Article 1. Definitions
1.1 UpdateCove: the service provider, the private limited company UpdateCove Ltd., established in New Zealand.
1.2 Customer: the natural person or legal entity with whom UpdateCove enters into a legal relationship for the provision of Services within the meaning of Article 1.3 of these General Terms and Conditions.
1.3 Service or Services: all services of any nature and under any name provided or to be provided by UpdateCove based on a legal relationship with the Customer;
1.4 Software Applications: the (communication) application or website suitable for use via the Internet, tablet, smartphone or other means of telecommunication, whether or not in the Customer’s management environment (White Label) under the brand and trade name of the Customer;
1.5 Agreement: the legal relationship linked to these General Terms and Conditions for the provision of Services by UpdateCove to the Customer or the use of the software application supplied or managed by UpdateCove.
Article 2. Applicability
2.1 These terms and conditions apply to all offers, invoices, agreements, and other legal relationships between UpdateCove and the Customer for the provision of Services and software applications.
2.2 These general terms and conditions also apply to additional and subsequent instructions from the Customer. Quoted rates do not automatically apply to future instructions.
2.3 Provisions and clauses that deviate from these terms and conditions bind UpdateCove only to the extent they have been confirmed by UpdateCove in writing.
2.4 The applicability of any purchase or other conditions of the Customer and/or third parties is explicitly rejected. The signing or (tacit) acceptance by UpdateCove of documents of the Customer and/or third parties which have been declared applicable to such general conditions never implies the acceptance thereof.
2.5 If the General Terms and Conditions of parties apply simultaneously, the provisions of the General Terms and Conditions of UpdateCove will prevail in the event of a conflict between provisions of the General Terms and Conditions of UpdateCove and those of the parties.
2.6 If any provision of these General Terms and Conditions is void or becomes void, the other provisions of these General Terms and Conditions will remain in force.
2.7 UpdateCove is at all times entitled to change these General Terms and Conditions. UpdateCove will notify the Customer in writing of these changes and ask for his agreement.
Article 3. Offers
3.1 Quotes and offers made by UpdateCove are without obligation and valid for the term quoted therein or until UpdateCove tells the Customer the quote is withdrawn, or the offer is no longer valid.
3.2 The Customer vouches for the correctness and completeness of the details provided to UpdateCove and on which UpdateCove bases its offer.
3.3 The models, images, examples or descriptions in advertisements, brochures or other media are as accurate as possible but only serve as indications and have no binding effect on UpdateCove.
Article 4. Formation and term of the Agreement
4.1 The Agreement for the provision of Services is by default concluded for a term of one year unless another term is agreed on in the Agreement.
4.2 The Agreement is formed at the first of the following incidences: 1. when UpdateCove confirms the Agreement to the Customer in writing; or 2. when UpdateCove starts performing the Agreement.
4.3 In the latter case, the offer constitutes the Agreement between the parties. In the case of an Agreement for which no deviating term is agreed on within the meaning of Article 4.1, the Agreement is each time tacitly renewed by one year after the end of the term of the Agreement unless one of the parties terminates the Agreement in writing. UpdateCove must have received the Customer’s notice of termination no later than two months before the end of the current contract period.
Article 5. Prices and payments
5.1 All prices quoted by UpdateCove are always in New Zealand Dollars or the currency of a specifically designated country and are exclusive of any applicable goods and services tax (GST) and other government-imposed levies and without discount unless explicitly agreed otherwise. The Customer must make all payments in the quoted currency.
5.2 Payment must be made within thirty (30) days of the invoice date, in a manner to be stipulated by UpdateCove unless agreed otherwise in writing. Payment must be made without any discount or set-off.
5.3 Objections to invoiced amounts must have reached UpdateCove in writing before the end of the payment term, failing which the correctness of the invoiced amounts is established between the parties after the expiry of the payment term. To determine the amounts payable by the Customer, the records held by UpdateCove are decisive unless the Customer demonstrates these records are incorrect.
5.4 If the Customer fails to pay the amounts payable within the payment term that applies to him, he is in default by operation of law without further notice of default being required.
5.5 Deviating payment terms can be agreed on in writing only but when this term is exceeded, the provisions of the previous paragraph of this article will come into effect automatically, without any further explanation being required.
5.6 If the Customer still fails to pay the amounts due (in time), UpdateCove can outsource the claim. In that case, the Customer must also pay all relevant costs incurred by UpdateCove.
Article 6. Performance of the Agreement
6.1 UpdateCove will provide the Customer with the services, stipulated by the parties in the Agreement, which, in any case, consist of allowing the Customer access to the Software Application, in the agreed manner given and for the agreed period and scope given. If laid down in the Agreement, UpdateCove will also install the Software Application referred to in the Agreement on the infrastructure specified by the Customer. UpdateCove is not responsible for the purchase and/or correct functioning of the infrastructure of the Customer or that of third parties.
6.2 UpdateCove does not issue any warranty in connection with (the functioning) of the Software Application other than specifically agreed on in writing.
6.3 In the event of a breakdown caused by an Internet connection failure, the failure of equipment and/or software, UpdateCove will remedy the situation as soon as possible, if and insofar as this is within its control and without being liable. If UpdateCove depends on third parties in such cases, it cannot vouch for the duration of the breakdown and it cannot be held liable for the breakdown. If the breakdown is caused by equipment and/or software of the Customer, the repair costs will be at the expense of the Customer.
6.4 To maintain the Software Application, UpdateCove may temporarily take it out of use, without this leading to any liability on the part of UpdateCove.
6.5 If it deems it necessary, for instance, in the event of a data breach, UpdateCove can change its technical interfaces, the password and username. In that case, the Customer will be notified without delay. UpdateCove will never make such changes unlawfully.
6.6 If the actions of the Customer result in a failure or delay in the Software Application, UpdateCove can block access to the Software Application or take other measures to remedy the failure or delay. In that case, the Customer will be notified accordingly without delay.
6.7 UpdateCove reserves the right to block access to the Software Application if use of the database by or via the Customer gives access – directly, indirectly, via hyperlinks or otherwise – to data or discloses data which UpdateCove believes to be objectionable. Access will be blocked only in the interest of the Customer or in the interest of the agreed collaboration of other customers and/or users of the Software Application. In that case, the Customer will be contacted without delay to find a solution.
6.8 After the termination of the Agreement, all and any data and files of the Customer will be returned to them and removed from the Software Application and the service platform of UpdateCove. Data, if any, can be transferred using export under standards in accordance with market conditions.
6.9 The source code of the Software Application will never be made available to the Customer.
Article 7. Obligations of the Customer
7.1 After the Customer has paid the amount he owes, he is granted the right to use (licence) the Software Applications as set out in Article 9 of these General Terms and Conditions.
7.2 If the Service is purchased based on periodic payments (contract), the right to use the Software Applications expires if the Customer fails to make the agreed periodic payments within 2 months of the invoice date. UpdateCove will notify the Customer of this in writing.
7.3 The Customer can only use the Software Application in his own business, organisation or establishment, up to the maximum of the number of projects and users and specified use mentioned in the Agreement, unless the Customer pays the applicable extra upgrade rates and costs in accordance with the then prevailing prices and graduates scales. The Customer declares that he will use the Software Application for its intended purpose. As an Internet user, the Customer will abide by all present and future legislation and act as can be expected from a prudent and responsible Internet user.
7.4 The Customer is, in any case, not permitted to act and/or behave in violation of the so-called “Netiquette” (the generally accepted rules of behaviour on the Internet as set out in RFC 1855 and future amendments thereto), the General Data Protection Regulation (GDPR), the Agreement and these General Terms and Conditions.
7.5 The Customer will avoid using software, scripts and/or other matters or means that will hamper UpdateCove in making the Software Application available to other users. If and insofar as the Customer has doubts about the use of specific software, scripts and/or other matters or means, the Customer can consult UpdateCove about this before use.
7.6 The Customer will never transfer the facilities made available to him by UpdateCove or any other right ensuing from the Agreement to third parties or make them available to them without the explicit written consent of UpdateCove.
7.7 In the event of unauthorised use or forbidden acts and/or behaviour, UpdateCove is entitled to compensation of at least three (3) times the total contract sum, without prejudice to the right of UpdateCove to demand compensation of the effective damage it has suffered.
7.8 When the Customer no longer wishes to use the Software Application for a specific project, he must immediately notify UpdateCove thereof in writing. After the project in question has been inactive for at least two (2) years, UpdateCove will remove the project in question, including all associated privacy-sensitive information such as but not limited to GPS information and contact forms, from the Software Application.
Article 8. White Label
8.1 If and insofar as the agreed use of the Software Application means that the Customer can use this and offer it to his customers under White Label, the conditions from this article will also apply.
8.2 The White Label Software Application allows the Customer to run the standard Software Application that has been designed entirely in the Customer’s corporate identity. The variables in the Customer’s corporate identity are: 1. the Customer’s logo in the Software Application; 2. the colours of the Customer’s corporate identity; 3. the addition of corporate images originating from the Customer; 4. changing the name of the Software Application; and 5. any selection of functionalities.
8.3 In terms of technology, the White Label Software Application is based on the standard Software Application. They only differ in terms of content and design. To develop the White Label Software Application, the parties will conclude an agreement to that effect. Rejection of the White Label Software Application in Apple’s App Store and/or Google’s Play Store is at the risk of the Customer.
8.4 The Customer guarantees he will impose, at least, the same obligations on his customers as those set out in these General Terms and Conditions and he indemnifies UpdateCove against damage and costs resulting from a violation of this guarantee.
8.5 As for the support offered by a support department within the meaning of Articles 6.3 and 6.4, a separate (basic) SLA will be concluded with the Customer for the White Label Software Application.
Article 9. Intellectual property
9.1 The intellectual and/or industrial property rights of all Services and/or Software Applications delivered and/or made available to the Customer by UpdateCove under or in connection with the Agreement, including but not limited to software, equipment or other matters and documentation, accrue to UpdateCove or its supplies and/or the third party authorised by UpdateCove to deliver and/or make these available to the Customer. The Customer only obtains rights insofar as explicitly assigned in the Agreement.
9.2 Ownership of the Services and/or Software Application, including but not limited to software, equipment or other matters and documentation, including modifications to them made at the request of the Customer, will always accrue to UpdateCove. The Customer always remains the owner of the documented content of his customer database.
9.3 In line with the restrictions and conditions set out in the Agreement, UpdateCove grants the Customer a non-exclusive, non-transferable right to use the software, equipment or other matters and documentation for the term of the Agreement and in the form they were delivered or made available, and exclusively and to the extent necessary, to use the Services and/or Software Applications delivered under the Agreement.
9.4 The Customer is not permitted to copy the Services and/or Software Application made available to him, including but not limited to software, equipment or other matters and documentation, including modifications to them made at the request of the Customer, other than for normal, personal use. All marks that determine ownership and origin will be left unchanged when making a copy. The Customer is not entitled to make backup copies of the Software Applications, nor is he permitted to sell, hire out, alienate or transfer the Software Application unless explicitly agreed otherwise in writing.
9.5 UpdateCove makes every effort to guarantee that the Customer’s use of the software, equipment and other matters and documentation delivered or made available by UpdateCove in connection with the Services and/or Software Application do not infringe the intellectual or other property rights of third parties.
9.6 UpdateCove will indemnify and defend the Customer against third-party claims in connection with an alleged infringement of third-party intellectual or industrial property rights as a result of the software, equipment or other matters and documentation, on the condition that the Customer: 1. notifies UpdateCove of such claims without delay; 2. does not acknowledge the claims; and 3. cooperates in his defence against such claims.
9.7 UpdateCove’ obligation to indemnify expires if and insofar as the alleged infringement can reasonably be attributed to misuse of or modifications to the relevant software, equipment or other matters and documentation by the Customer, his customers, affiliated businesses, agents or subcontractors, or when the (alleged) infringement has its origins in the combination of the relevant software, equipment or other matters and documentation delivered under the Agreement with other products, software or elements that were not delivered by UpdateCove. In such cases, the Customer indemnifies UpdateCove against all direct and indirect damage caused by the infringement of third-party (intellectual and/or industrial property) rights because of the acts and/or omissions of the Customer, his customers, affiliated businesses, agents or subcontractors.
9.8 If a judge has irrevocable decided that the Customer infringes third-party intellectual or industrial property rights as a result of an act or omission on the part of UpdateCove, the latter, at its discretion will: 1. take measures to end the infringement, such as replacing the infringing Services and/or Software Applications with functionally equal, other services and/or applications or changing the Services and/or Software Application so that they no longer infringe but do remain functionally equal; or 2. end the Services and/or Software Application and refund the Customer any money received for services that have not been provided yet.
Article 10. Confidentiality
10.1 Insofar as information shared by UpdateCove with the Customer under the Agreement is not in the public domain (hereinafter referred to as ‘Confidential Information’), the Customer, both during the Agreement and after the end thereof, is not permitted to disclose this Confidential Information to third parties, regardless of how it was made available to the Customer, without the prior, explicit written consent of UpdateCove.
10.2 Notwithstanding the foregoing, the Customer will never furnish third parties with Confidential Information that contains a UpdateCove business secret or Confidential Information from a third party towards whom UpdateCove has an obligation. Only in the event of legal or administrative orders is the Customer permitted to disclose Confidential Information, provided the Customer has reasonably notified UpdateCove thereof before disclosure and he will abide by the applicable protective measures.
10.3 The Customer and his employees and/or auxiliary persons hired by the Customer will keep the Confidential Information confidential and protect it by taking suitable security measures, which will always be at least equal to the security measures taken by the Customer to protect his confidential information. The Customer can disclose Confidential Information to his employees, consultants or auxiliary staff only on a need-to-know basis. The Customer will give his employees, consultants and auxiliary staff with access to the Confidential Information instructions and orders to safeguard confidentiality and to prevent authorised copies. He will also conclude appropriate written agreements with them which should, at least, provide for the proper fulfilment of the obligations and conditions in connection with confidentiality.
10.4 The fact that UpdateCove draws up and discloses any Confidential Information to the Customer does not mean a licence has been granted for a patent (application), copyright (registration), trademark (application), trade secret or any other (intellectual) property right or that any other obligation has arisen other than set out in writing. The Customer understands and agrees that he is not permitted to develop, sell, license or otherwise exploit any part, product or document, service or information that embodies all or part of the Confidential Information, without the explicit written consent of UpdateCove.
Article 11. Liability
11.1 Towards the Customer, UpdateCove is never liable for any direct or indirect, particular or incidental damage or consequential damage, including but not limited to damage caused by lost turnover, damage to or loss of data, interruptions of the business operations or for any other commercial damage or any other commercial loss caused by or connected to the Customer’s use or inability to use the Services and/or Software Application delivered or made available by UpdateCove, regardless of the cause and regardless of the grounds for liability brought, even if UpdateCove was made aware of the risk of such damage, if and insofar as not stipulated otherwise by the law.
11.2 Also and in particular, UpdateCove is never liable for any direct or indirect damage to or caused by the functioning or not functioning of the Services and/or Software Application delivered or made available by UpdateCove or for damage to goods and persons of any nature, whether or not caused by staff employed by UpdateCove.
11.3 Furthermore, UpdateCove can never be held liable for: 1. defects or shortcomings in the software application, if the Customer omitted to create or carry out a test and these defects would have manifested themselves during such a test; 2. misunderstandings, errors or shortcomings in connection with the performance of the agreement if they are the result of acts on the part of the Customer; 3. faults or shortcomings of, by or on behalf of third parties engaged by the Customer; 4. technical failures beyond the control of UpdateCove; and 5. defects or errors caused by suppliers or other service providers who work on the software application or who ensure that it is accessible for end users.
11.4 UpdateCove is liable only for damage and costs (direct damage) suffered or incurred by the Customer that are the direct result of an attributable failure by UpdateCove in its fulfilment of the Agreement. Direct damage is exclusively taken to mean damage consisting of: 1. direct damage to property (property damage); 2. reasonable and demonstrable costs to demand UpdateCove to correctly fulfil the Agreement (again) insofar as the shortcoming can be attributed to UpdateCove; 3. reasonable costs to determine the cause and extent of the damage, insofar as it relates to direct damage as referred to here; and 4. reasonable and demonstrable costs incurred by the Customer to prevent or mitigate the direct damage referred to in this article, insofar as the Customer demonstrates these costs have led to a reduction of direct damage as referred to in this article.
11.5 Damage which the Customer believes is the result of an attributable failure by UpdateCove to fulfil the Agreement, must be reported to UpdateCove within five (5) days of discovery or within five (5) days after the Customer should have reasonably been aware of the damage. Damage reported after that will not be compensated. Claims submitted within the aforementioned term will be processed by or on behalf of UpdateCove. Within thirty (30) days, UpdateCove will notify the Customer if UpdateCove believes the claim qualifies for compensation.
11.6 Liability of UpdateCove is limited to a maximum of $ 1,000.00 (in words: one thousand New Zealand Dollats) per calendar year or the amount invoiced to the Customer during a one-year period before UpdateCove is held liable, if and insofar as the latter amount is lower.
11.7 If the Customer fails to pay one or more invoices in time, every right to compensation expires.
11.8 In derogation from the statutory time limits, the time limit for all claims and defences against UpdateCove and any third party engaged by UpdateCove for the performance of an agreement, amounts to one (1) year.
11.9 The limitation of the liability of UpdateCove does not apply in the event of intent or gross negligence.
Article 12. Indemnity
12.1 The Customer indemnifies UpdateCove against al direct and indirect damage caused by and/or ensuing from the Customer’s use of the Services and/or Software Application and every failure to fulfil his obligations under the Agreement, including but not limited to damage and claims regarding intellectual property rights as formulated in Article 9.7 of these General Terms and Conditions and all damage and costs in connection with a failure to fulfil the obligations regarding the protection of personal data.
Article 13. Force majeure
13.1 Neither of the parties is obliged to fulfil any obligations if unable to do so due to force majeure.
13.2 Insofar as not already included therein, force majeure is also understood to mean industrial strikes, factory occupations, blockades, embargoes, government measures, war, revolution and/or any similar situation, power cuts, faults in electronic communication lines, broken cables, fire, explosion, water damage, lightning strikes, natural disasters, flooding and/or earthquakes, a lack of and/or illness among staff, pandemics, epidemics, as well as a shortcoming towards UpdateCove by its suppliers or force majeure on the part of its suppliers.
13.3 The parties’ obligations are suspended and any delivery times are extended with a period equal to the duration of the force majeure situation.
13.4 If the situation of force majeure lasts more than thirty (30) days or is expected to last more than thirty (30) days, the parties have the right to prematurely terminate the Agreement by means of a written notice, without having to observe a notice period and without having to pay compensation, unless it is foreseeable that the situation of force majeure will have been resolved within a reasonable time.
13.5 In the event of a partial performance, the Customer will owe a proportional part of the total price.
13.6 A party can invoke force majeure only if he notifies the other party thereof as soon as possible after the situation of force majeure starting, submitting the necessary documentary evidence. This party must do anything reasonably possible to fulfil the obligations under the Agreement with as little delay as possible.
Article 14. Termination, suspension and dissolution
14.1 Termination must be given in writing, observing a notice period of one (1) month. Notice of termination cannot be given in the interim but only with effect of the end of a term as mentioned in Articles 4.1 and 4.3 of these General Terms and Conditions.
14.2 Apart from the statutory grounds for suspension, UpdateCove has the right to suspend the services fully or partially with immediate effect and, if applicable, to block access to the Software Application if: 1. UpdateCove is ordered to do so by a government institution or a supervisory body; 2. such is required for compliance (or enforcement) of (amended) legislation; 3. by doing so, UpdateCove implements a court order of judgment; 4. the quality or availability of the Services delivered to other customers by UpdateCove is or may be under threat, is damaged by the behaviour of the Customer or his personnel or by the equipment of the Customer; 5. the safety of persons or goods is or may be under threat, is damaged by the behaviour of the Customer or his personnel; 6. it concerns situations that demand immediate action to protect the safety of persons or the integrity of the network, for instance; of 7. there are good reasons to believe that offering or using information or services that are being offered via the Services and/or Software Application is not permitted or is unlawful towards third parties.
14.3 During the period of suspension referred to in the previous paragraph, the Customer must still make payments.
14.4 Insofar as UpdateCove has suspended its services because the Customer fails to fulfil an obligation, UpdateCove is entitled to charge the Customer for any reconnection costs after the resumption of services following a suspension.
14.5 Both parties have the right to dissolve the Agreement by registered letter and without judicial intervention with immediate effect, without prejudice to the right of the terminating party to demand full compensation from the other party if and as soon as: 1. towards the terminating party, the other party fails to fulfil its obligations under the Agreement and, even after written notice of default, fails to properly fulfil its obligations under the Agreement within a reasonable term. If the other party no longer can or wants to fulfil its obligations under the Agreement or if fulfilment is permanently impossible, notice of default is not required; 2. the other party is declared insolvent, has applied for a moratorium, will be dissolved or is effectively dissolved, is placed under administration, is nationalised or if the business of that other party is permanently discontinued; 3. there is a change in control over the business of the other party, for instance, following a transfer of at least 20% (twenty per cent) of the shares or a change of partners, which change has such detrimental effects that the other party cannot reasonably be expected to further fulfil the Agreement or as a result of which the other party will form part of a group of companies that can be regarded as a direct competitor of the party. However, UpdateCove reserves the explicit right to transfer its rights and obligations under the Agreement with the Customer to one of its affiliated companies. In such a case, the Customer will fully cooperate in this without attaching any conditions to that.
14.6 Each party is obliged to immediately notify the other party in writing if one of the circumstances referred to in the previous paragraph occurs.
14.7 If the Agreement, for whatever reason, ends before all Services have been provided and the Customer’s liability to pay UpdateCove depends on the performance of the Agreement or the lapse of time, UpdateCove has the right to a reasonably to be determined portion of the amount it would have been paid if the Agreement had not ended. Calculating the extent of this amount takes into account any work already completed by UpdateCove, the benefit enjoyed by the Customer as a result thereof and the reason why the Agreement ended. UpdateCove will only be entitled to full payment if the termination of the Agreement is attributable to the Customer and the payment of the full amount, given all circumstances of the case, is reasonable. The total amount will be reduced by the costs saved by UpdateCove as a result of the early termination.
14.8 Suspension of the services and/or the termination of the Agreement does not release the parties from their current obligations in terms of confidentiality, liability, intellectual property, transfer of obligations, choice of law and choice of forum.
Article 15. Privacy
15.1 By purchasing the Services and using the Software Application, data, including personal details, may be processed. As the processor of the Customer, who is the controller, UpdateCove will fulfil its obligations under the legislation for the processing of personal data. UpdateCove will take appropriate technical and organisational measures to secure personal data. For more information about how UpdateCove deals with privacy and the processing of personal data, reference is made to the Privacy Statement.
15.2 The Customer guarantees that he observes all statutory regulations regarding the processing of personal data, including the regulations of the General Data Protection Regulation.
15.3 When concluding the Agreement, UpdateCove and the Customer will conclude a relevant Processing Agreement.
Article 16. Nullity of provisions and waiver of rights
16.1 If (one of) the provisions of these General Terms and Conditions is void or voidable, the validity of the other provisions remains unaffected. This provision will be replaced with a provision that maintains the purport of the void provision and these General Terms and Conditions to the greatest possible extent.
16.2 The provisions of these General Terms and Conditions cannot be waived by any act or omission on the part of UpdateCove other than by a written document that is signed by UpdateCove. Waiving a provision of these General Terms and Conditions does not mean the other provisions are also waived or that this same provision is waived in a different situation. The failure of UpdateCove to maintain any provision of these General Terms and Conditions does not mean this provision or other provisions of these General Terms and Conditions are waived.
16.3 All announcements and notifications that must be made under these General Terms and Conditions must be made to the other party in writing.
Article 17. Applicable law and disputes
17.1 This Agreement and the ensuing legal relationships and commitments are subject exclusively to New Zealand law.
17.2 All disputes that may ensue from this Agreement and the ensuing legal relationships and commitments will be exclusively settled by the competent court in the court district where UpdateCove has its business address.