General terms and conditions for the provision of services by Vartion B.V.
These general terms and conditions have been registered with the Chamber of Commerce under number 72248408.
Article 1: General
1.1 These General Terms and Conditions are applicable to all Agreements, all agreements arising under Agreements and all offers and/or proposals made by Vartion to the Client.
1.2 Any general terms and conditions of the Client (or any of its group entities) are not applicable and are hereby rejected.
Article 2: Definitions
2.1 Defined terms have the meaning ascribed to them in these Agreement(s) to which these General Terms and Conditions apply.
2.2 In addition the following defined terms apply:
- the term “Agreement” is understood to mean any written or verbal agreement pursuant to which Services are rendered by Vartion or other arrangements are agreed upon;
- the term “Applicable Law” is understood to mean the law of the Netherlands and any other law, regulation, rule, general business practice, self imposed rule or any requirement from a regulatory or self-regulating authority;
- the term “Client” is understood to mean every legal entity (rechtspersoon) or individual for which the Services are rendered pursuant to the Agreement;
- the term “Client Personal Data” is understood to mean the Personal Data that the Client provides to Vartion in the context of the Agreement;
- the term “Data Subject” is understood to mean natural persons to whom the Personal Data relates, including but not limited to directors, officers, employees, representatives, agents, ultimate beneficial owners or contacts of the Client, its affiliates and to the extent applicable, of its customers;
- the term “Data Processor Services” is understood to mean all services in respect of which the Client qualifies as a processor under EU Data Protection Laws;
- 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 “Fee Schedule” is understood to mean the fee schedule as determined by Vartion at any time;
- the term “General Terms and Conditions” is understood to mean these general terms and conditions that are applicable to all Agreements between the Client and Vartion;
- the term “Party” is understood to mean either the Client, Vartion and any other party to any Agreement;
- 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 “Services” is understood to mean all the work and services that Vartion carries out on behalf of (or all the services that Vartion provides to) the Client, in the broadest sense of the term; and
- the term “Vartion” is understood to mean the Vartion B.V., a private company with limited liability, having its registered office in Amsterdam and its business office at Strawinskylaan 411, WTC, Toren A, 4th floor, 1077 XX Amsterdam, registered at the Commercial Register under number 72248408.
Article 3: Remuneration – payment
3.1 Vartion shall receive remuneration for the Services, the amount and method of payment of which are determined by the Agreement, or failing that, by the standard Fee Schedule as in use by Vartion upon entering into the Agreement. During the period of the provision of Services by Vartion, the remuneration 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 remuneration by Vartion shall only take effect after thirty (30) days following written notice of adjustment by Vartion to the Client. All fees comprising the remuneration are exclusive of VAT.
3.2 Vartion shall invoice the Client, as the case may be or as stipulated in the Agreement, at dates during the year as set out in the Agreement or at the end of completion of (a part of the) the Services. Invoices for fees and any additional charges shall be rendered in the name of Vartion or by persons, firms or companies nominated by Vartion.
3.3 The remuneration for the Services carried out by Vartion are payable within thirty (30) days after the invoice date. The Client agrees that all fees and charges invoiced shall be deemed accepted unless disputed in writing within thirty (30) days of the invoice date. If the invoice is not paid within this period, the Client is automatically in default of its obligations without any further notice being required. The date mentioned on the letter accompanying the invoice or on the invoice itself is taken as the date of dispatch. Payment to Vartion shall be effected without set off, counterclaim or deduction for or on account of taxes, levies or charges.
3.4 Vartion is entitled to suspend or cease to provide the Services in case the amount due has not been paid within 14 days following the due date. In such case, Vartion will give notice thereof in writing.
Article 4: Execution of services
4.1 The obligation to render Services 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.
4.2 The Client is responsible for determining the scope of the Services necessary for its needs. The Services are performed for the benefit of the Client only. Third parties may not rely thereon. Vartion may amend the scope of Services if this would be required or deemed necessary by Vartion from compliance with Applicable Law perspective.
4.3 Vartion shall perform the Services in accordance with the standards of professional care and Applicable Law. Vartion may not be obliged to do anything that contravenes with Applicable Law. In performing the Services Vartion may decide, in consultation with the Client, in what manner and who carries out the Services.
Article 5: Instructions
5.1 Vartion is authorised to act upon instructions communicated in any manner (e.g. letter, fax, e-mail, telephone) so long as Vartion reasonably believes its instructions to be those of the Client. Vartion shall not be liable for acting in accordance with instructions, requests, representations or documents that it considers to be genuine.
5.2 Nothing in the Agreement shall prevent Vartion from acting upon the verbal instructions of the Client in respect of the Services. The recording of a file note by Vartion detailing the date, party giving the instruction and the nature of the instruction shall be full and final evidence of the Client’s instructions.
Article 6: Liability
6.1 Vartion expressly makes no warranty as to the efficacy of the Services it may be requested to perform. It is accepted by the Client that part of the Services 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 Services on the basis of Public Domain Data shall at all times shall be true and Vartion does not make any representation to this effect. Any use by the Client of the information generated through the Services shall be entirely for its own risk and the Client before use should further verify such information.
6.2 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 30 days from the date of written notice given by the Client in respect of such breach.
6.3 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.
6.4 Any (remaining) liability of Vartion or any of its directors, officers or employees will be reduced with the amount of contributory negligence (eigen schuld) on the part of the Client and shall be limited to the amount paid out in the relevant case by the professional liability insurance of Vartion. In the absence of payment by the insurer of any amount under the insurance policy, the liability of Vartion or any of their directors, officers or employees will be limited to an aggregated amount of fees paid during the 12 months prior to the occurrence of the event or incident allegedly leading to the liability and in all cases to a maximum of EUR 50,000 (fifty thousand euro).
6.5 No liability shall exist if the Client has not informed Vartion in writing within three months after the Client has become aware, or could reasonably have been aware, of the event or incident leading to the liability.
6.6 No liability shall exist if the Agreement has not become effective.
Article 7: Undertaking
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 Services provided by Vartion in a lawful manner.
Article 8: Indemnity
8.1 The Client indemnifies Vartion and any of its directors, officers or employees and shall keep Vartion and any of its directors, officers or employees indemnified against any and all claims from third parties arising from or connected to the Services provided by Vartion, including claims resulting form illegal or unlawful use of such Services by the Client, unless any of such claims is the result from intent (opzet) or gross negligence (grove nalatigheid) on the part of Vartion.
8.2 The indemnity will include all loss suffered and legal and other costs incurred by the Provider in connection with the claims.
8.3 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.
Article 9: Termination
9.1 Either Party may terminate the Agreement by notice in writing observing a notice period of one month.
9.2 If a Party commits a material breach which has not been remedied within 14 days following written notice of such breach by the other Party, then such other Party may terminate the Agreement without observing the notice period of article 10.1.
9.3 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 can not 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).
9.4 Upon termination of the Services, whether on Vartion’s or the Client’s initiative:
- Vartion may take such actions as it deems necessary;
- Subject to Applicable Law, Vartion shall have the right to retain all the documents which it holds from the Client (and Vartion has a perfect lien thereon) as long as Vartion has any claim on the Client;
- The Client shall procure that anything is done to give practical and immediate effect to such termination; and
- Vartion may require that the Client removes from Vartion’s archives, such at its own expense, all the files relating to the Client or, if this is impractical or impossible, that it shall fully compensate Vartion for the further storage of said files.
9.5 The indemnities under article 9 of the General Terms and Conditions shall continue notwithstanding the termination. This applies also to other provisions of the General Terms and Conditions or the Agreement that by nature has an effect after termination (including but not limited to this article 9 and articles 6, 8, 10, 13, 14, 17 and 18 of the General Terms and Conditions).
9.6 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 Services in any way, unless separately agreed upon in writing.
Article 10: Use of Data
10.3 The Client represents and warrants to Vartion that all Client Personal Data is obtained in accordance with EU Data Protection Laws; and in particular, the Client represents and warrants to Vartion that it has obtained valid consent of the Data Subjects where required by EU Data Protection Laws.
10.4 The Client further represents and warrants to Vartion that it has provided the Data Subjects with all necessary information about the processing of their Personal Data in the context of the Agreement, as required by EU Data Protection Laws, and that a copy of Vartion’s Privacy Statement is provided to the Data Subjects prior to the moment that the Data Subject provides the Customer Data to Vartion directly or to the Client for subsequent disclosure by the Client to Vartion. The Client agrees and undertakes to defend, indemnify and hold harmless Vartion from all costs, penalties, damages and other losses incurred or suffered as a result of or in connection with any breach by the Client of this provision.
10.5 The Client and Vartion acknowledge and agree that (i) the Client qualifies as a Processor and (ii) Clause 11 of these General Terms and Conditions shall apply to the Data Processor Services and take precedence in the vent of any conflict (Clause 11 serves as a data processing agreement).
Article 11: the Client as a Processor
11.1 The Client shall, in connection with the Agreement, act as a Processor, whereas Vartion qualifies as a Controller. The Client hereby accepts and undertakes to:
- Process the Personal Data for the purposes, subject matter and duration set forth in the Agreement;
- Take all adequate technical and organizational security measures required pursuant to article 32 of the General Data Protection Regulation;
- In so far as the Client would gain knowledge of any accidental or unlawful loss, modification, disclosure or access or of any other form of unauthorized processing, or of any disruptions endangering the security of the Personal Data, it shall, inform Vartion hereof in writing without undue delay;
- Guarantee that members of its personnel process the Personal Data in accordance with the instructions given by the Client, and that they are bound by a duty of confidentiality or are under an appropriate statutory obligation of confidentiality;
- Guarantee that the Personal Data is only transferred to countries outside the EEA insofar as this is necessary for the performance of the Agreement, or if expressly authorized by Vartion or if required to do so by law (in such case, the Client will inform Vartion of such legal requirement before the processing, unless that legal requirement prohibits such disclosure on important grounds of public interest;
- Notify Vartion of any request the Client receives from Data Subjects regarding access, alterations or erasure of the Personal Data and/or the exercise of any other Data Subject rights, and provide assistance to Vartion in as far as may reasonably be required of the Client in order to enable Vartion to respond to requests of Data Subjects relating to the exercise of their legal rights;
- Assist Vartion in ensuring compliance with its legal obligations under EU Data Protection Laws relating to data security and data breach notifications, data protection impact assessments, and prior consultations of competent authorities, in as far as may reasonably be required from the Client;
- Erase or return all relevant Personal Data to Vartion, at the choice of Vartion, after the Data Processor Services have ended, and erase copies, unless a legal obligation requires the Client to keep the Personal Data for a longer period;
- Upon reasonable request of Vartion, provide Vartion with all information that is reasonably necessary to demonstrate compliance with the obligations laid down in this Clause 11, and permit Vartion, at reasonable intervals and with a maximum of once a year, access to any relevant premises to audit/inspect the Client’s data security policies and procedures insofar as legally possible and the use of the Client of any software of Vartion. Vartion will give a three weeks’ notice prior to such audit/inspection; and
- The Client shall immediately notify Vartion if, in its opinion, an instruction (possibly) infringes with EU Data Protection Laws.
11.2 The Client is allowed to appoint of one or more sub-processors.
11.3 Any and all information and reports obtained as a result of or in connection with any audit or inspection of the Client’s premises, as provided for by Clause 11 (i) above, shall be treated as the Client’s confidential information and Vartion shall be subject to duties of strict confidentiality thereto in accordance with applicable laws;
11.4 The Client shall be exclusively responsible for ensuring that it complies at all times with any and all of its obligations as a Controller under EU Data Protection Laws, and that all Personal Data which it processes (including in respect of any and all provision of access to the Personal Data which it may provide to Vartion) is in strict conformity with EU Data Protection Laws.
11.5 Vartion shall not be responsible, and have no liability, for following any processing by the Client. The Client shall defend, indemnify and hold harmless United, on a full indemnity basis and at its own expense, against any and all losses, liabilities, damages, costs, penalties and/or expenses (including attorney fees, administrative fines and court costs) that may be incurred or suffered by Vartion, or for which Vartion may become liable, as a result of or in connection with any breach by the Client of (i) its warranties or obligations under this Clause 11 or (ii) any EU Data Protection Laws.
11.6 All reasonable costs and expenses incurred by Vartion in the performance of its obligations under Clause 11 sub (f), (g), (h) and (i) shall be paid for by the Client.
Article 12: Third party rights – assignment
12.1 Each director, officer or employee of Vartion involved in rendering the Services for the Client may rely upon and shall have the benefit of these General Terms and Conditions.
12.2 None of the rights and obligations under the Agreement may be assigned by a Party to a third party, 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.
Article 13: Duty to observe confidentiality
Vartion and the Client guarantee vis-à-vis each other that they will observe complete confidentiality with regard to the non-public information on the business and affairs of the other Party and each of them shall not provide information to third parties without written permission from the relevant Party, on penalty of EUR 5,000 for every event in contravention of this paragraph, except if required by Applicable Law, the proper performance of the Agreement, court decision or regulatory request or if this occurs in the framework of the normal execution of Vartion’s tasks or the normal conduct of the Client’s business.
Article 14: Intellectual property
14.1 All rights of intellectual property which Vartion and/or any of its affiliates, directors, officers or employees have developed in rendering the Services shall be retained by Vartion. The Client may only use such rights to the extent and for the term granted in the Agreement.
14.2 The Client shall ensure that none of the information, documents or other tools provided to Vartion in connection with the Services infringe any rights of intellectual property vested with a third party.
Article 15: Variations of the General Terms and Conditions
15.1 Vartion is entitled to unilaterally amend these General Terms and Conditions. Any such amendment shall take effect one month following service by Vartion in writing 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 service by Vartion of the amendment. A notice of termination will have to be given to Vartion in accordance with article 10 hereof and 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.
Article 16: Illegality and Priority
16.1 If any part of these General Terms and Conditions are held to be illegal, invalid, void or in any other way unenforceable under Applicable Law, then such part shall be deemed not to form part of these General Terms and Conditions and the remaining parts of the General Terms and Conditions shall not be affected.
16.2 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.
Article 17: Notices
All notices or other communications pursuant to the Agreement or these General Terms and Conditions shall be delivered to the addresses mentioned in the Agreement (or such other address communicated in accordance with this article) by registered post, courier or e-mail.
Article 18: Governing law, disputes and language
18.1 These General Terms and Conditions and the Agreement shall be governed by the laws of the Netherlands.
18.2 All disputes, in whatever way they may arise from these General Terms and Conditions or the Agreement between Vartion and the Client, shall be brought before the competent courts in competent court in Amsterdam, the Netherlands.
18.3 The English language version of these General Terms and Conditions and the Agreement is the sole and only binding version; any other translation is for information purposes only.