These Subscription Terms (capitalized terms have the meaning ascribed to them in article 1 below) form an integral part of the agreement for the provision of the Platform and the Services.
1.1 For purposes of these Subscription Terms and all related Documentation, the terms below shall have the meaning as set out below.
Basic Support the support made available to you by us by providing access to specific online user guides, and self-help/onboarding tools regarding the use of the Platform.
Confidential Information the Subscription, its terms and execution, as well as information, Data and all Documentation.
Customer or you or your the customer named as such in the final offer. Data all data, documents and information processed or generated by or on behalf of you through the Platform.
Documentation all documentation relating to the Platform and the Services, including, but not limited to, online files, other media, user manuals and/or other similar materials and graphics made available to you by us from time to time.
Effective Date the effective date of the Subscription as included in the final offer.
Fee the fees to be paid by you to us for the use of the Platform and the supply of the Services. The Fees that are applicable on the Effective Date can be downloaded from the Platform via this link.
Force Majeure any event or circumstance beyond the reasonable control of a Party that prevents in whole or in part the performance by a Party of its obligations under the Subscription or makes the performance of such obligations so difficult or costly that such performance would be commercially unreasonable. Without limiting the foregoing, the following situations shall constitute Force Majeure: governmental action, governmental lockdown, riots, disruptions, acts of war (declared or undeclared), terrorism, strikes, lockouts, delays, prolonged shortages of energy or other supplies, epidemics, pandemics, epidemics, fire, flood, hurricane, typhoon, earthquake, lightning and explosion, internet failures, failures in telecommunication infrastructures, (distributed) denial of service attacks and power outages.
Group Company means, with respect to the Party to which it refers, a (legal) entity that is affiliated with, or that directly or indirectly controls, is controlled by or is under common control with, such Party.
Integration Services the services to be provided by us to integrate the Platform with your existing (CRM)systems, including but not limited to, designing and implementing interfaces and testing the integration to ensure compatibility and functionality. The specifications and scope of the Integration Services will be agreed upon between the Parties in writing.
Party or Parties each of Qualified and Customer separately or Qualified and Customer together.
Platform the white label platform for innovation ecosystems of Qualified, in which the underlying application is displayed in the Customer’s house style. The Platform is accessible through an adequate internet connection.
Services the ecosystem support services to be provided by us to you under the Subscription which may encompass Integration Services, Basic Support and any other services agreed by the Parties assistance with onboarding companies, ensuring profile completeness, facilitating matchmaking, executing marketing campaigns, business development activities, providing enhanced analytics, and deriving insights from these analytics.
Subscription the agreement concerning the provision and use of the Platform and the Services, including of all attachments, subsequent amendments and/or supplements thereto. The final offer to enter the Subscription and these Subscription Terms together constitute the Subscription. A ‘final offer’ means the offer to enter into the Subscription signed by you and confirmed by us in writing.
Subscription Terms these subscription terms and conditions of Qualified for the provision of the Platform and the Services.
User one of your employees or any other person authorized by your ecosystem manager to access and use the Platform and the Services on behalf of you. This includes both standard users and community admins who manage a group on the Platform.
Qualified or we or our or us a company organized and existing under the laws of the Netherlands, with its office address at (5651 GW) Eindhoven at the Achtseweg Zuid 221, the Netherlands, lodged at the trade register of the Chamber of Commerce under number 76881873, and any of our Group Companies.
1.2 The headings of these Subscription Terms are for ease of reference only and are not intended to qualify the meaning of any article or section
1.3 References to the Parties include their respective successors in title and permitted assigns.
1.4 In these Subscription Terms, the term “in writing” means by post, e- mail, clicking an “I confirm” or similar button, or any other means of electronic communication device customary in the market.
1.5 The terms and expressions of law and legal concepts used in these Subscription Terms have the meanings ascribed to them in Dutch law.
ARTICLE 2. APPLICABILITY OF THESE SUBSCRIPTION TERMS
2.1 These Subscription Terms apply to the provision and use of the Platform and the Services by you and your Users.
2.2 General (purchase) terms and conditions of you are hereby expressly rejected.
2.3 The Subscription is the complete and only agreement between you and us and supersedes any proposal or previous agreement, oral or written and all other communications between you and us relating to the Subscription.
2.4 Any amendments of and/or addenda to these Subscription Terms must be agreed upon in writing by the Parties.
2.5 A failure or delay by us to exercise a right or remedy provided by these Subscription Terms or by law does not constitute a waiver of that right or remedy or a waiver of other rights or remedies. No single or partial exercise of a right or remedy provided by these Subscription Terms or by law by Qualified prevents further exercise of that right or remedy or the exercise of another right or remedy.
2.6 If one or more provisions of these Subscription Terms shall be found, by a court with jurisdiction, to be illegal, invalid or unenforceable, it shall not affect the legality, validity or enforceability of any of the remaining provisions of these Subscription Terms. The Parties agree to attempt to substitute for any illegal, invalid or unenforceable provision a legal, valid or enforceable provision that achieves to the greatest extent possible the objectives of the illegal, invalid or unenforceable provision.
2.7 These Subscription Terms do not derogate from our statutory rights, but are in addition thereto.
2.8 In the event of any contradictions between these Subscription Terms and the provisions of the final offer, the terms of the final offer shall prevail.
ARTICLE 3. DELIVERY OF THE PLATFORM
3.1 If the Parties have not agreed on an acceptance procedure, Customer accepts the Platform in its condition at the time of delivery (‘as is, where is’), with all visible and invisible faults and defects. The Platform shall be deemed accepted by Customer upon delivery.
6.2 The Platform is made available through various browser providers,
including but not limited to Chrome, Edge, and Safari. You acknowledge
and agree that the operation and functionality of the Platform may depend on the compatibility with the browser used to access it. And you are responsible for ensuring that you are using the most recent version of the chosen browser. We make no representation or warranty that the Platform will operate as intended if you do not have the most recent version of the browser installed, or if the respective browser provider decides not to support certain technical aspects.
ARTICLE 4. TRIAL PERIOD
We may offer you a free trial subscription to allow you to try out Platform. A trial lasts for a maximum of 1 (one) month. The trial subscription is subject to these Subscription Terms. Upon expiration of the trial, the trial subscription will automatically convert to a regular Subscription for the duration specified in the final offer, unless you cancel the trial subscription in writing before the end of the month.
ARTICLE 5. SCOPE AND PERFORMANCE OF SERVICES
5.1 We shall perform the Services with care to the best of our ability in accordance with the standards of skill and care reasonably expected from a service provider in the industry and, if applicable, in accordance with the procedures as agreed between you and us in writing. All Services shall be performed on the basis of an obligation to use best endeavors, unless and insofar as we have expressly promised a result.
5.2 We shall not be bound by a delivery date or term or delivery period with regard to the Services, whether or not final, if (i) on the instructions of, or in agreement with you any change is made, any additional Services are delivered that are not included in the Subscription; or (ii) if you fail to fulfil your obligations arising from the Subscription or fail to do so on time or in full.
5.3 We are not obliged to follow your instructions in the performance of the Services, particularly not if these instructions change or add to the scope of the agreed Services.
5.4 If we provide Integration Services, we shall use reasonable efforts to perform the Integration Services in a professional and competent manner. You shall provide us with all necessary access to systems, applications and platforms, as well as all necessary information and cooperation, to enable us to perform the Integration Services. We shall keep you informed of the progress of the Integration Services and shall promptly notify you of any problems or delays. We do not warrant that the Integration Services will be uninterrupted or error-free, or that they will meet your specific requirements, unless expressly agreed in writing. We shall not be liable for any damage or loss incurred by you as a result of the Integration Services, unless such damage or loss results from the negligence or willful misconduct of us.
5.5 You can request Basic Support via support@qualified.technology. Basic Support is provided during office hours (9:00 AM – 5:00 PM). If you need Basic Support outside office hours or support that goes beyond Basic Support, additional fees will be applied. These fees will be paid by you in line with the provisions of article 10. Basic Support will be in accordance with the standards of competence and diligence that can reasonably be expected from a service provider in the industry. We do not guarantee that the Basic Support will be uninterrupted or error-free, nor do we provide any warranty regarding the results of Basic Support.
ARTICLE 6. RIGHT OF USE OF THE PLATFORM AND RESTRICTIONS
6.1 Subject to your compliance with your obligations under the Subscription, we grant you, during the term of the Subscription, a limited, personal, revocable, non-exclusive and non-transferable right to permit Users to access and use the Platform (and any Documentation provided).
6.2 Unless otherwise agreed in writing between you and us, the right of use set forth in article 6.1 is granted to you provided that (i) your use of the Platform does not include use by third parties other than Users; and (ii) you may not license, sell or otherwise commercially exploit or make the Platform available to any third party.
6.3 Users are not permitted to share the login details of the Platform with third parties without our prior written permission.
6.4 You and your Users may not reverse engineer, decompile, modify, disassemble or otherwise attempt to discover or make derivative works of the source code, underlying ideas, underlying user interface techniques or algorithms of the Platform by any means whatsoever, directly or indirectly, or disclose any of the foregoing. Any information supplied by or obtained by you or your Users may not be disclosed to third parties or used to create any software which is substantially similar to the Platform.
6.5 It is prohibited to use the Platform for actions that violate Dutch or other applicable laws and regulations, including local laws where the Platform is put into use.
6.6 If, our opinion, a hindrance, damage or other danger arises to the functioning of the Platform or our network or third parties and/or of the service via the internet, in particular due to excessive sending of e-mails or other data, leaks of personal data or activities of viruses, trojans and similar software, we are entitled to take all measures we reasonably consider necessary to avert or prevent this danger.
ARTICLE 7. COOPERATION OBLIGATIONS AND MANAGEMENT OF SETTINGS AND USE OF THE PLATFORM
7.1 You acknowledge that the functioning of the Platform and the provision of the Services depends on proper and timely cooperation between you and us. Therefore, you shall at all times provide all cooperation reasonably required by us in a timely manner.
7.2 You shall be responsible for obtaining all necessary licenses and/or approvals for your own software or other resources you provide to us for use in conjunction with the Platform and the Services.
7.3 You are responsible for the management, including control of the settings and the use of the Platform by your Users. In case of any questions, you are entitled to Basic Support.
ARTICLE 8. WARRANTY DISCLAIMER
The Platform is provided to you ‘as is’. To the maximum extent permitted by law, we disclaim all warranties express or implied, including the implied warranties of non-infringement, merchantability, and fitness for a particular purpose. We make no commitments about the content within the Platform. We further disclaim any warranty that (a) the Platform will meet your requirements or will be constantly available, uninterrupted, timely, secure, or error-free; (b) the results that may be obtained from the use of the Platform will be effective, accurate, or reliable (e.g. the information viewed through the Platform may contain errors or inaccuracies and may not be complete or current. Products may be mispriced, described inaccurately, or unavailable on the Platform); (c) the quality of the Platform will meet your expectations; or that (d) any errors or defects in the Platform will be corrected.
ARTICLE 9. FEES
9.1 For the use of the Platform and the provision of the Services, you shall pay to us the applicable Fees.
9.2 Fees are to be paid in advance, irrevocable and non-refundable.
9.3 All Fees are, unless otherwise indicated, exclusive of VAT and any other governmental levies to be borne by you.
9.4 The Fees will be indexed annually as of January 1st on the basis of the CBS Consumer Price Index (CBS Consumentenprijsindex) as published Centraal Bureau voor de Statistiek (CBS Statline).
9.5 We reserve the right to change the Fees or applicable charges and to institute new Fees at the end of the then current term upon 1 (one) month prior written notice. If you do not agree with the amended Fees, you may terminate the Subscription for this reason upon written notice within 14 (fourteen) days after receipt of the notification.
ARTICLE 10. PAYMENT TERMS
10.1 Payment will be made by you in accordance with our payment terms and, if applicable, those of any third party payment processor.
10.2 You agree to provide us with complete and accurate billing and contact information. Where payment is made by credit card, you authorize us to bill such credit card (a) at the Effective Date; and (b) for any billing frequency, as set forth in the final offer. If we, in our discretion, permit you to make payment using a method other than a credit card, we will invoice you on the Effective Date and thereafter, on a yearly basis in advance of the relevant billing period.
10.3 You shall pay our invoices in Euro and in full without discount, withholding, set-off and (if applicable) within 30 (thirty) days of the date of invoice.
10.4 Contestation of an invoice shall not suspend the fulfilment of your payment obligations.
10.5 You are only entitled to offset if your counterclaims are legally established, uncontested or recognized by us.
10.6 In the event that you fail to timely fulfil your payment obligations, you shall be in default by operation of law and owe an interest charge equal to the statutory interest rate. However, the interest rate owed shall in no event be lower than an interest of 1% (one percent) per month on the amount due and payable. The interest on the amount due and payable shall be calculated as from the date you are in default. The foregoing shall be in addition to and not in lieu of any other rights and remedies we may have at law or in equity for such default.
10.7 All judicial and extrajudicial costs related to the enforcement and collection of payments due by you and not received in time, shall be borne by you.
10.8 In the event that: a) your company is wound up; b) your company is attached; c) your company is declared bankrupt; and/or d) a suspension of payment is granted to your company; our payment claims against you shall forthwith become due on our demand.
ARTICLE 11. CHANGES AND ADDITIONAL SERVICES
If on the instructions of, or in agreement with, you any change is made, any additional Services are provided or work is performed that is not included in the Subscription, the extra costs thereby incurred shall be charged to you as additional work at the then applicable charging rates. We are not obligated to honor a change request and we may require that a separate agreement will be concluded for the purpose.
ARTICLE 12. TERM, SUSPENSION AND TERMINATION
12.1 The Subscription shall enter into force on the Effective Date for the term as stated in the final offer. Upon expiration of this term, the Subscription will automatically renew for successive renewal terms of 1 (one) year.
12.2 The Parties have the right to terminate the Subscription at the end of a contract term, in writing, but no later than 1 (one) month before the end of the contract term. The termination will be effective at the end of the then current contract term.
12.3 Either Party may immediately (partially) terminate the Subscription if:
(a) the other Party commits a breach of the provisions of the Subscription and fails to remedy such breach within 15 (fifteen) days after written notice of the existence of such breach, or
(b) the other Party should go into liquidation or should do or suffer any similar act or thing under any applicable law.
12.4 Furthermore, we shall at all times be entitled to suspend the fulfilment of our obligations under the Subscription or to (partially) terminate or dissolve the Subscription, in the event that we learn of circumstances giving good ground to fear that you will not timely and/or fully fulfil your obligations under the Subscription. This is only allowed in so far the shortcoming justifies such action.
12.5 In case of (partial) termination of the Subscription, all provisions that, according to their nature, are intended to continue after termination will remain in force.
12.6 If the Subscription is (partially) terminated pursuant to this article 12, our claims against you shall be forthwith due and payable. If we suspend fulfilment of our obligations, we shall retain our rights under the applicable law and the Subscription.
12.7 Notwithstanding the foregoing sub clauses of this article 12, we shall always retain the right to claim damages in case of suspension, termination or dissolution.
12.8 Any termination of the Subscription shall be without liability for the act of termination but shall be without prejudice to any right of action or claim arising from the period prior to the date of termination.
12.9 In the event of termination of the Subscription for any reason, access to the Platform for you and your Users shall be terminated immediately. Subject to payment of all Fees due and/or any additional charges, the Parties will make further arrangements for retrieval/transfer/downloading of Data.
12.10 All aspects of the Subscription which by their nature should survive termination of the Subscription, including, but not limited to, accrued rights to payment, confidentiality obligations, warranty disclaimers and limitations of liability shall remain in full force and effect after termination of the Subscription.
ARTICLE 13. INTELLECTUAL PROPERTY RIGHTS AND USE OF TRADE NAME AND LOGO
13.1 We and our licensors reserve all intellectual property rights vested in us by law. This expressly includes the information presented to or obtained by you in the course of the provision of the Services or when using the Platform (including texts, graphic material and logos) and other copyrights, trademark rights, patent rights, design rights, trade name rights, database rights and related rights, domain names, trade secrets and know-how and related rights.
13.2 The Documentation provided is intended exclusively for use by you and your Users under the Subscription and may not be reproduced, disclosed, or brought to the notice of third parties by them without the prior consent of us, unless the nature of the documents provided indicates otherwise.
13.3 If you or your Users provide information or feedback to Qualified about the Platform or the Services, Qualified obtains an exclusive, unrestricted and perpetual right to use this information.
13.4 Qualified is permitted to use your company’s name and logo in presentations, financial reports, marketing materials, contractor statements, contractor website statements.
ARTICLE 14. DATA AND LICENSE FOR QUALIFIED
14.1 You remain the rightful owner of the Data stored, edited, processed, generated or otherwise entered into the Platform and used with regard with the provision of the Services. You and your Users determine which Data is stored, edited, processed, generated or otherwise entered into the Platform or used with regard to the provision of the Services. We can make recommendations on what Data is required, but we bear no responsibility or liability for this.
14.2 To enable us to provide you and your Users the use of the Platform and the Services, you, subject to the terms of the Subscription, hereby grant to us a non-exclusive right to use, copy, distribute and display the Data solely in connection with the provision of the Platform and the Services. You are solely responsible for the accuracy, integrity and reliability of the Data, and Qualified shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store Data. We will protect all Data provided to us as confidential in accordance with article 18.
14.3 You grant us a limited, personal, non-exclusive right to use your Data in an anonymized form for internal product analysis and product development.
ARTICLE 15. THIRD-PARTY SOFTWARE
The Platform may contain third-party software that may be governed by separate intellectual property rights and license terms designated or identified in the Platform or the Documentation. These separate provisions are incorporated by reference into the Platform and you agree to the terms of any such license. Maintenance and support of third party software is provided by the licensor of such products and not by us.
ARTICLE 16. PERSONAL DATA
The Parties shall at all times comply with any obligations under Dutch laws regarding data protection and any other relevant (national, European and international) data protection regulations (the Privacy Laws) that are applicable to the execution of the Subscription. Both Parties shall (i) take appropriate security measures to protect the confidentiality of the (personal) data provided by the other Party, (ii) inform the other Party, on such Party’s request, about the security measures taken in respect to the foregoing, and (iii) notify the other Party of any breach of personal data in accordance with and within the timeframe stipulated in the Privacy Laws. If applicable, the Parties shall enter into a data processing agreement.
ARTICLE 17. INFORMATION SECURITY
17.1 We shall ensure the security of the Platform in accordance with applicable legal rules and industry standards and we shall take appropriate technical and organizational measures accordingly.
17.2 We will require our employees and other persons performing services on our behalf to maintain confidentiality with respect to the information and Data of which they may become aware.
17.3 You shall adequately secure your systems and infrastructure in accordance with applicable legal rules and industry standards.
ARTICLE 18. CONFIDENTIALITY
18.1 The Parties are bound to maintain total confidentiality of each other’s Confidential Information and shall use it solely for the purpose of performing their obligations under the Subscription. Notwithstanding the foregoing, we reserve the right to share the information provided by you with third parties engaged by us to perform our obligations under the Subscription.
18.2 Parties shall require their Users, officers, directors, employees, agents, other engaged third parties and Group Companies to comply with the terms of this article 18. Each Party shall be responsible for violation of this article 18 by their Users, officers, directors, employees, agents, other engaged third parties and Group Companies.
18.3 Information will not be considered confidential if it: (i) is already in the possession of the public or becomes available to the public, other than through violation of this article 18 by the receiving Party; (ii) is required to be disclosed by any applicable law, court order, or regulation, or requirement of government or regulatory authority; (iii) was lawfully obtained from a third party not subject to any duty of confidentiality to the disclosing Party; (iv) was independently developed by the receiving Party without use of or reference to the Confidential Information of the disclosing Party. The burden of proof with respect to the foregoing exceptions shall at all times be on the receiving Party.
18.4 If the receiving Party becomes aware that article 18.3 (ii) is or may be applicable, it shall promptly notify the disclosing Party and keep the disclosing Party informed at all times – to the extent lawful – so that the disclosing Party may seek an appropriate remedy to prevent such disclosure.
18.5 Upon termination or dissolution of the Subscription, you shall return to us all Confidential Information of Qualified upon our first request and as soon as reasonably practicable.
ARTICLE 19. LIMITATION OF LIABILITY QUALIFIED
19.1 Our liability for an attributable failure to perform our obligations under the Subscription, as well as any indemnification obligation, shall at all times be limited to compensation for direct damages. Thus, we shall not be liable for indirect damages, by which is meant consequential damages arising out of or in connection with the Subscription, including, but not limited to, loss of Data, loss of profits, loss of sales, loss of anticipated savings and other similar financial losses such as loss of goodwill or good name or other incidental, indirect damages, or punitive or exemplary damages of any kind.
19.2 Per calendar year our total, cumulative liability for direct damages is limited to an amount of the total of fees due and actually paid by Customer for the use of the Platform in the year prior to the event causing damage or EUR 100.000,- (in words: one hundred thousand euro’s), whichever is lower.
19.3 The limitations of liability set forth in this article 20 shall not apply if and to the extent that the law mandatorily provides that liability cannot be excluded or limited, or if the damage is the result of willfulness or gross negligence by us.
ARTICLE 20. LIABILITY AND INDEMNITY CUSTOMER
20.1 You shall be liable to us for, and fully indemnify us, against all damages, costs and claims of third parties in that regard, resulting from and/or related to:
20.1.1 improper use of the Platform and/or Services;
20.1.2 an attributable failure by you and/or your Users to comply with the terms of the Subscription;
20.1.3 any act of you and/or your Users when using the Platform or Services, including, but not limited to: an unlawful storage or exchange of Data or of an unlawful act.
ARTICLE 21. FORCE MAJEURE
21.1 Neither Party shall be liable for any failure to fulfil any terms of the Subscription to the extent that such fulfilment has been delayed, hindered, interfered with or prevented by any circumstance which amounts to an act of Force Majeure.
21.2 The Party affected by the Force Majeure event shall inform the other Party of all the circumstances and particulars which prevent it from performing its obligations under the Subscription.
21.3 If a Force Majeure situation lasts for more than 60 (sixty) days, either Party has the right to terminate the Subscription, in writing, for breach. In such event, all that has already been performed under the Subscription must be paid for on a proportional basis, without anything else being due by a Party to the other Party.
ARTICLE 22. TRANSFER AND INVOLVEMENT OF THIRD PARTIES
22.1 We are entitled at any time to transfer all or part of our rights and/or obligations under the Subscription to a Group Company.
22.2 We shall always be entitled, at our own expense and risk, to engage third parties to perform our obligations under the Subscription.
ARTICLE 23. APPLICABLE LAW AND DISPUTES
23.1 These Subscription Terms are construed in accordance with and governed exclusively by the laws of the Netherlands. The applicability of the 1980 Vienna Sales Convention is hereby excluded, as well as any other present or future terms of any international convention governing the purchase of moveable property, insofar as such terms can be excluded.
23.2 In case of any disputes arising out of or relating to these Subscription Terms, the Parties shall endeavor to settle such disputes amicably. If the Parties are unable to, the dispute shall be exclusively submitted to the jurisdiction of the competent courts of Rechtbank Oost- Brabant, location ‘s-Hertogenbosch, the Netherlands.
