Terms and Conditions

MindTrace B.V.
De Kaarsenmaker 18
5283 NK, Boxtel
The Netherlands

E-mail address: [email protected]
Chamber of Commerce number: 74468669
VAT identification number: NL859913843B01

  1. General

    1. These terms and conditions apply to every offer, statement and agreement of MindTrace, a private company with limited liability, hereinafter referred to as: “MindTrace”, and a Counterparty on which MindTrace has declared these conditions applicable, as far as parties have not deviated these terms expressly and in writing.

    2. These terms and conditions shall also apply to agreements with MindTrace for which MindTrace must engage the services of third parties in order to execute the agreement.

    3. These terms and conditions also apply to all the employees of MindTrace and its management.

    4. Any reference by the Counterparty to its own purchasing terms, or other terms and conditions, shall not be accepted by MindTrace.

    5. If one or more provisions of these terms and conditions will be wholly or partially invalid or void at any time, the remains o these general terms and conditions will apply. MindTrace and the Counterparty will enter into negotiations to develop new rules to replace the invalid provisions to agree, as much as possible observing the purpose and intent of the original provisions.

    6. If uncertainty exists regarding the interpretation of any provision of these terms and conditions, then the explanation must be found “in the spirit” of these provisions.

    7. If there is a conflict between parties that does not occur in these terms and conditions, this situation should be assessed “in the spirit” of these terms and conditions.

    8. If MindTrace does not require strict compliance with these conditions, this does not mean that its provisions do to apply, or that MindTrace would in any degree lose the right to otherwise strict compliance with the provisions of these terms and conditions.

    9. No term contained herein is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement (including any employee, officer, agent, representative or subcontractor of either Party).

    10. MindTrace collects data from testers, hereinafter referred to as “raw data”, which may include video, audio, mouse movements/clicks, answers to questionnaires. The raw data is further processed to extract anonymized metrics, hereinafter referred to as: “metrics”, which are made available to a Counterparty.

  2. Quotations and agreement

    1. All of MindTrace’s offers and quotations shall be without obligations. A tender offer is void if the product or service, to which the offer relates, is no longer available in the meantime.
    2. MindTrace cannot be held to its tenders and offers when Counterparty can reasonably understand that the bids or offers, or any part thereof, are subject to an obvious mistake or error.
    3. Unless stated otherwise, the prices mentioned in any of MindTrace’s offers and tenders shall be exclusive of VAT and state in EUROS. The bidding will be furthermore excluding other government levies and any additional costs, including travel and subsistence, shipping and handling.
    4. Unless explicitly or otherwise agreed by Counterparty and MindTrace, all deliveries by MindTrace will be made Ex-Works (INCOTERMS 2010), meaning the costs for transportation and other costs as mentioned above in the paragraph shall be borne by Counterparty.
    5. When acceptance (with or without subordinate itms) from the tender differed from the offer made by MindTrace, then MindTrace is not bound. Agreement will not be in accordance with this deviating acceptance. The agreement now will not be valid, unless MindTrace will state otherwise.
    6. A composed quotation shall not oblige MindTrace to execute part of the assignment against a corresponding part of the price. Offers and tenders shall not apply automatically to future orders.
    7. Products or Services offered hereunder and subsequent availability/delivery may be subject to the granting of a USA, UK or EU export license and Counterparty will be required to provide adequate information to facilitate application for same.
  3. Contract duration; delivery, implementation and modification agreement

    1. The agreement between MindTrace and the Counterparty is for an indefinite period, unless the nature of the agreement dictates otherwise of if the parties expressly agree otherwise.
    2. When for completion of certain work or for the supply of certain products/services a certain period of time is agreed or specified, this never will be a deadline. When a term is exceeded, Counterparty will hold MindTrace liable by notice. MindTrace must be offered a reasonable period to implement the agreement.
    3. When MindTrace requires information from the Counterparty to execute the agreement, the execution time will not start before Counterparty has provided MindTrace with the required and accurate information.
    4. Delivery will be Ex Works from MindTrace. Counterparty is obliged to take away the goods/services as soon as MindTrace makes them available for him. When Counterparty refuses or fails to provide information or instructions necessary for the delivery, MindTrace is entitled to store the goods/services at the expense and risk of the Counterparty.
    5. MindTrace has the right to have certain work done by third parties.
    6. MindTrace has the right to execute the agreement in different phases and bill each executed phase separately.
    7. When the agreement is executed in phases, MindTrace can suspend the execution of the next phase until Counterparty approves the execution of the preceding stage.
    8. If during the execution of the agreement it shows that for having a proper implementation, an amend or supplement for the agreement is necessary, both parties will timely consult each other to adapt the agreement. If the nature, magnitude or content of the contract, whether or not to request of the Counterparty, is changed, this may also have implications for what was originally agreed. The initially agreed pricing can be increased or decreased. MindTrace will quote in advance as much as possible, Due to changing of the agreement, the initial period of execution can be amended. Counterparty accepts the possibility of amending the agreement, including the change in pricing and time of execution.
    9. The agreement is amended, supplements included, MindTrace is entitled to first implement after it has been agreed by the authorized person within its organization and Counterparty has agreed to implement the specified price and other conditions, including the term to which implementation is given. Failure or delay of the changed agreement will not make MindTrace in default and will not entitle Counterparty to cancel the agreement. Without being in default MindTrace can decline a request to amend the agreement when this request can result in changes of the quantitative and/or qualitative terms of the agreement.
    10. If Counterparty is in default of proper fulfillment of its obligations to MindTrace, then Counterparty will be liable for all direct or indirect damages (including costs) on account of MindTrace.
    11. When MindTrace and Counterparty have agreed to a fixed price, MindTrace nevertheless is at all times entitled to increase the price without Counterparty being entitled to terminate the contract, for that reason the increased price is a result of any law or regulation, or its cause in an increase in the price of raw materials, wages, change in currency exchange rates or other grounds which aren’t foreseeable at the time of conclusion of the contract.
    12. When the increase of the price other than as a result of amendment to the agreement exceeds 10% within 3 months after the conclusion of the contract, then Counterparty is entitled to terminate the contract by written notice following the Dutch Civil Code, Title 5, Section 3 of book 6 of this Code. This unless MindTrace is still willing to fulfil the agreement on basis of the original engagement.
    13. Goods and services delivered under this agreement shall be deemed to be accepted unless Counterparty rejects them and informs MindTrace of the reasons for rejection within five business days of delivery.
  4. Suspension, dissolution and termination of the agreement

    1. MindTrace is authorized to terminate the fulfillment of the obligations or to suspend or terminate the agreement, if:

      a) Counterparty does not fully or in a timely manner fulfill the obligations under the agreement;

      b) After conclusion of the contract MindTrace learns of circumstances giving good ground to fear that Counterparty will not fulfill its obligations;

      c) The Counterparty at the conclusion of the agreement is requested to provide security for the fulfillment of his obligations under the agreement and this security is not provided or insufficient;

      d) Due to delay on the part of the Counterparty, one can no longer require the fulfillment of the agreement of MindTrace within the originally agreed conditions, MindTrace is entitled to terminate the agreement.

    2. Furthermore, MindTrace is entitled to terminate the agreement if circumstances arise of such nature that the unaltered fulfillment of the agreement cannot reasonably by demanded of MindTrace.

    3. When the agreement is dissolved, MindTrace’s claims against Counterparty are immediately due and payable. If MindTrace suspends fulfillment of its obligations, he shall retain his rights by law and the agreement.

    4. If MindTrace chooses for suspension or dissolution of the contract, he is in no way liable for damages and costs, occurred in any way.

    5. If the dissolution of the contract is accountable to the Counterparty, MindTrace is entitled to compensation for damages, including direct and indirect costs.

    6. If Counterparty fails to comply to the contract and justifies the termination of this contract, MindTrace is entitled to terminate the agreement with immediate effect without any obligation to pay any damages or compensation, while Counterparty, being in default, is responsible for damages or compensation.

    7. If the agreement is terminate by MindTrace, MindTrace will, in consultation with Counterparty, arrange for transfer of work to third parties. This unless the termination is accountable to Counterparty. If the transfer of the work brings extra costs for MindTrace these costs will be charged to the Counterparty. Counterparty is held to pay such costs within the period specified, unless MindTrace indicates otherwise.

    8. In the event of liquidation, (application of) suspension of payment, bankruptcy, distraint - if not expired within 3 months - at the expense of Counterparty or any other circumstance that Counterparty has no longer the free disposal over its assets, MindTrace is free to terminate the agreement with immediate effect or to cancel the order or agreement without any obligation to pay any damages or compensation. Claims from MindTrace against Counterparty in that case are immediately due and payable.

    9. If Counterparty cancels an already placed order wholly or partially, then the therefore ordered and already executed parts as well as the forwarding-, disposal- and delivery costs already made will be charged to the Counterparty.

  5. Force Majeure

    1. MindTrace is not obliged to live up to any commitments if MindTrace is hindered due to a circumstance that is not due to blame nor under the law, a legal act or generally accepted for its account.
    2. Force Majeure is in these terms and conditions, in addition to the provisions of the law and jurisprudence, all external causes, foreseen or unforeseen, on which MindTrace has no influence, but which prevents MindTrace to its obligations. This includes strikes within MindTrace or third parties. MindTrace has the right to invoke Force Majeure if the circumstance preventing MindTrace (further) fulfillment of the contract occurs during or after the time the contract had to be fulfilled.
    3. During the period of Force Majeure MindTrace can postpone the obligations arising from the agreement. If this period lasts longer than two months, either party is entitled to terminate the agreement without any obligation to pay damages to the other party.
    4. For as much as MindTrace has partially fulfilled its obligations at the time of the occurrence of Force Majeure, MindTrace is entitled to bill the fulfilled part. Counterparty is obliged to pay this invoice as if it were a separate agreement.
  6. Payment and collections costs

    1. Payment must be done either before providing the service or within 14 days after invoice date unless otherwise specified by MindTrace. MindTrace is entitled to periodic billing if applicable.
    2. If Counterparty fails to pay on time, he is legally in default. The Counterparty shall owe an interest of 2% per month, unless the statutory interest is higher, in which case statutory interest is held as interest. The interest shall be calculated from the time that Counterparty is in default until the moment of payment of the full amount owed.
    3. MindTrace has the right to stretch the payments done by Counterparty in the first place to reduce the costs, subsequently to reduce the interest owed and finally to reduce the capital sum and the accrued interest.
    4. MindTrace can, without being in default, refuse an offer for payment, if Counterparty chooses a different order for the allocation of the payment. MindTrace can refuse the complete payment of the capital sum if the accrued interest and collection costs are not paid for.
    5. Counterparty is never entitled to settle its debts to MindTrace.
    6. Objections to the height of a bill do not suspend the obligation to pay. If Counterparty does not appeal to section 6.5.3 (Articles 231 to 247 of book 6 of The Dutch Civil Code), he is not entitled to suspend the payment of an invoice for any other reason.
    7. If Counterparty is in default or omission in the (timely) fulfillment of his obligations, all reasonable costs incurred in obtaining payment extrajudicial on behalf of the other party. The extrajudicial costs are calculated on basis what is common following the Dutch Collection Practice, currently the method of calculation is in accordance to “Rapport Voorwerk II”. If, however, MindTrace has made higher costs for collection which have been reasonably necessary, the actual costs are eligible for compensation. Any judicial and execution costs will also be recovered from Counterparty. Counterparty also owes interest over the collection costs.
  7. Retention

    1. All items under the agreement supplied by MindTrace will be in the possession of MindTrace until Counterparty has properly fulfilled all its obligations under the agreement(s) with MindTrace.
    2. Goods or services, delivered by MindTrace, which under paragraph 1 are covered by the property reservation, may not be resold and may never be used as payment. Counterparty is not entitled to pledge or encumber the items falling under retention.
    3. Counterparty is always to do what is reasonably expected of him to secure the property of MindTrace.
    4. If third party seizes goods or services which are covered by the property reservation, or has or wants to establish rights or exercise, then Counterparty is obliged to immediately notify MindTrace.
    5. Counterparty obliges itself to insure the under retention delivered goods or services and keep them insured against fire, explosion and water damage and theft. Counterparty will show policy of insurance on first request of MindTrace. MindTrace is entitled to any payment of this insurance. As far as necessary Counterparty commits itself in advance to co-operate with everything that in this context is necessary or appears to be desirable.
    6. In the case MindTrace wants to wield its retention rights as indicated in this Article, Counterparty gives his unconditional and irrevocable permission to MindTrace and designated third parties to enter all those places where the properties of MindTrace are located and retake these items.
  8. Liability

    1. If MindTrace is liable, this liability is limited to what is stated in this provision.
    2. MindTrace is not liable for damages of whatever nature, caused by MindTrace due to incorrect and/or incomplete data provided by Counterparty.
    3. If MindTrace is liable for any damages, then the liability shall be limited to twice the invoice value of the order, or part of the order to which the liability relates.
    4. In any case liability of MindTrace is limited to the amount paid by its insurer.
    5. MindTrace is solely liable for direct damage.
    6. With direct damage is meant only the reasonable costs incurred to establish the cause and extend of damage, for as far the cause is related to damage in the sense of these terms, the reasonable costs incurred for deficient performance of MindTrace regarding the agreement, as far as these can be attributed to MindTrace and the reasonable costs incurred to prevent or limit damage, if Counterparty demonstrates that these expenses resulted in reduction of the direct damage as referred to in these terms and conditions.
    7. MindTrace is never liable for indirect damage, including consequential damages, lost profits, lost savings and damage due to business stagnation.
    8. The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence of MindTrace or its executive subordinates.
    9. MindTrace does not guarantee an increase in revenue or conversion or an increase in webpage use. The results of our online studies that are provided within our services are based on individual samples and they can be freely interpreted. MindTrace can therefore not be held liable to these changes.
    10. MindTrace is not liable for the actions of participants during online studies as for example taking screenshots of unpublished material.
    11. MindTrace will do its best for content not to leak but cannot guarantee and therefore cannot be held liable for testers taking screenshots or photos.
  9. Transfer of Risk

    1. At that moment MindTrace has transferred the goods/services to Counterparty, the risk of loss, damage or depreciation is transferred to the Counterparty.
  10. Indemnification

    1. Counterparty indemnifies MindTrace against possible claims from third parties, who suffer damage by implementation of the agreement or due to a connection with the delivered goods/services for which e the cause it not accountable to MindTrace.
    2. If MindTrace should be addressed directly by a third party, Counterparty is held to assist both outside and in law and Counterparty is to do immediately what in that case can be expected. Should Counterparty fail to take adequate measures, then MindTrace, without notice, is entitled to take these measures itself. All costs and damages on the part of MindTrace and third parties are for the account and risk of Counterparty.
  11. Intellectual Property

    1. MindTrace retains the rights and powers for which he is entitled under the Copyright and other intellectual property laws and regulations. MindTrace has the right to use the increased knowledge, known due to execution of an agreement, for other purposes, provided that no strictly confidential information of the Counterparty is communicated to third parties.
  12. Applicable law and disputes

    1. To all legal relationships to which MindTrace is a party, only Dutch law applies, even if a contract is executed wholly or partly abroad, and/or if Counterparty concerned is domiciled abroad. The applicability of the Vienna Sales Convention is excluded.
    2. The judge or court in the location where MindTrace is located shall have exclusive jurisdiction over disputes, unless Dutch law requires otherwise. Nevertheless MindTrace is entitled to submit any dispute to the competent court according to law.
    3. Parties will first appeal to court only after tuning to the utmost to solve a dispute by mutual agreement.
  13. Data Processing, Archival, Retention

    1. After processing, the raw data will be kept for a grace period of 2 months in case reprocessing is required. In the event of reprocessing, the grace period will be reset to the time of reprocessing.
    2. After the raw data grace period has ended, we reserve the right to remove the raw data from our platform.
    3. MindTrace will use reasonable efforts to keep metrics and provided media, such as videos or images provided by a Counterparty, available through the web interface for a period of 3 years. After 3 years, MindTrace reserves the right to remove metrics from our platform.
    4. Upon request from Counterparty, we will delete any related data.
  14. Data and security

    1. The Customer will not get access to individual recorded webcam video data. Only the anonymized metrics are provided in the reports/online dashboard delivered to the Customer.
    2. MindTrace is allowed to use the data gathered providing its service to the Customer to further improve its own algorithms.
  15. Change conditions

    1. Applicable is always the latest version valid at the time of the formation of the agreement between Counterparty and MindTrace.