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 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 the Users accepting 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. 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) 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 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.
3.3 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 otherwise agreed between the parties in writing.
4.1 FeedbackFruits will invoice Customer the Fees in EUR (unless the Order Form specifies otherwise) in accordance with the applicable Order Form, which are exclusive of applicable taxes. If applicable, tax will be separately added to the invoice. Customer will pay invoices within the payment period stated in the Order Form, measured from the date of the invoice. In addition to and without affecting any remedy available to FeedbackFruits in accordance with this Agreement or applicable law, late payments of the Fees or any part thereof shall bear interest from its respective due date until its actual payment, at the maximum interest rate permitted by applicable law or 1.5% one and a half percent per month, whichever is lower. Except if otherwise agreed by the parties in writing, all such payments are non-refundable, and invoices are not subject to offset or reduction.
4.2 FeedbackFruits has the right to annually adjust its Fees by up to 5%, 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 Term laid down in the Order Form. Unless otherwise set out in the Order Form, the Agreement will automatically renew following the Partnership End Date 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 Term (to the extent applicable).
5.2 Either party may terminate any affected Service with immediate effect by giving written notice to the other party, if at any time during the term of this Agreement the other party materially breaches this Agreement and fails to remedy that breach within a period of thirty (30) days after being notified in writing by the initial party specifying the details of the material breach. In the event of a termination pursuant to this clause is initiated by the Customer, Feedbackfruits shall refund the amount of Fees paid in advance calculated on a pro-rata basis for the remaining full months of the Term. Any such refund shall be in full and final settlement of all liabilities of Customer arising out such termination. In the event of a termination pursuant to this clause initiated by FeedbackFruits, the Customer shall pay FeedbackFruits the full amount of all Fees until the end of the Term.
5.3 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:
(a) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts; or
(b) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
5.4 Upon termination and/or expiration of this Agreement for any reason whatsoever:
(i) neither party shall be relieved of any obligation hereunder, which shall have accrued prior to such termination or expiration;
(ii) Customer and all Academic Unit(s) and/or Users shall immediately cease exercising any rights granted to it hereunder and any use, activation or implementation of, the Services, the Documentation and/or the Materials shall immediately terminate; and
(iii) Customer shall promptly destroy and make no further use of any Materials, Documentation, Confidential Information or such other materials, property or information belonging to FeedbackFruits.
5.5 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 Nothing in this Agreement shall exclude or limit either party's liability for: (i) death or personal injury caused by negligence; (ii) fraud or fraudulent misrepresentation; (iii) intent or gross negligence; (iv) Customer's payment obligations. Either party's total aggregate liability shall not exceed the Fees paid or payable by Customer in the 12-month period preceding the claim. Neither party is liable for indirect, incidental, consequential (including lost profits), exemplary, special, or punitive damages. Except as expressly provided in the Service Level Agreement, FeedbackFruits disclaims liability for Service interruptions, performance delays, data loss, non-delivery or mis-delivery of communications, or events beyond its reasonable control. Any liability is conditional upon Customer providing detailed written notice of the breach and allowing FeedbackFruits at least 30 days to cure the default. 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.
7.2 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 Feedback Fruits, 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.
7.3 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:
(a) promptly give written notice to the Indemnifying Party of any claim or action which might give rise to liability under the indemnity, specifying the nature of the claim in reasonable detail;
(b) not make any admission of liability, agreement or compromise in relation to the matter without the prior written consent of the Indemnifying Party;
(c) give the Indemnifying Party and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and personnel, agents, subcontractors, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Indemnified Party to enable the Indemnifying Party and its professional advisers to examine them and to take copies for the purpose of assessing the relevant claim;
(d) act in accordance with the Indemnifying Party's reasonable instructions regarding the manner in which such claim is to be dealt with or regarding the conduct of any legal proceedings relating to such claim;
(e) tender to the Indemnifying Party’s sole and exclusive control over the conduct of any negotiations for settlement and any legal proceedings that may arise; and
(f) provide such information and assistance as the Indemnifying Party may reasonably require.
8.1 Each party shall not (except in the proper course of its duties), either before, 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 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. 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). The parties submit to the exclusive jurisdiction of the courts in Amsterdam, The Netherlands.
13.2 Informal Resolution. Before initiating any legal action, the parties shall attempt to resolve any dispute in good faith through a meeting between senior executives. If the dispute remains unresolved after thirty (30) days from the meeting, the parties may pursue any available remedies. For claims related to Service availability or performance, Customer must first exhaust all applicable remedies provided in the SLA before escalating under this clause.
