Algemene voorwaarden | APIcenter B.V.
These Terms and Conditions are used by APIcenter B.V., which has its registered seat at Havendijk 22 (4201 XA) in Gorichem and is registered with the Dutch Chamber of Commerce under registration number 80630677. APIcenter B.V. offers an integration Platform-as-a-Service (iPaaS) to connect data, applications and systems using APIs. The Terms and Conditions apply to all Agreements APIcenter B.V. enters into with its Customers.
All capitalized definitions in these Terms and Conditions, both plural and singular, are defined as indicated in this article.
- Account:Customer’s or End User’s personal account, provided by APIcenter, through which the Services may be accessed.
- API: application programming interface.
- APIcenter:__ APIcenter B.V., established at Havendijk 22 in (42021 XA) Gorichem and registered with the Dutch Chamber of Commerce under registration number 80630677.
- Agreement: any agreement between APIcenter and Customer under which APIcenter delivers Services to Customer, and of which these Terms and Conditions form an integral part.
- Customer: any natural or legal person acting in the exercise of their profession or business that enters into an Agreement with APIcenter.
- Customer Data: all data stored by the Customer or its End Users on the systems deployed for the provision of the Services.
- End User: the natural person who uses the Services provided by APIcenter on behalf of and under the responsibility of Customer.
- Intellectual Property Rights: all intellectual property rights and related rights, including, but not limited to, copyright, database rights, domain names, trade name rights, trademark rights, design rights, neighbouring rights, patent rights as well as rights to know-how.
- Materials: all materials that APIcenter develops or supplies under an Agreement, which may include software, websites, training materials, documentation, layouts, designs, advice, reports, images, texts, logos, house styles, concepts, sketches and other creations of the mind.
- Parties:__ Customer and APIcenter, jointly (plural) or separately (singular).
- Quotation: a written offer by APIcenter for the provision of Services.
- Services: the services provided by APIcenter to Customer pursuant to the Agreement, such as the provision of the integration Platform-as-a-Service (iPaaS) solution, and other related (support) services as described in the Agreement.
- Terms and Conditions: these general terms and conditions, which form an integral part of each Agreement.
- Trial Period: a period of fourteen (14) days during which Customer can use the Services free of charge.
- Website: APIcenter’s website, accessible via the domain apicenter.io or associated subdomains.
Applicability and interpretation
- The Terms and Conditions apply to all offers, including Quotations, the performance of work by or in the name of APIcenter and the performance of (future) Agreements.
- The applicability of any purchase conditions or other conditions of Customer is excluded.
- Deviations from and additions to the Terms and Conditions shall only be valid if they have been agreed upon in writing by the Parties.
- If any provision of the Agreement is null and void or is annulled, the other provisions of the Agreement will remain in full force and effect. Parties will replace the null and void or annulled provisions by new provisions, whereby the purpose and purport of the null and void or annulled provision will be taken into account as much as possible.
- The application of sections 227b (1) and 227c of Book 6 of the Dutch Civil Code is excluded.
- The following order of priority shall apply in the event of inconsistencies between the applicable documents:
- additional agreements signed and in writing from a later date than the approved Quotation;
- approved Quotation;
- data processing agreement (if applicable);
- Terms and Conditions.
Conclusion and fulfilment of the Agreement
- The Agreement is concluded with:
- Customer’s completion of the online registration process on the Website and subsequent receipt of a registration confirmation and payment verification from APIcenter, automated or otherwise; or
- APIcenter’s receipt of Customer’s written acceptance of a Quotation for Services from APIcenter.
- After conclusion of the Agreement, access to the Services is granted for the duration of the Agreement under the terms and conditions set out therein.
- Any Quotation from APIcenter is valid for a period of thirty (30) days. Customer may still notify APIcenter of its acceptance in writing after this period. However, in such a case, contrary to Article 3.1.b, the Agreement is only concluded upon confirmation by APIcenter.
- After the Agreement is concluded, APIcenter shall make every effort to make the Services available to Customer as soon as possible. (Delivery) periods announced by APIcenter are indicative and do not count as firm dates.
- The Agreement is concluded with:
Performance of the Agreement
- After the Agreement has been concluded, APIcenter shall make every effort to start performing the Services as soon as possible, with due observance of sufficient care and expertise.
- The Services offers Customer and its End Users the possibility to realize integrations using APIs for processes, data, applications. Customer can either purchase standard APIs or request APIcenter to develop a custom API.
- On the request of Customer APIcenter can install the API in Customer’s environment.
- Custom API development and installation by APIcenter is considered additional work. If Customer requests additional work then APIcenter will make an offer. APIcenter will perform the additional work only after acceptance of the offer by the customer.
- Customer will provide APIcenter with all the support and cooperation needed and desirable to enable the correct and timely delivery of the Services. Customer will in any event provide all the specifications and other information which APIcenter indicates as necessary, or which Customer should reasonably understand are essential for the provision of the Services.
- The Trial Period gives Customer free access to the Services from the moment APIcenter gives Customer access to the Trial Period Account.
- The purpose of the Trial Period is to allow new customers to test whether the Services theoretically meet the needs of Customer. APIcenter will determine at its sole discretion whether Customer qualifies for the Trial Period and may limit the use and/or conditions to prevent abuse of the Trial Period.
- At the end of the Trial Period, Customer will be able to use the Services as previously agreed in the Agreement. If no agreements are made, Customer will not be able to access the Services until Customer concludes a new Agreement for the use of the Services.
- Either Party may terminate the Trial Period Agreement at any time.
- Data will be stored in Customer’s Account for fourteen (14) days after termination of the Trial Period. If Customer continues to use the Services, all data will be transferred.
- In order to use and access certain Services, such as the API, additional authentication is required. The necessary credentials for such authentication, such as login credentials for Accounts or API-tokens for using the Services, will be provided by Customer allowing APIcenter to make the integration. In any case, such credentials may not be shared with third parties, except for third parties that are engaged by Customer for the purpose of developing and maintaining API Integrations for Customer itself.
- Customer is obliged to keep its authentication credentials, such as passwords and API-tokens, secure and strictly confidential. APIcenter has the right to assume that all acts performed following authentication with these credentials have been performed under the supervision and with the approval of Customer. Customer is obliged to notify APIcenter immediately if it suspects abuse and/or unauthorised use of its credentials and Customer must then still take all available measures to prevent any (future) abuse and/or unauthorised use.
- Customer is fully responsible for the actions and omissions of its End Users and third parties using the Services on its behalf.
- APIcenter may set a limit to the amount of data traffic that Customer may or actually can use through the Service. If the Parties have not made any agreements in this respect, a limit will apply on the basis of fair use.
- Fair use is deemed to occur if Customer allows a maximum of twice as much End Users on the Services as other customers of APIcenter would do in a comparable situation. If Customer allows more End Users than allowed under the Agreement, APIcenter shall be entitled to charge an additional amount afterwards in accordance with APIcenter’s usual rates.
- If Customer consumes more than allowed under the Agreement, APIcenter shall be entitled to charge an additional amount afterwards in accordance with APIcenter’s usual rates for this purpose.
- APIcenter is not liable if the Service is not accessible or does not function properly when the applicable usage limits are exceeded.
Conditions of use
- Customer is prohibited to use Services in a manner that is in violation with the Agreement or any applicable laws and regulations.
- Customer may not use Services in a manner that causes nuisance, hindrance, or loss and/or damage to APIcenter and third parties, including other clients of APIcenter. This prohibition includes, without limitation, the use of scripts or programs for up- or downloading large amounts of data or excessively often accessing the APIcenter API.
- Customer shall not access, store, distribute or transmit any information during the course of its use of the Services that:
- is libellous, defamatory, insulting, racist or discriminating, or incites hate;
- infringes third-party rights, in any case including but not limited to Intellectual Property Rights;
- violates the privacy of third parties, in any case including but not limited to distributing third-party personal data without a valid legal basis;
- is otherwise illegal or causes damage or injury to any person or property;
- is in violation with any (future) usage instructions given by APIcenter.
- Use of a Service, including the APIcenter API, may be subject to specific usage limitations (for example with regards to the maximum number of API calls allowed per specific time frame). If this is the case, the usage limitations will be specified in the Agreement or Documentation. If the Agreement or Documentation does not contain specific usage limitations, the use of the Service shall be subject to a “fair use” policy. Fair use shall mean normal use that does not significantly exceed normal usage patterns. Customer will be considered to exceed normal usage patterns if Customer uses the Service in an excessively higher manor compared to other clients of APIcenter under comparable circumstances. If Customer exceeds the applicable usage limitations, APIcenter cannot be held liable if the Service becomes inaccessible or does not fully function properly.
- If APIcenter takes notice of any (suspected) unlawful or unauthorized use of the Service, APIcenter shall have the right to take all reasonable measures to stop the (suspected) unlawful or unauthorized use and shall not be liable for any damage resulting from measures taken.
- If, in APIcenter’ reasonable opinion, the continued functioning of the computer systems or -network of APIcenter or its engaged third parties is being, or under threat of being, damaged or jeopardized, APIcenter may take all steps it deems reasonably necessary to end or avert such damage or jeopardy. These measures may, without limitation, include the (temporarily) suspension of the provision of affected Services.
- APIcenter may recover from Customer any loss or damage sustained as a result of its breach of the Agreement. Customer shall indemnify and hold APIcenter harmless against any and all third-party claims pertaining to loss and/or damages arising from Customer’s violation of the Agreement.
Availability and maintenance
- APIcenter will use reasonable endeavours to ensure continuous availability of the Services, but does not warrant uninterrupted availability, unless agreed otherwise by means of a service level agreement.
- Unless the Agreement contains specific guarantees or explicitly agreed upon otherwise between the parties, the Services will be made available on an “as-is” basis. APIcenter does not warrant that the Service will be free of errors or that the Service will be fit to interoperate with all combinations of hardware and software selected and used by Customer. In case of errors in the Service, APIcenter will endeavour to rectify these as quickly as possible and shall be entitled to introduce temporary solutions or workarounds.
- From time to time, APIcenter may perform maintenance on its Services and make changes to the Services in the form of updates or upgrades. Such updates or upgrades may result in a change in the functionality of the Services. Suggestions from Customer for improvement of the Services are always welcome, but in the end APIcenter may solely determine which changes will be made. APIcenter is not obliged to maintain and keep available older versions of the Service for individual clients.
- The performance of maintenance-related activities may result in interruptions in the availability of the Services. In case APIcenter is able to foresee that certain maintenance-related activities may result in interruptions, it will use reasonable endeavours to ensure the activities do not take place during peak-hours – but instead during times when the general demand for access to the Services is lowest.
- APIcenter will use all reasonable endeavours to notify Customer of planned maintenance-related activities – through email or via the Services – where possible in advance. Emergency maintenance may occur at any time without prior notification to Customer.
- Updates or upgrades to the Services are performed at times to be determined by APIcenter. Customer will not be able to use an older version of the Service (e.g. older version of the APIcenter API) once an update or upgrade has been performed, unless APIcenter decides otherwise. Nor will Customer have any right or claim to an update or upgrade that was announced by APIcenter but was eventually not performed.
- Documentation with regard to troubleshooting and general use of the Services is provided through the Website.
- In addition to the online documentation, APIcenter provides support to Customer through use of a helpdesk. The helpdesk can be reached through the chat function on the Website.
- Support will not be provided via telephone unless specifically stated in writing in the Agreement.
- APIcenter will assume that Customers will consult the online documentation before contacting the helpdesk. APIcenter’s helpdesk may refer Customer back the documentation in case Customer’s question or issue can be answered or solved by consulting the documentation.
- APIcenter will use all reasonable endeavours to respond to each support request as quickly as possible. However, it cannot warrant that a response or solution will be provided by the helpdesk in a set amount of time, as such response times are dependent on the nature and complexity of the question or issue at hand.
Intellectual Property Rights
- All Intellectual Property Rights vested in the Services and other Materials developed and/or made available by APIcenter belong to APIcenter or its licensors.
- APIcenter grants Customer a non-exclusive, non-transferable and non-sublicensable right of use with regard to the Services and Materials for the duration of the Agreement.
- APIcenter may take (technical) measures to protect the Services. If APIcenter has taken such security measures, Customer is not allowed to circumvent or remove this security.
- APIcenter is allowed to use Customer’s company name, logo, trademark, general description and (screenshots, general descriptions and virtual tours of) for the purposes of marketing its Services.
- All Customer Data will remain the property of Customer. APIcenter will not make any proprietary claims with regard to any Customer Data. Upon termination of the Agreement, APIcenter will return or destroy all Customer Data.
- Customer warrants and represents that it is the rightful owner or rightful licensee of all Intellectual Property Rights vested in Customer Data. Customer indemnifies and holds harmless APIcenter from any claims by third parties in relation to or rising from the Intellectual Property Rights vested in Customer Data.
- Customer provides APIcenter with a non-transferable – and as far as necessary for performance of the Agreement – sublicensable license to use Customer Data for the duration of the Agreement, insofar this is required for the provision of Services.
- The Parties will treat as confidential the information they provide to each other before, during or after the performance of the Agreement if this information has been marked as confidential or if the receiving Party knows or should reasonably assume that this information was intended to be confidential. The Parties also impose this obligation on their employees and on the third parties engaged by them for the performance of the Agreement. These provisions continue to apply after the Agreement ends for any reason whatsoever and for as long as the disclosing Party has the right to invoke the confidential nature of the information.
- Each Party will use the same degree of care in protecting the confidential information of the disclosing Party as it uses in protecting its own confidential information, but in no event less than reasonable care.
- This article 11 will not apply to any information which:
- is or becomes generally available to the public other than as a result of a disclosure by the receiving Party in breach of the Agreement;
- was within the receiving Party’s possession prior to its disclosure to it by or on behalf of the disclosing Party;
- becomes available to the receiving Party on a non-confidential basis from a source other than the disclosing Party not under obligation to keep such information confidential; or
- is developed independently by the receiving Party.
- In the event that a receiving Party becomes legally compelled to disclose any confidential information provided pursuant to the Agreement, such receiving Party will provide the disclosing Party with prompt written notice so that such disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the confidentiality provisions of the Agreement. Any confidential information provided hereunder will remain the exclusive property of the disclosing Party.
- Promptly after the expiration or termination of the Agreement for any reason, each receiving Party will deliver to each disclosing Party all originals and copies of any material in any form containing or representing the confidential information in its possession or will destroy the same at the request of the disclosing Party relative to such confidential information.
- APIcenter reserves the right at all times to use the knowledge increased by the performance of the Agreement for other customers to the extent this does not involve confidential information of Customer.
Term and termination of the Agreement
- Unless otherwise determined in the Agreement, the Agreement will be entered into for an indefinite period of time and can be terminated monthly if either Party provides the other Party with notice of non-renewal one (1) month prior to the end of a period.
- Without prejudice to any other rights and remedies hereunder, APIcenter will be entitled to terminate the Agreement if Customer commits a breach of any of its obligations under this Agreement and such breach is irremediable or – if such breach is remediable – Customer fails to remedy that breach within a reasonable period after being notified in writing to do so. APIcenter may suspend or give notice to terminate the Agreement in writing with immediate effect, without notice of default being required, in the event Customer is declared bankrupt, Customer applies for or is granted suspension of payments, Customer’s activities are ceased or its business is wound up.
- Where APIcenter suspends the performance of the Agreement, APIcenter will retain all its rights and claims under the Agreement and the applicable laws and regulations.
- In the event that the Agreement is terminated, the amounts owed to APIcenter by Customer will become immediately due and payable (irrespective of the reason for the termination).
- In the event of dissolution of the Agreement, section 6:271 of the Dutch Civil Code and the effect of its provisions in the subsequent sections of the Dutch Civil Code are excluded.
- APIcenter’s liability for damages as resulting from any breach of the Agreement, whether in tort or otherwise, is per event (whereby a series of consecutive events is regarded as a single event) limited to the amount (excluding VAT) that APIcenter has received from Customer in a period of six (6) months preceding the (first) damaging event, but will in any event not exceed the amount of ten thousand euros on an annual basis.
- APIcenter can only be held liable for direct loss and/or damage arising from an attributable failure in the performance of the Agreement. Direct loss and/or damage is solely understood to mean any and all loss and/or damage consisting of (a) reasonable and demonstrable costs Customer has had to incur in demanding that APIcenter properly performs the Agreement, unless the defective performance is not attributable to APIcenter, and (b) reasonable costs to determine the cause and the extent of the direct loss and/or damage, and (c) reasonable and demonstrable costs incurred by Customer to prevent or limit the direct loss and/or damage, insofar as Customer can demonstrate that such costs have resulted in limitation of the direct loss and/or damage, and (d) reasonable and demonstrable costs for having the Agreement fulfilled by a third party, where APIcenter, after receiving notice from Customer, fails to ensure proper performance within the reasonable term stipulated in the notice.
- APIcenter is not responsible or liable for Customer’s and its End User’s use of the Service, the integration and implementation of the Services and the proper functioning thereof in connection with Customer’s IT-infrastructure including third party applications used by the Customer.
- Any limitation or exclusion of liability stipulated in this Agreement will not apply in the event that the loss and/or damage is attributable to (a) willful misconduct or deliberate recklessness of APIcenter’ management, (b) death or bodily injury, or (c) any other matter for which it is unlawful to limit or exclude liability.
- Unless performance by APIcenter is permanently impossible, APIcenter will only be liable due to an attributable failure in the performance of an obligation if Customer notifies APIcenter without delay in writing of being in default and therewith granting APIcenter a reasonable term to remedy the breach, and APIcenter culpably fails to fulfil its obligations also after this reasonable term has expired. The notice of default must describe the breach as comprehensively and in as much detail as possible in order to give APIcenter the opportunity to respond adequately.
- Any right to claim compensation is at all times subject to the condition that Customer notifies APIcenter of the loss and/or damage in writing within no more than two months of its discovery.
- APIcenter cannot be obliged to perform any obligation under the Agreement if the performance is prevented due to force majeure. APIcenter is not liable for any loss and/or damage due to force majeure.
- Force majeure is considered to exist in any event in case of power outages, Internet failures, telecommunication infrastructure failures, network attacks (including D(DOS) attacks), attacks by malware or other harmful software, civil commotion, natural disaster, terror, mobilisation, war, import and export barriers, strikes, stagnation in supplies, fire, floods and any circumstance whereby APIcenter is not enabled to perform or prevented from performing by its suppliers, irrespective of the reason.
- If a force majeure situation has lasted for more than ninety (90) days, both Parties will be entitled to give notice to terminate the Agreement in writing with immediate effect. The Services which in that case have been delivered by APIcenter prior to the occurrence of the force majeure situation and during the force majeure situation will be paid for on a pro rata basis.
Charges and payment
- The fees payable by Customer for use of the Services are specified in the Agreement.
- All prices quoted by APIcenter are in euros and exclusive of VAT and other government taxes and duties.
- Customer must pay a periodic fee for the Services provided by APIcenter. For the additional work as mentioned in article 4.4, Customer must pay a fixed compensation.
- APIcenter will send an invoice for all amounts due and it is entitled to invoice in advance and electronically.
- All prices in each Quotation and on the Website are subject to programming and typographical errors. In the event of any inconsistency between the Website and the Agreement, the Agreement shall prevail at all times.
- APIcenter is entitled to increase the prices used in this Agreement at any time. APIcenter will inform Customer at least two (2) months in advance. In the event of a price increase, Customer has the right to terminate the Agreement, subject to one (1) months’ notice.
- APIcenter is entitled to index the prices used in this Agreement annually, during the month of January, on the basis of the consumer price index of Statistics Netherlands (Centraal Bureau voor de Statistiek), without the possibility for Customer to terminate the Agreement.
- All amounts must be paid within fourteen (14) days after the invoice date, unless a longer term of payment is indicated on the invoice. If Customer fails to pay the amounts due within the agreed term, Customer shall be in default by operation of law, without notice of default being required. If the amount due is not paid within the term of payment, Customer will be liable for payment of the statutory commercial interest, referred to in Section 6:119a of the Dutch Civil Code, on the outstanding amount, as well as any extrajudicial costs, including costs for lawyers, bailiffs and legal experts, without notice of default being required.
- Under no circumstance is Customer allowed to set off its payment obligations under the Agreement with a claim they might have on whatever grounds.
- APIcenter may amend these Terms and Conditions at any time if the changes are not significant or are required by applicable mandatory law.
- APIcenter will endeavour to announce the changes or additions to Customer by email at least thirty (30) days before they take effect, to enable Customer to take note of them.
- If Customer does not wish to accept a change or addition which falls outside the scope of article 16.1, Customer may give notice to terminate the Agreement until the date it takes effect. Use of the Services after the effective date will be regarded as acceptance of the amended or supplemented Terms and Conditions.
- This Agreement is governed exclusively by Dutch law.
- Any dispute between the Parties in connection with or rising from the Agreement will be submitted to the competent court in the Netherlands in the district where APIcenter has its registered office.
- Where the Agreement refers to “written” or “in writing”, this also includes e-mail communication provided the identity of the sender and the integrity of the content can be adequately established.
- The version of any communication of information as recorded by APIcenter will be deemed to be authentic, unless Customer supplies proof to the contrary.
- Customer will not be authorised to transfer this Agreement or any of its rights and obligations arising therefrom to a third party without the written consent of APIcenter. APIcenter will be authorised to transfer this Agreement and all its rights and obligations arising therefrom to a third party that acquires the business operations to which this Agreement is subject.