Terms and Conditions - Floynk

Article 1 General

1.1 The Floynk.com website and the online application (hereafter referred to as the “Service” of “Services”) are owned and operated by DigitX B.V., a Dutch company registered with the Dutch Chamber of Commerce under number 82240264, and headquartered at Jonkerbosplein 52, 6534AB, Nijmegen, Netherlands (hereafter referred to as “Floynk”, “we” or “us”). These General Terms and Conditions shall expressly apply to all use of the website and online application(s).

1.2 Visiting our website or using our Service shall constitute your full and unconditional acceptance of these General Terms and Conditions.

1.3 Floynk may change these General Terms and Conditions at any time. If the General Terms and Conditions are updated, we will send you notification and ask you to accept these the first time that you use the Service. You agree in advance that these terms and conditions and any changes are binding. If you do not agree to the General Terms and Conditions, you must refrain from using our Service.

1.4 We expressly reject the applicability of general terms and conditions of our clients.

Definitions General Terms and Conditions: these General Terms and Conditions, which shall apply to all Agreements, offers, quotations and the use of Services of Floynk B.V. and the applications and website of Floynk B.V. Service Provision: all the activities of Floynk for the purposes of execution of an Agreement, in all cases including maintenance and operation of the application and provision and management of online Interfaces. Agreement: the Agreement between the parties in which the number of Interfaces and the price of the Interfaces are agreed by means of the User Account. Account/User Account: the online environment on the website in which the Customer can indicate which Interfaces they wish to purchase and operate. Interface: an interface (API) forming part of the online application, allowing the user to share data and functionality with third parties. Customer/User: you, your company or representatives of a company, or a natural person, using the Service on the basis of these terms and conditions. Fault: an error in the Service resulting in the Service not functioning in accordance with the agreed Specifications or the Service otherwise not complying with the Agreement. New Version: a subsequent version of the Service with a considerable number of new or changed functionalities, whether or not released under a different name. Support: the provision of assistance through helpdesk staff in the event of Incidents, as well as advice on the use and the functionality of the Service. Specifications: a description of the functionality and operation of the Service. Update(s): a new release of the Service, in which Faults known up to that point have been remedied and/or limited improvement or expansion of the existing functionality has taken place.

Article 2 Service Provision

2.1 The Customer hereby places an order with Floynk to provide the Service on a subscription basis and will lend all its cooperation in this.

2.2 In order to use the Service, you are required to set up a user account (an “Account”) for the Service. You must keep all information and details of your Account and all security procedures giving access to your Account strictly confidential and you must not disclose these to third parties. We shall not be liable for misuse of the information in the broadest sense of the word. The Agreement shall come into force when you set up the Account and select the Interfaces you wish to use.

2.3 User Accounts are strictly personal and individual: you are not allowed to share a User Account with other persons. We have the right to disable any User Account, whether chosen by you or allocated by us, at any time, if in our opinion you have failed to comply with any of the provisions of these General Terms and Conditions.

2.4 If you are subscribing to the Service on behalf of a business, you declare to Floynk that you have the authority to commit said business and that your acceptance of these General Terms and Conditions will constitute acceptance by said business. You also agree that Floynk may use the name and logo of said business, as a customer of the Service, on the Floynk website and other promotional material.

2.5 Floynk may make generally available Update(s) or New Versions of the Service available.

2.6 Provided that you have complied with these terms and conditions, Floynk shall provide you with a limited, revocable, non-exclusive, non-transferrable, non-sublicensable right to access and use the Service. Floynk shall provide you with no other rights, implied or otherwise.

2.7 You may not use the Service to harm the Service. You must not:

(i) Damage, disable, overburden or impair the Service;

(ii) Resell or redistribute any part of the Service or access to the Service, including the sale or purchase of an Account;

(iii) Use or attempt to use any unauthorised means to modify, reroute or gain access to the service;

(iv) Use any automated process or automated service to use or access the Service, or to copy data from or upload data to the service, or to obtain (or attempt to obtain) other data from the Service, except for the data that we wish to make available to you.

Article 3 Availability

3.1 Making the Service available is an obligation to use best endeavours. Floynk aspires to maximum availability of the Service. Floynk aspires to an uptime of the application of 99.8%. Floynk does not warrant that the functional aspects of the Service are error-free, nor that the Service is continuously available, nor that the transmission of data from/to the Service takes place at a minimum speed or that the servers hosting the Service are free from harmful elements. Floynk does not warrant that the content associated or used in connection with the Service is free from errors, or that the use of such material will not breach third-party rights. Floynk reserves to right to correct any errors in the Service.

3.2 You acknowledge and agree that everything associated with the Service is provided ‘as is’ and ‘as available’ without any warranty, express or implied, including but without being restricted to implied warranties of merchantability, suitability for a particular purpose, title or non-infringement. Floynk does not give any warranties as to the accuracy, reliability, completeness or timeliness of the material in the Service or the results obtained from using the Service.

3.3 Floynk does not give any warranties regarding the operation and availability of the Service.

Article 4 Fault Resolution

4.1 Floynk shall provide a helpdesk that operates as a single point of contact for all Faults relating to use of the Service.

4.2 The costs associated with the resolution of Faults that are the result of improper use by the Customer or circumstances attributable to third parties other than the Customer (enlisted by the Customer) shall be borne by the Customer. The costs associated with resolving errors caused by existing/known Faults in the Service shall be borne by Floynk.

4.3 Floynk will provide the Customer with regular updates on the resolution of reported Incidents. The frequency of incident updates is dependent upon the priority of the reported incident.

4.4 The Customer will provide reasonable cooperation to allow Floynk to meet its obligations under Article 4. In the event of a Fault, the Customer will report this to Floynk immediately upon discovering it. If the Customer does not report a Fault immediately, it shall lose the right to free-of-charge remedying of existing/known Faults leading to new/other Faults, as referred to in Article 4.2.

Article 5 Data

5.1 The Customer agrees in advance that the data becoming available through use of the Service may be used at the aggregated and anonymised level by Floynk for statistical and commercial purposes.

Article 6 Updates and New Versions

6.1 From time to time Floynk will issue Updates for the purpose of maintenance and optimisation of the Service. Floynk shall not need any (written) agreement from the Customer to do so. The Customer acknowledges and accepts that Floynk may from time to time make available new versions of the Service.

6.2 Use by the Customer of the New Version shall constitute acceptance that the provisions of these General Terms and Conditions are also applicable to the New Version.

Article 7 Customer Cooperation

7.1 The obligations of Floynk under an Agreement on the execution of the Service, shall be without prejudice to the obligation of the Customer to set up, maintain and execute adequate procedures and control mechanisms, commensurate with the nature and extent of the interests associated with its use, in order to prevent or limit damage resulting from possible anomalies in the Service Provision. The Customer will ensure that its staff are adequately trained and informed with regard to the operation of the Service.

7.2 The Customer will in particular ensure that adequate information is provided to and contractual agreements are made with external users who, for example via the Internet, carry out activities without the actual intervention of an employee of the Customer, whereby use is made of the Service, regarding the risks associated with the use of an automated system for performing transactions and the services associated with this.

Article 8 Intellectual Property

8.1 All intellectual property rights, trademarks, logos, software and/or other materials, in all Services provided to the Customer under an Agreement shall remain with Floynk or its licensors. The Customer shall receive solely non-exclusive usage rights and authorisations for employment of the Service, software and website.

8.2 The intellectual property rights in Updates to the Service associated with activities carried out by Floynk shall accrue to Floynk, to the extent that these have not already accrued to someone else.

8.3 Floynk warrants that the granting of usage rights to the Customer as referred to in this Agreement does not breach any third-party (intellectual property) rights.

Article 9 Legislation

9.1 Floynk shall ensure that the Service Provision, when use commences, meets the relevant laws and regulations applicable in the Netherlands.

9.2 Floynk will process new provisions in the laws and regulations referred to in Article 9.1, or provisions made on the basis of these, to the extent that these are relevant for the Service Provision, so that the Service Provision continues to comply with these provisions.

9.3 The costs of adjustments to the Service Provision shall be borne by Floynk, to the extent that these are due to adjustments as a result of generically applicable provisions.

9.4 If the Customer places an order with Floynk to make adjustments to the Service Provision, for example to adapt the Service Provision to legislation specifically applicable to the Customer, Floynk will execute such order as additional work. Execution of the order will not start until the Customer has accepted a written offer prepared by Floynk for the activities to be performed under the order. The offer will state the number of man-days needed to make the adjustments. No charges will be made for preparing the offer, unless work involved in preparing the offer is so extensive that this cannot reasonably be expected of Floynk. In this latter case, Floynk will give the Customer an indication in advance of the costs associated with preparing the offer.

Article 10 Privacy and Security

10.1 If in executing the Agreement Floynk processes personal data on behalf of the Customer, then it does so as processor for the Customer and the Customer is and remains the controller. Floynk will discharge all its obligations resulting from the General Terms and Conditions and other relevant legislation and regulations in relation to the protection of personal data. The annex to these conditions of use shall constitute a processing agreement between Floynk and the Customer.

10.2 In the event of contradictions in relation to the protection of personal data between the processing agreement and these General Terms and Conditions, the processing agreement shall take precedence.

Article 11 - Term and Termination

11.1 Floynk may terminate your account at any time without notice for good cause including, but without being limited to, breach by you of your declarations, warranties or obligations under these Terms and Conditions of Use. Floynk may also suspend or terminate access to the Service if you have not used an account for ninety (90) or more consecutive days, in which case Floynk shall give at least seven (7) working days’ notice before such suspension or termination of the Account.

11.2 You may terminate access to the Service at any time, with or without reason and in accordance with the provisions of Article 12.7. Upon termination of your access to the Service your Account may be cancelled and closed or suspended and your user ID and password will be deactivated.

11.3 The cancellation or termination of your Account or the Service shall not release you from any payment obligations that may arise prior to such termination, or any other obligations under another agreement that has not been specifically terminated.

11.4 A party shall be entitled to terminate an Agreement with immediate effect (in full or in part) out of court by means of written notice, without any liability to the other party arising and notwithstanding any other right of the party invoking termination, if any of the following circumstances arises:

a. Bankruptcy proceedings are issued against the other party;

b. The other party is declared bankrupt;

c. The other party is granted a suspension of payments (temporary or otherwise);

d. The other party’s company is closed down.

11.5 In all cases other than those mentioned in this article, a party shall only be entitled to terminate an Agreement if the other party has send a valid and as detailed as possible written notice of default allowing a reasonable time for remedying.

Article 12 Fees

12.1 The tariffs for the Services to be delivered by Floynk can be found on the website. All functionalities and Services are paid Services.

12.2 A monthly fee will be billed monthly in advance for use of the Service.

12.3 We may suspend or cancel your access to the Service if we do not receive payment on time. Suspension or cancellation of your access to the Service due to non-payment may result in loss of access to and use of your Account.

12.4 For payment of the costs of the functionalities that are provided via the Service, you are requested to indicate a method of payment when you sign up for such Services. You can access your account data and your payment method, and amend these, by contacting Floynk, or by changing these data in your company account.

12.5 You must provide Floynk with a payment method. In doing so:

(i) You declare that you are authorised to use the payment method indicated by you and that all payment information you provide is true and accurate;

(ii) You consent to Floynk billing you for the Services via your payment method; and

(iii) You authorise Floynk to bill you for the Services. We will bill you in advance for each billing period and on a recurring basis. A billing period is usually one month.

12.6 The subscription for the Services is automatically extended at each billing period. The costs for each billing period are based on the Services that you use in combination with other factors including, but without being restricted to, the number of interfaces made available to you. The calculation of the payment takes place automatically and may differ from one billing periods to another. For more information on tariffs, please visit https://Floynk.com. ;

12.7 To stop your subscription, you must cancel the Services before the next billing date to prevent being billed for the extension. You are not entitled to a refund for Services already paid for.

12.8 Floynk is entitled to change the agreed prices and tariffs at any time. The change will come into effect 30 days after notification. If the Customer does not wish to agree to this, the Customer must terminate the subscription for the Services within this time and make no further use of them.

12.9 The Customer is not entitled to suspension and/or offset in the broadest sense of the word.

Article 13 Billing and Payment

13.1 Billing and payment of all costs on the basis of an Agreement takes place in Euros.

13.2 If the Customer (i) has given reasonable instructions that Floynk has followed, or if the Customer (ii) does not provide the agreed cooperation in due time or in full, or (iii) the Customer notifies changes or events by virtue of which Floynk demonstrably has to perform more work, Floynk is entitled to additional compensation.

13.3 The Customer will settle invoices to Floynk within 30 days of receipt of the invoice, unless otherwise agreed.

13.4 If the Customer does not pay the amounts due on time, the Customer will be liable, without the need for a notice of default, to pay statutory commercial interest on the amount due. If following a notice of default the Customer continues to be negligent in settling the claim and does not validly dispute the invoice, the claim may be escalated by Floynk, in which case apart from the total amount then due the Customer will also be required to settle in full costs incurred in and out of court, including all costs charged by external experts and legally determined costs, associated with the collection of this claim or the otherwise exercising of rights.

Article 14 Liability

14.1 The party defaulting with respect to the other party and/or acting unlawfully with respect to the other party, shall be liable to compensate the other party for losses incurred or to be incurred.

14.2 The liability under this article shall be limited for each event or combination of similar and related events to a maximum of 1 times the minimum applicable monthly amount with a maximum of EUR 1.000 (excl. VAT) and in any case to the maximum sum, if any, that the insurer actually pays out to the party concerned, disregarding any deductible.

14.3 The liability of Floynk for indirect or consequential losses in the broadest sense is excluded. Examples of this are lost profits or missed savings.

14.4 The parties can only claim for compensation of their losses as referred to in this Article if the injured party serves a notice of default on the party defaulting or acting wrongfully and the latter party does not proceed within the time allowed to comply or to rectify the illegal situation. The obligation to serve a notice of default shall be excluded if compliance or rectification is permanently impossible.

14.5 The limitation of liability of Article 15.2 is excluded if:

a. The loss is caused by an infringement of intellectual property;

b. The loss is caused by intent or gross negligence of the defaulting/wrongfully acting party;

c. The loss is due to third-party claims as a result of death or injury.

Article 15 Indemnities

15.1 Floynk undertakes to indemnify the Customer against third-party claims as a result of breach of intellectual property rights claimed by third parties concerning the services delivered to the Customer, unless such breach has occurred due to the actions of the Customer. The liability under this article shall be limited for each event or combination of similar and related events to a maximum of 1 times the minimum applicable monthly amount with a maximum of EUR 1.000 (excl. VAT) and in any case to the maximum sum, if any, that the insurer actually pays out to the party concerned, disregarding any deductible.

15.2 The Customer shall indemnify Floynk against all third-party claims relating to the processing of data provided by or on behalf of the Customer, including personal data. The Customer is responsible for the content of the data.

15.3 By using our Service you hold Floynk harmless and undertake to indemnify Floynk against all losses, damages, costs, liabilities and expenses (including, but without being limited to legal costs and any sums that Floynk on the advice of legal advisers of Floynk has paid to a third party to settle a claim or dispute) that Floynk has incurred or suffered as a result of a breach by you of these General Terms and Conditions.

Article 16 Third-Party links

16.1 The Service may contain links to, or allowing you to communicate with and use, other independent websites, products or services of third parties (“Third-Party Services”). Access to Third-Party Services is offered solely for your convenience. Third-Party Services are not under the control of Floynk and Floynk does not necessarily endorse the content, advertisements, products, services or other materials on or available through such Third-Party Services.

16.2 Your use of Third-Party Services may be subject to the conditions and privacy policy of the third party and may involve the disclosure and transfer of information by or through you to the third party. You should come to your own opinion on the use of and interaction with the Third-Party Services. You acknowledge and agree that Floynk is not responsible for the availability of Third-Party Services and that Floynk is not directly or indirectly responsible or liable for damage or loss caused or allegedly caused by or in connection with your use of or interaction with Third-Party Services.

Article 17 Force Majeure

17.1 In the event of force majeure affecting one of the parties, the obligations, except for payment obligations, under an Agreement shall be suspended while the situation of force majeure continues.

17.2 However, this suspension shall not apply to obligations unaffected by the force majeure and which had already arisen before the situation of force majeure occurred.

17.3 If the situation of force majeure has lasted three months, or as soon as it is established that the situation of force majeure will last longer than three months, either of the parties shall be entitled to terminate the Agreement early with immediate effect and out of court by serving written notice, with the proviso that such early termination shall no longer be possible once the obligation, the discharge of which was temporarily prevented by force majeure, is again discharged, or the nature and scope of the shortcoming does not justify early termination. In the event of early termination due to force majeure, the Customer must still pay the agreed price for the period, or in the event of advance payment the proportion of this still due for the period, before the situation of force majeure arose. Similarly, Floynk shall refund sums paid in advance relating to services that have not been delivered as a result of force majeure.

17.4 The sending of data and information via data communication lines such as telephone lines, cable or wireless connections, shall take place under the responsibility and at the risk of the party using the means of communication. If a party uses data communication lines, its risk shall be limited to warranties and liabilities that Floynk gives and covers in this regard, unless due to the demonstrably wrongful acts of one of the parties liability rests with the responsible party.

Article 18 Confidentiality

18.1 The parties give a mutual undertaking to prevent confidential information of (one of) the parties coming to the knowledge or into the possession of third parties. This shall not apply if the disclosing party can demonstrate that certain information is already in the public domain or was in its possession, other than through a breach of this confidentiality undertaking.

Article 19 Other Provisions

19.1 If one or more of these provisions in an Agreement is invalid, in breach of the law or unenforceable, this shall not affect the validity of the other provisions. The parties shall negotiate in good faith a new provision to replace the invalid or unenforceable provision, which is formulated as closely as possible to the invalid or unenforceable provision.

19.2 Notices to be served by the parties on one another shall be given in writing.

19.3 Any verbal undertakings and agreements shall not be effective unless confirmed in writing by a party.

19.4 The non-exercise by a party of any right or non-application of any recourse shall not imply the waiving of that right or of that recourse.

19.5 Provisions which are of a nature to endure beyond the ending or termination of an Agreement shall remain.

19.6 In the event of termination, the parties exclude any obligations to undo.

Article 20 Dispute Resolution and Applicable Law

20.1 The court of the judicial district of Arnhem, Netherlands, shall have exclusive jurisdiction over any disputes between the parties relating to the present Agreement.

20.2 This Agreement is subject to Dutch law. The parties declare that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

DigitX BV Jonkerbosplein 52, 6534AB Nijmegen KvK-nummer: 82240264 E-mail: info@floynk.com Website: https://www.floynk.com