Terms and conditions

ARTICLE 1. | DEFINITIONS

The terms below starting with a capital letter are defined as follows throughout these general terms and conditions.

Vizify: the user of these general terms and conditions, part of Lucus Websites, located at Lankerenseweg 10 A, 3781 NB in Voorthuizen, registered with the Trade Register under Chamber of Commerce number 54260698.
Other Party: any legal entity or natural person acting in the performance of a profession or business, with whom Vizify has concluded or intends to conclude an Agreement.
Parties: Vizify and the Other Party jointly.
Agreement: any agreement between the Parties, under which Vizify has undertaken in respect of the Other Party to commission the Software.
Software: the software to be provided by Vizify to the Other Party for its use under the Agreement, which the Other Party can avail itself of to allow its (potential) customers to experience products in 3D. The specific functionalities of the Software may vary for each Agreement.
Web Space: the website specified by Vizify, where the Agreement is concluded and where the Other Party can set up the Software under its account.
Lead: any set of data sent through the Software by or for the purpose of a (potential) customer of the Other Party as a result of which the (potential) customer in question is shown a product of the Other Party in 3D.
Written/In Writing: communication in writing, as well as communication by e-mail.

ARTICLE 2. | GENERAL PROVISIONS

These general terms and conditions shall apply to any offer by Vizify to enter into an Agreement and any Agreement concluded accordingly.
The general terms and conditions of the Other Party, under any title whatsoever, shall not apply to the Agreement and are expressly rejected where necessary.
The provisions of these general terms and conditions may only be deviated from expressly and In Writing. If and insofar as the provisions expressly agreed by the Parties in Writing deviates from the provisions of these general terms and conditions, the provisions expressly agreed by the Parties in Writing shall apply.
Annulment or invalidity of one or more of the provisions of these general terms and conditions or the Agreement as such shall not affect the validity of the remaining clauses. In such case, the Parties are obliged to enter into mutual consultation in order to reach a replacement arrangement in respect of the affected clause, while the purpose and purport of the original clause shall be observed as much as possible.

ARTICLE 3. | OFFER AND CONCLUSION OF THE AGREEMENT

With respect to the conclusion of an Agreement, the Other Party must register on the Web Space. Vizify's offer to register on the Web Space is without obligation. Vizify shall never be obliged to enter into an Agreement with the Other Party and may refuse the Other Party’s registration immediately, i.e. as soon as possible after registration by the Other Party.
The Other Party cannot derive any rights from an offer by Vizify that contains an obvious error or mistake.
Without prejudice to the provisions of paragraph 1, each Agreement shall be concluded from the moment that the Other Party’s registration on the Web Space is completed in the manner specified for that purpose. Without prejudice to the provisions of paragraph 1, Vizify will subsequently confirm the establishment of the Agreement by e-mail.

ARTICLE 4. | CONTENT AND TERM OF THE AGREEMENT

During its term, the Agreement provides for the commissioning of the Software to the Other Party. The Other Party shall owe Vizify a fixed amount per month or a specific contract period for this purpose, which amount includes a specified maximum number of Leads. For additional Leads, the Other Party shall owe the expressly agreed additional fees per Lead. The fees are determined on the basis of the graduated scale expressly agreed between the Parties. The fee for Leads shall only be due by the generation of a Lead as defined in Article 1.7, regardless of whether this leads to further action such as the submission of an offer by the Other Party or a (purchase) agreement between the Other Party and its (potential) customer.
Vizify undertakes to provide support regarding the set-up and use of the Software only to the extent that this can be required of Vizify within the limits of reasonableness to be determined by Vizify.
Such support will be provided by e-mail or telephone. In this respect, Vizify shall never commit itself to a specific response time. Vizify reserves at all times the right to provide the aforementioned support for additional payment if it believes that the Other Party’s request exceeds the aforementioned limits of reasonableness. In that case, the Other Party will receive a free, no-obligation proposal for the provision of such support.
The Other Party shall be liable in respect of Vizify for the acts and omissions of persons within the Other Party's company who use the Web Space on behalf of the Other Party. The Other Party and these persons are not permitted to give the Web Space or Software to persons outside the organisation of the Other Party or to use it or allow it to be used for purposes for which the Web Space or Software is not intended, for example for visualising third-party products or generating leads for third parties.
During the term of the Agreement, Vizify offers the Other Party a limited, non-exclusive, non-transferable and non-sublicensable right of use in respect of the Software and Web Space, however, only if and to the extent that this right of use accrues to the Other Party in accordance with the provisions of this clause.
All (intellectual) property rights to the Software shall remain vested with Vizify.
Use of the Software and Web Space is only permitted in accordance with the purposes for which the Software was developed and intended.
The rights to which the Other Party is entitled under the Agreement are not transferable to third parties.
The Other Party and persons within its company are prohibited from attempting to decompile or imitate the software used with respect to the Software, to manipulate it in any other way or develop software that infringes the Software.
During the term of the Agreement, Vizify will make every effort to achieve the most effective operation of the Software by applying updates and rectifying faults, etc., but never undertakes to be bound by any specific deadlines in this regard.

Term and termination
The Agreement is entered into for an indefinite period, unless at the time the Agreement is entered into, the provision is expressly made that it is entered into for a definite period.
If the Agreement was explicitly entered into for a fixed term, after the expiry of this fixed term, the Agreement will always be tacitly renewed by another term as the originally agreed fixed term, unless the Agreement has been terminated in time in accordance with the provisions of the previous paragraph.
The Agreement shall terminate by giving one month's notice, yet not before the expiry of any specified term. Termination by the Other Party must take place under the Other Party's account on the Web Space.
In case the Other Party cancels the Agreement prematurely or does not respect the applicable notice period, it shall not claim a refund or remission of any amounts that it would also owe if the Agreement were terminated in a regular manner.
The right of the Other Party and persons within its company to use the Software ends by operation of law by the termination of the Agreement.
After the termination of the Agreement, Vizify has no duty of retention whatsoever in respect of any data of the Other Party or its customers or potential customers that are stored using the Software.

ARTICLE 5. | OBLIGATIONS ON THE PART OF THE OTHER PARTY IN GENERAL

Whether or not at Vizify's request, the Other Party guarantees to provide Vizify with all information reasonably relevant to the set-up and performance of the Agreement in good time, completely and in any manner possibly required by Vizify for that purpose. The Other Party guarantees the accuracy of this information.

ARTICLE 6. | FORCE MAJEURE

Vizify shall not be obliged to fulfil any obligation under the Agreement if and for as long as it is prevented from doing so by a circumstance which cannot be attributed to it under the law, a legal act or generally accepted practice (force majeure). In addition to the provisions in this respect in the law and case law, force majeure includes breakdowns in communication or network connections or in equipment or software of Vizify or third parties, staff illness, epidemics, pandemics, fire and measures taken by any government.
If the force-majeure situation makes fulfilment of the Agreement permanently impossible or the force-majeure situation continues for more than three months, the Parties shall be entitled to dissolve the Agreement with immediate effect.
If, when the force-majeure situation arises, Vizify has already partially fulfilled its obligations, or is still only able to partially fulfil its obligations, it shall be entitled to separately invoice the part of the Agreement that has already been fulfilled or that can still be fulfilled as if it were an independent Agreement.
Without prejudice to the application of the previous paragraph, any loss resulting from force majeure shall not at any time or in any way be eligible for compensation.

ARTICLE 7. | SUSPENSION AND TERMINATION

Where reasonably justified by the circumstances of the case, Vizify shall be authorised to suspend the execution of the Agreement or to dissolve the Agreement in full or in part with immediate effect, if and to the extent that the Other Party fails to fulfil its obligations under the Agreement or fails to do so on time or in full, or if circumstances come to Vizify's knowledge after the Agreement has been concluded, which give Vizify good reason to fear that the Other Party will not fulfil its obligations. If the fulfilment of the obligations of the Other Party in respect of which it fails or is about to fail is not permanently impossible, the right to dissolve the Agreement shall only arise after the Other Party has been given notice of default in writing, which notice of default must state a reasonable term within which the Other Party can (still) fulfil its obligations, and the fulfilment has still not been effected after the expiry of the last-mentioned term.
In the event that the Other Party liquidates its business or transfers it to a third party, is in a state of bankruptcy, has applied for (provisional) suspension of payments, a statutory debt-rescheduling arrangement is declared applicable to it, any attachment is levied on its goods, as well as in cases in which the Other Party is unable to freely dispose of its assets in any other way, Vizify shall be entitled to dissolve the Agreement with immediate effect.
The Other Party shall be obliged to compensate Vizify for any loss suffered as a result of the suspension or dissolution of the Agreement.
In the event that Vizify dissolves the Agreement, any claims that Vizify still has against the Other Party shall be immediately due and payable.

ARTICLE 8. | PAYMENTS

Unless expressly stated otherwise by Vizify, all amounts stated by Vizify and payable by the Other Party to Vizify are exclusive of VAT.
In case an Agreement has been entered into for a definite period, payment must be made for the entire contract period at once and in advance and any costs for additional Leads will be charged monthly. In case an Agreement has been entered into for an indefinite period, payment shall at all times be made monthly.
Payments shall be made by direct debit on the basis of the authorisation provided by the Other Party for that purpose at the time of the conclusion of the Agreement.
If the direct-debit authorisation is withdrawn or if a payment is reversed, payment must still be made through a bank transfer within the period specified by Vizify. In such cases, without prejudice to the provisions of paragraphs 8 and 9, Vizify shall also be entitled to charge the costs associated with the revocation or reversal.
The Other Party shall at all times be obliged to pay without any recourse to suspension or offsetting amounts.
Vizify is entitled to submit the relevant invoices to the Other Party exclusively by e-mail.
If the Other Party liquidates or transfers its company to a third party, is in a state of bankruptcy, has applied for (provisional) suspension of payments, a statutory debt-rescheduling arrangement is declared applicable to it, any attachment is levied on its goods, as well as in cases in which the Other Party is unable to freely dispose of its assets in any other way, the claims against the Other Party shall be immediately due and payable.
If case of failure of timely payment, the Other Party shall be in default by operation of law. From the day that the Other Party's default commences, the Other Party shall owe interest of 2% per month on the outstanding amount, whereby a part of a month shall be considered a full month.
All reasonable costs, both judicial, extrajudicial and execution costs, incurred to obtain amounts owed by the Other Party, shall be borne by the Other Party.

ARTICLE 9. | LIABILITY AND INDEMNIFICATION

The Other Party shall bear any loss caused by inaccuracies in the data provided by it through the Web Space or in any other way, or caused by any other failure by the Other Party to fulfil the obligations arising from the law or the Agreement, as well as caused by any other circumstance that cannot be attributed to Vizify.
The Software only has those functionalities as explicitly stated at the time the Agreement was entered into. The absence of functionalities of the Software not explicitly promised by Vizify cannot be regarded as a shortcoming on the part of Vizify and shall not entitle the Other Party to dissolve the Agreement or to damages or any other compensation.
Vizify shall provide any support to the best of its knowledge and ability. However, Vizify only undertakes a best-efforts obligation in this regard.
With respect to the use of the Software and Web Space, the Other Party is aware that Vizify cannot reasonably provide full protection against the security risks involved in a connection to the Internet and that these risks are greater in the case of permanent connection to the Internet.
Vizify shall not be liable for any loss resulting from failures or maintenance to be performed on servers and other systems which the performance of the Software depends on.
Without prejudice to the provisions of the remainder of these general terms and conditions, Vizify's liability for rectifiable loss only exists after the Other Party has given Vizify the opportunity to rectify such loss, failing which, no liability whatsoever shall arise for Vizify in that regard.
Vizify shall never be liable for any indirect damage, including losses suffered, loss of profit and loss due to interruption in business operations.
Vizify's liability shall be limited to no more than the invoice value of the Agreement, i.e. the part of the Agreement which comprises Vizify's liability. In the event that the Agreement has already continued for more than three months when the loss for which Vizify is liable occurs, the determination of the invoice value as referred to in the previous sentence shall only be based on the invoice value on the last three months of the Agreement.
A condition for the creation of any right to compensation is that the Other Party must have reported the loss In Writing to Vizify immediately upon its occurrence.
The limitation period for all claims and defences against Vizify is one year.
The Other Party shall indemnify Vizify against any claims and liabilities of third parties, including those of (potential) customers of the Other Party and suppliers or other entitled parties of the products shown through the Software in particular, for loss, the cause of which is attributable to parties other than Vizify. If Vizify is held liable by third parties for that reason, the Other Party shall be obliged to assist Vizify both extra-judicially and judicially and immediately do everything that can reasonably be expected of it in that case. If the Other Party fails to take adequate measures, Vizify will be entitled, without notice of default, to do so by itself. All costs and losses incurred on the part of Vizify and/or third parties as a result will be entirely for the account and at the risk of the Other Party.

ARTICLE 10. | INTELLECTUAL PROPERTY

Vizify reserves the title to all intellectual property rights with regard to the Software and Web Space, their effects, the texts, visual materials and other content of any nature whatsoever, except insofar as the relevant content originates from the Other Party itself. Further to this, Vizify reserves the intellectual property rights to the company name, logos and texts, visual materials and other content of any nature whatsoever displayed on the Web Space. Without Vizify's prior Written consent, (causing) multiplication, (causing) copies to be made or (causing) reproduction or (causing) publication or (causing) distribution or (causing) any other type of use, other than the use arising from the nature or purport of the Agreement or the normal use of the Software or Web Space, are not allowed.
A breach of the provisions of the previous paragraph attributable to the Other Party (including a breach by employees of the Other Party so included) shall entitle Vizify to claim immediate rectification of the breach, as well as compensation for loss to be determined based on the nature and scope of the breach. The foregoing applies without prejudice to the statutory liability of individual users.
Vizify shall at all times be entitled to appropriately mention its name and/or logo on the Software.

ARTICLE 11. | FINAL PROVISIONS

The Agreement and any resulting legal relationships between the Parties shall be governed exclusively by Dutch law.
Before any appeal to the courts, the Parties shall make every effort to settle the dispute by mutual agreement.
Only the competent court within the district of Vizify's place of business shall be competent to hear any legal disputes between the Parties.