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified to do so.
5.5 In the event that termination pursuant to clause 5.4 takes effect before the end of a License Term, FeedbackFruits shall refund the amount of Fees paid in advance calculated on a pro-rata basis for the remaining full months of the License Term. Any such refund shall be in full and final settlement of all liabilities of Customer arising out of termination under clause 5.4.
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 5.6 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 FeedbackFruits shall provide the Services substantially in accordance with this Agreement and with 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 7.1.
7.2 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
7.3 Nothing in this Agreement excludes the liability of either party for intent or gross negligence. Any contractual and non-contractual liability on the part of FeedbackFruits arising out of or in connection with the Agreement shall be limited to the lower of (i) the amount of Fees actually paid to FeedbackFruits by Customer in relation to the relevant Service during the calendar year in which the cause of action arose and (ii) EUR 10,000.
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 all liabilities and costs suffered or incurred by Customer arising out of or in connection with any claim by a third party that the use of the Services by Customer in accordance with this Agreement infringes the copyright, database right or right of confidentiality of such third party.
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 License Term.
9.1 Customer acknowledges and agrees that FeedbackFruits (and/or its licensors) own all IP Rights in or connected to 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 Licensor 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.
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 and privacy policy.
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 parties (or their authorized representatives). FeedbackFruits reserves the right to amend these general terms and conditions and its annexes at any time on notice to Customer. Customer's continued use of the Services following the deemed receipt of the notice shall constitute Customer's acceptance of the general terms and conditions and its annexes, as varied. The latest version of the general terms and conditions and its annexes will be published on the Website.
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, 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.
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