Last modified: 1 January 2022.

For translations of this Agreement, please click here.

These Kwikqy Workspace Terms of Service (together, the "Agreement") are entered into by Kwikqy and the entity or person agreeing to them ("Customer") and govern the Customer's access to and use of the Services.

This Agreement will be effective from the moment the Customer clicks the button to accept it (the "Effective Date"). Should you accept on behalf of a Customer, you represent and warrant that (i) you have full legal authority to bind the Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the Customer, to this Agreement.

Should you not have the authority to bind the Customer, you shall refrain from clicking the button to accept (or if applicable, will not sign) this Agreement.

The Services offered can be found at Services Summary.

Any capitalized terms shall have the meaning as set forth.

1. Delivery of the Services.

1.1 Use of Services.
Kwikqy will provide the Services during the Term in accordance with the Agreement, including the SLA. The Customer may use the Services ordered in the applicable Order Form or Reseller Order in accordance with this Agreement.
After the Order, the Customer shall have access to the Services in the form of ‘Software as a Service’ (SaaS). This right to access is a non-exclusive, non-transferable right of use only. Activation of the Admin Console shall be considered as delivery of the Services to the Customer. The Customer can use the Services ordered, within the scope of the Access-rights as determined at ordering the Services. The scope of the access-rights can be amended during the Term of the Agreement.

Under certain conditions the Customer can enter into a Reseller Agreement with Kwikqy.

1.2 Trial Account.
Every Customer can make use of a free Trial account, after registration via the Website and Kwikqy’s approval. After registration and activation by Kwikqy, the Customer shall have access to the ordered Services (the Workspace requested by the Customer) which can be used autonomously after completion of the onboarding process by the Customer. After completion of the onboarding by the Customer, the Trial shall be available for 7 calendar days. After this period the Trial will be deactivated automatically. The Customer has the option to prolong the Trial autonomously with an additional 7 calendar days. After that period an additional prolongation can be requested by the Customer through Kwikqy’s digital online contact channels. Kwikqy has the right to refuse such an additional prolongation. Additional Products are not available by default in the Trial Account.

At Customer’s request Kwikqy can provide an (online) Demo of the Services and Additional Products where possible.

Both during and after the Trial period, the Customer will have the option to place a (definitive) paid Order for the Services, to which the terms of this Agreement will also apply.

1.3 Active Admin Account.
When the Customer has used the Trial Account and still has an active Admin Account within the Admin Console, he can order the Services through the Admin Account by clicking on the ‘Upgrade’ button, provided that the Customer provides the following information:

Services needed
number of End Users
Additional Products if desired
Billing/invoicing option: flexible, monthly, quarterly, yearly or multiple years
Term
Payment option credit card, direct debit; including payment details

An Order will only become effective after electronic confirmation, or at the moment Kwikqy makes the Services available to the Customer.

1.4 Inactive Admin Account.
Should the Customer no longer have an active Admin Account, the Services can be ordered by contacting Kwikqy.

The Customer represents and warrants that (i) all provided (registrational) information is complete, truthful and correct and that (ii) the Customer will ensure that information provided will remain correct and updated at all times. At all times Kwikqy shall have the right to request additional information regarding the Customer, its activities and its creditworthiness.

Kwikqy shall have the right to refuse or suspend execution of the Order (iii) should the Customer not comply to Kwikqy’s request, or (iv) should Kwikqy doubt the Customer’s identity, or (v) should there be indications that the Customer’s intention is to (re)sell the Services. Any refusal or suspension, does not entitle the Customer to any form of compensation and damages in the broadest sense.

1.5 Admin Account/ End User Account.
Each End User Account (including the Admin Account) is designated to one individual only and shall not be shared with any other persons. Both Admin and End User are strongly advised to create a unique and strong password, change the password regularly and/or make use of double authentication. Admin and Enduser are responsible for the confidentiality of their account and login details. As such, login details may never be shared with Kwikqy (for instance in a request for assistance from Kwikqy Help Center -Art 8). Any loss or misuse of login details may result in liability towards Kwikqy and immediate suspension of the Services. For more information on suspension, see Art 6.

Furthermore it is not allowed to:

ask other users for their login details
login through someone else’s account
use the Services in a fraudulent manner (for instance using a fake account and/or providing untruthful information
pose as someone else when using the Services, without proper approval. This could lead to civil and/or criminal sanctions

The Customer is required to (i) penalize any unduly or inappropriate use and (ii) inform Kwikqy in writing on such use and or any controversial registration noticed.

A substantiated notice from Kwikqy may lead to a temporary and/or permanent suspension and/or deletion of the Administrator Account and/or the End User Accounts. Kwikqy has a broad discretion in order to ensure the quality of its Services. In no instance can Kwikqy be held liable for any loss or direct and/or indirect damages, caused by non-compliance to the above by the Customer.

All amendments or additions to the Agreement after delivery of the Admin Account (and the End User Accounts) shall only be valid after written approval and implementation by Kwikqy.

Kwikqy shall at all times have the explicit right to temporarily and/or indefinitely suspend or remove the Admin Account including all associated data, in the broadest sense of the term.

1.6 Admin Console.
The Customer will have access to the Admin Console, through which the Customer may manage its use of the Services.The Customer shall have full responsibility of the compliance to the Terms of Service and all actions and/or omissions from all users that have access through the Admin Console. The Customer shall only provide access to the Services and Documentation to Admin and End Users and shall not allow use by any others.

1.7 Accounts; Verification to Use Services.
(a) Accounts. The Customer must have an Account to use the Services and is responsible for the information provided to create the Account, the security of its passwords for the Account, and any use of its Account. Kwikqy has no obligation to provide multiple accounts to the Customer.
(b) Verification to Use the Services. The Customer must verify a business email address and mobile telephone number to use the Services (in general email addresses such as @gmail.com, @hotmail.com are excluded) . If Customer does not have valid permission to use the email address and/or telephone number provided, then Kwikqy will have no obligation to provide the Customer with the Services and may delete the Account without notice.
(c) Upon Delivery/Provision the Customer shall perform an initial check , inter alia with regard to the following points: number of End Users, requested Services as per Order, the Term and the invoicing and payment option.
(d) The Customer is obligated to inform Kwikqy within 48 hours of any non-conformity in the broadest sense. Should no complaints be communicated within this time frame, the Customer will be deemed to have approved and accepted the Services as provided. After this period, any right of complaint will have lapsed and the Customer will be deemed to have accepted that Kwikqy standard procedures can be upheld, in the broadest sense.
(e) The Customer acknowledges that use exclusively permitted for Admin and End Users and only for internal corporate purposes, in accordance with all applicable laws, rules and regulations set by governing authorities. The Customer accepts that compliance to this article is an essential basis of the Agreement.
(f) Use of and access to the Services by the Customer presupposes a properly functioning internet connection and use of a modern web browser (for instance the most recent version of Google Chrome). Should the Customer use an outdated web browser, not all functionalities of the Services may be available or function optimally.

1.8 Restrictions.
(a) The Customer agrees not to misuse the Access Rights. Among others this means the Customer shall refrain from the following:
(b) Sell, resell, license, sublicense, rent out, lease or distribute the Kwikqy Services, or include any Services or any derivative works thereof in a service agency or outsourcing offering to any third party, unless the Customer has an accepted and signed Reseller Agreement with Kwikqy.;
(c) Copy, modify, adapt, alter, translate or make derivative works based upon the Services (other than any copies, modifications or derivative works made exclusively from the reports or overviews which are created solely for Customer’s internal business purposes);
(d) Engage in, nor authorize others to engage in, the reverse engineering, disassembly or the decompilation of the Services
(e) Use the Services for illegal or unlawful purposes or for the transmission of data which is illegal, defamatory, invasive of another's privacy, abusive, threatening, harmful or infringes on someone's intellectual property (non- exhaustive list).
(f) Use the Services to conduct or promote any illegal activities;
(g) Use the Services for the distribution of “junk mail”, “spam”, “chain mail”, “phishing” or other undesired mass emails;
(h) Use the Services to stalk, harass or (intentionally) harm anyone
(i) Interfere with the proper functioning of the Services and/or the Website. This also means that Customers are not allowed to use viruses, worms, Trojan horses or other software that could impair the services and interests of both Kwikqy and its Customers. In addition, Customers must refrain from any content that could compromise the infrastructure of the websites and their proper functioning.
(j) Send unsolicited and/or commercial messages, such as junk mail, spam and chain letters;
(k) Add content that can be described as not-appropriate regarding the purpose of the Services. Kwikqy has a wide discretion in this regard and may notify Customers when testing boundaries;
(l) Circumvent the Kwikqy business model;
(m) Copy or duplicate the Kwikqy Services and/or Kwikqy business model or conduct any research at Kwikqy for the purpose of using ideas and/or processes from within Kwikqy Services, to improve, expand or enrich own or third party applications, in the broadest sense;
(n) Use the Services – partly or integrally – or the Website in any manner that may convey a false or misleading impression, attribution, or statement as to Kwikqy or any third party.

In the event of violation of any provision in Article 1.5 and 1.8 as well as in the event of violation of any intellectual property right of Kwikqy, Kwikqy will forfeit from the Customer and/or Reseller, without further notice of default and/or court intervention being required, a fine of € 500,000.00 (five hundred thousand euros), per violation and € 100,000.00 (one hundred thousand euros), per day or part of a day that the violation continues, immediately due and payable, without prejudice to Kwikqy's right to claim compensation for higher damage.

2. Modifications.

(a) To the Services. Kwikqy may make commercially reasonable changes to the Services from time to time.
Meaning Kwikqy shall have the right to, at any point in time and with direct effect in the broadest sense of the word, change the offer and composition of its Services, without this meaning any breach in the Agreement with the Customer.
Kwikqy will inform Customer if Kwikqy makes a material change to the Services that has a material impact on Customer's use of the Services and if Customer has subscribed with Kwikqy to be informed about such change.

(b) To the Agreement. Kwikqy may change the terms of this Agreement from time to time. These changes will only take effect 30 days after notification, at which time Customer’s continued use of the Services will constitute its acceptance of the changes. This Section 2(b) (Modifications to the Agreement) does not apply to changes to URL Terms.

(c) To the Online Terms. Kwikqy may change the Online Terms from time to time and will notify Customer if any such change is material. Kwikqy may notify Customer of material SLA changes via the applicable SLA webpage. Material changes to the Online Terms will become effective 30 days after notice is given, provided that (i) materially adverse SLA changes will become effective 90 days after notice is given and (ii) changes applicable to new Services or functionality or the Privacy Policy, or that are required by applicable law, will be effective immediately.

(d) To the Privacy Policy. Kwikqy may change its Privacy Policy.Should Kwikqy make any relevant amendments to the policy, Kwikqy will post the change on the website where the Privacy Policy can be found.

(e) Kwikqy as data controller. Kwikqy processes personal data concerning the (potential) Customer, the Customer’s Users and/or any other of the Customer’s staff members as a ‘data controller’ within the meaning of the Privacy Policy. Kwikqy’s Privacy Policy includes all relevant information about the way Kwikqy handles personal data in its capacity as a data controller (including: the purposes of data processing, the type(s) of personal data to be processed, the period for which they are retained, the recipients of the data, etc.). Kwikqy’s Privacy Policy must be read together with Kwikqy’s Cookie Policy. By entering into an Agreement including registration for a Demo – the Customer is deemed to have read the Privacy Policy and to understand its content.

(f) Kwikqy as data processor. The Customer acknowledges that – with regard to the processing of Personal Customer Data – it shall act as ‘data controller’ and Kwikqy as ‘data processor’ within the meaning of the Privacy Policy. All arrangements made between Parties in this respect shall be solely governed by the Privacy Policy, as agreed to by all parties and which is made available within the Admin Console. With regards to the above (Art 2) by ordering the Services or entering into an Agreement the Customer is deemed to have read the Privacy Policy and to understand its content.

(g) Discontinuation of Core Services. Kwikqy will notify Customer at least 12 months before discontinuing any Core Service (or associated material functionality) unless Kwikqy replaces such discontinued Core Service or functionality with a materially similar Core Service or functionality. Nothing in this Section 2 (g) (Discontinuation of Core Services) limits Kwikqy's ability to make changes required to comply with applicable law, address a material security risk, or avoid a substantial economic or material technical burden. This Section 2 (g)(Discontinuation of Core Services) does not apply to Additional Services or to pre-general availability Services, offerings, or functionality.

3. Pricing

3.1 Price options.The Services are offered by Kwikqy at a fixed price for a fixed term (including monthly, quarterly, annually, multiple years or a specific term as mentioned on the Website or agreed upon in the Order Form or through a custom made offer ) with or without a flexible component. Kwikqy Services can also be offered in a fully flexible model.

All prices are expressed in EURO exclusive of VAT and/or other taxes and (local) charges, unless explicitly mentioned otherwise.

Under no circumstances does Kwikqy guarantee that it will maintain the prices for any of its Services, it can at any time adjust the prices of one or more of its Services.

Among others prices are susceptible to market and Kwikqy by no means guarantees equal pricing and/or pricing structure and/or pricing models in the different countries it is active in.

Insofar as the prices of the Services are based on the then prevailing wage costs, costs of components/parts, social security contributions and government levies, insurance premiums, costs of materials, exchange rates and/or other costs, Kwikqy shall, in the event of an increase of one or more of these price factors, be entitled to increase its prices accordingly and in accordance with the legally permitted standards.

3.2 Discounts. Any commercial discounts on the standard prices granted verbally (e.g. by telephone) must be confirmed in writing (e.g. on the corresponding invoice) to be valid.

The (potential) Customer acknowledges that discounts shall only be applicable in accordance with the guidelines and conditions expressly stated in this regard. Such discounts are deemed to be granted on a one-off basis for the initial Term or the specified duration and shall thus not automatically apply to subsequent (similar) orders. Any other practice to the contrary shall be regarded as a commercial gesture and shall only apply as long as it is not revoked by Kwikqy. The (potential) Customer acknowledges that discounts (as well as any other promotional gifts) cannot be accumulated, are personal by nature and can never give rise to acquired rights.

Above mentioned discount will be delivered by Kwikqy by means of a Coupon.

3.3 Upgrades. The Customer can order additional Services and/or End Users during the Term of the Agreement via an additional Order Form, through an additional Order at a Reseller or through the Admin Console. The requested upgrade shall be activated immediately. An additional fee shall be charged on a pro rata basis taking into account the remainder of the current Term during which the Customer will be able to use the Upgrade.Additional Services are offered at a fixed quarterly, annual, or multi-year price as mentioned on the Website or through a custom made offer. For more information on upgrades, visit the Kwikqy Help Center.

3.4 Downgrades. The Customer can reduce the Services and/or the number of End Users through the Admin Console or a Reseller. Such notice needs to be given at the latest fifteen (15) days before the Renewal Date. If the Downgrade notification is made too late, Kwikqy will be entitled to invoice the Customer for the relevant Services and/or User Accounts for the entire following Term, even if the Customer no longer uses them. Any Downgrades shall only be implemented as from the (resp. quarterly or yearly) Renewal Date. Consequently, the Customer is not entitled to any reimbursement for any non-usage of certain Services, User Accounts or Customer Account limits during the current Term. For more information on upgrades, visit the Kwikqy Help Center.

3.5 Price Revisions. Kwikqy may change the Prices at any time unless otherwise expressly agreed in an addendum or Order Form. Kwikqy will notify the Customer at least 30 days in advance of any changes. The Customer's pricing will change at the beginning of Customer’s next Order Term after the 30-day period.

3.6 Offers. Catalogs, brochures, flyers, newsletters, offers, online advertisements, vlogs/clips or (online) seminars, notification by Kwikqy and/or on the Website, social media, or other online or offline tools, in the broadest terms, shall not be binding and can solely be regarded by the Customer as an invitation to order the Services, unless otherwise specified. Every offer shall only be valid for (i) a specific order, and thus not any following orders, for the (ii) period as mentioned in the offer.

4. Payment Terms.

4.1 Usage Measurement and Billing. Kwikqy shall invoice the Customer per the agreed Term - as specified by the Customer when ordering the Services (art 4.2). The invoice will always be delivered to the Customer prior to the start of the relevant Term, unless the invoice regards a Flexible model, for which Kwikqy will invoice de Term of one month in arrears.

Regardless of the above, invoices related to Additional Services and/or End Users will be delivered immediately to the Customer upon placing the Order.

The Customer agrees to pay the Fees for the Services. Kwikqy will invoice the Customer for all Fees related to the Services. Kwikqy’s measurement tools will be used to determine Customer’s usage of the Services. The Customer has the following billing options, or any other billing option proposed by Kwikqy, whilst placing the Order.

Kwikqy may change its offering of billing options (including by limiting or ceasing to offer any billing option) upon 30 days’ notice (via communication such as e-mail) to the Customer. Billing options may not be available to all customers. The Customer may pay for the Services using the payment options listed in Article 4.8 Payment facilities.

4.2 Usage measurement and billing options. Kwikqy’s measurement tools will be used to determine Customer’s usage of the Services and any such determination by Kwikqy for the purpose of calculating Fees is final. Customer may elect one of the billing options below or any other option offered by Kwikqy when Customer places its order for the Services.

(a) Flexible Plan. If the Customer selects this option, the Customer will not be committed to purchase the Services for a pre-defined term, but will pay Fees based on its daily usage of the Services in the form of ‘Pay as you Go/Pay per Usage (PPU)’, billed monthly in arrears. Flexible Fees of Services will be invoiced at use and should be paid within 24 hours. In order to make use of Pay as you Go/Pay per Usage (PPU) the Customer will be required to deposit a credit in advance.

(b) Monthly Plan. If the Customer selects this option, the Customer will be committed to purchasing the Services for a one month term. Kwikqy will invoice the Customer for the full term in advance according to the Customer’s selections on the Order Form. Flexible Fees will be invoiced immediately or 30 days in arrears at the latest.

(c) Quarterly/Fixed Term Plan. If the Customer selects this option, Customer will be committed to purchasing the Services for a quarterly term. Kwikqy will invoice the Customer for the full term in advance according to the Customer’s selections on the Order Form. Flexible Fees will be invoiced immediately or 30 days in arrears at the latest.

(d) Annual/Fixed-Term Plan. If the Customer selects this option, the Customer will be committed to purchasing the Services for one annual term. Kwikqy will invoice the Customer for the full term in advance according to the Customer’s selections on the Order Form. Flexible Fees will be invoiced immediately or 30 days in arrears at the latest.

(e) Multi year Plan/ variant Term .If the Customer selects this option, the Customer will be committed to purchasing the Services for multiple annual terms or a variant term (as selected by the Customer) . Kwikqy will invoice the Customer for the full term in advance according to the Customer’s selections on the Order Form. Flexible Fees will be invoiced immediately or 30 days in arrears at the latest.

(f) Kwikqy StartUp model If the Customer qualifies as a Startup according to the Startup conditions as mentioned in ‘Kwikqy for StartUps’ , the Customer can use the Services at a reduced Fee, as mentioned on the Website. This model can only be used after Kwikqy consents and can be denied by Kwikqy, without giving reasons.

4.3 Electronic invoicing. The Customer expressly agrees to electronic invoicing, unless agreed otherwise in writing. All invoices under this Agreement will be sent to the electronic address provided by the Customer when ordering the Services. It’s the Customer's responsibility to keep its invoicing information up to date. The Customer is not discharged from its payment obligation and the consequences of late or non-payment in case of outdated invoicing information.

4.4 Invoice disputes. Invoices may only be legitimately disputed by the Customer via the online customer domain through opening an official ‘support Request’ within seven (7) calendar days after the invoice date, stating the invoice date, the invoice number and detailed reasons. Such a dispute does not discharge the Customer from its obligation to pay.

4.5 Payment Disputes. Any payment disputes must be submitted digitally through a ‘support Request’ within 7 days after the invoicing date. If the parties determine that certain billing inaccuracies are attributable to Kwikqy, Kwikqy will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If a disputed invoice has not yet been paid, Kwikqy will apply the credit memo amount to the disputed invoice and the Customer will be responsible for paying the resulting net balance due on that invoice. Nothing in this Agreement obligates Kwikqy to extend credit to any party.
If there are no inaccuracies attributable to Kwikqy, Kwikqy can nonetheless without any obligation compensate a Customer in the form of a Coupon, the amount of which is to be determined by Kwikqy. The Customer can redeem the Coupon once, within the timeframe of validity of the Coupon.

4.6 The unconditional payment by the Customer of the invoice amount is considered explicit acceptance of the invoice.

4.7 Payment. All payments are due in Euros, unless stated otherwise on the Order Form or invoice.

4.8 Payment Facilities. Unless expressly agreed otherwise, all Kwikqy invoices are automatically collected by Kwikqy in full via credit card or (SEPA) Direct Debit (SDD) – depending on the Customer’s preference when ordering the Services – on the invoice date (without applying any discount).

Should collection via credit card or (SEPA) Direct Debit not be possible, the invoice becomes due and payable within 14 calendar days after the date of the invoice.

In the event of payment through (SEPA) Direct Debit (SDD), Kwikqy thus formally deviates from the legal pre-notification duty of 14 calendar days prior to collection, to which the Customer agrees.

For the processing of its payments, Kwikqy makes use of the services of external professional and specialized partners who operate a payment platform. The online payments are made and facilitated with the help of secure protocols. All online payments are subject to the general terms and conditions of the external administrator of the payment platform, who has exclusive responsibility for the correct processing of all online payments.
The financial data of the Customer that is entered as part of an online payment is only exchanged between the external partner and the financial institutions concerned. Kwikqy has no access to the confidential financial data of the Customer. De Customer shall not hold Kwikqy liable for any disputes arising from payment processing.

(a) Credit Card or (SEPA) Direct Debit. If Customer is paying with a credit card, direct debit, or other non-invoice form of payment, payments are due directly when the Customer has received the Services. For the Flexible model and flexible Fees: (i) Kwikqy will issue an electronic invoice for all applicable Fees when due, and (ii) these Fees are considered due and payable at the end of the month during which Customer received the Services.

(b) Invoices. Payments for invoices are due 14 days after the invoice date (unless otherwise specified on the Order Form) and are considered overdue after such date.

(c) Other Forms of Payment. The Customer may change its payment method by activating it in the Admin Console, to any other method that Kwikqy may enable in the Admin Console, subject to acceptance by Customer of any additional terms applicable to that payment method.

(d) Payment Information. Payments made via transfer must include the bank information and invoicing details provided by Kwikqy.For this service Kwikqy can charge an administration fee of at least EUR 15 and 2% of the value of the invoice.

4.9 Taxes.
(a) The Customer is responsible for any Taxes, and will pay Kwikqy for the Services without any reduction for Taxes. If Kwikqy is obligated to collect or pay any Taxes, the Taxes will be invoiced to Customer and Customer will pay such Taxes to Kwikqy, unless Customer provides Kwikqy with a timely and valid tax exemption certificate in respect of those Taxes.

(b) The Customer will provide Kwikqy with any applicable tax identification information that Kwikqy may require under applicable law to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. Customer will be liable to pay (or reimburse Kwikqy for) any taxes, interest, penalties, or fines arising out of any mis-declaration by Customer.

4.10 Delinquent Payments; Suspension. Late payments -by law and without prior notice of default- may bear interest at the rate of 5% per calendar month (or the highest rate permitted by law, if less) from the payment due date until paid in full, whereby a month that has already started is to be considered as fully completed.

The amount due will be increased with 20% of the invoice amount, with a minimum of € 500 (excl. VAT) by way of lump sum damages, without prejudice to Kwikqy’s right to claim higher compensation. Late payment or non-payment will result in all other invoices of Kwikqy to the Customer immediately becoming due and payable, even if they have not yet fallen due, and all permitted payment conditions will cease to apply. The same applies in the event of an imminent bankruptcy, judicial or amicable dissolution, suspension of payment, as well as any other fact showing that the Customer is insolvent (art 10.8).
For deactivating and reactivating Services a minimum fee of EUR 250 per action will be applied. The Customer will be responsible for all reasonable expenses (including and not limited to collection costs, (re)activation costs, attorneys' fees, travel expenses and court fees) incurred by Kwikqy in collecting such delinquent amounts. Further, if Customer’s payment for the Services is overdue, Kwikqy may Suspend the Services.

Kwikqy has the right to (temporarily) suspend the access to the Services without judicial intervention or default notice, until it has received actual and full payment from the Customer. Furthermore Kwikqy can deem any (part of an) Order as cancelled, despite the Customer being notified of default.

4.11 No Purchase Order Number Required. The Customer is obligated to pay all applicable Fees without any requirement for Kwikqy to provide a purchase order number on Kwikqy's invoice (or otherwise).

4.12 Termination after advance payment. If the Customer terminates the Agreement (for whatever reason) (art 15), any advanced sums (regardless of the period they refer to) will not be reimbursed by Kwikqy.

4.13.Partial payments by the Customer are always accepted subject to change and without any prejudice, and first allocated to the collection costs, next to the damages, the interest due and, finally, to the principal sum, with preference given to allocation to the oldest outstanding principal sum.

4.14 Off set debt. Parties agree that in their reciprocal relation, as from the start of the Agreement between Kwikqy and the Customer, all currently existing as well as any future debts shall always be automatic and ipso jure be set off against each other and compensated, irrespective of their due date, their aim or the currency in which they have been expressed.

In case of unsecured creditors, the claim of the other party on the party dealing with unsecured creditors shall always be limited to the remainder after the setoff of the chargeable amounts and the permanent setoff will in any case have legal effect against the curator and the remaining creditors, who can themselves therefore not object nor oppose any of the aforementioned compensations or debt comparison carried out by Parties.

5. Customer Obligations.

5.1 Compliance. The Customer will (a) ensure that the Customer and its End Users' use of the Services complies with the Agreement, (b) use commercially reasonable efforts to prevent and terminate any unauthorized use of, or access to, the Services, and (c) promptly notify Kwikqy if Customer becomes aware of any unauthorized use of, or access to, the Services, Account, or Customer's password. Kwikqy reserves the right to investigate any potential violation of the AUP by Customer, which may include reviewing Customer Data.

5.2 Privacy. Customer is responsible for any consents and notices required to permit (a) Customer's use and receipt of the Services, and (b) Kwikqy's accessing, storing, and processing of data provided by Customer (including Customer Data) under the Agreement.

5.3 Restrictions. Customer will not, and will not allow End Users to, (a) copy, modify, or create a derivative work of the Services; (b) reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of, the Services (except to the extent such restriction is expressly prohibited by applicable law); (c) sell, resell, sublicense, transfer, or distribute any or all of the Services; or (d) access or use the Services (i) for High Risk Activities; (ii) in violation of the AUP; (iii) in a manner intended to avoid incurring Fees (including creating multiple Customer Accounts to simulate or act as a single Customer Account or to circumvent Service-specific usage limits or quotas); (iv) to engage in cryptocurrency mining without Kwikqy's prior written approval; (v) to place or receive emergency service calls, unless stated otherwise in the Service Specific Terms; (vi) for materials or activities that are subject to the International Traffic in Arms Regulations (ITAR) maintained by the United States Department of State; (vii) in a manner that breaches, or causes the breach of, Export Control Laws; or (viii) to transmit, store, or process health information subject to United States HIPAA regulations, except as permitted by an executed HIPAA BAA.

5.4 Additional Products. As per art 1 Kwikqy can make optional Additional Products available to the Customer and its End Users. Use of Additional Products is subject to the Additional Product Terms.The Customer can enable or disable Additional Products at any time through the Admin Console.

5.5 Administration of Services. The Customer can assign through the Admin Console one or more Administrators who will have the right to access Admin Accounts. The Customer is responsible for (a) maintaining the confidentiality and security of the End User Accounts and associated passwords and (b) any use of the End User Accounts. The Customer agrees that Kwikqy’s responsibilities do not extend to the internal management or administration of the Services for The Customer or any End Users. The Customer takes full and sole responsibility for the protection and security of the Admin Accounts and the End User Accounts in the broadest sense.

5.6. As per art 3.3 and 3.4, the Customer has full and sole responsibility for Upgrades, Downgrades, additional Services, Additional Products, End User Accounts and Licenses and releases Kwikqy in the broadest sense of any consequence of untimely Up- or Downgrade requests by the Customer or the Reseller.

6. Suspension.

6.1 AUP Violations. If Kwikqy becomes aware that the Customer's or any End User's use of the Services violates the AUP, Kwikqy will notify the Customer and request that Customer correct the violation. If the Customer fails to correct the violation within 24 hours of Kwikqy's request, then Kwikqy may Suspend all or part of the Customer's use of the Services until the violation is corrected. Suspension of the Services may include removal or unsharing of content that violates the AUP.

6.2 Other Suspension. Notwithstanding Section 6.1 (AUP Violations), Kwikqy may immediately Suspend all or part of Customer's use of the Services (including use of the underlying Account) if (a) Kwikqy reasonably believes Customer's or any End User's use of the Services could adversely impact the Services, other customers' or their end users' use of the Services, or the Kwikqy network or servers used to provide the Services; (b) there is suspected unauthorized third-party access to the Services; (c) Kwikqy reasonably believes that immediate Suspension is required to comply with any applicable law; or (d) Customer is in breach of Section 5.3 (Restrictions) or the Service Specific Terms. Kwikqy will lift any such Suspension when the circumstances giving rise to the Suspension have been resolved. At Customer's request, Kwikqy will, unless prohibited by applicable law, notify Customer of the basis for the Suspension as soon as is reasonably possible.

7. Intellectual Property Rights; Protection of Customer Data; Feedback; Using Brand Features Within the Services.

7.1 Intellectual Property Rights. Except as expressly stated in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other's content or any of the other's intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and Kwikqy owns all Intellectual Property Rights in the Services.

All such rights and goodwill are and will remain at all times, vested with Kwikqy.

The Customer shall thus not use any trademark, trade name, or brand name of Kwikqy (such as but not limited to the use thereof in meta tags, keywords or hidden text), without Kwikqy’s explicit written approval.

The Customer undertakes to notify Kwikqy of any actual, threatened or suspected infringement of any intellectual property rights of Kwikqy which comes to the Customer’s notice, and of any claim by any third party due to use of the Services.

Without prejudice to the right of the Customer or any third party to challenge the validity of any intellectual property of Kwikqy, the Customer shall not perform or authorize any third party to perform any act which would or might invalidate or be inconsistent with any intellectual property rights of Kwikqy – including without being limited to any patent, copyright, registered design, trademark or other industrial or intellectual property rights – and shall not omit or authorize any third party to omit to do any act which, by its omission, would have that effect.

7.2 Protection of Customer Data. Kwikqy will only access or use Customer Data to provide the Services and TSS to Customer or as otherwise instructed by Customer. Without limiting the generality of the preceding sentence, Kwikqy will not process Customer Data for Advertising purposes or serve Advertising in the Services. Kwikqy has implemented and will maintain administrative, physical, and technical safeguards to protect Customer Data, as further described in the Privacy Policy.

7.3 Customer Feedback. At its option, Customer may provide feedback or suggestions about the Services to Kwikqy ("Feedback"). If Customer provides Feedback, then Kwikqy and its Affiliates may use that Feedback without restriction and without obligation to Customer.

7.4 Using Brand Features within the Services. Kwikqy will display within the Services only those Customer Brand Features that Customer authorizes by uploading them into the Services. Kwikqy will display those Customer Brand Features within designated areas of the web pages displaying the Services to Customer or its End Users. Customer may specify details of this use in the Admin Console. Kwikqy may also display Kwikqy Brand Features on such web pages to indicate that the Services are provided by Kwikqy.
Furthermore parties agree that without conveying any right, title or interest, the Customer agrees that Kwikqy is allowed to make accurate informational references to the Customer’s trade names, trademarks or service marks (collectively, the “Marks”) for all purposes Kwikqy deems necessary. For instance advertising and marketing purposes for Kwikqy Services and Additional Products. The Customer agrees this allowance stay valid after Termination. Kwikqy can cease such use at its own accord, at any point in time.

7.5 Right of Use. Consequently, the license granted to the Customer under this Agreement solely implies the right to use – at a charge – the Services. No implied licenses shall be granted under this Agreement.

Under no circumstances does such license:

Entail a transfer of ownership of the Services and Documentation byKwikqy to the Customer
Grant the Customer any rights to the Services, nor to any trade names and/or or trademarks of Kwikqy
Grant the Customer the right to request Kwikqy to deliver a copy of any software or other products utilized by Kwikqy to provide the Services.

7.6 Documentation. Subject to these Terms of Service, Kwikqy hereby grants to the Customer a non-exclusive, non-transferable License during the Term (see Article 14) to reproduce copies of the Documentation solely for use by the Customer in connection to its License.

The Customer acknowledges that:

No right is granted to publish, modify, adapt, translate or create derivative works of the Documentation.
The Documentation is part of Kwikqy's intellectual property and hereby agrees to accurately reproduce all proprietary notices, including any copyright notices, trademark notices or confidentiality notices, that are contained within any copies of the Documentation.

In the event of violation of any provision in Article 7 as well as in the event of violation of any intellectual property right of Kwikqy, Kwikqy will forfeit from the Customer and/or Reseller, without further notice of default and/or court intervention being required, a fine of € 500,000.00 (five hundred thousand euros), per violation and € 100,000.00 (one hundred thousand euros), per day or part of a day that the violation continues, immediately due and payable, without prejudice to Kwikqy's right to claim compensation for higher damage.

8. Technical Support Services.

Subject to payment of applicable Fees, Kwikqy will provide TSS to the Customer during the Term in accordance with the TSS Guidelines. Certain TSS levels include a minimum recurring Fee as described on the Order Form. If the Customer downgrades its TSS level during any calendar month or other agreed period, Kwikqy may continue to provide TSS at the same level and for the same TSS Fees as applied before the downgrade for the remainder of that month or agreed period.

In the event the Customer is in need of assistance or has an enquiry with respect to the Services, the Customer is advised to first consult Kwikqy’s Help Center page (help.kwikqy.com). This TSS is freely available within the SLA of all Services.

If the information provided in Kwikqy’s Help Center does not provide the required assistance, the Customer may contact the Kwikqy helpdesk free of charge per the available digital communication, such as but not limited to Kwikqy Community or other digital ways of communication made available by Kwikqy. The Kwikqy helpdesk will do its best efforts to assist the Customer digitally as soon as reasonably possible following the requested support.

In general Kwikqy undertakes its best effort to solve such issue as soon as reasonably possible without giving any guarantee in terms of response and resolution times in the broadest terms, unless otherwise agreed between Kwikqy and the Customer in an optional SLA.

Any costs related to unjustified complaints and/or investigations, will be invoiced to the Customer.

More information on the TSS can be found in the TSS guidelines.

9. Confidential Information.

9.1 Obligations. The recipient will only use the disclosing party's Confidential Information to exercise the recipient’s rights and fulfill its obligations under the Agreement, and will use reasonable care to protect against the disclosure of the disclosing party's Confidential Information. The recipient may disclose Confidential Information only to its Affiliates, employees, agents, or professional advisors ("Delegates") who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that its Delegates use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement.

Confidential Information includes, but is not limited to:

(a) Customer Data. Every Customer is obliged to treat Customer Data as confidential and furthermore should ensure that any third party to whom he grants access to an Admin Account or End User Account, is bound to the same obligation.

(b) Cooperation. All information (including among others of financial, commercial, legal, fiscal, social, technical and organizational nature, business and trade secrets, business partner, customer and supplier data, employee data, personal data, programs, source codes, computer programs, computer code, modules, scripts, algorithms, features and modes of operation, inventions (whether or not patentable), processes, schematics, testing procedures, software design and architecture, design and function specifications) shall be considered confidential and be treated by each party with the utmost secrecy. More specifically the recipient shall:

Solely use the confidential information for its own account and under the utmost secrecy;
Not use, reproduce, or allocate the confidential information in any manner or for any other purpose than the (possible) cooperation between parties;
Not engage in, nor authorize others to engage in, the reverse engineering, disassembly or the decompilation of any of the confidential information;
Not derive any commercial benefit from the confidential information;
Not divulge, disclose or make the confidential information, of which it has knowledge, available to any third party, without the express written consent of the party whose information is to be disclosed;
Disclose such confidential Information only to those employees who need to know such information within the framework of the (possible) cooperation between parties, and the recipient certifies and warrants that these employees have previously agreed, as a condition to employment, to be bound by terms and conditions substantially similar to provisions applicable to the recipient under these Terms of Service.

The obligations as determined are not applicable to the following information:

Information, which is publicly available, publicly spread and/or known by the general public at the time of its communication;
Information which is obtained in a lawful manner by the recipient on a non-confidential basis from any party other than the disclosing party, whereby such third party is at its turn not bound by any confidentiality agreement with the disclosing party;
Information which disclosure/announcement is required by law or by a court or other government decision (of any kind). Where possible, the recipient shall, prior to any disclosure/announcement, discuss the scope and manner of such disclosure/announcement with the disclosing party.

This obligation of confidentiality applies during the cooperation between the respective parties and will remain in full force and effect for an unlimited period even after the termination of the cooperation, for any reason whatsoever.

The disclosing party shall remain at any moment the sole owner of its confidential information. Except as expressly set forth in this Agreement, nothing in these Terms of Service shall grant to the recipient any rights to or interest in the confidential information, nor will any implicit licenses be granted.

Notwithstanding the confidentiality obligation set out above, Customer explicitly grants to Kwikqy the right to use and/or commercialize any idea, input, suggestion, enhancement request, recommendation, correction or other feedback received from the Customer, which may serve to improve and/or expand the Services. The Customer acknowledges that any confidentiality agreement signed between the parties, shall prevail.

9.2 Required Disclosure. Notwithstanding any provision to the contrary in this Agreement, the recipient or its Affiliate may also disclose Confidential Information to the extent required by or in applicable Legal Procedures; provided that the recipient or its Affiliate uses commercially reasonable efforts to (a) promptly notify the other party before any such disclosure of its Confidential Information, and (b) comply with the other party's reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (a) and (b) above will not apply if the recipient determines that complying with (a) and (b) could (i) result in a violation of Legal Procedures; (ii) obstruct a governmental investigation; or (iii) lead to death or serious physical harm to an individual.

9.3 Public API. Kwikqy provides a public API connection to the Kwikqy Services. The Customer recognizes that providing the connection key known as ’API key’ to a third party, means providing unlimited access to the Kwikqy Services, including Customer Data and financial information, in the broadest terms. Exact availability of access can be found at help.kwikqy.com.

To provide additional security, the Customer has the option to whitelist IP addresses to connect to Kwikqy Services. Kwikqy strongly advises to use this optionality where possible, to ensure additional security. The Customer indemnifies Kwikqy from any liability when using the public API connection.

In the event of violation of any provision in Article 9 as well as in the event of violation of any intellectual property right of Kwikqy, Kwikqy will forfeit from the Customer and/or Reseller, without further notice of default and/or court intervention being required, a fine of € 500,000.00 (five hundred thousand euros), per violation and € 100,000.00 (one hundred thousand euros), per day or part of a day that the violation continues, immediately due and payable, without prejudice to Kwikqy's right to claim compensation for higher damage.

10. Term and Termination.

10.1 Agreement Term. The term of this Agreement (the "Term") will begin on the Effective Date and will continue until the Agreement is terminated or not renewed as stated in this Section 10 (Term and Termination).

10.2 Renewal.
(a) With a Flexible Plan. Order Terms for the Flexible Plan “Pay as you Go / Pay per Usage (PPU)” are 1 day. At the end of each day, the Order Term will automatically renew for another day, unless canceled by Customer via the Admin Console.

(b) With a Monthly-Term Plan. Order Terms for the Monthly Plan are 1 month. At the end of each Order Term, the Services will automatically renew for another month, unless canceled by Customer at least 14 calendar days before the end of the Term, via the Admin Console.

(c) With a Quarterly/Fixed-Term Plan. Order Terms for the quarterly Plan are 1 quarter (3 months). At the end of each Order Term, the Services will automatically renew for another quarter, unless canceled by Customer at least 1 month before the end of the Term, via the Admin Console.

(d) With an Annual/Fixed-Term Plan. Order Terms are 1 year. At the end of each Order Term, the Services will automatically renew for another year, unless canceled by Customer at least 3 months before the end of the Term, via the Admin Console.

(e) Multiple year Plan/ Variant Term. Order Terms are 1 year. At the end of each Order Term, the Services will automatically renew, unless canceled by Customer at least 6 months before the end of the Term, via the Admin Console.

(f) Generally. The Customer may use the Admin Console to adjust the number of End User Accounts to be renewed. The Customer will continue to pay Kwikqy the then-current Fees for each renewed End User Account unless Customer and Kwikqy mutually agree otherwise. If either party does not want the Services to renew, then it must notify the other party to this effect within the cancellation period for each Order Term, and this notice of non-renewal will take effect at the end of the then-current Order Term. Otherwise the Term will be renewed for another period of the same Term. The Customer is then obligated to pay that full Term, regardless of the intention of using the Services.

10.3 Termination for Breach. To the extent permitted by applicable law, Kwikqy may terminate this Agreement immediately on written notice, without judicial intervention or notice of default if (a) the Customer is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice of the breach, or (b) the Customer ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.

10.4 Termination for Convenience. The Customer may stop using the Services at any time. Subject to Customer fulfilling all its financial commitments under an Order Form or otherwise under this Agreement (including payment of all Fees for the Order Term), the Customer may also terminate this Agreement for its convenience at any time on prior written notice.

10.5 Termination due to changes in Agreement. As per art 2 (b), should the Customer not agree within 30 days after notification of any amendments made by Kwikqy, and thus terminates the Agreement. Art 2 (b) applies to the Agreement, the Services and any other related changes by Kwikqy. No refund shall be granted by Kwikqy with regards to already paid advances and/or invoices.

10.6 Termination Due to Applicable Law; Violation of Laws. Kwikqy may terminate this Agreement and/or any applicable Order Form immediately on written notice if Kwikqy reasonably believes that (a) continued provision of any Service used by Customer would violate applicable law(s) or (b) Customer has violated or caused Kwikqy to violate any Anti-Bribery Laws or Export Control Laws.

10.7 Effect of Termination or Non-Renewal. If the Agreement is terminated or not renewed, then (a) all rights and access to the Services will cease (including access to Customer Data and financial data), unless otherwise described in this Agreement, and (b) all Fees owed by Customer to Kwikqy are immediately due upon Customer’s receipt of the final electronic bill or as stated in the final invoice.

10.8 Termination by Kwikqy. Without prejudice to any other right or remedy Kwikqy may have against the Customer, Kwikqy can terminate the Agreement at any time and without legal intervention in the event of exceptional circumstances which make it impossible to continue any professional cooperation between Kwikqy and the Customer.

The Customer agrees that among others the following circumstances should be considered as exceptional circumstances:
(i) If Kwikqy detects or has substantial reasons to assume that:

The Customer materially breaches any of the provisions of these Terms of Service. Insofar as this is still deemed useful, Kwikqy will first inform the Customer of the infringement and ask the Customer (i) to rectify the situation as well as (ii) to refrain from such a breach and, if possible, (iii) prevent such a breach or breaches from occurring in the future, and the situation has not been remedied within 30 calendar days after being notified. Kwikqy shall have the right to apply a fee with regards to this contractual breach.
The Customer uses the Services and/or Additional Products for unauthorized, illegal and/or inappropriate purposes; As well as Customer and/or Customer’s employee placing illegal text and/or imaging on the Website of the Customer.
The Agreement with the Customer is based on incorrect or false information of the Customer; or
The Customer ordered the Services and/or Additional Products for reasons that cannot be considered as objectively reasonable and acceptable.
the Customer (re)sells the Kwikqy Services and/or Additional Products in the broadest sense, and/or (freely) provides the Services to a third party, whereas the Customer does not have a Reseller Agreement with Kwikqy. The third party can request to become a Customer from Kwikqy directly or Kwikqy can make an offer to the third party become a Customer through a Premium Partner or Reseller.

(ii) If the Customer ceases its payments, files a declaration for bankruptcy, is declared bankrupt, enters into a liquidation or similar proceedings or is liquidated;

(iii) If the Customer commits an act of dishonesty, disloyalty or fraud with respect to Kwikqy or its Affiliates, the Services and/or Additional Products;

In the event of such termination by Kwikqy, notified by email, the Agreement will be automatically terminated without a period of notice or compensation and without prejudice to Kwikqy’s right to claim from the Customer an additional compensation.

(iv) Consequences of termination

(a) By the Customer, Kwikqy undertakes to deactivate the Customer Account within 2 working days -however not before the Term has ended- the Admin Account and the End User Accounts. Kwikqy shall use its best efforts to inform the Customer of the deactivation of the Customer Account in advance.
(a) By Kwikqy; Kwikqy shall (i) in its sole discretion, determine a period of time within which it will deactivate the Admin Account and End User Accounts and (ii) where appropriate, will inform the Customer of the possibility to export the Customer Data through the available basic export tools, within the timeframe mentioned in the notification.
(c) Kwikqy is entitled to refuse any request from the Customer to enter into a (new) Agreement with regard to the use of the Services.
(d) Upon termination of the Agreement, each party will cease use of and return all confidential information and proprietary materials of the other party.

Should the Customer have neglected to export the Customer Data before the Termination or the timeframe mentioned in the notification by Kwikqy, Kwikqy shall erase the data through ‘Soft Deletion’ and after a period of 6 months anonymize the Customer Data.

10.9 No Refunds. Unless expressly stated otherwise in this Agreement, termination or non renewal under any section of this Agreement (including the Privacy Policy) will not oblige Kwikqy to refund any Fees.

10.10 Export Customer Data. The Customer is required to export the Customer Data before Termination, or at least before deactivation by using the available basic export tools offered by Kwikqy. The Customer acknowledges and agrees that Kwikqy offers a basic export functionality for the regarding Services with the sole purpose of exporting basic customer data.

11. Marketing and Publicity.

11.1 Brand Features. The Customer may state publicly that it is a Kwikqy customer and display Kwikqy Brand Features in accordance with the Trademark Guidelines. Kwikqy may use Customer's name and Brand Features in online or offline promotional materials of the Services. Each party may use the other party’s Brand Features only as permitted in the Agreement. Any use of a party's Brand Features will inure to the benefit of the party holding Intellectual Property Rights to those Brand Features.

12. Representations and Warranties.

Each party represents and warrants that (a) it has full power and authority to enter into the Agreement, and (b) it will comply with all laws applicable to its provision, receipt, or use of the Services, as applicable.

13. Disclaimer.

Except as expressly provided for in the Agreement, Kwikqy does not make and expressly disclaims to the fullest extent permitted by applicable law (a) any warranties of any kind, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular use, title, non-infringement, or error-free or uninterrupted use of the Services and (b) any representations about content or information accessible through the Services.

14. Limitation of Liability.

14.1 Unless otherwise expressly represented or warranted in these Terms of Service and to the maximum extent permitted by applicable law, the Services as well as the Documentation and any other products or services provided by Kwikqy are provided on an “as is” basis. Kwikqy thus disclaims any and all other promises, conditions, representations and warranties – whether express or implied – including but not limited to any implied warranties of fitness for particular purpose, satisfactory quality, reasonable skill and care, system integration and/or data accuracy.

14.2 Furthermore, Kwikqy does not warrant that the Services will meet all of Customer’s requirements. Moreover the Customer has the possibility to (i) make use of the Trial (see Article 1.2) prior to becoming a paying Customer and (ii) request at all times (prior to becoming a paying Customer) further information from Kwikqy in this respect. Hence, the Customer declares to have been sufficiently informed about the content and the scope of the Services.

14.3.Without prejudice to the generality of the preceding section, Kwikqy does not guarantee that: (i) the performance of the Services will be uninterrupted or error-free nor that all errors and/or bugs will be corrected (within a reasonable time), (ii) the Services will be constantly available, free of viruses, in time and complete, or (iii) the information provided by the Services is complete, correct, accurate and non-misleading.

14.4 The intended use of the Services by the Customer, Administrator and/or End Users is determined under their full responsibility and at their own risk. Kwikqy cannot be held liable in any way, in the broadest terms, for any direct or indirect damage resulting from this intended use. Therefore, the Customer, Administrator and/or End User shall thus be solely responsible for any damage to its computer (programs), wireless devices and/or other equipment consequential to the Tool and Services.

14.5 Limitation on Indirect Liability. To the extent permitted by applicable law and subject to Section 14.10 (Unlimited Liabilities), neither party will have any Liability arising out of or relating to the Agreement for any (a) indirect, consequential, special, incidental, or punitive damages or (b) lost revenues, profits, savings, or goodwill.This limitation of liability also applies when Kwikqy has been specifically informed of the potential loss by the Customer;

Kwikqy shall neither be liable for

Damage to the property of the Customer caused by the Services
Defects that have been caused directly or indirectly by an act on the part of the Customer or a third party, irrespective of whether they are caused by an error or negligence;
Damage caused by using the Services for a different purpose than the purpose for which it has been developed or is intended by Kwikqy
Additional damage caused by continued use by the Customer, Administrator and/or End Users after a defect has been detected;
The loss or incorrect use of the Customer Data, unless this is solely due to Kwikqy’s fault;
Damage caused by non-compliance with any advice and/or guidelines that may be given by Kwikqy, which the latter always provides on a discretionary basis;
Damage caused by force majeure or hardship(art 17.5)

Furthermore, the Customer accepts that Kwikqy does not offer any guarantee that the Services comply with the regulations or requirements which apply in any legal area. Kwikqy can thus not be held liable for any subsequent changes of whatever nature in such law and/or regulations.

14.6 The Customer is deemed not to provide any (confidential) information (e.g. an Excel sheet with data, including Customer Data) nor any login data to any employee of Kwikqy in whatever manner and for whatever reason. If the Customer, contrary to the above, does provide any of such data to Kwikqy, the Customer acknowledges that it is acting entirely at its own risk. In such cases, Kwikqy cannot guarantee the same security and confidentiality with respect to the information provided conform Kwikqy standards and policies.

14.7 The Customer acknowledges that Kwikqy can only be held liable by the Customer, no third party, such as to whom the Customer Data relates, The Customer shall indemnify and/or hold harmless Kwikqy and any of its officers, directors, partners, employees and Affiliates from and against all claims of whatever nature that might arise from the existence, implementation, non-compliance and/or termination of these terms of service and which have been caused by his own negligence, fault or carelessness or by its Administrator and/or any of its Users.

Furthermore the Customer acknowledges its responsibility to inform Admin and End Users of the terms set out in this article and the other articles of the Terms of Services.

14.8 Limitation on Amount of Liability. Kwikqy’s total aggregate Liability for damages arising out of or relating to the Agreement is limited to the lower of the following two amounts: (i) the invoice value of the latest month related to the Services prior to the event creating the liability, or (ii) the maximum value of €500.

14.9. The liability shall in any case be limited to the liability mandatory under Dutch law.

14.10 Unlimited Liabilities. Nothing in the Agreement excludes or limits either party's Liability for:
(a) its fraud or fraudulent misrepresentation;
(b) its obligations under Section 13 (Indemnification);
(c) its infringement of the other party's Intellectual Property Rights;
(d) its payment obligations under the Agreement; or
(e) matters for which liability cannot be excluded or limited under applicable law.

15. Indemnification.

15.1 Kwikqy Indemnification Obligations. Kwikqy will defend Customer and its Affiliates using the Services under Customer’s Account and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from an allegation that any Service or any Kwikqy Brand Feature, in each case used in accordance with the Agreement, infringes the third party's Intellectual Property Rights.

15.2 Customer Indemnification Obligations. Customer will defend Kwikqy and its Affiliates and Exempt Persons providing the Services and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from (a) any Customer Data or Customer Brand Features or (b) Customer's or an End User's use of the Services in breach of the AUP or Section 5.3 (Restrictions).

15.3 Exclusions. Sections 15.1 (Kwikqy Indemnification Obligations) and 15.2 (Customer Indemnification Obligations) will not apply to the extent the underlying allegation arises from (a) the indemnified party's breach of the Agreement or (b) a combination of the indemnifying party's technology or Brand Features with materials not provided by the indemnifying party under the Agreement, unless the combination is required by the Agreement.

15.4 Conditions. Sections 15.1 (Kwikqy Indemnification Obligations) and 15.2 (Customer Indemnification Obligations) are conditioned on the following:

(a) Any indemnified party must promptly notify the indemnifying party in writing of any allegation(s) that preceded the Third-Party Legal Proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s) and Third-Party Legal Proceeding. If breach of this Section 15.4(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party's obligations under Section 15.1 (Kwikqy Indemnification Obligations) or 15.2 (Customer Indemnification Obligations) (as applicable) will be reduced in proportion to the prejudice.

(b) Any indemnified party must offer sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.

15.5 Remedies.
(a) If Kwikqy reasonably believes the Services might infringe a third party's Intellectual Property Rights, then Kwikqy may, at its sole option and expense (i) procure the right for Customer to continue using the Services; (ii) modify the Services to make them non-infringing without materially reducing their functionality; or (iii) replace the Services with a non-infringing, functionally equivalent alternative.
(b) If Kwikqy does not believe the remedies in Section 15.5(a) are commercially reasonable, then Kwikqy may Suspend or terminate Customer's use of the impacted Services. If Kwikqy terminates the impacted Services, then Kwikqy will provide a pro-rata refund of any unearned Fees actually paid by Customer applicable to the period following termination of such Services.

15.6 Sole Rights and Obligations. Without affecting any other termination rights of either party, this Section 15 (Indemnification) states the parties' sole and exclusive remedy under this Agreement for any third-party allegations of Intellectual Property Rights infringement covered by this Section 15 (Indemnification).

16. Resold Customers.

This Section applies only if Customer orders the Services through a Reseller under a Reseller Agreement as accepted by Kwikqy (such Services, "Resold Services").

16.1 Applicable Terms. For the purposes of Resold Services:

(a) the Customer will be a direct customer at Kwikqy
(b) Section 2 (Payment Terms) of this Agreement will apply;
(c) terms and conditions between Kwikqy and Reseller have been agreed in a Reseller Agreement for Resold Services to the Customer;
(d) Customer will receive any Services from Kwikqy;
(e) Any renewal(s) of the Services and/or any Order after the initial Term, will not qualify as Resold Services anymore.
(f) "Order Term," as it is used in the Agreement, means the period of time starting on the Services Start Date or the renewal date (as applicable) for the Resold Services and continuing for the period indicated on the then-current Reseller Order unless terminated in accordance with the Agreement; and
(g) "Services Start Date," as it is used in the Agreement, means either the start date described in the Reseller Order or, if none is specified in the Reseller Order, the date Kwikqy makes the Resold Services available to Customer.

16.2 Sharing Confidential Information. Kwikqy may share Customer Confidential Information with Reseller as a Delegate subject to Section 9.1 (Obligations).

16.3 Reseller as Administrator. At Customer’s discretion, Reseller may access the Customer’s Admin Console, Admin Account or End User Accounts. As between Kwikqy and Customer, Customer is solely responsible for (a) any access by Reseller to Customer’s Account or End User Accounts and (b) defining in the Reseller Agreement any rights or obligations as between Reseller and Customer with respect to the Resold Services.

16.4 Reseller Technical Support. Customer acknowledges and agrees that Reseller may disclose End User personal data to Kwikqy as reasonably required in order for Reseller to handle any support issues that Customer escalates to or via Reseller.

17. Miscellaneous.

17.1 Notices. Under the Agreement, notices to Customer must be sent to the Notification Email Address and notices to Kwikqy must be sent to legal-notices@kwikqy.com. Notice will be considered received after the Customer has received an automatic confirmation from Kwikqy with a unique Reference Number. The Customer is responsible for keeping its Notification Email Address current throughout the Term.

17.2 Emails. The parties may use emails to satisfy written approval and consent requirements under the Agreement.

17.3 Assignment. Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where (a) the assignee has agreed in writing to be bound by the terms of this Agreement, and (b) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.

If Customer assigns this Agreement to an Affiliate in another jurisdiction such that there is a change in the Kwikqy contracting entity as defined at kwikqy.com/en/legal/entities: (i) this Agreement is automatically assigned to the new Kwikqy contracting entity; and (ii) the applicable terms of service linked above, and not this Agreement, will apply from the moment of the assignment.

Agreements within Europe will be made with Kwikqy EMEA, other jurisdiction Kwikqy Connect, unless otherwise mentioned here: kwikqy.com/en/legal/entities.

17.4 Change of Control. If a party experiences a change of Control other than as part of an internal restructuring or reorganization (for example, through a stock purchase or sale, merger, or other form of corporate transaction), that party will give written notice to the other party within 30 days after the change of Control.

As exception to Art 17.4, the Customer explicitly consents to any Agreements for Services and/or Additional Products can be transferred by Kwikqy including all terms to a separate legal entity, investment company, (private) person or any third party, in the broadest terms.

17.5 Force Majeure/Hardship. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control, including acts of God, fire, natural disasters, epidemics, pandemics, terrorism, riots or war.

Including all circumstances that at the time of the conclusion of the Agreement were reasonably unforeseeable and unavoidable, and which prevent Kwikqy from performing the Agreement, or which would make the performance of the Agreement more difficult, financially or otherwise, than would normally be the case (including delays with or bankruptcy of third parties engaged by Kwikqy, shortage of staff, strikes, organizational circumstances,).

The aforementioned situations entitle Kwikqy to review and/or suspend the execution of the Agreement by simple written notice to the Customer, without being liable to pay compensation. Kwikqy shall be entitled to terminate the Agreement if the situation of force majeure and/or hardship lasts longer than two (2) months (Art 10).

17.6 Subcontracting. Kwikqy may subcontract obligations under the Agreement but will remain liable to Customer for any subcontracted obligations.

17.7 No Agency. This Agreement does not create any agency, partnership, or joint venture between the parties.

17.8 No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.

17.9 Severability. If any part of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.

17.10 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.

17.11 Equitable Relief. Nothing in this Agreement will limit either party's ability to seek equitable relief.

17.12 Governing law. All issues, questions and disputes concerning the validity, interpretation, enforcement, performance or termination of this Agreement shall be governed by and construed in accordance with Dutch law.

Any dispute concerning the validity, interpretation, enforcement, performance or termination of this Agreement shall be submitted to the exclusive jurisdiction of the courts where Kwikqy has its registered office.

17.13 Amendments. Except as stated in Section 2(b) (Modifications: To the Agreement), (c) (Modifications: To the URL Terms), or (d) (Modifications: To the Privacy Policy), any amendment to this Agreement after the Effective Date must be in writing, signed by both parties, and expressly state that it is amending this Agreement. For clarity, Kwikqy’s provision of an updated URL in place of any URL stated in this Agreement will not constitute an amendment to or modification of the terms of the Agreement.

17.14 Survival. The following Sections will survive expiration or termination of this Agreement: Section 3 (Price), Section 4 (Payment Terms), Section 7 (Intellectual Property Rights; Protection of Customer Data; Feedback; Using Brand Features within the Services), Section 9 (Confidential Information), Section 10 (Termination), Section 13 (Disclaimer), Section 14 (Limitation of Liability), Section 15 (Indemnification), Section 16.1 (Applicable Terms), Section 16.2 (Sharing Confidential Information) and Section 17 (Miscellaneous).

17.15 Entire Agreement. This Agreement sets out all terms agreed between the parties and terminates and supersedes any and all other agreements between the parties relating to its subject matter, including any prior versions of this Agreement. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly stated in this Agreement. The URL Terms are incorporated by reference into the Agreement. After the Effective Date, Kwikqy may provide an updated URL in place of any URL in this Agreement.

17.16 Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order (of decreasing precedence): the Order Form, the Privacy Policy, the remainder of the Agreement (excluding the URL Terms), and the URL Terms (other than the Privacy Policy).

17.17 Headers. Headings and captions used in the Agreement are for reference purposes only and will not have any effect on the interpretation of the Agreement.

17.18 Conflicting Languages. If this Agreement is translated into any language other than Dutch, and there is a discrepancy between the Dutch text and the translated text, the Dutch Translations or documents drawn up in a different language will at all times be regarded as a bonus for the Customer.Unless expressly agreed otherwise, the Customer acknowledges that the language of these Terms of Service will also be the working language in all commercial transactions with Kwikqy.

17.19 No Right of Withdrawal. The Customer renounces a right of withdrawal with regard to products and/or services purchased through the Internet, by email or phone, in the broadest terms.

The delivery of the Services- being the delivery of digital content- needs to be regarded as an exception to the right of withdrawal, considering the Customer’s (i) explicit consent that the delivery may take place and (ii) the acknowledgment of the Customer that he loses the right of withdrawal. Therefore the Customer can no longer make a claim to any right of withdrawal with regards to Services ordered through the Trial.

Do note that Kwikqy offers every potential Customer the possibility, prior to the conclusion of the Agreement, to use a free trial account for a certain period of time. By offering this Trial, Kwikqy thus offers more than it is required to by law. Professional Customers shall under no circumstances have a right of withdrawal.

17.20 Additional Security
The Customer agrees with Kwikqy monitoring violation of terms and policies on all its Services, log in attempts from Accounts and logged in Accounts, on a regular (on-going) basis, which could affect the ability to keep using Kwikqy.

18 Definitions.

Account: Customer's Kwikqy account credentials and correlating access to the Services under this Agreement.

Additional Products: Products, services and applications that are not part of the Services but that may be accessible for use in conjunction with the Services.

Additional Product Terms: the then-current terms stated on this page.

Admin Account: a type of End User Account that Customer (or Reseller, if applicable) may use to administer the Services.

Admin Console: the online console(s) or dashboard provided by Kwikqy to the Customer for administering the Services.

Administrators: the Customer-designated personnel who administer the Services to End Users on the Customer’s behalf, and have the ability to access Customer Data and End User Accounts. Such access includes the ability to access, monitor, use, modify, withhold, or disclose any data available to End Users associated with their End User Accounts.

Advertising: online advertisements displayed by Kwikqy to End Users, excluding any advertisements Customer expressly chooses to have Kwikqy or any of its Affiliates display in connection with the Services under a separate agreement (which for instance come from Measuring tools (Analytics) monitoring the use of all Kwikqy users including the End Users en which is the basis for personalized information, in the broadest terms, regarding among others the use of the Services and which could be used for online advertising.)

Affiliate: any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.

Anti-Bribery Laws: all applicable commercial and public anti-bribery laws, including the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010, that prohibit corrupt offers of anything of value, either directly or indirectly, to anyone, including government officials, to obtain or keep business or to secure any other improper commercial advantage. Government officials include: any government employees, candidates for public office, members of royal families, and employees of government-owned or government-controlled companies, public international organizations, and political parties.

AUP: the then-current acceptable use policy for the Services stated at https://kwikqy.com/en/legal/aup.

Authorized Representative: any party who can represent the Customer in broadest terms, with written authorisation to do so and if applicable has signing authority.

Brand Features: the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.

Communication: refers to any communication concerning the Services by Kwikqy to the Customer (and, where appropriate, to its related users) via its Website, social media, sms, email, the online customer environment, Kwikqy Community and/or via any other appropriate means of communication;

Confidential Information: information that one party (or an Affiliate) discloses to the other party under this Agreement, and that is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Subject to the preceding sentence, Customer Data is considered Customer's Confidential Information.

Control: control of greater than 50 percent of the voting rights or equity interests of a party.

Core Services: the then-current "Core Services" as described in the Services Summary, excluding any Third-Party Offerings.

Coupon: a credit made available by Kwikqy representing a (financial) value which the Customer can use for the use of Services and/or Additional Products. Unless otherwise agreed, the Coupon has a validity of 1 year maximum, and can be used once within the agreed timeframe.

Customer: Any natural or legal person, or anyone who orders and/or who has entered into an Agreement with Kwikqy on his own accord or on behalf of a legal person. Under the assumption that any natural person is considered of the age of at least 18 years old.

Customer Data: data submitted, stored, sent or received via the Services by Customer or its End Users.including any and all content, information and data – including personal data – including, but not limited to: prospects, business partners, clients and customers of the Customer, entered and uploaded by the Customer when using the Services.

Demo: a demonstration requested by the Customer, which Kwikqy can provide both online or on site.

Documentation: Any documentation provided by Kwikqy regarding the Services as well as the Website and including any documentation, tutorials, blogs or other materials available on the Website-or any other communication source- in the broadest terms.

Domain Name: the domain name specified in the Order Form or Reseller Order to be used in connection with the Services.

Email Address: the email address on the Account for use in connection with the Services.

End Users: the individuals who are permitted by Customer to use the Services and managed by an Administrator. For clarity, End Users may include employees of Customer Affiliates and other third parties.

End User Account: a Kwikqy-hosted account established by Customer through the Services in order for an End User to use the Services.

Exempt Persons: any employee, manager, director, partner or affiliate of Kwikqy, Kwikqy Connect, Kwikqy EMEA, Kwikqy Community and Kwikqy Technologies.

Fees: (a) the product of the amount of the Services used or ordered by Customer multiplied by the Prices or (b) the applicable fees for TSS, plus any applicable Taxes.

Guidelines for trademarks: the general terms for trademarks to be found at kwikqy.com/en/legal/brand-terms.

Help Center: the online knowledge database featuring the most common questions and answers for using Kwikqy and which is the first line of support.

High Risk Activities: activities where the use or failure of the Services would reasonably be expected to lead to death, personal injury, or environmental or property damage (such as the creation or operation of nuclear facilities, air traffic control, life support systems, or weaponry).

Indemnified Liabilities: any (i) settlement amounts approved by the indemnifying party and (ii) damages and costs finally awarded against the indemnified party by a court of competent jurisdiction.

Intellectual Property Rights: all patent rights, copyrights, trademark rights, rights in trade secrets (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world.

KWIKQY EMEA: the contracting Kwikqy entity offering the Kwikqy Services and Additional Products within Europe.

KWIKQY Connect: the contracting Kwikqy entity offering the Kwikqy Services and Additional Products outside Europe.

Legal Procedure: an information disclosure request made under law, governmental regulation, court order, subpoena, warrant, or other valid legal authority, legal procedure, or similar process.

Liability: any liability, whether under contract, tort (including negligence), or otherwise, regardless of whether foreseeable or contemplated by the parties.

License: a license to use the Services, linked to an Admin or End User Account. Any Account within Kwikqy needs a license to use and/or access the Services and/or Additional Products.

Measuring Tools/ Analytics: added measuring tools monitoring the use of all Kwikqy users including the End Users and which is the basis for personalized information, in the broadest terms, for user experience improvements and/ or for online advertising. As well as for overall improvements and monitoring (ab)use of the Services.

Notification Email Address: the email address(es) designated by Customer in the Admin Console.

OnlineTerms: collectively, the AUP, Privacy Policy, Service Specific Terms, SLA, and TSS Guidelines.

Order: an Order Form (including an Order Form for Upgrades) issued by Kwikqy and executed by the Customer, specifying the Services order by the Customer.

Order Form: an order form executed by Customer, or an order placed by Customer via a Kwikqy website, in either case specifying the Services Kwikqy will provide to Customer under the Agreement.

Order Term: the period of time starting on the Services Start Date or the renewal date (as applicable) and continuing for the period indicated on the Order Form unless terminated in accordance with this Agreement.

Other Services: the then-current "Other Services" as described in the Services Summary, excluding any Third-Party Offerings.

PPU: variable part linked to usage of the Services also known as “Pay as you Go / Pay per Usage”, whereby the Customer pays on the basis of the usage of the Services

Prices: the then-current applicable prices for the Services described at kwikqy.com/en/pricing (incorporated into the Agreement by this reference), unless otherwise agreed in an addendum or Order Form. Prices do not include Taxes.

Privacy Policy: the Kwikqy privacy statement kwikqy.com/en/legal/privacy.

Reference Number: a traceable case number used to track, handle and centrally store requests

Reseller: if applicable, the authorized unaffiliated third party reseller that acts as an intermediary in selling the Services to Customer.

Reseller Agreement: if applicable, the separate agreement between Kwikqy and Reseller regarding the Resold Services. The Reseller Agreement is independent of and outside the scope of this Agreement.

Reseller Order: if applicable, an Order Form (including an Order Form for Upgrades) issued by a Reseller and executed by Customer and the Reseller specifying the Resold Services Customer is ordering via the Reseller.

Resold Additional Products: the Additional Products the Customer has ordered via a Reseller.

Resold Services: the Services the Customer has ordered via a Reseller.

Services: the then-current Core Services and Other Services.

Service Specific Terms: the then-current terms specific to one or more Services stated at kwikqy.com/en/legal/specific-terms.

Services Start Date: either the start date stated in the Order Form or, if none is specified in the Order Form, the date Kwikqy makes the Services available to Customer.

Services Summary: the then-current description set out at kwikqy.com/en/legal/services-summary.

SLA: the then-current service level agreement(s) at kwikqy.com/en/legal/tss.

Soft Deletion: deletion of information/data and/or the entire Workspace, in the broadest terms. After a (maximum) term of 90 days, Customer Data will be anonymized.

StartUp: a starting company with a revolutionary idea, using new technology and focused on rapid growth, which qualifies according to the terms as stated in ‘Kwikqy for StartUps.

Support Request: a request or ‘case’ for technical support or any other question.

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