SaaS agreement

These Terms and Conditions (capitalized terms have the meaning as set out in Article 1 hereinafter) form an integral part of the Agreement between Customer and Expivi for the provision of the SaaS. There shall be no force or effect to any different terms of any related purchase order or similar form.

Article 1.       Definitions and interpretation

1.1 For the purpose of these Terms and Conditions and all related documents, the capitalized terms as defined below shall have the following meanings whereby these terms may be used in the singular or the plural form and vice versa, as the context so requires:

Acceptable Use Policy” the policy under which it is deemed to be acceptable to use the SaaS, as attached hereto as schedule I.

Account” the personal account(s) associated with Customer, which enables Users to access and use the SaaS. Customer gains access to at least 1 (one) administrator Account to control the details of the Agreement, the use of the SaaS, to assign and manage Users, etc.

Agreement” the software as a service agreement between Customer and Expivi, which includes and incorporates the Order Form, as well as these Terms and Conditions, including all appendices, subsequent amendment thereof and/or addenda thereto.

Article” an article of these Terms and Conditions.

Basic Support” the support made available to Customer by providing access to specific online user guides, knowledge bases, and self-help tools regarding the use of the SaaS.

Confidential Information” all information in Accounts, Content, the Software and the Documentation, and any information that is clearly identified in writing at the time of disclosure as confidential or that should be reasonably understood to be confidential by the receiving Party given the nature of the information and the circumstances of its disclosure.

Content” all data of Customer in the SaaS, including existing data which Expivi has Migrated for Customer, and other data inputted by Users or by Expivi on behalf of Customer (e.g. registration information, information concerning Users, clients of Customer, business-, marketing- and financial- information, images, animations, configurations, videos, 3D models and any similar data).

Customer” the person or legal entity that entered into the Agreement as set out on the Order Form.

Documentation” all documentation related to the SaaS, including but not limited to printed materials, online files, electronic documentation (including all information in Accounts), other media, user guides and/or other similar materials and images made available to Customer by Expivi from time to time.

Effective Date” the effective date of the Agreement as set forth on the Order Form.

Existing Data” any existing data of Customer that Customer wants Expivi to Migrate into the SaaS on behalf of Customer.

Fees” the consideration to be paid by Customer to Expivi which covers the provision of the SaaS (including Migration Fees, if applicable) by Expivi to Customer for the use of the SaaS, as described on the Order Form or otherwise agreed in writing between the Parties, in accordance with the terms thereof.

Force Majeure” any event or condition beyond the reasonable control of either Party which prevents, in whole or in material part, the performance by 1 (one) of the Parties of its obligations hereunder or which renders the performance of such obligations so difficult or costly as to make such performance commercially unreasonable. Without limiting the foregoing, the following shall constitute events or conditions of force majeure: acts of governmental action, riots, disturbance, war, strikes, lockouts, slowdowns, prolonged shortage of energy or other supplies, epidemics, fire, flood, hurricane, typhoon, earthquake, lightning and explosion, or any refusal or failure of any governmental authority to grant any export licence legally required.

Initial Term” the initial term of the Agreement, as further defined in Article 13.1.

Intellectual Property Rights” all copyrights, neighbouring rights, database rights, patent rights, trademark rights, trade name rights, design rights, portrait rights, trade secret rights, rights in domain names, rights in Confidential Information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, related dependent or ancillary rights and priority or goodwill rights and all similar or equivalent rights or forms of protection in any part of the world.

Migration Fees” the applicable fees to be paid by Customer to Expivi which covers the migration of data, as described on the Order Form, in accordance with the terms therein.

Migration Service” the data migration service (if any) to migrate Existing Data from Customer’s existing ICT environment into the SaaS as further described in Article 3. “Migration” and to “Migrate” have corresponding meanings.

Order Form” any online or written order form for the SaaS, submitted by Customer either during an online order process (via an Expivi website or affiliated website, or via e-mail or pdf), or separately signed by Customer and submitted to Expivi, and any future purchase order or order form that makes reference to the Agreement.

Parties” Customer and Expivi together.

Party” Customer or Expivi individually.

Platform” the website which is used to access the SaaS, which includes, but is not limited to, colour scheme, HTML pages, source code, etc of such website.

Privacy Statement” the privacy statement of Expivi, which can be read and downloaded here.

Renewal Term” any renewal term of the Agreement, as further defined in Article 13.1.

SaaS” the online software as a service solution (including, but not limited to, hosting, maintenance and Basic Support) that is developed, operated and maintained by Expivi (and its third party service providers) pursuant to the Agreement and which contains the Software and the Platform.

SaaS Subscription Plan” the specific quantity of SaaS which Customer is entitled to use during the term of the Agreement (e.g. max. sessions, max. products, max. attributes per product, max. views, etc.), as set out on the Order Form or otherwise agreed in writing between the Parties.

SLA” the agreement between the Parties (if any) for the commitments Expivi makes regarding the delivery and/or performance of the SaaS.

Software” source code, object code or underlying structure, ideas, know-how or algorithms relevant to the SaaS.

Terms and Conditions” the underlying terms and conditions for the provision of the SaaS by Expivi to Customer.

Third Party Software” any software, including software code and/or components of such software that an Expivi partner may bundle with the SaaS and which is not developed or owned by Expivi.

User” any of Customer’s employees or any other party authorized by Customer’s administrator Account to access and use the SaaS on behalf of Customer, in each case subject to such person’s agreement to be bound by the terms of the Agreement.

1.2 Headings. The headings of these Terms and Conditions are for ease of reference only and are not intended to qualify the meaning of any article or section thereof.

1.3 Genders. References to words denoting any gender shall include all genders.

1.4 Successors. References to the Parties include their respective successors in title and permitted assigns.

1.5 Written. In these Terms and Conditions the term ‘in writing’ includes by post, e-mail, clicking a "submit" or similar button or any other electronic communication device customary in the market.

1.6 Interpretation. Terms and expressions of law and of legal concepts as used in these Terms and Conditions have the meaning attributed to them under the laws of the Netherlands and should be read and interpreted accordingly.


Article 2.       Right of use and limitations

2.1  Right of use. Subject to the terms of the Agreement, Expivi will use commercially reasonable efforts to provide to Customer the SaaS in accordance with the Agreement (and if applicable, any SLA). Therefore, Expivi grants Customer during the term of the Agreement the non-transferable (except as permitted below or provided for on the Order Form), non-exclusive right to permit Users to access and use the SaaS (and any Documentation provided to Customer) to allow them to perform, create and/or display Content and other related functions that the Software entails.

2.2  Limitations. The right as set out in Article 2.1 is granted to Customer provided that (i) unless otherwise agreed between the Parties in writing, Customer’s use of the SaaS does not include use by third parties other than Users; and (ii) Customer may not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource otherwise commercially exploit or make the SaaS or the Documentation available to any third party, except as expressly agreed in writing between the Parties.

2.3  Reverse engineering. Customer may not reverse engineer, decompile, modify, disassemble or otherwise attempt to discover or make derivative works of the source code, underlying ideas, underlying user interface techniques or algorithms of the Software or the Platform by any means whatsoever, directly or indirectly, or disclose any of the foregoing. Any information supplied by or obtained by Customer may not be disclosed to any third party or used to create any software as a service or software which is substantially similar to the expression of the SaaS..

2.4  Compliance with capacity of use restrictions. Customer’s use of the SaaS (including but not limited to the number of Users and the level of SaaS Subscription Plan) shall conform with the restriction applicable to the specific level of SaaS Subscription Plan, as set forth on the Order Form. Expivi may monitor Customer’s compliance with these limits and, if Expivi detects overuse, require Customer to pay the applicable fees as set out on the Platform and/or allows an upgrade of the level of SaaS Subscription Plan. Customer can upgrade to a higher level of SaaS Subscription Plan monthly. Downward adjustment of the SaaS Subscription Plan is only possible simultaneously upon a new Renewal Term.

2.5  Compliance with Acceptable Use Policy. Customer must comply, and ensure and warrants to Expivi that all Users shall comply, with the Acceptable Use Policy.

2.6  Excessive use. Customer’s use of the Software must not cause undue strain or stress on the Platform and/or the Expivi network through excessive API calls or other non-standard and/or excessive use. All services provided by Expivi may be used for lawful purposes only.

2.7  Additional restrictions. Customer and is Users are expressly prohibited from using the Platform and the Software for any purpose outside of the intended design and implementation of Customer’s authorized use of the SaaS. Any replication or use of any aspect of the Platform, the Software or other Expivi application or services for any purpose designed or intended to compete with Expivi’s solutions is strictly prohibited.

2.8  Ownership of Content and license to use. As between Customer and Expivi, Content and any similar data provided to Expivi outside of the uploading process (either in hard copy or electronic format), is and shall remain Customer’s property (including any Intellectual Property Rights associated thereto). To enable Expivi to provide Customer with the SaaS, and subject to the terms and conditions of the Agreement, Customer hereby grants to Expivi a non-exclusive right to use, copy, distribute and display Content solely in connection with Expivi’s operation of the SaaS on Customer’s behalf. Customer, not Expivi, shall have sole responsibility for the accuracy, integrity, and reliability of Content, and Expivi will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Content. Expivi will protect any of Content provided to Expivi as confidential in accordance with Article 9 and Article 11.

2.9  Compliance with laws. Transmission or storage of any Content in violation of any Dutch or local laws is strictly prohibited. Expivi reserves the right but not the obligation to monitor and edit all Content provided by Users.


Article 3.       Data Migration 

3.1 Applicability. The provisions of this Article 3 apply where the Order Form includes Migration Service.

3.2. Existing Data. There may be technical or practical limitations that affect or prevent Migration of Existing Data or make it uneconomic or otherwise unworkable. Accordingly, Customer accepts that the fees for Migration (as set out on the Order Form) and any timetable for Migration are subject to an assessment by Expivi of Customer’s Existing Data after the Agreement comes into force.

3.3 Assessment. Customer will provide Expivi with its Existing Data promptly after the Effective Date and Expivi will carry out an assessment, produce a Migration plan if Expivi considers one is required, and informs Customer of any change to the Migration fees and timetable as a result of the assessment.

3.4 Cancellation of Migration. If Customer does not wish to proceed with the revised Migration Fees and/or timetable, or if Expivi decides it can no longer offer to Migrate Customer’s Existing Data, Expivi will cancel the Migration Service by written notice to Customer, without charge. Expivi will then continue to provide Customer with the SaaS.

 

Article 4.       Fees and payment terms

4.1  Applicable Fees. Customer will pay Expivi the then applicable Fees.

4.2  Additional charges. If Customer’s use of the SaaS exceeds the applicable SaaS Subscription Plan or otherwise requires the payment of additional Fees (per the terms of the Agreement and/or the then current Fees as set out on the Platform), Customer shall be billed for such usage and Customer agrees to pay the additional Fees in the manner provided therein.

4.3  Change of Fees. Expivi has the right to apply indexation per calendar year, without written notice. Expivi is allowed to set the indexation based on the published standard in the Netherlands with an additional percentage of 4 percent.  Expivi reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then current Renewal Term, upon 30 (thirty) days prior written notice to Customer.

4.4  Payment terms. Payment will be made by Customer in accordance with Expivi’s payment terms and, if applicable, those of any third party payment processor.

4.5  Billing through invoice. Expivi may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Expivi 14 (fourteen) days after the date of the invoice.

4.6  Advance payment. The Fees are payable in advance, irrevocable and non-refundable, except as set forth in the Agreement.

4.7  Billing information. Customer agrees to provide Expivi with complete and accurate billing and contact information. Where payment is made by credit card, or Customer otherwise provides Expivi with credit card information, Customer authorizes Expivi to bill such credit card (a) at the Effective Date; and (b) for any billing frequency, as set forth on the Order Form. If Expivi, in its discretion, permits Customer to make payment using a method other than a credit card, Expivi will invoice Customer at the time of Customer’s order of the SaaS, as set forth on the Order Form and thereafter, on a monthly basis in advance of the relevant billing period, and all such amounts invoiced will be due within 30 (thirty) days of Customer’s receipt of such invoice.

4.8  Incorrect billings. If Customer believes that Expivi has billed Customer incorrectly, Customer must contact Expivi no later than 60 (sixty) days after the closing date on the 1st (first) billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to the Expivi’s help desk.

4.9  Late payment. Unpaid amounts are subject to an interestcharge of 5% (five percent) per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.

4.10   Taxes. Customer shall pay all personal property, sales, use, value-added, withholding and similar taxes (other than any taxes on Expivi’s net income) arising from the transactions described in the Agreement, even if such amounts are not listed in the Agreement. To the extent Customer is exempted from sales or other taxes, Customer agrees to provide Expivi, upon request, with the appropriate exemption certificate.

4.11   Exclusive of VAT. All amounts stated in or in relation to the Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by Customer to Expivi.

4.12   Suspension rights. Expivi reserves the right, in its discretion, to suspend the SaaS in the event that (a) any payment is due but unpaid and Customer has been requested but failed to cure such payment failure; or (b) a dispute arises on Customer’s account as to who at Customer’s business has authority to act or manage Customer’s administrator Account and Expivi is not promptly provided with a notice with instructions from the interested parties associated with Customer’s administrator Account that fully resolves the dispute. Customer acknowledges and agrees that if a dispute arises as to management of Customer’s administrator Account, then (i) if the listed owner of the administrator Account is a corporation, limited liability company or other registered entity, Expivi may rely on public records (to the extent available) concerning the appropriate authorized executives, managers or listed owner of Customer’s entity; or (ii) if the listed owner is another entity for which public records of control are not readily accessible online, Expivi may assume that the person or entity that has been making payments on Customer’s account has the authority to manage the administrator Account. Customer agrees that Expivi shall not be liable to Customer nor to any third party for any suspension of the SaaS resulting from Customer’s non-payment of Fees or from a dispute as to the management rights to Customer’s administrator Account.


Article 5.       Third Party Software

5.1  Incorporated Third Party Software. Expivi represents and Customer acknowledges that the SaaS  may incorporate certain Third Party Software which may be governed by separate Intellectual Property Rights and license provisions, which may be found or identified in the Software, the Platform or the Documentation; those separate provisions are incorporated by reference into the SaaS and Customer agrees to the terms and conditions of such license. Customer shall not (attempt to) modify or combine the Software, the Platform and/or any Third Party Software in any manner that could cause the Software or the Platform to become subject to the terms of any license that applies to Third Party Software. Maintenance and support of Third Party Software is provided by the licensor of those products.


Article 6.       Intellectual Property Rights

6.1  Intellectual Property Rights Expivi. Expivi shall retain all right, title and interest (including all Intellectual Property Rights) in and to the SaaS and Documentation (including application development, business and technical methodologies, and implementation and business processes, used by Expivi to develop or provide the use of the SaaS or Documentation), and any and all updates, upgrades, enhancements, customizations, revisions, modifications, future releases and any other changes relating to any of the foregoing. Except for the limited access and use rights granted pursuant to the Agreement, Customer does not acquire any interest in the SaaS or the Documentation. Customer agrees that any suggestions, enhancement requests, feedback, recommendations or other information provided by Customer or any Users relating to the SaaS or the Documentation may be used by Expivi without restriction or obligation to Customer or any Users.

6.2  Intellectual Property Rights Customer. Customer shall retain any and all of its Intellectual Property Rights to any Content and Customer is responsible for protecting those rights. Expivi takes no responsibility and assumes no liability for Content Customer or its Users posted through the SaaS. However, by posting Content using the SaaS Customer grant’s Expivi the right and license to use, modify, publicly perform, publicly display, reproduce, and distribute such Content on and through the SaaS. 

 

Article 7.       Maintenance, updates and upgrades

7.1  Applicability. The provisions of this Article 7 apply in the event the Parties did not enter into a SLA with regard to the SaaS.

7.2  Maintenance. Expivi and/or its hosting or telecommunications vendor(s) may perform maintenance within the maintenance windows as set out on the Platform. Expivi shall, where practicable, give Customer at least 5 (five) days’ prior written notice of scheduled maintenance that is likely to affect the SaaS or is likely to have a material negative impact upon the SaaS.

7.3  Updates and/or upgrades. Expivi will only install software updates and/or upgrades of the SaaS which are generally made available to its other customers of the SaaS through the related SaaS, including patches and/or fixes, as they are made available at no charge during the term of the Agreement. In the event of an upgrade and/or an update, Expivi shall, where practicable, give Customer at least 5 (five) days’ prior written notice of the application of such upgrade and/or update.

7.4  Reasonable standards. Expivi shall provide the services as set out in this Article 7 in accordance with the standards of skill and care reasonably expected from a service provider in the industry. However, Expivi does not warrant that these services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from the use thereof.

 

Article 8.       Support

8.1  Support. Expivi offers multiple optional service levels for the SaaS, which Customer may elect to purchase in addition to the SaaS and for which Customer will enter into a separate SLA with Expivi. If Customer has not purchased any such service levels, Customer will only be entitled to Basic Support, against no extra costs.

8.2  Reasonable standards. The Basic Support shall be in accordance with the standards of skill and care reasonably expected from a service provider in the industry.


Article 9.       Confidentiality and use of names in marketing

9.1  Confidential Information. Each Party agrees: (a) to receive and maintain in confidence all Confidential Information disclosed to it by (or on behalf of) the other Party; (b) not to use the Confidential Information of the other Party except to the extent necessary to perform its obligations or exercise rights under the Agreement; (c) to limit the internal dissemination of Confidential Information to those employees and contractors of the recipient who have a need to know and an obligation to protect it; and (d) to protect the confidentiality of Confidential Information in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). Expivi will restrict its employees’ access to Customer’s Confidential Information to only those employees necessary to successfully provide the SaaS. Expivi may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services for Expivi in connection with the performance of the Agreement. Confidential Information shall not include information that: (i) is known publicly; (ii) is generally known in the industry before disclosure; (iii) has become known publicly, without fault of the recipient Party, subsequent to disclosure by the disclosing Party; or (iv) the recipient Party becomes aware of from a third party not bound by non-disclosure obligations to the disclosing Party and with the lawful right to disclose such information to the recipient Party. This Article 9.1 will not be construed to prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority. The Parties agree to give the other Party prompt notice of the receipt of any subpoena or other similar request for such disclosure.

9.2  Use of names in marketing. Each Party may usethe other Party’s name and credentials in an appropriate and acceptable manner for its standard marketing promotions, provided that such Party agrees to cease or alter such use at the other Party’s request where such use is contrary to such other Party’s branding policies, could cause any brand confusion in the market or is otherwise objectionable to such Party.  Acceptable and standard marketing promotions include, but are not limited to, client listings, press releases, surveys, interviews, reputable business publications, television, and website presentation and promotion. Separately, Customer may be requested by Expivi to allow Expivi to use 1 (one) or more of Customer’s projects for similar promotions as described above. Customer is free to refuse such use.

 

Article 10.     Force Majeure

10.1   Force Majeure. Except for Customer’s obligation to pay Expivi, neither Party shall be liable for any failure to perform its obligations under the Agreement if prevented from doing so by an event of Force Majeure.


Article 11.     Personal data and security measures

11.1   Privacy laws. The Parties will at all times comply with their legal obligations with respect to the protection of (personal) data.

11.2   Privacy Statement. Processing by or on behalf of Expivi of personal data within the framework of the SaaS takes place in accordance with the Privacy Statement of Expivi.

11.3   Information security. If the Agreement stipulates that Expivi is obliged to provide a specific form of information security, this security shall meet the specifications in respect of security agreed between the Parties in writing. However, Expivi shall not guarantee that the information security will be effective under all circumstances. If the Agreement does not include an explicit description of security measures, the security measures shall be of such a level that, having regard to the state of the art, the sensitivity of the Content and the costs associated with the implementation of the security measures are not unreasonable. More information about the security measures taken by Expivi is set out in the Privacy Statement.

 

Article 12.     Warranties and disclaimer

12.1   Expivi’s warranties. Expivi shall use reasonable efforts consistent with prevailing industry standards to maintain the SaaS in a manner which minimizes errors and interruptions in the SaaS. The SaaS may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Expivi or by third-party providers, or because of other causes beyond Expivi’s reasonable control, but Expivi shall use reasonable efforts to provide advance notice in writing in accordance with the provisions of Article 7.

12.2   Customer’s warranties. Customer warrants that Customer’s business shall, at all times, comply with, and shall remain solely responsible for compliance with, all applicable laws and regulations, as well as the Acceptable Use Policy, in connection with the use of the SaaS by Customer and its Users, and Customer agrees to indemnify and hold Expivi and its subsidiaries, affiliates, officers, directors, shareholders, agents, licensors, licensees, suppliers, , other partners, employees and representatives harmless from and against any claim, demand, loss, or damages, including any third party or government claims, and any related costs and expenses (including reasonable attorneys’ fees), arising out of or related to Content, Customer’s or its Users use of the SaaS, or Customer’s violation of the Agreement.

12.3   Limitation of liability. To the extend not prohibited by applicable law, in no event shall Expivi be liable for personal injury or any incidental, special, indirect, or consequential damages whatsoever, including, without limitation, damages for loss of profits, loss of data, business interruption, or any other commercial damages or losses, arising out of or related to Customer’s use or inability to use the SaaS however caused, regardless of the theory of liability (contract, tort, or otherwise) and even if Expivi has been advised of the possibility of such damages. Customer may use the SaaS at Customer’s own discretion and risk, and Customer is solely responsible for any damage to or loss of Customer’s computer that directly results from the use of the SaaS by Customer or its Users.

12.4   Warranty disclaimers. Except as expressly set for in this Article 12, the SaaS is provided to Customer ‘as is’. To the maximum extent permitted by law, Expivi disclaims all warranties express or implied, including the implied warranties of non-infringement, merchantability, and fitness for a particular purpose. Expivi makes no commitments about the content within the SaaS. Expivi further disclaims any warranty that (a) the SaaS will meet Customer’s requirements or will be constantly available, uninterrupted, timely, secure, or error-free; (b) the results that may be obtained from the use of the SaaS will be effective, accurate, or reliable (e.g. the information viewed through the SaaS may contain errors or inaccuracies and may not be complete or current. Products may be mispriced, described inaccurately, or unavailable on the SaaS); (c) the quality of the SaaS will meet Customer’s expectations; or that (d) any errors or defects in the SaaS will be corrected.

 

Article 13.     Term and termination

13.1   Effective Date and Renewal. The Agreement shall come into force upon the Effective Date and shall continue in effect for a period of 12 (twelve)  months (the “Initial Term”), unless earlier terminated as provided in these Terms and Conditions. Upon expiration of the Initial Term, the Agreement shall automatically renew with for successive renewal terms of twelve (12) months each (each a “Renewal Term”), unless earlier terminated as provided in these Terms and Conditions.

13.2   False or fraudulent contact information. Expivi may terminate the Agreement if the billing or contact information provided by Customer is false or fraudulent.

13.3   Termination for breach. Notwithstanding Article 13.1, either Party may terminate the Agreement as a result of a material breach of conditions of the Agreement by the other Party, if (a) such Party provides written notification to the other Party of the material breach; and (b) such material breach is not resolved within 30 (thirty) days of notification, or, in the case of a failure to pay Fees in a timely manner by Customer, after a 10 (ten) day late payment period.

13.4   Termination for convenience. Subject to Article 13.5, Customer has the right to terminate the Agreement at any time during the Renewal Term, but latest 45 (forty-five) days before the end of the Renewal Term. The termination will be effective at the end of the then current Renewal Term.

13.5   Effect of termination. In the event the Agreement is terminated (i) as a result of false or fraudulent contact information provided by Customer; or (ii) as a result of a material breach of conditions of the Agreement by Customer prior to the completion of the Initial Term or any Renewal Term, Customer shall pay Expivi the remaining balance of Fees and any additional charges (if any ) as set out in Article 4.2 owed for the entire Initial Term or, if then in effect, the entire applicable Renewal Term. Both Parties acknowledge that this payment represents a reasonable estimate of Expivi’s damages in the event of an early termination. In the event of termination of the Agreement for any reason, Customer’s access and use of the SaaS shall cease immediately.

13.6   SaaS Subscription Plan not used. Any SaaS Subscription Plan not used during the Initial Term or any Renewal Term, will expire at the end of the Initial Term or, if then in effect, the applicable Renewal Term.

13.7   Content retrieval 

13.8   Survival. All sections of the Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. Each Party’s termination rights are in addition to any suspension rights it may have under the Agreement.

 

Article 14.     General provisions

14.1   Entire Agreement. Customer acknowledges that it has read the Agreement, understands its contents and understands that Customer is bound by its terms and conditions. Customer also agrees that the Agreement is the complete and exclusive statement of the agreement between Expivi and Customer which supersedes any proposal or prior agreement, whether oral or written, and any other communications between Expivi and Customer relating to the subject matter of the Agreement.

14.2   Applicable law. The Agreement and all matters arising out of or in connection with the Agreement shall be interpreted, construed and governed exclusively in accordance with the laws of the Netherlands.

14.3   Dispute resolution. In case of any disputes arising out of or relating to the Agreement, Expivi and Customer shall endeavour to settle such disputes amicably. If Expivi and Customer are unable to, the dispute shall be exclusively submitted to the jurisdiction of the competent courts of Oost-Brabant, location ‘s-Hertogenbosch, the Netherlands, provided always that, in case Expivi is the plaintiff, Expivi may at its sole discretion submit any such dispute to the competent courts in the venue of Customer’s registered office or address.

14.4   Successors. The Agreement will bind and inure to the benefit of both Parties and their respective heirs, personal and legal representatives, affiliates, successors and permitted assigns.

14.5   Material breach. In the event of a breach or threatened breach of the Agreement by either Party, the other shall have all applicable equitable as well as legal remedies.

14.6   Waiver. The failure by either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach of the Agreement will not be deemed a waiver by that Party as to the subsequent enforcement of rights or subsequent actions in the event of future breaches.

14.7   Authorized representative. Both Parties acknowledge to be duly authorized and empowered to enter into and perform the Agreement.

14.8   Invalid provisions. If, for any reason, any provision of the Agreement is held invalid or otherwise unenforceable, such invalidity or unenforceability shall not affect the remainder of the Agreement, and the Agreement shall continue in full force and effect to the fullest extent allowed by law. Both Parties knowingly and expressly consent to the foregoing terms and conditions.

 

Schedule I :

 

This Acceptable Use Policy sets out the rules governing the use of the SaaS and the transmission, storage and processing of Content by any Users, using the SaaS.

 

General age rules.

  • User must be at least 18 (eighteen) years of age to use the SaaS; and by using such SaaS, Customer warrants and represents to Expivi that Users are at least 18 (eighteen) years of age.

General usage rules.

  • User must not use the SaaS in any way that causes, or may cause, damage to the Software or the Platform or impairment of the availability or accessibility of the SaaS.
  • User must not use the SaaS (i) in any way that is unlawful, illegal, fraudulent or harmful or (ii) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity and User must ensure that all Content complies with the provisions of this Acceptable Use Policy.

Unlawful Content.

  • Content must not be illegal or unlawful, must not infringe any person’s legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
  • Content, and the use of Content by Expivi in any manner licensed or otherwise authorized by Customer, must not: (i) be libellous or maliciously false; (ii) be obscene or indecent; (iii) infringe any Intellectual Property Right; (iv) infringe any right of confidence, right of privacy or right under data protection legislation; (v) constitute negligent advice or contain any negligent statement; (vi) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity; (vii) be in contempt of any court, or in breach of any court order; (viii) constitute a breach of racial or religious hatred or discrimination legislation; (ix) be blasphemous; (x) constitute a breach of official secrets legislation; or (xi) constitute a breach of any contractual obligation owed to any person or legal entity.
  • User must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.

Graphic material.

  • Content must be appropriate for all persons who have access to or are likely to access the Content in question, and in particular for children over 12 (twelve) years of age.
  • Content must not depict violence in an explicit, graphic or gratuitous manner.
  • Content must not be pornographic or sexually explicit.

Factual accuracy.

  • Content must not be untrue, false, inaccurate or misleading.
  • Statements of fact contained in Content and relating to persons (legal or natural) must be true.

Negligent advice.

  • Content must not consist of or contain any legal, financial, investment, taxation, accountancy, medical or other professional advice, and User must not use the SaaS to provide any legal, financial, investment, taxation, accountancy, medical or other professional advisory SaaS unless a User is legally authorized to provide these SaaS or advise.
  • Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.

Etiquette.

  • Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.
  • Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
  • User must not use the SaaS to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
  • User must not use the SaaS for the purpose of deliberately upsetting or offending others.

Marketing and spam.

  • User must not send any spam to any person using any e-mail address or other contact details made available through the SaaS or that User finds using the SaaS.
  • User must not use the SaaS to promote or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, “get rich quick” schemes or similar letters, schemes or programs.

Monitoring.

  • User acknowledges that Expivi may actively monitor the Content and the use of the SaaS.

Hyperlinks.

  • User must not link to any material using or by means of the SaaS that would, if it were made available through the SaaS, breach the provisions of this Acceptable Use Policy.

 

Harmful software.

  • The Content must not contain or consist of, and User must not promote or distribute by means of the SaaS, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
  • The Content must not contain or consist of, and User must not promote or distribute by means of the SaaS, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer. 

 

Processor agreement

Article 1: Purposes of processing

1.1       The Processer undertakes to process personal data on assignment from the Processing Officer, pursuant to the conditions of this Processor Agreement. Processing shall only take place in the framework of the hosting of parts of the Processing Officer’s website, and associated online services, storage of the Processing Officer’s data in the ‘cloud’, and associated online services, plus those purposes which are reasonably related thereto, or that are determined in further consent.

1.2       The Processor shall only process (special) personal data on assignment from the Processing Officer which has been provided by the Processing Officer to the Processer in the framework of this Processing Agreement and which shall be hosted by Processor.

1.3       The Processor shall not make any independent decisions about the processing of the personal data for other purposes, including the provision thereof to third parties and the duration of the storage of data. The control over personal data provided to the Processor in the framework of this Processor Agreement or other agreements between the parties, as well as the data processed by the Processor within that framework, is vested with the Processing Officer.

1.4       The personal data to be processed on assignment from the Processing Officer remains the property of the Officer and/or the data subjects concerned.

1.5       The Processing Officer guarantees to keep a register of the processing operations regulated under this Processor Agreement. The Processing Officer indemnifies the Processor against all legal claims and claims relating to the non-compliance or incorrect compliance with the registration obligation.

Article 2: Processor’s obligations

2.1       With regard to the processing operations referred to in article 1, the Processor shall ensure compliance with applicable laws and regulations, including, in any case, the laws and regulations relating to the protection of personal data, such as the General Data Protection Regulation.

2.2       The Processor shall inform the Processing Officer, on first request, of the measures it has taken with regard to its obligations pursuant to this Processor Agreement.

2.3       The Processor’s obligations arising from this Processor Agreement also apply to those who process personal data under the authority of the Processor, including but not limited to employees, in the broadest sense of the word.

2.4       The Processing Officer shall extend the necessary cooperation to the Processing Officer, if, in the context of processing, a Data Protection Impact Assessment (DPIA) or prior consultation of the supervisory authority, is necessary.

Article 3: Transfer of personal data

3.1       The Processor may process the personal data in countries within the European Union. Transfer to countries outside the European Union is prohibited, without the prior written consent of the Processing Officer.

Article 4: Distribution of responsibility

4.1       The Processor shall make ICT resources available for the processing operations that can be used by the Processing Officer for the aforementioned purposes. The Processor only carries out processing on the basis of separate agreements.

4.2       The Processor is solely responsible for the processing of the personal data pursuant to this Processing Agreement, in accordance with the assignment from the Processing Officer and under the explicit (final) responsibility of the Processing Officer. The Processer is explicitly not responsible for the other processing of personal data, including, in any case, but not limited to the collection of the personal data by the Processing Officer, processing for purposes not reported to Processor by the Processing Officer, processing by third parties and/or for other purposes.

4.3       The Processing Officer guarantees that the content, the use and the assignment for the processing of the personal data as referred to in this Agreement are not unlawful and do not infringe any rights of third parties.

Article 5: Engaging third parties or subcontractors

5.1       The Processing Officer hereby gives the Processor permission to engage a third party in the processing of personal data, based on this Processor Agreement, with due observance of the applicable privacy legislation.

5.2       The Processor shall make every effort to ensure that these third parties undertake the same obligations, in writing, as those agreed between the Processing Officer and the Processor regarding the processing of personal data.

Article 6: Security

6.1       The Processor shall take the appropriate technical and organisational measures with regard to the processing of personal data, against loss or against any form of unlawful processing (such as unauthorised inspection, violation, modification or provision of the personal data).

6.2       In any case, the Processor has taken the following measures:
– Logical access control, using passwords or keys.
– Physical measures for access security.

6.3       The Processor does not guarantee that the security is effective under all circumstances. If an explicitly described security measure is missing from the Processor Agreement, the Processor shall make every effort to ensure that the security shall fulfil a level that, as regards the state-of-the-art, the sensitivity of the personal data and the costs associated with providing the security, are not unreasonable.

6.4       The Processing Officer shall only make personal data available to the Processer for processing, if it has been ensured that the required security measures have been taken. The Processing Officer is responsible for compliance with the measures agreed by the Parties.

Article 7: Reporting obligation

7.1       In the case of a data leak concerning the personal details from the Processing Officer, the Processor shall inform the Processing Officer of this immediately, or within 24 hours of the discovery of the leak, as a result of which the Processing Officer shall assesses whether it shall inform the data subjects and / or the relevant regulator(s) or not. The Processor shall make every effort to ensure the information provided is complete, correct and accurate. The reporting obligation applies regardless of the impact of the leak.

7.2       If the laws and/or regulations so require, the Processor shall cooperate in informing the relevant authorities and/or the data subjects.

7.3       The reporting obligation, in any case, includes reporting the fact that there has been a leak, as well as:

– The date on which the leak occurred (if no exact date is known: the period within which the leak occurred);
– What is the (alleged) cause of the leak;
– The date and time at which the leak became known to the Processor or to a third party or subcontractor engaged by it;
– Whether the data is encrypted, hashed, or is otherwise incomprehensible or inaccessible to unauthorised persons;
– What are the intended measures and/or measures already taken to plug the leak and to limit its consequences;
– Contact details for the follow-up of the report.

Article 8: Data subjects’ rights

8.1       In the case that a data subject submits a request to the Processor to exercise his/her legal rights, the Processor shall forward the request to the Processing Officer and inform the data subject of this. The Processing Officer shall then continue to process the request independently.

8.2       In the case that a data subject submits a request to the Processing Officer to exercise one of his/her legal rights, the Processor shall, if this is required by the Processing Party, cooperate insofar as this is possible and reasonable. The Processor may charge to the Processing Officer the reasonable costs incurred for this. 

Article 9: Secrecy and confidentiality

9.1       All personal data received by the Processor from the Processing Officer and/or which is collected b in the framework of this Processor Agreement is subject to a confidentiality obligation with regard to third parties. The Processor shall not use this information for any purpose other than the purpose for which it has obtained this information; even if the information has been put in such a form that it cannot be traced back to the data subjects

9.2       This confidentiality obligation does not apply insofar as the Processing Officer has given explicit permission to provide the information to third parties, if the provision of the information to third parties is logically necessary in view of the nature of the assignment and the execution of this Processor Agreement, or if there is a legal obligation to provide the information to a third party.

Article 10: Audit

10.1     The Processing Officer has the right to have audits carried out by an independent ICT expert, who is bound by a confidentiality obligation, in order to check compliance with all the points in this Processor Agreement.

10.2     This audit shall only take place after the Processing Officer has requested and assessed similar audit reports from the Processor and presented reasonable arguments which justify an audit initiated by the Processing Officer. Such an audit is justified when the similar audit reports from the Processor give no information or insufficient information regarding the compliance with this Processor Agreement by the Processor. The audit initiated by the Processing Officer shall take place two weeks after prior notification by the Processing Officer, and, at most, once a year.

10.3     In the case that an audit takes place, all reasonably relevant information, including supporting data, such as system logs and employees, shall be made available in as timely a manner as possible and within a reasonable period of time; with a maximum period of two weeks being reasonable. The Processing Officer shall ensure that the audit causes the least possible operational disruption to the Processor’s other work.

10.4     The findings resulting from the audit shall be assessed by the Parties in mutual consultation and, in response thereto, shall be implemented by one of the Parties or jointly by both Parties.

10.5     The costs of the audit are borne by the Processing Officer.

Article 11: Liability

11.1     The Processor’s liability for damage as a result of a culpable shortcoming in compliance with the Processor Agreement, whether from an unlawful deed or otherwise, is excluded. Insofar as the aforementioned liability cannot be excluded, per event (a series of consecutive events counts as one event) it is limited to the compensation of direct damage, to a maximum of the amount of the fees received by the Processor for the work pursuant to this Processor Agreement for the month proceeding the event which caused the damage. The Processor’s liability for direct damage, in total, shall never be more than the amount of compensation received for the work pursuant to Processor Agreement over the three months prior to the event causing the damage.

– Direct damage is exclusively understood to mean all damage consisting of:
– Damage directly inflicted on material property (“property damage”);
– Reasonable and demonstrable costs to remind the Processor to perform the Processor Agreement (again) properly;
– Reasonable costs to determine the cause and extent of the damage, insofar as this concerns the direct damage as referred to here; and
– Reasonable and demonstrable costs incurred by the Processing Officer to prevent or limit the direct damage as referred to in this article.

11.3     The liability of the Processor for indirect damage is excluded. Indirect damage is understood to mean all damage that is not direct damage and, therefore, in any case, but not limited to, consequential loss, lost profit, missed savings, reduced goodwill, loss due to business stagnation, damage due to non-determination of marketing objectives, damage related to the use of data or data files prescribed by the Processing Officer, or loss, malformation or destruction of data or data files.

11.4     The exclusions and limitations referred to in this article shall lapse, if and insofar as the damage is the result of intent or deliberate recklessness on the part of the Processor or its Management.

11.5     Unless compliance by the Processor is permanently impossible, the liability of Processor due to a culpable shortcoming in the fulfilment of the Agreement only arises if Processing Officer immediately informs the Processor in writing, establishing reasonable term for remedying the shortcoming; and after that term, the Processor remains in culpable non-compliance with the fulfilment of its obligations. The notice of default must contain as complete and detailed a description of the shortcoming as possible, so that the Processor is given the opportunity to adequately remedy it.

11.6     Any claim for compensation by Processing Officer against Processer, which has not been specified and explicitly reported, shall expire with the passage of twelve (12) months after the time at which the claim arose.

Article 12: Duration and termination

12.1     This Processor Agreement is entered into at the moment that acceptance by the Processing Officer is communicated to the Processor and shall continue for the duration of the Agreement and, in the absence of such term, for the duration of the (further) cooperation.

12.2     As soon as the Processor Agreement has been terminated, for whatever reason and in whatever way, the Processor shall return all personal data which it has in its possession to the Processing Officer or delete and/or destroy this data.

12.3     The Processing Officer may be charged the reasonable costs for the return of the personal data and/or any copies thereof by the Processor.

12.4     The parties may only amend this agreement by mutual consent.

Article 13: Applicable law and dispute resolution

13.1     The Processor Agreement and its execution are governed by Dutch law.

13.2     All disputes that may arise between the Parties in connection with the Processor Agreement shall be submitted to the competent court of the district in which the Processor is established.

13.3     Logs and measurements made by the Processor apply as compelling evidence, subject to proof to be provided by the Processing Officer.