GENERAL TERMS & CONDITIONS

1 INTERPRETATION

1.1 Definitions:  In the Agreement, the following terms have the stated meaning:  

Agreement

Section A (Agreement and Key Details, including signature clauses) and Section B (General Terms).

Confidential Information

the terms of the Agreement and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the Agreement.  The Supplier’s Confidential Information includes Intellectual Property owned by the Supplier (or its licensors), including the Software.  The Client’s Confidential Information includes the Data.

Data

all data, content, and information (including Personal Information) owned, held, used or created by the Client that is stored using, or inputted into, the Services.

End Date

the end date set out in the Key Details.

Fees

the fees set out in the Key Details, as updated from time to time in accordance with clause 5.

Force Majeure

an event that is beyond the reasonable control of a party, excluding:

• an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care.

Goin B.V. Software 

the software owned by the Supplier (and its licensors) that is used to provide the SaaS Service.

Intellectual Property Rights

includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity.  Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.

Key Details

the Agreement specific details set out in Section A of the Agreement.

Objectionable

includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.

Payment Terms

the payment terms set out in the Key Details (if any).

Personal Information

has the meaning as defined in the GDPR

Related Services

any related service that the Supplier agrees to provide to the Client under the Agreement.

SaaS Service

The software as a service product that the supplier provides

Services

the SaaS Service and any Related Service.

Start Date

the start date set out in the Key Details.

Underlying Systems

the Goin’ Platform Software, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.

Website

the internet site at the domain set out in the Key Details, or such other site notified to the Client by the Supplier.

Year

a 12 month period starting on the Start Date or the anniversary of that date.

2 SERVICES

2.1 General:  The Supplier must use reasonable efforts to provide the Services:

1. in accordance with the Agreement and;
2. exercising reasonable care, skill and diligence; and
3. using suitably skilled, experienced and qualified personnel.

2.2 Non-exclusive:  The Supplier’s provision of the Services to the Client is non-exclusive.  Nothing in the Agreement prevents the Supplier from providing the Services to any other person or organization.

2.3 Availability:  

4. The Supplier will use reasonable efforts to ensure the SaaS Service is online and available.  However, it is possible that on occasion the SaaS Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure.  The Supplier will use reasonable efforts to publish on the Website and advance details of any unavailability.
5. Through the use of web services and APIs, the SaaS Service interoperates with a range of third party service features.  The Supplier does not make any warranty or representation on the availability of those features.  Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, the Supplier may cease to make available that feature to the Client.  To avoid doubt, if the Supplier exercises its right to cease the availability of a third party feature, the Client is not entitled to any refund, discount or other compensation.

2.3 Additional Related Services:  

6. The Supplier may, from time to time, make available additional services to supplement the SaaS Service.
7. At the request of the Client and subject to the Client paying the applicable Fees, the Supplier may agree to provide to the Client an additional Related Service on the terms of the Agreement.

3 CLIENT OBLIGATIONS

3.1 General use:  The Client and its personnel must:

8. not resell or make available the Services to any third party, or otherwise commercially exploit the Services.
9. The Client ensures that all data which the Supplier indicates is necessary of which the Client should reasonably understand that is necessary for the execution of the agreement, are available in a timely manner.

4 PUBLICITY

4.1 Publicity:  Supplier is entitled to use the Clients name, logo and achieved results for its publicity and or PR purposes. 

4.2 The supplier agrees to comply with any request by the Client to remove name and/or logo within 14 days. 

5 FEES

5.1 Fees:  The Client must pay to the Supplier the Fees.

5.2 Invoicing and payment:  

10. The Supplier will provide the Client with valid VAT tax invoices on the dates set out in the Payment Terms
11. The Client must pay the Fees:
    
    1.  within 30 days of receipt of invoice
    2. electronically in cleared funds without any set off or deduction.

5.3 Increases: 

12. The supplier may increase the Fees once each year, by giving at least thirty (30) days’ notice, based on the yearly Euro Area Inflation Rate. Fees updated under this clause are deemed to be the Fees listed in the Key Details.
13. If the Client does not wish to pay the increased Fees, it may refuse the new Agreement on no less than ten (10) days’ notice, provided the notice is received by the Supplier before the effective date of the Fee increase.  If the Client does not refuse the new Agreement in accordance with this clause, it is deemed to have accepted the increased Fees.

6 INTELLECTUAL PROPERTY 

6.1 Ownership:  

14. Title to, and all Intellectual Property Rights in, the Services, the Website, and all Underlying Systems is and remains the property of the Supplier (and its licensors).  The Client must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
15. Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains the property of the Supplier.  The Client grants the Supplier a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with the Agreement. 

6.2 Know-how:  To the extent not owned by the Supplier, the Client grants the Supplier a royalty-free, transferable, irrevocable and perpetual licence to use for the Supplier’s own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by the Supplier in the provision of the Services.

6.3 Feedback:  If the Client provides the Supplier with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):

16. all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by the Supplier; and
17. the Supplier may use or disclose the feedback for any purpose.

7 CONFIDENTIALITY

7.1 Security:  Each party must, unless it has the prior written consent of the other party:

18. keep confidential at all times the Confidential Information of the other party; 
19. effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
20. disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of clauses 7.1a and 7.1b.

7.2 Permitted disclosure:  The obligation of confidentiality in clause 7.1 does not apply to any disclosure or use of Confidential Information:

21. for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;
22. required by law (including under the rules of any stock exchange);
23. which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
24. which was rightfully received by a party to the Agreement from a third party without restriction and without breach of any obligation of confidentiality; or
25. by the Supplier if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that the Supplier enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 7.

8 WARRANTIES

8.1 Mutual warranties:  Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute binding obligations on the warranting party.

8.2 Supplier warranty: Supplier warrants that the Service does not infringe or otherwise violate any copyright, trade secret of any third party and, to Suppliers knowledge, when used for its intended use, does not infringe any patent of any third party. As Suppliers sole obligation, and Client’s sole remedy, for any breach of the foregoing limited Service warranty, Supplier shall: (a) procure for Client the right to use and access the infringing or potentially infringing portion(s) of the Service; or (b) replace or modify the infringing or potentially infringing portions of the Service with a non-infringing substitute otherwise materially complying with the functionality of the replaced system; or if (a) and (b) are not reasonably available in Suppliers reasonable opinion, (c) Supplier may terminate the Agreement in which case Client shall receive a refund of prepaid, unearned fees.

8.3 Limitation of remedies:  Where legislation or rule of law implies into the Agreement a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in the Agreement.  However, the liability of the Supplier for any breach of that condition or warranty is limited, at the Supplier’s option, to:

26. supplying the Services again; or
27. paying the costs of having the Services supplied again.

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9 LIABILITY

9.1 Maximum liability:  The maximum aggregate liability of the Supplier under or in connection with the Agreement or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed the amount equal to the Fees paid by the Client under the Agreement in the previous Year (which in the first Year is deemed to be the total Fees paid by the Client from the Start Date to the date of the first event giving rise to liability).  

9.2 Unrecoverable loss:  Neither party is liable to the other under or in connection with the Agreement or the Services for any: 

28. loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
29. consequential, indirect, incidental or special damage or loss of any kind.

This clause does not apply to limit the Clients’s liability to pay the Fees. 

9.3 No liability for other’s failure:  Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.

9.4 Mitigation:  Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.

10 TERM, TERMINATION AND SUSPENSION

10.1 Duration:  Unless terminated under this clause, the Agreement:

30. starts on the Start Date and ends on the End Date; but

10.2 where no End Date is set out in the Key Details, this Agreement shall be renewed automatically for the same term as the current contract unless a party gives six months notice that the Agreement will terminate on the expiry of the then-current term.

10.3 In case an End Date is set out in the Key Details and no formal termination has been received by minimum 1 month before the End Date, the agreement shall automatically be extended for a period of 6 months against the same conditions to ensure timely and proper communication and management of the student friendships on the platform.

10.4 Termination rights:  

31. Either party may, by notice to the other party, immediately terminate the Agreement if the other party:
    
    1. breaches any material provision of the Agreement and the breach is not:
       
       • remedied within 14 days of the receipt of a notice from the first party requiring it to remedy the breach; or
       • capable of being remedied;
    2. becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
    3. is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure.

10.5 Consequences of termination or expiry:

32. Termination or expiry of the Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry.
33. On termination or expiry of the Agreement, the Client must pay all Fees for Services provided prior to that termination or expiry.
34. Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination or expiry of the Agreement and subject to clause 10.4d, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.  
35. At any time prior to one month after the date of termination or expiry, the Client may request: 
    
    1. a copy of any Data stored using the SaaS Service, provided that the Client pays the Supplier’s reasonable costs of providing that copy.  On receipt of that request, the Supplier must provide a copy of the Data in a common electronic form.  The Supplier does not warrant that the format of the Data will be compatible with any software; and/or
    2. deletion of the Data stored using the SaaS Service, in which case the Supplier must use reasonable efforts to promptly delete that Data.  

To avoid doubt, the Supplier is not required to comply with clause 10.4 d.i. to the extent that the Client previously requested deletion of the Data.

10.6 Obligations continuing:  Clauses which, by their nature, are intended to survive termination or expiry of the Agreement continue in force.   

10.7 Rights to restrict:  Without limiting any other right or remedy available to the Supplier, the Supplier may restrict or suspend the Client’s access to the SaaS Service and/or delete, edit or remove the relevant Data if the Supplier considers that the Client (including any of its personnel) has:

36. undermined, or attempted to undermine, the security or integrity of the SaaS Service or any Underlying Systems;
37. used, or attempted to use, the SaaS Service:
    
    1. for improper purposes; or
    2. in a manner, other than for normal operational purposes, that materially reduces the operational performance of the SaaS Service; 
38. transmitted, inputted or stored any Data that breaches or may breach the Agreement or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
39. otherwise materially breached the Agreement.

10.8 Process:  

40. The Supplier must notify the Client where it restricts or suspends the Client’s access, or deletes, edits or removes Data, under clause 10.6.
41. Clause 10.4di will not apply to the extent that it relates to Data deleted or removed under clause 10.6.

11 DISPUTES

11.1 Good faith negotiations:  Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.

11.2 Obligations continue:  Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.

11.3 Right to seek relief:  This clause does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.

12 GENERAL 

12.1 Force Majeure:  Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party:

42. immediately notifies the other party and provides full information about the Force Majeure;
43. uses best efforts to overcome the Force Majeure; and
44. continues to perform its obligations to the extent practicable.

12.2 Rights of third parties:  No person other than the Supplier and the Client has any right to a benefit under, or to enforce, the Agreement.

12.3 Waiver:  To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.

12.4 Notices:  A notice given by a party under the Agreement can be delivered to the other party via email or otherwise notified by the other party for this purpose.  

12.5 Severability:  

45. If any provision of the Agreement is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.
46. If modification under clause 12.5.a is not possible, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of the Agreement.

12.6 Entire agreement:  The Agreement sets out everything agreed by the parties relating to the Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date.  The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Start Date.  

12.7 Variation:  With the exception of clause 5.3, any variation to the Agreement must be in writing and signed by both parties.

12.8 Law:  The Agreement is governed by, and must be interpreted in accordance with, the laws of The Netherlands.  Each party submits to the non-exclusive jurisdiction of the Courts of The Netherlands in relation to any dispute connected with the Agreement.

12.9 Counterparts:  The Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement.  A party may enter the Agreement by signing and emailing a counterpart copy to the other party.

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