General terms & conditions

Last updated: January 29, 2025

These terms govern the supply and use of the Services between SKALY B.V., acting under its tradename “Chunk Works”, with a registered office in Rotterdam, the Netherlands, listed with the Commercial Register of the Chamber of Commerce under file reference number 76622150 (“Chunk Works”), and Customer. All agreements between Chunk Works and Customer are subject to these terms. Chunk Works and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.

1. DEFINITIONS

1. “Affiliate(s)” means any entity which is directly or indirectly controlled by, in control of, or is under common control with a Party to these Terms or Order Form, where “control” means either the power to direct the management or affairs of the entity or ownership of 50% or more of the voting securities of the entity.

2. “Chunk Works Installation” means each separate installation of the Chunk Works Software on a Customer Server.

3. “Chunk Works IP” means the Services and any and all Intellectual Property Rights provided to Customer or any Chunk Works Users in connection with the foregoing. For the avoidance of doubt, Chunk Works IP includes User Data and any information, data, or other content derived from Chunk Works’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.

4. “Chunk Works Technology” means the Chunk Works Software and any and all related or underlying Intellectual Property Rights, documentation, technology, code, know-how, logos and templates (including templates created by Chunk Works as a part of Professional Services and including any reports or output obtained from the Services), anything delivered as part of customer support or other Services, and any updates, modifications or derivative works of any of the foregoing.

5. “Chunk Works Software” means the Chunk Works proprietary software licensed to Customer under these Terms as part of the Services and described in the Order Form and applicable Documentation.

6. “Chunk Works Users” means the Customer’s employees, consultants, contractors, and agents who are authorized by Customer to use the Services on Customer’s behalf, including Customers Admin(s).

7. “Confidential Information” means for any such information exchanged pursuant to these Terms, that is identified as confidential at the time of disclosure or that should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed, including but not limited, code, inventions, know-how, product plans, inventions, and technical, financial, and business information. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party.

8. “Customer” means the business entity with a current contractual agreement with Chunk Works for the supply and use of the Services, Professional Services, or a user of a free pilot version of Chunk Works Software.

9. “Customer Admin” means one or members of Customer Personnel that has been designated and authorized to access, use and manage certain settings of the Services on the Customers behalf in accordance with these Terms and applicable Documentation.

10. ”Customer Data” means data on a Customer Server that is encrypted using the Chunk Works Software in accordance with these Terms, for the avoidance of doubt excluding Chunk Works Technology, User Data and Documentation.

11. “Customer Personnel” means Customer’s employees and free-lancers working under Customer’s supervision.

12. “Customer Server” means each of the Customer’s servers including each virtual server.

1. “Intellectual Property Rights” means copyrights, software, domain names, trademarks, service marks, designs and registrations and applications thereof, data, and documentation thereof, trade secrets, and know-how (including but not limited to development information, specifications, plans, proposals, and technical data).

15. “Licensed Installations Amount” means the number of Chunk Works Installations permitted under this license, as specified in the Order Form.

16. “License Start Date” means the first day of the License Term, being the day on which the Chunk Works Software will be installed and active on one or more Customer Servers.

17. “License Term” means the initial license term, as specified on the Order Form and each subsequent renewal term, if any.

18. “Order Form” means any Chunk Works order form, statement of work, online sign-up or other ordering documentation that references these Terms. Each Order Form shall automatically incorporate these Terms.
19. “Professional Services” means any additional paid Services specified in an Order Form (or any exhibits thereto) or any other document referencing these Terms, including but not limited to implementation, training and consulting services offered by Chunk Works.

20. “Scope of Use” means the Licensed Installations Amount and any other usage limits or other scope of use descriptions for the Services included in the applicable Order Form (including descriptions of packages and features) or Documentation.

21. “Services” means the services provided by Chunk Works to Customer as specified in Customer’s Order Form, including but not limited to the right to use the Chunk Works Software, the Documentation and the supply of Support Services and Professional Services, excluding any Third-Party Products.

22. “Support Services” means technical support services offered by Chunk Works in connection with the Services and specified in the Order Form (or any exhibits thereto) or any other document referencing these Terms.

23. “Terms” means these Terms and any annexes, appendices, schedules, and amendments thereto, including any Order Forms and service-specific terms as well as any policies or exhibits linked to or referenced herein.

24. “Third-Party” means any party that is not the Customer or Chunk Works.

25. “Third-Party Product(s)” means any applications, integrations, software, code, online services, systems, other products, and add-ons that are not provided by Chunk Works to Customer under these Terms.

26. “User Data” is the data collected by Chunk Works from a Chunk Works User and from Customer Servers regarding the use and performance of the Services, including usage information, logging information and performance information.

2. APPLICABILITY OF THE TERMS

Unless expressly agreed to otherwise in writing between the Parties, all offers, pilot programs, Order Forms, contracts, or agreements related to the Services shall be governed by these Terms.

By using the Services, Customer agrees to be bound by these Terms. Chunk Works expressly rejects any general terms and conditions used by Customer. No other terms and conditions shall be binding on Chunk Works unless accepted by it in writing. All transactions between Chunk Works and Customer are governed in order of priority by: (i) Order Form; (ii) these Terms; and (iii) any other annexes or appendices to these Terms. If there is ever a conflict between any of the above, the terms of the agreement with the higher priority shall prevail.

3. ACCESS TO THE SERVICES

3.1. Trial License. If Chunk Works and Customer have agreed on a right for Customer to access and use the Chunk Works Software during a trial period (a “Trial License””), the Customer expressly agrees that its use of the Chunk Works Software during the Trial License shall be governed by these Terms.

3.2. Right to use the Chunk Works Software. Subject to and conditioned on Customer’s payment of Fees and compliance with all of these Terms, Chunk Works hereby grants to the Customer, a worldwide, non-exclusive, non-transferable, non-sublicensable right to use the Chunk Works Software during the License Term in accordance with the Customer’s Order Form and Scope of Use (“License”). The Chunk Works Software may be used solely by Customer. This means that use by any Third-Party, including any Affiliate of Customer, is strictly prohibited unless otherwise agreed to between the Parties. For the avoidance of doubt, Customer shall be responsible and liable for all use of the Services by Users and must ensure their compliance with these Terms and Chunk Works’s policies.

3.3. Right to use of Documentation. Subject to the terms and conditions contained in these Terms, Chunk Works hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable right to access and use the Documentation during the License Term solely for Customer’s internal business purposes in connection with its use of the Services.

3.4. Use Restrictions. Customer shall not use the Services for any purposes beyond the Scope of Use under these Terms or the relevant Order Form. Customer shall not at any time, directly or indirectly, and shall not permit any Chunk Works User to: (i) copy, modify, or create derivative works of the Services, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services; or (v) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

3.5. Updates and developments. Customer acknowledges that the Chunk Works Software develops and evolves over time. Chunk Works may, at its option, make updates such as bug fixes, modifications or improvements to the Chunk Works Software and Documentation from time to time. Updates to the Documentation can be found on the Chunk Works website (currently available at [https://www.chunkworks.net/documentation. Chunk Works will provide information about updates, bug fixes, modifications or improvements to the Chunk Works Software through electronic communication such as e-mail or a customer portal. Customer is responsible for correctly installing and implementing such updates, either by engaging Chunk Works to install and implement such updates as (part of) Professional Services under a separate Order Form, or by engaging a professional Third-Party to install and implement such updates. Chunk Works may also make new features or functionalities for the Chunk Works Software available from time to time, the use of which may be contingent upon the Customer’s agreement to additional terms and Fees.

3.6. Reservation of Rights. Chunk Works reserves all rights not expressly granted to Customer in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Chunk Works IP.

3.7. Suspension. Notwithstanding anything to the contrary in these Terms, Chunk Works may temporarily suspend Customer’s rights under any Order Form if: (i) Chunk Works reasonably determines that (A) there is a threat or attack on any of the Chunk Works IP; (B) Customer is using the Chunk Works IP for fraudulent or illegal activities; (C) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) Chunk Works’s provision of the Services to Customer or any Chunk Works User is prohibited by applicable law; or (ii) in accordance with Section 9.1.4(iii) or 9.1.5 (any such suspension described in subclause (i), or (ii) a “Service Suspension”). Chunk Works shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Chunk Works shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Chunk Works will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Chunk Works User may incur as a result of a Service Suspension.

4. CUSTOMER OBLIGATIONS

4.1. Customer Responsibilities. Customer is responsible and liable for all uses of the Services by Customer and its Chunk Works Users, directly or indirectly, whether such use is permitted by or in violation of these Terms. Customer is responsible for all acts and omissions of Chunk Works Users, and any act or omission by a Chunk Works User that would constitute a breach of these Terms. Customer shall use reasonable efforts to make all Chunk Works Users aware of these Terms as applicable to such Chunk Works User’s use of the Services, and shall cause Chunk Works Users to comply with such provisions.

4.2. SEED. Customer acknowledges that the SEED key will be provided to Customer once after installation of the Chunk Works Software and that Customer is fully responsible for safely storing such key for the full duration of the License. Customer acknowledges that due to the nature of the Services, Chunk Works does not have or retain a copy of the SEED key and that if Customer forgets or loses the SEED key, Customer loses the access to Customer Data, and that Chunk Works has no obligation and may have no ability to recover Customer Data if such data is lost or damaged or otherwise inaccessible for any reason.

4.3. Customer Affiliates. Where Affiliates of Customer purchase a License to the Chunk Works Software or other Services by executing an Order Form that references these Terms, such an agreement shall be deemed to form a separate agreement. This means that (i) Customer or Customer’s Affiliates have no rights under the agreements of other Customer Affiliates; and (ii) breach or termination by Customer or Chunk Works of any separate agreement shall not be a breach or termination under any other agreement between Chunk Works and another Customer.

5. PERSONAL DATA AND DATA PROTECTION

The Parties agree and acknowledge that they shall abide by all applicable laws relating to the collection and processing of personal data and personal information in connection with the Services. Customer agrees to indemnify and hold harmless Chunk Works against any claims of third parties relating to or arising out of the collection or processing of personal data or personal information.

6. SUPPORT AND PROFESSIONAL SERVICES

6.1. Support Services. Support and Professional Services may be available to Customer upon payment of applicable fees, as specified in Customer’s Order Form or the Chunk Works applicable price list. Any Support or Professional Services are subject to these Terms and Chunk Works’s applicable policies. The scope, pricing, and terms of these Services shall be specified in an Order Form (or any exhibit attached to the Order Form) or any other document referencing these Terms.

6.2. Customer obligations. If Professional Services have been agreed, Customer shall:

6.2.1. provide all necessary co-operation in connection with the delivery of the Services in a timely and efficient manner. In the event of any delays in Customer’s provision of such assistance as requested by Chunk Works, Chunk Works may adjust any agreed timetable or delivery schedule as reasonably necessary;

6.2.2. provide all necessary access to such information as may be required by Chunk Works in order to provide the Services, including but not limited to Customer Data, security access information and configuration information, and Customer guarantees the accuracy, completeness and consistency of this information;

6.2.3. be responsible for maintaining the availability of Customer Personnel that shall possess the necessary skills and qualifications to fully engage with and optimize the use of the Services and to provide any cooperation and assistance as requested by Chunk Works and its subcontractors to perform the Services;

6.2.4. comply with all applicable laws and regulations with respect to its activities under the applicable Order Form;

6.2.5. obtain and shall maintain all necessary licenses, consents, and permissions necessary for Chunk Works to perform its obligations under the applicable Order Form; and

6.2.6. ensure that its network(s) and systems comply with the relevant specifications provided by Chunk Works from time to time.

6.3. Delivery or Completion Periods. In cases where Chunk Works provides Professional Services, the delivery times and dates are merely estimates and Chunk Works cannot be held liable for any damages as a result of delay in delivery of such Professional Services. Unless otherwise agreed in writing, failure to meet delivery times or delivery dates stated shall never be considered fatal, and if the time for delivery is exceeded, Customer shall not be entitled to cancel or terminate (any part of) an Order Form, or to claim any damages. The delivery or completion periods have been established based on the expectation that there will be no obstacles for Chunk Works to perform the Professional Services or to undertake the work.

6.4. Inability to Perform. If Chunk Works is unable to timely perform its obligations when providing Professional Services, Chunk Works will promptly notify the Customer of any delay and the expected period of time necessary to perform.

7. LICENSE TERM

7.1. License Term. Unless otherwise specified on the Order Form, the License Term shall be twelve (12) months, which shall begin on the License Start Date. If Professional Services have been agreed upon, then the agreement regarding the delivery of such services shall commence on the date of such agreement and shall be in force until the date of completion of the Professional Services as specified in the applicable Order Form.

7.2. Automatic renewal. Unless otherwise specified on the Order Form, the License Term shall automatically renew for additional terms, each of which shall be of equal duration to the initial term, unless either Party gives written notice of termination to the other Party at least two (2) months prior to the expiration of the then-current License Term.

7.3. Cancellation or Termination. Customer may not cancel or earlier terminate a License Term except as provided in Section 10.2.

7.4. Written Notice. Customer must give written notice to Chunk Works via email to info@chunkworks.net. Only notices of termination sent to the submitted invoicing email address or written acceptance of termination from a Chunk Works employee shall be deemed valid termination notices. Chunk Works may give written notice to Customer via email to either Customer’s billing email address or to the administrator of the Chunk Works account.

8. FEES

8.1. Prices and Payment Schedule. Customer is billed according to the package, fees, and payment schedule provided in the Order Form. Customer shall pay Chunk Works the fees (“Fees”) as provided in the Order Form.

8.2. Taxes. All Fees are exclusive of all taxes. If Chunk Works is obligated to collect or pay taxes, the taxes will be invoiced to Customer, unless Customer provides Chunk Works with a valid tax exemption certificate authorized by the appropriate tax authority. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Chunk Works’s income. If Customer is required by law to withhold any taxes from its payments to Chunk Works, Customer must provide Chunk Works with an official tax receipt or other appropriate documentation to support such payments. Any applicable taxes shall be added to Customer’s invoice.

8.3. Additional Services and Installations. If Customer wishes to add additional features, Add-Ons, or increase the Licensed Installations Amount in excess of the applicable Order Form, Chunk Works may charge additional Fees. These Fees will be agreed between Chunk Works and Customer and prorated to the end of the License Term.

8.4. Price Changes. Apart from any agreed annual automatic adjustments applicable to an ongoing License Term, Chunk Works shall have the sole discretion to adjust the Fees for the Services. Such price or Fee changes shall take effect upon the commencement of a new License Term or a renewal term. Chunk Works shall notify Customer about any such adjustment ninety (90) days before the adjustments become effective.

8.5. Inflation Increases. Notwithstanding clause 8.4, at every 12-month intervals during a License Term, the amount of any items under this Contract (including any applicable license fees) shall be adjusted in accordance with the Dutch Consumer Price Index (CPI) all households series (2015=100), published by Statistics Netherlands (CBS). The adjusted price of an item is calculated according to the following formula: the adjusted price is equal to the current price of the item on the date the price is adjusted, multiplied by the index figure of the calendar month that is four calendar months prior to the calendar month in which the price is adjusted, and divided by the index figure of the calendar month that is sixteen calendar months prior to the calendar month in which the price is adjusted. The price shall not be adjusted if the adjustment would lead to a lower price than the most recently valid figure.

9. PAYMENT

9.1. Invoice based payments. The following terms are applicable if the Customer agrees to pay for the Services by Invoice:

9.1.1. Payment Method. Chunk Works’s invoices are payable to Chunk Works’s designated bank account through bank or wire transfer by the due date indicated on the Order Form or as provided in the issued invoice to Customer. The message of the payment shall include the applicable invoice number or the reference number of the invoice.

9.1.2. Standard Invoicing Schedule. Unless otherwise specified on the Order Form, the applicable Fees shall be invoiced for a 12-month period at the beginning of the License Term or a renewal term. Other Services shall be invoiced in accordance with the applicable Order Form.

9.1.3. Invoicing Method. Invoices shall be sent to the billing address provided by Customer. The invoicing method shall be electronic invoicing via email (as pdf) or e-invoice where available.

9.1.4. Payment Term and Late Payments. Unless expressly agreed otherwise, Customer shall pay all invoices within thirty (30) days as provided in the invoice. If Customer fails to make any payment when due, without limiting Chunk Works’s other rights and remedies: (i) Chunk Works may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Chunk Works for all actual costs incurred by Chunk Works in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees;

9.1.5. Invoicing Information. Customer shall provide Chunk Works with all necessary information to process each invoice, including a valid billing address. The failure by Customer to provide such information does not waive its obligation to timely pay the invoice.

10. TERMINATION

10.1. Termination. Either Party may terminate a License upon two (2) months advance written notice to the other Party prior to the expiration of a License Term. If the termination notice is submitted later than this period prior to the end of the License Term, the License shall renew as provided in Section 7.1 and the termination shall commence at the end of the renewed License Term.

10.2. Termination for Cause 

10.2.1.Chunk Works may terminate an Order Form or License, effective on written notice to Customer, if Customer (A) has an unpaid invoice past due a minimum of 14 days after Chunk Works’s delivery of written notice thereof, or (B) breaches any of its other obligations under these Terms, or (C), during the period between signing an Order Form and the License Start Date, in the event Chunk Works, in its sole discretion, determines that complete and satisfactory implementation of Services will not be successful for any reason regardless of the cause.

10.2.2.Either Party may terminate an Order Form or License effective on written notice to the other Party, if the other Party materially breaches these Terms and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured for 60 days after the non-breaching Party provides the breaching Party with written notice of such breach.

Either Party may terminate an Order Form or License, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

10.3. Obligations upon Termination. Upon expiration or earlier termination of a License, Customer shall immediately discontinue use of the Chunk Works IP and, without limiting Customer’s obligations under these Terms, Customer shall delete, destroy, or return all copies of the Chunk Works IP and certify in writing to the Chunk Works that the Chunk Works IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.

10.4. Surviving Terms. Sections that due to their nature survive expiration or earlier termination of any License, including but not limited to this Section 10.4 and Sections 11, 12, 13, 14, 15 and 17.13 of these Terms, shall continue in full force and effect.

11. CONFIDENTIALITY

11.1. Confidentiality Obligation. From time to time during the License Term, either Party may disclose or make available to the other Party Confidential Information. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s Affiliates, employees, agents, contractors, or subcontractors, who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder; provided that the receiving Party remains responsible for any recipient’s compliance with the terms of this Section 11 and that such recipients are bound to confidentiality obligations no less protective than those set forth herein. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under these Terms, including to make required court filings. On the expiration or termination of a License Term, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of date these Terms become effective and will expire two years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of a License Term for as long as such Confidential Information remains subject to trade secret protection under applicable law.

11.2. Equitable Relief. The Parties acknowledge that disclosing Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy and breach of this Section 11, shall entitle each Party to seek equitable relief in addition to any other remedies at law.

12. INTELLECTUAL PROPERTY

12.1. Chunk Works IP. Customer acknowledges that, as between Customer and Chunk Works, Chunk Works and/or its licensors own all right, title, and interest, including all intellectual property rights, in and to the Chunk Works IP, including Chunk Works Technology.

12.2. Customer Data. Chunk Works acknowledges that, as between Chunk Works and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Chunk Works does not have any insight in the Customer Data. Customer does hereby grant to Chunk Works a non-exclusive, royalty-free, worldwide license to access and otherwise use Customer Data and perform all acts with respect to the Customer Data as may be necessary for Chunk Works to provide the Services to Customer.

13. CHUNK WORKS TECHNOLOGY

13.1. License Basis. Customer acknowledges that it is obtaining only a limited right to use and access the Chunk Works Software and that no ownership rights are transferred to Customer under these Terms. Customer agrees that Chunk Works (or its suppliers) retain all rights, title and interest (including all Intellectual Property Rights) in and to all Chunk Works Technology and that Chunk Works reserves all rights not specifically granted under these Terms. Customer further acknowledges and agrees that it has no right to obtain a copy of the Chunk Works Software.

13.2. Feedback. If Customer elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to Chunk Works (collectively, “Feedback”), Customer hereby grants Chunk Works a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute, and exploit any Feedback in any format and in any manner in its sole discretion and without any obligation, payment, or restriction based on Intellectual Property Rights or otherwise. Chunk Works will not identify Customer as the source of the Feedback. Nothing in these Terms limits Chunk Works’s right to independently use, develop, evaluate, or market products, that incorporate Feedback.

14. INDEMNIFICATION

14.1. Chunk Works Indemnification. Chunk Works agrees to defend and indemnify Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with these Terms, infringes or misappropriates such third party’s patents, copyrights, or trade secrets, provided that Customer promptly notifies Chunk Works in writing of the claim, cooperates with Chunk Works, and allows Chunk Works sole authority to control the defense and settlement of such claim. In response to a Third-Party Claim, if required by settlement or injunction, or if Chunk Works determines such actions are reasonably necessary to avoid liability, Chunk Works may at its in sole discretion: (i) obtain the right for Customer to continue use the affected part or portion of the Services; (ii) modify the Services or component or part thereof, to make it non-infringing; or (iii) terminate the Order Form for the affected Services and refund any Fees Customer has pre-paid for the terminated portion of the applicable License Term. Notwithstanding the above, Chunk Works’s obligations under this Section 14.1 do not apply to the extent such infringement arises or results from: (i) Third-Party Products or combinations with such products; (ii) modification of the Services by a party other than Chunk Works or its subcontractors; or (iii) use of the Services other than in accordance with the then-most current release. Chunk Works’s obligations under this Section 14.1 shall also not apply if the Services are used in breach of these Terms, including Customer’s failure to abide by its obligations relating to Customer Data.

14.2. Customer Indemnification. Customer shall indemnify, hold harmless, and, defend Chunk Works from and against any losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with these Terms, infringes or misappropriates such third party’s intellectual property rights and any losses resulting from Customer’s and User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by these Terms or the Chunk Works user policies or fraudulent or illegal activities (iii) use of the Services in combination with data, software, or technology not provided by Chunk Works or authorized by Chunk Works in writing; or (iv) modifications to the Services not made by Chunk Works, provided that, in case losses result from a Third-Party Claim, Customer may not settle such claim against Chunk Works unless Chunk Works consents to such settlement, and further provided that Chunk Works will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

14.3. Conditions for Indemnification. Each Party’s defense and indemnification obligations are subject to the indemnifying Party receiving: (i) prompt written notice of the claim; (ii) the exclusive right to control and direct the investigation, defense, and settlement of the claim; and (iii) all reasonable necessary cooperation of the indemnified Party at the indemnifying Party’s expense (as to reasonable out-of-pocket costs). The indemnifying Party must not settle any claim without the indemnified Party’s prior written consent if the settlement would require the indemnified Party to admit fault, pay amounts that the indemnifying Party must pay under this Section 14 (Indemnification), or take or refrain from taking any action (other than with respect to the Services or features). The indemnified Party may participate in a claim through counsel of its own choosing at its own expense.

14.4. Sole remedy. This section states the sole and exclusive remedy of customer and the entire liability of Chunk Works, or any of its suppliers, officers, directors, employees, shareholders, contractors, or representatives, with respect to any actual, threatened, or alleged claims that the services infringe, misappropriate, or otherwise violate any intellectual property of any third party.

15. LIMITATIONS OF LIABILITY

15.1. In no event will either party or its suppliers be liable for any loss of use, lost, inaccurate, or corrupted data, interruption of business, or any loss of income, business, sales or profits (whether actual or anticipated), costs of delay, reputational harm, third-party claims, or any indirect, special, incidental, punitive, or consequential damages of any kind however caused, even if informed in advance of the possibility of such damages.

15.2. Chunk Works will not be responsible or liable in any manner for any third-party products, third-party content, or non-Chunk Works services (including for any delays, interruptions, transmission errors, security failures, and other problems caused by such issues) and will not be responsible or liable for the use by Customer of the Services in violation of these Terms, Documentation or Chunk Works instructions.

15.3. Notwithstanding anything else in these terms to the contrary, Chunk Works’s aggregate liability for all claims of any kind shall not exceed the total paid by customer for the services during the twelve (12) months preceding the date on which the damaging event occurred. If no payment obligation was incurred, Chunk Works’s total aggregate liability shall not exceed EUR 500,-. Specifically in connection with professional services, Chunk Works’s total aggregate liability shall not exceed the fees listed for such services in the order.

15.4. The liability limitations in this section 15 do not apply to: (i) the indemnity obligations under section 14; and (ii) customer’s payment obligations as expressly provided in these terms.

15.5. Chunk Works shall never be liable for damages or loss of any nature whatsoever caused by hacking by third parties or virus, malware, or similar issues, provided that Chunk Works has taken all reasonable security measures customary in the industry.

15.6. In case the applicable law prohibits some of the limitations of liability in this section 15, this section 15 will apply to the maximum extent permitted by law.

15.7. The limitations of liability referred to in this section 15 do not apply if the damage or loss is the result of fraud, willful misconduct, or gross negligence committed by either party.

16. WARRANTY

16.1. Warranty. During a License Term, Chunk Works warrants, for the Customer’s benefit only, that the Chunk Works Software shall perform materially in accordance with the applicable Documentation. This warranty is only applicable if and to the extent the Chunk Works Software has been installed and implemented by Chunk Works pursuant to a Order Form for Professional Services and, if applicable, shall cease to exist if any updates such as bug fixes, modifications or improvements as made available by Chunk Works during the License Term, have not been installed and implemented by Chunk Works pursuant to a Order Form for Professional Services.

16.2. Claims and Remedies. Customer must notify Chunk Works as soon as possible but always within thirty (30) days of discovery of a breach of warranty as set forth in Section 16.1 and include a description of the breach. If Chunk Works receives a valid warranty claim within this 30-day period, it will use commercially reasonable efforts in its discretion to repair the affected portion of the Services or reperform the applicable Services within 24 hours a reasonable period. If Chunk Works determines this remedy is not commercially reasonable, either Party may terminate the applicable Order Form with prompt written notice. Upon termination due to a warranty claim under this Section 16, Customer will receive a refund of the applicable Fees it has pre-paid for the terminated portion of the applicable License Term. This remedy will be the Customer’s sole and exclusive remedy (and Chunk Work’s sole liability) for any Customer claim that is based on the warranty as set forth in section 16.1. The warranty as set forth in Section 16.1 does not cover and Chunk Works will not be responsible for: (i) any errors or malfunctioning during a Trial License which is always provided “as is” and will not be updated, improved or maintained by Chunk Works; (ii) errors in or resulting from Third-Party Products or Third-Party content; or (iii) Customer’s misuse or failure to follow the Documentation or failure to follow Chunk Work’s instructions or advice.

16.3. Warranty disclaimer. Except for the warranty as set forth in clause 16.1, all Chunk Works technology and related services are provided “as is” and on an “as available” basis. Neither Chunk Works nor its suppliers make any other warranties, express or implied, statutory or otherwise, including but not limited to warranties of merchantability, title, fitness for a particular purpose, that Customer Data is preserved without loss, or that Chunk Works Technology will be timely, uninterrupted, or error-free.

17. GENERAL TERMS

17.1. Notice. Any notice or communication pursuant to these Terms must be in writing. Customer must send any notices under these Terms (including breach notices and indemnity claims) to Chunk Works, in English, at the following address www.chunkworks.net. Chunk Works may send notices to the email addresses on Customer’s account or, at Chunk Works’s option, to Customer’s last-known postal address. Chunk Works may also provide operational notices regarding the Services or other business-related notices through clear and conspicuous notices on Chunk Works’s website or the Services. Each Party consents to receiving electronic notices. Chunk Works is not responsible for any automatic filtering Customer or its network provider may apply to email notification.

17.2. Assignment. These Terms will bind and inure to the benefit of each Party’s permitted successors and assigns. Customer is not permitted to assign, delegate or otherwise transfer the Order Form, License, or any rights arising under these Terms, except in connection with a merger, acquisition, or other transfer of all or substantially all of Customer’s assets or voting securities. Any attempted transfer or assignment except as expressly authorized under this Section 17.2 will be void.

17.3. Publicity. Unless otherwise specified in the applicable Order Form, Chunk Works may use Customer’s name, logo, and trade marks to identify Customer as a customer of Chunk Works and a user of the Services on Chunk Works’s website and in other marketing materials.

17.4. Subcontractors. Chunk Works may use subcontractors and permit them to exercise the rights granted to Chunk Works in order to provide the Services and related services under these Terms or Order Form. However, subject to these Terms, Chunk Works shall remain responsible for: (i) compliance of its subcontractors with these Terms; and (ii) overall performance of the Services if and as required under these Terms.

17.5. Independent Contractors. The Parties shall be deemed independent contractors. Nothing contained in these Terms or any agreement between the Parties shall be read or construed so as to constitute the relationship of principal and agent or of partnership between the Parties. Neither of the Parties may pledge or purport to pledge the credit of the other Party or make or purport to make any representations, warranties, or undertakings for the other Party, without the other Party’s express written consent.

17.6. Force Majeure. In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term hereunder, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event“), including (i) acts of God; (ii) flood, fire, earthquake, epidemics, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after these Terms become effective; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; (viii) shortage of adequate power or transportation facilities; and (ix) bankruptcy or delays on the part of suppliers or subcontractors and failure by the Customer to provide Chunk Works with the correct and complete information necessary to properly provide the Services. If a Force Majeure Event occurs either Party may temporarily suspend the performance of its obligations under these Terms. Either Party may terminate an Order Form or License if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of 90 days or more. In the event of any failure or delay caused by a Force Majeure Event, the affected Party shall give prompt written notice to the other Party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event. Customer shall pay all Fees incurred for the Services that have already been performed by Chunk Works prior to suspension and/or termination of an Order Form or License due to a Force Majeure Event.

17.7. Export. The Customer shall be responsible for obtaining any required export or import authorizations or permits to use the Services.

17.8. Amendments. Any modification or amendment to these Terms must be made in writing and executed by an authorized representative of each Party. If, during a License Term, Chunk Works modifies service terms relevant to specific Services purchased under an Order Form, Chunk Works will provide notice thereof to Customer and the modified terms shall take effect upon Customer’s next renewal. If Chunk Works launches new products or optional features that require opt-in acceptance of new terms, those terms will apply upon Customer’s acceptance or use. If Customer accepts new Order Forms or an Order Form changes due to a modification, such changes will take effect immediately. However, during a License Term, Chunk Works may update Chunk Works’s policies and Documentation from time to time to reflect process improvements or practice changes, provided such changes do not substantially diminish Customer’s rights or create substantial additional Customer obligations during a License Term. Such changes will take effect immediately upon the date of notice or posting on Chunk Works’s website.

17.9. No Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided by an agreement or these Terms or by law shall not constitute a waiver of that right, power or remedy. If Chunk Works waives a breach of any provision of these Terms or an agreement, this shall not operate as a waiver of a subsequent breach or that provision or as a waiver of a breach of any other provision.

17.10. Severability. If any provision of these Terms or any other agreement between the Parties is held to be null, void, or otherwise ineffective or invalid by a court of competent jurisdiction or an arbitral tribunal, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original meaning of these Terms or agreement in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions shall remain in full force and effect.

17.11. No Beneficiaries. These Terms, any agreement, or any Order Form between the Parties are for the sole benefit of the Parties thereto and, except as otherwise contemplated therein, nothing therein expressed or implied shall give or be construed to give any person, other than the Parties thereto, any legal or equitable rights thereunder.

17.12. Entire Agreement. These Terms represent the complete and exclusive understanding between the Parties relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to the Chunk Works Technology or any other subject matter covered by these Terms. Any terms provided by Customer (including as part of any purchase order or other business form used by Customer) are for administrative purposes only and have no legal effect.

17.13. Governing Law, Dispute Resolution. Unless stated otherwise in writing, any and all agreements between the Parties, including these Terms, Order Form, or any annexes and appendices, shall be governed by the laws of the Netherlands without regard to any conflict of law provisions. All disputes arising out of or relating to these Terms or an agreement will primarily be resolved by negotiation between the Parties. If such negotiations fail, any dispute, controversy or claim arising out of or relating to these Terms or an agreement, or the breach, termination or validity thereof, shall be resolved exclusively by the competent court(s) of Amsterdam, the Netherlands. If Customer is not located in the European Union, Chunk Works may, at its own discretion, deviate from the above and may – at its sole discretion – demand and Customer hereby irrevocably agrees in advance, that any dispute, controversy or claim arising out of or relating to these Terms or any agreement, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the arbitration rules of the International Chamber of Commerce, irrespective of the place where the contract is performed. The number of arbitrators shall be one (1). The seat of arbitration shall be Amsterdam, the Netherlands. The language of the arbitration shall be English. The arbitral proceedings and award shall be confidential.