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General terms and conditions

GENERAL TERMS AND CONDITIONS POTOTYPE YOU

Version 2.2

January 2021

 

Table of Contents

Clause 1 – Definitions

Clause 2 – Applicability

Clause 3 – Conclusion of the Agreement

Clause 4 – Implementation of the Agreement

Clause 5 – Usage of the Application

Clause 6 – Prices

Clause 7 – Invoicing and payment

Clause 8 – Confidential information

Clause 9 – Information to be provided by the Client

Clause 10 – Term

Clause 11 – Early termination by Client

Clause 12 – Liability

Clause 13 – Force Majeure

Clause 14 – Intellectual Property Rights

Clause 15 – Personal data

Clause 16 – Applicable Law

Clause 17 – Final Provisions

 

 

Clause 1 – Definitions

In these general terms and conditions, the following definitions shall apply:

 

Agreement: All agreements between Prototype You and the Client, including the service agreement and the specific agreements with regard to access and use of the Application.

 

Application: The mobile application and/or the software program and/or the desktop software tool and/or the online environment with corresponding content which can be provided by Prototype You and that can be used to provide Services to the Client.

 

Client: The party (private individual or organization) that (wishes to) conclude(s) an agreement with Prototype You.

 

Intellectual Property Rights: All rights concerning intellectual property and related rights, including but not limited to: copyright, trademark rights, design rights, patent rights, tradename rights, database rights and knowhow.

 

Offer: Any offer by Prototype You to enter into an Agreement, at the request of Client or otherwise.

 

Parties: Prototype You and Client jointly.

 

Prototype You: Prototype You vof, established in The Hague, Chamber of Commerce (KvK)-number 76973557.

 

Services: All services provided by Prototype You as described in the Agreement, these general terms and conditions and on the website www.prototypeyou.nl.

 

Service Provider: Prototype You.

 

 

 

 

Clause 2 – Applicability

2.1. These general terms and conditions are applicable to all Offers, activities, Services, deliveries and Agreements made by or on behalf of the Service Provider, as well as any use of the Application.

2.2. Any terms and conditions of the Client, regardless of nature or reference, shall not apply, unless expressly agreed upon in writing.

2.3. Deviations must be expressly stipulated and agreed upon in writing, and shall be deemed to supplement, in so far as they do not replace the clauses of these general terms and conditions.

2.4. In the event that the Agreement in substance deviates from the content of these general terms and conditions, the provisions of the Agreement prevail.

2.5. These general terms and conditions shall also apply to Services for which Prototype You has fully or partially involved third parties or if Prototype You (partially) hires a third party for the execution of the Agreement.

2.6. Prototype You is entitled to amend or supplement these general terms and conditions at all times.

 

Clause 3 – Conclusion of the Agreement

3.1. All proposals and Offers are non-committal, unless otherwise agreed in writing. An Offer or proposal is valid for a maximum of 30 days, unless a different acceptance period is explicitly stated in the Offer of the Service Provider.

3.2. With the written confirmation of the Offer or proposal by the Client, the Agreement is deemed to have been concluded, unless an objection is made in writing by the Service Provider within five days of the confirmation being sent by the Client.

3.3. An Agreement is established exclusively between Prototype You and the Client. The effect of articles 7:404 and 7:407 section 2 of the Dutch Civil Code is excluded.

3.4. The Client cannot derive any rights from an Offer that contains one or more obvious clerical errors or mistakes.

3.5. Only in cases where the Client acts as a private individual and does not act in the exercise of a profession or business, a reflection period of 14 days from the moment of the conclusion of the Agreement applies. If the private individual wants to abandon the service within the 14-day period, he can indicate this by e-mail to Prototype You. Parties may agree that the Service will already be started during the reflection period. Such agreements count as explicit consent of the Client for the execution of the Service. In the event of dissolution within the 14-day cooling-off period, the Client must in any case pay for the work already performed.

 

Clause 4 – Implementation of the Agreement

4.1. Prototype You shall perform its Services to the best of its ability. Unless expressly provided otherwise, Prototype You shall not provide any warranty, undertaking or indemnity on the basis of which it may be held liable as to the quality, accuracy or outcome of its Services.

4.2. For the Service Provider, the Agreement contains an obligation to perform to the best of its ability and not an obligation to produce a certain result. In performing its activities, the Service Provider shall exercise the care of a prudent service provider, as referred to in Article 7:401 of the Dutch Civil Code.

4.3. Deadlines mentioned by the Service Provider are target dates and are not binding upon the Service Provider. If they are exceeded, the Client shall not be entitled to dissolve the Agreement or to any compensation.

4.4. Prototype You is entitled to engage third parties for the performance of an assignment. If Prototype You engages third parties for the execution of an Agreement, Prototype You is obliged to select these third parties carefully.

4.5. The Client shall ensure that the Service Provider can start the assignment in a timely manner. If the Client does not make the agreed information, data and/or facilities available on time, additional costs may be charged by the Service Provider.

4.6. If, during the execution of the Agreement, it appears that for a proper execution of the assignment it is necessary to change or supplement the activities to be performed, Parties will adapt the Agreement in a timely manner and in mutual consultation. If the change or addition to the Agreement has financial and/or qualitative consequences, the Service Provider will inform the Client of this in writing as soon as possible.

 

Clause 5 – Usage of the Application

5.1. The Agreement may provide that the Client may use the Application for the duration of the Agreement.

5.2. The Application offers functionalities, among other things, to the employees of the Client to support the achievement of personal learning objectives and the Application offers the Client insights and information with regard to employee development and commitment.

5.3. The Client is responsible for the purchase and proper operation of the infrastructure as well as for the deployment of sufficient (support) personnel and capacity required to (functionally) use the Application.

5.4. The Client is not permitted to use the Application in a way that causes or may cause damage to Prototype You and/or to edit or reproduce the content of the Application.

5.5. If the Client notices that the Application is being used in violation of the Agreement or these general terms and conditions, or if errors or malfunctions are noticed in the Application, the Client shall promptly notify Prototype You.

5.6. Prototype You is entitled to make modifications or improvements to the Application at any time. Prototype You is also entitled to (temporarily) interrupt access to the Application, among other things, to implement updates, without any liability on the part of Prototype You. Prototype You shall take into account the reasonable interests of the Client in the aforementioned circumstances.

5.7. Prototype You does not guarantee that the Application will be accessible at all times without interruptions or malfunctions. Prototype You shall not be responsible or liable for damages arising out of or resulting from the (temporary) unavailability or failure of the Application. Also, Prototype You is not responsible or liable for the loss of personal data of users due to actions of the user or errors in the server.

5.8. Prototype You is not responsible for the data that users process in the Application and / or possibly share with third parties both during the Agreement and thereafter, and Prototype You is not liable for any damages resulting therefrom.

 

Clause 6 – Prices

6.1. The prices stated on proposals, Offers and invoices of the Service Provider are in euros and exclusive of sales tax (VAT) and any other fees and government charges, unless explicitly stated otherwise.

6.2. Prototype You is entitled to pass cost-increasing factors that are within the Client’s sphere of influence and that arise after the conclusion of the Agreement on to the Client.

6.3. The Service Provider has the right to adjust the prices to be charged to the Client annually as of January 1st. Adjusted prices, rates and hourly fees will be communicated to the Client as soon as possible before the new prices become applicable.

 

Clause 7 – Invoicing and payment

7.1. Prototype You shall invoice after the Agreement has been concluded.

7.2. The Client shall pay the amounts due to Prototype You within 30 calendar days after the invoice date, unless Parties have made other arrangements in writing or another payment term is stated on the invoice. Payment deadlines are fatal deadlines.

7.3. The Client is not permitted to suspend any payments or offset any amounts due.

7.4. If the Client has not paid in full within the agreed period, the Client shall be in default without further notice of default being required. The Client shall in that case be obligated to pay both the statutory (commercial) interest and collection fees. The collection fees are 15% of the amount not paid on time. The Client must also compensate any additional damage on the part of the Service Provider.

7.5. As of the moment the Client is in default, the Service Provider has the right to suspend its obligations until the Client has fulfilled the full payment obligation. From the moment the Client is in default, any subsequent invoices or claims shall be immediately and fully due and payable without the requirement of a formal notice of default.

7.6. All claims Prototype You has against its Client shall become immediately due and payable if the Client – whether provisionally or not – is granted a suspension of payments, if bankruptcy is filed with regard to the Client, if the Client is placed under guardianship or if the Client dies, is in the process of liquidation or is dissolved, or if there is a ‘Schuldsaneringsregelingen Natuurlijke Personen’ (Debt Rescheduling Scheme for Natural Persons) or loses the free disposal of its assets in any other way.

7.7. If the Client refuses to cooperate with the Service Provider in the performance of the Services, the Client will still be obliged to pay the agreed price.

7.8. Notwithstanding the above, in the event that the Client does not meet its payment obligation, Prototype You is entitled to terminate the Agreement and/or suspend or terminate access to the Application, the online environment and/or the results of the service.

 

Clause 8 – Confidential information

8.1. Information provided or disclosed by one Party to the other Party, which the receiving Party should reasonably understand to be confidential information, shall be kept strictly confidential by the receiving Party.

8.2. The confidentiality obligations set forth in this clause shall not apply if the receiving Party can demonstrate that the information is not confidential because it was: i) already known to the receiving Party at the time it was provided by the providing Party, or ii) publicly known at the time it was provided by the providing Party. In addition, the confidentiality obligations shall not apply to information that i) becomes known through the actions of the providing Party ii) is lawfully received by the receiving Party from a third party, without being in breach of these confidentiality obligations, iii) was developed by the Receiving Party entirely independent of its disclosure by the providing Party, or iv) became publicly known with the consent of the providing Party.

8.3. Prototype You, its employees and/or third parties engaged by Prototype You shall keep the information provided by the Client confidential.

 

Clause 9 – Information to be provided by the Client

9.1. The Client shall make all information relevant to the performance of the assignment available to the Service Provider. The Client guarantees that this information is provided on time and truthfully.

9.2. The Client guarantees the accuracy, completeness and reliability of the documents and information provided to the Service Provider, even if these originate from third parties.

9.3. The Client will indemnify the Service Provider for any damage, in whatever form, arising from the failure to comply with the provisions of the first paragraph of this clause.

9.4. If and to the extent that the Client so requests, the Service Provider will return the documents in question.

9.5. If the Client does not make the requested data and documents available to the Service Provider in a timely or properly manner, causing a delay in the performance of the assignment, the resulting additional costs and fees will be borne by the Client.

 

Clause 10 – Term       

10.1. Unless otherwise agreed, the Agreement will be automatically renewed after the expiry of the initial term as stipulated in the Agreement, each time for a new period of one (1) year, unless one of the Parties terminates the Agreement towards the end of a current term subject to three (3) months notice.

10.2. Prototype You is at all times entitled to limit, suspend, withdraw or terminate its Services, including access to the Application, if the Client acts in violation of these general terms and conditions or the Agreement. Prototype You shall in such case not be liable for any damage on the part of the Client.

10.3. In the event of a failure to perform by a Party – where there is no serious breach – under this Agreement, where performance is still possible, the other Party may only terminate this Agreement if the Party in default has not yet fulfilled said obligation within 30 days after a written notice of default.

10.4. Either Party may also dissolve this Agreement, in whole or in part, with immediate effect and without notice of default being required if the other Party is granted a suspension of payments, a petition for bankruptcy is filed or granted, a petition for liquidation is filed with respect to the other Party or, if the other Party is liquidated other than for the purpose of reconstruction or merger of companies.

10.5. Prototype You is entitled to terminate the Agreement in whole or in part with immediate effect, without requiring a notice of default and without being liable to the Client, in the event of violation of clauses 5 (usage of the application), 14 (intellectual property rights) and / or 15 (personal data).

10.6. If Prototype You has already received due performance in execution of the Agreement at the time of the dissolution referred to in this provision, such performance and related payment obligations shall not be the subject to cancellation. Amounts invoiced on behalf of Prototype You prior to the dissolution in connection with the Services it has already duly performed or delivered in execution of the Agreement shall remain due in full and shall become immediately due and payable at the time of dissolution.

10.7. If the Agreement is terminated, for whatever reason, Prototype You retains the right to terminate (further) access to the Application. Also, rights granted to the Client will automatically end, and outstanding invoices will be immediately due and payable.

10.8. All rights and obligations which by their nature are intended to remain in force after termination of the Agreement will remain in force after termination of the Agreement. This applies, inter alia, to Clause 8 (Confidential Information) and Clause 14 (Intellectual Property Rights).

 

Clause 11 – Early termination by Client

11.1. If the Client terminates the Agreement early after its conclusion, there is no right to reimbursement of the amount paid or still owed by the Client to Prototype You.

11.2. If the Client terminates the Agreement early after the commencement of services, any claims Prototype You may have against the Client become immediately due and payable.

11.3. Termination of the Agreement by the Client is only possible in accordance with the provisions of Clause 10 of these general terms and conditions.

 

Clause 12 – Liability

12.1. Unless otherwise provided in the Agreement or elsewhere in these general terms and conditions, this provision describes Prototype You’s entire liability to the Client with respect to a breach of the Agreement and/or any other liabilities related to the Services.

12.2. Prototype You’s liability for an attributable breach of the Agreement or for any other reason is limited to compensation for direct damage up to a maximum of the amount that the Client paid to the Service Provider for the assignment from which the damage arose in the year in which the damage occurred.

12.3. Liability for damage other than that referred to in clause 12.2, including but not limited to indirect damage, consequential damage, fines, pure economic loss, loss of turnover, loss of profit, loss of goodwill, loss caused by interruption of business operations, reputational damage and immaterial damage is expressly excluded. The exclusions mentioned in clause 12 of these general terms and conditions will be inapplicable only if the damage is caused intentionally or by deliberate recklessness on the part of Prototype You.

12.4. Prototype You is not liable for direct damage caused (partly) because Prototype You in the event on which the liability is based, has assumed incomplete or inadequate information provided by or on behalf of the Client.

12.5. Unless fulfillment is permanently impossible, liability for attributable failure to fulfill the Agreement only arises if Prototype You is immediately declared in default in writing.

12.6. The Client is liable for all damage suffered by Prototype You as a result of actions by its employees or other persons involved who are given access to the Application and other materials of Prototype You, including but not limited to damage due to infringement of Intellectual Property Rights of Prototype You.

 

Clause 13 – Force Majeure

13.1. The Parties shall not be liable for any delay or failure in performance of the Agreement due to events beyond the reasonable control of the Party, including but not limited to, terrorism, earthquake, strikes, government action, riots, war, fire, epidemics, power outages and computer viruses.

13.2. If a force majeure situation occurs as a result of which the Service Provider is unable to meet its obligations, its obligations shall be suspended for as long as the Service Provider is unable to meet them. If this situation has lasted longer than 30 calendar days, Parties are entitled to dissolve the agreement in whole or in part in writing.

 

Clause 14 – Intellectual Property Rights

14.1. All intellectual property rights regarding the Application, software, (results of the) Services and all materials and information delivered by Prototype You to the Client, are held and owned exclusively by Prototype You. The Client only obtains the user rights explicitly granted in these general terms and conditions. Nothing in these general terms and conditions or in the Agreement shall constitute a transfer of Prototype You’s Intellectual Property Rights to the Client.

14.2. Subject to the terms and conditions set forth in the Agreement, Prototype You grants to the Client a non-exclusive, non-transferable, immediately revocable and limited license, without the right to sublicense, to use Prototype You’s Application, software and other materials for the term of the Agreement.

14.3. The Client is not permitted to sell, publish, rent, dispose of or make (access to) the Application available to third parties in any way or for any purpose other than as provided in the Agreement.

14.4. The Client is not permitted to edit or reproduce the Application, software or other materials delivered or made available to the Client by Prototype You.

 

Clause 15 – Personal data

15.1. Prototype You shall process the personal data provided by the Client in accordance with its privacy statement. The Client consents to the processing of the personal data as well as the personal data of its employees and other stakeholders.

15.2. The Client guarantees that the data subjects whose personal data has been provided have been informed about the processing of their data by Prototype You.

 

Clause 16 – Applicable Law

16.1. The Agreement and these general terms and conditions shall be governed exclusively by Dutch law.

16.2. All disputes or claims arising from or related to these general terms and conditions, the Agreement and / or its violation shall be submitted exclusively to the competent court in The Hague.

 

Clause 17 – Final Provisions

17.1. The Client is not authorized to transfer its rights and / or obligations under the Agreement, including any license, to a third party without the prior express written consent of Prototype You. Prototype You is entitled to transfer its rights and/or obligations under the Agreement, including any license, to a third party or to an affiliate of Prototype You, without requiring the Client’s consent.

17.2. If and to the extent that any provision of these general terms and conditions or the Agreement is declared void, invalid or non-binding, this shall not affect the validity of the other provisions. In such a case the Parties will consult with each other as soon as possible about a new provision, which will approximate the nature and purport of the old provision as closely as possible.