terms and conditions

Terms and Conditions

General Terms and Conditions for the provision of Services and Software by Vartion B.V. and/or Vartion Ltd.

GENERAL

These General Terms and Conditions are between the Client and: (a) if the Client is a sole proprietorship, partnership or entity organized under its applicable law but located and having its principle office in any country within the EEA or UK: Vartion B.V., a private company with limited liability, having its registered office in Amsterdam and its business office at Strawinskylaan 1647, WTC Tower 7, 16th floor, 1077 XX Amsterdam, registered at the Commercial Register under number 72248408; or (b) if the Client is a sole proprietorship, partnership or entity organized under its applicable law but located and having its principle office in a country outside the EEA or UK: Vartion Ltd., registered under company number 16726646, 10-12 Bourlet Close, London W1W 7BR (both Vartion B.V. and Vartion Ltd. as may be applicable hereinafter referred to as “Vartion”).
These General Terms and Conditions are applicable to all Agreements relating to Services, all agreements arising under Agreements and all offers and/or proposals made by Vartion to the Client. Section A of these General Terms and Conditions shall be applicable to all Agreements. In addition to Section A, Section B of these General Terms and Conditions shall be applicable to all Agreements for Services other than SaaS-Service. In addition to Section A, Section C of these General Terms and Conditions shall apply to SaaS-Service.
In case of conflicting terms between Section A and Section B, for that conflicting part the terms of Section B shall prevail above Section A. In case of conflicting terms between Section A and Section C, for that conflicting part the terms of Section C shall prevail above Section A. In case of conflicting terms between Section B and Section C, for that conflicting part the terms of Section C shall prevail above Section B.
Any general terms and conditions of the Client (or any of its group entities) are not applicable and are hereby rejected.

DEFINITIONS

Capitalised terms used in these General Terms and Conditions shall have the meanings as set out below:
the term “Agreement” is understood to mean each or all agreements between Vartion and the Client and includes (i) the Client Onboarding Form and any the additional term sheets and (ii) these General Terms and Conditions and the Addendum;
the term “Addendum” is understood to mean the addendum to these General Terms and Conditions setting out the (applicable) Data Processing Terms divided into Addendum A (the Data Processing Terms within EEA and UK) and Addendum B (the Data Processing Terms for outside EEA and UK);
the term “Annex” is understood to mean an annex to the Addendum;
the term “Applicable Law” is understood to mean the law of the Netherlands and, regulation, rule, general business practice, self-imposed rule or any requirement from a regulatory or self-regulating authority, applicable to Vartion from time to time;
the term “Client” is understood to mean every legal entity (rechtspersoon) or professional individual who is party to the Agreement and for which the Services by Vartion are rendered pursuant to the Agreement;
the term “Client Onboarding Form” is understood to mean the online signup form which is used to create an account with Vartion for the SaaS-Service. The Client Onboarding Form contains the specific terms and conditions for the use of the Software in connection with the specific SaaS-Services(s) offered by Vartion from time to time and the applicable fees. The Client Onboarding Form also determines if or what kind of SaaS-Service shall be provided by Vartion and which specific terms and conditions shall be applicable.
the term “Database” is understood to mean the database, compiled and owned by Vartion and forming part of the IP Rights, on which the Software is customarily applied or in connection to which Services under the Agreement are provided by Vartion to the Client, with the exception of any database stored at the location of the Client and owned by the Client;
the term “Data Controller” is understood to mean a data controller under EU Data Protection Laws;
the term “Data Processor” is understood to mean a data processor under EU Data Protection Laws;
the term “Data Processing Terms” is understood to mean the terms as set out in the Addendum with regard to data processing;
the term “Deliverables” is understood to mean the products made, created or delivered under an Agreement;
the term “EU Data Protection Laws” is understood to mean the EU General Data Protection Regulation 2016/679 and relevant national laws implementing and/or supplementing this regulation;
the term “Force Majeure” is understood to mean any event caused by circumstances not in reasonable control of a Party including but not limited to acts of nature, acts of war and terrorism, government actions, epidemics/ pandemics, internet failures;
the term “Free Trial” is understood to mean free use of Pascal at the specific invitation for a certain period with the possibility to enter into a paid version. The Free Trail is being made available via personalized link provided by Vartion;
the term “Free Version” is understood to mean the free version option of Pascal screening as selected in the Client Onboarding Form available for a limited period of time;
the term “IP Rights” is understood to mean any and all present and future intellectual property rights in any country or jurisdiction that a Party has or at any time and from time to time shall acquire, such as but not limited to (i) copyrights (auteursrechten), database rights (databankrechten), patents (octrooirechten), rights of designs (tekening- en modelrechten) and trade marks (merkenrechten) and (ii) all rights of a Party resulting from or in connection with any applications, deposits and registrations made or filed with any IP Register to acquire, obtain or maintain any of the rights referred to under sub (i) above;
the term “IP Register” is understood to mean any appropriate national or international register, office or authority in which rights to or interests in any of the IP Rights is or can be registered;
the term “Login Codes” is understood to mean the authentication data for individual Users, such as a User name and password that enable access to the Software. The Login Codes are personal, non-transferable and secret;
the term “General Terms and Conditions” is understood to mean these General Terms and Conditions that are part of any Agreement between the Client and Vartion;
the term “Pascal onboarding” is understood to mean an extra function within the Software where the Client can redirect its own clients in the KYC-onboarding process to the Software by facilitating the collection and validation of essential data and documents;
the term “Pascal screening” is understood to mean the Software where the Client is supported on risk management by screening and managing individuals and organizations;
the term “Pascal transaction monitoring” is understood to mean an extra function within the Software where the Client is comprehensively supported for both ex-ante and ex-post transaction monitoring, ensuring a robust and proactive approach to risk-management;
the term “Pascal” is understood to mean the Software;
the term “Party” is understood to mean either the Client, Vartion or any other party to any Agreement;
the term “Parties” is understood to mean all of them;
the term “Personal Data” is understood to have the meaning as provided for by EU Data Protection Laws;
the term “Public Domain Data” is understood to mean personal or scientific information originally available to the public and typically over the internet. Examples include personal information derived from: (a) all general and scientific information generated through Vartion’s big data platform that has integrations with large publicly available databases; (b) sanction or watch lists; (c) law enforcement, court, regulatory or other governmental websites; (d) political websites and publications such as parliamentary, local government or individual politician websites; (e) reputable news media and publications; and (f) information sources made public by an individual themselves for example on their website, blog or any social media application;
the term “SaaS-Service” is understood to mean the non-exclusive and non-transferrable right granted by Vartion to the Client to use the Software for Pascal screening, Pascal onboarding and Pascal transaction monitoring as well as such specific services whereby Vartion makes and keeps the Software available to the Client and Users via the internet or another network as specifically agreed upon in the Client Onboarding Form, including, if applicable, Pascal onboarding;
the term “Service Hours” is understood to mean hours being every business day between 09:00h and 17:00h CET;
the term “Services” is understood to mean the specific Service and/or Services provided by Vartion, including but not limited to the SaaS-Service and/or IT, development and consultancy related services or any other services agreed upon from time to time between Vartion and the Client;
the term “Software” is understood to mean the computer software, named Pascal, being a tool designed and developed (1) to support risk and compliance professionals during a Client due diligence (CDD), and if applicable (2) to constantly monitor the Database – or any other database on which is de Software is applied by the Client – for Client related events (direct and indirect) and Client transactions, thereby boosting efficiency and providing insight into data, made available by Vartion to the Client via the internet or another network;
the term “Supervisory Authority” is understood to mean any authority designated by European Data Protection Law or national law which supervises the compliance with European Data Protection Laws;
the term “Third-Party Product” is understood to mean the products or Services integrated in the Software or Services of third-parties such as licensors, sub-contractors or data-providers;
the term “Third-Party Provider” is understood to mean the provider of Third-Party Products;
the term “Unauthorised Use” is understood to mean unauthorised persons using or are able to use personal Login Codes;
the term “User” is understood to mean an employee of the Client or a person engaged by the Client;
the term “Use of Services” is understood to mean the use of Services; and
the term “Use of Software” is understood to mean the use of the Software and the SaaS-Service;

SECTION A OF THESE GENERAL TERMS AND CONDITIONS: GENERAL

GENERAL: COMMENCEMENT OF THE AGREEMENT

The Agreement commences as of the date of acceptance of Vartion’s offer by the Client through the complete and correct completion of the Client Onboarding Form made available at Sign up- Pascal (Vartion) by Vartion online or as of the date of signing the Agreement or any other commencement date agreed between the Parties.

GENERAL: PAYMENT

The Client shall compensate Vartion for the Services as per the details in such respective Agreement. Invoicing or payment of the fees shall take place on the basis of the rates and charges mentioned in the Agreement.
All amounts due to Vartion must have been paid within fourteen (14) days after the receipt of the invoice, except where the Agreement states otherwise. The invoice will in most cases be automatically generated and sent to the contact details that have been provided to Vartion by the Client.
All fees comprising the total remuneration are exclusive of VAT. Tax rates are calculated based on the information that the Client provided to Vartion and the applicable tax rate at the time the fees were incurred. If applicable, VAT will be charged at the applicable rate in addition to the renumeration subject to any VAT reverse-change mechanism as may be applicable or used. Vartion will provide the Client with a valid VAT invoice/VAT number. For all payment transfers to Vartion, Client will bear all payment processing charges.
The Client will notify Vartion not later than eight (8) days after receiving an invoice, if any part of such invoice is disputed, stating the complaint and the reasons for the dispute. The Parties will to discuss the disputed part of the invoice as soon as possible.
The Client agrees that all fees and charges invoiced shall be deemed accepted unless disputed within eight (8) days of the invoice date. If the invoice is not paid, the Client is automatically in default of its obligations without any further notice being required.
Payment to Vartion shall be effected without set off, counterclaim or deduction for or on account of taxes, levies or charges.
Vartion is entitled to suspend or cease to provide the Services and/or Software in case any amount due to Vartion has not been paid within fourteen (14) days following the due date and has not been disputed in accordance with Clause 4.4. In such case, Vartion will give notice thereof in writing.
During the period of the provision of Services and/or Software by Vartion, the fees may be revised each calendar year as of the first day of January of that year to adjust for inflation of the previous calendar year. The inflation percentage shall be set using an appropriate official index of retail price inflation. The Client will be given written notice in respect of such revision.
Any other adjustment of the fees by Vartion shall only take effect after three (3) months following written notice of adjustment by Vartion to the Client. If the Client does not agree to the changes as meant in this Clause 4.9, the Client has the right to terminate the Agreement with effect as of the date on which the changes in the rates are due to enter into force, without the Client being obliged to reimburse any losses and costs suffered or incurred by Vartion as a result of the termination, unless stated otherwise in the Agreement.
For the avoidance of doubt, Clauses 4.1 up to and including 4.9 shall not apply to the Free Version and the Free Trial.

GENERAL: EXECUTION OF THE AGREEMENT

The obligation to render the Services and/or Software under the Agreement shall become effective after the Client has duly provided Vartion with all information and/or documents enabling Vartion to fulfil its duties under the Agreement. Any delay in providing the requested information shall be fully accountable to the Client.
The Client is responsible for determining the scope of the Services and/or Software necessary for its needs. The Services as well as the Software are solely for the benefit of the Client only. Third parties may not rely thereon.
Third-Party Providers may connect through an agreement with Vartion and act as a sub-contractor of Vartion.
Vartion shall perform the Services and provide the Software in accordance with the standards of professional care.

GENERAL: INSTRUCTIONS

Where appropriate, Vartion is authorised to act upon instructions communicated in any manner so long as Vartion reasonably believes its instructions to be those of the Client. The instructions will have to be confirmed by e-mail. Vartion shall not be liable for acting in accordance with instructions, requests, representations or documents that it considers to be genuine.

GENERAL: DATA PROTECTION

Under the Agreement, Vartion does not process any other (Client) Personal Data than stated in this Clause, the Addendum, the Annexes and/or as indicated in the privacy notice of Vartion notice Privacy Notice- Vartion
The Client acknowledges that Vartion shall process the Personal Data in accordance with, and for the purposes described in Vartion’s privacy Privacy Notice- Vartion. The Client confirms that it has read and understood Vartion’s privacy notice.
If the Client is a sole proprietorship, partnership or entity organized under its applicable law but located and having its principal office in a country within the EEA or UK, the Addendum A contains a data processing agreement shall be applicable in case the Client requires Vartion to act as a Data Processor in order to perform obligations under this Agreement or in case Vartion is considered to process Personal Data on the Client’s behalf in any way.
If the Client is a sole proprietorship, partnership or entity organized under its applicable law but located and having its principal office in a country outside the EEA or UK, the Addendum B contains the Model Contractual Clauses shall be applicable in case the Client requires Vartion to act as a Data Processor in order to perform obligations under this Agreement or in case Vartion is considered to process Personal Data on the Client’s behalf in any way.
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GENERAL: THIRD – PARTY RIGHTS AND RESPONSIBILITY

Each director, officer or employee of Vartion involved in rendering the Services and/or Software for the Client may rely upon and shall have the benefit of the Agreement.
None of the rights and obligations under the Agreement may be assigned by a Party to a third party other than stated in this Clause 8, provided that Vartion may (i) assign its rights and obligations to another entity controlled by Vartion and (ii) assign its receivable on the Client to a third party for factoring or collecting purposes.
Vartion’s Third-Party Providers such as party licensors, sub-contractors and data providers shall be considered third party beneficiaries and may enforce the terms of the Agreement against the Client as they relate to such Third-Party Providers. The Third-Party Providers will not be liable to the Client for any direct or indirect damages with respect to the Third-Party Products and/or the Software and/or Deliverables and all related matters.
The Third-Party Providers of data contained within the Software and Services and the licensed products make no representations, conditions or warranties regarding the completeness, veracity, fitness for a particular purpose, merchantability or accuracy of such data or products or any component thereof, and are not responsible for any delays, interruptions or omission. The Third-Party Products are provided for informational purposes only and do not constitute legal or other professional advice, or any recommendation to start, continue or discontinue any business relationship, partner and its customers are responsible for applying professional judgement and their own appropriate procedures, test, controls and assessments. The data, products and any components thereof are provided on an “as is” and “as available” basis and are used at the Client’s own risk.
Any decisions taken by the Client, based totally or partially on any data or information provided in connection with the Third-Party Products, Services or Software shall be taken at the Clients’ own risk and responsibility. Vartion nor any Third-Party Providers shall be liable for the data, data structure, metadata, metrics, charts, graphs, literature, or other content in any form and any derivatives thereof, (including, where applicable, any updates to the foregoing) in each case included in the Services, Software or licensed products and are not liable for any decision or consequence based on the foregoing.

GENERAL: IP-RIGHTS

The Client shall not: (a) access or provide access to Third-Party Products, except in conjunction and in accordance with the Services and/or the Software; (b) remove or alter any copyright, trademark or other proprietary notice appearing on or within the Third-Party Products or any data contained in the Third-Party Products; (c) license, sub-license, transfer, sell, resell, lease, assign, publish, reproduce, and/or otherwise redistribute any data within the Third-Party Products or any components thereof in any manner, including, but not limited to, via or as part of any internet site; (d) provide access to the Third-Party Products or any portion thereof, to any third-party; (e) use and access the Third-Party Products other than as permitted under these General Terms and Conditions; (f) copy reproduce, modify, translate, distribute, create derivative works of, publicly display, publicly perform, reverse engineer, decompile, or disassemble the Third-Party Product or any portions thereof; (g) use the Third-Party Products to create works which are competitive to the Third-Party Products or which use similar features, functions or graphics; or (h) disclose the results of any Third-Party Product benchmark tests to Third-Parties.
Clause 9.1 shall apply mutatis mutandis to the IP Rights and the Software.
The Client shall ensure that none of the information, documents or other tools provided to Vartion in connection with the Services and/or the Software infringe any rights of intellectual property vested with a third-party.
The Parties agree that no intellectual property or other rights vested in or licensed to the Client or Vartion prior to the date of the Agreement are transferred or licensed to the other Party, unless explicitly agreed otherwise. All IP Rights in or resulting from the Services and/or Software will be and remain owned by Vartion, unless stated otherwise in the applicable Agreement.

GENERAL: WARRANTIES

Client warranties

The Client unconditionally warrants and represents that:
the Client shall only be allowed to use the results generated with the Software and the Services within the Client’s own organization for the sole purpose of mitigating the Client’s own compliance and legal risks, and excluding any other use, including commercial use. Client may not provide the results to third parties and shall be restricted from selling the results generated by the Software and/or Services;
with regard to the use by the Client of the Software and the Services, the Client shall comply with all relevant laws and regulations, including but not limited to the laws and regulations – in any way applicable – with respect to the protection, use, storage, transferring, processing or otherwise handling of Personal Data such as the EU Data Protection Laws;
the Client shall conduct its business in accordance with sound and generally accepted business practices;
the Client shall not cause any damage to or risk for Vartion’s reputation;
the Client shall comply at all times with any applicable compliance rules of Vartion and as provided by Vartion to the Client;
the Client warrants that it is not in breach of Applicable Law, rules and regulations relating to economic sanctions, export controls, trade embargoes or other restrictive measures;
the Client shall comply with Applicable Law and have appropriate policies and certification into place; and
the Client shall not decompile, disassemble, reconstruct, reverse engineer or otherwise attempt to recreate or design any intellectual property, component or software, including the Software, covered by the Agreement.
Vartion represents and warrants to the Client that:
Vartion shall exercise that degree of skill and care in relation to the performance of the Services which would reasonably (redelijkerwijs) be expected from a skilled and experienced person under the Agreement; and
Vartion shall comply with all relevant laws and regulations applicable to Vartion, including but not limited to the laws and regulations with respect to the protection of Personal Data such as the EU Data Protection Laws, social security and labour.

Indemnities

The Client shall indemnify, defend and keep Vartion and its directors, officers and employees harmless against (i) all proceedings, losses, costs, claims, actions, demands and expenses brought or made against or incurred or suffered by any of them for any infringement or breach of any applicable Personal Data processing laws such as the EU Data Protection Laws or any third party claims relating thereto in connection with the processing of any data by or on behalf of the Client and (ii) any and all claims from third parties arising from or connected to the Agreement and/or the Services provided by Vartion, including claims resulting from illegal or unlawful use of such Software by the Client, unless any of such claims are the result from intent (opzet) or gross negligence (grove nalatigheid) on the part of Vartion. The indemnity will include all loss suffered and legal and other costs incurred by Vartion and any of its directors, officers or employees in connection with the claims.
In the event that any claim is made which may entitle Vartion and/or any of its directors, officers or employees to seek an indemnity from the Client, then the Client, upon receipt of notification of any such claim, shall immediately inform Vartion of the full details and Vartion shall be entitled to determine whether it wishes to participate in or control the defence of that claim. The indemnities herein are made without prejudice to any other indemnities given by the Client.

GENERAL: CONFIDENTIALITY

Subject to statutory or regulatory requirements or a court order or verdict, the Parties shall not, either directly or indirectly, publish, release, or otherwise make available to third parties any information involving a potentially confidential or secret aspect of the other Party’s business and operations (including Services and Software), or, irrespective of whether this information should be confidential or secret, either directly or indirectly, publish, release or otherwise make available to third parties any list of suppliers or other information involving Clients, Third-Party Providers, Third-Party Products, suppliers, persons or organisations with which the Client does or has done business.

GENERAL: FORCE MAJEURE

Neither Party shall be responsible for failure or delay of performance if caused by circumstances not attributable to that Party as described as a Force Majeure event. Both Parties will use reasonable efforts to mitigate the effect of a Force Majeure event. This provision does not excuse either Party’s obligations to take reasonable steps to follow its normal disaster recovery procedures.

GENERAL: VARIATION OF TERMS

Vartion is entitled to unilaterally amend these General Terms and Conditions. Any such amendment shall take effect one (1) month following digital notice by Vartion of the amendment. The Client will have the right to terminate the Agreement in the event that it disagrees with the amended General Terms and Conditions within thirty (30) days following Services by Vartion of the amendment. A notice of termination will have to be given to Vartion in accordance with Clause 15.6. Notice hereof stating the reason for termination. In such case the amended General Terms and Conditions shall not take effect. Having become effective, the amended General Terms and Conditions shall have precedence over all previously notified General Terms and Conditions.

GENERAL: PUBLICITY

Except in relation to the compliance with statutory or legal requirements or regulations, in which event the Party involved undertakes to enter into prior consultations with the other Party, neither Vartion nor the Client shall provide any information to third-parties or make any public announcement or otherwise distribute information concerning the subject matter of the Agreement without the prior written consent of the other Party to the Agreement.

GENERAL: TERM AND TERMINATION

The Agreement may be terminated by either Party upon the occurrence of any material default in the performance by the other Party, provided that the defaulting Party shall be given thirty (30) days prior written notice of default and the opportunity to cure the default, if curable.
The Agreement may only be terminated to the extent that this is provided for within the Agreement and these General Terms and Conditions.
The Parties may terminate the Agreement without any reason, giving two (2) months prior written notice, unless the Agreement states otherwise.
To the extent possible under Applicable Law, each Party may terminate the Agreement with immediate effect in the event that:
a request for bankruptcy, moratorium or other insolvency proceedings of any kind relating to another Party to the Agreement has been filed or made;
an other Party to the Agreement has been declared insolvent or bankrupt;
the assets of a Party to the Agreement are seized or attached; or
the circumstances are such, in the fair opinion of Vartion, that it cannot be reasonably expected from Vartion that it continues to provide the Services under the Agreement (including, but not limited to, alleged fraudulent or criminal activities or other legal, moral or financial integrity violations).
Vartion may terminate the Agreement with immediate effect by giving written notice in case a significant part of the control over the Client or the shares in the Client will or has been transferred to a third-party.
Termination by a Party shall take place by way of written notice or by registered letter to the other Party as set out in Clause 16. Termination of the Agreement shall not discharge Parties from those obligations which by their nature must continue, including but not limited to provisions on confidentiality, intellectual property, and governing law and jurisdiction.

GENERAL: NOTICES

All notices or other communications pursuant to the Agreement shall be delivered to the Client’s addresses communicated to Vartion by registered post, courier, e-mail or digital notice, depending on the nature of the notice.
All notices or other communications pursuant to the Agreement shall be delivered to Vartion’s address communicated to the Client by registered post, courier, e-mail or digital notice, depending on the nature of the notice. In case of no communicated address the following addresses apply:
If the Client is an entity or business organized under or otherwise subject to the laws of any country within the EEA or UK: Vartion B.V., at Strawinskylaan 1647, WTC Tower 7, 16th floor, 1077 XX Amsterdam; or
if the Client is an entity or business organized under or otherwise subject to the laws of a country outside the EEA or UK: Vartion Ltd., at 10-12 Bourlet Close, London W1W 7BR

GENERAL: MISCELLANEOUS

If any provision of the Agreement should prove to be void or unenforceable, the other provisions of the Agreement shall not be affected and will continue in full force and effect. The Parties shall replace such void and unenforceable provision with a valid and enforceable provision; this provision shall be as consistent as possible with the intent of the Parties as initially expressed.
If any of the provisions of these General Terms and Conditions are conflicting with any provisions of the (applicable) Agreement, the provisions of the Agreement shall prevail, except if the Agreement states otherwise.
Except and to the extent explicitly stated otherwise in the Agreement, if a Party does not exercise any right by virtue of the Agreement, including the right to demand that another Party meet its obligations under the Agreement or does so unduly, it shall not be deemed to thereby have waived this right. If a Party, in a specific case, waives any right it may have with respect to the other Party by virtue of the fact that this Party has not, not fully or unduly fulfilled any obligation under the Agreement it shall not be deemed to thereby have waived any other right it has in that specific case, nor have given up any possibility of invoking that right in other cases.

GENERAL: RULES OF INTERPRETATION

These General Terms and Conditions have been drawn up in English. In the event of any discrepancy between the English text of the Agreement or any agreement resulting therefrom and any translation thereof, the English-language version shall prevail. The English language version shall prevail for interpretation purposes as well.

English-language words used in the Agreement are intended to describe Dutch legal concepts only and the consequences of the use of those words under English law or any other foreign law shall be disregarded.

In respect of any jurisdiction other than the Netherlands, references to any Dutch legal concept shall be deemed to refer to the concept that most approximates to the Dutch legal term in that jurisdiction.

GENERAL: GOVERNING LAW AND JURISDICTION

The Agreement and the Addendum are being governed by and shall be construed in accordance with Dutch law.
The Parties hereby irrevocably submit to the jurisdiction of the competent court in Amsterdam, the Netherlands in connection with any disputes arising under the Agreement.

SECTION B OF THESE GENERAL TERMS AND CONDITIONS: SERVICES

USE OF SERVICES: PAYMENT OF SERVICES

The Client shall pay all amounts invoiced by Vartion within fourteen (14) days after the receipt of the invoice. If the invoice is not paid, the Client is automatically in default of its obligations without any further notice being required.
The Client will notify Vartion in writing no later than eight (8) days after receiving an invoice, if any part of such invoice is disputed, stating the complaint and the reasons for the dispute. In such event the Client will be entitled to suspend payment of the disputed part of the invoice and shall pay the undisputed part of the invoice. The Parties will meet to discuss the disputed part of the invoice as soon as possible. If it is established that the complaint was justified, the invoice will be adjusted and the Client will pay the remaining balance of the disputed part of the invoice, if any, within fourteen (14) days after receipt of the adjusted invoice. If it is established that the complaint was unjustified, the Client will pay the disputed part of the invoice without any further delay

USE OF SERVICES: (LIMITATION) OF LIABILITY

In no event will either Party, except in the event of intent (opzet) or gross negligence (grove nalatigheid), be liable to the other for punitive, exemplary, indirect, special, incidental or consequential damages of any kind (including cost of personnel, commercial loss, damage through corporate inactivity, and/or claims from third parties against Client, loss of profits, loss of savings, loss of use, business interruption, loss of relations, loss of trade names/marks, mutilated and/or loss of data or costs of reproduction, delays, damage as a result of a failure of Client to provide the required information or assistance, costs of procurement of substitute goods technologies or Services, cost of cover or damage as a result of delays) in connection with or arising out of the relationship between the Parties, whether alleged as a breach of contract or tortious conduct, including negligence, even if such Party has been advised of the possibility of such damages.
Any Party’s maximum aggregate liability for any cause whatsoever, and regardless of the form of action, will in accordance with this Clause 21.2 at all times be limited to compensation for direct damage and to a maximum of the amount of the price stipulated in the Agreement (excluding VAT) to a maximum of EUR 50,000.00 or the amounts paid to Vartion in connection to the products, Deliverables or Services subject to the claim in twelve (12) months prior to the event the action is based upon, whichever is less, whereby a sequence of events is regarded as one event.
Parties shall have and shall maintain for the duration of the Agreement sufficient insurance to cover for the damage and the amounts, for which Parties accept liability, as set out in these General Terms and Conditions.

USE OF SERVICES: REPRESENTATIONS, WARRANTIES AND INDEMNIFICATIONS

Vartion warrants that:
when carrying out its obligations deriving from the Agreement, it shall exercise reasonable skill and care consistent with industry standards;
open-source software shall only be included in the Deliverables after the express written consent of the Client;
the Deliverables are original to and developed by Vartion, unless otherwise stated and neither the provision of the Services or any Deliverable will infringe the intellectual property rights of any person or entity; and
it will perform the Services with suitably qualified, skilled and trained personnel.
If Vartion demonstrates that a defect in a Deliverable is not attributable to Vartion or if Client has not provided the required cooperation, the Client shall pay Vartion all reasonable costs made for repair or said defect. Time spent will be charged on the basis of time and material against the then current applicable Vartion rates.
Vartion shall not access, use, amend or otherwise change or corrupt any of the data of the Client to which Vartion has access to under the Agreement, unless and to the extent this is necessary and agreed upon upfront by the Client.

USE OF SERVICES: EU REGULATION 2022/2554 (DORA)

The following clauses 23.1 through and including 23.6 of this Clause 23 shall in addition to the other terms of these General Terms and Conditions only be applicable to Clients who are or will become subject to EU Regulation 2022/2554 (Digital Operational Resilience Act) and the Services performed by Vartion under the Agreement are of such a nature that they are covered by such EU Regulation.
The Agreement may be terminated observing a notice of five (business) days by the Client in case any defects in the Services are detected which cannot be resolved by Vartion within two business days following notification in writing by the Client or in case Vartion for any other reasons does not comply with requests or obligation upon Vartion pursuant to EU Regulation 2022/2554.
Upon termination of the Agreement, Vartion shall cooperate with an exit plan as the Parties from time to time may agree upon in writing to ensure a smooth and to the extent feasible an undisturbed transfer. Such exit plan will be reviewed regularly and will contain details of the remuneration of Vartion for the services under the exit plan.
Vartion will cooperate and timely respond to any reasonable request made by the relevant supervisory authorities applicable to the Client in relation to EU Regulation 2022/2554 in relation to the Services provided to the Client.
Vartion shall cooperate with any regular IT test affecting the Services to be performed by the Client, resolving any incidents in which the Services are involved (including record keeping and where necessary providing access) and the Client is allowed to continuously monitor the Services and Vartion shall inform the Client if it becomes aware of any circumstance which could materially impact the critical or support functions carried by the Client.
To the extent Vartion is compensated for the time spent and to the extent deemed beneficial, at the request of the Client Vartion will participate in any ICT security awareness program.

SECTION C OF THESE GENERAL TERMS AND CONDITIONS: SAAS-SERVICE

USE OF SOFTWARE: ACCESS AND RESTRICTIONS

Access of the Client to the Software

Vartion will provide Users with Login Codes at the request of the Client. Once a User has logged in using his or her personal Login Codes, the User gains access to those parts of the Software for which the User is authorised.
The Login Codes are personal, non-transferable and shall be kept secret.
If Vartion discovers or reasonably suspects Unauthorised Use, or if the Client notifies Vartion of such use, Vartion will immediately block such access to the Software through the concerned personal Login Codes. Vartion will immediately notify the Client about the Unauthorised Use and/or the blocking of such Login Codes and it will confirm this in writing or by e-mail as soon as possible thereafter. After the Login Codes have been blocked, the User must request replacement Login Codes.

Restrictions to the Software

The Client or its Users may only use the SaaS-Service for the benefit of the Client’s organisation and each of them confirm that they are acting as part of their trade, business, craft or profession. The Client or its Users will not use the SaaS-Service for the benefit of any third party and/or enable a third party to use the SaaS-Service. The Client or its Users may not transfer or disclose any Login Codes or allow inspection by or make them available to a third party, unless Vartion has previously and in writing agreed to the transfer or disclosure of Login Codes to such third party.
Vartion is authorised to take technical measures to protect the SaaS-Service or – with a view to agreed limitations – to the duration or scope of the use of the Software by Client or its Users. The Client nor its Users is authorised to remove or bypass the technical measures in the SaaS-Service.
Vartion is entitled:
to alter the nature and the extent of the SaaS-Service by, among other things, offering an altered or new version of the Software;
to maintain, alter or add to the functionalities or properties of the SaaS-Service;
to put the SaaS-Service out of operation, either wholly or in part, for maintenance purposes or for security reasons; and
to immediately terminate Users’ or Client’s access to and use of the SaaS-Service temporarily or permanently, wholly or in part, if:
Vartion is obliged to do so pursuant to an applicable rule of law (including any privacy or data processing laws) or judicial decision (e.g. due to any data (illegally) placed or stored by the Client in the Software);
the Client or its User(s) acts in breach of the terms and conditions of the the Agreement; and/or
a third party acts in breach of the Agreement via an User’s account.
To the extent feasible, Vartion shall notify the Client if Vartion plans to undertake one of the measures mentioned in Clauses 24.6 (a), 24.6 (b) or 24 (c) within a reasonable timeframe before undertaking such measure. Vartion will not take such measures for a longer period than is necessary, and Vartion will render SaaS-Service inoperable to implement such measures to the extent possible outside Service Hours.
Access to and the use of the SaaS-Service as referred to in Clause 6 sub (d) will be terminated by sending an e-mail of termination to the Client or by withdrawing any (personal) Login Codes as a result of which Users will no longer be able to access and use the SaaS-Service. If access to and the use of the SaaS-Service is terminated pursuant to Clause 24.6 sub (d), Vartion will not owe any payment, including any reimbursement of any fee paid for Use of Software, to the Client.
Any assistance rendered on behalf of or by Vartion for the Client as a result of a User’s or the Client’s (i) inexpert use of the SaaS-Service or the Software or non-compliance with Vartion’s instructions or (ii) use of the SaaS-Service or the Software contrary to the the Agreement, will be invoiced to the Client at Vartion’s applicable rates.

SAAS-SERVICE: CLIENT OBLIGATIONS

The Client is responsible for establishing and retaining a connection with the internet or another network required to gain access to the Software.
The Client may only use the results generated through the Software within the Client’s own organization for the sole purpose of mitigating the Client’s own compliance and legal risks, and excluding any other use, including commercial use. Client may not provide the results to third parties and shall be restricted from selling the results generated by the Software.
The Client itself is responsible for the choice, the use and the application of the Software and the SaaS-Service, the data it processes through the Software, and the decisions taken on the basis thereof.
The Client will comply with any reasonable (redelijke) instruction or request from Vartion (i) to meet any of Vartion’s or the Client’s obligations under the Agreement, (ii) to provide all information and documentation that is reasonably available to the Client and that Vartion may request, all to the extent that such requirements and requests are necessary for Vartion to comply with its obligations pursuant to the Agreement and Applicable Law.

The Client shall only use the results generated through the Software within the Client’s own organization for the sole purpose of mitigating Client’s own compliance and legal risks, and excluding any other use, including commercial use.

SAAS-SERVICE: INTELLECTUAL PROPERTY

All IP Rights which Vartion and/or any of its affiliates, directors, officers or employees have developed in rendering the Software shall be retained by Vartion. The Client may only use such rights to the extent and for the term granted in the Agreement.
The Client agrees that the rendering of the Software and Services related to the Software shall not lead to the creation of new IP Rights. The Client hereby explicitly transfers to Vartion or waives any right it may have with respect to any change, amendment or addition to or enhancement of the Software.
Should as a result of the development or maintenance of the Software, the rendering of the Software or any other activity performed due to the Agreement (including sets of parameters, accompanying documentation or reports drawn up by a Party), any IP Rights be created or vested, Vartion shall become sole owner of these IP Rights.
Notwithstanding Clause 26.3, the Client hereby transfers all IP Rights it has obtained in connection with the Agreement for all current and future purposes and use (including the possibility to have third parties render Services) to Vartion. To the extent required, the Client shall co-operate fully to transfer these IP Rights to Vartion, including but not limited to the preparation and execution of further documents needed to consummate the transfer concerned. The Client hereby grants Vartion an irrevocable power of attorney to execute any act or agreement on behalf of the Client for the purposes of this Clause.

SAAS-SERVICE: REPRESENTATIONS, WARRANTIES AND INDEMNIFICATIONS

The Client undertakes and warrants that it will comply with all laws affecting or binding upon the Client or Vartion and that the Client will use the Software provided by Vartion in a lawful manner.
The Client unconditionally represents and warrants to Vartion that:
The Client shall take appropriate technical and organisational measures to protect its equipment, infrastructure and connection against viruses, malware and similar threats, and to prevent use of the Software and/or SaaS-Service resulting in third persons gaining access to the Software and/or SaaS-Service;

the Users shall comply with the terms and conditions applicable to the use of the Software by the Users, and that such Users will adhere to procedures laid down and instructions for use issued by Vartion in relation to the Software and/or SaaS-Service;

every User shall take all reasonable measures to prevent personal Login Codes from becoming known to unauthorised persons and that the Client shall immediately notify Vartion if it discovers any form of unauthorised use of personal Login Codes, any other breach of the security measures with regard to the Software and/or SaaS-Service or Unauthorised Use;

the Client shall only use software, middleware, operating systems and software tools (including the Software) of Vartion which the Client is entitled to use or is permitted to use or has the benefit of the same;

the Client shall not cause the Users to use the Software or materials in relation to the Use of Software, in any manner to which the Client or Users are not entitled to do so;
the Client shall comply at all times with any applicable compliance rules of Vartion and as provided by Vartion to the Client; and
the Client shall take the appropriate measures to ensure that within its organisation the SaaS-Service shall be fairly used and e.g. restrictions of the Free Version shall not be bypassed by creating multiple accounts.
Vartion unconditionally represents and warrants to the Client that:
Vartion shall take all necessary measures and precautions to achieve the undisturbed access to and use of the Software. Furthermore, Vartion guarantees that it shall execute all actions to minimize the effects of any disruption;
Vartion shall exercise that degree of skill and care which would reasonably (redelijkerwijs) be expected from a skilled and experienced person engaged in the development of the Software;
Vartion shall not access, use, amend or otherwise change or corrupt any of the data of the Client to which Vartion has access to under the Agreement and as enclosed in the Software (if any), unless and to the extent this is necessary to provide the Software Services and is subjected to the Client’s Authorisation.
Vartion explicitly does not represent, warrant, guarantee nor promise in any way that the searches performed by the Client through the Software, the search results or any other results from the Software (constant monitoring included), conclusions, summaries or reports as highlighted in or provided by the Software are in any way exhaustive, complete, true or accurate or in any way include all relevant or necessary articles, hits, registrations, subscriptions, entries or other publicly (or non-publicly) available (online) sources.

SAAS-SERVICE: (LIMITATION) OF LIABILITY

Neither Party shall be liable for indirect damages, except in the event of intent (opzet) or gross negligence (grove nalatigheid), including, without limitation, damages for lost business, profits, data or use of any Software related service, incurred by either Party or any third-party in connection with the Agreement, regardless of the nature of the claim, even if foreseeable or the other Party has been advised of the possibility of such damages.

The Client’s liability

If Unauthorised Use of Login Codes can be attributed to the User, the Client must reimburse Vartion with the reasonable administrative costs incurred in relation to the blocking and replacement of those Login Codes, and the Client will be liable for any damages suffered as a result of the Unauthorised Use.

Vartion’s liability

Vartion’s liability for damages will be limited to an amount equal to the fees invoiced during 12 months by Vartion for the Software prior to the date on which the damages occurred, except in the event of intent (opzet) or gross negligence (grove nalatigheid) by Vartion. With regard to Clients using the Free Version and/or Free Trial only, Vartion shall not be liable for any damage whatsoever, except in the event of intent (opzet) or gross negligence (grove nalatigheid) by Vartion.
Vartion is not liable for damages resulting in any way from (a) an inexpert, careless use of the Use of Software, (b) the Client’s use contrary to the Agreement or instructions provided for the use, or (c) acting upon the Client’s instructions or (d) corrupt or lost data or other information from the Client.
Vartion does not guarantee (a) that the Software will be provided without interruption, incidents or defects, or (b) that all such interruptions, incidents or defects can be remedied.
Vartion is not liable for incidents, other malfunctions or faults in the access to or use of the Software (or non-availability thereof) due to malfunctions or faults in the computer equipment, software or connections of the Client or third parties engaged by the Client. Vartion is not responsible or liable for retrieving or recovering data affected by incidents, defects or any other occurrence whatsoever.
Vartion is not responsible nor liable for any of the search results or any other results from the Software (constant monitoring included), conclusions, summaries or reports or in any way for the content of any of the highlighted or provided articles, hits, registrations, subscriptions, entries or any other shown public (or non-public) available (online) sources.
Vartion expressly makes no warranty as to the efficacy of the Software it may be requested to perform. It is accepted by the Client that part of the SaaS-Service is collecting information from Public Domain Data through automated technologies on the basis of keywords selected by the Client. This use does not mean that the information generated through the SaaS-Service on the basis of Public Domain Data shall at all times be true and Vartion does not make any representation to this effect. Any use by the Client of the information generated through the SaaS-Service shall be entirely for its own risk and the Client before use should further verify such information.
Neither Vartion nor any of its directors, officers or employees is liable for damages incurred by the Client due to a breach of contract by Vartion, if Vartion is able to cure the breach within thirty (30) days from the date of written notice given by the Client in respect of such breach.
In no event shall Vartion or any of its directors, officers or employees be liable for any loss, goodwill, revenues, profits or any consequential, special indirect, incidental, punitive or exemplary loss, damages or expenses unless caused by intent (opzet) or gross negligence (grove nalatigheid) by Vartion to be determined in a final judgement of a competent court.
No liability shall exist if the Client has not informed Vartion in writing within three (3) months after the Client has become aware, or could reasonably have been aware, of the event or incident leading to the liability.
No liability shall exist if the Agreement has not become effective.

SAAS-SERVICE: TERM AND TERMINATION

The Agreement remains in place for one (1) month. After such period, the Agreement will automatically be renewed every month unless the Client expressed one (1) calendar month in advance that it wishes to terminate the Agreement through the complete and correct completion of the Client Offboarding Form and/or written notice.
Termination of the Agreement shall not discharge the Parties from those obligations described in the Agreement which by their nature must continue, including but not limited to provisions of confidentiality, intellectual property, and governing law and jurisdiction.
The Client shall be entitled to terminate the Agreement with immediate effect by giving written notice if Vartion commits a material breach of its obligations under the Agreement and such breach has not been remedied within five (5) days after receipt of a notice of such breach to the extent such breach can be cured.
Vartion may terminate the Agreement with immediate effect by giving written notice if the Client does not pay the fees within fourteen (14) days and has not disputed the invoice in accordance with Clause 4.4.

To the extent possible under Applicable Law, each Party may terminate the Agreement with immediate effect in the event that:
a request for bankruptcy, moratorium or other insolvency proceedings of any kind relating to another Party to the Agreement has been filed or made;
an other Party to the Agreement has been declared insolvent or bankrupt;

the assets of a Party to the Agreement are seized or attached; or
the circumstances are such, in the fair opinion of Vartion, that it cannot be reasonably expected from Vartion that it continues to provide the SaaS-Service under the Agreement (including, but not limited to, alleged fraudulent or criminal activities or other legal, moral or financial integrity violations).
Upon termination of the Agreement, whether on Vartion’s or the Client’s initiative:
Vartion may take such actions as it deems necessary; and
the Client shall procure that anything is done to give practical and immediate effect to such termination.

After the date of termination, Vartion shall not have any obligation whatsoever to monitor events or inform the Client or deliver any kind of Services or Software in any way, unless separately agreed upon in writing.