General Terms & Conditions

Article 1. Scope of application

1.1 These Terms and Conditions apply to all agreements, offers, quotations, orders, any use of the Gynzy Software and Services of Gynzy and form an integral part of the Agreement.

1.2 Deviations from these General Terms and Conditions are valid only if and insofar as they have been expressly agreed upon in writing between the Parties and apply only to the specific agreement under which they have been agreed upon.

Article 2. Commencement, duration and termination of the Agreement

2.1 The Agreement commences on the start date specified therein and is entered into for the term as set forth in the Agreement. In the absence of agreements about the start date, the Agreement starts from the moment the Customer gains access to the Gynzy Software and/or from the moment Gynzy performs Services for the Customer. In the absence of agreements on the term of the Agreement, it is entered into for 12 months. 

2.2 The Agreement shall be tacitly renewed at the end of the term and after each renewal thereof for the duration of twelve (12) months and under the same conditions as mentioned in the Agreement. 

2.3 Either party may terminate an Agreement by the end of its term, subject to two (2) months' notice. Customer may terminate the Trial Period at any time by deleting its Account and Gynzy may terminate the Trial Period at any time by written notice (email) .

2.4 Both Parties have the right to terminate the Agreement with immediate effect by registered letter when:

• The other Party applies for or is granted suspension of payments;

• When the other Party files for bankruptcy or is declared bankrupt;

• Upon dissolution, strike or dissolution of the other Party's organization.

Without prejudice to the Parties' all other rights under the law.

2.5 In the event of termination of the Agreement for any reason, access to the Gynzy Software and Services may be terminated immediately and all outstanding fees become immediately due and payable.

Article 3. License

3.1 Gynzy hereby grants to Customer for the term of the Agreement a non-exclusive, non-transferable, revocable and non-sublicensable right to access and use the Gynzy Software as described in the Agreement and in the Gynzy ordering process. To the extent the Customer owes a Fee to Gynzy, the License is granted subject to payment of the Fee by the Customer as described in the Agreement and/or on the website and in Gynzy's ordering process, in accordance with the payment terms from Article 4 (Fee).

Article 4. Compensation

4.1 Except in the case of a Trial Period, Customer owes Gynzy the Fee set forth in the Agreement, commencing on the start date set forth in the Agreement (whether or not Customer actually uses the Services). 

4.2 If Customer has agreed to a Fee that depends on the total number of pupils of Customer and such number changes such that Customer increases or decreases to a total number of pupils belonging to a different Fee, such Fee shall become the applicable Fee as of the next license year.

4.3 Gynzy shall invoice the Fee to the Customer at the start of the Agreement. The invoice must be paid within fourteen days of the invoice date. 

4.4 Gynzy may (in its sole discretion) from time to time offer Customer a choice of different payment methods (e.g., credit card, iDEAL, PayPal, etc.). To the extent that Gynzy offers a specific payment method to Customer and Customer accepts it, Customer agrees that additional terms and conditions of Gynzy or third parties may apply to that payment method.

4.5 If Customer fails to pay any Fee, in a timely manner or in full, Gynzy has the right to limit the functionality of the Gynzy Software or block Customer's access to the Gynzy Software without any liability to Customer. 

4.6 If Customer fails to meet its payment obligations under this Article 4 (Compensation) or fails to do so on time, it shall be in default without further notice of default, and Customer shall owe Gynzy statutory commercial interest. 

4.7 The Customer shall be liable for all costs, expenses and (financial) damage to be incurred by Gynzy, including but not limited to attorney fees and collection costs, resulting from the failure of the Customer to fulfill its payment obligation(s) or to do so in full or in a timely manner. The (collection) costs incurred by Gynzy shall be set at a minimum of 15% of the principal amount of the claim.

4.8 Gynzy is entitled to adjust its rates annually on January 1 based on the Service Price Index (SPI), 2015 series = 100, of December compared to December of the previous year.

Article 5. Responsibilities of Gynzy

5.1 Gynzy shall use its best efforts to provide the License and Services in accordance with the terms of this Agreement. Gynzy will do what is commercially reasonable to ensure optimal availability of and access to the Gynzy Software.

5.2 Gynzy makes every effort to improve the Gynzy Software and Services and to bring and keep up to date with current technical standards. 

5.3 Gynzy may temporarily block or suspend access to the Gynzy Software and to the Services in the event of malfunctions, maintenance, updates, (potential) security breaches, violations of third party rights, or non-performance of the obligations under this Agreement by the Customer or any of its students or teachers (or suspicions thereof). 

5.4 Gynzy will notify the Customer - if reasonably possible - in a timely manner of any updates to the Services and make every effort to perform these updates outside of regular school hours. See also https://status.gynzy.com/. Gynzy does not guarantee that new updates can always be used in combination with the Customer's IT environment and application landscape.

5.5 To the extent the Parties have agreed on Training, Gynzy shall consult with the Customer regarding the location, date and time the Training will take place. 

5.6 Gynzy shall keep confidential all data relating to the Customer, its employees and students that comes to its knowledge in the performance of this Agreement and shall take measures against the disclosure of such data.

5.7 In the event of (suspected) unauthorized use or in the event of (alleged) infringement of third party rights, Gynzy reserves the right to review, change or discontinue any part of the Gynzy Software or Services at any time without prior notice to the Customer. Gynzy will make every effort to notify Customer of this within a reasonable period of time.

5.8 The Gynzy Software and Services may use third-party applications, such as a YouTube application. Gynzy is not responsible for the operation of such applications or the terms and conditions used by the providers of such applications. To the extent Customer uses third party applications, Customer shall comply with the terms and conditions of those third parties. 

Article 6. Responsibilities of the Customer

6.1 The Customer agrees to use the Services in accordance with the Agreement and Gynzy's reasonable instructions. The Customer is responsible and undertakes to ensure that its employees, students and any others who use the Gynzy Software or the Services also use this in accordance with the Agreement and Gynzy's reasonable instructions.

6.2 Customer and its users access the Gynzy Software Services through the applicable login procedure, using only the login credentials provided by Gynzy for that purpose. 

6.3 The Customer is responsible for the accounts and login data used to provide the Customer, students and teachers with access to the Gynzy Software and Services. The Customer shall ensure that login details remain confidential and are not disclosed to third parties.

6.4 The Customer is responsible and liable for any use of the accounts and login data used to provide students and teachers with access to the Gynzy Software and the Services. The Customer is obliged to inform Gynzy immediately of (suspected) unauthorized use of the accounts and/or login data.

6.5 The Customer is responsible and liable for any use of the accounts and login data used to provide students and teachers with access to the Gynzy Software and the Services. The Customer is obliged to inform Gynzy immediately of (suspected) unauthorized use of the accounts and/or login data.

6.6 Customer shall treat as confidential all information regarding the Gynzy Software, the Agreement, Gynzy's business, any subsidiaries, its employees and all other information and data of which Customer should understand the confidential nature. The Customer shall take measures to prevent the disclosure of such information.

6.7 The Customer is responsible for the functioning of his hardware and software, configuration, peripherals and internet connections required for the use of the Software and Services. The Customer guarantees that the hardware and software it uses for the Services comply with the System Requirements. Gynzy is neither responsible nor liable for interoperability and/or compatibility with the Customer's hardware and software.

6.8 Customer is responsible for taking the necessary measures to protect its equipment, software, login data for the Services and telecommunications and Internet connections from viruses, computer crime and unauthorized use by third parties.

Article 7. Trial period

7.1 Gynzy offers a Trial Period of at least 30 days. The Trial Period is free and without obligation.

7.2 To start the trial period, Customer must create their own account at www.gynzy.com/account. One account can be created per email address. The Trial Period can be used once per account where Gynzy has the option to offer a new Trial Period after de-activation.

7.3 After and during the Trial Period, Gynzy may contact the Customer regarding the Trial Period and any future use of the (paid) Gynzy Software and Services by the Customer. 

Article 8. Intellectual property rights

8.1 All intellectual property rights, including, but not limited to, all existing and future rights and claims to, or in connection with the use of, copyrights and neighboring rights, trade name rights, trademark rights, domain names, patent rights, design rights and database rights in respect of the Gynzy Software, the Services and all related data, information and/or items, are vested exclusively in Gynzy and its licensors. To avoid misunderstanding, the foregoing does not include data entered or uploaded by or on behalf of the Customer. 

8.2 If and to the extent that Gynzy is not already entitled to future intellectual property as referred to in Article 8.1, the Customer hereby transfers the relevant intellectual property rights to the work to Gynzy now for then, which transfer Gynzy hereby accepts. If the transfer referred to in this Article or any part thereof is at any time held (by a court or arbitrator) to be invalid or of no legal effect, the Customer shall upon first request transfer such rights to Gynzy by separate instrument and perform all acts necessary for the transfer.  The Customer authorizes Gynzy to perform on its behalf all necessary additional (legal) acts necessary for the acquisition of the intellectual property rights referred to in the first paragraph of this article. No obligation to pay any compensation by Gynzy arises in connection with the transfer referred to in this article. Any costs associated with the transfer shall be borne by Gynzy. 

8.3 The Customer is expressly prohibited from using the Gynzy Software or the Services or any right accruing to Gynzy in connection therewith:

a. to modify, adapt or create derivative works from it;
b. to decompile, reverse engineer or distill and/or use the source code, algorithms, methods or techniques therefrom;
c. to disrupt or damage the operation or security;
d. to provide unauthorized access to it or prevent other Customers from using it;
e. exposed to security risks;
f. to use in a way that violates the law or the rights of third parties or in a way that exposes Gynzy to legal liability;
g. to disclose (or cause to be disclosed); or
h. to copy (or cause to be copied) in any way,

except to the extent it follows from normal use of the Gynzy Software and/or Services. 

Article 9. Force Majeure

9.1 In the event that Gynzy fails or is unable to perform its obligations under or in connection with the Agreement due to circumstances beyond Gynzy's reasonable control, such as (but not limited to), wars, strikes, pandemics, storms, floods, governmental actions, non-performance of third parties, such as energy suppliers and cloud service providers, and disruptions, such situation shall constitute a Force Majeure Event.

9.2 In the event of force majeure, the Customer cannot claim damages, the Customer cannot suspend its obligations under or in connection with the Agreement, nor can the Customer dissolve or set aside the Agreement. 

Article 10. Liability

10.1 Gynzy provides the Gynzy Software and Services "as-is" and "as available" to the maximum extent permitted by law. Gynzy shall not be liable for any (financial) loss suffered by the Customer. To the extent that Gynzy would nevertheless be liable to the Customer, such liability shall be limited to an amount equal to the Fees owed by the Customer to Gynzy over the last twelve calendar months, with a maximum of EUR 10,000, regardless of whether such liability arises under the contractual arrangements, in tort or otherwise.

10.2 Liability for indirect damages and/or consequential damages including but not limited to loss of profits, missed savings, goodwill, third party claims, infringement of third party rights, damage to or loss of data is excluded.

10.3 Liability for financial loss resulting from or related to the reasonable suspension, termination and/or restriction of access to and use of the Gynzy Software and Services is excluded.

10.4 The limitations and exclusions of liability contained in the preceding paragraphs of this Article shall cease to apply if the Customer's financial loss arises from situations involving intentional or deliberate recklessness on the part of Gynzy's management.

10.5 The Customer shall indemnify and hold Gynzy harmless from any liability to third parties involved with it, such as employees and students of the Customer, who are actual recipients or users of the Gynzy Software and Services, or are otherwise involved therein.

10.6 Customer shall use all reasonable efforts to assist Gynzy in defending itself against any claims and/or lawsuits and shall provide Gynzy upon first request, without undue delay, with all relevant information that may be necessary to defend against and/or settle any such claims and/or lawsuits referred to in the paragraph above.

Article 11. Privacy and data processing

11.1 Gynzy may process personal data in the performance of the Agreement. Gynzy qualifies as a processor within the meaning of Article 4(8) of the General Data Protection Regulation with respect to the processing of personal data by means of the Gynzy Software and Services. Customer qualifies as a data controller within the meaning of Article 4(7) of the General Data Protection Regulation. Customer guarantees that it is entitled to process personal data through Gynzy and that in doing so it complies with the requirements of the General Data Protection Regulation and other applicable privacy legislation. 

11.2 All processing of personal data as referred to above shall take place in accordance with the data processing agreement concluded with the Customer, or, if the parties have not concluded a data processing agreement, on the basis of the model data processing agreement of the privacy covenant education, as made available on Gynzy's website. If a new version of the model data processing agreement of the privacy covenant education has been put into use by Gynzy, Gynzy has the right to declare this new version applicable to the agreement between the parties and the processing of personal data by Gynzy on behalf of the Customer by sending it to the Customer.

11.3 Customer may use functionalities supported by AI ("AI Functionalities"), for example, to create quiz questions and answers. Gynzy uses external AI models developed by third party(ies). Customer is aware that the AI Functionalities are supported by AI and will check the output provided (such as, for example, quiz questions and answers) before they are used. Gynzy does not check the output (such as developed quiz questions and answers) and therefore does not guarantee its accuracy and is not liable for any damage and/or inconvenience caused by the use of the AI Functionalities. 

11.4 AI Functionalities may only be used for the purpose of education in the context of the regular educational curriculum. Customer is not permitted to use the AI Functionalities for other purposes. In case of abuse of the AI Functionalities, Gynzy may immediately restrict or terminate the use of the AI Functionalities without giving any reason. Use of the AI Functionalities is permitted on a fair-use basis. Gynzy is permitted to use any output developed through the AI Functionalities (such as quiz questions and answers) for improving the AI Functionalities and/or building a database.

Article 12. Final Provisions

12.1 Gynzy reserves the right to unilaterally modify these general terms and conditions. Gynzy shall notify the Customer in advance of such changes. In the event the Customer does not agree to the changes in question, the Customer may terminate the Agreement in accordance with Article 2 of these General Terms and Conditions. 

12.2 The Customer may not - without prior written approval from Gynzy - employ or otherwise hire or employ employees or contractors of Gynzy (whether or not for compensation) or make an offer to do so or in any way (attempt to) influence them to terminate their agreement with Gynzy.

12.3 Termination of the Agreement does not release the Parties from obligations thereunder that by their nature continue, such as agreements on intellectual property rights, confidentiality, liability, disputes and applicable law.

12.4 The Customer cannot assign its rights and obligations under this Agreement to third parties.  

12.5 These General Terms and Conditions are drawn up in different languages. In case this leads to different possible interpretations, the interpretations of the General Conditions in Dutch language shall prevail. 

12.6 This Agreement and the legal relationship between the parties in connection with the Services shall be governed exclusively by Dutch law. 

12.7 Any disputes between the parties arising out of or in connection with the Agreement or the Services shall be settled exclusively by the competent court of the District Court of Oost-Brabant, location 's-Hertogenbosch.