End User License Agreement

GENERAL

This end user license agreement (“EULA”) is used by YAYA WORKS B.V. ("YAYA"), having its registered office in Amsterdam and its principal place of business in (1017 JW) Amsterdam at the Prinsengracht 717, listed in the Chamber of Commerce under number 92622372.
Any words and expressions defined or used in this EULA importing the singular shall, when the context permits or requires, include the plural and vice versa.
This EULA applies to all “End Users”, meaning any (legal) person or entity that uses software from YAYA or third party software (the “Software”) that used in combination the services, software and products provided by YAYA to customers.
By accessing or using the Software, End User agrees to this EULA. If End User is accepting this EULA on behalf of another (natural) person or other legal entity, End User represents and warrants that End User has full authority to bind that person or legal entity to this EULA. End User must ensure that all users of the Software comply with this EULA and is responsible for compliance with or breach of this EULA by all users. If End User does not accept this EULA, he is not entitled to make use of the Software.
YAYA is entitled to amend this EULA at any point in time. The latest version of the EULA will be made available via the Software. If End User does not agree to the new or amended EULA, End User can no longer make use of Software without YAYA being liable for any costs and/or damages.
The applicability of (general) terms and conditions applied by End User is explicitly excluded.

LICENSE

YAYA has granted the license as agreed upon between YAYA and the customer.

MAINTENANCE, FUNCTIONALIY AND BACKUP

The Software may at the sole discretion of YAYA be subject to upgrades or updates from time to time, including new versions, updates and features. Such updates may be subject to planned downtime and occur without notice. However, YAYA will use reasonable efforts to notify End User in advance if such is deemed necessary by YAYA.
YAYA is always entitled to cease support for prior versions of the Software without being obliged to reimburse any costs and or pay for damages.
End User is obliged to have and maintain adequate hardware, (backup) software and internet connections in order for the Software to work properly. YAYA can demand (future) minimum specifications in relation to such hardware, (backup) software and internet connections.

INTELLECTUAL PROPERTY RIGHTS

All intellectual property rights in respect of YAYA, the Software as well as software, websites, databases, equipment or other materials, designs, documentation, reports, offers, as well as preparatory materials relating to the Software and YAYA shall be owned solely by YAYA, its licensors or its suppliers. Intellectual property rights means (i) copyrights, design rights, rights associated with works of authorship, and applications and registrations for copyrightable works, (ii) trademarks and trade names, and registrations and applications for registration of any of the foregoing, (iii) patents, patent applications, and equivalents thereto, and rights stemming therefrom, (iv) know-how, trade secrets, and confidential information, (v) moral rights, right of publicity and authors’ rights (vi) goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence, including divisions, continuations, continuations in part, renewals, reissues and extensions of the foregoing (as applicable) and other rights analogous to those set forth herein. Nothing in this EULA can be considered a transfer of intellectual property rights to End User.
End User guarantees that he will not breach the intellectual property rights of YAYA or third parties. End User shall indemnify YAYA against any claim by a third party based on the allegation that End User infringes any right of a third party.

THIRD PARTY LICENSES

YAYA may use third-party licenses for the Software. Such third parties may use specific licenses and/or user terms of those third parties. By accepting this EULA, End User agrees to the applicability of third party licenses and/or terms and End User is obliged to accept third party licenses and/or user terms if such is required for use of the Software.

END USER WARRANTY AND USE FOR OWN RISK AND ACCOUNT

End User warrants that he will never remove or bypass (i) technical measures intended to protect the Software or have such technical measures removed or bypassed and (ii) logo’s, trademarks and tradenames and/or other information in the Software. End User shall furthermore not facilitate the attack or disruption of the Software due to inter alia unauthorized access, penetration testing, crawling or distribution of malware (including viruses, trojan horses, worms, time bombs, spyware and adware).
End User acknowledges that he uses the Software for its own risk and account and third party software in accordance with the agreement with the third party. YAYA is not bound by any arrangements and agreements between End User and the third party.
YAYA is not responsible for the correctness of any information that is entered into the Software by End User.

YAYA WARRANTY

The Software is provided by YAYA on the basis of a best efforts obligation. Unless otherwise agreed upon in writing, the Software is provided on a ‘as-is’ basis. YAYA does not guarantee that the Software is free of errors and functions without interruptions.
 Except for the express warranties stated in this EULA, YAYA disclaims, in so far as allowed by law, all other representations and warranties, express or implied, regarding the Software, including all implied conditions or warranties of non-infringement and fitness for a particular purpose.
 

LIMITATION OF LIABILITY

If and in so far as any liability should exist for YAYA, YAYA is only liable for direct damages. YAYA is never liable for indirect damages suffered by End User or any third party, such as but not limited to consequential damages, loss of data, damage to records or data, loss of profit, loss of turnover or loss of income and loss of goodwill.
YAYA’s liability for damage is in any event limited in all cases to the obligation to resupply the Software or, at the sole discretion of YAYA, to the obligation to pay the average amount received by YAYA relating to the delivery of the Software over the last six (6) months preceding the damaging fact, unless the insurance YAYA will reimburse a higher amount.
End User indemnifies YAYA against all claims of third parties that suffer damages in connection with the (use of) the Software and the cause of which is attributable to End User.
Nothing in this EULA shall exclude or limit the liability of YAYA and End User for damages resulting from gross negligence or fraud.
The employees of YAYA or auxiliary persons engaged by YAYA for the fulfilment of any agreement may, in respect of End User, invoke all means of defense to be derived from the MSA as if they themselves were a party to that MSA.
 

TERMINATION

Without prior notice of default being required and without being in any way liable for losses or costs, and without waiving any other right, YAYA is entitled to suspend its obligations to provide the Software or to terminate the EULA and/or the delivery of the Software in whole or part at any point in time if : a. End User becomes insolvent or there is a threat of this occurring; b. End User has already applied for a suspension of payments or intends to do so; c. End User no longer has freely available liquidity or other funds due to attachment or other reason; d. End User is dissolved or plans to be dissolved; e. the ownership of End User is transferred to a third party or a third party has gained any control in any other manner; f. the good name and reputation of YAYA is or could be harmed by End User; g. End User does not meet its (payment) obligations towards YAYA; h. circumstances occur that are of such a nature that YAYA cannot be reasonably required to fulfil its obligations; i. End User is not entitled to or cannot make any more use of the Product.
In the event of termination all (future) claims that YAYA has or might have on End User become due and payable in their entirety immediately.
Upon termination of the EULA, for any reason, End User must immediately cease any use and delete all copies of the Software, unless otherwise agreed upon in writing.

FORCE MAJEURE

In addition to that which is understood in law and case law, in this EULA the term ‘force majeure’ means any circumstance independent of the will of YAYA that makes fulfilment of the obligations of YAYA permanently or temporarily impossible. The term force majeure means in any event the failure on the part of YAYA to perform (on time) as a result of (imminent risk of) war, riot, fire, flooding, pandemic and epidemic, earthquake, water damage, factory occupation, import and export restrictions, government measures, disruptions in the supplies of energy, lack of staff, strikes, staff sickness, late delivery or unsuitability of materials, failures or wrongful conduct of subcontractors of YAYA or third parties engaged by YAYA, or solvency or liquidity problems on the part of YAYA.
In the event of force majeure, YAYA will be not liable to End User for any shortcoming in the fulfilment of its obligations or any default or delay in the fulfilment of EULA occurring as a result of this shortcoming.

NOTICES

All notices or other communications herein provided to be given or which may be given by End User to YAYA need to be sent to the following e-mail address: support@yaya.works

VALIDITY AND SEVERABILITY

If any provision of this EULA is held to be illegal, invalid or unenforceable, such provision shall nonetheless be enforced to the fullest extent permitted by applicable law, and such provision shall not affect the legality and validity of the other provisions of this EULA. The parties are obliged to use their best endeavors to reach agreement as soon as possible regarding a legally valid substitute provision that, given the topic and goal of the EULA, deviates as little as possible from the void or unenforceable provision.

TRANSFER OF RIGHTS AND OBLIGATIONS

End User is not entitled to transfer any right arising from this EULA to third parties without prior written consent of YAYA. In addition to effect under the law of obligations, the limitation of transferability also has effect under property law as referred to in Book 3, Section 83, paragraph 2 of the Dutch Civil Code. In so far as applicable, End User gives YAYA the right in advance to transfer the rights arising from the EULA to third parties as a whole or in part.

WAIVER

No failure by YAYA to insist upon strict compliance by End User with any of the terms, provisions or conditions of this EULA, in any instance, shall be construed as a waiver or relinquishment of YAYA's rights to insist upon strict compliance in the future.

GOVERNING LAW AND DISPUTE RESOLUTION

This EULA and all rights and obligations resulting therefrom are exclusively governed by the laws of the Netherlands.
The applicability of the Vienna Sales Convention is explicitly excluded.
All disputes between YAYA and End User resulting from or in connection with this EULA will be submitted exclusively to the competent court of the district of Amsterdam, the Netherlands, notwithstanding YAYA’s right to start proceedings before the competent court at the place of business of End User.