General Terms and Conditions
Facilitee

General Terms and Conditions ServiceApp B.V.

This Agreement is entered into by and between ServiceApp B.V. (“Facilitee”) and the Customer who subscribes to the Services (“Customer”).

Facilitee and Customer are collectively referred to as the Parties and individually as the Party.

Definitions
Subscription means the package of Units, as listed in the quote, that the Customer purchases to use the Service.

Subscription Period means the duration of the Agreement, commencing on the Effective Date, between Facilitee and the Customer.

Administrator(s) means individuals authorized by the Customer to access and use the Service on the Customer’s behalf, and who can grant other Users access to the Service on the Customer’s behalf (in principle, the Subscription includes one administrator account).

Service(s) means the online, cloud-based software application(s), modules, and content services that Facilitee provides to the Customer via the internet. The specific applications, modules, and content offered are described on the page https://facilitee.com/functions/.

Units means the number of (im)movable items registered by the Customer in the Service.

Additional Units means the number of additional Units the Customer adds to the Service during the Subscription Period, in addition to the Units already included in the Subscription.

Users are individuals authorized by the Customer to access and use the Service, and to whom the Customer has provided user identification and login credentials.

User Terms are the terms and conditions that Users agree to when using the Service (“Facilitee Web Application User Terms”). These also apply to the Customer and the Administrators.

Effective Date means the start date of the Subscription Period, as specified in the quote.

Customer Data means all personal data or information of natural persons, such as, but not limited to, tenants and employees, that the Customer provides to Facilitee or enters into the Service.

Malicious Code means viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, or programs.

Agreement means the relationship between the Customer and Facilitee, consisting of the quote, these general terms and conditions, the Terms of Use, and the Data Processing Agreement. In the event of a conflict between these documents, the following order of precedence applies, unless these documents explicitly indicate a different order of precedence: 1) the quote, 2) these general terms and conditions, 3) the Terms of Use, and 4) the Data Processing Agreement.

The Service
2.1 Service Provision. Subject to the terms of this Agreement, Facilitee will endeavor to make the Service available 24/7 to the Customer, its Administrators, and (other) Users via the internet during the Subscription Period, except for planned maintenance upon written notice of at least 6 hours in advance (and unplanned maintenance performed outside normal business hours). The Customer is responsible for ensuring that the equipment, software, and internet connection are working properly to access the Service.

If Facilitee provides any part of the Service free of charge, Facilitee will make every effort to implement that part as efficiently as possible and to make it available as often as possible. If Facilitee develops specific software for the Customer without compensation, Facilitee will make reasonable efforts to do so, but does not guarantee that it will be available promptly and/or at all times and/or will function without defects.

2.2 Customer Responsibilities. The Customer is (i) responsible for compliance with this Agreement by its Administrators and Users, (ii) responsible for using commercially reasonable efforts to prevent unauthorized access to or use of the Service and to immediately notify Facilitee of any such unauthorized access or use, (iii) responsible for the use and processing of Customer Data in accordance with applicable laws and regulations and Facilitee’s Privacy Policy, and (iv) obligated to use the Service only in accordance with the terms of this Agreement and applicable laws and government regulations.

If individual consent is required for the collection, use, transfer, or other processing of Customer Data, including but not limited to Customer Data subject to privacy laws and regulations, the Customer is solely responsible for obtaining such consent. If a User withdraws their consent or does not agree to the Terms of Use, the Customer must notify Facilitee within 48 hours, so that the User will be removed from the system.

The Customer will (a) not make the Service available to anyone Customers other than those authorized by the applicable Usage Limit, (b) not sell, resell, rent, lease, license, or otherwise make the Service available to third parties, (c) not interfere with the integrity or performance of the Service or any content therein, or (d) attempt to gain unauthorized access to the Service or its underlying systems or networks.

2.3 Third-Party CRM Applications. Customer understands and agrees that the Service does not include a license for any third-party CRM application.

2.4 Hosting Services. Facilitee or its hosting service providers will host the Service.

2.5 Additional Services. To the extent Customer requires additional products or services, such as customizations, program modifications or additions, new modules (which add new functionality), new product releases (which have different names and different functionality than the Service), professional services, or professional consulting services, Customer may—to the extent Facilitee offers such services—order additional products and/or services as mutually agreed upon by the Parties. Additional services (including, but not limited to, professional (consulting) services) may be provided by Facilitee or on behalf of third parties engaged by Facilitee, with mutual consent of the Parties, for additional fees.

Fees and Payment

3.1 Subscription Fees. The subscription fees payable for the Service are payable monthly in arrears, based on the Customer’s Subscription, including the number of Additional Units added to the Service in the preceding month. Unless otherwise stated in this Agreement, (i) the fees are shown and payable in euros, and (ii) paid fees are non-refundable. The Customer may add or remove Additional Units at any time, but the total number of Units may not be reduced beyond the initial Subscription amount.

3.2 Metering of Additional Units. Facilitee monitors usage of the Service using a license usage meter. If the Customer adds Additional Units to the Subscription at any time, (a) the number of Units will automatically increase by the number of Units added in the preceding month; (b) Facilitee will notify the Customer of the new total number of Units; and (c) Facilitee will invoice the Customer for the difference between the applicable subscription fees plus the price of the new Additional Units for the remainder of the Subscription Term (unless the Customer scales down the number of Units). For clarity, all renewals will be billed at the number of Units in effect at the end of the preceding Subscription Term. Facilitee reserves the right to adjust prices annually. Facilitee also reserves the right to change its prices at any time, offering the Customer the opportunity to terminate the Agreement within 30 days of becoming aware of the price increase if doing so would result in a price increase of more than 10%.

3.3 Expenses. The Client will reimburse Facilitee for all expenses incurred with the Client’s prior approval in carrying out the implementation or requested professional services, including but not limited to travel expenses, including meals, rental cars, and accommodations, professional and programming services that may be required, such as secondary employees and other experts, and external services such as programmers. Statements of eligible expenses, including receipts, will be provided to the Client along with the invoice to which they relate.

3.4 Invoicing and Payment. Fees will be invoiced in arrears in accordance with the agreed-upon Subscription. Fees are due fourteen (14) days after the invoice date. All fees must be transferred in euros to Facilitee’s bank account stated on the invoice. The Client must include the invoice number with each payment. If invoiced amounts are not received by Facilitee by the due date, Facilitee is entitled to charge 3% interest on the outstanding amounts from the date such payment was due until the date of payment. Notwithstanding any provisions to the contrary in this Agreement, and without limiting Facilitee’s remedies, the Client shall be liable to Facilitee for all reasonable costs, including but not limited to collection and legal fees, associated with Facilitee’s efforts to collect an overdue invoice. These costs amount to €375 or 15% of the final invoice amount, whichever is higher.

3.5 Suspension of Service. If any fees owed by Customer are thirty (30) days or more overdue, Facilitee may, without limiting its other rights and remedies, suspend the Service until such amounts are paid in full.

Intellectual Property Rights

4.1 Intellectual Property Rights. All intellectual property rights in and/or related to the Service (including the software application(s), modules, and content services) and the software and other materials made available to the Client are the exclusive property of Facilitee (and its licensors, if any). No rights are granted or transferred to the Client with respect to the Service, or the intellectual property rights therein, other than the usage rights granted to the Client in this Agreement and pursuant to mandatory law. The Client is granted a right to use the Service, which is non-exclusive, non-transferable, non-pledgeable, and non-sublicensable. The Client hereby accepts the right of use and will pay the agreed fee for it.

4.2 Restrictions. Customer shall not at any time, directly or indirectly, and shall not permit any Administrator or User to (i) allow any third party to access or use the Service except as permitted in these Terms and Conditions, (ii) copy, modify, remove or create derivative works based on the Service or the documentation accompanying the Service or this Agreement, (iii) copy, rent, lease, loan, sell, license, sublicense, publish, frame, mirror or otherwise distribute, reproduce or make public (any part of) the content of the Service or documentation, (iv) reverse engineer, disassemble, decompile any software component, decrypt, adapt or otherwise attempt to access the programming of the Service in whole or in part, or (v) access the Service for the purpose of (a) building a competitive product or service, or (b) modifying any content, features, functions or graphics of the Service. and/or Facilitee to copy, modify, or extract information from the Service (including mentioning Facilitee’s name).

4.3 Feedback. Facilitee has the right (but not the obligation) to use or incorporate into the Service any suggestions, improvement requests, recommendations, or other feedback from the Client, including Users, regarding the operation of the Service, without the Client being able to derive any rights from this.

4.4 Customer Data. The Client remains responsible for the data it enters into the Service’s systems, including Customer Data. The Client also ensures that the individuals whose Customer Data originates, such as tenants and employees, are informed in advance about the processing of their personal data through the use of the Service and, if necessary, obtains appropriate consent. Facilitee has the ongoing right to use and disclose all Customer Data in an anonymized, de-identified, or aggregated form (including, but not limited to, the number of records in the Service, the number and types of transactions, configurations, and reports processed in the Service, and performance results for the Service) (“Anonymized Data”) both during and after the Subscription Term, to, among other things, share best practices and other data insights with its customers and to otherwise improve the Service, but only so long as the Anonymized Data is not individually identifiable. Customer is responsible for all (i) Customer Data submitted or contributed to the Service by Customer or Users, and (ii) Customer’s use of such content, including, but not limited to, its legality, reliability, accuracy, and appropriateness.

Confidentiality

5.1 Confidential Information. “Confidential Information” means all confidential or proprietary information disclosed orally or in writing by one Party to the other that is designated as confidential or the confidential nature of which is reasonably apparent. Confidential Information does not include information that: (a) is disclosed through no fault of the receiving Party; (b) was in the rightful possession of the receiving Party prior to disclosure; (c) is lawfully disclosed to the receiving Party by a third party without restriction of disclosure or any breach of confidence; (d) is independently developed by the receiving Party; (e) is required to be disclosed by law; or (f) is anonymized, such as the De-Identified Data.

5.2 Protection of Confidential Information. Each Party agrees to (i) keep the other’s Confidential Information confidential for a period of three (3) years from the date of disclosure, (ii) exercise the same degree of care it uses to protect the confidentiality of its own Confidential Information of a similar nature (but in no event less than reasonable care), and (iii) not use or disclose such Confidential Information other than in connection with the performance of its obligations under this Agreement. Notwithstanding the foregoing, each Party may disclose the other’s Confidential Information to its employees or consultants or partners who need to know such Confidential Information in connection with the performance of this Agreement and who have agreed to be bound by confidentiality obligations similar to those in this Section.

5.3 Protection of Customer Data. Without limiting the foregoing, Facilitee will implement and maintain appropriate administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of Customer Data, as described in the Data Processing Agreement and its privacy statement, which can be found on Facilitee’s website.

5.4 Compelled Disclosure. The receiving Party may disclose the other Party’s Confidential Information if legally compelled to do so, provided that the receiving Party gives the other Party prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance at the other Party’s expense if the other Party wishes to contest the disclosure. If the receiving Party is legally compelled to disclose the other Party’s Confidential Information as part of a civil proceeding to which the other Party is a party, the other Party shall reimburse the receiving Party for its reasonable costs of compiling and providing secure access to such Confidential Information.

5.5 Termination Obligations. Upon expiration or termination of this Agreement, each Party shall: (a) immediately cease all use of the other Party’s Confidential Information; and (b) within ten (10) calendar days after expiration or termination, certify in writing to the other Party that it has permanently erased, destroyed, or returned to the other Party the Confidential Information, as well as all copies thereof on any media or in any form. Notwithstanding the foregoing, Facilitee may (i) retain Customer Data for a period of thirty (30) days to fulfill its obligations, (ii) retain and use anonymized data in accordance with Article 4.4; and (iii) retain personal data if required by applicable law, regulation, court order, or in the event of pending legal proceedings. Furthermore, Facilitee’s failure to return or destroy electronic copies of Customer Data automatically generated through data backup and/or archiving systems will not be deemed a violation of this Article, provided that Facilitee will not use such backups and such backups are subject to all confidentiality obligations set forth herein.

Warranties

6.1 Warranties. Facilitee is entitled to license the Service to the Customer, and to the best of Facilitee’s knowledge, the Service does not infringe any (intellectual property or other) rights of third parties. Facilitee does not guarantee that the Service is error-free or will function without interruptions. Facilitee will use its best efforts to correct errors (including programming errors, bugs, and other causes that cause the Service to malfunction, “Errors”) related to the Service within a reasonable period of time, provided the Customer has described the Error in question in detail and in writing. If a material Error remains uncorrected for sixty (60) days or more, with no concrete prospect of resolution in the foreseeable future, and the Error demonstrably causes the Customer serious adverse effects, the Customer is entitled to terminate the Agreement.

7. Indemnification

7.1 Facilitee Indemnification. In the event of a third-party claim, whether in or out of court (“Claim”), filed or initiated by a third party against the Customer alleging that the Customer’s use of the Service infringes that third party’s intellectual property rights, and claiming damages, Facilitee will indemnify the Customer from any damages finally awarded to the Customer by a court of competent jurisdiction or from any amounts agreed upon in settlement after consultation with Facilitee in connection with such Claim. Facilitee’s obligations under this paragraph shall apply only to the extent that: (a) the Customer promptly, but no later than five (5) days after becoming aware of the Claim, notifies Facilitee in writing of the Claim; (b) Facilitee, if Facilitee so requests, has full authority and control over the defense and all related settlement negotiations relating to the Claim; (c) Customer provides Facilitee (fully and expeditiously) with the assistance and information reasonably required to carry out the foregoing, and (d) Customer has fulfilled all its obligations under the Agreement in a timely and complete manner. Facilitee shall not have any obligation or liability under this section for a Claim if—or to the extent—it is caused by, or results from: (i) the combination, operation, or use of the Service by Customer with software or other materials not supplied by Facilitee, (ii) any modification of the Service by Customer, (iii) Customer’s continued (alleged) infringing activity after being notified of such activity or receiving instructions or an update that would have prevented the alleged infringement, or (iv) the acts or omissions of any person or entity other than Facilitee. Facilitee’s liability remains limited as described in Article 8 of these Terms and Conditions.

7.2 Infringement Resolution. If use of the Service under this Agreement infringes the rights of a third party, or Facilitee suspects that use of the Service infringes a third party, Facilitee may, at its sole discretion, modify the Service so that it does not infringe the rights of such third party, providing that the modified Service is substantially functionally equivalent to the Service, or, if such modification is not commercially feasible for Facilitee, terminate this Agreement without being liable to pay any compensation to the Client.

7.3 Indemnification by the Client. The Client agrees to indemnify Facilitee against any Claims filed or asserted against Facilitee by a third party alleging that the Client Data or any other information provided by the Client to Facilitee in connection with the Service infringes or violates the intellectual property rights, privacy rights, or other rights of a third party, and to hold Facilitee harmless from any obligation to pay damages ultimately awarded to Facilitee or amounts agreed upon in settlement in connection with such Claim. The Client’s obligations under this article apply only if: (a) Facilitee notifies the Client in writing of the Claim immediately, but no later than thirty (30) days after becoming aware of it, and (b) the settlement of a Claim does not take place without prior consultation with the Client by Facilitee, without prejudice to Facilitee’s right to settle fourteen (14) days after that consultation (regardless of the outcome). In this article, “Facilitee” also includes third parties engaged by it and/or its directors and employees.

7.4 Interruption of Service. Facilitee is not liable for any delay or interruption in the Client’s use of the Service, including any resulting damage, caused by a Claim falling under this article.

8. Limitation of Liability

8.1 Liability of Facilitee. Facilitee’s total liability for attributable failures to fulfill the Agreement or on any legal basis whatsoever, expressly including any failure to fulfill any warranty or indemnity obligation agreed with the Client, is limited as detailed in this article.

8.2 Direct Damage. Facilitee is only obligated to compensate direct damage, such as replacement costs, directly caused by the failure to fulfill its obligations under this Agreement, up to a maximum amount equal to the fees invoiced to the Client up to that point. If the term of the Agreement exceeds 12 months, the amount of compensation for damages will not exceed the amounts invoiced to the Client in the 12 months preceding the event giving rise to the damage. Under no circumstances will Facilitee’s liability for direct damage, on any legal basis, exceed the amount paid by the insurer for the claim, or, if the insurer has not paid compensation, an amount of EUR 5,000.

8.3 Indirect Damage Excluded. Facilitee is not liable for indirect damages such as, but not limited to, lost profits, incurred losses, lost savings, reduced goodwill, reputational damage, damage due to business interruption, damage resulting from claims by the Client’s customers, damage related to the use of third-party goods, materials, or software prescribed by the Client to Facilitee, and damage related to the engagement of suppliers prescribed by the Client to Facilitee.

8.4 Intent or deliberate recklessness. The exclusions and limitations referred to in Articles 8.2 and 8.3 shall not apply if and insofar as the damage is the result of intent or deliberate recklessness on the part of Facilitee’s management.

8.5 Notice of Default. Unless Facilitee’s performance is permanently impossible, Facilitee’s liability for attributable failure to perform the Agreement will only arise if the Client immediately notifies Facilitee in writing of the default, setting a reasonable period for remedying the default, and Facilitee continues to fail to fulfill its obligations after that period. The notice of default must contain a description of the default that is as complete and detailed as possible, so that Facilitee can respond adequately.

8.6 Obligation to Complain. Any right to compensation is always conditional upon the Client reporting the damage to Facilitee in writing as soon as possible, but no later than five (5) days after discovering it. Any claim for compensation against Facilitee will lapse by the mere passage of 12 months after the claim arose, unless the Client has already claimed compensation before the expiry of that period.

8.7 Restrictions for third parties. The provisions of this article, as well as all other limitations and exclusions of liability mentioned in these general terms and conditions, also apply to the benefit of all (legal) persons (and directors) engaged by Facilitee in the performance of this Agreement.

8.8 Client Liability. Any liability of the User towards Facilitee does not affect the Client’s liability. Facilitee reserves the right to sue all parties.

9. Duration and Termination

9.1 Duration of the Agreement. Unless otherwise specified, this Agreement commences on the Effective Date and is valid for the agreed duration. If no agreement has been made regarding the duration of the Agreement, it will be valid for 12 months (“Initial Term”). In all cases, the duration of the Agreement will be tacitly extended each time for a period of 12 months (“Extended Term”), unless either Party terminates the Agreement in writing with three months’ notice. If the Parties have agreed on the possibility of interim termination in the quotation, the Customer is obliged to reimburse 90% of the costs until the end of the Initial Term or the Extended Term (depending on the moment of termination).

9.2 Termination by Facilitee. If the Client fails to fulfill one or more of its obligations under this Agreement, or fails to fulfill them in a timely manner, and/or acts unlawfully towards Facilitee, including repeated violation of the Terms of Use, Facilitee is entitled to suspend its obligations or immediately terminate this Agreement, without prejudice to its right to compensation and any statutory obligations to give notice of default.

9.3 Suspension. Notwithstanding anything to the contrary in this Agreement, Facilitee may temporarily suspend the Client’s and/or an Administrator’s access to part or all of the Service if:

(i) Facilitee determines or reasonably suspects that:

(A) the Client’s use disrupts the Service or poses a security risk to Facilitee or any other customer or supplier of Facilitee;

(B) the Client, or any Administrator or User, uses the Service in violation of this Agreement; or

(ii) a supplier of Facilitee has suspended or terminated its relationship with Facilitee, as a result of which Facilitee is temporarily unable to provide the Customer with access to the Service. In such a case, Facilitee will endeavor to notify the Customer in writing of the suspension and provide updates regarding the (possible) resumption of access to the Service by the Customer.

9.4 Immediate Termination. This Agreement may be terminated immediately by either Party if the other Party ceases its normal business operations, is granted a moratorium, becomes the subject of bankruptcy (filing for bankruptcy), is liquidated, or terminated other than for the purpose of reorganization, reconstruction, or merger of companies. Facilitee is also entitled to terminate the Agreement immediately if a supplier of Facilitee terminates its relationship with Facilitee, as a result of which Facilitee can no longer reasonably provide the Client with access to the Service. In these cases, Facilitee is not obligated to refund any amounts already received or to pay any damages. In these cases, the right to access and use the Service also terminates automatically.

9.5 Termination of Use by User. If a User is denied access to the Web Application, a copy of the contents of the User’s account will be provided to the Client for its own records, at the Client’s request. If the Customer does not make such a request to Facilitee within four (4) weeks, Facilitee will delete the account and the associated data.

10. Sending Email Messages through the Service

10.1 Spam. Customer may not use the Service to send spam. As used herein, “spam” means (a) unsolicited commercial email sent to a recipient who has not provided their email address directly to the sender, or sent to a recipient who has no reasonable expectation of receiving email from the sender, or who has entered their email address on an approved list not to receive unsolicited communications, or (b) any email advertising unauthorized or illegal activities, or (c) any electronic message sent to email addresses provided by a third party. Customer assumes all liability for, and agrees to indemnify and hold harmless Facilitee from and against all third-party claims, damages, and other liabilities arising in connection with or as a result of sending spam through the Service. Nothing in Article 10.2 shall limit or affect the Customer’s general obligations as set out in Article 10.1 above.

10.2 Recipient Unsubscribe. All emails sent by or on behalf of the Customer through the Service must contain an embedded unsubscribe link. Clicking on unsubscribe links in the Service will mark a contact email address in the Customer’s database as an “Opt-Out” and prevent future emails from being sent to that contact email address. The Customer will delete all contacts who have chosen to unsubscribe via email within forty-eight (48) hours of receipt of the written request, or sooner if required by applicable law.

11. General Provisions

11.1 Force Majeure. Neither Party will be in default if the failure to fulfill any (warranty) obligation under the Agreement is caused by force majeure. Force majeure on the part of Facilitee shall be understood to mean, among other things, (i) the failure to properly fulfill obligations by Facilitee’s suppliers, (ii) defects in goods, equipment, software or materials or services of third parties prescribed to Facilitee by Client, (iii) government measures, (iv) power outages, (v) disruption of the internet, data network or telecommunications facilities, (vi) cybercrime, cyber vandalism, war and terrorism and (vii) general transportation problems. If the delay or non-performance by a Party continues for a period of sixty (60) days or more, the other Party may terminate this Agreement without any obligation to pay (damages) compensation.

11.2 Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.

11.3 Notices. Unless otherwise specified in this Agreement, all notices, consents, and approvals shall be given in writing and delivered to the addresses listed on the first page of this Agreement and shall be deemed given upon: (i) personal delivery, (ii) the second business day after overnight delivery, (iii) the first business day after sending by email, in each case with proof of receipt.

11.4 Severability or Invalidity of Provisions. If any provision of this Agreement is void or invalidated, the remaining provisions shall remain in full force and effect. The void or invalid provision shall be replaced by a new provision that most closely reflects the intent of the original provision.

11.5 Assignment. Customer may not assign, sublicense, or transfer this Agreement, the Service, any maintenance and/or support rights, or any rights or obligations hereunder without Facilitee’s prior written consent. Facilitee may terminate this Agreement upon written notice to Customer in the event of any such attempted assignment or sublicense.

11.6 Governing Law. This Agreement, and all disputes arising out of or related to it, shall be governed exclusively by Dutch law (without regard to its conflict of laws principles). The courts of Amsterdam, the Netherlands, shall have exclusive jurisdiction in the first instance to hear any dispute arising out of or related to this Agreement.

Version 02/2022