Supplier obligations and services
General
1. The Supplier must use best efforts to provide the Services:
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- in accordance with the Agreement and European law, including data protection legislation;
- exercising reasonable care, skill and diligence.
Non exclusive
2. The Supplier’s provision of the Services to the Client is non-exclusive. Nothing in the Agreement prevents the Supplier from providing the Services to any other person.
Underlying Systems
3. The Supplier is responsible for procuring all Underlying Systems reasonably required for it to provide the Services in accordance with the Agreement.
Client obligations
General use
4. The Client and its personnel must:
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- use the Services in accordance with the Agreement solely for:
- the Client’s own internal business purposes; and
- lawful purposes.
- not resell or make available the Services to any third party, or otherwise commercially
exploit the Services.
Access conditions
5. When accessing the SaaS Service, the Client and its personnel must:
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- not impersonate another person or misrepresent authorisation to act on behalf of others or the Supplier;
- not attempt to undermine the security or integrity of the Underlying Systems;
- not use, or misuse, the SaaS Service in any way which may impair the functionality of
the Underlying Systems or impair the ability of any other user to use the SaaS Service;
- not attempt to view, access or copy any material or data other than that to which the
Client is authorised to access;
- neither use the SaaS Service in a manner, nor transmit, input or store any Data, that
breaches any third party right (including Intellectual Property Rights and privacy rights) or is objectionable, incorrect or misleading.
Authorisations
6. Without limiting the access conditions, no individual other than a Permitted User may access or use the SaaS Service.
7. A breach of any term of the Agreement by the Client’s personnel is deemed to be a breach of the Agreement by the Client.
8. The Client is responsible for procuring all licences, authorisations and consents required for it and its personnel to use the SaaS Service, including to use, store and input Data into, and process and distribute Data through the SaaS Service.
Data
Supplier access to Data:
9. The Client acknowledges that:
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- the Supplier may require access to the Data to exercise its rights and perform its
obligations under the Agreement;
- to the extent that this is necessary, the Supplier may authorise a member or members of its personnel to access the Data for this purpose.
Pricing and payment
Subscription
10. The Services are purchased as subscriptions.
Fees
11. The Client must pay to the Supplier the Fees according to the Payment Terms.
12. The Supplier may increase the Fees once each Year (but not the first Year) by the percentage change in the European Harmonised index of consumer prices (HICP) over the 12 months preceding the last quarterly publication of that index issued prior to the date of the notice.
13. By giving at least 90 days notice prior to the End Date, the Supplier may increase the Fees after the End Date with more than the percentage change in the European Harmonised index of consumer prices (HICP).
Invoicing and payment
14. The Supplier will provide the Client with valid tax invoices.
15. The fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever. Client is responsible for the tax payment on taxable supplies under the Agreement.
16. Supplier will invoice Client annually up front.
Intellectual property
Ownership
17. Title to, and all Intellectual Property Rights in, the Services, and all Underlying Systems is and remains the property of the Supplier (and its licensors). The Client must not dispute that ownership.
18. Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains
the property of the Client. The Client grants the Supplier a worldwide, non-exclusive,
licence to use, store, copy, make available and communicate the Data for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with the Agreement.
Confidentiality
Obligation of confidentiality
19. Each party must, unless it has the prior written consent of the other party:
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- keep confidential at all times the Confidential Information of the other party;
- effect and maintain adequate security measures to safeguard the other party’s
Confidential Information from unauthorised access or use; and
- disclose the other party’s Confidential Information to its personnel or professional
advisors on a need to know basis only and, in that case, ensure that any personnel or
professional advisor to whom it discloses the other party’s Confidential Information is
aware of, and complies with, the provisions of clauses 18a and 18b.
Permitted disclosure
20. The obligation of confidentiality in clause 19 does not apply to any disclosure or use of Confidential Information:
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- for the purpose of performing the Agreement or exercising a party’s rights under the
Agreement;
- required by law;
- which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
- which was rightfully received by a party to the Agreement from a third party without
restriction and without breach of any obligation of confidentiality.
Liability
Limitation
21. Supplier’s liability for any direct or indirect, punitive, special, consequential or exemplary damages or loss of any kind arising from the use of the Services or otherwise under or in connection with this Agreement will be limited to the amount paid for the Services in the twelve (12) months prior to the occurence of the act or omission giving rise to such claim.
22. The Client indemnifies the Supplier against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by the Supplier’s solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is objectionable, incorrect or misleading.
Termination
Duration
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- Starts on the Start Date and ends on the End Date; but
- The subscription will automatically extend for additional periods equal to the expiring subscription term unless either party gives the other notice of non-extension at least 30 days before the end of the relevant subscription term.
Termination rights
24. Either party may, by notice to the other party, immediately terminate the Agreement if the
other party:
- breaches any material provision of the Agreement and the breach is not:
- remedied within 30 days of the receipt of a notice from the first party
requiring it to remedy the breach; or
- capable of being remedied;
- becomes insolvent, liquidated or bankrupt, has an administrator, receiver,
liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason;
- is unable to perform a material obligation under the Agreement for 30 days or
more due to Force Majeure.
Suspending access
25. Without limiting any other right or remedy available to the Supplier, the Supplier may restrict or suspend the Client’s access to the SaaS Service where the Client (including any of its personnel):
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- undermines, or attempts to undermine, the security or integrity of the SaaS Service or
any Underlying Systems;
- uses, or attempts to use, the SaaS Service:
- for improper purposes; or
- in a manner, other than for normal operational purposes, that materially reduces the operational performance of the SaaS Service; or
- has otherwise materially breached the Agreement .
Dispute
Miscellaneous provisions
26. This Agreement prevails over all other agreements. Any amendments to this Agreement are only valid if they have been agreed by the parties in writing.
27. This agreement is exclusively governed by Dutch law.
28. The parties will exclusively submit their disputes in connection with this Agreement to the District Court of Amsterdam.
29. Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.
