GENERAL TERMS AND CONDITIONS AFTERNOTE
Article 1. Definitions
1.1. General Terms and Conditions: these general terms and conditions.
1.2. Afternote: the company, Afternote B.V., offering the Service to User, registered with the Dutch Chamber of Commerce under file number 55869629, and any successor thereof.
1.3. Service: the online service "Afternote" which can be reached under the URL <http://www.afternote.com>.
1.4. User: you as a (main) user of the Service.
1.5. Trustee: User of the Service who is also the person to whom permission is granted by User to [look into] the account after his or her decease.
1.6. Agreement: the Agreement between User and Afternote concluded through acceptance of User or Trustee of these General Terms and Conditions.
1.7. Website: the Afternote website (www.afternote.com) on which the Service is offered.
Article 2. Terms of use
2.1. Afternote has stipulated provisions, as set out in these General Terms and Conditions, to ensure an optimal user experience. If non-compliance results in a violation of a legal regulation or an offence, Afternote is entitled to report that offence to the authorities, and/or to terminate the User's account as referred to in Article 7.2 of these General Terms and Conditions.
2.2. User or Trustee is prohibited from using Afternote and its infrastructure in any way that would result in damage or loss to Afternote or third parties, or resulting in a complete or partial unavailability of the Service. Non-compliance can lead to termination as set out in Article 7.2 of these General Terms and Conditions.
2.3. User or Trustee is not permitted to access the Service by using the account credentials of third parties, using forged credentials or by circumventing any technical security measures, regardless of whether these measures are adequate or not. Non-compliance can lead to termination as set out in Article 7.2 of the General Terms and Conditions.
2.4. User or Trustee is not entitled to distribute viruses or other harmful software like Trojans, malware, worms and backdoors by means of or via the Service and/or the Website. Non-compliance can lead to termination as set out in Article 7.2 of these General Terms and Conditions.
2.5. User or Trustee is not entitled to use the Service to send (commercial) unsolicited messages (spamming). Non-compliance can lead to termination as set out in Article 7.2 of these General Terms and Conditions.
2.6. User or Trustee will administer the credentials to use the Service given by Afternote with due care. It is not permitted to disclose the credentials to third parties. If User or Trustee suspects that the credentials are in the possession of a third party, and deems that this can lead to security issues, they will immediately notify Afternote. Non-compliance can lead to termination as set out in Article 7.2 of these General Terms and Conditions.
2.7. User or Trustee is not permitted to act in breach of any laws or regulations, rights of third parties, or to infringe any intellectual property rights. Non-compliance can lead to termination as set out in Article 7.2 of these Terms and Conditions.
2.8. Afternote is entitled to discontinue the Service at any time without being liable to compensation or damages. In that case, Afternote will notify User or Trustee and will give the User or Trustee the possibility to export the data.
Article 3. Intellectual property rights
3.1. All rights to and concerning the Service, regarding intellectual property rights, including but not limited to content and imagery on the website remains vested in Afternote or its licensor. Usage of this material is therefore not allowed without the prior permission of Afternote or licensor. Permission can be requested by sending an email support@afternote.com. Afternote reserves the right to refuse permission.
3.2. All trade names, registered and unregistered trademarks mentioned on the Website and via the Service are vested in Afternote or the respective owners.
3.3. The intellectual property rights to material that User uploads, remains vested in User. Afternote is merely granted a license by User to process the material in accordance with the agreed purpose. This purpose doesn't encompass the right for Afternote to disclose the material to any others than User and Trustee(s).
Article 4. Infringement of third party rights (notice and take down)
If User infringes on the rights of third parties, these third parties have the right to request Afternote to modify or delete infringing links or material and to provide them with the personal data of the User (limited to name and address details). Afternote is not liable for compensation or payment of damages. User hereby gives Afternote permission to do so in such a case.
Article 5. Liability and indemnification
5.1. Without prejudice to other remedies as set out in these General Terms and Conditions, Afternote is not liable for any attributable or other shortcomings (based on tort for example), unless the shortcoming is due to willful misconduct or conscious recklessness by the management of Afternote. Any liability on the part of Afternote is limited to the direct damage and/or loss to the User and is limited to the amount awarded by the insurer.
5.2. User accepts the functionality of the Service "as is". Furthermore, User accepts that the functionality of the Service can be subject of unilateral change.
5.3. User warrants that their entered data is correct and complete. User indemnifies Afternote for possible claims regarding non valid or untrue data.
5.4. Afternote is not liable for the damage resulting from the illegal opening of a User’s account by a Trustee. It is the responsibility of User to select a Trustee that he or she trusts.
5.5. User and Trustee acknowledge that Afternote is a platform on which User can, among others, record last requests. The intention is to have Trustee follow up those last requests and/or to inform Trustee. Furthermore, User and Trustee acknowledge that although those last wishes are deemed legally binding within some jurisdictions, in other jurisdictions those last whishes can be subject to notarization and/or other procedural requirements before being legally binding. Afternote and/or Trustee is not obliged to follow up the last requests and wishes. These last requests and wishes cannot be deemed a third-party clause, mandate or any other obligation on the part of Afternote and/or Trustee.
5.6. User and Trustee indemnify Afternote against all possible claims by third parties, including all claims arising from the incorrect, incomplete and/or nonperformance of (part of) the last requests and wishes, and the possible illegality thereof.
Article 6. Warranties
6.1. Afternote processes personal data in accordance with Dutch legislation and regulations. Afternote will not process personal data outside the European Union or outside a company that is not certified under the "Safe Harbor Principles". If a company is established in the United States (the Unites States itself does not meet the adequate protection level as required by European legislation) and subscribes to the "Safe Harbor Principles" then the company complies with European laws regarding the processing of personal data.
6.2. User warrants that the material that User enters or uploads is not illegal and does not infringe on the rights of third parties.
6.3. User and Trustee(s) warrant that they will act in accordance with the applicable legislation and regulations. If User and/or Trustee infringes on Articles 6.2 and/or 6.3 this could result in termination of the Service as referred to in Article 7.2 of these General Terms and Conditions.
6.4. While Afternote makes every effort to ensure the availability of the Service, it cannot warrant that the Service is always available.
Article 7. Duration and termination
7.1. These terms remain applicable as long as User has an Afternote account.
7.2. Afternote is entitled to immediately terminate the Agreement unilaterally without giving notice or notice of default. Afternote has the right to close the account of User without being liable to damage, if (i) Afternote suffers reputational damage as a result of actions or negligence of User or Trustee, (ii) if further use of the Website by User or Trustee will lead to foreseeable reputational damage for Afternote, and (iii) if User or Trustee fails to comply with the provisions in these General Terms and Conditions, or (iv) if an account is misused or Afternote suspects misuse of an Account, in whatever form.
7.3. Afternote will destroy data of User and Trustee three (3) months after termination of a User's account, regardless of the cause of termination.
Article 8. Privacy
8.1. Afternote will process User data in accordance with Dutch legislation and regulations, and in accordance with its privacy policy which forms an integral part of these General Terms and Conditions.
8.2. Afternote is entitled to use user data at aggregate level for its own and external use. This is explained in more detail in Afternote's privacy policy. This data will never be traceable, directly or indirectly, to individuals.
Article 9. Transfer of rights and obligations
9.1. Afternote is entitled to transfer its rights and obligations pursuant to this Agreement to a third party. This is especially allowed in case of a transfer due to a change of legal entity, transfer of Afternote as a company or merger of Afternote. User hereby grants its permission therefor. A possible transfer is without prejudice to any rights (including the right of termination) of User under this Agreement.
9.2. Without Afternote's prior permission, User or Trustee is not allowed to transfer the rights and obligations under the Agreement to a third Party. The permission can by subject to additional provisions, for example the provision that the transfer must be made free of charge.
Article 10. Applicable law and disputes
10.1. The Agreement is exclusively governed by Dutch law.
10.2. All disputes arising from or relating to the Agreement will be settled exclusively by the competent court in Rotterdam, the Netherlands, and subject to Afternote's permission to refer a dispute to another competent court in the Netherlands.
10.3. Afternote is entitled to unilaterally change these Terms of Use and Service at any time. Afternote will notify User and/or Trustee of the changes. After notification, User or Trustee (if User is deceased) has the right to terminate the Agreement within 30 days if User or Trustee does not agree with the changes. After this term, User and Trustee are deemed to have agreed with the modified Terms and Conditions.