GENERAL TERMS AND CONDITIONS OF VISUALFABRIQ REVENUE MANAGEMENT B.V.
April 15, 2020
1.1. VisualFabriq Revenue Management B.V. (“VF”) is a rightful acquirer of the right to sublicense the standard and custom-made software (the “Software”). These general terms and conditions (“General Conditions”) govern the access and use of the Software and the information, models, graphics, results, and other data available therein (“Information”) provided by VF and/or its affiliated companies (collectively “VF”) and shall apply to any contracts and/or legal relations between VF and any third party (“Customer”).
1.2. In case of deviation from these General Conditions, such deviations shall be agreed in writing prior to the conclusion of the agreement with the Customer. The applicability of any terms and conditions of the Customer is expressly excluded.
2. Provision of access; restrictions on use
2.1. By entering into an agreement with VF for the provision of Software (“Agreement”), the Customer is granted a non-exclusive, non-transferable, limited right to access and use the Software made available to Customer via http://app.visualfabriq.com subject to the terms contained in the Agreement and these General Conditions. The Customer shall be entitled to provide access to its user rights to third parties (“Third Parties” or “Third Party”) after written approval of VF and subject to the following conditions: (i) the Customer represents and warrants that the Third Parties are bound by these General Conditions, (ii) VF can withdraw this permission in the event of any breach by the Third Party of the General Conditions and (iii) VF has the right to claim full damages from the Customer in the event of any such breach by such Third Party.
2.2. VF reserves the right to enter into an Agreement with another Customer with respect to the Software. Under no circumstances any form of exclusivity can be obtained by the Customer by entering into an Agreement with VF.
2.3. VF provides the Customer with a SaaS-service (SaaS being the remote placing and maintaining at the disposal of the Customer of Software by VF via the internet or another network, without providing the Customer with a physical data medium on which the Software in question is stored). VF shall provide its software service (“Service”) on the basis of a best efforts obligation, unless and in so far as VF has explicitly undertaken in the written agreement to achieve a specific result and the result in question is sufficiently determined. The applicability of Article 7:404 and 7:407(2) Dutch Civil Code is expressly excluded.
2.4. Only the Customer’s employees, agency personnel, independent contractors and/or directors whom the Customer has identified to VF for the access and use of the Software (“Authorized Users”) are eligible to access and use the Software and receive a personal username and password (and possibly single sing on) for entering VF’s website (“Account”). The Software is deemed to be delivered and accepted upon VF providing to Customer the username and password. The Customer agrees that each Account may only be used by the Authorized User to whom VF assigns it and that the Account may not be shared with or used by any other person, without the prior written approval of VF. The Customer is solely responsible for the confidentiality and use of its Account(s). In no event will VF be liable for any loss of Customer’s data or other claims following from unauthorized access to the Customer’s Account(s).
2.5. The Customer will promptly notify VF to deactivate an Authorized User’s Account if an Authorized User is no longer an employee or director of the Customer, or the Customer otherwise wishes to terminate the Authorized User’s access to the Software. The Customer will use reasonable commercial efforts to prevent unauthorized use of Accounts assigned to the Customer’s Authorized Users and will promptly notify VF in case of any (suspected) lost, stolen or misused Account.
2.6. Except as specifically provided in the Agreement and in these General Conditions, the Customer is prohibited from copying, reproducing, amending, reverse engineering, distributing, (commercially) using or exploiting the Information retrieved from the Software. Under no circumstances may the Customer offer any part of the Software or Information for commercial resale or redistribution, or use the Software and/or the Information to (direct or indirect) compete with the business of VF in any matter whatsoever.
2.7. The Customer will not, without prior written consent of VF, encourage employees or (sub)contractors who have or have had an (employment)agreement with VF, to terminate its (employment)agreement and/or solicit, offer employment or hire such employees or (sub) contractors during the term of the Agreement and for a period of two (2) years thereafter.
2.8. VF shall perform the Service to the best of its ability. However, due to limitations of the agreed scope of the Software or possible inaccuracies in the data and/or information in (computer) databases and/or official registers, or in the information provided by the Customer, VF cannot guarantee the completeness and accuracy of the Information or any results or conclusions derived from the Software.
2.9. The Software, Information and feature functionality within the Software may be enhanced, updated or otherwise amended. VF may temporarily suspend the Service in full or in part for the purpose of carrying out maintenance. VF shall not suspend the Service for longer than necessary and shall arrange for this to take place outside of office hours where possible and, according to the circumstances, shall notify the Customer in advance.
3. Fees and payment
3.1. Customer shall pay to VF the applicable subscription fee and other fees for the Software and/or Service, as set forth in the applicable Agreement (collectively “Fees”). Fees for additional services may also apply, if agreed in writing. Except as specifically set forth in the Agreement, all Fees are non-refundable. VF shall charge its Fees to the Customer by advance, interim and/or final invoices, at the choice of VF. VF reserves the right to invoice Customer form any affiliate VF prefers.
3.2. All prices and payments under the Agreement shall be in Euros. VF’s Fees are
exclusive of VAT or any other taxes, duties or tariffs, and shall be yearly indexed based on the Dutch Consumer Price Index.
3.3. All invoices shall be paid to VF, without discount, set-off or the right to suspend, within thirty (30) days of the date of invoice. If one or more advance invoices are sent, VF shall only start to execute the Agreement when advance invoices have been settled in full.
3.4. If the Customer fails to pay timely, the Customer shall owe the statutory commercial interest as per Article 6:119a Dutch Civil Code, without the need for warning or default notice. In addition, the Customer shall owe all costs reasonably incurred by VF in ascertaining loss and liability, and in obtaining satisfaction by extrajudicial means. In case of late payment, VF shall be entitled to suspend the Software for the Customer with immediate effect.
4. Intellectual property rights
4.1. The Customer acknowledges and agrees that all (future) right, title, and interest (including all copyrights, patents, trademarks, other intellectual property rights related to the Software, source codes, products, programs, knowhow, concepts, techniques, inventions and designs) in the Software and Information in any medium, are deemed the sole and exclusive property of VF. Neither the Customer nor any of the Authorized Users acquire any proprietary interest in the Software or Information, and nothing in the Agreement shall constitute an assignment of any such rights.
4.2. The Customer and the Customer’s Authorized Users may not copy, modify, reverse engineer, decompile, dissemble, disclose or use the Software and/or the Information in any way that infringes the (intellectual property) rights or proprietary interests of VF or any third party. The Customer’s use of the Software and Information must comply with all applicable laws and regulations.
5. Customer Data
5.1. The Customer agrees that it is solely responsible for the accuracy, quality, completeness and legality of all content, (personal) data, information and other materials collected, generated and/or inserted by the Customer (“Customer Data”) in the Software.
5.2. The Customer guarantees VF that the Customer Data is not illegal and that the processing of the Customer Data, including any personal data, does not infringe the (intellectual property) rights of third parties or is otherwise unlawful under any applicable law or regulation. The Customer is fully and exclusively responsible for ensuring compliance with the applicable legal obligations in relation to the protection of personal data and shall indemnify VF against claims by third parties, of whatever nature, in relation to the processing of Customer Data.
6.1. The Customer shall observe total confidentiality concerning any communication, Information, trade secrets or any other data of a confidential nature in the context of the Software or performance of the Agreement (“Confidential Information”). Customer acknowledges that the Software and its functionality, techniques, processes and source code constitute Confidential Information of VF.
6.2. The Customer shall report any breach of this duty of confidentiality as soon as possible after Customer knows of such breach and shall take such actions as reasonably requested by VF to prevent and/or cure such breaches. Furthermore, parties shall endeavor to observe secrecy with regard to the business affairs of the other party. They shall not disclose any aspects of their relationship to third parties, unless agreed otherwise.
6.3. The obligations set forth herein will not apply to any information that is or becomes generally available to the public, which is not the result of a breach of the Agreement. A disclosure of Confidential Information required by law will not be considered to be a breach of the Agreement, provided that the other party receives prompt written notice thereof.
7. Force majeure
7.1. The Customer shall in any event have no claim for damage and VF shall not be bound to meet any obligation if prevented from doing so as a consequence of force majeure (in Dutch: overmacht), including but not limited to market conditions, forces of nature, pandemic, war, acts of terrorism, riots, civil disturbances, strikes, employment difficulties whether direct or indirect, any failure of performance not attributable to fault by, or for the account of VF, or any cause whatsoever which is not within the reasonable control of VF. Failure of any suppliers of VF and/or provision of inaccurate data by the Customer shall, in any case, constitute force majeure.
7.2. In case of non-performance of the Agreement due to force majeure, VF shall be entitled to suspend fulfillment of its obligations for a maximum of thirty (30) days, or to cancel the Agreement, in whole or in part, without judicial involvement and without any obligation for VF to pay any compensation, investments, reimbursement and/or damages.
8.1. If the Customer fails to meet any of its obligations under the Agreement, and in case of (filing of) bankruptcy, stay of payments, placement in receivership or closure or winding up of the Customer’s business, VF shall be entitled to terminate the Agreement, in whole or in part, or to suspend further performance thereof, without any liability to pay compensation and without prejudice VF’s further rights. All of VF’s claims against the Customer shall, in such case, fall due immediately.
8.2. The Agreement may be terminated by VF in any event and at all times, taking into account a six (6) month’s written notice to the Customer.
8.3. VF shall have the right to terminate the Agreement immediately by written notice to the Customer for breach of any provision of the Agreement provided, however, that the Customer shall have thirty (30) days after the date of written notice of default in which to remedy such breach. However, the payment term of Article 4.3 is to be considered as a strict deadline (in Dutch: fatale termijn) and the Customer will be in default if it fails to pay the invoice in time, without the need for notice of default.
8.4. Upon the termination or expiration of the Agreement: (a) the Customer shall promptly pay in full all outstanding payments to VF (but in any event, no later than ten (10) days following the date on which termination or expiration is effective); (b) all (sub)licenses granted hereunder (if any) and all rights of Third Parties will immediately terminate and the Customer shall immediately cease and shall cause Third Parties to cease all use of the related Software; (c) the Customer shall remove (or shall permit VF to remove) all copies of the Software, Information and Accounts from its computer systems and shall return or destroy, at VF’s option, all such copies; and (d) the Customer shall promptly return to VF all Confidential Information (except Customer Data) in its possession or control, without withholding any copies thereof.
8.5. Upon termination, dissolution or expiration of the Agreement for any reason, VF shall not be liable to Customer for any compensation, damages, investments, reimbursements, loss of prospective or anticipated profits of the Customer.
8.6. All obligations of the Agreement relating to intellectual property rights, confidentiality, data protection, proprietary information and termination shall survive any termination or expiration of the Agreement.
9.1. VF shall solely be liable for failures attributable to it in the performance of its activities. The burden of proof in respect of the liability of VF shall rest with the Customer.
9.2. VF has taken out liability insurance to cover damages as a result of professional errors by employees/business partners of VF. The maximum coverage under this insurance is € 2.500.000 per event and € 5.000.000 per calendar year (for all insurance categories together). In no event will VF’s aggregate liability arising out of, relating to, resulting from, or in connection with the General Condition and Agreement, whether for breach of contract, tort, any obligation to undo, any obligation to indemnify, or otherwise, exceed the amount actually paid out under VF’s applicable insurance for such liability; provided however, that for liability which is not covered by VF’s insurance, VF’s liability will not exceed five hundred thousand euro (€ 500.000) per calendar year. VF shall not be liable, whether in contract or tort (including negligence) or otherwise, for any loss of profit or anticipated profit; loss of revenue or income; diminution of goodwill; or any indirect or consequential loss of whatever nature.
9.3. The Customer cannot invoke any rights, including the right to claim damages, relating to a failure by VF in the performance of its obligations, if the Customer has not filed a complaint with VF within ten (10) days after such failure has become known or could have reasonably become known to it. The right to claim damages, as well as any other rights of the Customer in connection with a failure in the performance of the obligations of VF, will in any event expire after six (6) months, to be counted from the date on which the event occurred that directly or indirectly caused the damage and for which VF is liable.
10.1. If any provision of the Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree that any invalid provision will be deemed to be restated so as to be enforceable to the maximum extent permissible under law consistent with the original intent and economic terms of the invalid provision.
11.1. Customer cannot indirectly or directly transfer or assign any rights under the Agreement, in whole or part, without the prior written consent of VF.
12. Governing law and jurisdiction
12.1. The Agreement and General Conditions are governed by Dutch law.
12.2. All disputes arising in connection with the Agreement or the General Conditions, including disputes regarding its existence and validity, shall be subject to the exclusive jurisdiction and venue of the competent judge of the Amsterdam district court (the Netherlands).