Terms

1.1 General Terms and Conditions

For the application of these General terms and conditions, the term General terms and conditions shall be taken to mean these General terms and conditions of Smilejet, established in Waalwijk at Paganinistraat 2 (5144 XN) and its affiliated businesses (hereafter Smilejet). The General terms and conditions have been deposited with the Chamber of Commerce under number 17259539.

1.2 Applicability to Offers and Contracts

These General terms and conditions are applicable to all offers and all contracts relating to the provision of services by Smilejet. Smilejet expressly rejects the applicability of any terms and conditions belonging to or on behalf of the client, unless Smilejet has expressly agreed in writing to the application of such terms and conditions.

1.3 Invalidity Clause

The invalidity of a provision in the contract and/or in these General terms and conditions has no effect on the validity of the other provisions of the contract with the client and the General terms and conditions. If and to the extent that a provision in the contract and/or these General terms and conditions is invalid, or should be unacceptable on the basis of reasonableness and fairness in the particular circumstances, a provision shall apply between the parties which, in the light of all circumstances, is reasonable.

2.1 Software-as-a-Service (SaaS) Offering

Smilejet offers a Software-as-a-Service (SaaS) subscription service that enables clients to gather, assess, and manage user and/or customer feedback from online platforms, including websites, mobile apps, and email marketing campaigns. In the context of these General Terms and Conditions, "SaaS" refers to the creation and provision of software programs by Smilejet to the client via the internet or another data network, without sharing the source code(s) of the programs. Clients must adhere to Smilejet's Fair Use Policy ("FUP").

3.1 Smilejet's Offer

Smilejet's offers are made without obligation and are subject to modification, withdrawal, or cancellation by Smilejet. Clients are responsible for the accuracy and completeness of data provided to Smilejet, which serves as the basis for Smilejet's offers. Any inaccuracies or omissions in an offer do not bind Smilejet.

3.2 Offer Validity

An offer presented by Smilejet remains valid for 30 days from the date of issuance. After this 30-day period, the offer lapses, unless otherwise agreed upon between Smilejet and the client.

3.3 Trial Account Option

Smilejet may offer clients the opportunity to create a trial account, granting access to Smilejet's SaaS services for a specified duration, as agreed upon by both parties, or a maximum of 30 days if no specific duration is set.

3.4 Contractual Agreement

Upon conclusion of the trial period or an earlier agreed-upon date, a contract automatically forms between the client and Smilejet. During the trial account period, clients can notify Smilejet via email if they choose not to continue using Smilejet's SaaS services after the trial period ends. In such cases, no contract is established between Smilejet and the client.

3.5 Contract Duration

The contract's duration is as mutually agreed upon by both parties or, in the absence of a specified duration, one year. The contract will renew automatically for a term equivalent to the original period unless the client provides written notice of cancellation to Smilejet, with a 60-day notice period before the current term's end. The client bears full responsibility for timely contract cancellation.

3.6 Business Use Acknowledgment

By entering into an agreement with Smilejet, clients acknowledge that the services are intended exclusively for business purposes and not for personal use.

4.1 Pricing Structure

Smilejet's pricing and charges are exclusive of value-added tax (VAT) and any other government-imposed taxes or duties.

4.2 Price Adjustments

The agreed prices between Smilejet and the client may be subject to an annual increase, commencing one year after the contract's commencement date. This increase percentage may be determined by Smilejet but notified with a month advancement.

5.1 Invoice Settlement

The client is required to settle all invoices in full in accordance with the payment terms specified on the invoice. In cases where specific conditions are not provided, the client must make payment within 14 days of the invoice date. The client is not authorized to delay or offset any payment obligations.

5.2 Default and Consequences

If the stipulated period mentioned in clause 1, or any other mutually agreed period, is exceeded, the client will automatically be in default, without the need for further notice. In such cases, all outstanding claims by Smilejet against the client become immediately due, and Smilejet has the right to charge interest compensation on the outstanding amount at a rate of 1% per month or part thereof. This is in addition to Smilejet's right to seek full compensation for damages. Smilejet retains the right to engage third parties to recover the claims in case of default. In this scenario, the client will be liable for payment of extrajudicial collection costs and legal fees, including attorney costs, which will amount to no less than 15% of the gross invoice value, with a minimum of €150.00 (excluding VAT).

6.1 Response Commitment

Smilejet will exert reasonable efforts to promptly address all incoming support requests within a maximum of two business days.

6.2 Enterprise Plan Offer

Upon request, exclusive to users subscribed to our Enterprise plan, we provide a Service Level Agreement (SLA) featuring a 99% uptime guarantee and prioritized support assistance.

7.1 Ownership Retention

All items supplied to the client under a contract, including customer feedback, will remain the property of Smilejet until all payments owed by the client for services rendered or yet to be provided under the contract are fully settled. User rights are granted or assigned to the client contingent upon timely and complete payment of agreed-upon fees. If a periodic payment obligation is established for the granting of user rights, the client retains these rights as long as they meet their periodic payment obligations.

7.2 Transition of Ownership

If ownership of delivered goods or user rights is transferred to the client at the contract's conclusion, Smilejet will offer the client an appropriate opportunity to assume control of customer data. Afterward, the data will be securely deleted by Smilejet.

8.1 Confidential Information Handling

Both parties commit to taking reasonable precautions to safeguard any confidential information received from the other party. Without prior written consent, parties are prohibited from disclosing confidential information to third parties, except as required by law or pursuant to a court order.

8.2 Personal Data Protection

Smilejet will implement reasonable measures to ensure the security and protection of the client's personal data from unauthorized use. Access to this data is restricted to authorized personnel. The storage and transmission of client data over the Internet are safeguarded using industry-standard security techniques.

8.3 Data Handling Compliance

Smilejet will not share the client's data with third parties in any manner. The client retains the right to inspect and correct personal data when necessary. The parties agree to process Personal Data in accordance with the General Data Protection Regulation, where applicable. Parties acknowledge that Smilejet is a data processor and the client is a data controller, with additional rights and obligations defined in a separate Data Processing Agreement.

8.4 Privacy Statement Agreement

Smilejet maintains a Privacy Statement, accessible on its website. Upon entering into a contract, the client expresses their agreement with the content of Smilejet's Privacy Statement.

8.5 Intended Use

The client commits to using Smilejet services exclusively for the intended purpose of collecting and analyzing customer feedback and refrains from utilizing the services for other purposes, particularly the processing of sensitive, high-risk, financial, or medical data.

9.1 Intellectual Property Rights

All rights to intellectual and industrial ownership, including patents, trademarks, and authorship rights, as well as all rights pertaining to delivered services (including analyses, designs, documentation, reports, offers, and other preparatory materials), are exclusively held by Smilejet, unless expressly agreed otherwise in writing by the parties. Smilejet retains exclusive rights to exercise these rights.

9.2 Preservation of References

The client is prohibited from removing or altering any references related to authorship rights, trademarks, brand names, or other intellectual or industrial property rights from the web application, equipment, or materials. This includes references related to the confidentiality and preservation of the web application's secrecy.

9.3 Technical Safeguards

Smilejet is authorized to implement technical measures to safeguard the web application. If technical protection measures are employed by Smilejet, the client is not allowed to remove or bypass these measures. If these security measures prevent the client from creating a backup copy of the web application, Smilejet will provide a reserve copy upon request.

9.4 Indemnification for Infringement

Smilejet will indemnify the client against any claims from third parties asserting that Smilejet's software infringes upon third-party ownership rights applicable in the Netherlands. This indemnification is contingent upon the client promptly notifying Smilejet in writing about the claim's details and assigning Smilejet full responsibility for handling the case. The indemnity obligation ceases if the alleged infringement is connected to modifications made by or on behalf of the client.

10.1 Service Scope

Smilejet will deliver the SaaS services as outlined in the contract between the parties, along with any other agreed-upon services. The client is only permitted to utilize Smilejet's services in accordance with the agreed terms. Any deviation from the contractually defined user rights, without Smilejet's prior consent, may result in the client reimbursing Smilejet for associated costs or damages.

10.2 Infrastructure Responsibility

Smilejet is not responsible for the procurement and proper functioning of the client's or third parties' infrastructure. Unless explicitly agreed in writing, the client is responsible for managing installations, service usage, and results. In the absence of a written agreement, the client must install the necessary supporting software on their equipment and, if necessary, adjust additional equipment and software to achieve the interoperability desired by Smilejet. Smilejet is not liable for any adverse consequences arising from this.

10.3 Usage Restrictions

The client is prohibited from:

• a) Copying the web application, whether in whole or in part, in any form or medium.
• b) Removing or altering identifying features such as brand names, visual marks, product names, and authorship rights notices.
• c) Modifying, adapting, converting, imitating, reverse engineering, or permitting third parties to do so to the web application, whether in whole or in part.
• d) Renting, disposing of, providing as collateral, or making the web application accessible to third parties, including managing data of persons other than the client.
• e) Electronically or telecommunication-wise transferring the web application, whether in whole or in part, to another website.

10.4 Safeguarding the Web Application

The client is obligated to take reasonable measures to prevent the web application from falling into the hands of third parties, wholly or partially.

11.1 Diligent Updates

Smilejet will carry out periodic updates with due diligence.

11.2 Changes and Consequences

Smilejet may introduce alterations to the web application's size or content. These changes may impact the required specifications of the equipment and/or website used. Any resulting adverse consequences are the client's responsibility and at their expense.

12.1 Data Provision

Smilejet's performance is contingent upon the quality, completeness, and timely provision of data or information by the client. If necessary data for contract performance is not provided to Smilejet or is not provided promptly and as agreed, or if the client fails in any other manner to fulfill their information provision duty, Smilejet has the right to suspend contract performance and charge the client for any additional costs in accordance with Smilejet's standard rates. Smilejet is not liable for any direct or indirect damages resulting from the deficient quality of this information.

13.1 Software Guarantee

Smilejet does not guarantee that the software made available to the client as part of SaaS will be free from defects or operate without interruption. The client accepts the software and SaaS services "as is," with all properties, both visible and invisible, and except for defects specifically guaranteed.

13.2 Defect Remediation

Smilejet will make reasonable efforts to rectify defects in the software within a reasonable timeframe if and to the extent that the software has been developed by Smilejet itself, and the defects have been reported in detail in writing. Smilejet may delay defect remediation until a new software version is in use in specific cases. Smilejet does not guarantee the rectification of software not developed by Smilejet. Smilejet is authorized to implement temporary solutions, workarounds, or problem-reducing limitations into the software.

14.1 Limitation of Liability

Smilejet shall not be held liable for any direct or indirect damages incurred by the client, including consequential damages, business losses, time-related losses, or missed financial gains, except in cases of deliberate acts, omissions, or willful recklessness. Smilejet's liability is further limited to the total invoiced amount to the client in the year preceding the events causing the damages, excluding VAT and other government-imposed duties.

14.2 Client Indemnification

The client agrees to indemnify Smilejet, its legal successors, and employees against all liability to third parties arising from the contract and the software provided by Smilejet. This includes claims related to the client's improper and irresponsible handling of personal data collected through Smilejet's software, among other customer data.

15.1 Suspension and Termination

In the event of force majeure affecting either party, contract performance shall be wholly or partially suspended for the duration of the force majeure period. If circumstances arise that make contract performance impossible, excessively burdensome, or disproportionately costly, to the extent that continued performance is no longer reasonable, Smilejet has the right to cancel the contract without liability for damages.

16.1 Termination by Smilejet

Smilejet reserves the right to suspend or unilaterally terminate the contract, without legal action and with immediate effect, without liability for damages, in cases of:

• a) Failure to provide requested security upon contract entry.
• b) Suspected or actual failure by the client to fulfill contractual obligations, Fair Use Policy (FUP), or General Terms and Conditions.
• c) Non-compliance with payment obligations to Smilejet, either in full or within the specified payment period.
• d) Request for payment deferral or declaration of bankruptcy by the client.
• e) Appointment of a trustee or administrator for the client.
• f) Sale, pledge, or termination of the client's business.
• g) Seizure of a significant portion of the client's business assets.
• h) Trading practices deemed incompatible with Smilejet's norms and values, as determined by Smilejet.

16.2 Termination with Notice

Smilejet may terminate the agreement with eight weeks' notice, without liability for damages, except as otherwise specified in Article 16.1.

16.3 Immediate Enforceability

In cases stated in Article 16.1, all claims held by Smilejet against the client become immediately enforceable.

16.4 Set-Off Rights

Smilejet retains the right to set off its obligations to the client with any claims, whether enforceable, conditional, or time-restricted, at any time. The client is not permitted to exercise set-off rights.

17.1 Terms and Conditions Changes

Smilejet reserves the right to amend these General Terms and Conditions. In the event of an amendment, Smilejet will provide the client with a minimum 30-day notice. If the client does not reject the amendment within 30 days of notification, it will be considered accepted and take effect as determined by Smilejet. Rejection of the amendment gives Smilejet the right to terminate the contract with 30 days' notice, effective at the end of a calendar month.

18.1 Applicable Law

All contracts between Smilejet and the client are subject to Dutch law. Any disputes between Smilejet and the client are exclusively under the jurisdiction of the competent court in Den Bosch, the Netherlands.