Terms & Conditions

April 2022

Our Service Agreement and license terms and conditions

 

1. General Information

1.1 This Agreement sets out the general terms and conditions that apply to the Customer’s use of Business at Night's platform.

1.2 By implementing, using or otherwise making use of Business at Night, the Customer agrees to be bound by the general terms and conditions set out in this Agreement and its annexes. If the Customer does not accept this, the Customer may not implement, use or otherwise make use of Business at Night.

1.3 All prices are based on the amount and complexity of the service we deliver. A thorough introduction to the platform is provided and a free hotline is made available.

1.4 Business at Night provides operating support on the platform 8:00 – 21:00 during weekdays and 10:00 – 21:00 in weekends. All inquiries should be sent to info@businessatnight.ai.

2. Business at Night services

2.1 Business at Night's services are offered on a SaaS model, i.e. that the Customer always has access to the data. Business at Night’s services are changed / improved continuously, but no guarantee is given for full compatibility back in time. 

2.2 Business at Night shall provide hosting, upgrading and maintenance of the Business at Night platform without additional payment.

3. Payment of the license fee

3.1 The license fee is agreement-specific and is regulated in the above Agreement specification.

3.2 The license fee shall be paid on time, as agreed between the Parties. Unless otherwise stated in the above, there is a 14 day net payment period for invoices from Business at Night.

3.3 Invoicing is done in advance, unless otherwise agreed. Business at Night invoices the full amount upon contractual conclusion. Payment must be made within the agreed payment period.

3.4 In case of late payment, interest is calculated from the invoice date in accordance with the European Directive.

3.5 All license prices are adjusted annually according to the Net Price Index from October. If the net price index regulation is below 3%, the price automatically adjusted by 3%. A price regulation will enter into force at the applicable date of extension of this agreement.

4. Rights to data and the Business at Night platform

4.1 The registered data regarding end user customers and the content used in connection with          the Customer’s built-up campaigns always belong to the Customer. Business at Night has the right to use data on an aggregated and entirely anonymous level, as part of Business at Night's business and statistical purposes. Data used for statistical purposes will not contain personal data.

4.2 Business at Night has ownership, copyright and all other intellectual property rights to the Business at Night platform.

4.3 The Customer is not entitled to copy Business at Night unless, and only to the extent that, such actions are permitted under mandatory laws and the Customer shall in all respects comply with such laws.

5. Data protection and hosting

5.1 The parties are individually responsible for complying with their respective obligations regarding any processing of personal data by Business at Night on behalf of the Customer in connection with the use of Business at Night. Business at Night acts as a data processor only on instructions from the Customer who is responsible for the data.

5.2 As data processor, Business at Night takes the necessary technical and organizational security precautions to prevent information being accidentally or illegally destroyed, lost or impaired, and also to prevent them from becoming known to unauthorized persons, being misused or otherwise processed in violation of the Personal Data Processing Act. At the Customer’s request, Business at Night shall provide sufficient information to ensure that the aforementioned technical and organizational security measures have been taken.

5.3 Other data protection conditions are dealt with separately in any data processing agreement between Business at Night and the Customer. A data processing agreement will have to be in force between the parties before any event, product or service takes place. 

6. Legality

6.1 The Customer shall ensure that the Customer’s use of Business at Night in all respects is lawful. In particular, the Customer must ensure that the necessary consent for processing personal data is obtained and that all relevant rules regarding the processing of personal data, on marketing, on consumer protection, on spam and on use, etc. is complied with.

6.2 The customer is entirely responsible for compliance with all relevant legislation relating to implementation and the use of Business at Night.

7. Confidentiality

7.1 Business at Night treats all data, information and trade secrets relating to the Customer, that are acquired within the framework of cooperation and the use of the Business at Night services confidentially.

7.2 The Parties shall keep confidential all information (written or oral) concerning the business and affairs of the other party and any specifications, drawings, diagrams, patterns or other materials that it shall have obtained or received or created as a result of the discussions leading up to or the entering into or the performance of the Agreement, shall only use such information in

the proper performance of the Agreement and shall not without the other Party’s written consent disclose such information in whole or in part to any other person save those staff, subcontractors and agents involved in the implementation of the Agreement and who have a need to know the same and shall ensure that all such persons comply with the obligations in this Clause 7.2.

7.3 The Parties obligations in Clause 7.2 shall not apply to information that is already in the public domain other than as a result of a breach of Clause 7.2.

7.4 The Customer accepts that Business at Night may use examples from campaigns, name and logo in mentions for marketing purposes. All such use shall be made in good faith and to a fair extend.

8. Liability

8.1 The parties are liable under Dutch law.

8.2 Business at Night is not responsible for the outcome of the service provided. The Customer pays for the outreach, not for the outcome which we be partly determined by the behavior of the Customer at the time of the Event. 

8.3 In no event shall either Party be liable to the other Party for operating loss, business and/or operational disruption, loss associated with lost data, reconstruction of it or lack of access to it, lost profit and revenue, lost savings, claims raised by third parties against the other Party, or indirect losses or consequential damages of any kind.

8.4 User-logins are personal and shall not be shared. The Customer is responsible for the security of its user-logins. That is, the Customer must manage the unique passwords and user names assigned by Business at Night in a defensible manner. If the Customer notices any misuse, Business at Night must be informed immediately.

8.5 If Business at Night builds campaign(s) for the Customer, it is the responsibility of the Customer to review and approve the final campaign and settings to ensure that the campaign is as intended.

8.6 Business at Night is not responsible for force majeure-like conditions, such as interruption of power supply, breakdowns in public available networks, flooding and similar conditions, which prevent or restrict the delivery of the Business at Night services.

8.7 Business at Night is subject to product liability only to the extent that such liability arises under mandatory legislation.

9. Transfer of rights

9.1 The Customer may not sell, distribute, license, rent out, lease, lend, pawn or otherwise transfer, transport or surrender Business at Night or the rights of use thereto to third parties, hereunder collect marketing permissions for third parties, without prior written permission from Business at Night.

9.2 Business at Night cannot, without prior written consent from the Customer, transfer all or part of its rights and obligations under this Agreement to any third party. Business at Night is, however, entitled at any time without the Customer’s consent to transfer its rights and obligations under this Agreement as part of a sale of the business operated by Business at Night or to companies that are group-associated with Business at Night.

10. Entry into force and termination

10.1 This Agreement shall enter into force on the date of the Customer’s acceptance of the Agreement and shall remain in force until it is terminated pursuant to this clause 10.

10.2 This Agreement can be terminated with effect from the end of the license period no later than 1 month prior to the end of the license period.

10.3 This Agreement will automatically renew for additional 1 year successive agreement periods, unless terminated by one of the Parties no later than 1 month prior to the end of an agreement period.

10.4 In the event of a material breach, the non-breaching party may terminate this Agreement with the defaulting party if the material breach has been pointed out with 14 days written notice and has not been rectified by the defaulting party.

10.5. In the event of termination of this Agreement, the Customer is obliged to discontinue using Business at Night. Upon termination, Business at Night is not required to repay any portion of the paid license consideration to the Customer, but in the event of termination as a result of material breach by Business at Night, the Customer may demand compensation for the loss suffered because of the limitations imposed by this Agreement in addition to a pro rata repaid portion of the paid license fee.

10.6. At the expiration or termination of the License Agreement, the Customers account in the Platform will be deleted no earlier than 12 months after the expiration or termination. Business at Night undertakes to notify the Customer of the expected time of any such deletion no less that 14 calendar days in advance thereof. The account can be deleted prior to the 12 months after the expiration or termination of this License Agreement by contacting support at info@businessatnight.ai.

10.7. Deletion of personal data is dealt with separately in the Data Protection Agreement between the Parties.

11. Choice of law and legal venue

11.1     Any dispute between the parties shall be governed by Dutch law of first instance.