Version: January 2022
These General Terms and Conditions apply to all proposals, agreements and services provided by Peek V.O.F., established at Printerweg 10 3821AD Amersfoort and registered with the Chamber of Commerce under registration number 78511593, hereafter referred to as ‘Peek’.
Article 1. Definitions
The capitalized terms in these General Terms and Conditions, both singular and plural, are considered to have the meaning as described in this article:
1.1. Account: an account for the Platform, which grants access to the Platform.
1.3. Customer: the natural person or legal entity, acting in a professional capacity, whom Peek concludes the Agreement with.
1.4. End-users: the natural persons authorized via the Customer to access the Peek App delivered to the Customer by Peek.
1.5. General Terms and Conditions: these general terms and conditions.
1.6. Intellectual Property (Rights): all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (including copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs).
1.7. Parties: the parties to the Agreement, Customer and Peek.
1.8. Peek App: the app developed and offered by Peek for mobile devices such as telephones and tablets that is linked to the Platform.
1.9. Platform: the My Peek platform via which excursions can be created and which is linked to the Peek App and available via the Website.
1.10. Service Agreement: the agreement concluded by Peek and Customer describing the Service to be provided and the pricing for this Service.
1.11. Service Level Agreement: the service level agreement that can be concluded between Peek and Customer that contains detailed arrangements regarding the quality of the Service which forms an integral part of the Agreement.
1.12. Service: the services that Peek provides as agreed by Parties and described in the Service Agreement, or additionally agreed in Writing by the Parties. These services can consist of providing access to the Platform and its functionalities, managing and making available the Peek App, and/or consultancy services.
1.14. Website: the website of Peek, to be found on https://peek.app and all of its subdomains.
1.15. Writing: paper writings, e-mail, communication by fax, to the extent the identity of sender and the integrity of the message can be sufficiently established.
Article 2. Applicability of the General Terms and Conditions
The General Terms and Conditions apply to all offers and agreements of Peek, unless explicitly agreed otherwise in Writing.
The applicability of any terms and conditions of Customer is expressly excluded.
Deviations and additions to these General Terms and Conditions are only valid if they are agreed by Parties in Writing.
In the event of any contradiction between different documents, the following order of precedence applies:
a. additional Written and signed agreements;
b. the Service Agreement;
c. the Data Processing Agreement
d. Service Level Agreement;
e. the General Terms and Conditions
Article 3. Conclusion of the Agreement
A quotation can be requested by Customer.
If Peek determines that it is able to provide the requested Service, Peek will conclude with Customer a Service Agreement specifying the scope, price and additional terms of the Service. Only the Service as described in the Service Agreement, or additionally agreed upon in Writing, is binding.
The Agreement is concluded on the moment that the Service Agreement is signed or accepted in Writing.
If Customer does not explicitly indicate that it agrees with an offer of Peek, but nevertheless agrees to it, or if it gives the impression that Peek is performing work that falls within the description of the Service included in the Service Agreement, the Agreement will be deemed to be concluded.
Article 4. Term and termination
The Agreement shall be valid for the term that is agreed upon by Parties in the Service Agreement, starting from the date that is agreed upon by Parties. If no term and no starting date have been agreed, the term of the Agreement will be one (1) year starting from the day the Agreement has been concluded.
Unless explicitly agreed otherwise in the Agreement, the Agreement will be automatically extended at the end of the initial period or subsequential periods for the duration of the initial period, unless a Party notifies the other Party at least one (1) month before the end of the current period in Writing that it wants to end the Agreement at the end of the current period.
Unless explicitly agreed otherwise in the Agreement, neither Party may unilaterally terminate the Agreement before its minimum term has expired. Peek, however, may terminate in the following circumstances:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
b. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of Customer;
c. an order is made for the winding up of Customer, or the Customer passes a resolution for its winding up (other than for the purpose of a solvent company reorganization where the resulting entity will assume all the obligations of Customer under the Agreement).
The obligations of the Parties that accrued prior to termination of the Agreement shall survive termination of the Agreement, if they by their nature should remain in force. In particular, the following provisions shall survive termination or expiration of the Agreement: Articles 7.4, 7.5 (Account) and Article 13 (confidentiality). Article 10.3 (Intellectual Property) will only survive expiration of the Agreement, granted licenses expire upon termination.
Article 5. Performance of the Agreement
Customer will provide Peek with all support that is necessary and desirable to enable correct and timely delivery of the Service. In any event, Customer shall provide Peek with all data and other information which Peek indicates are necessary, or which Customer must reasonably understand to be necessary for the performance of the Agreement.
Peek has the right to engage third parties in the performance of the Agreement. For instance in order to provide consultancy or for the hosting of the Peek App and Platform.
Terms and dates of delivery are always indicative unless explicitly designated as fatal.
Article 6. Additional service
If Customer requests a service that falls outside the Agreement, Peek can make an offer regarding this request. Peek will only perform the service after Customer has accepted the offer.
For additional work of which Peek can demonstrate that it is reasonably necessary for the provision of the Service, or which reasonably follows from the instructions of Customer, Peek does not require permission. Customer will pay the hours required for the additional work at the hourly rate of Peek at that time. Other costs incurred can also be charged.
Article 7. Use of the Service
Peek provides its Service based on fair-use, except if Parties agreed otherwise in Writing. This means that Peek does not impose any restrictions on the amount of End-users that can join excursions, except for when fair-use is exceeded. However, Peek reserves the right to take measures in case of excessive use that results in a negative effect on the performance of the system. In this case, the costs of these measures will be charged to Customer.
Peek may recover from Customer any loss and/or damage sustained as a result of violations of the rules under this article. Customer indemnifies Peek against any and all third-party claims pertaining to loss and/or damage arising from a violation of the rules under this article.
To use the Service, upon the conclusion of the Agreement, Customer will be provided with Account and login information (username and password), or Customer can create Accounts on the Website, to access the Platform.
Customer must secure access to the Account(s) by protecting the username and password against third party access. In particular, Customer must keep the username and password strictly confidential. If Customer provides Platform access to other persons than its own users, such as End-users, Customer remains responsible for the login information and the use of the Platform by other persons. Peek may thus assume that all actions undertaken from Customer’s Account(s) after logging in with the username and password is authorized and supervised by Customer.
Customer and its End-users must not use the Service:
a. in any way that is unlawful, illegal, fraudulent or harmful; or
b. in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
If in the opinion of Peek, the continued functioning of the systems or network of Peek or third parties is under threat of being damaged or jeopardized, Peek may take all steps it deems reasonably necessary to end or avert such damage or jeopardy.
Peek is authorised at all times to report any criminal acts that are discovered and will cooperate with duly authorised orders and commands. In addition, Peek is authorised to provide the name, address, IP address and other data identifying the Customer/an End User of the Service to a third party who has complained that Customer/an End-user of the Service has violated its rights or these General Terms and Conditions, provided that:
a. it is sufficiently plausible that the information or acts, on its own, are unlawful and harmful with regard to the third party;
b. the third party has a genuine interest in obtaining the data;
c. it is plausible that, in the specific case, there is no less far-reaching measure to obtain the data; and
d. examining the interests involved entails that the third party’s interest should prevail.
Article 8. Privacy
Peek will process any personal data in relation to the Service according to its privacy statement, which can be found on the Website or here.
The fulfilment of the Agreement may entail the processing of personal data by Peek on behalf of Customer, in which case Customer is being considered as the “controller” and Peek as the “processor”. In the event that personal data are processed, the Parties will conclude a data processing agreement in which agreements on the processing and security of such personal data will be laid down. The aforementioned terms have the meanings set out in the applicable privacy laws and regulations.
Article 9. Consultancy
If agreed as a Service, Peek will provide consultancy services to which this article applies.
Peek will perform the Service as referred to in the previous paragraph to the best of its knowledge and ability. Peek cannot offer any guarantees regarding the correctness of its advice or the results that follow after following the given advice.
Article 10. Intellectual Property
The Platform and the Peek App, as well as all related materials and information, is the Intellectual Property of Peek (or its licensors). None of these items may be copied or used without the prior written permission of Peek, except and to the extent permitted by mandatory law.
Peek grants Customer a non-exclusive, non-sublicensable, license to use the Platform in accordance with the purpose specified in the Service Agreement and for the term of the Agreement. Customer is not entitled to make changes to the Platform or the Peek App.
Peek grants Customer a non-exclusive, non-sublicensable, license to use the Peek App for the excursion it has created, or that has been created for Customer, in accordance with the purpose and for the period specified in the Service Agreement. If no period is agreed, the license will be deemed to have been granted for a period of six (6) months after creation of the excursion.
Information which Customer or End-users stores or processes using the Peek App or Platform is and remains Customer’s property (or the property of Customer’s suppliers or licensors). Customer indemnifies Peek against any claims by third parties based on infringement of an (Intellectual Property) right regarding data and/or other materials originating from Customer or its End-users.
Customer is not permitted to access the source code of the Platform or the Peek App, either during or after the duration of the Agreement.
Article 11. Support, availability and maintenance
Peek will provide a reasonable level of support to Customer. Customer can make support request consisting of general usage questions or complaints regarding the Platform or the Peek App.
Customer can submit their support requests to the helpdesk via the following channels:
Peek shall endeavour to respond to support requests within a reasonable time, unless agreed otherwise in a Service Level Agreement.
Peek shall endeavour to keep the Service available, but cannot guarantee an uninterrupted availability at all times, except as agreed otherwise in a Service Level Agreement.
Peek is not obliged to make back-ups, unless this has been agreed to in a Service Level Agreement.
Peek may modify the Service to correct errors, add new functionality or improve performance. While the Parties may consult on such modifications in advance and the Customer may make suggestions, the final decision on whether or not to implement the modification will be made by Peek.
If, in Peek’s opinion, modifications will result in a significant change in the functionality of the Service, Peek will notify the Customer of the modifications in advance by email.
Peek will endeavour to remedy any defects in the Service, but is also dependent on its suppliers in this regard. Peek is entitled to not install certain updates or upgrades of suppliers it if believes that installing such updates or upgrades will not benefit the operation of the Service.
Implementing modifications and improvements may have the effect of restricting the availability of the Service, Peek will endeavour to limit the impact on Customer or End-users when performing these implementations. Emergency maintenance may be carried out at any moment and will not be announced in advance.
Article 12. Compensation for the Service
As compensation for the Service, Customer is required to pay the agreed upon price for the Service. If no price has been agreed, Customer will pay the hours required for Peek to deliver the Service at the hourly rate of Peek at that time.
Peek will send an invoice to Customer for all amounts due, prior to the start of the Service. Peek is entitled to send an invoice electronically.
Contrary to article 12.2, if the Service consists of consultancy work or additional work has taken place as meant in article 6.2, Peek will send an invoice regarding these costs after the consultancy work or additional work has taken place.
Payment is possible by making a wire transfer to the account of Peek, unless the invoice states otherwise.
All prices are in euro’s and excluding VAT. Invoices are due within thirty (30) days after the invoice date, unless the Service Agreement states otherwise.
When payment is not received within the specified timeframe, Customer will be liable to pay, in addition to the price owed and statutory interest, full compensation for extrajudicial and judicial collecting costs, including costs for lawyers, bailiffs and debt collection agencies, as permitted under the law.
Peek may suspend the provision of the Service if:
a. any amount due to be paid by Customer to Peek under the Agreement is overdue;
b. Peek has given to Customer at least fourteen (14) days’ written notice, following the amount becoming overdue; and
c. Peek has notified Customer of its intention to suspend the Service on this basis.
Payments owed by Customer are immediately due in case of a situation as mentioned in article 4.3, point a, b or c.
Article 13. Confidentiality
Parties shall refrain from disclosing or using for any other purpose than within the scope of the Agreement, any trade secrets and other information of the other Party (including information provided by End-users) that has been designated as confidential or the confidential nature of which is known or can reasonably be deemed to be known by the other Party.
In addition, Parties accept the duty to observe strict secrecy with respect to all information regarding the activities and organization of the other Party, except as far as such information was already part of the public domain without any involvement of the other Party.
Parties must, regarding the information as meant in paragraph 1 and 2 of this article:
a. keep the information strictly confidential;
b. not disclose the information to any third person or party without the prior Written consent by the other Party;
c. use the same degree of care to protect the confidentiality of the information received from the other Party as it uses to protect its own confidential information of a similar nature, being at least a reasonable degree of care; and
d. act in good faith at all times in relation to the information.
Parties may disclose the information as meant in paragraph 1 and 2 of this article to its officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the information for the performance of their work with respect to the Agreement and who are bound by a Written agreement or professional obligation to protect the confidentiality of the information.
This article imposes no obligations upon Peek with respect to information that:
a. is known to Peek before disclosure under the Agreement and is not subject to any other obligation of confidentiality;
b. is or becomes publicly known through no act or default of Peek; or
c. is obtained by Peek from a third party in circumstances where Peek has no reason to believe that there has been a breach of an obligation of confidentiality.
The restrictions in this article do not apply to the extent that any information is required to be disclosed by any law or regulation or by any judicial or governmental order or request.
Article 14. Liability
Peek’s liability for loss and/or damages resulting from an attributable failure in the performance of the Agreement, an unlawful act or otherwise, is limited to the amount paid to Peek by the insurer. Peek will use its best endeavours to ensure the insurer pays out. If no payout is made, liability for each event (where a series of consecutive events is considered to constitute a single event) will be limited to the amount (exclusive of VAT) that Customer has paid under the Agreement during the six (6) months immediately preceding the breach or the act giving rise to liability.
Peek is only liable for direct damages as a result of an attributable failure in the performance of the Agreement. Direct damages is exclusively understood to mean all damage consisting of:
a. the damage caused directly to tangible objects (‘property damage’);
b. costs for ending and mitigating a data breach, unless the data breach is not attributable to Peek;
c. costs for repair work to prevent data loss, unless the data breach is not attributable to Peek;
d. reasonable and demonstrable costs for having the Agreement fulfilled by a third party, where Peek, after receiving notice from Customer, fails to ensure proper performance within the reasonable term stipulated in the notice;
e. reasonable costs to determine the cause and extent of the damage insofar the damage relates to direct damage as referred to in this article;
f. reasonable and demonstrable costs incurred by Customer to prevent or limit the direct damage as referred to in this article;
The liability of Peek due to an attributable failure in the performance of the Agreement only arises if Customer gives Peek immediate and proper notice of default In Writing, thereby setting a reasonable term to remedy the failure, and Peek continues to attributably fail in the fulfillment of its obligations after that term. The notice of default must contain as detailed a description as possible of the failure, so that the Supplier is able to respond adequately.
The limitations or exceptions of liability will not be valid in case of willful misconduct or deliberate recklessness by Peek management or managerial staff.
Article 15. Force majeure
Peek cannot be obliged to fulfill any obligation under the Agreement if fulfillment is prevented as a result of force majeure. Nor can Peek be held liable for any damage resulting from this.
The following situations will in any case constitute force majeure: power failures, internet failures, failures in the telecommunications infrastructure, network attacks (including (d)dos attacks), attacks by malware or other malicious software, internal disturbances, mobilization, war, terror, strikes, and export barriers, supply stagnation, fire and flooding.
If a force majeure situation has lasted for more than ninety (90) days, both Parties shall be entitled to give notice to terminate the Agreement In Writing with immediate effect. The Service which in that case has been delivered by Peek prior to the occurrence of the force majeure situation and during the force majeure situation will be paid for on a pro rata basis. If Customer made payments in advance, Peek will refund the payments on a pro rata basis.
Article 16. Changes to the General Terms and Conditions
Peek may amend these General Terms and Conditions at any time if the changes are not significant or are required by applicable mandatory law.
Peek will endeavour to announce the changes or additions to Customer by email at least thirty (30) days before they take effect, to enable Customer to take note of them.
If Customer does not wish to accept a change or addition, not being a change or addition pursuant to article 16.1 of these General Terms and Conditions, Customer may give notice to terminate the Agreement until the date it takes effect. Use of the Service after the effective date will be regarded as acceptance of the amended or supplemented general terms and conditions.
Article 17. Miscellaneous
The Agreement shall be governed by Dutch law. English language words used in the Agreement intent to describe Dutch legal concepts only and the consequences of the use of those words in English or US law or any foreign law shall be disregarded.
To the extent not otherwise provided for in mandatory law, all disputes related to the Service or the Agreement will be submitted to the competent Dutch court in the jurisdiction where Peek is established.
The version of any communication of information as recorded by Peek shall be deemed to be authentic, unless Customer supplies proof to the contrary.
If any provision of the Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. In that case, Parties will determine (a) new provision(s) as a replacement, which will give shape to the intention of the original Agreement as much as legally possible.
Customer is not entitled to transfer the rights and obligations under the Agreement to a third party, including a merger or takeover, without the written permission of Peek.
Customer grants Peek the right to, without requiring the express permission of Customer, transfer the Agreement concluded between Parties in full, or parts thereof, to parent companies, sister companies and/or subsidiaries or to a third party in in the event of a merger or acquisition. Peek will notify Customer if such a transfer has taken place.