General Terms & Conditions
ARTICLE 1. DEFINITIONS
Insofar as the nature or scope of these provisions does not provide otherwise, the following terms shall have the following meanings in these General Terms & Conditions.
- Vivalert: the user of these General Terms & Conditions, with its registered office in Rotterdam, registered with the Trade Register under Chamber of Commerce number 24179784.
- Application: the program “Vivalert”, which in the context of the Agreement is supplied to the User for use on mobile phones and tablets.
- User: the natural person who has concluded or intends to conclude an Agreement with Vivalert.
- Agreement: any Agreement concluded between Vivalert and the User, which Agreement provides for the purchase and use of the Application.
ARTICLE 2. GENERAL PROVISIONS
- These General Terms & Conditions apply to any offer from Vivalert and to any concluded Agreement.
- Annulment or nullity of one or more of these provisions does not affect the validity of the other provisions. Where appropriate, parties are obliged to enter into mutual consultations in order to reach an alternative arrangement as regards the affected provision. The affected provision shall be replaced by a provision that most closely matches the purpose and purport of the original provision.
ARTICLE 3. FORMATION AND TERMINATION OF THE AGREEMENT
- The Agreement is formed at the moment that the User downloads the Application, agrees to the applicability of these General Terms & Conditions and complies with all conditions mentioned in the offer, including payment of the agreed price.
- The statutory right of termination as meant in article 6:230o Burgerlijk Wetboek [Dutch civil law] does not apply to the User if on entering into the Agreement the User has expressly agreed that the performance of the Agreement has begun and that in doing so he has declared to waive this right of termination.
- Without prejudice to the provisions of article 5 the Agreement ends when the User removes the Application from his or her mobile phone or tablet. Any new download of the Application obliges the User to again pay the then applicable purchase price.
ARTICLE 4. THE APPLICATION
- The Application is intended for people living alone. One or more times a day, the User reports to the Application, thereby indicating that everything is alright. If the User, in spite of having been reminded by the Application, fails to report to the Application on time in the prescribed way, a text message and email will be sent to one or two designated contact persons. Thus the Application performs a monitoring function for people living alone.
- The Application is not meant for use by minors or as a babysitting device or similar application.
- The Application only has the features as expressly mentioned in the offer. The Application has no GPS feature on the basis of which the location of the User could be determined. Vivalert shall not in any way be liable for the absence of features of the Application not expressly mentioned in the offer.
- The Application is intended as an aid and must never be considered as a full replacement of any kind for other means of monitoring that can be used by the contact person(s) specified by the User. Vivalert cannot guarantee that the Application and the services on which the features of the Application depend will always function correctly. Use of the Application is at the User's own risk. Vivalert excludes any liability in connection with the use of the Application. In particular, Vivalert accepts no liability for damage as a result of:
- incorrect or incomplete data supplied by the User, such as contact details of contact persons to be specified;
- technical failures that affect the operation of the Application, including the delivery of messages to contact persons, for longer or shorter periods of time;
- the fact that contact persons fail to notice text and email messages from Vivalert;
- other circumstances not attributable to Vivalert including, but not limited to, force majeure and use of the Application not in accordance with the supplied instructions for use.
ARTICLE 5. DISCONTINUATION OF THE AVAILABILITY AND MARKETING OF THE APPLICATION
At all times, Vivalert is entitled to discontinue the availability of the Application and its operation, on the understanding that the User shall be able to use all offered features until at least one year after purchase of the Application. If Vivalert is nevertheless obliged to discontinue the operation of the Application at an earlier date, the User is entitled to restitution of the purchase price. The User is never entitled to any further compensation for damages.
ARTICLE 6. ABUSE OF THE APPLICATION
- Abuse of the Application is strictly prohibited. Abuse includes, but is not limited to, the deliberate causing of failures or malfunctions in respect of the Application or servers of Vivalert or third parties and any other kind of infringement of the software or systems of Vivalert or third parties.
- The User shall not use the Application for wrongful acts, for acts contrary to the generally applicable standards and for committing offences. Among other things this includes the infringement of any (intellectual) property rights of Vivalert or third parties, the inappropriate, unlawful or punishable submission of data and unlawful infringements of the systems on which the services of Vivalert depend, including the spreading of viruses, worms, etcetera.
ARTICLE 7. FURTHER LIMITATIONS AND EXCLUSION OF LIABILITY
- Except for intent or wilful recklessness on the part of Vivalert, Vivalert excludes any liability for damage suffered in connection with the use of the Application. In particular, Vivalert is not liable for cases as meant in the previous sections and the rest of these General Terms & Conditions, including the provisions of article 4.
- Vivalert shall never be liable for damage resulting from the fact that the contact person(s) specified by the User does/do not respond to a Vivalert message. Vivalert is not a party to the agreements made between the User and his or her contact person(s) and does not accept any liability in respect of this. Furthermore, Vivalert shall never be liable for incorrect or obsolete telephone numbers, email addresses and/or other contact information.
- Vivalert is not obliged to ensure whether the data stored by the User by means of the Application are correct and complete. Therefore, Vivalert does not accept any liability for the data stored by means of the Application. The User indemnifies Vivalert against all claims of User and of third parties in that connection.
- At all times, Vivalert is entitled to modify the Application on minor points and does not accept any liability in that respect.
- Vivalert is not liable for damage resulting from the unauthorized use of user names and passwords on the Application.
- Vivalert endeavours to optimize the correct operation of the Application and the services. However, Vivalert cannot guarantee that the features of the Application are available without limitations and that all features of the Application will function without problems. Vivalert excludes any and all liability in that respect.
- At all times, Vivalert is entitled to temporarily disable the Application or its components if Vivalert considers this necessary for reasons of maintenance, modification or improvement of the Application or the servers of Vivalert or third parties. Vivalert excludes any liability as a result of inaccessibility or reduced accessibility of the Application or its components.
- Vivalert is not liable for any programming errors in the Application. Furthermore, Vivalert is not liable for viruses or other harmful components that may cause damage to the hardware or software of the User through the Application or servers of Vivalert or third parties.
- If the Application contains references, for instance in the form of hyperlinks, to the websites of third parties, Vivalert shall never be liable for the content of these websites.
- Vivalert shall make reasonable efforts to protect the Application and the other systems of Vivalert against any form of unlawful use by third parties. However, Vivalert shall never be liable for damage resulting from loss of or damage to data stored by the User.
- The User is liable towards Vivalert for any damage that the User may have caused as a result of the spreading of viruses, worms, etcetera through the systems of Vivalert, and for damage resulting from other actions that affect the proper functioning of the Application or its components for third parties.
- Insofar as, in spite of the provisions in these General Terms & Conditions, Vivalert should in any way be liable towards the User, this liability towards the User, on any account whatsoever, shall at all times be limited to € 250 per event (whereby a series of connected events counts as a single event).
- In any case, Vivalert shall never be liable for consequential damage and immaterial damage.
- A precondition for the emergence of any right to compensation is that the User informs Vivalert of the damage in writing immediately after it has occurred or has been discovered. Any claim for damages becomes void if the User fails to submit a complaint to Vivalert within a reasonable time, which term shall in any case expire 12 months after the claim has arisen.
- If and insofar as the User infringes the provisions of these General Terms & Conditions or any statutory provision, the User indemnifies Vivalert against any resulting damage and claims from third parties. The User also indemnifies Vivalert against all other claims from third parties in connection with the use of the Application.
ARTICLE 8. PRICE AND PAYMENT
- The User pays a one-off price for the Application. All prices quoted are inclusive of VAT.
- The price payable has to be paid through online payment, in the manner prescribed by Vivalert. The User is only entitled to use the Application after the advance payment has been received by Vivalert.
ARTICLE 9. SUSPENSION AND DISSOLUTION
- Any infringement of the provisions in these General Terms & Conditions entitles Vivalert to dissolve the Agreement with immediate effect, unless the infringement does not justify dissolution of the Agreement on account of its minor importance.
- Furthermore, Vivalert is entitled to suspend the implementation of the Agreement or to dissolve the Agreement with immediate effect, if circumstances that have come to the attention of Vivalert after the conclusion of the Agreement give good ground to fear that the User shall not fulfil his or her obligations or shall not fulfil them in full.
- Furthermore, Vivalert is entitled to dissolve the Agreement in the event of circumstances that are such that fulfilment of the Agreement is impossible or its unaltered maintenance cannot reasonably be required from Vivalert.
- The User shall never claim any form of compensation in connection with the right of suspension and dissolution exercised by Vivalert on the basis of this article.
- Unless the User is not responsible, all losses to be incurred by Vivalert in connection with the suspension or dissolution of the Agreement shall be for the account of the User.
ARTICLE 10. INTELLECTUAL PROPERTY
All copyrights and other intellectual property rights on the software, the Application and its components, also including the design, operation, images and sounds, belong to Vivalert or its licensors. The User shall not multiply or alter this material or in any way reproduce it, supply it to third parties or use it for commercial purposes.
ARTICLE 11. FINAL PROVISIONS
- All Agreements and all legal relationships arising therefrom between parties are exclusively governed by Dutch law.
- Before appealing to the courts, parties are obliged to make their best efforts to resolve the dispute in mutual consultation.
- Unless there is a mandatory legal provision to the contrary, only the competent court within the district of the place of domicile of Vivalert shall be competent to take cognizance of any disputes.
- Vivalert reserves the right to alter these General Terms & Conditions. Current Agreements are subject to the terms and conditions offered on conclusion of the Agreement until at least one year after the formation of the Agreement. The User is obliged to agree to the altered terms and conditions before use of the Application can be continued.
- For the interpretation of these General Terms & Conditions the Dutch language version always prevails.