BY USING/GAINING ACCESS TO THE OFFERED SERVICES, USER DECLARES TO BE FAMILIAR WITH AND AGREES TO THESE GENERAL TERMS AND CONDITONS. USAGE OF THE OFFERED SERVICES IS NOT ALLOWED WITHOUT AGREEING TO THESE GENERAL TERMS AND CONDITIONS.
Article 1 Definitions
- Alphest: the legal person who provides its Services via the Website.
- Account Owner: the natural person representing Customer towards Alphest, with the authorization to create projects within the Service and to grant access and rights to Project Members.
- Third Parties: other parties than Alphest, Customer and its designated Account Owners and/or Project Members.
- Service: providing access to and use of software and related Services through the internet or other means that Alphest offers to Customer, whether or not against a periodic fee.
- User: the natural person who uses the Service.
- Terms and Conditions: these general Terms and Conditions.
- Customer: the natural person or the legal person entering into an Agreement with Alphest.
- Agreement: the agreement between Alphest and Customer, to make use of the Services of Alphest.
- Parties: Alphest and customer.
- Pre-release: version of the Service of which the functionality and technical specifications may be incomplete or not definitive, marked with: 'Release candidate', 'Beta', 'Alpha', 'Technical Preview', 'Development Build' or other designations which make clear that it is not an official software release.
- Project Member: the natural person who uses the Service and is invited by an Account Owner or other Project Member to participate in projects within the Service.
- Public Visitor: the natural person who uses Service with or without a user account, that is not participating in any projects.
- Website: the website that provides access to Alphests Service.
- Private Information: Information with a privacy setting set to Private, and/or without a privacy setting, but directly bound to the information with a privacy setting set to Private.
- Public Information: All information that doesn’t meet the definition of Private Information.
Article 2 Applicability, formation and execution
- These Terms and Conditions apply to all Agreements with Alphest.
- The Customer enters into an Agreement with Alphest by applying for access to the Service via the registration form on the Website or by creating a user account. The agreement shall commence on the day that User accepts the Terms and Conditions.
- Customer, after entering into the Agreement, must designate the Account Owner.
- After Customer has entered into an Agreement, the Account Owner must file the corresponding account registration form.
- Alphest reserves the right to refuse a Customer, without giving any reasons.
- Alphest is entitled to engage Third Parties in performance of the Agreement.
- The Agreement is concluded for an indefinite period, unless the Parties agree otherwise in writing.
- If any provision in these Terms and Conditions may be or may become void or ineffective, the other provisions shall remain in full force and effect. In that case, the Parties shall consult with each other to agree upon new provisions to replace the null and void or non-binding provisions, that, having regard to the purpose and scope thereof differ as little as possible from the void or non-binding provisions.
- If uncertainty exists regarding the interpretation of one or more provisions of these Terms and Conditions, the explanation of the terms has to be in accordance with the applicable legislation and jurisprudence.
- In case of any dispute regarding the text of one or more provisions of these Terms and Conditions, its Dutch text is always decisive.
- If Alphest does not always require strict adherence to these Terms and Conditions, it does not mean that its provisions do not apply, or that Alphest in any degree would lose the right to require strict compliance with the provisions of these Terms and Conditions, in other cases.
Article 3 Offer
- The offer of Services of Alphest is available on http://www.alphest.com/ and/or other appropriate websites of Alphest.
- Alphest cannot be held to an offer if it is clear that it contains an obvious error.
- The mentioned prices include VAT and other government levies as well as costs that come up in the framework of the Agreement, including travel and subsistence, shipping and administration costs, unless otherwise indicated.
- Offers do not apply automatically for future orders.
Article 4 Price and payment
- The price of the Service to be provided by Alphest is announced during the registration procedure on the Website.
- Payment of the fee will take place monthly in advance by the agreed method, unless otherwise agreed. The advance payment will take place within fourteen (14) days after the beginning of the agreed checkout period.
- At the beginning of the agreed checkout period Alphest sends an invoice to the paying Customer, unless otherwise agreed.
- Alphest reserves the right to change its tariffs. These changes will be announced at least one month in advance in writing to Customer. If Customer does not agree with the price change he is entitled to terminate the Agreement with effect from the start of the new checkout period.
- The non-collectability of an automatic payment is regarded as non-payment of an invoice.
- If Customer exceeds the term for payment, he is deemed to be in default by operation of law, without prior notice of default by Alphest. customer is then due an interest of five (5)% per month. The interest on the amount payable will be calculated from the moment Customer is in default until the moment of payment of the invoice.
- In case of non-timely payment, Customer is, in addition to the amount due and the interest, held to a full compensation of both extrajudicial and judicial costs, including the costs of lawyers, bailiffs and debt collection agencies. The costs of other recovery measures taken by Alphest with respect to the default Customer, also are borne by Customer.
- In case of bankruptcy, debt restructuring or suspension of payment of Customer, Alphests claims on Customer are immediately due and payable.
Article 5 Use of Services
- User is not allowed to use the Service in violation of these Terms and Conditions, the relevant and applicable legal provisions and the care that befits the civil traffic.
- In addition, User is not allowed to use the Service for:
- the assumption of a false identity;
- restricting other Users in the possibility to use the Service, without legal consent to do so;
- the harm of others in any way;
- the spread of malicious software.
- If User uses the Service in violation of these Terms and Conditions, Alphest reserves the right to restrict the use of the Service.
- For use of the Service, User has to meet the required system specifications, as indicated in the registration procedure at the time of entering into the Agreement.
- Alphest offers no guarantees in respect of Services/products of Third Parties that are necessary for the use of the Service, for which User is responsible.
- Alphest is entitled to show User added information in compliance with Users privacy settings and to use this information for the collection of statistics and/or troubleshooting.
Article 6 Use pre-releases and Sandbox
- Alphest offers no guarantees and support for the use of Pre-releases of its Service. Their use is entirely at Users own risk.
Article 7 Liability
- If Alphest should be liable, then this liability is limited to the provisions of this article.
- Alphest accepts no liability for damage of any nature, caused by incorrect and/or incomplete information provided by User.
- Alphest accepts no liability for damage caused to User or to Third Parties, within the framework of the Agreement.
- Alphest shall never be liable for indirect damage, including consequential damage, loss of profit, missed savings and damage due to business stagnation.
- Alphest is not liable for damage caused by Third Parties, for example, but not exclusively, a failure in the connection to the ISP.
- The limitation or exclusion of liability referred to in this article shall not apply to the extent of direct personal of material damage which is a direct result of deliberately reckless or intentional shortcoming of Alphest.
- If Alphest would still be liable for damages, that liability is limited to a maximum of the invoice value of the order to which the liability relates, at least to the amount that is covered by insurance, if applicable.
- If Alphest should be liable in any circumstances and the damages are not covered by insurance, then the liability is limited to a maximum of two times the invoice amount of the agreed payment period.
- The aforementioned liability of Alphest arises only following an immediate written notice of default from Customer, whereby a reasonable period of time to resolve the shortcomings is determined, and after this period Alphest remains in default.
- Alphest cannot be held liable if Customer has the possibility to recover damages from a Third Party or insurance company.
- Any claims of Customer have to be filed within one (1) year after discovering the damage.
Article 8 Force Majeure
- Alphest is not held to fulfill any obligations towards Customer if hindered as a result of a circumstance that is not due to debt, and neither under the law, a legal act or generally accepted business proceedings for his account.
- Force majeure is also understood as conditions, which prevent a normal exercise of the work, such as, but not limited to, strikes, illness of the staff of Alphest, transport disruptions, as these occur with Alphest or Third Parties to which the performance of the contract is bound.
- Parties may suspend the obligations from the agreement during the period of Force Majeure. If this period lasts longer than one (1) month, both Parties are entitled to immediately terminate the Agreement in writing without the intervention of a judge if the Force Majeure persists at expiry of that term.
Article 9 Privacy
- Alphest guarantees the privacy of User and will therefore never provide its data to Third Parties, unless legally obliged to, unless the information is shared purposely, or the information is not considered confidential by Alphest. Information is to be regarded confidential if this is communicated by the other Party or as this arises from the nature of the information.
- Parties are required to maintain the confidentiality of all confidential information they have obtained from each other or from other sources in the framework of their Agreement.
- Parties shall ensure legitimate processing of (personal) data in accordance with the relevant laws and regulations relating to the protection of privacy, in particular the Dutch data protection act (Wet Bescherming Persoonsgegevens).
Article 10 User rights and Intellectual Property
- All intellectual property rights of the software made available rest exclusively with Alphest or its licensors.
- Alphest grants User a non-exclusive and non-transferable right to use the Service and the expressly conferred authorizations for the duration of the Agreement.
- Alphest reserves the rights to which he is entitled on the basis of copyright and other intellectual property laws and regulations. Alphest has the right to use the knowledge obtained by implementing the Agreement for other purposes, insofar no strictly confidential information of Customer is made available to Third Parties.
- The ownership of the Service and all rights of intellectual and industrial property at all times remain with Alphest. Customer shall respect these right of Alphest and Thrid Parties engaged in the performance of the Agreement at all times.
- Customer will neither itself nor by means of a group company to which he belongs, nor by means of an affiliated company, intermediary or other Third Party:
- delete or change any mentioned trademark or indication concerning intellectual property or other proprietary rights;
- alienate, securitize or provide any rights to the Service or its associated rights to Third Parties.
- modify, adapt, redevelop or unravel the Service, in whole or in part;
- develop or let develop derivative Services or other activities based on the Service;
- multiply Service-related documents or copies in whole or in part. This limitation does not affect the right of the Customer to make any emergency copies.
- Alphest reserves the right to take all available technical measures to protect its rights to the Service.
Article 11 Risk and Duty of Care
- Customer is responsible for the careful use and correct application of Services of Alphest. Customer must always follow Alphest reasonable instructions regarding the use of the Service and will cause no barriers or interference for the use of the Service by Third Parties.
- Customer should report any malfunction in the operation of the Service as soon as possible to Alphest. Alphest strives to resolve failures as soon as possible.
- Cost of the malfunction research and the costs of resolving failures are borne by Alphest. These costs may be charged to Customer if the malfunction is caused by an act or omission from Customer in contravention of the Terms and Conditions or by malfunctioning peripherals of User or the presence of other equipment belonging to Customer or User that affects the functioning of the Service.
- If a failure is (co-)extend to Third-party connections, Alphest is entitled to charge Customer from whose connection the failure was caused with the costs incurred thereby.
- User is responsible for the availability and functioning of the used peripherals and software, developer applications, configuration and internet connection as well as for maintaining a connection to the energy network and other connections necessary for access to and use of the Service. Alphests Services may require minimal specifications.
Article 12 Maintenance, Availability and Support
- Alphest is committed to keep its Services accessible as much as possible for the duration of the Agreement. Alphest will provide Customer with a login credentials.
- Alphest endeavors to maintain the highest possible availability, quality and security of the Service.
- Alphest is entitled to change the technical characteristics of the Service interim, to improve functionality and to recover any errors or to comply with rules laid down by or pursuant to the law. Alphest is committed to detect and (have) fix(ed) any errors in the Service.
- Alphest is entitled to temporarily suspend the Service for maintenance, adjustment or improvement of the Service. Alphest will have the suspensions of the Service take place as much as possible outside office hours and will inform Customer timely in advance of the planned suspension. Alphest is not liable for damages caused Customer by the unavailability of the Service due to maintenance, adjustments or improvements.
- Alphest is not responsible for misuse of login credentials and is entitled to assume that the person who logs in through the correct login credentials is the actual authorized User. If Customer suspects that the login credentials have been leaked to unauthorized persons, he must report this to Alphest as so as soon. In this situation Alphest reserves the right to take effective measures.
- Alphest reserves the right to discontinue maintenance and updates of certain parts of the Service.
Article 13 Protection
- Customer doesn’t hold Alphest liable for any claims of Third Parties to which damage is caused other than by Alphest, in connection with the implementation of the Agreement.
- If Alphest should be held liable accordingly by Third Parties, then Customer is obliged to assist Alphest both outside and in court and to do everything that can be expected of him in that case without delay. If Customer fails to take adequate measures, then Alphest is entitled to do so without further notice of default. All costs and damages of Alphest or Third Parties arising therefore, are borne by Customer.
Article 14 Termination
- Customer is entitled to terminate the subscription to the Service at any time via an option in the software of the Service, or via email.
- The subscription will be terminated at the end of the current calendar month, unless Customer has indicated another month for termination, in written notice.
- At termination by Alphest, a notice period of three (3) months should be taken into account.
Article 15 Applicable Law and Disputes
- Dutch law applies exclusively to the Agreement and these Terms and Conditions.
- Disputes that cannot be resolved out of court will be brought before the competent Dutch court.
- If several Dutch judges are competent, the dispute will be brought before the Dutch court by choice of Alphest.
Article 16 Review of the Terms and Conditions
- Alphest is entitled to revise these Terms and Conditions at any time. Alphest will then notify Customer at least one month before the changes take effect.
- If Customer does not agree with the changes than he has the right to terminate the contract. The termination will take effect on the day on which the changes enter into force.
Version 1.0. Last revised on 18-05-2015