General Terms and Conditions

Licensing and Service Terms - Appical Mobile Learning Platform

Version 1.4. January 2017

partner-program

1. Definitions

Admin-user Licence An optional User Licence for one person to use the Web Editor and thereby change settings and Customer Details in the Application.
Other providers of Support Services A third party which is not affiliated with Appical and which has been authorised by Appical to provide the Customer with Support Services for the Application.
Other suppliers The App distribution parties and suppliers of supported devices.
App distribution party The third party which manages and controls the technical gateway and the distribution mechanism for loading End User apps on the relevant Supported Devices (like Apple for the loading of apps on iPads and iPhones).
Appical Appical B.V., registered office in Amsterdam (the Netherlands), registered with the chamber of commerce under number 54038502, VAT identification number 851129158B01.
Appical content All details, content, logos, information and materials which are available via the Services, with the exception of Customer Details.
Application The Appical Mobile Learning Platform, which is Appical’s own software solution, which can be used to train personnel, e.g. for the ‘onboarding’ of new employees. The platform consists of the End User app and the server software.
Services The licence granting for the Application and making available via the public Internet of the Application for use by the Customer on Supported Devices, as well as the provision of the related Support Services and any Support Services of which provision has been agreed in an Order.
Services Description Appical standard product description of the Services, encompassing the general specifications of the Services and the applicable technical and operational terms of use of these Services will be notified by Appical to the Customer in writing (by e-mail) at least 30 days before the date of change.
Service Period The term specified in clause 10 during which Appical will continue to make the Services available to the Customer and the Customer’s Users.
End User app The part of the Application which must be downloaded by the Customer and installed on a Supported Device to enable a user to use the Services via this Supported Device.
User Person whom the Customer enables to make use of the Services.
User account Account for a user in the server software in which the user statistics relating to the relevant user are recorded. The user account is personal to the relevant user and may not be transferred to other persons, nor is it permitted that it is used by other persons.
User licences Individual User licences and Admin User licences (also called Super-User licences).
Individual User licence A licence which gives the Customer the right to allow one individual user to use the Application.
Customer The party who has accepted or been offered one or more Orders for the purchase of User licences and/or Support Services of Appical.
Customer Details All details and information, including, without limit, relating to logos of the Customer, input of the Customer in connection with the image, specifications of the Customer’s house style, employee details or other content which the Customer or the Customer’s Users furnish to the Services.
Personal details Only a user’s first name, surname and e-mail address will be requested. A photo is optional.
Supportservices The standard maintenance and support services which are provided by Appical with regard to the services as further specified in the Services Description.
Order An Order agreed by Appical and the Customer concerning the purchase by the Customer of User licences and/or Support Services of Appical.
Server software The back-office part of the Application that manages the Customer Details and is used to manage and monitor the use of the services by the Users. The server software is hosted and managed by Appical and made available via the Internet for use.
Support Assistance offered in the event of ambiguities regarding new and/or existing functionalities of /any technical issues on the platform. Appical provides support as an integral part of the service. Support can be given via a live-chat functionality on the Appical corporate website (www.appical.nl) as well as in the Appical Content Management System. During office hours in the Netherlands (09:00 a.m. – 06:00 p.m.) the support desk can be reached on 020 820 8706 or via support@appical.nl. FAQ are on www.appical.nl/support.
Terms These licence and service terms and conditions of Appical.
Web Editor Optional web interface with the server software via which the Customer can log in on the server software to change certain configuration settings and adjust specific aspects of the Customer Details himself.

2. Applicability

2.1. These Terms apply to the provision of Services and Orders by Appical to the Customer.

2.2. In the event a provision in these Terms is contrary to a provision in an Order, the provision in these Terms prevails, unless the Parties explicitly include in the provision in the Order that that provision prevails over the conflicting provision in the Terms.

3. Terms relating to app distribution parties

3.1. End user apps and all content appearing therein, must satisfy the regulations and restrictions which are imposed from time to time by the relevant App distribution parties. The Customer must see to it that all Customers details which he or his users include in the Application or furnish for inclusion in the Application, comply with these regulations and restrictions within a reasonable period of time. Appical will see to it that the Application and the Appical content comply with these regulations and restrictions.

3.2. Appical is not responsible or liable for a decision, refusal or approval by an App distribution party with regard to an End User app and/or content of a Customer. However, if the approval of the End User app is refused or revoked by the relevant App distribution party and Appical cannot have this decision reviewed within four (4) weeks after the original refusal and this is not caused by the Customer Details entered therein, Appical will as the only remedy credit the Customer, on his request, pro rata for all amounts paid or invoiced for that contract year for unused parts of the User licences.

4. Provision of the services

4.1. Appical provides the Services in accordance with the Services Description, on the condition that the Customer complies with these terms and purchases and pays for User licences for the use of the Services.

4.2. Essential changes in the features or specifications of the Services described in the Services Description will be announced by Appical at least thirty (30) days in advance by means of a written notification by e-mail or via the website.

4.3. If a change in the Services Description has an essentially negative effect on the Customer and the Customer does not agree to the change, the Customer must notify Appical thereof within thirty (30) days after receipt of the notice of the change. Appical will then discuss the change with the Customer. If after this discussion Appical decides to implement the change, despite the Customer maintaining his objections, the Customer can terminate the non-expired User licences at that time, in which case Appical will credit the Customer the fees paid for the period that has not yet expired for those User licences pro rata.

4.4. Appical will use reasonable endeavours to guarantee the timely availability and quality of the Services. Appical guarantees the timely, continuous, errorless availability and quality of the user interface as it also works offline. The content management system only works real-time, in the event the system is down the Customer will be informed about this within 4 hours. The up-time is within 2 to 8 hours. As soon as the problem has been resolved the Customer will again be informed within 4 hours.

4.5. Appical is entitled to temporarily suspend the Services if this is necessary to implement a change in the Services or to execute preventative or corrective maintenance activities with regard to the Services.  Appical will inform the Customer in due time in advance and in writing (by e-mail) regarding activities planned by Appical which will have an expected significant effect on the Services.

5. Terms and restrictions of licences

5.1. Only for the goal of the use of the Services in accordance with these Terms, will the Customer be granted a non-exclusive, non-transferrable licence, which cannot be sub-licensed, for the duration of the Service period to gain access, for the Customer’s own internal business purposes, to and make use of the Services for the number of User licences that the Customer has purchased and to thereby support his pre- and onboarding process. The Customer may only make the use of the Services under this licence possible for Users who are an employee or freelancer of the Customer, unless explicitly otherwise agreed in the relevant Order. Customer also means the legal entities connected with the Customer’s parent company as referred to in Section 2:24 Dutch Civil Code (DCC).

5.2. Every User account is personal for the User to whom the account is allocated, and may not be used on behalf of another user.

5.3. The licence for the use of the Services encompasses the use of all standard features and all standard templates (‘feature pages’) which are available for the adjustment of the Application from time to time as described in the Services Description applicable at that time. Features and templates/feature pages for the adjusting of the Application (which are referred to as such in the Services description) are only included in the licence for the use of the Services if this is explicitly agreed in an Order.

5.4. Access to the Web Editor to change Customer Details and to configure advanced settings is a premium feature which is only available for use by the Customer, if the Customer purchases one or more Admin User licences.

5.5. The Customer may only make use of the Services, if he still possesses valid User licences for the use of the Services. User licences may not be transferred to third parties, nor may they be used on behalf of third parties.

5.6. The Customer is not permitted, either directly or indirectly:

  1. to subject the Services or the Application to reverse engineering, to decompile it, to disassemble it or to attempt in some other way to determine the source code or underlying ideas or algorithms of the Services or the Application;
  2. to change or translate the Services or the Application or create derivative works based thereon;
  3. to lease, distribute, sell, re-sell, allocate or in some other way transfer rights to the Services or the Application;
  4. to use the Services or the Application for time-sharing or service bureau purposes or to use them in some other way on behalf of a third party;
  5. to remove notices of property rights of the Services or the Application; or
  6. to publish an evaluation of the Services or the Application without Appical’s prior written consent or to disclose such to third parties.

5.7. When using the Services, the Customer may not breach the applicable laws and regulations, these terms, the licence and use restrictions imposed by the relevant other suppliers and insofar as Appical has informed the Customer thereof in time or the reasonable instructions for use included in the Services Description stipulate such and will see to it that his Users will not do so either.

6. Passwords and security

6.1. Appical can provide the Customer with passwords for User accounts and/or the Web Editor or can enable the Customer’s administrator to provide such passwords. The Customer is responsible for the confidentiality of all passwords used by his Users and by every other provider of Support Services designated by the Customer.

6.2. The Customer is fully responsible for all activities which take place under the Customer’s accounts in the Application for the Web Editor and/or the User accounts and for all costs made for the use of the Services to which access has been gained with the Customer’s passwords, unless such an activity is the result of a security leak for which Appical bears responsibility.

6.3. The Customer will immediately notify Appical of every unauthorised use of these passwords and of every breach of the security that the Customer has knowledge of.

7. Obligations of the customer

7.1. The Customer is responsible for the acquisition and the maintenance of all computer equipment and software and communication equipment (including the Supported Devices) which are necessary for access and the use of the Services, for the installation and updating of the End User app on the Supported Devices, and for the payment of all costs of third parties which are incurred during the use of the Services.

7.2. The Customer must immediately notify Appical of disruptions in the Services. The Customer must provide all desired cooperation to an investigation of a disruption in the Services.

7.3. The Customer will notify Appical at least fourteen (14) days in advance of all expected peaks in or increases in his use of the Services, to prevent overloading the Services and/or the networks and systems of Appical’s suppliers. Appical does not have any responsibility for any disruption of the Services as a result of a default on the part of the Customer to give such prior notice to Appical.

8. Property rights

8.1. All of Appical’s intellectual property rights in, inter alia, Appical content, the Application and the Services lie exclusively with Appical or its licensors. All of the Customer’s intellectual property rights lie exclusively with the Customer or his licensors.

8.2. Appical acquires all intellectual property rights, with the exception of the Customer Details which remain the Customer’s property, which arise in the framework of the Services. These intellectual property rights will be transferred by the Customer to Appical in advance, in anticipation of the time that the intellectual property rights arise. This transfer is hereby accepted by Appical in anticipation of the time the rights arise.

8.3. The Customer hereby grants Appical a licence to use, reproduce, change, distribute and represent (to the Customer and Users) the Customer Details, with the exception of employee details insofar as necessary for provision of the Services.

9. Prices and payment for the services

9.1. The Customer must purchase User licences for the use of the Services. The User licences are subscription licences for which the Customer periodically owes subscription fees, as specified in the Order.

9.2. One-off fees which have been agreed in an Order, will be invoiced and must be paid upon signing of the relevant Order, unless otherwise stipulated therein. The subscription fees for User licences must be paid every year in advance. The subscription fees will be invoiced for the first year on the date when Appical first makes the Application available to the Customer for operational use.

9.3. If not all Customer Details are included in the Application at the time that the Application is made available to the Customer for the first time for operational use, this will not lead to a shifting of the starting date of the service period nor of the due date of the subscription fees for the first year.

9.4. Unless otherwise agreed in an Order, the subscription fee for User licences in the first year, and the options to extend 2x by 1 year, remain unchanged. After that the subscription price for User licences is determined by the price list for User licences applicable at that time, as notified by Appical to the Customer in writing. Every price increase for User licences for subsequent extensions will be announced to the Customer at least three (3) months in advance by e-mail.

9.5. Invoices for agreed fees must be paid by the Customer within thirty (30) days after the invoice date.

9.6. In addition to the agreed fees, the Customer will pay all applicable sales, use and other taxes or charges (excluding taxes levied over Appical’s income) which apply to the invoiced amounts and the Services. All prices are in euros, unless explicitly otherwise stipulated in the relevant Order.

9.7. Every amount owing that has not been received from the Customer on the due date, will (except with regard to costs in respect of which there is a dispute as to their being reasonable and in good faith) increased by the statutory commercial interest over the outstanding amount per month as of the due date of the relevant payment until the payment date. The Customer will also pay all costs (including reasonable legal costs) which are made to collect payments in arrears.

9.8. If the Customer is of the opinion that the invoice is incorrect, after presenting the invoice containing the disputed amount the Customer must contact Appical and the Customer will prepare a notice of default and send it to Appical whereby the payment term will be delayed until agreement has been reached on the relevant invoice.

10. Term and termination of the services

10.1. The service period for User licences starts on the date when Appical makes the Services available to the Customer for use for the first time by sending the Customer the necessary passwords to gain access to the Application and to use it and to download the End User app. (If on this date all Customer details have not yet been included in the Application and/or the agreed Support Services have not yet been delivered in full, this will not lead to a shifting of the starting date of the service period.) User licences will be automatically terminated upon the expiry of their first term as specified in the Order, unless one of the parties states in writing at least two (2) months before the expiry of the contract term that it wishes to continue the User licences.

10.2. The Customer can also decide on the extension date of the User licence rights to terminate a part of his User licence rights, provided the total number of User licences falls no lower than the minimum number of five (5) and subject to the reservation that Appical can revoke volume discounts, if such have been agreed between Appical and the Customer.

10.3. If the Customer orders additional User licences after the start of the service period, the service period of these additional User licences will end on the same date as the date that applies for the User licences purchased at first instance, so that the service period for all User licences always has the same end date.

10.4. Every Order automatically expires as soon as all Support Services have been provided in accordance with the relevant Order and/or all User licences have been terminated or expired.

11. Premature termination

11.1. Each of the parties can terminate the service period and all Orders by means of written notice, if:

  1. the other party has breached an essential condition of an Order and/or of these terms and has not rectified this breach at latest thirty (30) days after receipt of a warning from the non-breaching party in which the breach is precisely described;
  2. the other party has appointed a receiver for himself or his possession;
  3. the other party makes a transfer to a representative on behalf of creditors;
  4. proceedings are instituted by, for or against the other party under any bankruptcy, insolvency or debt relief legislation; or
  5. the other party is liquidated or dissolved.

11.2. If the Customer or Appical terminates an Order, the Customer is obliged to pay the outstanding balance for all Services provided before the termination, unless the Customer terminates an Order pursuant to clause 11.1.

11.3. After the effective date when the service period expires or is terminated, for whatever reason, either by the Customer or by Appical, the Customer’s right to use the services and the Application will immediately cease to exist, while the Customer during a period of fifteen (15) days has the opportunity to download Customer Details, insofar as these Customer Details can be downloaded separately from the Application and are not included therein.

12. LIMITED GUARANTEE

12.1. Appical guarantees that the Services under normal use by Users and under normal circumstances will work in accordance with the functions described in the Services Description furnished by Appical. Appical is not liable for malfunctions of the Services which are wholly or partly caused by Users, the Customer, the Customer’s equipment or network, other suppliers, other providers of Support Services unless they have been engaged by Appical or by force majeure.

13. LIMITATION OF LIABILITY

13.1. Notwithstanding Appical’s indemnification obligations, Appical’s total liability ensuing from or in any way connected with the Services or an Order will in no case amount to more than two and a half (2.5) million EUROS per incident and with a maximum of five (5) million EUROS per calendar year for the Services which have given direct rise to the claimed compensation, regardless of the legal basis on which such a claim is based.

13.2. Except for infringement by the Customer of the provisions in paragraph 5 or infringement by a party of the provisions in paragraph 15, both parties and their suppliers are in no case liable (a) for indirect, special, criminal or consequential damage, including, but not limited to, lost profit, operating losses or revenue loss, or (b) to third parties who demand compensation via the Customer, not even if Appical was informed in advance of the possibility of such loss.

14. INDEMNIFICATION

14.1. Appical indemnifies the Customer against infringements of intellectual property rights of third parties based on an allegation that the technology used to provide the Services (with the exception of Customer Details) infringes a patent, copyright, trademark or manufacturing or business secret in the US or Europe, and Appical will pay every final judgment against the Customer in such proceedings or agreed in a settlement, provided:

  1. Appical is immediately notified in writing of such claim or lawsuit;
  2. Appical or the person/agency appointed by Appical has the exclusive control over the defence and/or the settlement; and
  3. the Customer furnishes all information reasonably possible and provides all cooperation requested by Appical or the person/agency appointed by Appical.

Insofar as the use of the Services is judicially prohibited or Appical reasonably stipulates that the Services can be prohibited as a result of a claim of a third party, after consulting the Customer Appical can:

  1. on behalf of the Customer purchase the right to use the Services;
  2. replace the Services with other suitable products; or
  3. transfer the advance amounts paid by the Customer for unused Services or the affected part thereof to a following year, provided the Customer opts to extend the cooperation. If the Customer does not, Appical will repay the overpaid part of the advance amount.

Appical accepts no liability under this paragraph in other respects insofar as a claim or lawsuit is based on:

  1. use of the Services in combination with software or computer equipment which has not been delivered by Appical, which use would not have constituted an infringement in the absence of this combination;
  2. changes in the Services which have not been made by Appical, which use would have not constituted an infringement in the absence of these changes;
  3. use of the Services which is not in accordance with these terms; or
  4. an act or omission of the Customer for which the Customer is obliged to indemnify Appical in accordance with clause 14.4 below.

The Customer indemnifies Appical against, defends Appical against, or at his election will make a settlement for every claim or lawsuit of a third party which is based on a claim:

  1. ensuing from a failure of the Customer to use the Services in accordance with all applicable laws and regulations; or
  2. which is connected with or based on the Customer Details.

Appical will immediately notify the Customer of such claim or lawsuit and will furnish all information and provide all assistance which the Customer or the person/agency appointed by him reasonably requests.

15. CONFIDENTIALITY

15.1. Each of the parties agrees to be subject to a duty of confidentiality in respect of all non-public information of the other party, whether or not in writing, which in the course of the execution of an Order is announced by the other party and for which a party knows or should reasonably know that the announcing party deems it confidential (‘confidential information’).

15.2. The parties hereby agree that the confidential information includes the terms and conditions of all Orders and all discussions relating thereto. The receiving party may not disclose, use, pass on, furnish any confidential information or make any confidential information available to an entity, person or agency, except insofar as such is necessary in the framework of the performance of its obligations under the heading of the relevant contract, and it will take all measures which are reasonably necessary and suitable to preserve and protect the confidential information and the respective rights of the parties in this respect, whereby they at all times must observe at least a reasonable degree of care.

15.3. Each of the parties agrees to restrict the access to the confidential information of the other party to the employees or agents who require this access to perform the contract, and neither party will make confidential information available to another person or entity without the prior written consent of the other party, unless otherwise stipulated.

15.4. Confidential information does not include information which:

  1. at the time of announcement was common knowledge or becomes common knowledge in some way other than due to wrongful act or default of the receiving party;
    or
  2. the receiving party discloses information to a third party with the explicit written consent of the other party.

15.5. The disclosure of confidential information which pursuant to the law must be disclosed in conformity with a summons, demand, order or other judicial or government process, is not deemed an infringement of this paragraph, provided the receiving party immediately notifies the other party of such summons, order, etc., so that this party has the opportunity to obtain a prejudgment measure or to object to the disclosure in some other way.

15.6. After expiry or termination of the Service Period, for whatever reason, each of the parties will immediately return, on the written request of the other party, to the other party all copies of the confidential information of the other party or it will destroy such, depending on what the parties agree. All copies, notes or other derived materials relating to the confidential information, will be immediately retrieved or destroyed, as agreed, and such materials may not be kept or used by the receiving party in any form or for any reason.

16. Privacy

16.1. Appical and the Customer both undertake to strictly comply with the applicable privacy legislation when they deliver and use the Services.

16.2. Appical will only use the personal data which it receives in the framework of the services from the Customer and the Users (the ‘personal data’) for the provision of the Services, subject to the following use restrictions:

  1. Appical will only make this personal data available to third parties if and insofar as this is strictly necessary for the provision of the Services or upon instruction of a competent government agency.
  2. Appical will implement suitable technical and organisational measures to protect the personal data stored in the server software against abuse.
  3. Appical uses and processes personal data as a ‘processor’ under the direction and responsibility of the Customer as ‘data controller’ in accordance with the European privacy directive 95/46/EC and the implementation thereof in Dutch privacy laws and all other existing and future privacy legislation in the relevant jurisdictions.

16.3. It is the exclusive responsibility of the Customer to obtain all rights and consents which are required from Users for the gathering and use of data relating to Users in the framework of the Services.

16.4. Appical has the right to analyse the data processed with the Services, in order to improve the quality, functionality, reliability and effectiveness of the Services and to gather use and market statistics. This analysis will be executed in a strictly anonymised way whereby no data will be gathered which can be traced to specific persons.

17. General

17.1. The Order and these terms, together with all documents which have been included in these terms and the Order by means of reference, constitute the entire contract between the parties and this contract replaces all previous and current contracts between the parties with regard to the subject-matter hereof.

17.2. Each Order and these terms can only be changed or replaced by means of a written instrument signed by both parties. Standard terms of the Customer which are attached to or to which reference is made in a purchase order of the Customer or in a comparable document, are void and not valid and are hereby expressly rejected by Appical.

17.3. This contract is exclusively governed by Dutch law. The parties exclude the applicability of the provisions of the Vienna Sales Convention (‘United Nations Convention on contracts for the international sale of goods’).

17.4. All disputes between the Customer and Appical which ensue from or are connected with this contract will be resolved by bringing them before Amsterdam District Court and the proceedings will be held in Dutch.

17.5. Except when such is required by law, neither of the two parties nor their representatives nor a witness nor the arbitrator is permitted without the prior written consent of both parties to disclose the existence, the contents or the results of arbitration under the heading of the contract.

17.6. A request to award enforceable legal effect to the arbitral judgment can be presented to any competent court. The parties hereby waive the right to object that they may have at any time with regard to the bringing of an action which has been brought before such judicial instances, waive all claims that such action should take place in a less suitable forum and with regard to such action furthermore waive the right to object that such a judicial instance has no jurisdiction over the party.

17.7. If an action is started to resolve a dispute that arises between the parties with regard to the matters falling under this contract, the winning party in such action has the right to be reimbursed for its reasonable fees for attorneys, fees for expert witnesses and direct cash expenditure, in addition to all other forms of compensation to which the winning party may be entitled.