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General Terms and Conditions

Contents

General Terms and Conditions. 1

Article 1. Definition of terms. 1

Article 2. Conditions. 1

Article 3. Right of use. 1

Article 4. Scope of the right of use. 2

Article 5. Duration and end of the Agreement 2

Article 6. Price and payment 2

Article 7. Fee. 3

Article 8. Obligations of the Provider 3

Article 9. Obligations and cooperation of the Customer 3

Article 10. Data. 3

Article 11. Usage Rules. 3

Article 12. Support 4

Article 13. Advice. 4

Article 14. Availability. 4

Article 15. Use of the Web Application. 4

Article 16. Intellectual property rights. 4

Article 17. Liability. 5

Article 18. Privacy. 6

Article 19. Confidentiality. 6

Article 20. Delivery deadlines. 6

Article 21. Exclusion. 6

Article 22. Force majeure. 7

Article 23. Third-party software components. 7

Article 24. Other clauses. 7

Article 25. Applicable law and disputes. 7

Article 26. Contact 8

 

Article 1. Definition of terms

The following definitions apply in these Terms and Conditions and User Agreement:

  1. “Provider”: PACT Online BV;
  2. “Agreement”: the Agreement between the Provider and the Customer in relation to the Services;
  3. “Customer”: any natural or legal person who has entered into an agreement with the Provider;
  4. “Service(s)”: the combination of services to be supplied by the Provider, as detailed in the Agreement;
  5. “Employee”: an employee of the Customer or Provider and/or a natural or legal person who is authorised to work for and/or under the responsibility of the Customer or Provider;
  6. “User”: Customer and/or employee of the Customer;
  7. “Confidential Information”: the confidential information relating to the Customer or Provider, including:
    1. information that is explicitly referred to as “confidential”,
    2. information that is not generally known,
    3. information that has not been made generally accessible by the party to which the information relates, and/or from which the information originates, and
    4. information of which the confidentiality should have been assumed;
  8. “Web Application”: the software as described in the Agreement, whereby the Provider grants access to the Customer by means of a web browser and the internet for use according to the provisions of the Agreement;
  9. “Documentation”: the electronic documentation appertaining to the Web Application;
  10. “Shortcoming”: all shortcomings of the Web Application that significantly impede the operation as defined in the accompanying Documentation. The lack of functionality in a new version of the Web Application that was present in a previous version, is not regarded as a Shortcoming;
  11. “Log-in Data”: the User code(s) for accessing the Web Application;
  12. “System Requirements”: the minimum requirements imposed on the hardware and software of the Customer in order to make proper use of the Services;
  13. “Month”: a period of 1 calendar month, for example from 1 February to 1 March;
  14. “Working days”: Monday to Friday, excluding public holidays;
  15. “Terms and Conditions”: These Terms and Conditions;
  16. “Additions”: Additional expansion of use of the Web Application, i.e extra data records. A supplement will be added to the Agreement for each Addition.

Article 2. Conditions

2.1 Scope

These Terms and Conditions apply to the Agreement, including any Additions and all negotiations and offers and other agreements with the Provider relating to the Services, unless the parties have explicitly agreed otherwise;

2.2       Changes to the Terms and Conditions

The Provider is entitled to unilaterally change the Terms and Conditions. The Provider will inform the Customer of the proposed changes no later than two (2) months before the changes enter into force. If the Customer does not agree with the proposed changes, the Customer can terminate the Agreement, by way of derogation from the provisions of Article 5.2, on the date on which the changes enter into force. If the Customer does not expressly object to the proposed changes within fifteen (15) calendar days prior to the proposed changes entering into force, the Customer will be deemed to have agreed to the changes;

2.3 Validity

All offers or quotations in respect of the Services are non-binding and revocable.

Article 3. Right of use

3.1 Web Application

The Provider hereby grants the Customer the non-exclusive and non-transferable right to use the Web Application during the term of the Agreement for the purpose of the Customer’s internal business operations, for the number of data records and modules as set out in the Agreement.

The right of use also includes the right to use the Web Application Documentation;

3.2 Start

The right of use starts at the time the Agreement is concluded;

3.3 Type

The Customer will only use the Web Application according to the Terms and Conditions;

3.4 Innovations

The Provider may, at its own discretion, make innovations to the Web Application. The Provider will inform the Customer in due time of any processing of updates and/or upgrades insofar as these are important for the use of the Web Application, all this at the discretion of the Provider.

Article 4. Scope of the right of use

4.1 Third parties

The Customer may not allow the Web Application to be used for purposes and/or by any other (legal) person than the Customer and its Employees;

4.2 Quantity

The Customer is expressly prohibited from using the Web Application for more than the number of data records agreed at the time of entering into the Agreement and/or Additions;

4.2 Transfer to third parties

The Customer is not permitted to transfer any rights or obligations under the Agreement or the Terms and Conditions to third parties.

Article 5. Duration and end of the Agreement

5.1 Start

The Agreement starts at the moment that it is signed in duplicate (2) by the authorised persons of the Customer and the Provider. It is entered into for a period of one year (12 months), unless the parties have expressly agreed otherwise in the Agreement. An Agreement always starts on the first day of a Month and always ends on the last day of a Month.

5.2 Renewal

After expiry of the period referred to in Article 5.1, therefore also including a different period which has been expressly agreed, the Agreement will be automatically renewed for successive periods of one year (12 Months). The Agreement may be terminated by the parties according to a notice period of one (1) Month, which period starts on the first day of the period following the period in which the notice of termination has been received;

5.3 Access to data

Upon termination of the Agreement in the manner as described under 5.2, the Customer has the option to download all its information until the last day of the Agreement;

5.4 Immediate termination

The Provider may terminate the Agreement immediately at the moment that the Customer notifies the Provider that it is no longer able to meet its payment obligations or the moment that the Provider can deduce from circumstances that the Customer can no longer fulfil its payment obligations or at the moment that (the company of) the Customer ceases its activities. The Agreement will terminate automatically and immediately when (the company of) the Customer is liquidated, suspension of payments is granted or is declared bankrupt;

5.5 Suspended services

In the absence of timely compliance of obligations by the Customer, the Provider is entitled at all times to suspend its obligations and to block access to the Services. Furthermore, the Provider is also entitled to terminate the Agreement electronically and without legal intervention if the Customer, after an electronic notice, still fails to meet its obligations under the Agreement;

5.6 Damages

The Provider is in no case liable for payment of any damages as a result of a termination as described in Articles 5.2, 5.4 and 5.5;

5.7 Access to data in case of immediate termination

Upon termination of the Agreement, as described in Articles 5.4 and 5.5, the Customer will no longer have access to the Web Application and its data. Upon termination of the Agreement, for any reason whatsoever, the Provider will not give the Customer a refund.

5.8 Additions

The term of the Agreement will not change because the Customer has made Additions;

5.9 Partial termination of the agreement

The Customer can only terminate a part of the Agreement insofar as it concerns the termination of one or more data records and/or modules, and partial termination is made electronically. The Customer must expressly specify which specific data records and/or modules should be terminated. The notice period as referred to in Article 5.2 is applicable.

5.10 Start of partial termination of the agreement

Partial termination according to Article 5.9 is not valid if the Customer has not specified which specific data records and/or modules should be terminated. As long as the Customer has not specified (in due time) which data records and/or modules should be terminated, the Customer must pay the monthly fee for these data records and/or modules.

Article 6. Price and payment

6.1 VAT and other taxes

All prices charged by the Provider and other rates are exclusive of VAT and exclusive of any other government taxes that are payable by the Customer;

6.2 Price adjustment

The fee as referred to in Article 7 will always be adjusted for inflation on the first day of each calendar year, regardless of whether this takes place during an ongoing contract. The increase is based on the price inflation index of Statistics Netherlands (CBS) for that year.

In addition to the aforementioned price adjustment, the Provider is entitled to apply an additional price increase at the start of a new term and the increase will then apply to the new annual term. The Customer may then terminate the Agreement on the next possible date as described in Article 5.2 of these Terms and Conditions. The Provider must give notice of any additional annual increase at least one (1) month before the start of the price increase.

6.3 Invoicing

The fee (containing the monthly subscription fee) and the fee for the Additions are invoiced in advance , unless expressly agreed otherwise. Additions made by the Customer during the term of the Agreement will be invoiced on a pro-rata basis from the actual time of addition.

Any other fees (for example, consultancy services) associated with the Agreement will be invoiced at the end of a calendar month. This means that after termination of the Agreement, in some cases the Customer still has to pay an amount in arrears.

6.4 Payment obligation

If it appears that a payment has not been received within the period specified on the invoice, the Provider will notify the Customer by sending a reminder. This reminder will also state the period by which the Customer is still able to comply with its payment obligation.

If it appears that after this new deadline the payment has still not been received, a formal letter of notice will be sent and access to the Web Application will be blocked by the Provider.

6.5 Unblocking

At the request of the Customer, access to the Web Application that has been blocked according to Article 6.4, can be reactivated within three (3) months in return for payment of the outstanding fees, plus an additional compensation according to Articles 6.6 and 6.7.

6.6 Commercial interest

If the Customer fails to fulfil its payment obligation under Article 6, or fails to fulfil it by the relevant deadline, it will be in default without any further notice of default being required.

The Customer is then liable for the applicable commercial interest for a month or part of a month, with effect from the date on which payment fell due.

6.7 Additional costs

All costs incurred by the Provider, both in and out of court, including attorneys’ fees, due to the fact that the Customer failed to fulfil its payment obligations are for the account of the Customer. The extra-judicial collection costs incurred by the Provider are fixed at a minimum 15% of the principal amount of the claim.

6.8 Payment in advance

In addition to the provisions set out in this Article 6 and Article 7, the Provider is entitled to immediately demand a payment in advance until the end of the (intended) duration of the Agreement from the Customer if the cases as referred to in Article 5.4 occur. This total fee is immediately due and payable.

Article 6.8 also applies if payment is not made by the Customer, after the Provider has followed the procedure as described in Article 6.4.

Article 7. Fee

7.1 Fee

The Customer pays a monthly fee for the Services, with the exception of consultancy services for which a fee is charged separately. This fee is determined in the Agreement. The fee will be paid to the Provider.

7.2 Start of the fee

The fee is payable from the time when the Agreement was formed according to Article 2.4, regardless of whether or not the Customer uses the Services.

7.3 Fee for consultancy services

The Provider will invoice the consultancy services fee after the consultancy services have finished; they must be paid according to Article 6.3.

Article 8. Obligations of the Provider

8.1 Backup

The Web Application runs in a third-party environment (Oracle). This third party is responsible for providing the backup.

8.2 Security

The Provider ensures that the data entered by the Customer via the Web Application are protected as well as is reasonably possible against loss, theft, unauthorised access and changes by non-Users.

8.3 Access to data

With the exception of the provisions set out in Articles 10.1 and 12.5, the Provider will not access data entered by the Customer via the Web Application and the Provider will not make data available to third parties (with the exception of subsidiaries of the Provider), unless the Provider is required to do so on the basis of the law, a regulation, court order, or by a decision of a public authority.

Article 9. Obligations and cooperation of the Customer

9.1 Bank account

The Customer must have a bank account with an (international) bank, registered with the local central bank.

9.2 Changes to the Customer’s details

The Customer will supply the Provider with all information and will cooperate fully, including supplying the Provider with accurate and up-to-date information regarding names and addresses and payment information, required by the Provider for continuation of the Services.

9.3 Usage rules

The Customer is obliged to comply with the usage rules as set out in Article 11.

9.4 Blocking access

If the Customer is in breach of its obligations arising from the Agreement and/or Terms and Conditions, the Provider is entitled to block the Customer’s access to and use of the Web Application without prior notice as set out in Article 6.4.

9.5 Work environment

The Customer is responsible for the operation of its hardware and software, the configuration, peripherals and internet connection required for using the Services.

The Customer ensures that its equipment and software meet the system requirements.

The Customer is responsible for taking the necessary measures to protect its equipment, software and telecommunications and internet connections against viruses, computer crimes and unauthorised use by third parties.

Article 10. Data

10.1 Storage

The data entered by the Customer via the Web Application are stored in a database managed by a third party engaged by the Provider.

10.2 Property

The Customer remains at all times the owner of the data it has entered.

10.3 Backup

The Customer must regularly make a backup via the Web Application of all the data entered via the Web Application and save this backup to a location outside the Web Application. The Provider is in no event liable for the costs of (restoring) damaged or lost data nor for (consequential) damage or lost profits of the Customer.

10.4 Re-activation

Up to three (3) months after the end of the Agreement, the Customer can request the Provider to re-activate the Agreement from the time when first payment for the re-activation fee has been received. After re-activation, the Customer has renewed access to its data as stored in the backup at the time of termination, as referred to in Article 8.1.

The Provider will not comply with the request referred to in Article 10.4 if the fee has not been paid.

10.5 Statutory retention period

The Customer must ensure adequate compliance with applicable statutory retention periods.

The Customer’s obligation concerns the administration(s) and the associated data entered via the Web Application. The Provider does not have a statutory retention period for the administration(s) and data entered by the Customer.

Article 11. Usage Rules

11.1 Damage

The Customer will not in any way hinder or cause damage to the Provider nor customers of the Provider when using the Services. The Customer is not allowed to carry out operations which can be assumed could cause damage to the systems of the Provider or customers of the Provider.

11.2 Applicable law

The Customer is not allowed to use the Services contrary to statutory provisions or the Terms and Conditions.

11.3 Responsibility

The Provider is not responsible for the content and accuracy of the information provided by the Customer via the Provider’s Web Application.

11.4 Data volume

The Customer will use the Services in such a way that the amount of stored information and realised volume of the data transport does not significantly differ from other Customer’s average use of the Services, as indicated by the Provider. If, in the Provider’s opinion, the Customer’s use differs significantly from the average use, the Provider will contact the Customer to agree specific terms with the Customer for the additional use. If the parties do not agree on these specific terms, the Provider is entitled to restrict the Customer’s use of the Web Application after giving prior notice.

Article 12. Support

12.1 Duration

The Customer is entitled to support for the duration of the Agreement.

12.2 Included in support

Support includes the right to consult the Documentation. In addition, questions can be submitted via the Web Application 24 hours a day. Furthermore, according to Article 12.4, the Customer is entitled to telephone support regarding the use and functioning of the Services during office hours (on weekdays from 08:30 hours to 17:30 hours).

12.3 Not included in support

Support does not include:

  1. services in respect of system configurations (design), hardware and networks;
  2. structural work such as defining layouts, reviews, annual reports, layout of algorithms, accounting issues, import definitions and links with third-party software;
  3. on-site support;
  4. expanding the functionality of the Web Application at the Customer’s request;
  5. converting files and/or restoring backup files;
  6. services with regard to external databases supplied by developers other than the Provider;
  7. configuration (design), training or other services not expressly described in the Agreement;
  8. supporting (operating) software supplied by developers other than the Provider, which also includes third-party software that can be launched through the Web Application;
  9. repairing files, whereby the cause cannot be attributed to the Web Application;
  10. providing products that have become newly available;
  11. supporting the internet connection;
  12. supporting in an environment that is not supported as per the System Requirements.

12.4 Users

Support may only be requested by a User.

The User is required to consult the applicable Documentation first and/or to submit questions via the Web Application before contacting the Provider for support.

12.5 Access to data

In the context of providing support, the Provider is entitled to access Customer data, as referred to in Article 10.

Article 13. Advice

13.1 Partners

Advisory services can be offered via partners selected by the Provider (such as, for example, those referred to in Article 12.3).

Article 14. Availability

14.1 Best endeavours

The Provider strives to ensure optimal availability of and access to the Web Application.

14.2 Maintenance

The Provider is entitled, without prior notice, to block access to the Web Application and (temporarily) block or limit the use of the Web Application, if this is necessary for the security and protection of the Services and associated data (storage), as well as for (preventive) maintenance or for making changes or improvements to one or more Services.

This does not entitle the Customer to any compensation from the Provider. The Provider will endeavour to keep the duration to a minimum and to inform the Customer in due time.

Article 15. Use of the Web Application

15.1 Login

The Provider allows the Customer access to the Web Application by providing Log-in Data that need to be entered in the log-in screen.

The Customer is responsible for the Log-in Data and will handle these carefully. The Log-in Data are not transferable and may not be used outside the Customer’s organisation.

Users are required to keep the Log-in Data completely confidential.

The Customer is responsible for every use of its Log-in Data. All User actions with respect to the Log-in Data are for account and risk of the Customer.

15.2 Access

The Web Application provides Users with exclusive access to information which relates to them, such as information on contacts, projects, inventory. The Web Application also provides general information to support the use of products supplied by the Provider.

The Customer guarantees that the Users will handle access to the Web Application and information obtained therefrom in a responsible manner, while the Customer also unconditionally assumes and/or accepts responsibility for any information entered or changed in the Web Application by Users.

15.3 Rights

The information made available by or on behalf of the Provider via the Web Application and/or the Website is given errors and omissions excepted, unless otherwise specified, and the Customer cannot derive any rights from such information.

15.4 Blocking

The Provider is entitled at all times, without giving reasons, to limit or block the Customer’s access to the Web Application for an indefinite period of time if there is any suspicion of misuse or other improper use.

Article 16. Intellectual property rights

16.1 Title

All copyrights, patents, registered trademarks, trade names, intellectual and industrial property rights and all similar rights with regard to the protection of (information regarding) the Web Application and Documentation are the exclusive property of the Provider or its licensor(s).

None of the provisions set out in the Agreement or the Terms and Conditions may be construed in such a manner that they result in a full or partial transfer of those rights to the User.

16.2 Changes made by the User

The User will not alter, delete or make unrecognisable any of the Provider’s indications of intellectual property rights on or in the Web Application or Documentation. The Customer is not allowed to use or register any trademark, design or domain name of the Provider or any corresponding name or sign anywhere in the world.

16.3 Third-party liability

The Provider shall indemnify the Customer against any damages and all costs and expenses the Customer is ordered to pay as a result of a legal claim brought by a third party in connection with an infringement or alleged infringement of valid patents, copyrights, trademarks or other third-party rights due to the Customer’s use according to the Agreement, the Terms and Conditions and the Documentation, the Web Application or any part thereof, provided that the Customer immediately notifies the Provider electronically, according to Article 23.2 of these Terms and Conditions, of such a legal claim on receiving notification of it, that the Customer allows the Provider, at its own discretion, to conduct a defence against the relevant claims and to reach a settlement and that the Customer, at the Provider’s first request, supplies all relevant information and any other assistance to the Provider.

16.3 Ban on use

If a legal ban of the Web Application’s use is imposed on the Customer because of an infringing act as referred to in Article 16.3 or if, in the Provider’s opinion, there is a risk that the Web Application will be the subject of a successful infringement action, the Provider is entitled, at its own discretion and cost:

  1. to obtain the right for the Customer to continue using the Web Application as provided for in these Terms and Conditions;
  2. to replace the Web Application, or adapt it in such a way that it no longer infringes, provided that its functionality remains substantially unchanged; or
  3. if the previous options (1) and (2) are not reasonably achievable – at the discretion of the Provider – to terminate the Agreement and/or these Terms and Conditions, as well as any rights granted in the Agreement and/or these Terms and Conditions with respect to the Web Application that is causing the infringement.

16.4 Liability in cases where the Customer has responsibility

In addition to the provisions in Article 16.3, the Provider, based on this Article, will not be liable vis-à-vis the Customer insofar as a claim relates to:

  1. use of the Web Application in connection with data, equipment or software not supplied by the Provider, whereby the Web Application per se does not cause an infringement nor could it otherwise be the subject of the claim;
  2. incorrect use of the Web Application or use in a manner not described in the Documentation;
  3. a change to the Web Application carried out by a (legal) person other than the Provider; or
  4. the carry out by the Provider of explicit instructions given by the Customer. The Customer shall indemnify the Provider against any claims as defined in points (1) to (4) of this Article.

16.5 Customer acceptance

The Customer acknowledges and accepts that the Provider’s full and exclusive liability for infringements of patents, copyrights, trademarks or other intellectual property rights is as set out in this Article 16 and Article 17.

16.6 Technical protection

The Provider is entitled to put in place and maintain technical measures to protect the (intellectual property rights on the) Web Application and the Documentation and in view of any restrictions on use of the Web Application that have been agreed.

The Customer will not circumvent or delete such technical measures.

16.7 Inspection

The Provider can carry out a check and/or inspection (or have it carried out) in order to verify that the Customer complies with the terms of the Agreement and the Terms and Conditions. This check and/or inspection is carried out during normal working hours, in such a way that the Customer’s business activities are not unreasonably impeded. Such an inspection is carried out by an independent expert selected and engaged by the Provider and the Customer is obliged to supply this expert with the information, support and access to its buildings and systems that are reasonably required for the expert to carry out his/her inspection task properly. The independent expert will submit a summary report showing his/her findings regarding the inspection of the reports submitted by the Customer and the Customer’s compliance with the Agreement and the Terms and Conditions. The independent expert does not supply the Provider with any other information than that which has come to his knowledge during the check and/or inspection.

The costs of the inspection are for the Provider’s account, unless the inspection shows that the Customer does not comply with the terms of the Agreement or the Terms and Conditions, in which case the costs are for the Customer’s account.

Article 17. Liability

17.1 Establishing liability

The Provider, its Employees, its legal representatives and third parties it has engaged for the performance of its obligations, can only be held liable for direct property damage or physical injury resulting from intent or gross negligence on the part of the Provider, its Employees, its legal representatives and third parties it has engaged.

Insofar as legal provisions exclude a limitation of liability for damage resulting from intent or gross negligence, the Provider, its Employees, its legal representatives and third parties it has engaged are only liable for damage as described in the following paragraphs of Article 17.

17.2 Amounts

In the event of personal injury, regardless of whether this injury results in death, the Provider’s liability is in any case limited to an amount of EUR 5,000 for each and every injurious event.

In the event of property damage, the Provider’s liability is in any case limited to EUR 2,000 for each and every injurious event. In both cases, a series of related events is considered to be one event.

17.3 Exclusion from liability

  1. The Provider will never be liable for indirect damages including, but not limited to: lost profits, lost savings, loss of goodwill, loss due to business interruption, damage resulting from claims brought by the Customer’s customers, corruption or loss of data, damage connected to the use of third-party goods, materials or software prescribed by the Customer to the Provider, damage connected to the Customer engaging suppliers prescribed by the Provider, consequential damage, regardless of the nature of the transaction (breach of contract, unlawful act or otherwise), even if the Provider has been informed of the possibility that this damage might occur.
  2. The Provider is never liable for any damage, of any kind, suffered by the Customer relating to the Web Application not being available or not fully being available.
  3. The Provider is never liable for any damage, of any kind, suffered by the Customer relating to: the functioning/non-functioning of software belonging to the Customer or to third parties; the functioning/non-functioning of equipment belonging to the Customer, the Provider or third parties; or the functioning/non-functioning of internet connections of the Customer, the Provider or third parties.
  4. The Provider does not accept liability for the incorrect, incomplete or late transmission or receipt of data that has been placed with the Provider via the Web Application.

17.4 Limitation of liability

Insofar as the Provider cannot rely on any liability exclusions or limitations as defined in this Article, its liability is at all times limited per event to an amount of 50% of all amounts invoiced to the Customer in the 6 (six) months prior to its default, less any credit notes issued to the Customer by the Provider in that period. Insofar as the Provider cannot rely on the limitations as mentioned in the provisions of Article 17.4 above, the Provider’s liability is in any event limited to EUR 1,000.

17.5 Customer acceptance

  1. The Customer acknowledges and accepts that the fee for the Services is determined according to the limitation of liability as referred to in this Article.
  2. The Customer acknowledges and accepts that the Web Application can never be perfect or 100% free of Shortcomings and that not all Shortcomings will be or can be remedied.
  3. The Customer shall indemnify the Provider against third-party claims arising out of or relating to this Agreement or the Terms and Conditions, unless the Customer can assert these claims against the Provider, with due observance of the provisions of this Article, as if the Customer had itself suffered the damage.

17.6 Notice of default

  1. The Provider’s liability for attributable shortcomings in the fulfilment of an agreement with the Customer, in all cases only arises if the Customer immediately sends to the Provider a proper notice of default electronically, according to Article 24.2 of these Terms and Conditions, whereby a reasonable period of time is given to the Provider to properly fulfil its obligations, and if, after that period of time, the Provider is still in default.

The notice of default must include a full and detailed description of the shortcoming, so that the Provider can respond adequately.

  1. Any right to damages will expire in any case if the Customer does not take any measures as follows:
    1. to limit the damage immediately after it has occurred;
    2. to prevent (other or additional) damage; or
    3. to inform the Provider as soon as reasonably possible about the damage and supply the Provider with all relevant information.

17.7 Term

Any claim for damages against the Provider expires after 24 months after the claim arises.

Article 18. Privacy

18.1 Data controller

Insofar as the Customer uses the Web Application to process personal data, the Customer will be the data controller as mentioned in the General Data Protection Regulation. The Customer guarantees that it will process the personal data according to this European regulation.

The Provider will only process the personal data on behalf of the Customer and according to the instructions of the Customer, including the provisions set out in the Agreement.

18.2 Data Processing Agreement

A data processing agreement can be requested via the channels listed in Article 26.

Article 19. Confidentiality

19.1 Disclosure

None of the parties will disclose or use any Confidential Information concerning the other party for a purpose other than for which the Confidential Information was obtained.

19.2 Compliance requirement

Both parties will take all reasonable precautionary measures to ensure that they comply with their confidentiality obligations. None of the provisions contained in this Article will impose any limitation on the receiving party in respect of information or data, whether or not identical or similar to the information or data contained in the Confidential Information, in the following circumstances:

  1. if the information or data were already in legitimate possession of the receiving party before it was received from the disclosing party;
  2. if the information or data were independently developed by the receiving party without using the information or data from the disclosing party;
  3. if the information or data were generally known or were made publicly available, other than by an act or omission on the part of the receiving party; or
  4. if the information or data were disclosed to the receiving party by a third party, without breaching a confidentiality obligation towards the disclosing party.

19.3 Legal obligation

The confidentiality obligations in this Article do not apply if the Confidential Information of the other party must be disclosed pursuant to the law, a regulation or court order, or by decision of a public authority, provided that the receiving party makes every effort to limit the extent of the disclosure and informs the party concerned in advance of such a proposed disclosure.

19.4 Third parties

The parties guarantee that their Employees and third parties engaged by them comply with the confidentiality obligations described in this Article.

Article 20. Delivery deadlines

20.1 Delivery

All delivery deadlines are set by the Provider to the best of its knowledge and are taken into account as much as possible. As soon as the Provider knows of a circumstance that may get in the way of timely delivery, the Provider will consult with the Customer about a new delivery deadline. The Customer is not entitled to damages in connection with a late delivery.

The Provider is at all times entitled to make partial deliveries.

Article 21. Exclusion

21.1 Exclusion clause

Except as expressly provided for in the Agreement, the Provider does not give any other or further guarantees, commitments or conditions in relation to the Services. The Provider hereby rejects all other guarantees, commitments or conditions, either explicit, implicit or based on the law (including but not limited to guarantees or conditions regarding merchantability, non-infringement of other rights or suitability for a particular purpose) in relation to the Services.

21.2 Outside the Netherlands

In some countries and/or states, it is not permitted to exclude implicit guarantees, as a result of which the exclusion included in Article 21.1 may not apply to all Customers. In such cases, the minimum allowable guarantee according to local legislation will apply.

Article 22. Force majeure

22.1 Compliance with the obligation

A party is not obliged to fulfil a contractual obligation in case of force majeure, with the exception of a payment obligation arising from the Agreement or the Terms and Conditions. Force majeure includes but is not limited to: military action, government action, weather conditions, breakdown or disruption of telecommunication and internet connections, delay or shortcomings in the performance of obligations by the Provider’s suppliers, transport problems and strikes.

22.2 Already fulfilled obligation

If the Provider has already partially fulfilled its obligation at the time of the force majeure, or can only partly meet its obligations because of the force majeure, it is entitled to invoice the partial performance and/or the deliverable part of the performance separately; in this case, the other party or the Customer is obliged to pay this invoice as if it were a separate Agreement.

Article 23. Third-party software components

23.1 Terms and Conditions

If and insofar as the Web Application includes third party software, the terms and conditions applicable between the Provider and the relevant third party will also apply between the Provider and the Customer. The terms and conditions of this software can be viewed online at: https://cloud.oracle.com.

Article 24. Other clauses

24.1 Outsourcing

The Provider is entitled to transfer or outsource its rights or obligations under the Terms and Conditions or the Agreement to a subsidiary or another third party engaged for that purpose. In the case of a transfer or outsourcing, these Terms and Conditions continue to apply to the Customer (Agreement with the Customer).

24.2 Communication

Any notice or other communication in connection with the Agreement or the Terms and Conditions will be sent via the Web Application or electronically (e-mail) and addressed to the other party as specified in the Agreement.

24.3 Applicable law

If any clause of the Agreement or from these Terms and Conditions are, wholly or partly, null and void, voidable or in violation of the law, it will be deemed to stand alone and not to be applicable.

In such cases, the parties will enter into consultation to replace the relevant clause with a clause of similar scope that is not, wholly or partly, null and void, voidable or in violation of the law. The other clauses of the Agreement or these Terms and Conditions remain in full force and effect.

24.4 Waiver of rights

Delay or default by the Provider in relation to claiming any of the Provider’s rights vis-à-vis the Customer based on the Agreement or the Terms and Conditions, will never constitute a waiver of any rights. If a party waives a right it is entitled to under the Agreement or the Terms and Conditions, this does not mean that this party will or must also waive this right or other rights in a subsequent case.

24.5 Arrangements

The Agreement and the Terms and Conditions fully reflect what has been agreed between the parties with regard to the Services and replace all prior and simultaneous, explicit or implicit arrangements, agreements, declarations and guarantees, both written and oral. In addition to the provisions set out in Articles 2.2 and 6.2, the Agreement can only be amended by means of an electronically established agreement between the Customer and the Provider.

24.6 Terms and Conditions of the Customer

The applicability of all or part of any Terms and Conditions of Purchase or any other Terms and Conditions of the Customer is hereby expressly rejected, unless they have been expressly accepted by the Provider.

24.7 Communication

  1. The version of communication saved by the Provider will constitute proof of the relevant communication, unless proven otherwise by the Customer.
  2. Electronic communication is deemed to have been received on the day it was sent, unless the contrary is proven by the recipient. If the communication has not been received due to delivery and/or accessibility problems relating to the Customer’s e-mail box, this is at the risk of the Customer, even if the e-mail box is held with a third party.

24.8 Fee for exceeding the limit

If the Customer and the Provider have agreed a limitation in the Agreement with regard to the number and volume of the transactions, changes, or delivered documents registered by the Customer, whether or not per unit of time, in case of exceeding this limit, the Provider may invoice the exceeded numbers or volume subsequently at the agreed rate. In order to determine whether the number or volume agreed by the parties has been exceeded, the Provider will provide an overview of the number of registered Customer transactions, changes or delivered documents by means of reporting. The Provider’s record-keeping system is regarded as full proof, unless proven otherwise by Customer.

The Provider will observe the provisions set out in Article 8.3 of the Terms and Conditions when drawing up the necessary reports.

Article 25. Applicable law and disputes

25.1 Dutch law

These Terms and Conditions and the Agreement are exclusively governed by the law of the Netherlands. The provisions of the Vienna Convention (‘the United Nations Convention on Contracts for the International Sale of Goods’ (CISG)) shall not apply.

If the Agreement is entered into with a Customer and the Services are delivered to a Customer who is located outside the Netherlands, and local legislation excludes the applicability of the law of the Netherlands, local legislation will apply.

25.2 Disputes

Any dispute, disagreements or claims arising from or in connection with the Agreement or these Terms and Conditions, or the non-compliance, termination or invalidity thereof, will be submitted to the competent court in Amsterdam.

If the Agreement is entered into with a Customer and the Services are delivered to a Customer who is located outside the Netherlands and this condition is not applicable under local law, then all disputes, disagreements, or claims arising from or related to the Agreement or these Terms and Conditions, or the non-compliance, termination or invalidity thereof, will be submitted to the competent court in the capital of the country where the Agreement was concluded and the Services supplied to the Customer.

Article 26. Contact

For more information or to contact the Provider, the contact details are as follows:

 

E-mail:    info@pact-online.com

 

Address: PACT Online BV

Statenhoek 15

1506 VL Zaandam

 

 

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