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Article 1 General
- These terms and conditions govern all subscriptions to one of the web services (hereinafter referred to as: Systems) of DifferentLab B.V.
- By taking out a subscription to use the System, the Client automatically accepts these general terms and conditions.
- DifferentLab provides web services in the area of employee scheduling and employee data management under the following brand name: Shiftbase.
- Possible purchasing terms and conditions or other terms and conditions used by the Client are specifically excluded.
- In the event of a lack of clarity on the interpretation of one or multiple provisions of these general terms and conditions, interpretation must adhere to ‘the spirit’ of these provisions.
- If one or multiple provisions of these general terms and conditions were to turn out to be non-binding or invalid, the other provisions will remain valid in full.
- If a situation were to occur between the parties that is not covered by these general terms and conditions, the situation will have to be assessed while adhering to the spirit of these general terms and conditions.
- When the Provider does not always require strict compliance with these terms and conditions, this does not mean that the provisions thereof are not applicable, or that the Provider somehow waives the right to require strict compliance with the provisions of these terms and conditions in other cases.
Article 2 Definitions
- General Terms and Conditions: these general terms and conditions;
- Provider: the private limited company DifferentLab B.V., which provides web services in the area of employee scheduling and records;
- Client: any legal entity or natural person who takes out a subscription with the Provider to one of the Provider’s web services, thus entering into an agreement with the Provider;
- Website: the websites on which the Provider can be found online, i.e. www.differentlab.com, www.shiftbase.com;
- System: the web service provided by the Provider in the area of employee scheduling and records, offered under the Shiftbase brand name;
- User: Client, the personally authorised user of the system, who is employed by the Client or otherwise works for the Client’s organisation, or a third party whom the Client has designated as user;
- Registration form: the form on the website that the Client uses to register;
- Manual: the basis and comprehensive manual as published on the websites;
- Effective date: the date on which the account (i.e. access to the System) is activated after submission of the registration form to the Provider and sending of the activation code by the Provider;
- Back-up: regular electronic storage of employee data to prevent data loss;
- Log-in details: the strictly personal username and authentication means provided by, through, or on behalf of the Provider for access to the System;
- Account: access to the System by the Client and User;
- Working day: any calendar day, except Saturdays, Sundays, and official public holidays;
- Employee data: All data entered by users in the automated system through the System;
- Agreement: the agreement between the Provider and the Client that is created through registration on the website using the registration form and acceptance of these general terms and conditions;
Article 3 Formation of the Agreement
- The Agreement is formed following registration on the Provider’s website, completion of the registration form, and submission of the registration form to the Provider, which automatically confirms acceptance of the general terms and conditions.
- The Provider reserves the right to reject a registration without having to state reasons or to make an Agreement conditional on certain other requirements being met. If the Provider decides to reject a registration, the Provider will notify the person who submitted the registration within 10 working days after receiving the registration.
Article 4 Term and termination
- The Agreement is entered into for an indefinite term.
- Either party can terminate the Agreement by closing the account. If the account is closed before the end of a period for which the subscription fee has already been paid, the part of the subscription fee that relates to the unused part of the period will not be refunded.
- The Agreement will automatically end in the event of:
- (provisional) suspension of payment granted to the Client
- order for the application of a debt restructuring scheme for the Client
- in case of attachment of a considerable part of the Client’s assets.
- In these cases, all amounts due from the Client will be payable with immediate effect.
- If the Client fails to comply with any of his or her payment or other obligations, or otherwise causes losses to the Provider, the Provider will be entitled to terminate the Agreement early without observing a notice period. Provisions which by their nature are intended to operate after termination of the Agreement will remain effective after termination of the Agreement.
Article 5 Operation and liability
- The Provider will go to every reasonable effort to ensure optimum availability and accessibility of the System. However, the Provider does not guarantee unimpeded availability and functioning of the System or undisturbed and uninterrupted use of the System. The Provider uses third-party services for the operation of the System (software, server, hosting, etc.).
- The Provider can neither be held to recover lost or corrupted data, nor be held to cover losses caused by the use of the System.
- If the Client is able to show that he or she has sustained losses as a result of an error on the part of the Provider that would not have occurred if the Provider had acted with due care, the Provider can only be held liable for those losses up to a maximum of the amount due for the System for the last calendar year, unless it was a case of intent or similar gross negligence on the part of the Provider.
- If the Provider deems it necessary to perform maintenance work on the System, the Provider shall go to every effort to make sure the System is down for as little time as possible. Such maintenance work will be scheduled after 5pm on Working Days as much as possible.
- The Provider reserves the right to change and modify the System - either with or without prior notice - without altering essential features.
- The Provider shall endeavour to ensure adequate security of the System based on the state of the art, whereby the Client will also have his or her own responsibility.
- The Client is always responsible for the use of his or her Log-in Details. The Client is not allowed to share or transfer rights or obligations under the Agreement, the Log-in Details, and the use of the Log-in Details with or to third parties.
- It is the Client’s personal responsibility to have and ensure the adequate operability of the required hardware and software, connections, internet access, and the web browser deemed necessary by the Provider for access to the System. The Client is responsible and liable for the security of his or her own computer system, as well as his or her personal data, to protect the computer system and personal data against improper use, corruption, or destruction, both through internal influences or influences from outside his or her own organisation.
- If the Client is unable to access the System, either due to maintenance or other reasons, the Client’s payment obligation will not be suspended.
Article 6 Client data
- The Client is the owner of all data entered and stored in the System by Users (who are using the System under the Agreement). The Client is solely and exclusively responsible for the reliability and accuracy of the data.
- The Provider agrees to make a daily back-up of data entered by the Client and his or her Users to save the data and prevent data loss. Back-ups will be retained for 60 days and then deleted automatically.
- The Provider is not allowed to use information submitted by the Client for any purposes other than the purpose for which it is obtained and stored.
- If the Client terminates the Agreement, the Client’s data will no longer be available.
- If the Provider terminates the agreement in the event of a situation as specified in paragraphs 3 and 4 of Article 4, the Provider’s data will no longer be available.
Article 7 Fees
- The Client acquires access to the System by paying the fee that is valid at the time of taking out the subscription (as specified on the website or accessible through the website), unless the Provider and Client have agreed a different fee.
- The Provider reserves the right to amended the fees payable for the System. The Provider agrees to publish fee changes on the website at least four weeks in advance or notify the Client of a fee change by email.
Article 8 Billing
- The Provider will bill the Client for amounts due in advance and on a monthly basis. Payment must be made without delay or offsetting by SEPA direct debit, credit card, or bank transfer.
- Upon expiry of the payment term, the Client will automatically be considered to be in default, without notice of default being required. The Client will then be liable to pay penalty interest at a rate of 2% per month. As soon as the Client defaults, all the Provider’s (future) receivables from the Client will be due and payable with immediate effect, while the Client will then also be in default with respect to these receivables without notice of default being required, under Section 6:80 et seq of the Netherlands Civil Code. The Provider will in such a case be authorised to suspend the Client’s access to the System until all amounts due have been paid in full.
- If the Client has defaulted on one of his or her (payment) obligations, or failed to comply on time, all costs incurred to secure payment without bringing court proceedings will, on top of the amount due and penalty interest, fall to the Client. Extrajudicial collection costs amount to at least 15% of the amount due, with a minimum of €150 plus VAT.
Article 9 Personal data processing and indemnification
- The Client guarantees compliance with all requirements with respect to legitimate processing of the data entered in the System by the Client and the Users and processed and hosted by the Provider.
- The Client is responsible for the data hosted or processed using the System. The Client also guarantees towards the Provider that the data is not illegitimate and does not breach third-party rights. The Client indemnifies the Provider against any third-party claims on any grounds in relation to this data or the performance of the agreement.
- The Client has, based on personal data protection legislation (such as the General Data Protection Regulation), obligations towards third parties, such as the duty of disclosure, as well as the duty to provide access to, rectify, and erase data subjects’ personal data when requested. The responsibility to comply with these obligations rests entirely and exclusively with the Client. The Parties agree that the Provider, with respect to the processing of personal data, is designated as the ‘processor’ as specified in the Dutch Personal Data Protection Act. To the extent possible in a technical sense, the Provider will assist the Client in meeting his or her obligations. Any costs incurred in providing such assistance are not included in the Provider’s agreed fees and charges and will fall to the Client in full.
Article 10 Intellectual property
- All intellectual property rights on the System are held exclusively by the Provider.
- Intellectual property rights as specified in paragraph 1 are not transferred to the Client in any way in entering into the Agreement for the System. The Client acquires only a non-exclusive, non-transferable right to use the System for his or her own organisation, for the purpose of supporting his or her operations and for the duration of the Agreement.
Article 11 Choice of law and forum
- The Agreement between the Client and the Provider governed by these general terms and conditions is subject to Dutch law.
- In the event of disputes relating to the Agreement signed by the parties, the parties will try to resolve them through mediation, as per the regulations of the Netherlands Mediation Institute in Rotterdam, as they are on the mediation commencement date. As long as mediation has not been concluded, neither party will submit the dispute to a court of law, unless it is intended to preserve rights. The Parties shall attend the first mediation meeting together. After that, the Parties will be free to terminate mediation at any time. Mediation will commence on the date that the Parties attend the first joint mediation meeting. If it has proven impossible to settle a dispute in the way specified above using mediation, all disputes relating to the Agreement between the Client and the Provider, which is governed by these general terms and conditions, will be settled by the competent court in Haarlem, unless a dispute falls within the jurisdiction of the subdistrict court.