Terms and conditions SmartTrackers B.V.

version: 5 September 2019

1. User identity

  1. As user of these terms and conditions is identified SmartTrackers B.V. (“SmartTrackers”), located in Amersfoort, registered with the Dutch Chamber of Commerce, number 61117536.

2. Applicability

  1. These terms and conditions apply to every quotation from SmartTrackers and every agreement made between client and SmartTrackers, unless explicitly agreed otherwise in writing.
  2. These terms and conditions apply to the professional services provided by SmartTrackers and the application offered by SmartTrackers as internet service (“web application”).
  3. If any provision of this document is, or is found to be, unenforceable under applicable law, that will not affect the enforceability of the other provisions in this document.
  4. Circumstances that are not mentioned in these terms and conditions, will be assessed in accordance with the purport of these terms and conditions.
  5. The legal relationship between client and SmartTrackers is subject to Dutch law.
  6. Any dispute between client and SmartTrackers will be presented to a competent court according to Dutch law, but only after both parties have made the utmost effort to reach a solution.

3. Suspension and termination of agreement

  1. SmartTrackers has the right to entirely or partially cease the fulfillment of the agreement, if the client does not fulfill their payment obligation.
  2. Both parties are only authorized to terminate the agreement if the other party fails imputably to fulfill essential terms of the agreement. This authorization is only valid if the other party has received formal notice of default and has been given the opportunity to remedy their breach of contract within a reasonable period of time.
  3. SmartTrackers has the right to terminate the agreement immediately in the case of liquidation, moratorium or bankruptcy of the client’s company.

4. Exclusions of liability

  1. Liability of SmartTrackers, in the case of attributable failure to fulfill any term of the agreement, or in any other case, is limited to compensation for direct damages with a maximum of the agreed amount for a one-year subscription.

5. Warranties

  1. SmartTrackers will make the utmost effort to ensure the web application runs without interruptions, errors or defects. The client must accept that errors and defects in the functioning of the web application can also be attributable to actions of third parties or other external factors.
  2. SmartTrackers will make the utmost effort to remedy the attributable defects in the rendering or technical operation of the web application within a reasonable period of time. These defects will be remedied free of charge.

6. Unforeseen circumstances

  1. Unforeseen circumstances, apart from the legal provisions, include amongst other things: disruptions in the supply of electricity, government measures, fire, supply chain shortcomings , disruptions in internet connections, DDoS attacks and hardware or network malfunctions.
  2. Both parties have the right to terminate the agreement if the unforeseen circumstances last longer than 30 days.

7. Maintenance and management

  1. SmartTrackers aims at continuous availability of the web application. The web application has an average uptime of 99,7% per year, including maintenance.
  2. SmartTrackers actively maintains the web application and regularly releases updates that remedy earlier errors and that improve functionality.
  3. SmartTrackers actively protects the client’s data against loss or damage. However, SmartTrackers cannot guarantee loss or damage will never occur.
  4. SmartTrackers continuously makes data backups, for the sole purpose of data recovery.
  5. If the web application needs to go offline temporarily for essential maintenance, SmartTrackers will try to do this outside of office hours.

8. Processing of personal and business data

  1. Client will guarantee that all personal data has been lawfully obtained and that the personal data will be processed according to applicable laws and regulations.
  2. In their Privacy Statement SmartTrackers offers insight into the way personal data is processed and with which third parties data is shared. This Privacy Statement can be found here: https://www.smarttrackers.nl/en/privacy-statement/..
  3. Company and other details the client enters into the web application, will only be used by SmartTrackers for the proper functioning of the web application. Company and other data the client enters into the web application, will not be used by SmartTrackers for any other purpose unless the client has explicitly authorized SmartTrackers to do so, in writing.

9. Security

  1. In the web application the client can assign accounts to employees and auxiliaries (“users”). The client is responsible for user names, passwords, tokens and other codes that are solely intended for obtaining access to the web application (“login details”) and the client is required to handle these details carefully.
  2. The client will use the supplementary safety precautions SmartTrackers offers for their account on the web application, such as two-factor authentication, and will see to it their users do as well.
  3. The login details are personal for each user and may not be shared with or transferred to another party or person, within or outside of the client’s organization. Client and users are required to keep the login details strictly secret.

10. Payment

  1. SmartTrackers will send out electronic invoices for the payable amounts in advance. The client is obliged to pay the payable amount within the applicable term of payment.
  2. If the client does not pay within the term, SmartTrackers reserves the right to suspend access to the web application until such a time as the payment obligation is fulfilled.
  3. At any moment the client can expand the applicable limits of the use of the web application.

11. Subscription renewal

  1. Before the end of the agreed subscription term, SmartTrackers will offer the client a proposal for renewal. Prices and conditions of this renewal can differ from the prices and conditions of the previous, expiring subscription.
  2. If the client accepts the renewal proposal, the new subscription will start on the first day after the expiration of the previous subscription.
  3. If the client does not accept the renewal proposal, the previous subscription will end in accordance with earlier agreements. The client will not have to actively terminate the subscription and there is no automatic renewal.
  4. At the end of the subscription term, in the case that the client has not accepted the renewal proposal but continues to use the web application (by logging in), SmartTrackers reserves the right to renew the subscription by one year.

12. Third party rights

  1. SmartTrackers can employ a third party to perform certain services, however, SmartTrackers will always be responsible for their proper execution.

13. Intellectual property rights

  1. Copyrights and other intellectual property rights of works made by SmartTrackers, lie with SmartTrackers and will not be transferred to the client, unless explicitly agreed otherwise in writing.
  2. If SmartTrackers transfers intellectual property rights to the client, SmartTrackers still has the right to use parts, general principles, ideas, designs, programming languages, protocols, standards and other such things that lie at the base of the works made for the client as part of the commission, for other purposes, whether or not for a third party. In addition, SmartTrackers has the right to make works that are similar to or derivative of works of which the intellectual property rights have been transferred.
  3. The client guarantees their use of the application will not infringe on the rights of third parties or legal regulations.
  4. The client exempts SmartTrackers from claims of third parties that connect to their use of services and/or licences of SmartTrackers and/or third parties.

14. Revisions of the terms and conditions

  1. SmartTrackers has the right to revise these terms and conditions.
  2. If SmartTrackers uses this right, SmartTrackers will inform the client of the revisions 30 days in advance.

15. Miscellaneous

  1. SmartTrackers will ensure the privacy of all the documents that are saved in the web application, unless it is essential for the proper execution of their professional services.