Person Unknown

PERSON UNKNOWN

GENERAL TERMS AND CONDITIONS - Person Unknown

As registered with the Chamber of Commerce under number 82362572.

WHO WE ARE

Our website adress is: https://www.personunknown.com.

ARTICLE 1. Definitions and general

  1. In these general terms and conditions, hereinafter referred to as: ‘Conditions’, the following definitions apply:
    1. Person Unknown: The general partnership ‘Person Unknown’, established in Groningen.
    2. Client: the natural or legal person, acting in the exercise of his profession or business, who has concluded an Agreement with Person Unknown or to whom Person Unknown has submitted a quotation.
    3. Parties: Both Person Unknown and Client.
    4. End User: The customer or employee of the Client who uses the Software.
    5. Software: The game/app developed by Person Unknown for the Client.
    6. Agreement: The order confirmation signed by the Parties.
    7. Specifications: The substantive, technical and functional requirements for the Software agreed in writing by the Parties.
    8. Errors: Substantial non-compliance of the Software with the written specifications. An Error only exists if it is reproducible.
    9. Acceptance Test: The period during which the Client must check whether the Software contains Errors.
  2. Deviation from the Conditions is only possible if this has been expressly agreed in writing. These deviations are only valid for the Agreement under which these deviations were made.
  3. If one or more provisions of these Terms and Conditions are null and void or are annulled by judicial intervention, the remaining provisions will remain in full force and effect. The parties draw up new provisions in mutual consultation, in accordance with the purpose and scope of the original provisions.
  4. The Conditions are stipulated for the benefit of any third party who, whether or not in employment, is involved in the performance of any Agreement or who is or may be liable in connection therewith.
  5. If Person Unknown uses third-party services, the general terms and conditions of the relevant third parties also apply. With regard to the services of these third parties, the general terms and conditions of these third parties apply in the relationship between Person Unknown and the Client, overriding the provisions of these terms and conditions. The Client accepts the general terms and conditions of these third parties.

ARTICLE 2. Quotation and Agreement

  1. All quotations issued by Person Unknown are without obligation and valid for 30 days after the quotation date.
  2. Person Unknown cannot be held to its quotations if the Client can or should reasonably understand that the quotation contains an obvious mistake or typo.
  3. The Agreement is concluded when the quotation signed for approval by the Client is returned by Person Unknown.
  4. Person Unknown will only start executing the Agreement when the Specifications of the Software have been approved in writing by the Parties.
  5. If no term has been agreed in writing, Person Unknown will commence the execution of the Agreement within a reasonable period after the Client has fulfilled its obligations under the previous paragraph.
  6. The Agreement is entered into for the provision of a specific service agreed in writing. After the performance of this service, the Agreement ends by operation of law.
  7. All execution times specified by Person Unknown can never be regarded as deadlines.

ARTICLE 3. Execution of the Agreement

  1. Person Unknown will execute the Agreement to the best of its knowledge, ability, with sufficient care, craftsmanship and in accordance with the agreed Specifications.
  2. If and to the extent that this is required for the proper execution of the Agreement, Person Unknown has the right to have certain work carried out by third parties.
  3. The Client must do everything that is reasonably necessary to enable timely and correct execution of the Agreement. In particular, the Client must ensure that the correct facilities are available to enable the installation of the Software.
  4. The Client must give Person Unknown access to all hardware, spaces, accounts and data, which is necessary to enable the execution of the Agreement.
  5. The Client is responsible for ensuring that all information that Person Unknown indicates is necessary or of which the Client should reasonably understand that it is necessary for the proper execution of the Agreement, is provided to Person Unknown in a timely manner. If this information is not made available to Person Unknown in a timely manner, Person Unknown has the right to suspend the execution of the Agreement. All additional costs resulting from this delay will be charged to the Client.
  6. The Software has been compiled by Person Unknown with the utmost care. However, Person Unknown cannot guarantee that the Software will always operate without interruption, errors or defects.
  7. Person Unknown cannot provide any guarantees regarding the functioning of the Software with non-current or outdated operating systems and other hardware and Software.
  8. Person Unknown is not obliged to check the data made available by the Client for accuracy and completeness.
  9. Person Unknown makes every effort to make the Software available to the Client, configured and managed to the best of its ability.
  10. Unless expressly agreed otherwise in writing, the Agreement does not cover:
    1. Maintenance of the Software after the Agreement has ended;
    2. Support to users and/or administrators of the Software after the Agreement has ended;
    3. Providing utility software and program or data libraries for the maintenance of the Software.
  11. If the Client needs to purchase licenses for the use of the Software, the Client must take care of this himself.
  12. In order to use the Software, the Client must provide the necessary equipment and/or internet connection at its own expense.
  13. The Client is not permitted to perform actions using the Software that:
    1. Are contrary to laws and regulations;
    2. Are contrary to good morals and/or social norms;
    3. (May) violate private and/or personal data of third parties;
    4. May disrupt the operation of the Software and/or other equipment or systems of Person Unknown and/or third parties;
    5. Give the impression that the Client is a moderator.
  14. The Client is not permitted to redirect via the Software to:
    1. Erotic, pornographic and/or offensive (image) material;
    2. Illegal site / sites where illegal things are offered.

ARTICLE 4. Changes to the Agreement and additional work

  1. If, during the execution of the Agreement, it appears that it is necessary for its proper execution to amend or supplement the Agreement and/or to change the term of the Agreement, the Parties will amend the Agreement in writing in a timely manner and by mutual agreement.
  2. If Person Unknown, at the request or with the prior consent of the Client, has carried out work that falls outside the content or scope of the Agreement, this work or performance will be reimbursed by the Client on the basis of subsequent calculation. Person Unknown is never obliged to comply with such a request.
  3. The Client accepts that the agreed or expected time of completion of the Agreement and the mutual responsibilities of the Client and Person Unknown may be influenced by work or performance as referred to in the previous paragraph. The fact that (the demand for) additional work arises during the execution of the Agreement is never grounds for the Client to terminate or dissolve the Agreement.

ARTICLE 5. Delivery

  1. Person Unknown determines the manner and on what type of data carrier the Software is made available to the Client.
  2. Person Unknown delivers the Software in phases. Person Unknown will only deliver the Software if, in its opinion, it meets the Specifications.
  3. After delivery, as referred to in the previous paragraph, the Client must approve or reject the delivered work in writing within ten working days. If the Client does not approve or reject the delivered work within the period of ten days, the delivered work will be deemed to have been approved.
  4. The Client may not base an approval or rejection in a later phase on aspects that were approved in an earlier phase.
  5. If the Client (partially) rejects a phase, Person Unknown is obliged to make every effort to remove the reason for the rejection. Person Unknown can achieve this by either adjusting the Software or by substantiated refute that there is no valid reason for the rejection. The Client then has ten working days to approve or reject the revision or motivation.
  6. Taking the previous paragraph into account, the Client is entitled to a maximum of two revisions per phase. If the Client rejects the delivered work after two revisions, each of the Parties has the right to terminate the Agreement with immediate effect. In that case, the Client owes Person Unknown compensation equal to the hours actually spent by Person Unknown.

ARTICLE 6. Installation and acceptance

  1. The parties must agree explicitly and in writing to what extent Person Unknown must install the Software at the Client.
  2. The following paragraphs of this article only apply if the Parties have expressly agreed in writing on an Acceptance Test. If no Acceptance Test has been agreed, the Client accepts the Software in the condition it is in at the time of delivery.
  3. The period for the Acceptance Test is ten working days, counting from the day of delivery or installation of the Software.
  4. If it appears during the Acceptance Test that the Software contains Errors, the Client must report this in writing to Person Unknown before the expiry of the Acceptance Test period. Person Unknown will endeavor to correct these Errors within a reasonable period and is entitled to implement temporary solutions, program bypasses or problem-avoiding limitations.
  5. Acceptance cannot be withheld on the basis of Errors that are not related to the written Specifications, aspects that can be assessed subjectively, or minor Errors that do not hinder the operational and/or productive use of the Software.
  6. The non-acceptance of a certain phase does not affect the acceptance of an earlier phase, as referred to in Article 5.
  7. The Software is considered accepted when:
    1. The Acceptance Test period has expired and no Errors have been reported; and/or
    2. When errors reported in a timely manner by Person Unknown have been corrected.
  8. During the period of the Acceptance Test, the Client is not entitled to use the Software for operational and/or productive purposes.
  9. Acceptance of the Software releases Person Unknown from its obligation to make available, install and deliver the Software.

ARTICLE 7. Prices and payment

  1. Person Unknown’s compensation is calculated on a fixed rate basis.
  2. All prices quoted are exclusive of VAT and other government levies.
  3. Person Unknown has the right to demand (full) advance payment of the compensation.
  4. Person Unknown is entitled to invoice in installments.
  5. Payment of the compensation must be made no later than 14 days after the invoice date.
  6. Client agrees to electronic invoicing by Person Unknown.
  7. If the Client has not paid within the period referred to in the previous paragraph, he will be in default due to that single fact, without any reminder or notice of default being required. In the event of default by the Client, Person Unknown is entitled to charge statutory interest on the amount not paid or not paid on time, running from the date of default until the day of full payment.
  8. If the Client fails to fulfill one or more obligations towards Person Unknown, all reasonable costs incurred in obtaining payment, in and out of court, will be borne by the Client, with the extrajudicial costs being at least 15% of the invoice amount, with a minimum of €100.00.
  9. The Client is not entitled to suspend and/or settle its obligations towards Person Unknown.
  10. The claim for payment of the compensation is immediately due and payable if the Client is declared bankrupt or is in a suspension of payments, or an application for either of these has been submitted.

ARTICLE 8. Liability

  1. Person Unknown is only liable to the Client for direct damage resulting from intent and/or gross negligence on the part of Person Unknown.
  2. Direct damage is exclusively understood to mean:
    1. The reasonable costs to determine the cause and extent of the direct damage;
    2. Any reasonable costs incurred to ensure that Person Unknown’s defective performance complies with the Agreement, unless these cannot be attributed to Person Unknown;
    3. The reasonable costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have led to limitation of direct damage.
  3. If Person Unknown is liable for damage suffered by the Client, its liability is limited to the amount paid out in the appropriate case under the professional/business liability insurance taken out by Person Unknown, plus the deductible applicable to Person Unknown.
  4. If in any case the insurer does not pay out or the damage is not covered by the insurance, Person Unknown’s liability is limited to a maximum of the amount of the compensation that Person Unknown has received from the Client for its work in the relevant Agreement.
  5. Notwithstanding the previous paragraph, in the case of an Agreement with a term longer than six months, liability is limited to the compensation owed for the last three months.
  6. Person Unknown is never liable for indirect damage, including stagnation in the regular course of business in the Client’s company, lost profits, loss of company data, missed savings and consequential damage, in any way related to or caused by the implementation of the Agreement.
  7. If the Client wishes to hold Person Unknown liable due to an attributable shortcoming in the performance of the Agreement, the Client must first give Person Unknown notice of default and give a reasonable period to remedy the shortcoming.
  8. Person Unknown is not liable for damage of any nature whatsoever caused by Person Unknown relying on incorrect and/or incomplete information provided by or on behalf of the Client.
  9. The Client indemnifies Person Unknown against all claims from third parties due to liability as a result of a defect in the execution of the Agreement, which was delivered by the Client to a third party and which also consisted of goods, materials or results delivered by Person Unknown.
  10. Person Unknown is not liable for any damage resulting from force majeure.
  11. After acceptance of the delivered goods, any liability for defects in the delivered goods lapses.
  12. Person Unknown is not liable for damage resulting from actions contrary to Article 6.8.
  13. Person Unknown is not liable for damage resulting from the use of third-party services or products, as referred to in Article 1, paragraph 5, by the Client or the incorporation of these services into the Software. Where appropriate, the Client must hold the third party liable for this.
  14. If computer, data or telecommunications facilities, including the internet, are used in the performance of the Agreement, the Client is responsible for the correct choice of the required resources and for their timely and complete availability, except for those facilities that are under direct use. and management of Person Unknown. Person Unknown is not liable for damages or costs due to transmission errors, disruptions or unavailability of these facilities.
  15. Person Unknown is not liable for damage resulting from improper use of the Software by the Client.

ARTICLE 9. Force majeure

  1. Force majeure on the part of Person Unknown suspends its (further) obligations under the Agreement as long as the force majeure continues.
  2. Force majeure is defined as: Any circumstance beyond the control of Person Unknown that temporarily or permanently prevents compliance with the Agreement and which should not be at the risk of Person Unknown either under the law or according to standards of reasonableness and fairness, as well as, insofar as not already included: disruptions or failures of the internet and/or telecommunications infrastructure, synflood, network attack, DoS or DDoS attacks, power failures, civil unrest, mobilization, war, transport disruptions, strikes, exclusion, business disruptions, stagnation in supplies , fire, flood, import and export restrictions and in the event that Person Unknown is not enabled to deliver by its own suppliers, regardless of the reason, as a result of which compliance with the Agreement cannot reasonably be expected from Person Unknown.
  3. As soon as a force majeure situation occurs at Person Unknown, it will report this to the Client unless Person Unknown cannot reasonably be expected to do so given the circumstances.
  4. If Person Unknown has already partially fulfilled its obligations when the force majeure situation commences, Person Unknown is entitled to separately invoice that part that has already been performed.
  5. If the force majeure situation at Person Unknown continues for more than three months, each of the Parties is entitled to terminate the Agreement prematurely without observing any notice period and without being liable for any compensation.

ARTICLE 10. Intellectual Property

  1. All intellectual property rights to all Software, materials, programs, analyses, designs, documentation, advice, reports, quotations, as well as preparatory material thereof developed or made available in the context of the Agreement, rest exclusively with Person Unknown or its licensors.
  2. Person Unknown hereby grants the Client a non-exclusive and non-transferable right of use to use the Software, solely for the purposes in accordance with the Terms and Conditions and the Agreement.
  3. Unless expressly agreed otherwise in writing, Person Unknown does not make the source code of the Software available to the Client.
  4. The Client is not permitted to reconstruct the source code of the Software by means of reverse engineering. If the Client needs information to achieve interoperability of the Software, the Client will request Person Unknown in writing and with reasons for the necessary information. Person Unknown will then inform the Client within a reasonable period whether the Client can have access to the requested information and the conditions under which it is provided.
  5. The Client is not permitted to remove or change any indication regarding intellectual property rights from items, including indications regarding the confidential nature and secrecy of items.
  6. Person Unknown is permitted to take technical measures to protect property. If Person Unknown has secured the materials by means of technical protection, the Client is not permitted to remove or circumvent this security.
  7. The Client’s right of use expressly does not include access and use of the source code of the Software.
  8. Any use, duplication or disclosure of the materials that falls outside the scope of the Agreement or granted user rights is considered a violation of the intellectual property rights of Person Unknown. The Client will owe Person Unknown an immediately payable and not subject to judicial mitigation fine of € 10,000 per infringing act, without prejudice to Person Unknown’s right to be compensated for its damage caused by the infringement or to take other legal measures to put an end to the infringement.
  9. The Client declares that no rights of third parties oppose the Client making materials and data available to Person Unknown, as well as their incorporation into the Software.
  10. The Client declares that it has all required licenses for making materials and data available and incorporating them into the Software.
  11. The Client indemnifies Person Unknown against any claim from third parties alleging that Person Unknown infringes a right as referred to in paragraphs 9 and 10 of this article.

ARTICLE 11. Complaints

  1. Complaints about the invoice must be reported to Person Unknown in writing within 14 days of the invoice date, under penalty of forfeiture.
  2. A complaint does not suspend the Client’s payment obligation.

ARTICLE 12. Warranty

  1. Person Unknown will make every effort to resolve Errors within a reasonable period, provided that these Errors are reported to Person Unknown within three months after delivery of the Software. When an Acceptance Test has been carried out, the Errors must be reported to Person Unknown within three months after acceptance.
  2. Person Unknown cannot guarantee that the Software is suitable for the actual and/or intended use.
  3. If Errors have arisen due to usage errors and/or improper use of the Software by or on behalf of the Client, Person Unknown is entitled to charge the Client a fee for repairing these Errors.
  4. Person Unknown determines the method of recovery from Errors.
  5. Person Unknown is not obliged to restore corrupted and/or lost data.

ARTICLE 13. Confidentiality and personal data

  1. The parties are obliged to maintain confidentiality of all confidential information and data that they have obtained from each other in the context of the Agreement.
  2. Information is considered confidential unless otherwise stated by the other party or if this arises from the nature of the information.
  3. The confidentiality referred to in paragraph 1 does not apply to the extent that legal or professional rules impose an obligation to provide information to Person Unknown.
  4. The Client is obliged to store the personal data obtained from the End User in accordance with the Personal Data Protection Act. The Client is expressly not permitted to sell and/or make personal data available to third parties, unless the End User has given prior and express permission for this.
  5. The Client must obtain explicit permission from the End User for any processing of personal data.
  6. The Client must take into account that third parties, as referred to in Article 1, paragraph 5, may process personal data. The Client must conduct its own investigation into this processing of personal data. Person Unknown is not liable for the use, processing, modification or disclosure of personal data by this third party. The Client must indemnify Person Unknown against any claim based on what is stated in this clause.

ARTICLE 14. Suspension and dissolution

  1. If:
    1. The Client is in default of (timely) fulfilling any obligation relating to the Agreement;
    2. It is likely that the Client will not be able to fulfill an obligation to Person Unknown, or will not be able to do so fully and/or in a timely manner;
    3. The Client has been declared bankrupt, has been placed under guardianship, has been granted a suspension of payments or the statutory debt restructuring scheme has been declared applicable to the Client, or a request for this is pending;

    Person Unknown has the right to suspend performance under all agreements existing between the Parties, or to dissolve this Agreement in whole or in part without any notice of default and without being liable for any compensation. 

  2. Suspension and dissolution are only permitted to the extent that the shortcoming justifies it.
  3. Furthermore, Person Unknown is entitled to terminate the Agreement if circumstances arise that are of such a nature that compliance with the Agreement is impossible or can no longer be required according to standards of reasonableness and fairness.
  4. Person Unknown has the right to suspend its obligations as long as Article 2.4 has not been complied with.
  5. Any obligations of the Client towards Person Unknown become immediately due and payable after dissolution or suspension.
  6. Suspension and/or dissolution do not affect the payment obligation for work already performed. Person Unknown is also entitled to claim compensation from the Client for damage caused by the Client’s breach of contract and the dissolution of the Agreement, including: lost turnover, lost interest, damage and costs of third parties engaged.

ARTICLE 15. Termination

  1. Either Party is not permitted to terminate the Agreement prematurely, unless there are unforeseen circumstances as referred to in Article 6:258 of the Dutch Civil Code.
  2. The unforeseen circumstances referred to in the previous paragraph must be of such a nature that the Party invoking this article cannot, according to standards of reasonableness and fairness, expect maintenance of the Agreement until the agreed time.
  3. When determining the unforeseen circumstance, as referred to in the previous paragraph, the following aspects must be taken into account:
    1. The content and nature of the Agreement; and
    2. The nature and mutual relationship of the parties; and
    3. The importance of mutual interests.
  4. If the Client terminates the Agreement prematurely, he will owe the following costs to Person Unknown:
    1. All costs already incurred by Person Unknown in the context of the Agreement; and
    2. Costs resulting from any cancellation by third parties engaged; and
    3. 50% of the remaining agreed fee.
  5. In the event of cancellation, the Client is not entitled to use what has already been delivered in any way.

ARTICLE 16. Changes to the Terms and Conditions

  1. Person Unknown reserves the right to change or supplement these Terms and Conditions.
  2. Changes also apply to Agreements already concluded, subject to a period of 30 days after announcement of the change to the Conditions.
  3. If the Client does not wish to accept a change to these Terms and Conditions, it can terminate the Agreement on that date until the date on which the new Terms and Conditions come into effect.

ARTICLE 17. Choice of forum

  1. These Terms will remain in effect if Person Unknown changes name, legal form or owner.
  2. All legal relationships between Parties to which these Terms and Conditions apply are governed exclusively by Dutch law.
  3. The judge of the District of Northern Netherlands, location Groningen, has exclusive jurisdiction in any dispute between the Parties related to the present Agreement.
  4. There is a dispute as referred to in the third paragraph as soon as one of the Parties states so.
  5. These Terms come into effect on February 15, 2017.