Terms and Services between ZEST and CLIENT
1 SCOPE OF THE TERMS; PARTIES
These Terms apply to Agreement(s) (defined in Section 2 of these Terms) on the provision of the Zest Service by Zest.golf Technologies ltd with Business ID SC578497 (“Supplier”) to the Client named in the Agreement (“Client”) These Terms form an integral part of the Agreement. The Client’s purchase, procurement or other terms or conditions shall not apply to the Agreement, even if referred in or attached to the Client’s purchase order or other document submitted by the Client. The Supplier and the Client are also hereinafter referred to each as a “Party” and together as the ”Parties”.
The following terms have the meanings assigned to them herein:
“Facility” means each golf course or golf course round that is offered by the Client for playing golf through Booking Channel(s).
“Agreement” means an agreement in which the Parties agree on the provision of the Zest Service to the Client, such as (i) a written agreement signed by the Parties, (ii) the Supplier’s binding email or other electronic written offer accepted by the Client or (iii) the Client’s email or other electronic or written order accepted by the Supplier e.g. by commencing the provision of the Zest Service.
“Booking Channel” means a third-party booking service through which the Facility is offered for playing golf.
“Controller” means the legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.
“Client Data” means the content, text and/or any other data submitted by the Client or any User to the Zest Service or that is submitted to the Zest Service through the Booking Channel or other systems on the Client’s behalf, including but not limited to any Personal Data included in such content, photos, videos and/or data.
“Confidential Information” means information of the other Party that is marked as confidential or that should be reasonably understood to be confidential.
“Documentation” usage instructions, user manuals and other written or electronic documentation delivered by the Supplier to the Client or that is accessible through the Zest Service.
”Zest Service” means the Supplier’s Zest service delivered via data networks. The definition of the Zest Service includes any of its modifications, enhancements, fixes, new versions and releases that the Supplier takes into production use of the Zest Service from time to time.
“Intellectual Property Rights” means patents, inventions, trademarks, domain names, rights in know-how, trade secrets, copyrights, database rights, rights related to copyrights and any other intellectual and industrial property rights, whether registered or not, and including without limitation the right to amend and further develop the objects of those rights and the right to assign the rights to third parties.
“Laws” means the European Union General Data Protection Regulation (“GDPR”) and all other mandatory laws in force from time to time in The Netherlands relating to the protection of Personal Data and the Processing.
“Personal Data” means any information relating to an identified or identifiable natural person (“Data Subject”) which information is processed under the Agreement on behalf of the Client. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.
“Process” or “Processing” means any operation or set of operations which is performed on the Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Processor” means a legal person, public authority, agency or other anybody, which processes the Personal Data on behalf of the Controller.
“Statistical Data” means the Client Data made anonymous so that no individual person’s or the Client’s identity can be identified.
”User” means the Client’s (i) employees and other representatives such as directors and facility managers and (ii) service providers’ and other cooperating partners’ employees and representatives who use the Zest Service only on behalf of and for the benefit of the Client.
3 GENERAL TERMS AND CERTAIN DUTIES
3.1 The Client warrants that it is not a consumer. The Zest Service may not be used for the Client’s or Users’ private household use and no user rights are granted for the use by consumers.
3.2 The Client warrants that it has the right use the Zest Service in connection with the Facility and to submit the Client Data in the Zest Service.
3.3 The Client shall, at its own expense, acquire the devices, connections, data transfer services, hardware, software and information security services that are required for its use of the Zest Service.
3.4 The Supplier is entitled to amend the Zest Service and the Documentation at any time.
4.1 Subject to the Client’s payment of the prices payable based on the Agreement, the Client is granted a non-exclusive, non-transferable and non-sublicensable right, during the term of the Agreement, to:
(a) allow the Users to use the Zest Service during the term of the Agreement in the Client’s own use in accordance with the Documentation and the Agreement; and
(b) allow the Users to use the Documentation only for the purpose of using the Zest Service in accordance with these Terms.
4.2 The Client’s right to use the Zest Service is limited to the features of the Zest Service that are initially licensed to the Client based on the Agreement. If any update or upgrade of the Zest Service includes a new feature, that feature may be priced separately as defined by the Supplier. The Client may decide whether the Client takes the new separately priced features into use.
4.3 Except as explicitly permitted in these Terms, the Client may not use the Zest Service or the Documentation to offer services to any third party or otherwise transfer the Zest Service or the Documentation or allow access to the Zest Service or the Documentation to any third party or allow any third party to benefit from the Zest Service or the Documentation. There are no implied licenses.
4.4 Users shall maintain their user names and passwords diligently and the user names and passwords may not be disclosed to third parties. The Client is responsible for the use of the Zest Service when Users’ user names and passwords are used. The Client is liable for its Users’ actions and omissions.
4.5 The Client or Users may not:
(a) repair or otherwise modify the Zest Service or the Documentation;
(b) disassemble, decompile, disassemble or reverse engineer or otherwise attempt to derive the source code of the Zest Service;
(c) take any action to circumvent or defeat the security or content usage rules provided, deployed or enforced by any functionality in the Zest Service;
(d) use the Zest Service to access, copy, transfer, transcode or retransmit content in violation of any law or third-party rights;
(e) remove, obscure, or alter the Supplier’s or any third party’s copyright notices, trademarks or other proprietary rights notices affixed to or contained within the Zest Service or the Documentation.
5 Client DATA
5.1 The Client warrants that:
(a) the Supplier and its subcontractors are entitled to store and otherwise process the Client Data lawfully for the purposes of the Agreement;
(b) only lawful Client Data is submitted to the Zest Service and that for example third parties’ trade secrets or data violating privacy rights are not submitted.
5.2 During the term of the Agreement, the Supplier has a free of charge right to store and use the Client Data for the purpose of the development of the Zest Service and the Documentation.
5.3 In addition, during and after the term of the Agreement, the Supplier has a permanent, non-revocable, transferable, sublicensable and free of charge right to store the Statistical Data and use the Statistical Data for the purpose of the development of the Zest Service, the Documentation and other business of the Supplier and/or third parties and publish and disclose the Statistical Data.
6 PROVISION OF ZEST SERVICE
6.1 The Supplier may suspend the provision of or access to the Zest Service:
(a) if it is necessary e.g. for the purposes of installation, change or maintenance work; or
(b) due to interruption in public networks, security risks, problems in electricity supply, if required by law or an order by an authority, or if the Supplier suspects misuse of the Zest Service or breach of the Terms.
6.2 If the suspension is due to a service break planned by the Supplier, the Supplier informs, where reasonably possible, the Client of the suspension in advance. The Supplier will inform the Client of other suspensions, where reasonably possible, without delay after the Supplier has received information about the cause of the suspension.
6.3 The Supplier is not liable for any results of use of the Zest Service or the Documentation or for decisions made by the Client based on the use of the Zest Service. The Zest Service and the Documentation are provided “AS IS” and “as-available.” The Supplier does not make, and hereby disclaims, any and all express or implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, and any warranties arising from a course of dealing, usage or trade practice.
6.4 Without limiting the foregoing, the Supplier is not liable for problems: (a) that are caused by faulty use; (b) that are caused by failure to follow the terms of the Agreement or usage instructions; (c) that are caused by a modification or repair performed by anyone else than the Supplier; or (d) that are caused by any device, system, product or service not provided by the Supplier or for any changes in the same.
6.5 The Supplier is not liable for the acts or omissions of Booking Channels, guests or other third parties.
6.6 The Client is liable for the Facility and the condition of the Facility and for any claims that Booking Channels, guests or other third parties might make against the Supplier related to the Facility or the condition of the Facility.
6.7 The Client is liable for the correctness and the correct interpretation of the terms and terminology used in relation to the Facility. The Client understands and acknowledges that the interpretation of different Facility related terms can be different in different countries and cultures.
6.8 The Supplier is not liable for double bookings of Facility or similar situations. For example, a Booking Channel or the connection to the Booking Channel might not be available all the time or the Client might have other channels which are not connected to the Zest Service. The Supplier is not liable for any consequences of double bookings or similar situations either.
6.9 The Supplier is not liable for the systems or use of systems with which the Zest Service is integrated or otherwise used. The Supplier is not liable for price recommendations or the correctness of guest invoicing, pricing, currencies or exchange rates.
6.10 The Client understands and acknowledges that receipt of messages sent through the Zest Service cannot be guaranteed. The Supplier is not liable for non-receipt of messages.
7 INTELLECTUAL PROPERTY RIGHTS
Title and any and all Intellectual Property Rights in and to the Zest Service and the Documentation, and any copies, modifications, translations, amendments and derivatives thereof are and shall belong to the Supplier or its licensors.
8 FEES AND PAYMENT
8.1.1 The fees payable by the Client for the Zest Service are agreed in the Agreement.
8.1.2 If, however some Fees are not agreed in the Agreement, those fees are in accordance with the Supplier’s price list as mentioned on www.zest.golf.
8.1.3 The Supplier may amend the prices agreed in the Agreement by notifying the Client thereof latest fourteen (14) days prior to the amendment. If the Client does not accept an increased price and if the increase is more than five per cent (5 %) of the previous price, the Client may terminate the Agreement to end on the effective date of the price increase. The Client shall make the notification of the termination latest five (5) days prior to the effective date of the price increase.
8.2 Invoicing and Payment
8.2.1 If not otherwise agreed in the Agreement, the fees are invoiced monthly afterwards, based on played rounds. A played round are the booked rounds minus the rounds that have been cancelled on the Zest Platform directly or through the API’s with a sales channel. No shows will be charged if applicable by the cancellation conditions set by a golf course and/or sales channel.
8.2.2 Invoices are payable within fourteen (14) days from the date of the invoice. The Supplier may suspend its deliveries to the Client and/or the Client’s access to the Zest Service in the event that the Client has delayed in making any payment despite of a payment reminder. The Client shall pay interest on delayed payments.
8.2.3 Value added tax, duties, levies and other taxes and governmental charges are borne by the Client and added to the prices. This shall not however apply to income tax payable by the Supplier for its income.
9.1 A Party (i) may not disclose the other Party’s Confidential Information to any third party and (ii) may not use the other Party’s Confidential Information for any purpose other than for fulfilling its obligations and using its rights arising out of the Agreement. The structure and user interfaces of the Zest Service and their underlying ideas and the Documentation are always the Supplier’s Confidential Information. The Supplier may disclose the Client’s Confidential Information to its subcontractors for the fulfilment of the purpose of the Agreement if the subcontractors have committed to a confidentiality provision substantially similar as herein.
9.2 The foregoing confidentiality and non-use obligations shall not apply to information: (i) which at the time of the disclosure is or later becomes generally available or otherwise public through no fault of the receiving Party; (ii) which was in the possession or knowledge of the receiving Party prior to receipt of the same from the other Party; (iii) which the receiving Party receives from a third party who, in the knowledge of the receiving Party, did not violate a confidentiality obligation when making the disclosure; (iv) which the receiving Party has independently developed without using the other Party’s Confidential Information; or (v) which must be disclosed based on law or an order by an authority or court. The Supplier shall have the right to utilise the general expertise, technical knowledge and skills that its and its subcontractors’ personnel have learnt in conjunction with the Agreement. The Supplier has also a permanent, non-revocable, transferable, sublicensable and free of charge right to store and use for any and all purposes the suggestions, feedback and ideas given by the Client regarding the Documentation or the Zest Service.
10.1 The Supplier shall have no liability for any: (i) indirect damages such as loss of profit, revenue or savings, or for damages payable to third parties, or (ii) loss or alteration of data or for any damages incurred as a result thereof, or for cover purchase.
10.2 The Supplier’s aggregate maximum liability for damages arising out of or related to the Agreement for any and all causes of action occurred during any calendar month, and including the amounts of possible price reductions and service level credits, shall not exceed ten per cent (10 %) of the amount of the Zest Service prices (without value added tax and other governmental charges) paid by the Client to the Supplier for the said calendar month.
10.3 No action, regardless of form, may be brought by the Client against the Supplier more than two (2) months after the cause of action has arisen.
11 TERM AND TERMINATION
The Agreement will remain in force until terminated by either Party by giving a thirty (30) days’ written notice to the other Party.
11.2 Termination for Cause
Either Party may terminate the Agreement with immediate effect by giving the other Party a written notice if:
(a) the other Party commits a material breach of the Agreement and fails to remedy the same within fourteen (14) days after receipt of a written demand from the other Party to cure the breach; or
(b) the other Party is declared bankrupt, placed into liquidation or its financial situation has otherwise materially deteriorated, so that it becomes evident that the other Party will not be able to fulfil its obligations under the Agreement.
(c) if either party detects abuse of the system (like multiple bookings and cancellations, just checking availability, not booking), they will be reported to Zest and immediate action will be taken by Zest.
12 PERSONAL DATA
12.1 The Client warrants that the Supplier and its subcontractors are entitled to store and otherwise process the Personal Data lawfully for the purposes of the Agreement.
12.2 The types of Personal Data and categories of the Data Subjects of the Personal Data that can be processed by the Supplier on behalf of the Client based on the Agreement are specified in the Agreement. If there is not such specification in the Agreement, the Personal Data can include Personal Data of guests and Users (such as names, email addresses and telephone numbers), and, for a very limited time, payment card numbers [A1].
12.3 The Supplier and any person acting under the authority of the Supplier who has access to the Personal Data, may Process the Personal Data only on documented instructions from the Client, unless required to do so by European Union or European Union member state law to which the Supplier is subject. In such a case, the Supplier shall inform the Client of that legal requirement before the Processing, unless that law prohibits such information on important grounds of public interest. Such documented instructions are hereby given by the Client to the Supplier and include and are limited to: the Client gives the Supplier instructions to Process the Personal Data in order for the Supplier and its subcontractors to provide the Zest Service to the Client in accordance with the Zest Service description of the Supplier as amended by the Supplier from time to time. If the Client desires to amend the documented instructions or give new documented instructions to the Supplier, the amended and new instructions are subject to the Supplier’s written consent (not withheld unreasonably) and may be priced in accordance with the Supplier’s price list.
12.4 The Supplier shall:
(a) ensure that persons authorised to Process the Personal Data on its behalf have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
(b) in accordance with the Supplier’s price list, taking into account the nature of the Processing, assist the Client by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Client’s obligation to respond to requests for exercising the Data Subject’s rights laid down in the Laws;
(c) in accordance with the Supplier’s price list, assist the Client in ensuring compliance with the obligations pursuant to the Laws, in the performance of data protection impact assessments and consultations with the supervisory authorities as required pursuant to the Laws;
(d) in accordance with the Supplier’s price list, as requested by the Client in writing, delete or return all Personal Data to the Client after the end of the provision of the Zest Service relating to the Processing, and delete existing copies unless European Union or European Union member state law requires storage of the Personal Data; and
(e) in accordance with the Supplier’s price list, make available to the Client information necessary to demonstrate compliance with the obligations laid down in the Laws and allow for and contribute to audits, including inspections, conducted by the Client or another auditor mandated by the Client. The Supplier shall inform the Client if, in its opinion, the Client’ instruction infringes the Laws. The auditor may not be the Supplier’s competitor and the Parties shall agree on the timing of the audit in good time advance. The information regarding the Supplier’s operations learnt during the audits are the Supplier’s trade secrets, and the audit may not reveal the Supplier’s other clients’ information to the auditor. The Client is liable for the auditor’s compliance with the confidentiality and other terms of the Agreement.
12.5 If the Supplier engages a sub-Processor for carrying out specific Processing activities, the Supplier shall impose the same data protection obligations as set out in these Terms by way of a written contract or other legal act.
12.6 The Client acts as the Controller in relation to all Personal Data. The Client is (among other things) liable for the correctness of the Personal Data and the lawfulness of the Processing of the Personal Data and for other duties and liabilities of the Controller.
12.7 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the Client and the Supplier shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk in accordance with the Laws, including inter alia as appropriate: (a) in accordance with the Supplier’s price list and as agreed by the Parties, the pseudonymisation and encryption of the Personal Data, (b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; (c) the ability to restore the availability and access to the Personal Data in a timely manner in the event of a physical or technical incident; and (d) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the Processing.
12.8 The Supplier shall notify the Client without undue delay after becoming aware of a Personal Data Breach. The Supplier shall in accordance with the Supplier’s price list, assist the Client in ensuring compliance with the Client’s obligations pursuant to Laws to notify the Personal Data Breach to the supervisory authority and/or to Data Subjects, taking into account the nature of the Processing and the information available to the Supplier.
12.9 The Supplier and its subcontractors might transfer the Personal Data to countries outside the European Economic Area and European Union (“Third Country”) for the purposes set out in these Terms. The legal basis for the transfer of the Personal Data to Third Countries is the Supplier’s or its subcontractors’ Binding Corporate Rules, European Commission’s Standard Contractual Clauses for the transfer of Personal Data to processors established in third countries, the European Union-U.S. Privacy Shield Framework, alternative data export mechanisms for the lawful transfer of Personal Data (as recognised under European Union data protection laws) or other legal basis.
12.10 Also, the Client or a User might use the Zest Service in Third Countries or a User might contact the Supplier in Service matters from locations in Third Countries. In such situations, it is deemed that the Client has consented to the transfer of the relevant Personal Data to Third Countries.
12.11 The Client indemnifies and holds the Supplier and its subcontractors harmless from and against any and all direct and indirect damages and expenses (including reasonable attorneys’ fees) arising out of any claim, demand or suit by any third party arising out of or relating to the Personal Data used by the Supplier and/or its subcontractors based on the Agreement.
13.1 Assignment and Subcontractors
Either Party may not assign the Agreement to a third party, without the prior written consent of the other Party. However, the Supplier may assign the Agreement without the consent of the Client to a transferee, when assigning the ownership of the Supplier’s business assets or part thereof, or to a Supplier’s affiliate, and, for the avoidance of doubt, in merger or demerger. The Supplier may subcontract its duties. The Supplier shall be liable for the work of its subcontractors as for work of its own.
Upon termination of the Agreement, the provisions relating to title and Intellectual Property Rights, confidentiality, limitations of liability and this Section “Miscellaneous” shall survive. Also, any other provisions which by their nature or wording contemplate effectiveness beyond the termination of the Agreement, shall survive the termination.
13.3 Entire Agreement
The Agreement constitutes the complete agreement between the Parties with respect to the subject matter hereof and supersedes all previous proposals, marketing materials and other communications between the Parties with respect to the subject matter hereof.
If any provision of the Agreement is found to be contrary to law, the other provisions of the Agreement will remain in force. The invalid provision shall be amended by the Parties, and the Agreement shall be interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law.
13.5 Reference Use
The Supplier may use the Client’s name and logo as a reference in marketing and promotion and in the same connection mention the Client as a Client of the Zest Service.
13.6 Waiver and Amendment
13.6.1 The Supplier may amend the terms of the Agreement (including but not limited to the Terms) by notifying the Client of the amendment latest thirty (30) days prior to the amendment. If the Client does not accept the amended terms that are detrimental to the Client, the Client may terminate the Agreement to end on the effective date of the amendment. The Client shall make the notification of the termination latest fourteen (14) days prior to the effective date of the amendment.
13.6.2 No other change of the Agreement shall be binding unless made in writing and signed by duly authorized representatives of each Party. A failure by a Party to
use any of its rights based on the Agreement shall not be construed as a waiver of such right.
The Supplier may effectively give notices to the Client e.g. in the user interface of the Zest Service or in other electronic forms. The Client guarantees that each User is authorized to receive notifications from the Supplier.
13.8 Force Majeure
Party shall not be liable for delays, defects or damages caused by factors due to an impediment beyond his control, which he cannot reasonably be deemed to have taken into account at the time of the conclusion of the Agreement, and the consequences of which he could not reasonably have avoided or overcome. Such events of force majeure shall include, without being limited to, natural disasters, breakdown of electricity or networks, security attacks, failures in Internet or other public networks or data traffic, strikes and other labor disputes or acts of government. A labor dispute shall be considered a force majeure event also when a Party is the target or a party to such an action. The force majeure events suffered by subcontractors are also be deemed as force majeure events.
13.9 Governing Law and Dispute Settlement
13.9.1 The Agreement shall be construed in accordance with the laws of The Netherlands.
13.9.2 Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Rules for Expedited Arbitration of the Dutch Chamber of Commerce. The arbitration shall take place in Rotterdam, The Netherlands. Notwithstanding the above, the Supplier shall be entitled to seek equitable and/or injunctive relief to prevent or stop a violation of the terms and conditions in the Agreement and take legal actions concerning overdue payments, in any court of law.
Last modified: as per date of the accompanying agreement