Online General terms and conditions for the provision of services by Vartion B.V.
Vartion B.V. is registered with the Chamber of Commerce under number 72248408.
- These Online 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.
- Any general terms and conditions of the Client (or any of its group entities) are not applicable and are hereby rejected.
- Capitalised terms used in these Online General Terms and Conditions shall have the meanings as set out below:
- the term “Agreement” is understood to mean either the SaaS-Agreement, the Support Services-Agreement and/or the Set-Up-Agreement pursuant to which Services are rendered by Vartion or other arrangement pursuant to which Services are rendered by Vartion. Part of the Agreement are these Online General Terms and Conditions;
- 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 Onboarding Form” is understood to mean the signup form which is used to create an account with Vartion for either the paid or Free Version of Pascal.
- 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 “Database” is understood to mean the database, compiled and owned by Vartion and forming part of the Intellectual Property 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 controller under EU Data Protection Laws;
- the term “Data Processor” is understood to mean a processor under EU Data Protection Laws;
- 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 “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 “Free Trial” is understood to mean free use of Pascal 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 as selected in the Client Onboarding Form;
- the term “Intellectual Property 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 (i);
- 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 Services. The Login Codes are personal, non-transferable and secret;
- the term “Online General Terms and Conditions” is understood to mean these online general terms and conditions that are part of the Agreement between the Client and Vartion;
- 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; and
- 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-Services Agreement” is understood to mean the agreement in the basis of which the “SaaS-Services” are rendered by Vartion of which these Online General Terms and Conditions are part;
- the term “SaaS-Services” is understood to mean the non-exclusive and non-transferrable right to use the Software that Vartion grants the Client as well as the services whereby Vartion makes and keeps the Software available to the Client and Users via the internet or another network;
- the term “Service Hours” is understood to mean the specific hours during which Vartion shall ensure access to the helpdesk for the Client under the Set-Up-Agreement and/or the Support Services-Agreementas the case may be, such hours being every business day between 09:00h and 17:00h CET;
- the term “Services” is understood to mean either the SaaS-Services, Support Services and/or Set-Up;
- the term “Set-Up” is understood to mean Vartion setting up the Software and providing the Client with Login Codes for the Users as specified by the Client together with an to be agreed upon initial training session on how to efficiently use the Software and how to optimise search results in the Software including support services;
- the term “Set-Up-Agreement” is understood to mean the agreement on the basis of which the Set-Up is rendered by Vartion of which these Online General Terms and Conditions are part. The Set-Up-Agreement includes the following support activities: (a) providing support to the Client and Users during Service Hours for the use of the SaaS-Services and (b) providing workarounds if access to the Software is temporarily unavailable and the cause of such unavailability can be attributed to Vartion. Provided always that the support provided to the Client under the Set-Up-Agreement shall not exceed the maximum of three (3) hours on a yearly basis to be spent by Vartion for such support;
- the term “Software” is understood to mean the computer software, named Pascal, is being a tool designed and developed (1) to support risk and compliance professionals during a customer due diligence (CDD), (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 date, made available by Vartion to the Client via the internet or another network;
- the term “Support Services” is understood to mean all services rendered or to be rendered and activities and tasks performed or to be performed by or on behalf of Vartion that are necessary to ensure the undisturbed operation and usage of the Software in accordance with Vartion’s service levels and conditions as determined in the Support Services-Agreement;
- the term “Support Services-Agreement” is understood to mean the agreement on the basis of which the Support Services are rendered by Vartion of which these Online General Terms and Conditions are part;
- 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; 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.
- Commencement of the Agreement
- The SaaS-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 signup for Pascal (vartion.com)by Vartion online.
- The Support Services-Agreement and/or Set-Up-Agreement commences as of the date of any written or verbal agreement pursuant to which the Set-Up and/or the Support Services are rendered by Vartion, or as is indicated in the Client Onboarding Form.
- Access and restrictions to the Software
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 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 Users may only use the SaaS-Services 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 Users will not use the SaaS-Services for the benefit of any third party and/or enable a third party to use the SaaS-Services. The Client or 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-Services or – with a view to agreed limitations – to the duration or scope of the Software. The Client is not authorised to remove or bypass the technical measures in the SaaS-Services.
- Vartion is entitled:
- to alter the nature and the extent of the SaaS-Services 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-Services;
- to put the SaaS-Services 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-Services 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 a User acts in breach of the terms and conditions of the Agreement; and/or
- a third party acts in breach of the Agreement via an User’s account.
- Vartion will not take any measures as described in Clause 4.6 sub (c) for a longer period than is necessary, and will render SaaS-Services inoperable outside Service Hours if possible.
- Access to and the use of the SaaS-Services as referred to in Clause 4.6 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-Services. If access to and the use of the SaaS-Services is terminated pursuant to Clause 4.6 sub (d), Vartion will not owe any payment, including any reimbursement of any fee paid for the Services, to the Client.
- Any Support Services 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-Services or Software or non-compliance with Vartion’s instructions or (ii) use of the SaaS-Services or Software contrary to the Agreement, will be invoiced to the Client at Vartion’s applicable rates.
- The Client’s 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 itself is responsible for the choice, the use and the application of the Software and the SaaS-Services, 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.
- Remuneration – payment
- The fees to be paid by the Client to Vartion for the Services, can consist of: (1) a One-
off Set-Up fee, (2) a pay-as-you-go fee and (3) an hourly fee and (4) such other
remuneration as agreed upon in between writing between Vartion and the Client . For
payment, the Client can use the payment methods offered by Vartion.
One-off Set-Up fee
- If the Client has selected the option of the One-off Set-Up fee, the Client shall pay a
One-off Set-up fee and shall be invoiced at the first month following for the Set-Up of
the Software by Vartion for the Client and the training sessions to be held for the Client.
- The pay-as-you-go fee for the SaaS-Services depends on the number of cases
created, active, monitored and archived and the number of manual searches. The price per case and any such related activity is described in Pascal’s menu ‘Billing and products. The fees in respect of creation of new cases will be incurred as of the date of creation of such case. The fees for active cases will be incurred on each anniversary of the creation date of such case. Fees for monitoring will be accrued monthly. The fees related to archived cases will be incurred on the date of archiving and the fees for manual searches will be incurred on the date of the search made. Vartion will invoice monthly.
Support Services fee
- The fee to provide the Support Services shall be calculated on an hourly basis and will be invoiced monthly. The use of the Support Services should be agreed upon by the Parties prior to the start thereof.
- All amounts due hereunder to Vartion must have been paid within twenty (20) days after the receipt of the invoice.
- Payment shall be effectuated in accordance with the payment method as selected by the Client in the Client Onboarding Form and shall be deducted automatically within five (5) business days after sending the invoice, unless Vartion has agreed to a different payment method with the Client separately.
- All fees comprising the 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. These amounts may change over time depending on local tax requirements in the country, state, territory or city where the Client resides.
- The Client will notify Vartion not later than twenty (20) 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 meet to discuss the disputed part of the invoice as soon as possible. If it is established that the complaint was unjustified, the Client will pay the disputed part of the invoice without further delay.
- The Client agrees that all fees and charges invoiced shall be deemed accepted unless disputed within twenty (20) 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 in case the amount due has not been paid within twenty (20) days following the due date. In such case, Vartion will give notice thereof in writing.
Right to change fees
- 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 three (3) months following written notice of adjustment by Vartion to the Client. If the Client does not agree to the changes, 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.
- Clauses 6.1 up to and including 6.12 shall not apply to the Free Version and the Free Trial.
- Execution of the Services
- The obligation to render the 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.
- 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 the Services if this would be required or deemed necessary by Vartion from compliance with Applicable Law perspective.
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.
- Where appropriate, 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.
- 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.
- 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 Services 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-Services resulting in third persons gaining access to the Software and/or SaaS-Services;
- 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 SaaS-Services;
- 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-Services 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 software or materials in relation to the Services, in any manner to which the Client or Users are not entitled to do so;
- the Client shall not cause any damage to or risk for Vartion’s reputation;
- 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;
- the Client shall conduct its business in accordance with sound and generally accepted business practices;
- the Client shall comply at all times with any applicable compliance rules of Vartion and as provided by Vartion to the Client;
- 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; and
- the Client shall 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:
- as part of the Support Services and/or the Set-Up, 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 Services;
- 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 Services.
- 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.
- 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 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 Services provided by Vartion, including claims resulting from illegal or unlawful use of such Services 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.
- Vartion will indemnify and hold harmless the Client against all claims or legal actions against the Client by third parties based on claims that the Software including the changes to and enhancement of the Software, infringe an intellectual or industrial property right of such third parties in the countries where Vartion or the Client are located.
- Where a claim is made by a third party against a Party or person for which it is entitled to be indemnified by the other Party, such other Party, subject to it giving sufficient security against any costs and other liability, loss or damage which the Party that is indemnified may incur in respect thereof and giving reasonable consideration to the observations and interests therein of the Party that is indemnified, shall be granted control over the defence and settlement of such claim or action. The Party that is indemnified shall not make any prejudicial admission or similar statement and shall provide assistance at the expense of the other Party in defence and settlement of such claim or action as the other Party may reasonably request. The Party that is indemnified will grant the other Party the necessary authority and supply all information that may reasonably be required and will reasonably co-operate with the other Party in order to allow the other Party to defend such 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.
- (Limitation of) Liability
- Neither Party shall be liable for indirect damages, including, without limitation, damages for lost business, profits, data or use of any services, incurred by either Party or any third party in connection with the Agreement, regardless of the nature of the claim (including negligence), 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 will be limited to an amount equal to three (3) times the pay-as-you-go fee with reference over a period of three (3) months period payable to Vartion for the SaaS-Services, except in the event of intent (opzet) or gross negligence (grove nalatigheid) by Vartion. With regard to the Free Version and Free Trial 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 Services, (b) the Client’s use contrary to the Agreement or (c) corrupt or lost data or other information from the Client.
- Vartion does not guarantee (a) that the Services 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 Services (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 Services it may be requested to perform. It is accepted by the Client that part of the SaaS-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 SaaS-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 SaaS-Services 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.
- Clause and Term
- The term of the Service shall be for an indefinite period, except when there has been agreed to a Free Trial upon invitation of Vartion. After the expiration of the Free Trial Period the Service subjected to these Online General Terms and Conditions shall continue for an indefinite period, unless either Party disagrees.
- The SaaS-Agreement remains in place for one (1) month. After such period, the SaaS-Agreement will automatically be renewed every month unless the Client expressed one (1) calendar month in advance that it wishes to terminate the SaaS-Agreement through the complete and correct completion of the Client Offboarding Form and/or written notice.
- The Support Services-Agreement and/or Set-Up-Agreement remains in place for the duration of the Support Services-Agreement and/or Set-Up-Agreement. In case of an open-ended Support Services-Agreement and/or Set-Up-Agreement either Party may terminate the Support Services- Agreement and/or Set-Up-Agreement by notice in writing observing a notice period of one (1) calendar month to the appointed contact person of the other Party.
- 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 fifteen (15) days after receipt of a notice of such breach.
- Vartion may terminate the Agreement with immediate effect by giving written notice if:
- the Client does not pay the fees within fifteen (15) days and the Client did not dispute such invoice;
- the Client’s objections against an invoice, disputed in accordance with Clause 6.8, are not justified and the Client has not paid the amount due pursuant to said disputed invoice within fifteen (15) days after; or
- the Client commits a material breach of its obligations under the Agreement and such breach has not been fully cured within fifteen (15) days after receipt of a notice of such breach.
- 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).
- Upon termination of the Services, 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 Services in any way, unless separately agreed upon in writing.
- Processing of Personal Data
- Under the Agreement, Vartion does not process any other Personal Data than stated in this Clause and/or as indicated in the privacy notice of Vartion notice (privacy notice – Vartion – Vartion ).
- The Client acknowledges that Vartion shall process the Client’s Personal Data in accordance with, and for the purposes described in Vartion’s privacy notice privacy notice – Vartion – Vartion. The Client confirms that it has read and understood Vartion’s privacy notice.
- The Client shall, in connection with the Agreement and with reference to Vartion’s privacy notice (privacy notice – Vartion – Vartion) act as either a Data Processor or a Data Controller. The Client is to be regarded as a Data Controller with respect to (i) any database stored at the location of the Client and owned by the Client, (ii) data(base(s)) imported by the Client and (iii) (case) monitoring.
- The Client shall not instruct Vartion to act as a Data Processor (under EU Data Protection Laws). The Parties will enter a separate data processing agreement if the Client requires Vartion to act as Data Processor in order to perform obligations under this Agreement. If Vartion in any way processes Personal Data on the Clients behalf, then (i) Vartion shall restrict the processing to the minimum necessary to perform the Clients documented instructions or discharge the obligations under the relevant Agreement; (ii) the terms of confidentiality herein shall be applied to the Client’s and/or Users Personal Data; (iii) Vartion shall ensure that there are appropriate security measures on their own systems that Vartion uses to process the Personal Data of the Client and/or User; (iv) the Client warrants that the Client has all necessary appropriate consents and notices in place to permit the processing of the Personal Data of the Client and/or User; (v) Vartion shall provide reasonable assistance to enable the Client to discharge its legal obligations as Data Controller; (vi) Vartion shall enter into data processing agreements with any third parties Vartion uses to process the Personal Data of the Client and/or User with Vartion’s obligations under the Agreement; and (vii) on termination of an Agreement Vartion shall erase the Personal Data of the Client and/or User from the systems and records of Vartion unless not to do so is both permitted by law and necessary.
- Third party rights – assignment
- Each director, officer or employee of Vartion involved in rendering the Services 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, 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.
- 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), 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 customers, suppliers, persons or organisations with which the Client does or has done business.
- Intellectual Property Rights
- All Intellectual Property Rights 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.
- 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.
- The Parties agree that no Intellectual Property 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 Intellectual Property Rights in or resulting from the Services will be and remain owned by Vartion.
- The Client agrees that the rendering of the Services shall not lead to the creation of new Intellectual Property 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 Services or any other activity performed due to the Agreement (including sets of parameters, accompanying documentation or reports drawn up by a Party), any Intellectual Property Rights be created or vested, Vartion shall become sole owner of these Intellectual Property Rights.
- Notwithstanding Clause 15.5, the Client hereby transfers all Intellectual Property 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 Intellectual Property 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.
- The Client warrants to Vartion in respect of the Intellectual Property Rights that it is entitled to transfer any Intellectual Property Rights.
- Variations of the Online General Terms and Conditions
Vartion is entitled to unilaterally amend these Online 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 service by Vartion of the amendment. A notice of termination will have to be given to Vartion in accordance with Clause 11 hereof and in such case the amended Online General Terms and Conditions shall not take effect. Having become effective the amended Online General Terms and Conditions shall have precedence over all previously notified Online General Terms and Conditions.
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 Parties to the Agreement.
- 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.
- 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 Online 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.
- Rules of interpretation
- The Agreement has 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.
- Governing law and jurisdiction
- The Agreement is 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.