General terms and conditions of service 2DAYSMOOD

ARTICLE 1. PARTIES

These General Terms and Conditions of Service ("Terms" or “Agreement”) govern the legal relationship between:

2DAYSMOOD B.V. a Dutch company with its registered address Europalaan 100 in Utrecht and business registration number 75014580, referred to in these Terms as “2DAYSMOOD”, "we", "us" or "our(s)" and operating on https://www.2daysmood.com ("Website"), or any other website address shared by us with you.

and

The Customers or Users ("you" or "your(s)") of our Services, accessing and using our Platform, owned and offered by 2DAYSMOOD.

2DAYSMOOD and Customer are individually referred to as “Party” and jointly “Parties.”

ARTICLE 2. APPLICABILITY

2.1. Application. These Terms shall apply to all our offers, quotations, appendices, service level agreements, and any other agreements, whether entered into electronically or in writing. Parties have declared these Terms applicable insofar as they did not explicitly deviate from them in writing.

2.2. Term. Unless agreed otherwise, the Agreement between Parties is entered into for a period of at least six (6) months.

2.3. Changes. Unless agreed otherwise, these Terms shall govern all transactions under the Agreement between Parties, and replaces all prior oral or written agreements. The Agreement between Parties may only be changed or amended after a mutual written agreement between Parties. However, our General Terms and Conditions of Service may be changed by 2DAYSMOOD unilaterally.

2.4. Pre-contract Stage. Pre-contract stage shall mean the period during which 2DAYSMOOD is determining the scope and format of Parties’ collaboration. 2DAYSMOOD may request an advance payment before a final definitive agreement has been concluded between Parties. Such an agreement shall have a minimum term of three (3) months and 2DAYSMOOD may request an advance payment of 30% (thirty percent) unless agreed otherwise. During the pre-contract stage and before entering into an agreement, Parties must act in good faith.

2.5. Customer General Terms. In case Customer refers to its general terms and conditions, 2DAYSMOOD expressly rejects them. Customer general terms and conditions shall have no force and effect between Parties. Customer acknowledges and agrees that it shall always be aware of the most recent version of these Terms.

2.6. Severance. Should any provisions of this Agreement be held by court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall remain in full force and effect. Parties shall negotiate in good faith to replace such invalid or unenforceable provision with a valid and enforceable provision that reflects the original purpose and intent of the Parties.

ARTICLE 3. SERVICES AND DASHBOARD ACCESS

3.1. Services. The meaning and scope of the Services shall always be according to the most recent definition available on our website and laid down in one or more offers, quotations, exhibits or service level agreements, or statements of works incorporated by reference into this Agreement.

3.2. Engagement of Services. Each offer describes and specifies the Services to be provided by 2DAYSMOOD, and shall be in accordance with the representations and warranties set forth in these Terms. In case of conflicting terms in the Agreement between Parties, the provisions in each offer or attachment shall always prevail.

3.3. Dashboard Access and Use. These Terms set forth the terms and conditions under which 2DAYSMOOD agrees to provide solely to Authorized Users as described in Section 3.4 of this Agreement a subscription for and access to the Services. Customer may access and use our dashboard and software during the term of the Agreement between Parties.

3.4. Authorized Users. Customer’s company shall be the principal Authorized User. The rights in and to the Services are limited to this one Authorized User only, and cannot be shared or used by another entity. The Authorized User will designate one or more responsible contact persons who manage the account and account security.

3.5. Extra Services. We may perform extra services beyond the scope of the agreed Services. The applicable prices and hourly fees for extra services authorized by Customer shall be available before such services start.

3.6. Demo Period. We may offer a demo version to Customer during which our dashboard may be accessed without a fee. The functions during a demo are limited, and we may, in our sole discretion, restrict or terminate the demo period at any time.

3.7. Fair Use. Customer acknowledges that our Services, including technical and functional support, depend on finite resources shared with other customers. Customer agrees not to use our support services excessively or unreasonably.

ARTICLE 4. OFFERS AND FEES

4.1. Non-Binding Offer. All our offers and quotations shall only be construed as an invitation to treat, meaning a request from us to receive an offer from Customer. Unless agreed otherwise, all our offers and quotations are valid for fourteen (14) days and remain revocable. 2DAYSMOOD’s order confirmation directed at Customer shall constitute acceptance of the offer and results in the conclusion of a legally binding Agreement between Parties.

4.2. Fees, Term and Commencement. Each offer shall contain sections, consisting of either a fixed or subscription fee, pricing and fee structure, number of users, as well as other applicable terms and conditions. Upon signature by both Parties of each offer, the Services shall commence.

4.3. Quotations. Precalculations made by 2DAYMOOD and sent to Customer are made based on information available during the pre-contract stage as mentioned in Section 2.4. Customer understands and agrees that such calculations are indicative. In accordance with the relevant provisions in this Section 4, we shall always notify Customer when the most recent cost estimate exceeds the quotations.

4.4. Fees and Renewal. Customer must pay 2DAYSMOOD the applicable and agreed fees described in the accepted offer. During the term of their collaboration, fees to either renew or purchase additional services may be offered. 2DAYSMOOD is authorized to charge Customer in the manner described in the order confirmation.

4.5. Prices. The prices in the aforementioned offers and quotations are exclusive of VAT and other taxes or government levies for which Customer is responsible.

4.6. Price Increase. 2DAYSMOOD may adjust the prices, which will apply one month after they have been announced. In the event of a price increase based on inflation or another common index and standard in the industry, Customer is not allowed to terminate the Agreement. In the event of other price increases, Customer may dissolve the Agreement in whole or in part within three (3) months after its conclusion.

4.6. Price Increase and Termination. In case Customer does not accept a price increase other than based on inflation or another common index, Customer may terminate the Agreement in writing. The termination term shall be three (3) months and the Agreement shall continue according to the initial agreed-upon fees.

4.7. Non-Refundable. All fees paid by you are non-refundable. We will never make partial refunds in case you have not used all of our Services, or for any other reason whatsoever.

4.8. Chargebacks. In case you have performed a credit card chargeback or otherwise reversed a payment made to us, we may immediately restrict or terminate your account. All charges remain non-refundable. We will never make refunds for partially used Services, unless agreed otherwise.

ARTICLE 5. INTELLECTUAL PROPERTY

5.1. Services IP. With regard to our Services, 2DAYSMOOD retains all right, title, and interest in and to the dashboard and tailor-made software, unless Parties agree otherwise in any applicable offer or quotation. All documents provided by 2DAYSMOOD, such as reports, advice, agreements, designs, sketches, drawings, and software are exclusively intended for use by the Customer and may not be reproduced without the prior consent of 2DAYSMOOD.

5.2 No License. Nothing in this Agreement shall constitute the grant of a license or any other right in 2DAYSMOOD’s proprietary software, trade and service marks, trade secrets, copyrights interests, trade secrets, or any other interest in the web or mobile application. This includes source code, forms, schedules, manuals, and any other proprietary items or intellectual property provided by 2DAYSMOOD in connection to this Agreement. Customer understands and agrees that 2DAYSMOOD shall only grant the access and use rights mentioned in Section 3.3. in this Agreement.

5.3. Warranty of Originality. 2DAYSMOOD represents and warrants that it is the owner of the Services and of each and every component in and to the mobile and web application. 2DAYSMOOD represents and warrants that the Services will be its own and original work, however, it could also include licensed components from third parties.

5.4. Customer Data. Unless agreed otherwise, Customer shall own all anonymized survey data available on our dashboard. Customer understands that it is solely responsible to download customer data and results in a machine-readable format from the dashboard without interference from 2DAYSMOOD. After termination of this Agreement, 2DAYSMOOD may permanently delete the customer data and results.

5.5. Our Data and IP. Unless agreed otherwise, 2DAYSMOOD shall own all general insights, meta-data, know-how, inventions, and all other intellectual property rights resulting from the survey data.

5.6. Title Retention. All rights in and to the survey data, including answers from surveyees or interviewees, regardless of the format, shall remain the exclusive property of 2DAYSMOOD until the full amount of all pending invoices has been paid by Customer to 2DAYSMOOD.

5.7. Logo Use. Unless agreed otherwise, 2DAYSMOOD may use Customer’s name and logo on the website and other promotional material with the purpose of identifying the Parties’ relationship. The use of the name and logo does not create any license or ownership rights.

ARTICLE 6. REPRESENTATIONS AND WARRANTIES

6.1. Standards of Performance. 2DAYSMOOD shall perform its duties pursuant to the terms of the Agreement between Parties, to the best of our knowledge and ability and in accordance with the standards of good workmanship.

6.2. Representations. Our Services, and the use of our dashboard are provided on an “as is” basis. We specifically do not make any warranties or representations regarding the appropriateness, quality, scientific applicability, accuracy, or completeness of our Services and dashboard. The use of our Services and access to our dashboard is at Customer’s sole risk.

6.3. Indemnification Services. By using our Services and dashboard, the Customer agrees to defend, indemnify and hold harmless 2DAYSMOOD, its employees, information providers, and content providers from and against any losses, damages, expenses (including legal fees and costs), claims, suits and liabilities.

6.4. Delay in Performance. Our performance under this Agreement may be delayed. However, we shall make reasonable efforts to inform you about any delay outside our control. In accordance with the relevant sections in these Terms about disclaimers, we are never responsible or liable for any losses if a delay occurs.

6.5. Force Majeure. 2DAYSMOOD is never liable for losses as a result of a circumstance beyond its control, including but not limited to failures in power supplies, the internet, strikes, illness, power failure, natural and nuclear disasters and attacks, hardware failure, epidemics and pandemics, hacking and other similar technologies.

6.6. Required Information. Customer ensures that all necessary information and instructions to perform the duties in the Agreement, shall be provided to 2DAYSMOOD in due time. Customer understands and agrees that if specific data and instructions are not received in time, 2DAYSMOOD may suspend the execution of the agreed Services and/or charge additional fees.

ARTICLE 7. PAYMENT TERMS

7.1. Payment Terms. Unless agreed otherwise, payments must be made in the agreed currency (USD or EUR) without deducting any expenses or discounts. Customer shall transfer the agreed amount according to the method specified by 2DAYSMOOD. Customer must initiate payment within thirty (30) days after it has received the invoice.

7.2. Advance Payments. Parties may agree on advance payments, for example thirty percent (30%) of the invoice amount. The Service will not start until we have received the agreed amount. Customer understands that late payments may result in a delay in the Services.

7.3. Non-Payment. If Customer does not pay the agreed invoice amount on time, it will be immediately in default. In that case, we may suspend the fulfillment of all our obligations and have the right to exercise all our other legal rights in accordance with the applicable law.

7.4. Interest. If Customer fails to pay on time, it will automatically forfeit interest to us until the day of full payment. The interest will be equal to the applicable statutory interest. Customer must pay the interest immediately, which is payable without notice of default.

7.5. Payments and Deductions. After Customer has made a payment to us, that amount will first be deducted from the collections costs and other legal fees, then they will be deducted from interests owed and finally from the principal sum, meaning the longest outstanding invoice.

7.6. Early Payment. In case the amount of work exceeds what Parties have agreed, 2DAYSMOOD may request earlier payment from Customer. 

ARTICLE 8. COMPLAINTS

8.1. Complaints and Defects. Complaints from Customer related to an error or defect in the agreed Services must be reported to 2DAYSMOOD within ten (10) days after the date such error has been discovered. The complaint must be submitted either by a registered letter or email containing an accurate and clear description of the complaint.

8.2. Course of Action. Any claim that Customer may have against 2DAYSMOOD, relating to a defective  or incomplete Service expires when:

1. We have not been notified about the errors within ten (10) working days;
2. Customer has not cooperated after our questions about the merits and validity of the complaint;
3. The warranty period referred to in the Agreement between Parties has expired, or, Customer has filed the complaint twelve (12) months after the Service has been rendered.

ARTICLE 9. SUSPENSION AND TERMINATION

9.1. Termination. Customer may only terminate the Agreement before the termination date when it provides a notice stating the grounds of termination. 2DAYSMOOD may terminate the Agreement in writing without giving the grounds for termination, and a notice period of four (4) weeks shall apply.

9.2. Written Notice. The Parties may terminate the Agreement independently if one Party fails to fulfill its obligations and this failure is not remedied within a reasonable period of time after written notice of default has been served by the other Party.

9.3. Suspension Services. 2DAYSMOOD is entitled to suspend or terminate the Agreement in the following situations, without notice of default or a court decision. As a result of such termination 2DAYSMOOD shall never be liable:

1. Customer is declared bankrupt, a bankruptcy petition has been filed or provisional or definitive suspension of payments has been granted;
2. Customer has lost control of his assets (or part thereof);
3. 2DAYSMOOD has valid reasons to doubt Customer's creditworthiness and meeting its financial obligations towards 2DAYSMOOD on time. 

ARTICLE 10. DISCLAIMERS AND INDEMNIFICATION

10.1. Disclaimer. Except as expressly provided in this agreement, the software is provided on an “as is” basis, and Customer understands the Services are only provided for commercial purposes. 2DAYSMOOD disclaims to the fullest extent permitted by law all other representations and warranties, whether express, implied, statutory, or otherwise, including those (i) of merchantability or satisfactory quality, (ii) of fitness for a particular purpose, (iii) of non-infringement and (iv) arising from custom, trade usage, course of prior dealing or course of performance. Neither 2DAYSMOOD, its affiliates, nor its licensors warrant that customer’s use of the Services will be uninterrupted or error-free or that the Services will meet Customer’s requirements or produce particular outcomes or results.

10.2. Indemnification. The Customer indemnifies and holds harmless its officers, employees, agents, and subcontractors against all liability, cost, or damage(s) including reasonable attorney's fees, arising out of and in connection to this Agreement, including all expenses and related costs out of this and in connection to this Agreement.

10.3. Direct Damages. 2DAYSMOOD is only liable for direct damage and as a result of our willful misconduct or gross negligence, namely:

1. Costs to determine the cause and amount of the damage, provided these costs are reasonable;
2. Reasonable costs to continue to execute the agreement;
3. Reasonable costs to limit losses.

ARTICLE 11.  CONFIDENTIALITY AND NON-SOLICITATION

11.1. Confidential Information. Customer acknowledges that it will acquire and be exposed to technical and information relating to 2DAYSMOOD’s business dealings, its website, and dashboard. 2DAYSMOOD’s Confidential Information includes non-public information regarding the Services and dashboard features, functionality, and performance. Confidential information includes these Terms and the agreements between the Parties and all offers, fees and our pricing structure. Customer must abide by the Duty of Confidentiality mentioned below in Section 11.3.

11.2. Exceptions Confidential Information. Confidential Information shall not include any information that becomes generally available to the public or has been independently developed without the use of our Confidential Information.

11.3. Duty of Confidentiality. Customer shall (a) prevent the unauthorized use and disclosure of Confidential Information, (b) keep all Confidential Information in strict confidence and not use, copy, reproduce, give or sell it to any third party, and (c) not use Confidential Information for any purpose, other than in connection to this Agreement.

11.4. Employees and Contractors. Customer guarantees that each authorized contact person as mentioned in Section 3.4, will be bound to the same duty of non-disclosure regarding 2DAYSMOOD’s Confidential Information as stated in the previous Section. Customer shall maintain written agreements with their employees and contractors that contain the same degree of care to prevent the disclosure of 2DAYSMOOD's confidential information as Customer's own confidential and proprietary information.

11.5. Forced Disclosure. Customer may disclose any Confidential Information of 2DAYSMOOD to comply with an order from a judge or when required by the applicable law, in which case Customer shall deliver at least one week before the forced disclosure, a notice to 2DAYSMOOD. The Receiving Party must use all reasonable efforts to secure the confidential treatment of the Confidential Information.

11.6. Non-Competition. For a period of five (5) years after the conclusion of this Agreement, Customer must not engage in any employment or work for any company or third party, including consulting engagements, that is directly or indirectly in competition or supporting competition with 2DAYSMOOD or any of its subsidiaries or successors.

11.7. Non-Solicitation. Customer shall not during the term of this Agreement and for a period of five (5) years following the termination of this Agreement, directly or indirectly solicit any of 2DAYSMOOD’s employees, contractors, or vendors to support or encourage their employment with Customer’s or any competitor’s of 2DAYSMOOD business.

11.8. Remedies and Compensation. Customer understands and acknowledges that the breach of all the Sections in this Paragraph causes irreversible damage for which 2DAYSMOOD may never receive adequate compensation. When any violation or threat of a violation of Customer’s confidentiality, non-compete and/or non-solicitation duties occurs, 2DAYSMOOD shall be entitled to seek injunctive relief, demand full compensation of all losses, and pursue any other legal remedy according to the applicable law.

ARTICLE 12. PRIVACY AND DATA

12.1. Data Controller. At all times, Customer shall be the Data Controller and as such the responsible Party for all personal data that surveyees or interviewees submit on our dashboard. Customer understands and agrees that 2DAYSMOOD may process personal information as a Data Processor under the responsibility of Customer. Customer represents it will treat all personal information in accordance with any applicable law.

12.2. Data Processing Agreement. Customer has fully read and agrees with 2DAYSMOOD Data Processing Agreement, and the Parties' responsibilities and duties described therein. 2DAYSMOOD represents it applies industry-standard data protection policies, including such technical measures that are necessary to protect all personal information.

12.3. Disclaimer and Indemnification. Customer understands and agrees that 2DAYSMOOD is never responsible for any claim or government fine as a result of a breach of the applicable data protection laws. Customer indemnifies and holds 2DAYSMOOD harmless, including its directors, officers and affiliates, harmless against any such claim or government fine.

ARTICLE 13. MISCELLANEOUS

13.1. Assignment. Customer may not subcontract, delegate, or assign this Agreement or any of its obligations under this Agreement without 2DAYSMOOD prior written consent. Any attempted assignment in violation of the foregoing shall be null and void. However, 2DAYSMOOD may subcontract, delegate or assign this Agreement or any of its obligations in connection with any merger, reorganization, consolidation, sale of assets, or similar transaction.

13.2. Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior oral or written agreements. This Agreement may only be changed or amended by mutual agreement of authorized representatives of parties, and in writing. The parties expressly agree that this agreement may be executed in counterparts and delivered by electronic signature and such delivery will promptly be acknowledged by the receiving party.

13.3. Headings. The headings used in this Agreement are included for the benefit of the Parties and shall have no effect whatsoever on the provisions in these Terms or its interpretation or meaning.

ARTICLE 14. DISPUTE RESOLUTION AND APPLICABLE LAW

14.1. Notice. In case of a dispute, Customer must first consult in good faith with 2DAYSMOOD to resolve it amicably by sending a written notice setting out the nature of the dispute.

14.2. Applicable Law and Court. These Terms and the Agreement between Parties are governed by Dutch law, and the civil court in the city of Utrecht in the Netherlands is exclusively competent to hear any dispute that may arise out of this Agreement.