Please read these terms and conditions carefully before using the Product (as defined hereafter). By using the Product, you agree to these terms and conditions
These terms and conditions (the “Agreement”) describe the terms and conditions under which the customer (“Customer” or “you”) can use the Product (as defined hereafter) and let its own employees or patients (“End User”) use the Application.
The Product (as defined hereafter) is operated and managed by Project Frisket bvba, registered with the Crossroads Bank of Enterprises under number 0567.741.889 and having its registered office at Franklin Rooseveltplaats 12 bus 14, 2060 Antwerp or by any of its affiliates (jointly “Project Frisket” or “we”). If you have any questions about the Product or this Agreement, please contact us via email@example.com.
Calling upon and/or using the Product (as defined hereafter) implies that the Customer recognises irrevocably to have received a copy of these Terms and Conditions. Subject to the terms of this Agreement, Project Frisket will use commercially reasonable efforts to provide Customer the Product.
Project Frisket provides a mobile messaging platform (the “Product”) that consists of a smartphone application (“Q1.6”) that allows users to answer questionnaires (the “Application”), dashboards, an online admin interface and various documentation. The Application will be recommended to the End User by the Customer.
By using the Application the End User will be able to answer questions that have been selected by the Customer. The Results (as defined hereinafter) are automatically transferred to the Customer in realtime through the Platform.
Please note that Project Frisket does not oblige the End User to install the Application and that refusal to install the Application should not have any impact on the treatment or the quality of such treatment by the Customer. Furthermore, Project Frisket would like to draw your attention to the fact that Customer is not obliged to analyse or perform any check-up of the Results through the Dashboard in realtime.
Please note that Project Frisket does not want any influence on and is not responsible for the relationship between End User and Customer.
“Account” means the account registered through the registration process in the Application;
“Article” means an article of this Agreement;
“Dashboard” means the web-based dashboard that is accessible by the Customer to review information about the End User, including but not limited to the Results;
“Fees” means the amount to be paid by the Customer to Project Frisket for the End User’s use of the Application;
“Customer” means the legal entity whose prescribes the Application to the End User and pays the Fees for using the Platform.
“Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights, know-how; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, (f) trade and business names, domain names, database rights, rental rights and any other industrial or intellectual proprietary rights or similar right (whether registered or unregistered); (g) all registrations, applications for registration, renewals, extensions, divisions, improvements or reissues relating to any of these rights and the right to apply for, maintain and enforce any of the preceding items, in each case in any jurisdiction throughout the world;
“Physician” means the doctor who recommends the End User to use the Application and has compiled the questions of the Questionnaire;
“Platform” means the online platform on which the Application, the Administration tool and the Dashboard are connected and collectively function;
“Product” means the Application, the Platform, Website;
“Results” means answers on the questions of the Questionnaire.
“Questionnaire” means the questionnaire consisting of questions that were compiled by the Customer;
“Term” means the Subscription Term;
“User Content” shall have the meaning as set forth in Article 6;
“Website” means the website of Project Frisket available at www.questions.ai.
You acknowledge and agree that your use of the Product is exclusively governed by this Agreement. If you do not agree to any provision of this Agreement, you may not use in any manner the Product.
We reserve the right at any time, and from time to time, with or without cause to:
- amend this Agreement;
- change the Product (including but not limited to the Application), including eliminating or discontinuing, temporarily or permanently any service or other feature of the Product (including but not limited to the Application) without any liability against the User or any third parties; or
deny or terminate, in part, temporarily or permanently, the Customers use of and/or access to the Product (including but not limited to the Application).
Any such amendments or changes made will be effective immediately upon us making such changes available in the Application or otherwise providing notice thereof. The Customer agrees that his continued use of the Product after such changes constitutes his acceptance of such changes.
4. No right of withdrawal
After the first End User has downloaded the Application with the Customers questionnaire, the Customer explicitly acknowledges that he has access to the purpose of the Platform as set forth in this Agreement. As a consequence thereof, the Customer acknowledges and agrees that he loses his right to withdraw once the performance of the delivery of the Product by Project Frisket has started.
5. Use of the Products
The Customer shall be solely responsible for maintaining the confidentiality and security of all Account login information such as pin codes and passwords and be fully responsible for all activities that occur under his Accounts or the Accounts of its End Users. The Customer agrees to immediately notify Project Frisket of any unauthorized use, or suspected unauthorized use of his Accounts or any other breach of security. Project Frisket will not be liable for any loss or damage arising from your failure to comply with the above requirements.
During the Term, Project Frisket may, in its sole discretion, provide the Customer with updates of the Product. For the avoidance of doubt, Project Frisket is not obligated to provide any updates to the Product.
In the event the Product would render, directly or indirectly, any information which may play a role in taking any medical, legal, financial or other personal or business decisions, such information may not be qualified as medical, legal, financial or other advice given by Project Frisket. End users should always consult a professional in order to obtain additional information.
6. License – restrictions
License by Project Frisket. During the Term and subject to the timely payment of the Fees, Project Frisket grants the Customer a non-exclusive, personal, restricted, non-sublicensable and non-transferable license to use the Product in accordance with this Agreement (“License”). The Customer is not allowed to use the Product for any commercial purposes without written consent of Project Frisket. The Customer is not allowed to use the Product, or a component of the foregoing in a manner not authorised by Project Frisket. The customer shall use the Product solely in full compliance with (i) this Agreement; (ii) any additional instructions or policies issued by Project Frisket, including, but not limited to, those posted within the Application or Platform or on the Website; (iii) any applicable legislation, rules or regulations.
Restrictions. The Customer agrees to use the Product only for their intended use as set forth in this Agreement. Within the limits of the applicable law, the Customer is not permitted to (i) adapt, alter, translate or modify in any manner the Product; (ii) decompile, reverse engineer, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organisation) of the Product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (iii) use or copy the Product except as expressly allowed under this Article 6; (iv) gain unauthorised access to accounts of other users or the IT equipment or structure of Project Frisket to provide the Product or use the Product to conduct or promote any illegal activities; (v) use the Product to generate unsolicited email advertisements or spam; (vi) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; (vii) use any high volume automatic, electronic or manual process to access, search or harvest information from the Product (including without limitation robots, spiders or scripts); (viii) alter, remove, or obscure any copyright notice, digital watermarks, proprietary legends or other notice included in the Product; (ix) intentionally distribute any worms, Trojan horses, corrupted files, or other items of a destructive or deceptive nature or use the Product for any unlawful, invasive, infringing, defamatory or fraudulent purpose; or (x) remove or in any manner circumvent any technical or other protective measures in the Product.
Except as expressly set forth herein, no express or implied license or right of any kind is granted to the Customer regarding the Product or any part thereof, including but not limited to any right to obtain possession of any source code, data or other technical material relating to the Product.
As between the Customer and Project Frisket, the Product and any and all worldwide Intellectual Property Rights pertaining thereto, are the exclusive property of Project Frisket and/or its licensors.
All rights in and to the Product not expressly granted to the Customer in this Agreement are reserved by Project Frisket and its licensors. Except as expressly set forth herein, no express or implied license or right of any kind is granted to the Customer regarding the Product or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Product.
8. CONFIDENTIALITY; PROPRIETARY RIGHTS
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Project Frisket to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Project Frisket shall own and retain all right, title and interest in and to (a) the Product, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
Notwithstanding anything to the contrary, Project Frisket shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Product and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Project Frisket will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Product and for other development, diagnostic and corrective purposes in connection with the Product and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
In case you need technical support, you can contact Project Frisket at firstname.lastname@example.org.
Project Frisket makes all reasonable efforts to respond as quickly as possible to any inquiries of Customers and End Users.
11. Payment of fees
Customer will pay Project Frisket the applicable fees. If Customer’s use of the Platform exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Project Frisket reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Project Frisket has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to email@example.com
Project Frisket may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Project Frisket thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
To the maximum extent permitted under applicable law, Project Frisket’s liability arising out of or in connection with the Product under this Agreement whether in contract, warranty, tort or otherwise, shall not exceed the amount , together with amounts associated with all other claims, of the fees paid by customer to company for the services under this agreement in the 12 months prior to the act that gave rise to the liability. Nothing in this Agreement shall limit or exclude Project Frisket’s liability for (i) gross negligence; (ii) wilful misconduct, (iii) fraud or personal injury.
To the extent legally permitted under applicable law, Project Frisket shall not be liable to the User, the Customer or any third party, for any special, indirect, exemplary, punitive, incidental or consequential damages of any nature including, but not limited to damages or costs due to loss of profits, data, revenue, goodwill, production of use, procurement of substitute services, or property damage arising out of or in connection with the Product under this Agreement, including but not limited to any miscalculations, or the use, misuse, or inability to use the Product, regardless of the cause of action or the theory of liability, whether in tort, contract, or otherwise, even if Project Frisket have been notified of the likelihood of such damages. The limitation in this Article shall not apply to the obligations of Project Frisket under Article 14 (“Indemnification”).
Customer agrees that Project Frisket can only be held liable as per the terms of this Article to the extent damages suffered by the Customer are directly attributable to Project Frisket. For the avoidance of doubt, Project Frisket shall not be liable for any claims resulting from (i) Customers unauthorised use of the Product, (ii) modification by the Customer or any third party of (any parts) of the Product, (iii) failure by the Customer to use the most recent version of the Platform made available to the Customer or failure of the Customer to integrate or install any corrections to the Product issued by Project Frisket, or (iv) use of the Customer of the Product in combination with any non-Project Frisket products or services. The exclusions and limitations of liability under this Article shall operate to the benefit of Project Frisket affiliates and subcontractors under this Agreement to the same extent such provisions operate to the benefit of Project Frisket.
13. Warranties and disclaimers
By Project Frisket. EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE 13 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCT AND THE RESULTS ARE PROVIDED “AS IS,” AND PROJECT FRISKET MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, COVENANTS OR REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, SUITABILITY, AVAILABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR USE OR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE PRODUCT, INCLUDING THE RESULTS, (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO THE CUSTOMER BY PROJECT FRISKET. PROJECT FRISKET DOES NOT WARRANT THAT (i) ALL ERRORS CAN BE CORRECTED, OR THAT ACCESS TO OR OPERATION OF THE PRODUCT AND/OR THE OPERATION SHALL BE UNINTERRUPTED, SECURE, OR ERROR-FREE, AND (ii) THE INFORMATION, INCLUDING BUT NOT LIMITED TO THE RESULTS, AVAILABLE ON OR TRANSMITTED BY THE APPLICATION AND/OR THE PLATFORM IS TRUE, COMPLETE OR ACCURATE. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT PROJECT FRISKET CANNOT BE HELD LIABLE FOR ANY HEALTHCARE OR RELATED DECISIONS MADE BY THE CUSTOMER, END USER OR ANY PHYSICIAN BASED UPON THE RESULTS TRANSMITTED OR DISPLAYED BY OR ON THE APPLICATION AND/OR THE PLATFORM WHETHER SUCH DATA IS ACCURATE OR INACCURATE. THE CUSTOMERS ACKNOWLEDGES AND AGREES THAT THE PHYSICIAN, AND NOT PROJECT FRISKET, IS SOLELY RESPONSIBLE FOR THE INTERPRETATION OF THE RESULTS OR OTHER HEALTHCARE INFORMATION RELATED TO END USER. THE CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE PRODUCT AND/OR THE RESULTS IS AT ITS SOLE RISK. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THERE ARE RISKS INHERENT TO TRANSMITTING INFORMATION OVER AND STORING INFORMATION ON THE INTERNET AND THAT PROJECT FRISKET IS NOT RESPONSIBLE FOR ANY LOSSES OF YOUR DATA, INCLUDING BUT NOT LIMITED TO THE RESULTS AND ANY USER CONTENT, IN CONNECTION THEREWITH. Please note that Project Frisket DOES NOT AUTOMATICALLY REVIEW, MONITOR, EVALUATE OR ANALYZE ANY INFORMATION GENERATED FROM THE APPLICATION AND/OR THE PLATFORM. PROJECT FRISKET DOES NOT PROVIDE IN ANY WAY MEDICAL ADVICE OR ANY OTHER TYPE OF ADVICE AND THE APPLICATION AND/OR THE PLATFORM IS IN NO WAY INTENDED TO REPLACE CONSULTATION WITH A QUALIFIED MEDICAL PROFESSIONAL OR ANY OTHER TYPE OF PROFESSIONAL.
By Customer. Customer represents and warrants to Project Frisket that (a) customer has the authority to enter into this binding agreement and (b) that any Content provided by the Customer for the use of the Application is accurate and truthful and shall not (i) infringe any Intellectual Property Rights of third parties; (ii) misappropriate any trade secret; (iii) be deceptive, defamatory, obscene, pornographic or unlawful; (iv) contain any viruses, worms or other malicious computer programming codes intended to damage Project Frisket’s system or data; or (v) otherwise violate the rights of a third party (including but not limited to any Intellectual Property Rights).
The customer agrees and acknowledges that Project Frisket is not obligated to back up any End User or Customer Content and/or Results. Customer agrees that any use of the Application or the Platform contrary to or in violation of the representations and warranties of Customer in this Article constitutes unauthorised and improper use of the Application and/or the Platform.
By Project Frisket. Project Frisket shall defend and indemnify the Customer as specified herein against any founded and well-substantiated claims brought by third parties to the extent such claim is based on an infringement of the Intellectual Property Rights of such third party by the Product and excluding any claims resulting from (i) Customers unauthorised use of the Product, (ii) Customers or any third party’s modification of any of the Product, (iii) Customers failure to use the most recent version of the Platform made available to you, or Customers failure to install any corrections or updates to such Platform issued by Project Frisket, if Project Frisket indicated that such update or correction was required to prevent a potential infringement, or (iv) Customers use of the Application and/or the Platform in combination with any non-Project Frisket products or services.
Such indemnity obligation shall be conditional upon the following: (i) Project Frisket is given prompt written notice of any such claim; (ii) Project Frisket is granted sole control of the defense and settlement of such a claim; (iii) upon Project Frisket’s request, the Customer fully cooperates with Project Frisket in the defense and settlement of such a claim, at Project Frisket’s expense; and (iv) the Customer makes no admission as to Project Frisket’s liability in respect of such a claim, nor does the Customer agrees to any settlement in respect of such a claim without Project Frisket’s prior written consent. Provided these conditions are met, Project Frisket shall indemnify the Customer for all damages and costs incurred by the Customer as a result of such a claim, as awarded by a competent court of final instance, or as agreed to by Project Frisket pursuant to a settlement agreement.
In the event the Application and/or the Platform, in Project Frisket’s reasonable opinion, are likely to or become the subject of a third-party infringement claim (as per this Article 14.1), Project Frisket shall have the right, at its sole option and expense, to: (i) modify the ((allegedly) infringing part of the Application and/or the Platform so that they become non-infringing while preserving equivalent functionality or (ii) obtain for the Customer a license to continue using the Application and/or the Platform in accordance with this Agreement.
The foregoing states the entire liability and obligation of Project Frisket and the sole remedy of the Customer with respect to any infringement or alleged infringement of any Intellectual Property Rights caused by the Product or any part thereof.
By Customer. You hereby agree to indemnify and hold harmless Project Frisket and its current and future affiliates, officers, directors, employees, agents and representatives from each and every demand, claim, loss, liability, or damage of any kind whatsoever, including reasonable attorney’s fees, whether in tort or in contract, that it or any of them may incur by reason of, or arising out of, any claim which is made by any third party with respect to (i) any breach or violation by you of any provisions of this Agreement or any other instructions or policies issued by Project Frisket; (ii) any End User Content violating any Intellectual Property Rights of a third party and (iii) fraud, intentional misconduct, or gross negligence committed by you.
15. Term and termination
1. This Agreement is for the one term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.The Agreement can be terminated earlier if (i) the Agreement is terminated in accordance with Articles 15.2 or 15.3.
3. Effects of termination. Upon the termination of this Agreement for any reason whatsoever in accordance with the provisions of this Agreement, at the moment of effective termination: (i) Customer will no longer be authorised to access or use the Application and/or the Platform or otherwise use any of the features or Results offered by or through the Application; (ii) Project Frisket may delete data associated with Customers Account, including but not limited to End User content or the Results, on the Application and/or the Platform and (iii) all rights and obligations of Project Frisket or User under this Agreement shall terminate, except those rights and obligations under those sections specifically designated in Article 16.7.
Force Majeure. Project Frisket shall not be liable for any failure or delay in the performance of its obligations with regard to the Application if such delay or failure is due to causes beyond our control including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders, telecommunications, network, computer, server or Internet downtime, unauthorized access to Project Frisket’s information technology systems by third parties or any other cause beyond the reasonable control of Project Frisket (the “Force Majeure Event”). We shall notify Customer of the nature of such Force Majeure Event and the effect on our ability to perform our obligations under this Agreement and how we plan to mitigate the effect of such Force Majeure Event.
Entire agreement. This Agreement constitutes the entire agreement and understanding between Customer and Project Frisket with respect to the subject matter hereof and supersedes all prior oral or written agreements, representations or understandings between the Parties relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement.
Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
Waiver. Any failure to enforce any provision of the Agreement shall not constitute a waiver thereof or of any other provision.
Assignment. Customer may not assign or transfer this Agreement or any rights or obligations to any third party. Project Frisket shall be free to (i) transfer or assign (part of) its obligations or rights under the Agreement to one of its affiliates and (ii) to subcontract performance or the support of the performance of this Agreement to its affiliates, to individual contractors and to third party service providers without prior notification to the Customer.
Survival. Articles 7, 12, 13, 15, 16.8 shall survive any termination or expiration of this Agreement.
Governing law and jurisdiction. This Agreement shall be exclusively governed by and construed in accordance with the laws of Belgium, without giving effect to any of its conflict of law principles or rules. The courts and tribunals of Antwerp shall have sole jurisdiction should any dispute arise relating to this Agreement.