General terms and conditions
Article 1 General
- These GT&C are applicable to all Offers, to all agreements between Triggre and Client and to the use of the Designer, Applications and Services delivered by Triggre.
- An agreement is concluded when Client accepts an Offer. Client guarantees that it is authorized to conclude an agreement with Triggre.
- If any provision in these GT&C is null or nullified the other provisions in these GT&C remain in full effect. Parties will agree on an alternative provision which replaces the null or nullified provision. Client cannot reject a reasonable proposal for an alternative provision by Triggre.
- These GT&C may be amended by Triggre in order to comply with applicable law and/or to adjust them to technical developments. New versions of the GT&C are accepted by the Client through the continued use of the Designer and Application(s). New versions of these GT&C will be published on Triggre’s website: http://www.triggre.com.
Article 2 Definitions
- The terms below used in these GT&C are defined as follows:
- Application(s): an application created using the Designer by or on behalf of Client.
- Client: the organization which is willing to use the Designer, Applications or Services of Triggre.
- Data: all data processed by Client and Users using the Application.
- Designer: the web-based, internet accessible Designer, developed by Triggre for designing and testing Applications and the processing of Data.
- GT&C: the present terms and conditions, also referred to as “Triggre General Terms and Conditions”.
- Guide: an expert employed and/or trained by Triggre who is qualified to support Client in using the Designer.
- Offer: the offer of Triggre to the Client for the use of the Designer, Application(s) and/or the purchase of Services.
- Party/Parties: Triggre and Client, either jointly or each of them separately.
- Service: Triggre’s support in the use of the Designer and creating Applications.
- Triggre: Triggre Netherlands B.V., having it’s registered office in the Netherlands.
- Usage Fee: the fee to be paid by Client for the use of the Designer and Applications.
- User: End user, affiliated to Client, using the Application with or without by Client provided login credentials.
Article 3 Access to the Designer
- The use of the Designer is reserved to employees of Client.
- Client will refrain from giving third parties the log-in details for the Designer.
- Client is fully responsible for all activities of its Users. If Client discovers or suspects unauthorized access to the Designer, Client will immediately report this to Triggre.
Article 4 Intellectual Property
- Client gets the non-exclusive and non-transferable right to use the Designer for the duration of the agreement with Triggre.
- The intellectual property rights of the Designer remain the sole property of Triggre at all times.
- Client’s ideas and concepts remain the sole property of Client at all times.
Article 5 Use of the Designer and Applications
- For the duration Client has an agreement to use the Designer, Client is granted the exclusive and non-transferable right to use and adjust the Application(s). Client may give third parties and their Users the right to use the Applications. Client ensures that the Designer and Applications are used in accordance with the GT&C.
- The use of the Designer generates data about how the Designer is used. Client permits Triggre to use this data to improve the Designer.
- A “Fair Use Policy” (FUP) applies to the use of the Designer and the Applications. The FUP entails that Triggre may limit the data traffic and calculation capacity assigned to Client if Users of Client, as evidenced by Triggre’s records, generate 100 percent more data traffic and/or use 100 percent more calculation capacity than average for more than 1 consecutive month. Triggre reserves the right to raise the Usage Fee appropriately or to suspend the right to use the Designer and/or its Applications.
Article 6 Data
- The Data remain the sole property of Client. Client permits Triggre to store and process the Data insofar as required for the performance of the Agreement.
- With due regard for the state of the technology and costs Triggre will take suitable measures to protect the Data. Triggre makes a daily back-up of the Data.
- Triggre cannot be held liable for loss of Data or Application functionality caused by Client’s use of the Designer or Applications. Client is responsible for testing its Applications.
- Client is responsible for the Data. Client indemnifies Triggre against all third party and direct claims to or in respect of the Data, including claims based on privacy legislation.
- Client is obligated to assess whether the Data, in view of their ((privacy) sensitive) nature, is suitable for processing with the Application. In doing so Client takes (privacy) legislation into account.
Article 7 Notice and takedown procedure
- Client guarantees that the use of the Designer and the Application(s) and the processing of the Data by Client and/or its Users is lawful.
- Triggre may deny Client and its Users access to the Designer or remove or hand over Client’s Data if:
- Triggre is required to do so by virtue of a court decision, legislation or an order.
- Triggre is requested to do so by third parties due to Client´s (alleged) unlawful act when using the Designer or Application(s).
Article 8 Service levels
- Triggre will ensure that the Designer is available to Client for 99.8% of the time, during which period the Client must be able to use the Designer without loss of standard Designer functionality. For the calculation of this availability percentage the time devoted by Triggre and/or its suppliers to the maintenance of the Designer or the underlying hardware, software and infrastructure is disregarded.
- Client may report malfunctions or unavailability of the Designer by e-mail to Triggre at firstname.lastname@example.org. Triggre will confirm receipt of the report within 2 hours between 9 am – 5 pm GMT+1 by e-mail to Client.
- Triggre will start to solve the malfunctions or unavailability on workdays between 9 am – 5 pm GMT+1) within 4 hours after receiving Clients report. Triggre will report every 2 hours to Client until the malfunctions are solved. The time required for repair of a malfunction as mentioned by Triggre to Client is always indicative.
- Malfunctions of the Designer or unavailability will be assessed and remedied as soon as possible by Triggre. Triggre is not obliged to repair malfunctions or unavailability of the Designer or Applications caused by incorrect use of the Designer, the omission of Application testing and/or Client’s design of an Application. Work needed for solving these types of malfunctions can be charged to the Client.
- Triggre will report Client about the details of the malfunctions within three working days after solving the malfunctions.
- Client may not claim the agreed service levels in the following situations:
- Diminished availability or malfunctions caused by acts or omissions of Client, Users or third parties attributable to Client. This includes the breakdown of hardware, software, infrastructure or diminished connectivity of Client.
- Diminished availability or malfunctions caused by hackers, sabotage, viruses or any other harmful third-party act.
- Diminished availability or malfunctions caused by DNS issues, problems with VPN connections or SSL certificates beyond the control of Triggre.
- Diminished availability or malfunctions caused by internet or other telecommunication issues.
- Diminished availability or malfunctions because of force majeure.
- When determining the service level, Triggre´s records are leading.
- Client and Triggre may conclude a service level agreement in addition to the standard service levels mentioned in the GT&C.
Article 9 Maintenance
- Triggre and/or its suppliers regularly perform maintenance on the Designer, the Application(s) and the underlying hardware, software and/or infrastructure. Regular maintenance may be performed on all days between 00.00 and 07.00 am GMT+1 (hereinafter: the Maintenance Window).
- Triggre and/or its suppliers have the right to perform critical maintenance outside the Maintenance Window if they believe it is necessary. If possible Triggre will notify Client in advance.
- During maintenance Client cannot claim access to the Designer or the Application(s).
Article 10 Services
- Services are provided by Guides. The Services that Guides provide to Client may consist of:
- Support in designing and testing Applications using the Designer.
- Creating business concepts and producing business cases.
- Training courses.
- Services are taken by the hour. If a fixed number of Services is recorded in the Offer, these hours are invoiced in advance.
- The number of used Service hours is determined on the basis of Triggre’s records, barring evidence to the contrary.
- Client will provide the Guide with the work environment, means and information required to properly provide the Services.
Article 11 Invoicing and payment
- The Usage Fee is determined every month, based on the number of Applications and Users of Client and the agreed rates.
- The Usage Fee is invoiced every month and collected by direct debit, unless Client has accepted an Offer for a pre-paid agreement. A pre-paid Usage Fee is invoiced and collected upfront annually.
- All prices and rates quoted and agreed upon are excluding VAT.
- All pre-calculations issued by Triggre are indicative unless stated otherwise in writing. No rights can be derived from pre-calculations.
- All invoices addressed to Client must be paid within 14 days. Client is not entitled to suspend payment obligations or to set off any amounts owed.
- Triggre may (partly) suspend Client’s access to the Designer and/or one or more Applications when Client fails to pay the fees it owes to Triggre in good time.
- If additional Services are required by Client which are not part of the Offer, Triggre may charge Client a fee based on the applicable hourly rates as pointed out in the Offer most recently accepted by Client.
- If Triggre performs work regarding Data or the infrastructure of the Client or its Users by virtue of a request or an authorized order from a government body or a legal obligation, the costs thereof will be charged to Client.
- Triggre has the right to annually adjust all agreed prices by applying an index of no more than 2,5%.
- If Client exceeds the payment term and ignores 2 warnings it will owe to Triggre 5% interest per annum over the invoice amount without a notice of default being required. In that case, Triggre also has the right to limit Client’s access to the Designer and Applications.
- Triggre may charge Client for all debt collection costs caused by Client’s non-payment.
Article 12 Liability
- The Designer and Services are provided “as is”. Triggre expressly disclaims all warranties. Warranty of suitability for any particular purpose is hereby excluded. Triggre is not responsible and/or liable for loss of Data or functionality.
- Before agreeing on this agreement, Client has reviewed the Designer and its performance and accepts the current status and functionality of the Designer and the Applications that can be made with it. The Client is responsible for testing of the Applications.
- Triggre’s liability is limited to compensation for direct damages (i.e. for not having the appropriate agreements, necessary for the functionality of the Designer). Such compensation is limited to a maximum, being the Usage Fee paid for the 12 months prior to the event that caused the damage.
- Triggre’s liability for all consequential losses that may result for Client from the use of the Designer or the Services is excluded. Consequential losses include but are not limited to consequential damages, loss of profit, lost savings, diminished goodwill, damages resulting from claims from Client´s clients and/or damages in connection with the deployment of means or software prescribed by Client.
Article 13 Force majeure
- Triggre will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including but not limited to acts of God, labor disputes or other industrial disturbances, systemic electrical telecommunications or other utility failures, earthquakes, storms or other elements of nature, blockages, embargos, riots, acts or orders of government, acts of terrorism, or war.
- If a Party fails to perform due to force majeure and it is evident that performance will remain impossible or a reasonable term for performance has expired, the other Party may terminate the Agreement with immediate effect without being obligated to pay compensation for damages.
Article 14 Termination
- Client may terminate the use of the Designer at any time with a notice period of one month.
- Purchased Services hours and pre-paid Usage Fees will not be refunded upon termination of the agreement by Client.
- After termination or dissolution of the agreement Client no longer has the right to access the Designer or the Applications.
- Triggre has the right to terminate any agreement with Client with immediate effect without notice of default being required, without court intervention and without being required to pay compensation for damages if:
- Client fails to comply with the provisions of these GT&C or the Offer.
- Client has been granted a temporary or permanent suspension of payments.
- Client has been declared bankrupt or a petition for its bankruptcy is filed.
- Client is being wound up or terminated other than for the purpose of reconstruction or merger.
- Execution is levied on a considerable part of the assets of Client.
- At the request of Client and at a reasonable fee, Triggre will send Client a copy of the Data up to one month after termination.
Article 15 Miscellaneous provisions
- All work of Triggre shall be carried out based on an obligation to use best endeavors unless Triggre has promised a result in the Offer accepted by Client.
- Triggre may use the Client’s trade name and/or brand as a reference for marketing purposes.
- Parties ensure that confidential information received from the other Party remains confidential. The Party that receives confidential data will use them exclusively for the purpose for which they were provided. Client’s Data is considered confidential information.
- Triggre may hire third parties in its performance of the agreement with Client.
- A right not exercised by a Party does not constitute a waiver of that right.
- Triggre may transfer its rights and obligations under the agreement concluded with Client to third parties without the prior consent of Client.
- Client is not allowed to transfer to third parties the rights and authorities awarded to it by Triggre, without written permission of Triggre.
- The end of the Agreement does not affect the rights and obligations existing between Parties that, due to their nature, cover a longer term, such as provisions regarding limitation of liability, confidentiality, and intellectual property rights.
- The applicability of the UN Convention on Contracts for the International Sale of Goods (Vienna Sales Convention 1980) is expressly ruled out.
- The Agreements concluded between Parties and the entire legal relationship of Parties, is governed by Dutch law. Disputes will be brought before the court of Utrecht (the Netherlands).