These terms of service of the private company with limited liability Flitsmeister B.V., having its registered seat and its place of business in Veenendaal, the Netherlands, at Landjuweel 24 (3905 PG) (hereinafter: the "Licensor"), apply to all products and services purchased by the End User. The Licensor hereby grants the End User a license to use its Software subject to the following terms and conditions:
Article 1: Definitions
1.1 Additional Services: the additional services to be provided to a specific End User based on a specific agreement between the Licensor and the End User, such as Software subscriptions, including Flitsmeister PRO and PRO Plus.
1.2 Equipment: the phone or other peripheral device (iPhone or Android) on which the End User has installed the Software.
1.3 Basic services: the Services that are available as standard for all Software End Users.
1.4 Third Parties: parties that perform Services and / or activities on the Software on basis of a further agreement with the Licensor for End User.
1.5 Service: offering or processing current and other information, such as traffic information, in the Software by means of remote communication technologies.
1.6 End User: the natural person who uses or would like to use the Software and/or the Service.
1.7 Intellectual Property Rights: all rights of intellectual property, including, without limitation, copyrights, database rights, trademarks, knowhow, patent rights.
1.8 In-App Purchases: ordering Additional Services or making any purchases or other purchases through the Software, which order is or can be processed through the Store.
1.9 the Software: the software, including all Software Updates, developed by the Licensor.
1.10 License: the right granted to the End User by the Licensor to install, load and run the Software and use the Service on the Equipment, in accordance with the terms and conditions of this License Agreement.
1.11 License Agreement: the present agreement.
1.12 Support: support provided to End Users, consisting of answering questions relating to the use and the functionality of the Software.
1.13 Store: the online platforms operated by third parties, enabling the Software to be downloaded and purchases to be made and/or In-App purchases to be handled and processed, which platforms at least include the iTunes App Store, Google Play and the Windows Phone Store.
1.14 User-generated Content: any works and data generated by the End User which have been sent to the Licensor through Software or otherwise.
1.15 Update: an improved version of Software in which any errors have been rectified (e.g. from version 0.1 to version 0.2) or which contains a change in functionality or new functions (e.g. from version 1.0 to version 2.0).
Article 2: License and license conditions
2.1 The Licensor hereby grants the End User a non-exclusive and non-transferable License without territorial restrictions to use the Software in accordance with the terms and conditions stated in this License Agreement. The License includes the technical support documentation for the use and operation of the Software, including the specifications and instructions for installation and use, as well as any additional information that the Licensor periodically provides to the End User during the term of this License Agreement. The Licensor will make the information available to the End User by electronic means via www.flitsmeister.nl.
2.2 The License for the Basic Service is for an indefinite period of time, on the understanding that it ends automatically when the End User removes the App from the Equipment.
2.3 The License for an Additional Service can only be obtained through the Store. The term of this License is equal to the term indicated in the Store at the time of purchasing the License; if no such term is indicated, the term of validity of the License will be one year.
2.4 If there are any disputes as to the term of validity of the License, the Licensor's and/or the Store's records will be binding in principle, subject to evidence to the contrary by the End User.
2.5 If a License for an Additional Service of the Licensor is not renewed at the end of the term, this License will automatically expire and the End User will automatically get a License for the Basic Service again.
2.6 The End User hereby explicitly consents to the manner of dissolution as offered in the Store from which the End User places an Additional Service on the Equipment. Should such offer in the Store imply a restriction of the statutory cancellation period, the End User hereby already waives their right to dissolve the purchase agreement during the statutory cancellation period.
2.7 The End User shall not be allowed to distribute, sell, copy or transfer Software or to lose control of Software in any other manner. The End User shall not be allowed to provide their Software account details, and specifically not their password, to third parties.
2.8 The End User shall not be allowed to make any changes to Software or any of its parts. Furthermore, the End User shall not be allowed to reverse engineer or decompile Software or any of its elements, other than for such situations where this is allowed pursuant to copyright subject to mandatory provisions of law and on condition that the End User has been given prior written permission from the Licensor in this regard. The Licensor shall be allowed to attach conditions to such permission.
Article 3: Service provision
3.1 Licensor grants the Basic service and any Additional Services to the End User for the term of this License Agreement.
3.2 Additional Services may be offered by Licensor or Third Parties. Licensor does not guarantee the availability of Services from Third Parties. The general terms and conditions of Third Parties apply to the use of Services of Third Parties.
3.3 Licensor will actively attempt to achieve the greatest possible availability of the Services. However, Licensor cannot guarantee that the Services will be continually available. Furthermore, Licensor will actively attempt to make sure that the information offered by means of the Services is correct, and that the relevant service provision is carried out correctly. However, Licensor cannot guarantee that all information offered and/or services provided are free of errors, suitable for a certain purpose or suitable for regular use.
3.4 The End User can purchase Additional Services from Licensor, both through In-App Purchases and by means of the Store. Any specific terms and conditions as may be stated when the purchase in question is made shall apply to the use of Additional Services. The price and the duration of the Additional Services will be laid down in the relevant agreement.
3.5 The End User hereby requests that the performance of the Additional Services is started immediately upon payment being made in the Store – i.e. during the statutory cancellation period. The End User shall accept the terms of dissolution offered in the Store.
3.6 The End User can make suggestions to the Licensor for various Services as to adding, improving or removing certain information. The Licensor will consider such User Generated Content, but shall not be under any obligation to comply with all such suggestions.
Article 4: Price and Payment
4.1 The use of the Basic Service is free of charge.
4.2 The End User shall pay the charge for the Additional Services as stated in the Store and/or the agreement in question.
4.3 Payment of the charges for the License for the Additional Services shall be made through the Store or directly to the Licensor. If the charges are paid directly to the Licensor, the following provisions apply.
4.4 The prices of the Licensor's Additional Services are listed on the website and can be consulted via this link. All prices and rates are in euros and inclusive of VAT and any other government levies imposed at the time the License Agreement is concluded, unless expressly stated otherwise.
4.5 All prices and rates mentioned on the website and in communications (including advertising statements) and offers issued by the Licensor are subject to reservations regarding programming, typing or writing errors.
4.6 The charge for the Additional Services consists of an amount paid per month, quarter or year. When Additional Services are purchased, the charge for the first subscription period shall be paid immediately by way of an advance payment. When the agreement is automatically renewed, for up to one month at a time, the agreed monthly amount shall each time be paid in arrears.
4.7 Payment of the charge for the Additional Services shall be made via the payment method offered on the website. For payment purposes, the End User expressly authorizes the Licensor to transfer the charges from the corresponding account number or to have them transferred by direct debit. If the direct debit fails, the Licensor will inform the End User of this accordingly and will give the End User a period of 14 calendar days to go on to fulfil their payment obligation. If payment is not made within this period, the Licensor will have the right to block the End User's account until the End User has fulfilled their payment obligation.
4.8 The Additional Service will be activated and the Licensor's paid services will commence immediately after the End User's first payment to the Licensor. The End User's right of withdrawal will lapse as a result. When they start to use the Additional Service, the End User expressly agrees to the performance of the Additional Service starting during the withdrawal period and acknowledges that the right of withdrawal will lapse as a result.
4.9 The Licensor may change the payment terms if the Licensor is of the opinion that the End User's financial position or payment behaviour or the nature of the relationship with the End User so requires.
4.10 The Licensor is entitled to suspend the performance of its obligations under the agreement if the End User fails to fulfil their obligations.
4.11 The Licensor will send a demand or notice of default to an End User who fails to pay or who fails to pay on time. If payment is still not made, the End User shall owe statutory interest on the outstanding amount.
4.12 If, after a demand or notice of default, the End User still fails to pay the debt, the Licensor may pass on the claim for collection, in which case, in addition to the total amount owed at that time, the End User shall also be liable to pay the judicial and extrajudicial costs, including all costs charged by external experts. This fee shall at least include the extrajudicial collection costs set by the Dutch government in the Dutch Extrajudicial Collection Costs (Fees) Decree (Besluit vergoeding voor buitengerechtelijke incassokosten) or any successive legislation. The foregoing is without prejudice to the Licensor's other statutory and contractual rights.
4.13 The Licensor offers Additional Services at different levels, with one Additional Service including all functionalities of another Additional Service, as well as additional functionalities. If an End User is already using an Additional Service and upgrades to an Additional Service with additional functionalities, the End User shall already have paid the charge for the first Additional Service. In that case, the Licensor will deduct the charges already paid from the next invoice for the Additional Service with additional functionalities.
Article 5: Maintenance and Updates
5.1 The Licensor will maintain only the latest, i.e. current, version of Software to the best of its abilities and will do its utmost to repair any errors and provide Updates.
5.2 Furthermore, Licensor can develop Software Updates if Licensor deems this appropriate and desirable. The Licensor may make a distinction between the Basic Service and Additional Services as regards the nature, content and number of Updates offered.
5.3 Updates shall be distributed solely through the Store and the technologies provided for this purpose by the providers of the Store.
5.4 The End User shall not be under any obligation, but is explicitly recommended, to install all Updates or have them installed. The Licensor explicitly states that the Services may work only with the latest, i.e. current, version of Software. This means that any failure to install Updates may lead to a loss of some, or the absence of all, functionality in Software.
Article 6: Support
6.1 The Licensor shall offer Support free of charge to the End User.
6.2 Such Support is only offered for the latest version of Software.
6.3 Although the Licensor will do its utmost to solve any issues, Support is offered “as is” and without any guarantees. The Licensor cannot guarantee that any responses given will be correct.
6.4 Support is solely offered through the Licensor's website and through any social media channels designated by the Licensor. The End User can ask the Licensor questions through the website and/or social media and/or contact other users of Software via the forum.
6.5 Licensor does not offer Support for Third Parties Services.
6.6 Given the ‘free-of-charge’ character of Support, the Licensor has the right to stop providing Support to End Users who ask for Support on an excessive basis.
Article 7: Intellectual property and indemnification
7.1 Any and all Intellectual Property Rights in Software, the User-Generated Content and the other works shall vest exclusively in Licensor, its licensors or its suppliers. The End User will only obtain such rights of use as explicitly stipulated in this License Agreement, and subject to the Terms and Conditions of this License Agreement.
7.2 The End User hereby grants an irrevocable license, free of charge, to the Licensor to use the User-Generated Content for an indefinite period of time for the purpose of the current and future operation of the Software and the Service, as if the Intellectual Property Rights in the User-Generated Content belonged to the Licensor and without the Licensor having to state the End User's name or respect any other moral rights of the End User.
7.3 The End User shall not be allowed to remove or modify any indications of copyrights, brands, tradenames or of any other rights of intellectual or industrial property.
7.4 The Licensor shall be allowed to take technical measures to protect Software and the Services or technical measures in respect of the agreed usage and/or any other restrictions as regards the License. The End User shall not be allowed to remove, evade or bypass such technical measures.
7.5 The Licensor shall indemnify and hold the End User harmless against third-party claims based on the allegation that Software, the Service, or any other materials that come from the Licensor infringe third-party Intellectual Property Rights, on condition that the End User shall immediately inform the Licensor about the existence and content of any such claims and shall fully leave the handling of such claims - which shall include, without limitation, any settlements - to the Licensor. The End User shall fully cooperate with the Licensor in this respect as required.
7.6 If there are serious suspicions that Software or any other materials provided to the End User by the Licensor infringe on any third-party Intellectual Property Right, the Licensor - at its exclusive discretion – will (a) change Software / the Service so that such third-party Intellectual Property Rights are no longer infringed, (b) offer the End User comparable software/services with comparable functionality that does/do not infringe such third-party rights, (c) obtain a license from such third parties at its own cost with the objective that the End User will be able to continue to use Software and/or the Services, (d) or offer any other reasonable solution to the End User. Any other or further liability on the part of Licensor for violation of a third-party's Intellectual Property Rights shall be fully excluded.
7.7 If changing the Software / the Service, offering comparable software/services and/or offering another reasonable solution as referred to in article 7.6 results in a substantial deviation from the Software / the Service for which the End User wanted to acquire a license, the End User shall be entitled to dissolve the License Agreement.
Article 8: Liability
8.1 Without prejudice to the other provisions on Licensor’s liability, Licensor’s total liability for an attributable shortcoming in performing the agreement will be limited to it compensating direct damage or loss up to a maximum amount of € 5,000 (five thousand euros). Direct damage or loss shall only be:
a.) any reasonable costs that would be incurred by the End User in order to have Licensor’s performance comply with the License Agreement - however, such substitute damages will not be compensated if the agreement is dissolved by, or as demanded by, the End User;
b.) any reasonable costs incurred to determine the cause and extent of the damage or loss, to the extent that such determination concerns direct damage or loss within the meaning of these terms and conditions;
c.) any reasonable costs incurred to prevent or restrict damage or loss, to the extent that the End User demonstrates that such costs resulted in direct damage or loss within the meaning of these terms and conditions being contained.
8.2 All liability on the part of Licensor for consequential damage or loss, lost profit, lost savings, any decrease in the value of goodwill, damage or loss due to business interruption, damage or loss due to claims of the End User's customers, data being damaged or lost and all forms of damage or loss other than those referred to in article 8.1, shall be excluded. Should the Licensor still be liable for such damage or loss, the Licensor's compensation obligation is limited to what the Licensor's insurer pays out in this regard.
8.3 Licensor’s liability for any attributable shortcoming in the performance of its obligations from this License Agreement shall always only arise if the End User immediately sends Licensor a proper notice of default, stating a reasonable time to as yet remedy the shortcoming, and if Licensor still fails to properly perform its obligations after such time has elapsed. The notice of default shall contain an accurate description of the shortcoming, in as much detail as possible, enabling Licensor to react in an adequate manner.
8.4 Licensor is in not liable for any damage caused by Third Party Services.
Article 9: The Licensor's guarantee
9.1 The Licensor shall endeavor to maximize the availability of the Services, but provides the Software, including any Updates, as well as the associated Services, to the End User "as is". The Licensor does not guarantee that Software, nor the Services, will function without any interruption, be free from errors or be suitable for any specific purpose, or that the information offered will be complete, or that errors or other problems will be remedied in Updates and/or modifications of the Service.
Article 10: The End User's obligations
10.1 The Licensor emphasises that any use of Software and the Service(s) by the End User will be at the End User's own responsibility. More specifically, the Licensor would like to remind the End User of the following in this context:
a.) that Software and the Service are not intended to be used in order to bypass or evade compliance with traffic or other legislation and regulations;
b.) that the Equipment should not be operated by the driver while driving;
c.) that the use of Software and the Service may not be allowed in some countries / jurisdictions.
Article 11: Privacy and the processing of personal data
11.1 The use of Software and the Service(s) involves personal details (including location details) being processed. The Licensor is the controller for such processing of data .
11.2 The use of Software also involves that data is temporarily or permanently stored on and read from the End User's Equipment.
11.3 By using Software and the Service(s), the End User gives the Licensor permission for such processing of personal details and other data.
11.4 The purposes of such processing, and other information regarding such processing of personal details or other data, can be found in Licensor’s privacy statement [add hyperlink].
11.5 The Licensor reserves the right to change the privacy statement from time to time. The latest version of the privacy statement can always be found on the Licensor's website. The End User hereby agrees to such -minor- changes, on the understanding that, if obliged by law, the Licensor shall ask the End User's permission or supplementary permission before processing the End User's personal details in accordance with a new privacy statement.
Article 12: Term, termination and the consequences of termination
12.1 This License Agreement is entered into for the duration of the License and/or the Services.
12.2 The Licensor may suspend this License Agreement with immediate effect, and terminate it in writing in the event of default (and block the End User's access to the Service):
a.) if the End User fails to comply with its obligations from this License Agreement;
b.) if the End User submits User-Generated Content that is incorrect or that is contrary to the law, public order or good morals on a more than incidental basis;
c.) if the End User publicly advertises Software and/or the Service as a means of circumventing compliance with traffic or other legislation or of circumventing checks of such compliance with legislation;
d.) if the Licensor finds that operating Software is no longer cost-effective due to changes to legislation, e.g. legislation that prohibits using the service provided by Licensor to consumers.
12.3 If this License Agreement is terminated for any ground or reason, all rights that have been granted to the End User pursuant to this License Agreement shall automatically lose effect and the End User shall be obliged to destroy Software or remove it from its Equipment. All payment obligations of the - then former - End User shall continue to exist and shall be due and payable.
Article 13: Other provisions
13.1 If a competent judicial body or a competent administrative body finds that a provision of the License Agreement is null and void or unenforceable, this will not affect the other provisions of this License Agreement and all such provisions not affected shall remain in full force and effect.
13.2 The Parties shall attempt to substitute any null and void or unenforceable provision by a valid and enforceable alternative which achieves, to the greatest extent possible, the economic, legal and commercial objectives of the null and void or unenforceable provision.
13.3 This License Agreement is the entire agreement between the parties. Any additions or changes to this License Agreement shall only be binding if agreed in writing.
13.4 The End User shall not transfer or otherwise hand over its obligations from this License Agreement, without the Licensor's prior written permission.
13.5 If the Licensor transfers its company to a third party, it shall be entitled to then also transfer its rights and obligations from this License Agreement to such third party. Furthermore, the Licensor shall be entitled to transfer its rights and obligations from this License Agreement to any third party on any other grounds, but in this latter event the Licensor shall be liable in respect of the End User for such third party performing the obligations. The End User hereby accepts such transfer by the Licensor and undertakes to cooperate with it as required.
Article 14: Applicable law and competent court
14.1 This agreement shall exclusively be governed by Dutch law. The "United Nations Convention on Contracts for the International Sale of Goods" of 1980 shall not apply.
14.2 Any and all disputes resulting from or in connection with this License Agreement or any further agreements in connection with this License Agreement shall exclusively be adjudicated by the competent court in the country where the End User is domiciled as the court of first instance.