The following words, when written with a capital letter, will have the following meaning:
Account Any account of the Client on the Platform.
Agreement Every present or future offer, agreement or other (legal) relationship between Cyberdigma and the Client, including Appendix/Appendices.
Appendix/Appendices Any appendix/appendices to an Agreement.
Client The company that Cyberdigma enters into an Agreement with.
Cyberdigma The private company with limited liability Cyberdigma BV.
DCC Dutch Civil Code.
End User A person creating a booking for a meeting space, workspace or office space.
License The right that is granted to the Client by Cyberdigma to use the Platform including the Software, described in the Agreement.
Locations Locations have a location manager, customer reviews and at least one or more workspaces and meeting spaces.
Operator The third party that enters into an agreement with the Client for one or more of its Locations.
Platform The Cyberdigma Hospitality Platform, which is in essence a cloud-based Connectivity, Serendipity and Transaction System branded for the Client. With the Platform, the Client is able to provide an innovative and disruptive working-, meeting & office concept that allows third parties to book (work-, desk-, & meeting-) seats at a physical location in exchange for monetary and/or Social Capital. All digital aspects of the Platform are enabled by the Software through which the Client allows its customers, Operators and their employees to interact.
Services The services related to the Platform, such as access, security, maintenance and updating.
Software The fully managed proprietary cloud platform that is an integral part of the Platform. The Software provides booking, property management, customer relationship management and analytics functions as well as real time dashboards.
T&C These general terms and conditions.
- The T&C and their applicability
- These T&C of Cyberdigma, apply to the Agreement between Cyberdigma and the Client.
- Any deviations from the T&C shall only apply if agreed in writing.
- Cyberdigma has the right to unilaterally amend the T&C, which amendments will then also apply to already existing Agreements. Where this is the case, an amended copy will be provided. The most recent version can always be found on www.cyberdigma.nl. If the time at which the amendments enter into force has not been specified, an amendment shall enter into force at such time as the amended T&C are made available.
- If all or part of (any provision) of the T&C or Agreement is void or unenforceable, or is held to be void or unenforceable by the competent (judicial) authority, the remaining provisions of the T&C shall remain in force. In that case, provisions that are not legally valid or that cannot be legally enforced shall be replaced by provisions that most closely follow the content of the invalid provision.
- The applicability of any terms and conditions used by the Client is hereby expressly rejected.
- Conclusion of an Agreement
- Negotiations conducted and offers made by Cyberdigma are always based on information and data, in any way shape or form, provided by the Client. The Client guarantees that the information and data provided is correct, complete and consistent.
- If necessary, according to Cyberdigma, the Client will provide additional information and data to Cyberdigma, without prejudice to the aforementioned guarantee regarding provided information and data.
- An Agreement with the Client will only come into effect after Cyberdigma confirms that either electronic or in writing.
- Cyberdigma is entitled to outsource the Services or part thereof to third parties (e.g., subcontractors), who will be selected by Cyberdigma. Articles 7:404 and 7:407(2) DCC do not apply to the Agreement. Cyberdigma is not liable for any errors or omissions (such as last-minute cancellation) of any third parties engaged by Cyberdigma, including subcontractors. This also applies to legal entities or natural persons (in)directly carrying out work for Cyberdigma.
- Cyberdigma shall execute the Services at the best of its knowledge and abilities and according to the requirements of professional practice. This qualifies as a best effort obligation of Cyberdigma and expressly not as an obligation to achieve a result.
- A term for execution of Services by Cyberdigma is always indicative and shall therefore never be considered a strict or fatal deadline, except when explicitly agreed upon otherwise by Cyberdigma and the Client.
- If a term for the execution of certain services is exceeded, Cyberdigma will inform the Client as soon as possible. Cyberdigma is in any case, however, not liable for any damages that the Client might incur because of the exceeding of the term.
- If an Agreement includes a contractual payment obligation for Cyberdigma, such an obligation will only be payable 14 days from the date on which Cyberdigma confirms in writing that it will pay the amount under that contractual obligation. The term communicated for this payment is not a strict nor fatal deadline.
- The Client is obligated to receive the Services of Cyberdigma when they are provided by the latter or on its behalf.
- All prices mentioned by Cyberdigma are exclusive of VAT and any other taxes, unforeseen costs, and/or all extra third-party costs and rates (e.g., costs for transport, (renting) equipment from third parties and rates from other contractors) unless expressly agreed upon otherwise.
- Cyberdigma can raise the price in the interim in the case of unforeseen and cost price increasing circumstances, if these circumstances occur after the establishment of the Agreement.
- Payment and other obligations of the Client
- Any payment obligation of the Client under an Agreement must be paid by it in euros.
- The payment term for every payment under an Agreement is 14 days after the date of invoicing. This term is a strict and fatal deadline. Thus, if the Client fails to pay on time, it shall be in default without further notice.
- If the aforementioned term is exceeded, a penalty at a rate of 10% per month (whereby a part of a month shall constitute a full month) will be immediately due and payable, without prejudice to Cyberdigma’s right to claim performance of the Agreement or its right to claim full damages. This provision expressly derogates from article 6:92 DCC.
- If the Client is in default regarding any due and payable amount, Cyberdigma will furthermore be entitled to claim compensation of extrajudicial collection costs. These costs are hereby set at 15% of the due and payable amount with a minimum of € 500,00. This provision expressly derogates from article 6:96 paragraph 4 DCC and the Extrajudicial Collection Costs (Fees) Decree (Besluit vergoeding voor buitengerechtelijke incassokosten).
- Any objections to invoices must be communicated to Cyberdigma in writing within no more than 14 days of receipt, after which period objections can no longer be raised by the Client, and all invoices, specifications, descriptions and prices are deemed to be approved and confirmed by the Client.
- Cyberdigma will at all times be entitled to require that the Client makes payments in advance or that the Client provides sufficient security.
- Every term that applies to other obligations of the Client than set out above is also a strict and fatal deadline. Thus, if the Client fails to perform within the given term, it shall be in default without further notice.
- The Client is not entitled to outsource the performance of its obligations under an Agreement or part thereof to third parties (e.g., subcontractors), without the explicit written permission of Cyberdigma, to which permission it can attach conditions.
- The Client is under no circumstances entitled to suspension, reduction or set-off of its obligations under an Agreement.
- Upon first request of Cyberdigma the Client is obligated to provide Cyberdigma with additional security/collateral for the Client’s payment obligations under any Agreement.
- If the same Agreement is entered into by multiple Clients, each one of these Other Parties will be jointly and severally liable for the performance of the obligations under the Agreement and this T&C.
- Termination of the Agreement
- In the following cases (but not limited thereto):
- the Client fails to fully and timely comply with any (payment) obligations under the Agreement and/or T&C;
- the Client is declared bankrupt or suspension of payment is granted;
- the Client requests bankruptcy, suspension of payment or liquidation;
- the Client loses the ability to control its assets partly or fully;
- the assets of the Client are attached in execution in any jurisdiction;
- a change of control takes place regarding the Client (“control” shall mean (i.) the power to (directly or indirectly) appoint, or dismiss management of such Client, or (as the case may be) a partner in a (general) partnership (ii.) the power to control (directly or indirectly) a majority (e.g., 50% plus 1) of the voting rights in respect of such Client);
- the demise of the Client, a(n) (in)direct shareholder or (in)direct board member of the Client or a(n) (in)direct partner in case the Client is any kind of (general) partnership;
- the Client has provided incorrect and/or incomplete and/or inconsistent information/data.
Cyberdigma is, without prejudice to its rights based on Dutch law, these T&C, and the Agreement, entitled to immediately and without notice period (partially) terminate (‘opzeggen of ontbinden’) the Agreement by means of written notice, without the Client being entitled to any kind of compensation (of damages), payments or guarantees.
- If an Agreement is a contract for a specified period, the Client is expressly not entitled to terminate (‘opzeggen’) the Agreement before the end of the term, in derogation from article 7:408 DCC.
- The Client shall notify Cyberdigma in writing of any complaints within one month after it discovers a possible shortcoming or fault or should reasonably have discovered the shortcoming or fault.
- A timely notified complaint does not suspend or cancel any (payment) obligation of the Client.
- If the Client does not notify Cyberdigma timely, the Client is not entitled to any recovery performance or compensation.
- If it is established that a complaint is not justified, the Client shall compensate Cyberdigma for made expenses.
- Cyberdigma shall not be liable for any damages except in the case of intent or deliberate recklessness on the part of Cyberdigma.
- Any contractual or noncontractual liability on the part of Cyberdigma as a result of intent or deliberate recklessness will in all cases be limited to direct damages. Cyberdigma will never be liable for any indirect damages including but not limited to: lost earnings or profits, lost savings, loss of goodwill, damage caused by interruptions in the Client’s company, reputational damages, damages claimed by the customer of the Client, loss or damages to assets owned or used by the Client.
- Any contractual or noncontractual liability is furthermore limited to the amount invoiced by Cyberdigma for (the performed part of) the Agreement directly related to the possible shortcoming or breach. Under no circumstances will the liability of Cyberdigma for damages exceed the amount actually paid by Cyberdigma’ liability insurance in the relevant matter, even if the invoiced amount exceeds the insured amount.
- Client shall indemnify Cyberdigma against any and all losses, claims, damages, liabilities, actions, costs or expenses, including but not limited to attorneys’ fees, related to any claim from Operators, Locations or other third parties regarding the (use of the) Platform.
- The provisions in this Article shall also apply for the benefit of all legal and natural persons utilised by Cyberdigma in execution of an Agreement.
- To avoid misunderstanding, Cyberdigma and the Client expressly state that in any case Cyberdigma is, without prejudice to the aforementioned, not liable for any outing/provided information (e.g., regarding prognosis, impact and prices) whether outed on their website or otherwise. While Cyberdigma endeavours to keep the information up to date and correct, it makes no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability for any purpose. Any reliance the Client places on such information/outings is therefore strictly at its own risk.
- All information and data that the parties acquire from each other under the Agreement will be handled carefully by the parties and will be treated strictly confidential. Unless expressly agreed otherwise, all information provided in or because of this Agreement including its Appendices and, on the Platform, qualifies as confidential information. Confidential information shall not be disclosed to anyone, except to employees or third parties that need to be aware of the information to carry out obligations under the Agreement or if required by law.
- The Client warrants that all employees, directors, officers, agents, professional advisors and/or other third parties that need to have access to the confidential information are fully aware in advance of this confidentiality obligation and have agreed in writing to comply with this obligation.
- In case of any breach of the conditions as set out in this article, Client will be liable to pay Cyberdigma an immediately payable penalty of € 50.000,00 per incident and € 10.000,00 for each day that the Client is in breach, which shall be payable to Cyberdigma without prejudice to Cyberdigma’s entitlement to request performance and/or full compensation.
- Intellectual property
- Cyberdigma will have and retain the ownership of everything contributed by Cyberdigma, including any intellectual property rights and/or goods in respect of which intellectual property rights can be claimed (‘IP’).
- Except as expressly agreed otherwise in writing, all IP in or arising out of/in connection with the Platform and/or Services shall be owned by Cyberdigma. If a further (notarial) deed is required for the acquisition of IP by Cyberdigma, the Client hereby agrees with the transfer of this IP and the recording thereof in a (notarial) deed.
- The Client does not acquire any right, title or interest in or to any IP from Cyberdigma.
- All materials provided by Cyberdigma through the Platform or under the Agreement are and remain the exclusive property of Cyberdigma and should be returned to Cyberdigma within 24 hours after this Agreement ends.
- By using the Platform, several data from the Client will be submitted to Cyberdigma. This data is essential to Cyberdigma. By gathering this data from all Clients on the Platform, Cyberdigma can improve the Platform and her Services.
- With this Agreement, the Client does not transfer (the right to) any data to Cyberdigma. The Client provides Cyberdigma with a non-exclusive perpetual license to use Client’s data for the improvement of the Platform and Services.
- If Cyberdigma produces a database that contains data of the Client, all (intellectual property) rights related to that database will be vested in Cyberdigma or one of Cyberdigma’s subsidiaries or affiliates.
- The Client warrants that all necessary consents and notices are in place to enable lawful transfer of personal data to Cyberdigma under the Agreement.
- Furthermore, Client warrants that there are no third party (intellectual property) rights that are inconsistent with providing Cyberdigma with documents, information, data and materials as aforementioned. Client shall indemnify Cyberdigma against any action based on the claim that such providing the data and document infringes third-party (intellectual property) rights.
- Force Majeure
- Cyberdigma is entitled to suspend Services in case Cyberdigma is not able to perform those Services (timely) due to circumstances that Cyberdigma does not control directly (force majeure).
- A Force Majeure includes, though is not limited to, disturbances in Cyberdigma’s company, or in the supply chain of products, technology (such as apps, websites, lacking availability of data sources/connections/resources, e.g. flooding of data centers or non-functioning satellites) and services, materials or equipment, and in (environmental) circumstances making performance unreasonably onerous and/or disproportionately difficult for Cyberdigma, including CO2 increase and other climate change consequences, earthquakes, volcanic eruptions, power disconnections, asbestos, soil detoxication, serious conflicts, (assumed) terrorist attacks, extreme weather circumstances, (regional) pandemics, acts or omissions (such as non (timely) performance) by suppliers, transporters, subcontractors or other third parties, incorrect or incomplete information provided by the Client or third parties and technical failures.
- If Cyberdigma’s aforementioned suspension exceeds a period of three months, or Cyberdigma, in its sole discretion, foresees that the suspension will exceed this period, it is entitled to immediately and without notice period (partially) terminate (‘opzeggen of ontbinden) the Agreement by means of written notice, without the Client being entitled to any kind of compensation (of damages), payments or guarantees.
- Transfer of rights
- Cyberdigma is permitted to transfer the rights and obligations described in any Agreement to third parties. Cyberdigma must notify the Client of any such transfer. If this situation arises, the Client hereby, in so far as necessary already states that it grants Cyberdigma its irrevocable and unconditional permission. Cyberdigma will not be obliged to pay any compensation whatsoever in this respect.
- The Client is not entitled to transfer the rights and obligations described in any Agreement to third parties without the prior written permission of Cyberdigma, to which permission it may attach certain conditions.
- Governing law and jurisdiction
- These T&C, all (existing) Agreements and any future (legal) relationships between Cyberdigma and the Client are exclusively governed by Dutch law.
- Any disputes that may arise from these T&C, Agreements or any future (legal) relationships between Cyberdigma and the Client will be submitted to the competent court in Utrecht, the Netherlands.