Version: August 2016

General Terms and Conditions services iLost B.V.

iLost B.V., a private company with limited liability organized under the laws of the Netherlands and registered at the Trade Register of the Dutch Chamber of Commerce under file number 55241506 (“Provider”) offers a web-based multi-sided online service which provides Lost and Found management software enabling (i) registration and online publication of found items, (ii) the matching and communication with third parties that claim a lost item (“Claimants”), (iii) planning of logistics and (iv) the administration and monitoring of the entire lost and found process (the “Service”) via any of their websites, of which www.ilost.nl and www.ilost.co are examples, (“the Website”). Provider operates the Service and makes the Service available for use to their customers (“Users”) as a cloud solution (“Software as a Service” – “SaaS”). Provider and User shall also be referred to subsequently as “Party” or together as “Parties” respectively. As used herein, the singular shall include the plural and the plural shall include the singular, as the context shall require.

1. SCOPE OF APPLICATION

1.1 Unless agreed otherwise between the Parties in writing, any use of the Service as well as the conclusion of a contract with respect to the use of the Service and all other services and deliveries of Provider are exclusively provided on the basis of, and governed by, these General Terms and Conditions (“Terms & Conditions”) in their respective current version. Any general terms or conditions of User shall not apply, unless Provider agrees thereupon in writing. The activation of Service or provision of any other service or delivery by Provider shall not be considered consent in this regard.
1.2 The Provider’s service or product offered to User as well as these Terms & Conditions only apply in relation to business enterprises, corporate bodies under public law, special funds under public law and other institutional customers which, when commissioning Provider, do not act for private purposes and, therefore, are not to be qualified as consumers according to Book 7, article 5 of the Dutch Civil Code. These Terms & Conditions also apply for any future business with User within the scope of an ongoing business relationship.
1.3 Provider may change these Terms & Conditions at any time. Changes to these Terms & Conditions shall only be considered a component part of the contract concluded with User if a contract already exists between Provider and User. Provider will inform User about a change of these Terms & Conditions in writing, with typographical emphasis on the amendments. The change is deemed approved by User, unless User objects thereto in writing within 6 (six) weeks from receipt of the change notification.

2. SERVICES OF PROVIDER

2.1 Provider operates the web-based Service and makes it available to User as a cloud solution (SaaS). Details as to the functionalities of the Service can be found within a specific offer issued by Provider for User (the “User Contract”).
2.2 Provider makes the Service available to User as a technical platform enabling User to place items found by User belonging to third parties on Provider’s website (the “Lost & Found Items”). User is provided with the technical facility and authorization to access the technical platform and use the platform’s functionalities via User’s own hardware.
2.3 Provider guarantees an (annual) average of 99% uptime of the web interface. However, it is impossible for Provider to ensure the undisrupted operation of the Service at all times for technical reasons. Rather, User acknowledges that, for several reasons, the possibility to use the Service may be interrupted/restricted (“Disruptions and Interruptions to Service”), in particular based on the following circumstances: (i) planned maintenance work, (ii) unplanned interruptions (e.g. emergency maintenance) which are urgently necessary for fault rectification or avoidance of damages, (iii) interferences or delays based on the breakdown or overcharge of Internet- or telecommunication lines, as well as (iv) Force Majeure or other circumstances which are unforeseeable and which Provider is not responsible for (see Clause 8.2 below). Provider shall strive to minimize such disruptions and interruptions to service as much as possible. The Disruptions and Interruptions to Service and mentioned in this paragraph shall not be considered as default or any other form of a contract infringement on Provider’s side, insofar as it is merely an insignificant and temporary disruption or interruption to service.
2.4 Provider does not owe any upgrading or enhancement of the Service by new functions exceeding the scope of functions as existent at contract conclusion. However, Provider reserves the right to conduct modifications at any time in order to enhance or update any functionality, whereby the aforesaid does not establish any claim for User, nor may User derive any claim therefrom. In case of such modifications, Provider will inform User in due advance before taking them into operation. Provider will also inform User about newly developed additional optional modules (if any), which Provider offers against separate remuneration.
2.5 User is solely responsible for the contents of any item, which User transmits or makes available on the Website, and which are placed accordingly, via the Service, as well as for any underlying data. Provider does not accept any responsibility for the contents of any end user requests, which may be transmitted back to User via the Service, and which have been generated via the Website or any other online channel. Provider only makes available the technical requirements for the transmission of such data, but does not owe any examination of their contents under any factual, legal or other aspects, and Provider does also not owe any examination of data transmitted or made available for call-off with respect to such data’s correctness, completeness, integrity or authenticity. Beyond the scope of functions of the Service – technical basis for data transmission– Provider also cannot accept any warranty for a successful process regarding User’s Products at the Website.
2.6 Insofar as agreed-upon in the individual case, Provider will additionally provide User with certain software (source) code to enable integration of the publication tools (i) search bar, (ii) button and (iii) a found item overview in Users’ websites or app. Depending on the individual case, this may also be done without remuneration.

3. CONTRACT CONCLUSION AND REGISTRATION AS USER

3.1 The User Contract will be concluded via an individual offer issued by Provider and a respective acceptance of such offer issued by User.
3.2 When issuing his respective acceptance of such offer by User, User accepts these Terms & Condition as well as Provider’s Privacy Statement, and affirms that his transferred data in relation to the User Contract are correct and complete. Any later changes to such data shall be immediately communicated by User to Provider.
3.3 With respect to the password either provided by Provider or chosen by User for accessing the Service (the “Login Credentials”), User is obliged to keep such a password confidential, store it separately, and not to disclose it to third parties. Should User become aware that any third person may have gotten knowledge of User’s password or Login Credentials, or use the respective password or Login Credentials, User shall immediately inform Provider in writing. User is responsible for all actions of third parties, which are conducted under use of his Login Credentials.

4. RIGHTS OF USE

4.1 Provider grants to the registered User a non-exclusive, non-transferable and non sub licensable right of use, temporarily limited to the duration of the User Contract, entitling User to use the Service for his own business purposes in connection with the placement of Lost & Found Items. Beyond that, no further rights, in particular with respect to the software applications underlying the Service or any operating software of Provider, are being granted.
4.2 Any use of the Service beyond or exceeding the extent of use as described in Clause 4.1 above is illegal. In particular, User is not entitled to copy, process or further develop the Service or any parts thereof or the underlying software, to decompile the source code or otherwise make the source code legible or usable, to make the Service or any related software publicly available, let or lease or otherwise transfer it to third parties, to commercially utilize the Service or any software, use it for the purposes of third parties or facilitate any of the aforesaid.
4.3 Should User culpably facilitate any use of the Service or of any software of Provider by unauthorized third parties, Provider explicitly reserves the right to claim damages. In case of any unauthorized facilitation of use by third parties, immediately upon Provider’s request, User shall submit Provider with all information necessary to assert legal claims against the third party use.

5. USER’S OBLIGATIONS

5.1 User is responsible for the technical connection to the necessary telecommunication means and, via those, to the Service, as well as the making available of necessary interfaces to his own applications.
5.2 User is responsible for selecting the user settings for the Service in a way as to secure an interruption-free use of the Service. In particular, User shall secure that it follows and acts according the iLost Usage Instruction (as attached to the User Contract) in particular the pickup instructions and business location the User and Provider agreed upon in the User Contract to ensure for Provider to provide the Services. User is obligated to immediately inform Provider of any changes which arise within his sphere of activity if they may affect the provision of the Service or be detrimental to the security of the Service.
5.3 User shall, within his own sphere of organization and responsibility, implement sufficient and up-to-date protection measures in the interest of data and information security. As regards User’s connection to the Service, he shall provide the necessary security precautions (e.g. firewalls, and using a software suitable for access via the Internet and safeguarding a secure data transmission).
5.4 User must protect any Logins allocated with him and his employees against unauthorized access by third parties, and may not disclose such items to third parties. In case of loss of access/Login Credentials, and in case of a threatening unauthorized use of access/Login Credentials (e.g. after an exchange of employees or any other organizational change) User is obligated to inform Provider immediately in writing, in particular in order to enable Provider to decide whether a blocking of access to the Service (see Clause 6 of these Terms & Conditions) is to be initiated. Furthermore, User is obligated upon learning of unauthorized access by third parties to cooperate insofar as cooperation is required of User.
5.5 User is obligated to refrain from all measures which may jeopardize or disrupt the operation of the Service. Furthermore, User is obligated not to use or allow the Service to be used illegally or improperly, particularly in terms of business transactions relating to such subjects which may violate legal provisions. User shall not conduct or facilitate any improper or illegal use of the Service. In particular, the Service must not be used for transactions that infringe statutory provisions. The Service shall not be available to perform transactions regarding Lost & Found Items and/or other items that contain or entail content that is prohibited by law; by way of example but not limited to content that is radical, racist, pornographic, violence glorifying, or otherwise illegal or offending. Provider also excludes from the use of the Service any user demonstrably practicing dubious business methods.
5.6 User shall indemnify and hold Provider harmless from and against any upcoming (existing or alleged) third party claims, including the costs for legal representation, resulting from any actions or failures of User, in particular claims resulting from improper or illegal use of the Service or from an infringement of applicable laws or third party rights by User himself or tolerated by him. If User recognizes or should have recognized that any such infringement is threatening, he is obligated to inform Provider of this immediately.
5.7 Any additional costs resulting from any neglected, non-timely, non-complete or non-correct compliance with User’s obligations shall be borne by User, if he is responsible for this or liable for other reasons.

6. INFRINGEMENT OF USER’S OBLIGATIONS, BLOCKING OF ACCESS TO THE SERVICE

6.1 Provider may, at any time, in whole or in part, block User’s access to the Service or delete User’s account, if (i) User infringes any of his obligations related to the safeguarding of data and information security, (ii) there is imminent danger of damage to or impairment of any systems, data or services of Provider or any systems or data of any other customer of Provider, or danger of damage to the public, (iii) any offers or data transmitted by User via the Service, or respectively, any transactions conducted via the Service, are infringing applicable legal provisions or third party rights, or (iv) any other circumstances are given which entitle Provider to immediate contract termination for cause. Furthermore, blocking of access is possible if User (v) is involved in more than two contractual remuneration claims of Provider, whereby such blocking/deletion will only be initiated after Provider has first issued a payment reminder including the setting of another reasonable deadline for payment with a minimum of 14 (fourteen) days and an indication that, after unsuccessful expiration of this deadline, User’s access to the Service will be blocked/ deleted.
6.2 If the blocking of access is a result of a contract infringement by User, access will only be restored if the infringement is permanently remedied, or the risk of recurrent infringement is effectively excluded by a cease and desist declaration including contractual penalty. However, Provider is not obligated to enable access again if this would be unreasonable, e.g. if the reason for blocking also entitles Provider to an extraordinary termination without notice for cause and Provider terminates this contract extraordinarily and without notice.
6.3 If a blocking/deletion is due to a contract infringement by User, User is not entitled to retain any due payment or assert any damage claims against Provider.
6.4 Should Provider, by way of an exception, facilitate User with an account free of charge, Provider may block or delete such account at any time, without giving reason, and/or decide that further use of the Service is conditioned upon payment of remuneration.

7. REMUNERATION

7.1 In consideration of the Service use, User shall pay to Provider a remuneration according to the initial offer and/or the User Contract or Provider’s respective price list as valid at contract conclusion, insofar nothing else has been agreed to in writing.
7.2 All prices apply net, plus the respective statutory value added tax (VAT, currently 21%, if applicable). If User’s business seat is outside the Netherlands, and if, in connection with service provided to a foreign customer, there are any other particular taxes, customs duties or other charges applicable, all such taxes, duties and charges are to be borne by User or, respectively, if they are to be paid by Provider, they are to be reimbursed by User to Provider.
7.3 All invoices are due for payment net without discount 30 (thirty) days after the invoice date.
7.4 Within the scope of ongoing User Contracts, Provider is entitled to adjust the remuneration to Provider’s own cost development once per year in Provider’s equitable discretion and under reasonable consideration of User’s interests. Provider will inform User about such price adjustments in writing. The price adjustment is deemed approved by User, unless User objects thereto in writing within 6 (six) weeks from receipt of the change notification; Provider will indicate this consequence in the change notification. If User objects to the price adjustment, both parties have a right for special termination of the affected contract with effect as of the announced time of the new prices taking effect; such right to special termination may be exercised within one month after Provider has received User’s objection; however, at the very latest, with effect from the stated date of the introduction of the new prices.
7.5 User is only entitled to set-off against Provider’s remuneration claims if User’s asserted counterclaim is undisputed or established by a final and binding court decision. Any right of retention on User’s side is only permissible under the same conditions, whereby the counterclaim must additionally result from the same contractual relationship.

8. DUE DATES, DEFAULT, FORCE MAJEURE

8.1 If Provider should fall behind when rendering the Services, User shall only be entitled to assert any rights or claims based on default if User has first set vis-à-vis Provider a reasonable additional grace period, which has run-out without success, unless this would be unreasonable for User under consideration of the individual circumstances.
8.2 Provider shall be released from their contractual obligations if and insofar as the non-performance is resulting from Force Majeure or any other circumstances which are unforeseeable and which Provider is not responsible for (e.g. war, strike, lockout, riots, expropriation, revisions of statutory law, official orders, storm, flood, natural disasters, water in leakage, breakdown of energy supply, system breakdown in the Internet, breakdown or destruction of data transmission or telecommunication lines, illegal activities of third parties in the Internet or sabotage by malware). The same applies in case of delays based on circumstances resulting from User’s sphere of responsibility (e.g. non-timely fulfillment of User’s obligations or lacking availability of IT-components or interfaces on User’s side).
8.3 The release from obligations shall be valid for the duration of the interference plus a reasonable start-up period. If the interference lasts for longer than 7 (seven) days, both Parties may, after a reasonable additional remedy period has run-out without success, terminate the User Contract with respect to the affected part of the Service. In all such cases, claims for the compensation of damages or expenditures against Provider shall be excluded.
8.4 Both Parties shall inform each other immediately after getting knowledge of any Force Majeure or other event as mentioned in Clause 8.2 of these Terms & Conditions. If a written notification due to the respective circumstances is initially not possible, the respective informing Party is obligated to notify the other Party in any other possible way followed by sending a written form of notification, as soon as possible after getting knowledge of any Force Majeure or other event as mentioned in Clause 8.2 of these Terms & Conditions.

9. CLAIMS BASED ON DEFECTS

9.1 User shall immediately notify any occurring defects to Provider in writing, addressed to the respective support email address as published by Provider. User shall reasonably support Provider when analyzing and remedying the defect, and immediately provide access to documents or materials containing information as to the circumstances under which the defect has occurred. User shall bear all additional costs resulting from incorrect or incomplete information given by User in this regard, or delays in defect analysis or remedy caused by User.
9.2 User acknowledges that his usability of the Service is significantly dependent on the user settings chosen by User himself, including but not limited to the pick-up instructions provided by User and or any other element of the Usage Instructions. As a consequence, only reproducible errors may be acknowledged as defects.
9.3 Measures undertaken by Provider to resolve or reduce damages do not constitute an acknowledgement of defects. Provider does not waive the objection that the notice of defect was not timely, factually unfounded or was otherwise inadequate through negotiations concerning a notice of defect.
9.4 Warranty claims are excluded if User himself, or via third parties, changes any Service functionality without prior authorization from Provider, or deviates from including but not limited to (i) the User Contract, (ii) the Usage Instructions or any other written or oral agreement between Provider and User for use as stipulated by Provider, or uses the Services in an operating environment other than stipulated by Provider, including handling errors on User’s side, non-observance of usage instructions, false or lacking processing data, unless Provider is responsible for this. The aforesaid shall also not apply if User can demonstrate that occurring defects are not connected with such circumstances. If, due to such circumstances, defect analysis is substantially hindered, User shall bear any additional costs incurred thereby.
9.5 If a defect occurs which Provider is responsible for, Provider will, within reasonably time, at their own choice either remedy the defect or provide replacement delivery (jointly: “Supplementary Performance”). The Supplementary Performance may also consist of providing, for the purpose of problem solution, a temporary or – unless this would be unreasonable for User – permanent workaround. Should Supplementary Performance fail, User may, if the respective statutory preconditions for such claims are given, request a reduction of remuneration or terminate the User Contract.
9.6 For defects of title, the following applies: In case of an infringement of third party intellectual property rights which Provider is responsible for, Provider may, at their own choice, either obtain at their own costs a right of use from the third party which is sufficient for use of the Service as agreed under the User Contract and grant such right of use to User, or modify the Service thereby keeping-up the agreed possibilities for use but in a way that no third party intellectual property rights are infringed any longer. Should this be impossible or unreasonable for Provider, User is entitled to request a reduction of remuneration or terminate the User Contract.

10. LIABILITY FOR DAMAGES AND/OR EXPENDITURES

10.1 Notwithstanding the legal grounds, Provider is only liable in cases of wrongful intent, gross negligence and the negligent violation of essential contractual duty, the fulfillment of which is a precondition for the appropriate contract execution and upon the compliance of which User may usually trust.
10.2 In cases of ordinary negligence, Provider’s liability is limited to the compensation of damages that are foreseeable and typical for the contractual relation.
10.3 Furthermore, Provider’s liability with respect to each damage event is limited to the amount equaling the yearly net remuneration or, which is to be paid by User under the User Contract, and per contract year to the amount of the yearly net remuneration.
10.4 In accordance with the current state of technology, data communication over the internet cannot be guaranteed as error-free and/or available at all times. Provider is not liable for disruptions within the supply network for which they are not at fault.
10.5 If and insofar as Provider makes available to User any services free of charge, Provider’s liability shall be limited to cases of wrongful intent and gross negligence. This particularly applies for any free-of-charge service publication tools (as referred to in Clause 2.6), and in case Provider, by way of an exception, provides User with a free-of-charge account for the Service.
10.6 Provider’s liability does not extend to damages within the scope of contractual use of the Services provided by Provider that have been caused by improper or incorrect use by User.
10.7 As regards the loss of data or programs, Provider shall not be liable insofar as the damage would have been avoidable if the appropriate data protection measures had been taken by User.
10.8 Insofar as Provider’s liability is excluded or limited, this shall also apply for the liability of Provider’s representatives, employees and subcontractors.

11. PRIVACY PROTECTION, INFORMATION SECURITY

11.1 The Internet is used as communication and data transmission channel when rendering the contractual services. Based on public access and the possibilities that contents and data may be manipulated by non-authorized third parties, this is connected to certain risks, e.g. getting knowledge of data in transmission without authorization. Even additional protection measures such as firewalls cannot provide absolute security against misuse, loss, theft or illegitimate modification of data, or against attacks which lead to service interruptions. User accepts these risks; if any such risks should realize, potential claims against Provider shall be excluded, unless Provider has negligently or intentionally caused the respective circumstances.
11.2 Both Parties undertake to observe all applicable data protection laws.
11.3 Further details with respect to data protection can be found in Provider’s Privacy Statement, which may be accessed on Provider’s website under the menu item Terms & Conditions, and with respect to which User is required to declare consent and approval when issuing his declaration aimed at contract conclusion.
11.4 Provider is entitled within the context of the provision of services to merge data generated by User including data from Lost & Found Item users with other details, and to process and use them in an anonymized form for his own purposes.
11.5 User is explicitly not allowed to use any personal details provided by Claimants and made public through the Website (“Personal Data”) for any other purpose than mentioned in this Clause 11 which entails, inter alia, that it is not allowed to (i) send messages to Claimants with content that is general in nature and/or is not directly related to the Service or a Lost & Found Item and which are sent without the explicit invitation of Provider to do so, regardless of whether the messages are of a commercial nature, (ii) send messages in which commercial products or services are being offered, regardless of whether these products or services are (indirectly) related to the Service and/or Lost & Found Items and (iii) collect and/or save e-mail addresses and/or other Personal Data of Claimants.

12. CONFIDENTIALITY, PUBLICATIONS

12.1 Both Parties undertake to treat all information about the other Party’s business operations becoming known to them while carrying-out the User Contract, in particular business and trade secrets (“Confidential Information”), as strictly confidential, and not to use these for purposes outside of those required for contract implementation, even after contract termination, and not to disclose such information to third parties, with the exception of such third parties which have been legitimately engaged by the Parties in connection with contract performance, and upon which the Parties will impose corresponding confidentiality obligations. This applies irrespective of whether this confidential information has been classified as “confidential” or “secret” or as requiring to be kept confidential in a similar manner. The confidentiality obligation shall not apply with respect to such information which (i) has been publicly available or known to the receiving Party prior to disclosure by the disclosing Party, or later becomes publicly available or known to the receiving Party without breach of any confidentiality obligation by the receiving Party, (ii) has demonstrably been developed by the receiving Party independently from knowledge of the information disclosed or having become known under the User Contract without breach of any confidentiality obligation, or (iii) with respect to which statutory or officially ordered duties of disclosure exist.
12.2 Provider is entitled to mention User as reference customer on their Website and in any other media or marketing materials, and, in this regard, also use User’s company logo or other company denominations within the scope of a revocable, non-exclusive right of use.
12.3 Parties shall refrain from directly or indirectly expressing, airing and/or publishing any negative publication and/or communication in the broadest sense towards the other Parties in social and other external media.

13. CONTRACT DURATION, TERMINATION

13.1 Unless agreed otherwise between Parties in writing, the User Contract shall run for an indefinite period of time and may be terminated by either Party with 1 (one) month’s notice prior to the end of a calendar month.
13.2 The aforesaid shall not affect the right of either Party to terminate the User Contract with immediate effect for cause, in particular if the other party sustainably infringes essential contractual obligations and does not remedy the violation despite a warning by the other Party within which a reasonable remedy period has been set. Furthermore, Provider is entitled to immediate termination for cause if User gets into areas with payment of two or more due invoices.
13.3 Any termination notice requires the written form. Termination notices per email do also constitute the written form.
13.4 Upon the termination of the User Contract, for whatever reason, User is obligated to immediately cease using the Service, return all materials submitted to him by Provider in connection with Service use to Provider, and delete all respective data stored at User’s own systems, unless this would not be permissible due to statutory retention and archiving duties.

14. MISCELLANEOUS

14.1 User may only effectively assign the User Contract, which has been concluded between the contractual parties or individual rights or obligations resulting therefrom to third parties after having obtained Provider’s prior written consent.
14.2 The entire contractual and business relationship between the Parties shall be exclusively governed by the Laws of the Netherlands.
14.3 The place of performance and exclusive place of jurisdiction for all disputes arising from and/or in relation to the contractual and business relationship between Parties shall be Amsterdam, the Netherlands.
14.4 Any amendments or modifications to the User Contract which has been concluded between Parties and/or these Terms & Conditions as well as collateral agreements shall be considered effective if they are agreed to by the Parties in writing.
14.5 Should individual provisions of the contract concluded between the Parties or of these Terms & Conditions be or become invalid, in whole or in part, this shall not affect the validity of the remaining provisions. The fully or partially invalid provision shall be replaced by a legally valid provision, whose economic objective comes closest to that intended by the invalid provision. The same applies in the event of a regulatory gap.