Terms and conditions

Last updated: 2024-04-18

These Terms and Conditions apply to the provision and use of the Services and the Website of PQINA. Please read these Terms and Conditions carefully so that you (the “Customer”) know what your rights and obligations are.

1. Definitions and applicability

  1. In these Terms and Conditions, the following terms, indicated with a capital, whether single or plural, will have the following meaning:
    1. Agreement means the entirety of agreements made between PQINA and the Customer for the performance and use of the Services and/or for the performance of other or additional activities, including the provisions of these Terms and Conditions and the License Terms;
    2. Confidential Information means information that is marked as confidential by PQINA, and all other information of which the Customer knows or reasonably should know that the information was intended as confidential. Confidential Information includes (amongst others) all technology, systems, codes, tools, techniques, routines, procedures and methodologies used with regard to the Software and the Service, as well as PQINA’s business affairs, financial affairs, documentation, business plans, price lists, strategies, technical operations and financial position. Any information that initially does not fall under the definition of Confidential Information can, at a later date, become Confidential Information;
    3. Customer means the natural person or legal entity that has concluded an Agreement with PQINA;
    4. Error means the substantial failure of the Software to meet the functional or technical specifications expressly agreed in writing. An Error only exists if the Customer can prove it and it is reproducible. The Customer is obliged to report Errors without delay. PQINA shall have no obligation whatsoever with respect to other imperfections in or to the Software other than with respect to Errors within the meaning of these Terms and Conditions;
    5. GDPR means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/ EC (“General Data Protection Regulation”);
    6. Intellectual Property Rights means any intellectual property rights, including but not limited to rights such as copyrights, database rights, domain names, model rights, neighboring rights, patents, trade mark rights, trade name rights, as well as the rights to know-how and trade secrets;
    7. Licensed Developer means the Customer who purchased a license for the use of Software and entered into an Agreement with PQINA.
    8. License Terms means the specific license terms which may apply to the provision and use of the Software;
    9. License Types means the specific license type which may apply for the (use of the) Software, as defined in the License Terms;
    10. Offer means the quotation sent by PQINA to the Customer or the offer made by PQINA to the Customer for the provision of Services;
    11. Parties means PQINA and the Customer;
    12. Party means PQINA or the Customer;
    13. Personal Data means personal data within the meaning of article 4.1 of the GDPR;
    14. PQINA means the private company with limited liability under the laws of the Netherlands Pqina BV, established in Veldhoven, 5502BH, Sint Willibrordusstraat 16, registered in the trade register of the (Dutch) Chamber of Commerce under number 73206164;
    15. Priority Support means the licence purchased with the Software that entitles you to a reduced response time for support requests, which licence and License Type may vary from one Software to another;
    16. Privacy Policy means PQINA’s privacy policy, available at pqina.nl/privacy
    17. Service means the provision of the Software and/or any other services provided by PQINA to the Customer;
    18. Software means the Pintura Image Editor, and Hotlist software, as specified on pqina.nl/#services;
    19. Terms and Conditions means this set of general Terms and Conditions of PQINA, available for download and print at pqina.nl/terms;
    20. Website means the website of PQINA, available at pqina.nl, including all underlying pages.
  2. These Terms and Conditions apply to the Website, the Service and the Software, including any use thereof.
  3. Any terms and conditions of the Customer do not apply and are expressly rejected.


  1. For questions, complaints or other matters, the Customer can contact PQINA. PQINA can be reached in the ways mentioned on the Website, or via the following contact details: PQINA B.V. Sint Willibrordusstraat 16 5502BH Veldhoven The Netherlands pqina.nl/contact

3. Offer and conclusion of the Agreement

  1. PQINA can provide the Customer with an Offer, indicating what is included in the Services and the fee payable by Customer upon acceptance of the Offer.
  2. An Offer is without obligation and does not bind the Customer to anything.
  3. If the Offer is in a quotation sent by PQINA to the Customer, the Offer is valid for the duration of 30 (thirty) calendar days from the date of the Offer, unless otherwise stated in the Offer.
  4. If it turns out that the Customer provided PQINA with incorrect data on the basis of which PQINA provided an Offer, PQINA is entitled to adjust the rates and/or other terms from the Offer to the correct data, even after the Agreement has already been concluded.
  5. The Agreement is concluded as soon as the Offer is accepted and/or by ordering a license to the Software, by using the Service and/or by agreeing to these Terms and Conditions. The Offer is deemed to be accepted as soon as the Customer consents to the Offer, or if PQINA may reasonably consider a behaviour of the Customer as (an impression of) (aroused) consent.
  6. The description of the Services mentioned in the Offer is binding. PQINA is not bound by a differing in the Customer’s acceptance response, even if this response only differs from the Offer on minor points. PQINA cannot be held to the Offer if the Customer can reasonably understand that the Offer, or any part thereof, contains an obvious mistake and/or clerical error.
  7. The Customer declares and guarantees that acceptance of an Offer as referred to in the previous paragraphs are or have taken place by an authorised person.

4. Responsibilities of the Customer

  1. The Customer represents and warrants that he is authorised to use the Service.
  2. The Customer is responsible for compliance with the Terms and Conditions and the License Terms.
  3. The Customer is responsible for meeting the technical and functional requirements and for using the electronic means of communication necessary to access and use (parts of) the Service. The risk of loss, theft or damage to any information rests at all times with the Customer.

5. The Software and the Service

  1. The Customer acknowledges and accepts that PQINA, by means of the Service, merely endeavours to make available the Software, which the Customer (and other users) can use.
  2. The Customer accepts that the Service is provided “as is”. PQINA does not warrant that the Service will be error free, complete or up to date at all times. PQINA does not warrant that the Service or any part thereof will be accessible at all times and without interruptions or disruptions. Disruptions in the Service can occur, among other things, as a result of malfunctions in the internet connection, malfunctions in software (of third parties) and as a result of viruses and/or defects.
  3. PQINA has no knowledge of and/or involvement in the actions performed by the Customer and/or information which is imported and/or entered by the Customer (and/or its users) in the Software.
  4. The Service is exclusively intended for the use as described in the Agreement and on the Website. It is expressly prohibited to use the Service for any other purpose.
  5. The Customer is expressly not permitted to use the Service for unlawful acts or for acts that are otherwise prohibited under applicable laws and regulations or to otherwise misuse the Service. In that context, the Customer guarantees, among other things, that it:
    1. does not commit or encourage a criminal offence;
    2. shall not distribute or cause to be distributed any virus, trojan, worm, logic bomb or other material that is malicious, technologically harmful, in violation of trust, or in any way offensive or obscene;
    3. hack any aspect of the Website, Software and/or Service;
    4. does not infringe any Intellectual Property Rights;
    5. does not infringe privacy rights and/or other rights of third parties;
    6. does not violate any applicable state, federal or international law or regulation;
    7. shall not act in a defamatory or libellous way towards any other person; does not threaten or harass any other person; and
    8. shall not transmit or distribute any obscene material.
  6. In the event of a violation of the aforementioned provision by the Customer, PQINA is entitled to take all measures it deems appropriate, including but not limited to limiting, suspending or terminating access to, and/or the use of (parts of), the Service. PQINA is not liable for any loss of data suffered as a result of measures taken for violation of the aforementioned provision, such as the limitation, suspension or termination of access to, and/or the use of (parts of), the Service.
  7. PQINA is entitled to take all reasonable measures to prevent or avert dangers or damage insofar as it deems necessary, including but not limited to limiting, suspending or terminating access to, and/or the use of (parts of), the Service, such at the sole discretion of PQINA and without being obliged to pay any compensation.
  8. PQINA always has the right to make changes to and/or upgrades to the Software, including extending, changing or removing certain functionalities and/or the design and layout at any time, without any prior notification and without being obliged to pay any compensation whatsoever to the Customer, regardless of whether the Software is subsequently no longer available via certain operating systems and/or hardware.
  9. If the Customer reports a defect in the Software, PQINA can render reasonable efforts to repair the defect and issue an updated version of the Software, or to provide a workaround. PQINA is not obliged to do so and may decide otherwise.
  10. PQINA has the right to temporarily shut down the Service for the purpose of performing maintenance, making changes and/or upgrades, without the Customer being able to claim any compensation. PQINA strives to, but is never obliged to, announce maintenance in advance, if possible, and to ensure that the shutdown of the Service is as short as possible.
  11. PQINA is not responsible for any decision made by the Customer through the Service. PQINA makes no guarantees regarding the achievement of results through the Service.
  12. PQINA does not warrant in any way whatsoever that any terms and conditions applicable to third-party software or services allow the use of and/or interaction with the Software.

6. Support and maintenance of the Software

  1. During the term of the Agreement, PQINA can, but is not obliged to, provide the Customer with support and maintenance services as provided in this article.
  2. The Customer can provide PQINA with support questions related to the Software by creating a support ticket via app.pqina.nl. PQINA endeavours to answer technical questions within 5 (five) business days. If the Customer has purchased a Priority Support license, submitted support issues will receive higher priority and PQINA endeavours to answer the questions within 2 (two) business days.
  3. Yearly support time is limited to 4 (four) hours per Licensed Developer, and 40 (forty) hours per license.
  4. Support shall refer only to Software’s source code, integration questions related to the Software’s API and documentation clarification. Support shall never include customization, installation, and questions related to other programming languages, libraries or frameworks. Under no circumstances is PQINA required to fix bugs or errors in the Software, to perform custom development, or to write code for the Customer.
  5. PQINA is at any time entitled to discontinue and/or to terminate the support and maintenance services as provided in this article with immediate effect, without any obligation, such as the obligation to pay compensation, being imposed on it.

7. Intellectual Property Rights

  1. All Intellectual Property Rights to all works developed or made available in the context of the Service, expressly including the Service, the Software, the Website, and all related materials, computer software, graphic user interfaces, (source and object) codes, designs, documentation, analyses, protocols, advice, reports, quotations, and configuration files on which Intellectual Property Rights may rest, and the preparatory material thereof, rest with PQINA and/or its licensor(s).
  2. The Customer will only be given the rights of use and powers that are granted to it by virtue of the Agreement or applicable law. The right of use granted to the Customer hereby is non-exclusive, non-sublicensable, non-transferable, limited for the term of the Agreement and limited to use in connection with the Service. Unless otherwise agreed in writing, this right of use does not also include a right of use to products and/or services of third parties and/or to integrations of third parties. The terms and conditions of those third parties apply to this.
  3. PQINA and/or its licensor(s) reserve all rights, title and interest not granted to the Customer in the Agreement or by law.
  4. To the extent the Customer unexpectedly becomes the rightholder and/or owner by operation of law of an asset protected by an Intellectual Property Right, the Customer shall transfer these Intellectual Property Rights (back) to PQINA in advance, whereby the Customer shall grant PQINA all necessary cooperation and an irrevocable authorisation to effect such transfer. To the extent that the Customer is entitled to personality rights under an Intellectual Property Right, the Customer shall waive such personality rights to the extent possible. If such a waiver is not legally possible, the Customer undertakes not to exercise these personality rights against PQINA and/or third parties without PQINA’s prior written consent.
  5. The Customer is expressly not permitted to download, copy, modify, reverse engineer, disclose, use for direct or indirect commercial purposes any information that is made accessible in the context of providing the Service or to use it for a purpose other than the purposes stated in the Agreement, unless mandatory applicable law permits this use.
  6. The Customer shall not remove or (have) change(d) any indication(s) regarding the confidential nature, or of any Intellectual Property Right, on any work.
  7. PQINA is entitled to take (visible or invisible) technical measures to protect materials or other works. The Customer is not allowed to circumvent or remove such technical measures.
  8. The Customer shall under no circumstances be permitted to remove or circumvent technical provisions or to arrange for this to be carried out.
  9. The Customer shall not perform any acts that may infringe any Intellectual Property Rights of PQINA and/or its licensors, including but not limited to unauthorised disclosure and/or duplication of (any part of) the Service and the registration of domain names, trade names, trademarks and/or Google AdWords or Bing Ads search terms or keywords that are similar or identical to any sign to which PQINA and/or its licensors may assert Intellectual Property Rights.
  10. PQINA shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual right to use and incorporate into the Service any suggestions, improvement requests, recommendations or other feedback provided by the Customer regarding (the operation of) the Service. PQINA reserves the right at all times to use the knowledge acquired through performance of the Agreement for the benefit of other customers.
  11. The Customer grants PQINA the right to use the Customer’s trademarks, logos and (trade) names in its external communications, including for promotional purposes and listing on the Website.

8. License

  1. Unless agreed otherwise in writing, the license granted to the Customer is a non-exclusive, non-sublicensable, non-transferable, limited for the term of the Agreement and limited to use in connection with the Service license. If the Service (also) aims to provide licenses to the Customer, the provisions in this article apply additionally.
  2. Customer shall always strictly comply with the agreed restrictions on the license, including those in the Agreement, these Terms and Conditions, the License Terms and/or any terms and conditions of PQINA’s suppliers.
  3. If, and to the extent that, PQINA provides Customer with licenses for third-party software and/or open source software, with respect to that third-party software and/or open source software, the license terms of that third-party and/or the specific open source license shall apply between PQINA and Customer and supersede any conflicting terms in these Terms and Conditions and/or License Terms.
  4. PQINA may offer different License Types for the Software, in terms of functionality, rates and term of the license.
  5. The functionalities, rates and duration of the License Types are stated on the Website and in the License Terms. The Customer can and shall only use the functionalities of the Software that belong to the License Type it has purchased.
  6. If, in the assessment of PQINA, it appears that the Customer has purchased an incorrect License Type and/or the Customer uses functionalities of the Software other than those belonging to the purchased License Type and/or otherwise acts in breach of the purchased License Type, PQINA expressly reserves the right to terminate the Agreement or charge the Customer for the differences in price of the License Types.

9. Software development

  1. Insofar the Service (also) extends to the development of software, the provisions of this article apply additionally.
  2. If, prior to or at the conclusion of the Agreement, specifications or a design of the software to be developed have not been or have not been provided to PQINA, the Parties will, in mutual agreement, specify in writing which software will be developed and in what manner the software will be developed.
  3. PQINA will carry out the development of the software based on the data provided by Customer, Customer guarantees the accuracy, completeness and consistency of the data provided by it. PQINA is entitled, but not obliged, to examine the accuracy, completeness or consistency of the data, specifications or designs made available to it and, if any imperfections are found, to suspend the agreed work until Customer has removed the imperfections in question.
  4. If the Parties use a development method which is characterised by the fact that the design and/or development of parts of the software is subject to a further prioritisation to be determined during the execution of the Agreement, this prioritisation shall always be established in consultation between the Parties.
  5. If Parties use an iterative development method (e.g. agile/scrum), Parties accept that:
    1. the work will not be performed on the basis of complete or fully developed specifications at the outset; and
    2. specifications, which may or may not have been agreed at the start of the work, may be changed during the performance of the Agreement with due regard to the project approach belonging to the relevant development method.
  6. PQINA will deliver the software to be developed as far as possible in accordance with the specifications laid down in writing. Installation of the software by PQINA will only take place if agreed in writing between the Parties.
  7. If an acceptance test has been agreed between the Parties, the test period will be 14 (fourteen) days after delivery or, if installation by PQINA has been agreed in writing, after completion of the installation. During the test period, the Customer is not allowed to use the software for productive or operational purposes. During the acceptance test, the Customer is obliged to test under its full and sole responsibility whether the delivered software meets the agreed criteria and whether the delivered software contains any Errors. Any assistance provided by PQINA in conducting the acceptance test is entirely at Customer’s risk. The Customer shall perform the acceptance test properly and with sufficiently qualified personnel and it shall share the test results with PQINA in writing, clearly and comprehensively.
  8. If the testing of the delivered software shows that the delivered software does not meet the agreed criteria and/or the delivered software contains Errors, Customer will inform PQINA of this in a written, comprehensible and clear manner, at the latest on the last day of the acceptance test. PQINA will endeavour to the best of its ability to make the software comply with the agreed criteria and/or to remedy said Errors. PQINA is entitled to implement temporary solutions, programme bypasses or problem avoiding restrictions in the software.
  9. The software, or a part thereof, will be deemed to be accepted between the Parties:
    1. if no acceptance test takes place:
      1. at the time of delivery; or
    2. if an acceptance test does take place:
      1. at the moment that Customer accepts (the part of) the delivered software (orally or otherwise), and in any case at the moment that PQINA confirms Customer’s acceptance thereof in writing and a well-founded objection to it by Customer fails within 48 (eighty four) hours; or
      2. if (the developed part of) the software, in PQINA’s opinion, does not contain any Errors, notwithstanding the presence of imperfections which do not prevent acceptance under Article 9.10, from the moment of delivery; or
      3. at the moment that the software meets the agreed criteria and/or the Errors have been repaired in accordance with article 9.8, without prejudice to the presence of imperfections that do not prevent acceptance under article.
    3. regardless of whether an acceptance test takes place:
      1. from the moment that Customer uses the software for productive or operational purposes, which use is explicitly at the expense and risk of the Customer.
  10. Acceptance of (part of) the software may not be withheld on grounds not related to the agreed criteria and furthermore not due to the existence of imperfections, being imperfections that do not reasonably prevent the operational or productive use of the software. Acceptance may furthermore not be withheld due to aspects of the software that can only be judged subjectively, such as aesthetic aspects and aspects concerning the look-and-feel and layout of the user interfaces. Acceptance of the software in one of the ways referred to in this article will result in PQINA being discharged of its obligations regarding the provision and delivery of the software. After acceptance, Customer accepts the software in the state in which it is at that time (“as is, where is”). PQINA is not obliged to repair Errors and/or imperfections after acceptance, but may - at its discretion - still offer this to Customer, whether or not for an additional fee.
  11. Without prejudice to the provisions of Article 5 of these Terms and Conditions, Customer only acquires the right to use the software in its own organisation. Only if and to the extent expressly agreed in writing, the source code of the software and the technical documentation created in the development of the software can be made available to Customer. If PQINA is legally obliged to make the source code and/or the technical documentation of the software available to Customer, PQINA may demand reasonable compensation for this.
  12. Unless expressly agreed otherwise in writing, maintenance and/or further development of the developed software is not included in the Agreement.

10. Fees and payment

  1. The Customer shall pay to PQINA the agreed fees for the Service as specified in the Agreement.
  2. All fees mentioned by PQINA are exclusive of VAT and other (government) levies and taxes, unless explicitly stated otherwise. The VAT and other (government) levies and taxes shall be borne by the Customer.
  3. PQINA is entitled to adjust its prices and rates, unless the Customer is a consumer. PQINA will notify the Customer of this at least 1 (one) month in advance. If it is an increase of more than 10% and the Customer does not wish to agree to such an increase, the Customer shall be entitled, within 30 (thirty) days of notification by PQINA, to terminate the Agreement by the date on which the increase will take effect.
  4. The Customer consents to electronic invoicing by PQINA.
  5. Payments should be made in euros, unless otherwise agreed.
  6. Unless agreed otherwise in writing, payments must be made in advance per month. Insofar as the Customer is a consumer, the consumer expressly agrees to monthly prepayment. The payment period for invoices sent by PQINA is 14 (fourteen) calendar days from the invoice date.
  7. Late payment by the Customer entitles PQINA to suspend its obligations under the Agreement. This does not affect the Customer 's obligation to (continue to) make payments.
  8. Payment terms are strict deadlines. If the Customer does not fulfil his payment obligation(s) on time, it shall be in default by operation of law.
  9. If the Customer is requested by or on behalf of PQINA to still pay a late payment within 14 (fourteen) days, and payment has not been made after this period has expired, the Customer will also owe statutory commercial interest on the amount due. In that case PQINA is also entitled to charge the Customer for all costs incurred and yet to be incurred to collect the amount, explicitly including but not limited to all extrajudicial and judicial (collection) costs, including costs for lawyers, bailiffs and collection agencies. The extrajudicial (collection) costs will be calculated according to the the Dutch “Staffel Buitengerechtelijke incassokosten” (BIK, extrajudicial collection costs).
  10. The claim for payment of fees is immediately due and payable if the Customer is declared bankrupt, if the Customer applies for a moratorium, if the Customer 's assets are fully seized and/or if the Customer goes into liquidation or is dissolved.

11. Refund

  1. The Customer is not entitled to any refund of the paid fees for a license, unless the refund request is made within 60 (sixty) days from the purchase date.
  2. If the refund request is made within 60 (sixty) days from the purchase date, but the Customer requested support and/or maintenance services, PQINA is entitled to refuse a refund request by the Customer.
  3. In order to ask for a refund of the license fee, the Customer has to contact PQINA at pqina.nl/contact. As soon as the request is received by PQINA, PQINA will evaluate the validity of the refund request. If the Customer is eligible for a refund, PQINA endeavours to initiate a refund of the purchase within 15 (fifteen) business days.
  4. Once PQINA initiates the refund the Customer will get a confirmation email and the Agreement and the license are terminated with immediate effect. The Customer shall remove, delete or otherwise destroy any material that it has received, copied or otherwise obtained in relation to the Agreement.

12. Privacy

  1. The Customer is responsible for Personal Data and other data and for the protection of the data that is imported or entered in the Service.
  2. The Customer represents and warrants that the provision of Personal Data to PQINA and the processing by PQINA is lawful and does not infringe any right of a third party. In particular, the Customer represents and warrants that the provision of Personal Data to PQINA is in accordance with the GDPR.
  3. PQINA will process Personal Data in its role as controller in accordance with its Privacy Policy.

13. Confidentiality

  1. The Customer shall treat any Confidential Information strictly confidential. The Customer shall also impose this obligation on its employees, staff members and/or third parties working for it who are in any way involved in the Confidential Information.
  2. In the event that the Customer acts in violation of the provisions of the preceding paragraph, the Customer shall promptly notify PQINA by means of a written notice stating the nature of that breach, when the breach occurred, and any other information that may be relevant. The Customer shall take all measures to prevent further breaches and/or damages. The Customer shall provide PQINA with all necessary assistance to defend the rights of PQINA, including but not limited to giving PQINA the opportunity to take any (other) (legal) measures to prevent further breaches and/or damages.
  3. In the event that the Customer acts in violation of the provisions of the first paragraph of this article, the Customer forfeits to PQINA – without attributability and/or a notice of default being required – an immediately payable fine of € 5,000 (five thousand euros) per violation, and € 500 (five hundred euros) per day that the violation continues, without prejudice to all other rights of PQINA including but not limited to the right to (additional) compensation and/or performance of the Agreement.

14. Indemnification

  1. To the maximum extent permitted by applicable law, and unless mandatory applicable law provides otherwise, the Customer shall be liable for and indemnify PQINA and its affiliates, and their directors and officers, from all liability, loss, damage, fines, costs or claims from third parties (including, but not limited to, legal costs on an indemnity basis), regardless of cause, in connection with or arising out of the Customer 's use of the Service, a violation by the Customer of the Agreement, and /or any unlawful activity, including but not limited to a violation of Intellectual Property Rights.

15. Liability

  1. The Customer is fully responsible and liable for all actions it performs using the Service.
  2. PQINA’s liability for damages resulting from an attributable failure in the performance of the agreement, unlawful act or otherwise, is excluded, to the extent allowed by a mandatory or peremptory rule of law.
  3. In the event that PQINA is liable for damages under a mandatory or peremptory rule of law, PQINA’s liability is, per event (a series of successive events is seen as one event) limited to the amount that in the relevant case under the professional liability insurance of PQINA is paid out.
  4. If, for whatever reason, no payment is made under the insurance referred to in the preceding paragraph, PQINA’s liability will be limited to compensation of the direct damage up to twice the amount (excluding VAT) that the Customer paid to PQINA for the Service in the 3 (three) months preceding the event giving rise to the damage. In all cases, PQINA’s liability shall be limited to an amount of €5,000. Direct damage shall be understood to mean exclusively:
    1. material damage to property;
    2. reasonable costs incurred to prevent or limit direct damage, which could be expected as a result of the event on which the liability is based; and
    3. reasonable costs incurred to determine the cause of the damage.
  5. Damage due to death, physical injury or due to material damage to goods is limited to € 1,250,000.
  6. PQINA’s liability for indirect damages is, in any event, excluded. Indirect damage means any damage that is no direct damage, and is thus including but not limited to consequential damages, loss of profit, loss of business, loss of anticipated savings, loss of information, or any other financial loss or loss of goodwill or reputation, or other incidental, indirect, punitive or exemplary damages of any kind.
  7. The exclusions and limitations of this article will not apply if the Customer is a consumer and/or insofar as the damages are caused by willful misconduct or gross negligence of PQINA or its management.
  8. Without prejudice to the above, PQINA excludes any liability for third party failures, including but not limited to third parties involved by PQINA and failures of third party software. If the Customer observes such third party failure, the Customer’s only and exclusive remedy is to report this to PQINA. PQINA may, at its sole discretion, replace the third party (software) or create a workaround.
  9. Unless performance of the agreement by PQINA is permanently impossible, PQINA’s liability for attributable failures in the performance of the agreement will be incurred only if the Customer sends PQINA a notice of default, setting a reasonable term for the recovery of the failure, and PQINA also after that term is attributable failing to fulfill its obligations.
  10. Any claim for damages by Customer that is not specified and explicitly reported by the Customer shall expire within a period of 12 (twelve) months after the claim has arisen. This does not affect the Customer’s complaint obligation and the obligation to investigate the Service at first use.

16. Force majeure

  1. A Party cannot be held to fulfil any contractual and/or legal obligation if it is prevented from doing so as a result of force majeure. Force majeure exists if a Party is hindered in the performance of its obligation(s) as a result of a circumstance that is not due to its fault, nor is it for its account by virtue of the law, a legal act or generally accepted practice.
  2. Force majeure on the part of PQINA, in addition to what is understood under the law and in case law, also includes illness of employees and/or absence of employees that are crucial for the provision of the Service, interruptions in the supply of electricity, strikes, riot, fire, natural disasters, floods, failures of PQINA’s suppliers, failures of third parties engaged by PQINA, internet failures, hardware failures, failures in (telecommunications) networks, epidemics, pandemics, government measures and all other external causes which PQINA cannot influence.
  3. The Party invoking the force majeure is obliged to make commercially reasonable efforts to ensure that the force majeure situation is as short as possible.
  4. In the event of force majeure, PQINA is entitled to suspend its obligations under the Agreement, or to terminate the Agreement in its entirety and with immediate effect, without any obligation, such as the obligation to pay compensation, being imposed on it.

17. Term and termination

  1. The Agreement and the license granted thereunder shall continue until terminated in accordance with this article. Unless otherwise specified in the Agreement, the Agreement shall continue as long as the Customer makes use of the Service.
  2. The Customer can terminate the Agreement by ceasing all use of the Service, including the Software.
  3. In addition to the other remedies available to PQINA, PQINA shall, at any time and at its sole discretion, without prior written notice or declaration and without becoming liable to the Customer, be entitled to:
    1. temporarily or permanently restrict or suspend the Customer 's use of the Service in the event PQINA deems such suspension necessary;
    2. terminate the Agreement.
  4. Each Party is authorised to rescind the Agreement as a result of an attributable failure in the performance of the Agreement by the other Party, if the other Party continues to fail attributably in the performance of the Agreement even after proper notice of default is given and the reasonable periods given therein are expired. The notice of default must contain a description of the failure as complete and detailed as possible, so that the other Party is given the opportunity to respond adequately.
  5. If, at the time of rescission, PQINA has already delivered (part of) the Service to the Customer, this Service and the associated obligation(s) are not subject to the undoing obligations as a result of the rescission.
  6. PQINA shall never be liable for damages or any refund of fees already received due to termination of the Agreement, in whatever manner and for whatever reason.
  7. Upon termination of the Agreement in any manner and for any reason:
    1. all rights of the Customer under this Agreement, including the granted license(s), shall immediately terminate; and
    2. the Customer is not entitled to a refund of any amount paid.
  8. In deviation from the preceding paragraph, if the Customer delivered Products incorporating the Software to its End Users prior to the termination of the Agreement, those End Users’ may continue the use of the Software in those specific Products.
  9. All provisions intended to survive the termination of the Agreement, in whatever manner, survive the termination of the Agreement. Such provisions include (but are not limited to) those relating to PQINA’s exclusions and limitations of liability, Intellectual Property Rights, applicable law, dispute resolution and this clause.

18. Changes and additional work

  1. If, at the Customer’s request or with its prior consent, PQINA performs work or other performance for the Customer that falls outside the content or scope of the Agreement, the Customer shall pay for this work or other performance at PQINA’s agreed (hourly) rates and, failing this, at PQINA’s usual (hourly) rates.
  2. If the Customer requests PQINA to perform additional work as referred to in the preceding paragraph, PQINA shall not be obliged to comply with such request. PQINA may require the Customer to conclude a separate contract for this (additional) work.
  3. If work is performed by PQINA which falls outside the content or scope of the Contract and a fixed price had been agreed for that Contract, PQINA shall, upon request, inform the Customer in writing of the financial consequences of the additional work.
  4. Customer acknowledges and accepts that additional work may affect the performance of the Agreement, the responsibilities of the Parties, any pre-agreed fixed price and/or deadlines.
  5. The fact that (the demand for) additional work arises during the performance of the Agreement shall not be a basis for cancellation, dissolution or annulment of the Agreement by Customer.

19. Applicable law and disputes

  1. The Agreement, (the provision of and/or the use of) the Service, including the Software, and all legal acts and disputes arising therefrom shall exclusively be governed by the laws of the Netherlands, to the extent allowed by a mandatory or peremptory rule of law. The United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention of 1980) shall not apply.
  2. All disputes between Parties shall be resolved initially by mutual agreement between Parties.
  3. If Parties are unable to resolve the dispute through mutual consultation after 30 (thirty) days, either Party is entitled to commence an ICT-Mediation procedure in accordance with the ICT-Mediation Rules of the Stichting Geschillenoplossing Automatisering. The other Party is obliged to participate actively and constructively in ICT-Mediation proceedings initiated.
  4. If within 60 (sixty) days from the commencement of the mediation the Parties cannot resolve the disputes by mediation, they shall be settled exclusively by arbitration in accordance with the Arbitration Rules of the Stichting Geschillenoplossing Automatisering, having its registered office in The Hague.
  5. The preceding paragraphs are without prejudice to the right of each Party to obtain interim relief or to take precautionary measures through the exclusively competent court of the District Court of Oost-Brabant, Eindhoven.

20. Other provisions

  1. In these Terms and Conditions, “in writing” also means communication by email, if and to the extent that the identity of the sender and the integrity of the content of the communication are sufficiently established.
  2. If the Agreement is or becomes partially invalid or proves to be partially void, the Parties shall remain bound to the remaining part of the Agreement. PQINA will replace the invalid or void part by clauses that are valid and not void and whose legal consequences, given the content and scope of the Agreement, correspond as much as possible to those of the invalid and/or void part.
  3. All notices or communications, permitted or required under the Agreement, shall be in writing.
  4. PQINA may amend or supplement these Terms and Conditions at any time. The Customer will be notified of any amendments by email and/or through the Service and/or through the Website. The new version of the Terms and Conditions will be available for viewing and downloading on the Website. If the Customer does not agree with the amended or supplemented Terms and Conditions, the Customer’s exclusive remedy is to no longer use the Service and to terminate the Agreement.
  5. The version of any communication and/or reports received or stored by PQINA serves as authentic and binding proof, subject to evidence to the contrary provided by the Customer.
  6. PQINA has the right to engage third parties for the full or partial performance of its rights and/or obligations under the Agreement.
  7. The Customer may only transfer its rights and obligations under the Agreement to a third party with PQINA’s prior written permission.