ARTICLE 1 – DEFINITIONS
The following words have the following meaning in these TrackOnline Terms:
a. ‘Client’: the natural person or legal entity who concludes or concluded an Agreement with BEXTER;
b. ‘Client Data’: all data that Client enters into or is entered into on behalf of Client, in TrackOnline;
c. ‘BEXTER’: BEXTER B.V., registered at the Chamber of Commerce under number 27253802 and having its office at Papsouwselaan 119T in Delft, the Netherlands;
d. ‘Corrective Maintenance’: the tracing and repairing by BEXTER, with commercially reasonably efforts, of Errors;
e. ‘Error:’ a failure in TrackOnline that significantly prevents TrackOnline from functioning in accordance with the accompanying documentation. The lack of certain functionality in a new version of TrackOnline that was present in an earlier version is not considered to be an Error;
f. ‘User’: Client and/or an Employee of Client who uses TrackOnline;
g. ‘Log-In Data: usernames, passwords, tokens or other codes exclusively intended for the User to gain access to TrackOnline;
h. ‘Log-In Procedure’: the procedure prescribed by BEXTER which Client c.q. User must follow in order to gain access to TrackOnline;
i. ‘Employee’: an employee of Client and/or BEXTER and/or a natural person or legal entity authorized to perform work for or under the responsibility of Client or BEXTER;
j. ‘Agreement’: the agreement between BEXTER and Client which describe the rights and obligations regarding the use of TrackOnline and any related services, including these Terms and Conditions;
k. ‘Party’: BEXTER and/or Client;
l. ‘Preventive Maintenance: on its own initiative, with commercially reasonably efforts, BEXTER takes appropriate measures (both preventive and corrective) to ensure that TrackOnline will operate during the term of the Agreement;
m. ‘System Requirements’: the minimum requirements set for Client’s hardware and software for a proper use of TrackOnline;
n. ‘TrackOnline’: the software as described in the Agreement that BEXTER makes and keeps available to Client ‘remotely’ via Internet or another network, without providing Client with a physical medium with the concerning software;
o. ‘Innovative Maintenance’: the provision of new versions of TrackOnline, at the discretion of BEXTER;
p. ‘Terms & Conditions’: these TrackOnline Terms and Conditions
q. ‘Work Days’: Monday to Friday, with the exception of official public holidays in the Netherlands;
r. ‘Website’: the website of BEXTER.
ARTICLE 2 – APPLICABILITY
2.1 These Terms & Conditions apply to the Agreement and to all negotiations, offers and to all agreements with regard to TrackOnline and related services, unless Parties explicitly agree otherwise in writing.
2.2 The application of any purchase conditions or other terms and conditions of Client is explicitly rejected.
2.3 BEXTER is entitled to unilaterally change the Terms & Conditions. Such changes will be announced via the Website or in another manner, where possible 2 (two) months before the changes come into effect. Client is entitled to terminate the Agreement within 2 (two) weeks after BEXTER has announced the changes to the Terms & Conditions if the changes are material and/or unreasonable onerous for Client. The Agreement will then terminate at the date the changes come into effect. Such termination will not result in a reimbursement of any fee to Client.
2.4 The Agreement fully reflects everything that has been agreed between the Parties and replaces all earlier and concurrent, explicit or implied agreements, contracts, declarations and guarantees, both written and verbal.
With the exception of the provisions in articles 2.3 and 5.3 changes and additions to the Agreement are only valid if agreed by both Parties in writing.
2.5 If any provision in the Terms & Conditions and/or the Agreement is void or voidable, the other provisions of the Terms & Conditions and/or Agreement remain in full force and effect. BEXTER and Client will then consult with each other in order to replace the void or voidable provision by a new provision, while the purpose and intent of the void or voidable provision will be observed to the extent possible.
2.6 Delays or omission on the part of a Party in respect of enforcing any rights a Party has against the other Party pursuant to the Agreement never constitutes a waiver of BEXTER’s right. If a party waives any right it has pursuant to the Agreement this does not mean that the party in question will or can be obliged to waive this right or any other rights in a subsequent matter.
ARTICLE 3 – OFFERS
All offers and other statements of BEXTER with regard to TrackOnline and related services are not binding and revocable, unless otherwise indicated by BEXTER.
ARTICLE 4 –AGREEMENT, START, TERM AND TERMINATION
4.1 The Agreement is deemed to take effect on the date BEXTER provides Client with a confirmation of the order and is entered into for the term of 1 (one) month, unless the Parties explicitly agree otherwise in the Agreement. After expiry of the initial term, the Agreement will be tacitly renewed for subsequent periods of 1 (one) month each, unless either BEXTER and/or Client terminates the Agreement in writing no later than 1 (one) month prior to the end of the then current term.
4.2 The term of the Agreement will not change as a result of Client adding additional orders to TrackOnline under the same Agreement.
4.3 Termination of a part of the Agreement is possible with regard to one or more Users and/or administrations and Client clearly states in writing which Users and/or administrations it regards. The notice period defined in article 4.1 applies.
4.4 BEXTER and Client are both entitled to dissolve the Agreement due to an attributable shortcoming in the fulfillment of the Agreement if the other party upon written notice and a reasonable period for remedying being provided, still fails to meet essential obligations of the Agreement.
Payment obligations of Client and all other obligations to cooperate by Client or a third party engaged by Client shall be construed as essential obligation under the Agreement.
4.5 BEXTER and Client are both entitled to terminate the Agreement, wholly or in part, with immediate effect without a notice of default being required if:
- the other party is granted suspension;
- bankruptcy is requested for the other party;
- the company of the other party is being liquidated or terminated other than for reason of reorganization or merger;
- there is a change of control in the company of Client.
In case of such termination BEXTER is not obliged to reimburse any amounts already received or to pay damages.
In case of bankruptcy of Client the right to use TrackOnline will cease by operation of law.
4.6 Upon termination of the Agreement, for any reason, the right of use ceases and Client will immediately cease and not resume using TrackOnline. Also Client has no access anymore to the data in TrackOnline.
4.7 Termination of the Agreement shall not relieve Client of existing obligations to pay fees or other sums to BEXTER, nor is Client entitled to any refund of fees or other amounts paid in respect thereof. BEXTER is in no case obliged to pay damages as a result of the termination as defined in Articles 4.1, 4.3 and 4.5.
4.8 Upon termination of the Agreement, Client can, until the last day of the Agreement export Client Data to an Excel file. Upon termination of the Agreement Client will cease using TrackOnline immediately and permanently and will no longer have access to TrackOnline and its data.
ARTICLE 5 – FEE AND PAYMENT
5.1 Client will pay BEXTER a monthly fee as defined in the Agreement for the use and support of TrackOnline as described in the Agreement. The fee is payable even if, for any reason, Client is does not use TrackOnline (any more).
All fees payable under the Agreement are independent of any applicable fees for consultancy services (Article 12), which will be charged separately.
Additional orders by Client during the term of the Agreement will be invoiced ‘pro rata’ from the moment of confirmation and processing of the additional order by BEXTER.
5.2 All prices are exclusive of VAT and of any other government levies. Unless otherwise agreed, all prices are in Euros and Client will make all payments in Euros.
5.3 BEXTER has the right to adjust the fee on an annual basis based on the CBS (Dutch Central Statistics Bureau) Consumer Price Index figure (series: all households 2015=100). The new fee will apply 3 (three) months after the announcement of the new prices. Client agrees to such price changes. Any price increases that exceed the aforementioned indexation must be mutually agreed upon in writing between BEXTER and Client in order to apply.
5.4 Payment of the fee will take place by means of direct debit for which Client will grant authorization, unless BEXTER and Client agree a different payment method in the Agreement. When direct debiting is not possible, the fee charged must be paid within 30 days from the invoice date.
5.5 Client has the right to suspend payment of a disputed invoice from BEXTER, but only for and to the disputed amount, provided that the complaint about the invoice is submitted by Client before the due date of the invoice.
5.6 If the payable fee cannot be debited automatically and Client does not wholly or partially pay the fee or does not pay in time, even after Client was given a reasonable time to pay (and Client is therefore in default), the following applies:
a. BEXTER is entitled to limit or entirely block access to TrackOnline until full payment is received. During the time of limitation or blockage of the access to TrackOnline, Client remains owing the agreed fee to BEXTER;
b. Client owes BEXTER on the outstanding amount an interest of 1.5% per month or part thereof without any further announcement being required
5.7 Per request of Client access to TrackOnline that was blocked pursuant to article5.6 sub a, can be reactivated within 3 (three) months by payment of the outstanding fees plus an extra fee determined by BEXTER.
5.8 All costs incurred by BEXTER, both judicial and extrajudicial, as a result of Client not meeting its payment obligations towards BEXTER, will be at the expense of Client.
ARTICLE 6 – RIGHT OF USE
6.1 At the conclusion of the Agreement the non-exclusive right arises for Client to use TrackOnline and the accompanying user documentation during the term of the Agreement for its own internal operations, in accordance with the provisions in the Agreement and in these Terms & Conditions.
6.2 The license to use is limited to the number of Users and administrations as defined in the Agreement and any additional orders under the same Agreement. Client may only use TrackOnline within its own organization. TrackOnline may not be used for the execution of assignments from third parties, unless the parties have made different agreements in writing.
6.3 Client will not in any way cause any inconvenience or damage to BEXTER or its clients in the use of TrackOnline, all to the opinion of BEXTER. Client shall not perform any acts which may be assumed to cause damage to the systems of BEXTER or its clients.
6.4 Client will not use TrackOnline in violation of statutory provisions or of the Terms & Conditions.
6.5 Client is responsible for the content and the correctness of the data Client places with BEXTER via TrackOnline.
6.6 Client will use TrackOnline is such manner that the amount of data stored and the data traffic realized does not in large agree deviate from the average use of TrackOnline by other Clients. If Client’s use differs largely on the average usage, BEXTER and Client will make agreements with regard to the additional use.
6.7 BEXTER may, at its discretion, make adjustments to TrackOnline. BEXTER will inform Client in good time of any modifications made to the extent that they are relevant for the use of TrackOnline.
ARTICLE 7 LOGIN PROCEDURE
7.1 Client and Users will get access to TrackOnline via the Login Procedure, only by using the login details provided by BEXTER to Client. BEXTER has the right to modify the Login Procedure and shall notify Client thereof in due time.
7.2 Client is responsible for Login Data, will treat the Login Data with care and will ensure that Users handle the Login Data with care. The Login Data are personal for each individual User and may not be shared with or transferred to another party or person that may or may not be part of the organization of Client. Client and Users are required to keep the Login Data secret. Client is responsible and liable for any use of the Login Data by Client, Employees of Client and Users. Moreover, all actions of the Users within this framework are at the expense and risk of Client. BEXTER does not accept any liability.
ARTICLE 8 – RULES OF USE
8.1 Client will use TrackOnline only in accordance with the provisions of the Agreement, the Terms & Conditions and applicable laws and regulations.
8.2 Client warrants that Users will use their access to TrackOnline and the information obtained therefrom in a responsible manner. Client unconditionally accepts the ultimate responsibility of any information added or modified through TrackOnline.
8.3 Client is not entitled to:
a. Use or attempt to use TrackOnline for any illegal or unlawful purpose and/or purpose of publication or other dissemination of material offensive, defamatory or infringing on intellectual property rights belonging to third parties;
b. (try) to use TrackOnline in a way that the scope of TrackOnline and/or its availability for and/or the use by other users authorized by TrackOnline, is restricted or interferes therein;
c. (try to) get access to whatever part of TrackOnline for which Client is not authorized and/or to get access to data that is held within TrackOnline or accessible via TrackOnline, with the exception of data that Client has entered with data that BEXTER makes available publicly to all users in or via TrackOnline;
d. (try to) get access to whatever part of TrackOnline via automated means (like scrape, crawl or spider);
e. to save, distribute, upload or send any virus, Trojan horse and/or worm during Client’s use of TrackOnline;
f. use any form of automated integration other than via links provided by BEXTER;
g. to reverse engineer, decompile, copy, distribute, sublicense, amend, translate, scan, adjust or in any other way change and/or reproduce software or other code or script that is part of or accessible via TrackOnline, unless such is allowed by mandatory law and under the conditions that the information that Client requires is otherwise not available;
h. to (try to) bring, by act or omission, directly or indirectly, disruption to the functioning of the infrastructure of TrackOnline or any part thereof, the infrastructure of third parties and/or links between these infrastructures by the content or scope of its data traffic.
8.4 If in the Agreement Client and BEXTER have agreed to a restriction with respect to the number and size of transactions, mutations or import registered by Client, whether or not for a certain period, BEXTER may, in case of exceeding this number charge the cost of the exceeding numbers to Client. Client agrees that BEXTER may access Client Data to report the number and size of transactions, mutations and data registered by Client, only to determine whether the amount and/or size agreed upon by the Parties is exceeded.
8.5 Should Client discover at some point that he can get into the network layers of TrackOnline, Client shall immediately report this to BEXTER.
8.6 Client is responsible for the operation of its hardware and software, configuration, peripherals and Internet connections required for the use of TrackOnline. Client guarantees that the equipment and software used by Client to use TrackOnline, comply with the System Requirements. Client is responsible for taking the necessary measures to protect its equipment, software, Login Data and telecommunication – and Internet connections against viruses, computer crime and unlawful use by third parties.
8.7 If BEXTER, at its sole discretion, believes that the undisturbed operation of the TrackOnline infrastructure and/or services provided by BEXTER to Clients is in danger, for example, but not limited due to viral infections, denial or service attacks, port scans, hacking, spam of or because of Client or otherwise, BEXTER can give instructions Client must follow immediately, and BEXTER has the right wholly or partly suspend the services as long as there is a relevant risk. If Client fails to implement immediate instructions, Client is in default without further notice being required.
8.8 BEXTER can perform an audit and/or inspection (or have it performed) to determine whether Client complies with the terms of the Agreement. This audit/inspection will be conducted during regular business hours and in such a way that the operations of Client will not be hampered unreasonably. The audit and/or inspection will be carried out by a third party selected and engaged by BEXTER. Client shall provide such expert such information, support and access to its premises and systems that are reasonably necessary to enable the expert to carry out its audit/inspection properly. This expert will record his findings in a summary note. The expert will not provide BEXTER information other than notified to him during the audit/inspection. The cost of the audit will be borne by BEXTER unless the audit/inspection shows that Client fails to fulfill the terms of the Agreement. Then the costs will borne by Client.
8.9 For any (suspected) abuse or misuse of TrackOnline or other violation of the provisions of the Agreement, BEXTER may at its discretion and with immediate effect:
a. temporary or permanently restrict or block the access or use of TrackOnline;
b. wholly or partly stop or suspend its services;
c. terminate the Agreement.
This is without prejudice to the obligation of Client to pay the remaining fees in accordance with the Agreement and without BEXTER being obliged to pay any damages or other compensation to Client. No refunds or credits will be issued in connection with measures taken for violations of the Agreement.
ARTICLE 9 – WARRANTY
9.1 BEXTER does not guarantee that TrackOnline as put at the disposal of Client is suitable for the actual and/or intended use by Client. BEXTER also does not guarantee that TrackOnline at all times will work without Error, interruption or defect, or that all Errors and defects will always be resolved.
9.2 BEXTER will use commercially reasonably efforts to repair Errors in TrackOnline within a reasonable period of time when these Errors are reported to BEXTER in writing and in sufficient detail. Today is entitled to apply temporary solutions, work-arounds or problem avoiding restrictions to TrackOnline.
9.3 BEXTER is not obliged to restore corrupted or lost data or to provide repair services in respect of Errors or defects that are not attributable to BEXTER. If BEXTER nevertheless provides such services, it is entitled to charge the costs of those services to Client.
ARTICLE 10 – AVAILABILITY
10.1 BEXTER will use commercially reasonable efforts to ensure the optimum availability of and access to TrackOnline. The applicability of any service level agreement must be explicitly agreed between the Parties.
10.2 Notwithstanding the provisions of Article 10.1, BEXTER may, without prior notice (temporarily) block, disable, or restrict the access to TrackOnline or limit the use to the extent that is reasonably necessary from time to time:
a. for Corrective, Preventive or Innovative Maintenance;
b. in the event of a real or suspected security breach; and/or
c. in case of another emergency;
such without the Client being entitled to claim damages from BEXTER. BEXTER will endeavor to limit such measures to a minimum and, as far as is commercially feasible, inform the Client in a timely manner.
ARTICLE 11 – SUPPORT
11.1 Client is entitled to support during the term of the Agreement. ‘Support’ means the provision of telephonic, written and/or electronic helpdesk support relating to the use and functioning of TrackOnline. Only Users may ask for Support.
11.2 Support will be provided on Work Days between 09.00 a.m. and 05.00 p.m.
11.3 With regard to the provision of Support, BEXTER is entitled to look at the data of Client as described in article 14.4.
11.4 The following services are not covered by Support and may be charged separately by BEXTER to Client in case these services are nevertheless performed by BEXTER:
a. configuration of TrackOnline
b. work relating to system configurations, hardware and networks;
c. data conversion and/or import of back-up files;
d. on-site support
e. extensions to the functionality of TrackOnline or other adjustments to TrackOnline at the request of Client;
f. file repairs, the cause of which cannot be attributed to TrackOnline;
g. reproduction of damaged or lost data;
h. support for software of other producers than BEXTER, including software of third party that can be booted from TrackOnline;
i. regarding the Internet connection;
j. support in an environment that is not supported according to the System Requirements;
k. training with regard to the use of TrackOnline.
ARTICLE 12 – CONSULTANCY
12.1 Client may request BEXTER to provide consultancy services. Consultancy services may include configuration of TrackOnline, training regarding the use and operation of TrackOnline and other agreed activities between Parties.
12.2 BEXTER will schedule the provision of consultancy services in consultation with Client, taking into account as far as reasonably possible the scheduled desired by Client.
12.3 BEXTER will perform the consulting services to the best of its ability and will perform the consulting services with care and professionalism, in accordance with the written agreements and procedures.
12.4 Consultancy services will be performed on Work Days between 08.30 and 17.00 hours, unless otherwise explicitly agreed in writing. When the execution of consulting services takes a whole day, the consultant takes thirty (30) minute lunch break.
12.5 Client owes BEXTER the consulting fees included in the consulting agreement. If no fee is agreed, the normal rates of BEXTER apply. All prices and rates do not include travel, accommodation and hotel costs, unless explicitly agreed otherwise in writing.
12.6 BEXTER invoices consulting services based on time spend per full hour. For consultancy services provided on Work Days after 18:00 the agreed hourly rate is increased to 150% of the normal rate. For consulting services performed on non-Work Days the agreed hourly rate is increased to 200% of the normal rate.
12.7 If at the start of the consultancy services the computer system does not meet the System Requirements BEXTER has the right to charge Client fees for unused hours as a result of not meeting the System Requirements and/or to charge costs BEXTER had to make to have the computer system of Client meeting the System Requirements.
12.8 Client may cancel the consultancy services or ask for a new, later (start)date free of charge up to 5 (five) Work Days before the planned (start)date. If a request for cancellation or for transfer to another date is received by BEXTER within 5 (five) Work Days before the planned (start)date or when Client cancels the consulting services which have already been started, BEXTER is entitled to charge Client for the services already performed as well as for the costs of the cancelled consultancy services if the assigned consultants cannot directly be assigned to another assignment until the moment the consultants can be replaced. BEXTER will actively try to assign consultants elsewhere as soon as possible.
12.9 BEXTER is not obliged to follow instructions of or on behalf of Client which results in a change of the agreed consulting services. If such changes are followed up, the work in question will be charged to Client as additional work.
12.10 Consultancy services that are not taken up in the consultancy agreement, but which are performed by BEXTER based on requests of Client, will be charged to Client based on the hourly fee agreed between BEXTER and Client. Also additional hours on top of the estimated number of hours for consultancy services in the consultancy agreement, will be charged to Client as additional work. If no hourly fee is agreed, the usual fees of BEXTER apply. BEXTER will inform Client where possible in advance to which extent the changes requested by or on behalf of Client will influence the agreed planning and/or the agreed or estimated costs for the consultancy services.
ARTICLE 13 – OBLIGATIONS CLIENT
13.1 Client will take care of the configuration of TrackOnline, unless BEXTER and Client agree in writing that BEXTER will take care of this, against payment.
13.2 Client provides for functioning of its hard and software, configuration, peripherals and Internet connection needed for the use of TrackOnline. Customer will meet the System Requirements set by BEXTER. Client provides for taking the necessary measures to protect its equipment, software and telecommunication and Internet connections against viruses, computer crime and unauthorized use by third parties.
13.3 Client will observe the rules of use set out in article 8. If Client does not fulfill its obligations pursuant to the Agreement and/or these Terms & Conditions, BEXTER is entitled to limit the use of TrackOnline by Client without prior notice, as set out in article 5.6 sub a.
ARTICLE 14 – CLIENT DATA
14.1 The data that Client enters via TrackOnline are stored in a database which is managed by a third party engaged by BEXTER.
14.2 Client will always remain the owner of the data entered by or on behalf of Client. Client is the only responsible for the content and correctness of Client Data.
14.3 Client is solely responsible for the compliance by Client with all applicable law and regulation with respect to creating, storing and availability of data generated (by the computer) in the jurisdiction where Client uses TrackOnline or sends Client Data via TrackOnline.
14.4 BEXTER warrants that the Client Data is to the extend commercially reasonable and practicable, protected against loss, damage or destruction. BEXTER can not guarantee that no loss, damage or destruction of data will occur. BEXTER makes regular backups of Client Data solely for data recovery purposes. BEXTER can not provide such back-up to Client.
14.5 BEXTER will not look at data that Client has placed with BEXTER via TrackOnline unless this is necessary for the provision of Support (see article 11).
14.6 After termination of the Agreement, BEXTER stores the data entered via TrackOnline for maximum 4 (four) weeks. After that the data can be permanently removed without the obligation to inform Client about this in advance.
14.7 Until 4 (four) weeks after termination of the Agreement Client may request BEXTER to provide a copy of the data that have been entered via TrackOnline, against payment of a fee. BEXTER is not obliged to comply with such request if Client has not fulfilled all its payment obligations towards BEXTER.
ARTICLE 15 – PERSONAL DATA AND PRIVACY
A. Personal data of Client
15.1 In connection with the execution of the Agreement, BEXTER has the right to use personal data of Client that may fall under the scope of national and / or – if applicable – international legislation relating to the protection of personal data. This includes, but is not limited to, names, telephone numbers and e-mail addresses. Client expressly agrees to this by accepting these Terms and Conditions. BEXTER may also use personal data of Client for marketing-related purposes. Client can always withdraw the consent granted by means of a written message to BEXTER, but this may affect the performance of the Agreement.
15.2 BEXTER is entitled to share Client’s personal data with third parties engaged by BEXTER for the execution of the Agreement. These third parties are prohibited from using this personal data for any other purpose. BEXTER also has the right to disclose personal data to third parties in connection with the sale, transfer or delivery of (part of) the company of BEXTER or in the context of an audit. BEXTER will ensure that the third party will maintain confidentiality with regard to the personal data and that this party complies with the necessary security measures and instructions from BEXTER.
B. Personal data processed on behalf of Client
15.4 If and insofar BEXTER processes personal data (of Client en/or others) for Client in the execution of the Agreement data, the following applies. Client is the (personal data) controller, BEXTER is the (personal data) processor within the meaning of the applicable privacy law (amongst other General Data Protection Agreement, “GDPR”) and the Agreement is seen as contract within the meaning of Article 28 paragraph 3 GDPR (data protection agreement). BEXTER will only process personal data on behalf of and in accordance with the instructions of Client. Client determines which personal data of which categories of persons will be processed by BEXTER on behalf of Client. BEXTER is entitled to use sub processors to facilitate TrackOnline. These sub processors will be bound by the same rules as BEXTER with regard to personal data.
15.5 In relation to any personal data that Client enters through TrackOnline, Client:
a. guarantees that it will process, store and use its personal data in accordance with all applicable (privacy) laws, regulations and codes of practice;
b. shall ensure that it has secured all necessary consents and authorizations which are required to enable it to process and store personal data via TrackOnline BEXTER shall have no responsibility or liability to Client to secure any required consents or authorizations on its behalf; and
c. shall deal with any and all requests from data subjects (like requests with regard to the right of access, rectification, erasure, restriction of processing, objection and data portability) and/or any other regulatory authority relating to personal data. In case such requests are received from data subjects by BEXTER, BEXTER will refer those data subjects to Client.
15.6 It is Client’s responsibility to ensure adequate compliance with applicable statutory (retention) periods with regard to the personal data entered via TrackOnline.
15.7 Client shall indemnify BEXTER in full against any and all claims, costs, losses, damages, expenses, actions, fines and/or penalties which BEXTER may suffer or incur or have imposed on it relating to any claims by Client, its employees, agents and consultants, Client’s clients and prospects or any other third party, or by a supervisory authority, regarding data which is processed by Client and/or BEXTER in the scope of the Agreement (including as a result of any claim or allegation that such processing is an infringement of any local and/or international data protection legislation and/or other legislation related to the processing of personal data) save that such indemnity shall not apply to the extent that any matter complained of is reasonably and directly attributable to any failure by BEXTER to comply with any of its obligations under the Agreement.
15.8 BEXTER ensures that it shall take appropriate technical and organizational measures against the accidental loss, destruction or damage and/or the unauthorized or unlawful processing of Client Data via TrackOnline. Per request of Client a list of the then current measures will be provided to Client. Client also has the responsibility for taking the necessary security measures within its own organization to prevent loss, damage, destruction and / or unauthorized or unlawful processing of personal data that Client enters in or via TrackOnline.
15.9 Except to the extent specifically provided in the Agreement and/or as may be reasonably required to enable BEXTER to comply with its obligations under the Agreement, BEXTER will not examine the data which Client has placed with BEXTER through TrackOnline and will not make data available to third parties, unless BEXTER must do so pursuant to law, a regulation, a judicial order or an order by a government or administrative agency. BEXTER is entitled to access, aggregate and use Client’s non-personally identifiable Client Data; this data will in no way identify Customer or any other individual. BEXTER may use this aggregated non-personally identifiable Client Data to:
- assist BEXTER to better understand how its clients are using TrackOnline;
- provide its clients with further information regarding the uses and benefits of TrackOnline,
- enhance business productivity, including by creating useful business insights from such aggregated data and allowing Client to benchmark its business’ performance against such aggregated data; and
- to otherwise improve TrackOnline.
15.10 Client Data will only be stored and processed on servers that are located in countries that belong to the European Union. To protect data, BEXTER may find it necessary to move Client Data to other servers.
15.11 BEXTER shall inform Client as soon as reasonably possible in case of a security breach of personal data that leads or may lead to a substantial risk of serious adverse effects on the protection of personal data. If possible BEXTER will also recommend measures to mitigate negative effects of the infringement. The notification of data breaches to the Supervisory Authority [Autoriteit Persoonsgegevens] and, if necessary, to data subjects, is done by Client. BEXTER is in no way responsible or liable for such report.
15.12 BEXTER may outsource parts of the processing of personal data in the context of execution of the Agreement to a third party subject to the applicable laws and regulations, whereby BEXTER remains responsible for compliance with the Agreement and these Terms & Conditions. BEXTER will ensure that the third party keeps with the personal data secret and will take into account the necessary instructions and appropriate technical and organizational measures as foreseen in the Agreement and these Terms & Conditions. Client is entitled to have an independent third party inspect if BEXTER and third parties hired by BEXTER adhere to the agreements. The costs of such inspection are borne by Client.
ARTICLE 16 – CONFIDENTIALITY
16.1 Both BEXTER and Client will assure that all information received from the other party of which is known or reasonably should be known that such information is confidential, is kept secret. Information is at least confidential when indicated as such by one of the parties.
16.2 Confidential information may only be used for the purpose for which it has been obtained, unless use outside that end is necessary to perform an Agreement.
16.3 Both Parties take all reasonable measures to observe their confidentiality obligations.
16.4 None of the provisions of this article 16 imposes any restrictions on the receiving party in respect of confidential information or data if such information or data:
a. was already the legal property of the receiving party before it was obtained from the party in question;
b. was developed independently by the receiving party without using information or data of the party in question;
c. is or will be generally known or accessible other than by an act or omission on the part of the receiving party; or
d. is disclosed to the receiving party by a third party without an obligation of confidentiality toward the party in question being infringed.
16.5 Confidentiality does not apply if the confidential information of the other party must be made public pursuant to the law, an ordinance, a court order or a decision by another government agency, on condition that the receiving party makes every effort to limit the scope of the publication and notifies the party concerned in advance of any such intended publication.
16.6 The Parties guarantee that their employees and third parties engaged by the Parties will comply with the confidentiality obligations as described above in this article 16.
ARTICLE 17 – INTELLECTUAL PROPERTY RIGHTS
17.1 All intellectual property rights, tradename rights, trademark rights, database rights, design rights, rights regarding confidential information and trade secrets, and any similar rights to protect (information concerning) the Website and TrackOnline are the exclusive property of BEXTER or its licensor(s). None of the provisions of the Agreement or the Terms & Conditions can be understood to lead to a complete or partial transfer of the rights to Client.
17.2 Client is prohibited from removing, changing or making invisible or unrecognizable any notice in respect of the intellectual property rights, trademarks or trade names of BEXTER. Client may not use or register any trademark, design, logo or domain name BEXTER or a corresponding name or trademark in any jurisdiction anywhere in the world. Any use of the tradenames brands and further intellectual property of BEXTER and all goodwill arising from such use will be for the benefit of BEXTER.
17.3 BEXTER is entitled to make technical provisions for the purpose of protecting TrackOnline, data files etc. with a view to enforcing the agreed restrictions in the content and term of use of these objects. Client is prohibited from removing or circumventing such technical provisions.
17.4 BEXTER indemnifies Client against any third-party legal claim based on the assertion that the software developed by BEXTER infringes an intellectual property right of a third party, provided that Client informs BEXTER immediately in writing about the existence and content of the legal claim, and leaves the handling of the case, including taking any settlement, up to BEXTER. The obligation to indemnify expires if the infringement relates (a) to materials provided by Client to BEXTER for use or processing or (b) to changes made by or on behalf of Client in TrackOnline, databases or in other materials.
17.5 If an injunction is imposed prohibiting the use of TrackOnline because of an infringement within the meaning of the previous paragraph or if, in the opinion of BEXTER, there is a chance that t TrackOnline will become the subject of a successful claim for infringement, BEXTER is entitled, at its own discretion and own expense, to (a) obtain the right for Client to continue to use TrackOnline as per the Agreement(s); (b) replace TrackOnline or adjust it in such a way that it no longer constitutes an infringement, provided the functionality remains materially unchanged; or (c) terminate the Agreement with regard to the infringing TrackOnline.
17.6 Client acknowledges and accepts that the full and exclusive liability of BEXTER for infringement of patents, copyrights, trademarks or other intellectual property rights is as defined in Article 17 and 20.
ARTICLE 18 – PERIODS
All (delivery) terms and deadlines related to TrackOnline, Support, consultancy services and other services are target dates, determined by BEXTER in good faith based on the information then known to BEXTER and are not binding unless explicitly agreed in writing between BEXTER and Client. Unless fatal terms are agreed, violation of deadlines does not mean that BEXTER is in default and does not lead to liability for damages.
ARTICLE 19 – COMPLAINTS
In case Client has a complaint in respect of an incorrect delivery or in respect of an incorrect or deficient service, Client will inform BEXTER within 2 (two) weeks after the delivery or provision of the service in writing.
ARTICLE 20 – LIABILITY
20.1 Subject to the limitations set out below, each Party is responsible for any direct damage caused to the other Party due to attributable shortcomings in the fulfillment of an Agreement and/or due to negligence.
20.2 The total liability of the Parties due to a attributable shortcoming in the fulfillment of the Agreement or due to any other ground, is limited to direct damage up to maximum 50% of all amounts invoiced to Client in the 6 (six) months prior to the default of BEXTER, minus any crediting by BEXTER to Client during that period. In no event the total liability for direct damage, for whatever reason, shall be more than € 500,000 (five hundred thousand euros) per year.
A series of related events is considered a single incident.
20.3 The liability of the Parties for damage for death or physical injury or for material property damage shall not exceed EUR 1,000,000 (one million Euros) per damage causing event per year. A series of related events is considered a single incident.
20.4 Neither Party is ever liable for indirect damage, consequential damage, lost profits, missed savings, reduced goodwill, damage resulting from operational stagnation, damage resulting from Client not complying with the System Requirements, damage resulting from claims by Client’s clients, damage associated with the use of third-party items, materials or software prescribed to BEXTER by Client, damage associated with the deployment of suppliers prescribed to BEXTER by Client, corruption or loss of data and documentation. Some countries and/or states and jurisdictions do not allow the exclusion or limitation of special, indirect, incidental or consequential damage, so the above limitation and exclusion may not apply to all Clients. In that case the liability of the Parties is limited to the maximum extent possible by law.
20.5 The exclusions and limitations set out in articles 20.2, 20.3 and 20.4 do not apply in case and to the extent that the damage is resulting from an intentional act or omission, willful misconduct or gross negligence.
20.6 BEXTER is never liable for any damage of any kind suffered by Client in relation to temporary non availability or temporary incorrect or incomplete availability of TrackOnline.
20.7 BEXTER is never liable for any damages of any kind suffered by Client in relation to (non)functioning of the software of Client or third parties, of equipment of Client or third parties or Internet connections of Client, BEXTER or third parties.
20.8 BEXTER does not accept any liability for the incorrect, incomplete or non-timely sending of data that is placed with BEXTER via TrackOnline.
20.9 Unless fulfillment of an obligation is permanently impossible, liability on the part of either Party with regard to attributable shortcomings in the fulfillment of an Agreement will in any case only exist if the defaulting Party is served with proper notice of default, whereby a reasonable period must be given for the defaulting Party to remedy the breach, and the defaulting Party remains in breach of its obligations even after this period. The notice of default must contain the most complete and detailed description of the breach possible, allowing the defaulting Party to respond adequately.
20.10 A claim for compensation cannot be considered unless written notice of the loss has been given to the defaulting Party as soon as possible after it occurs. Any claim for compensation against the defaulting Party expires by the mere lapse of time 12 (twelve) months after the damage has manifested itself.
20.11 Client indemnifies BEXTER against claims from third parties, employees of Client included, who suffer damage in connection with the execution of the Agreement which is the result of actions or omissions of Client or of unsafe situations in its organization.
20.12 The provisions of this article as well as all other limitations and exclusions of liability specified in these Terms & Conditions shall also apply for the benefit of all (legal) persons whose BEXTER engages for the execution of the Agreement.
20.13 Client accepts responsibility for the choice of TrackOnline to achieve its intended results, and recognizes that Track Online is a multitenant offer which is not designed to meet the individual requirements of Client.
ARTICLE 21 – EXCLUSION / DISCLAIMER
With the exception of provisions that have been explicitly included in the Agreement and the Terms & Conditions, BEXTER does not make any other or further guarantees, promises or conditions in respect of TrackOnline, user documentation or services supplied to Client, and BEXTER hereby rejects all other guarantees, promises or conditions, either explicit, implicit or in pursuant the law (including but not limited to guarantees or conditions relating to non-infringement of other rights or suitability for a specific purpose or resulting from a specific use or commercial use) in respect of TrackOnline, user documentation and services.
ARTICLE 22 – FORCE MAJEURE
22.1 Neither Party is obliged to comply with an obligation, including any agreed warranty obligation, if such compliance is prevented by a situation of force majeure. Force majeure includes amongst other things:
- force majeure of suppliers of BEXTER;
- government actions;
- disruption of electricity;
- disruption of internet, computer network or telecommunication connections;
22.2 If a force majeure continues for longer than 90 (ninety) days, either party is entitled to terminate the Agreement in writing. All that is performed under the Agreement will be settled proportionately.
ARTICLE 23 – TRANSFER OF RIGHTS AND OBLIGATIONS
23.1 Client is not entitled to sell or transfer rights and/or obligations pursuant to the Agreement to a third party without the prior explicit written consent of BEXTER, which consent will not be unreasonably withheld.
23.2 BEXTER is entitled to transfer or outsource its rights or obligations pursuant to the Agreement to a third party. In the event of transfer or outsourcing the provisions of the Agreement and the Terms & Conditions continue to apply.
ARTICLE 24 – APPLICABLE LAW AND DISPUTES
24.1 The Agreement, including the Terms & Conditions, is governed by Dutch law only. The provisions of the Vienna Sales Convention (CISG) do not apply.
24.2 BEXTER and Client will resolve their disputes preferably amicably.
24.2 If BEXTER and Client are not able to solve any dispute amicably within a reasonable period of time, the dispute shall be submitted to the court in the district where BEXTER is located.
ARTICLE 25 – TRANSLATION
In the event of any disagreement or difference of opinion about or obscurity in respect of the provisions in the Terms & Conditions and/or the Agreement, the Dutch text prevails over the translation.