DEFINITIONS & APPLICABILITY
Article 1: Definitions
Terms used in these general conditions are defined as follows:
- “Embloom”: the private company with limited liability Embloom B.V., with registered office in Maastricht and principal place of business at Gelissendomein 8-10 in (NL-6229 GJ) Maastricht, listed in the trade register of the Chamber of Commerce on 5 October 2010 under number 50976524;
- “Purchaser”: any natural person, legal person or partnership that is a party to or involved in a (legal) act or Agreement referred to in article 2.1, or to which a (legal) act referred to in that article is addressed or from which a request referred to in that article originates;
- “User”: any actual (natural) person who makes use of the Applications for the account and risk of the Purchaser and who is logged in as user of the Applications via an account of the Purchaser;
- “User Data”: data, information, data files or materials that the User sends/has sent to the Applications during the use of the Services;
- “Conditions”: these general conditions, also available at embloom.nl/algemene-voorwaarden;
- “Applications”: online software applications (computer software) that contain various tools for measuring, monitoring and treating clients/patients (hereinafter referred to as clients) within the healthcare sector;
- “Services”: all Services to be provided by Embloom to the Purchaser with regard to the development and making available of the Applications, including the provision of a right to use them and the storage of User Data, as well as all matters that are the subject of an Agreement that Embloom performs for the Purchaser, including but not limited to (screening) consultations by psychologists of Embloom;
- “Content”: the questionnaires, psycho-education, exercises, logs and modules available within Applications;
- “Offer”: a written proposal from Embloom to the Purchaser for the performance or provision of Services, including the costs associated with the purchase of those Services;
- “Agreement”: any Offer signed by the parties to which these Conditions apply, as well as any provision or communication validly declared applicable to the legal relationship between the parties in accordance with these Conditions;
- “SLA: the Service Level Agreement in which the quality and guarantees of the Applications are described, as well as the security level as set out in the Conditions;
- “Response Time”: the time that elapses between the receipt of a Report and the time within which Embloom starts the Support, as confirmed in an oral or written communication to the Purchaser;
- “Service Hours”: Embloom’s usual office hours (9.00 hours – 17.00 hours CET) from Monday to Friday, excluding official public holidays;
- “Support”: information and advice on the use of the Applications and to explain the Documentation that is provided by Embloom during Service Hours, by telephone and/or by e-mail and/or via a website or help desk, as well as the provision of assistance in identifying causes, including defects that impede the unhindered use of the Applications, and in efforts to solve such problems;
- “Report”: a Report in Category A, B, C or D, separately or jointly;
- “Category A Report”: the Applications are entirely inaccessible due to a defect on the side of Embloom, or the Applications have come to a total standstill;
- “Category B Report”: a problem that causes a serious application error, that may jeopardize the progress of an essential processing period, but does not bring the Applications to a total standstill. Whether or not by means of some modification, a large part of the Applications can still be accessed and also be worked with;
- “Category C Report”: a non-material problem in the Applications that requires a non-immediate response from Embloom;
- “Category D Report”: all questions and requests for information about the use or implementation of the Applications (e.g. a textual adjustment to a questionnaire);
- “Documentation”: the user manuals with regard to the Applications that are to be made available to the Purchaser by Embloom.
- “Goods”: all things (material objects susceptible to human control) and/or property rights of Embloom.
Article 2: Applicability Conditions
- These Conditions apply to each (request for) use of the Applications, Goods and/or Services of Embloom, to all Applications made available by Embloom, to all proposals, Offers, order and/or assignment confirmations, invoices from Embloom to the Purchaser, the provision of Goods and/or Services of any kind, invoices from Embloom to Purchaser, and to all legal relationships and Agreements between Embloom and the Purchaser. These Conditions also apply if Embloom has to engage third parties for the performance of an Agreement.
- The applicability of general conditions of the Purchaser is explicitly rejected by Embloom.
- The Purchaser can only invoke derogating and/or supplemental clauses if and in so far as they have been accepted in writing by Embloom. Such derogating and/or supplemental provisions do not affect the applicability of the other provisions of the Conditions and only apply to the Agreement for which this has been specifically and explicitly agreed in writing.
- By using the Applications, Goods and/or Services of Embloom, in whatever way, or by giving an assignment, placing an order or signing the Offer, the Purchaser accepts these Conditions. By accepting the Conditions, the Purchaser also agrees to the applicability of the Conditions to each future use of the Applications, Goods and/or Services of Embloom, to all future proposals, Offers, order and/or assignment confirmations, provisions of Goods and/or Services and invoices from Embloom to the Purchaser, and to all future legal relationships and Agreements between Embloom and the Purchaser.
- Embloom reserves the right to change or supplement the Conditions. The changed Conditions enter into effect after the lapse of a period of 14 (fourteen) days since the announcement of the changed Conditions to the Purchaser, or on another date communicated with the announcement.
- If any provision of these Conditions is null and void or annulled, the other provisions of these Conditions remain in full force and effect.
APPLICATIONS & RIGHTS TO USE
Article 3: Use of Applications
- The Purchaser/User can only use the Applications via registered accounts, which can be traced to natural persons. If the Applications are used via a link to an external system, the identification details used for the login shall be traceable to a natural person. It is not permitted to have multiple users/natural persons make use the Applications with the same login details. The Purchaser shall ensure and guarantee that the provisions contained in these Conditions are also complied with by the User.
- The Purchaser/User guarantees to Embloom that it is authorised to use the Applications, Goods and/or Services of Embloom and will act in accordance with the provisions of the Agreement and these Conditions.
- The Purchaser may only use the Applications for measuring, monitoring and/or treating complaints of its own clients.
- The activities that the User performs within the framework of the use of the Applications, Goods and/or Services of Embloom may never (i) be based on untruths or be misleading, (ii) infringe the rights of Embloom and/or third parties, including copyrights, neighbouring rights, trademark rights or other intellectual property rights or rights relating to the protection of privacy, (iii) be in violation of laws, treaties, regulations or rules, (iv) be of a commercial nature, unless Embloom has given permission for this in writing, or (v) be in any way unlawful towards Embloom and/or third parties.
- The Purchaser/User guarantees the accuracy, completeness and reliability of the information and data provided by it or on its behalf to Embloom with a view to the use of the Applications, Goods and/or Services.
Article 4: Right to use the Applications/Services
- Embloom grants the Purchaser/User a non-exclusive right to use the Applications in accordance with the provisions of the Agreement and these Conditions. Without prejudice to the provisions of these Conditions, the right to use of the Purchaser/User comprises no more than the right to load and run the Application.
- The Purchaser/User explicitly declares to be aware of the fact that specific results of the Applications and/or Services and/or outcomes of the data only serve to support the (screening) diagnostics and/or treatment. Results and/or outcomes shall always be tested against other sources of (clinical) information, including but not limited to contact with the client.
- The Purchaser may only have the Applications and/or Services used by Users who are entitled, authorised and (professionally) competent to use and interpret (the results and/or outcomes of) the Applications and/or Services. Embloom is never liable for any diagnosis or decision-making based on the (results and/or outcomes of) the Applications and/or Services. The Purchaser shall indemnify Embloom with respect to such diagnosis or decision-making and/or outcomes of the data.
- The Purchaser shall always strictly comply with the restrictions on use agreed between the parties. Any rights not explicitly granted to the Purchaser are vested in Embloom, its licensors or its suppliers.
- The Purchaser may have the Service used by the Users within or outside its organization for the internal purposes of its organization.
- The right to use also comprises standard adjustments to the Applications, as well as further developments and/or extensions of the Applications made available by Embloom.
- The Purchaser is obliged to take all measures and follow all instructions to be taken and followed during the use of the Services of Embloom. The Purchaser is also obliged to explicitly communicate and clarify the instructions for use issued by Embloom to third parties that make use of the Applications, Goods and/or the Services.
- Where appropriate, rights are always granted to the Purchaser subject to the condition that the Purchaser pays the fees agreed for them and recorded in the Agreement in a timely manner and in full.
Article 5: Restrictions on the right to use (license)
- The right to use is non-transferable. Unless with the written and explicit permission from Embloom, the Purchaser is not permitted to (i) (sub)license, sell, rent, dispose of or grant limited rights in respect of the Applications, or make them in any way or for any purpose available to a third party (ii) give a third party remote or other access to the Applications or transfer the Applications to a third party for hosting, not even if the third party concerned uses the Applications exclusively for the benefit of the Purchaser, (iii) create derivative works of the Applications or the content, (iv) create “web links” to the Applications or create “frames” or “mirrors” of them on a server or a wireless or internet-based device, or (v) apply reverse engineering to the Applications or open the Applications in order to (a) develop competing goods or services, (b) develop products in which the same ideas, services, functions or images are used as those used in the Applications of Embloom, or (c) copy ideas, facilities, functions or images of the Applications of Embloom.
- The Purchaser/User may only use the Applications for internal purposes and shall refrain from (i) sending or storing hurtful, offensive, threatening, defamatory or otherwise unlawful material, including material that is harmful to children or harms the right to privacy of third parties, (ii) sending or storing material that contains software viruses, worms, Trojan horses or other harmful computer codes, files, scripts, agents or programmes, (iii) disrupting or damaging the integrity or performances of the Applications or the data stored in them, or (iv) attempting to gain unlawful access to the Applications or the associated systems or networks.
- Embloom (and its licensors) exclusively owns (own) all rights, claims and interests, including all associated intellectual property rights in and to the technology, content and service of the Applications. All rights to any suggestions, ideas, requests for improvement, feedback, recommendations or other information that the Purchaser or any other party has submitted to Embloom in connection with the Applications accrue exclusively to Embloom. The Agreement between Embloom and the Purchaser is not a sales agreement and does not grant the Purchaser any ownership rights to the Applications and Goods. Nor does any intellectual property right with regard to the Applications accrue to the Purchaser pursuant to the Agreement or for any other reason. The name Embloom, the logo of Embloom and the product names related to the Applications are trade names/brands of Embloom and no rights or licenses to use them are granted.
Article 6: User data
- The user himself is responsible for all activities that take place under his user accounts and shall at all times comply with all applicable treaties, local, provincial, national and foreign laws, regulations and rules in connection with the use of the Applications and the performance of the Agreement, including treaties, laws, regulations and rules in respect of (data) privacy, international communications and the transmission of technical or personal data.
- The Purchaser shall (i) immediately notify Embloom of any unauthorised use of the login details (user name and password), (user) accounts or any other known or suspected breach of the security, (ii) immediately notify Embloom and make reasonable efforts to immediately stop the copying or distribution of content as soon as this becomes known to or is suspected by the Purchaser/User, and (iii) not represent itself as another user of the Applications or submit incorrect identity details to gain access to the Applications or use them.
- Embloom is not the owner of the User Data.
- The Purchaser is the party that determines the purposes for which and the way in which the User Data are or will be processed. Embloom acts as a data processor on behalf of the Purchaser with regard to the User Data.
- Within the framework of the provisions of the preceding paragraph of this article, Embloom will only process User Data in accordance with the instructions of the Purchaser, or in another way if this is required in order to be able to provide the services. Embloom has taken technical and organizational measures against the unauthorised or unlawful processing of User Data and against accidental loss or destruction of or damage to the User Data in the database.
- The Purchaser concludes a processing agreement with Embloom that contains (additional) guarantees with regard to the processing and security of User Data. This processing agreement forms an integral part of the Agreement.
- After a well-founded termination of the Agreement, the Purchaser’s right to open or use the User Data will immediately expire and Embloom will be obliged to destroy the User Data.
Article 7: Proposals, Offers
- All proposals and Offers and other communications from Embloom, both in writing and oral, are valid up to thirty (30) days after the date of dispatch, unless the proposal, Offer or other communication from Embloom explicitly indicates otherwise.
- All documents and data, including but not limited to (technical) descriptions, information, examples, data, Content, as provided on the website, in catalogues, leaflets, brochures etc., or exhibited at trade fairs or otherwise, have been carefully manufactured/exhibited by Embloom, but do not bind Embloom and shall never be regarded as an exact representation of what Embloom proposes or is obliged to make available, provide or perform. The same applies to the Documentation.
- Embloom cannot be held to its proposal if the Purchaser should have understood that the proposal or a part of the proposal contains an obvious mistake or clerical error. Proposals from Embloom do not automatically apply to subsequent orders.
Article 8: Confidential data and indemnity
- Either party guarantees that all data received from the other party of which it is known or should be known that it is of a confidential nature, will remain secret, unless a statutory obligation requires disclosure of those data. The party receiving confidential data will only use them for the purpose for which they were provided. Data shall in any case be considered confidential if they have been designated as such by one of the parties.
- The Purchaser shall indemnify Embloom against claims from persons whose (personal) data are registered or are processed within the framework of a personal registration that is kept by the Purchaser or for which or for whom the Purchaser is otherwise responsible pursuant to the law or any agreement, unless the Purchaser proves that the facts underlying the claim are entirely attributable to Embloom.
Article 9: Conclusion of Agreements
- Subject to what is provided below, Agreements between Embloom and the Purchaser are concluded if and as soon as Embloom has received an Offer signed by the Purchaser, or has otherwise received the Purchaser’s approval for the performance or provision of Services, or, if this moment is earlier, if Embloom has started carrying out the assignment of the Purchaser, including but not limited to providing login data, making the Applications available or delivering Goods and/or performing Services.
- The Agreement can only be changed by means of a written statement of approval from Embloom with regard to the variant of the Services. During the term of an Agreement, the Purchaser/User can purchase various tests or other materials at the then current rates.
- All Agreements are entered into by Embloom subject to the condition precedent that the Purchaser is sufficiently qualified and creditworthy to comply with the (financial) obligations under the Agreement, such solely at the discretion of Embloom.
- Embloom reserves the right to refuse orders, requests or assignments at all times. If Embloom finds that the Purchaser has payment arrears or that the Purchaser has the Applications used by Users who are insufficiently entitled, authorised and competent to use the Applications, as described in article 4.3 of the Conditions, this will always be reason for Embloom to refuse an order, request or assignment from the Purchaser.
Article 10: Communications: cooperation of the Purchaser
- Each communication between Embloom and the Purchaser can take place electronically, unless the Conditions, the Agreement and/or the law explicitly prescribe(s) otherwise. For the purpose of the application of the Conditions, an electronic message is equated with a written message.
- The version of a communication stored by Embloom constitutes proof thereof, subject to proof to the contrary by the Purchaser.
- Electronic communications are deemed received on the day of sending, unless the recipient proves otherwise. If a communication is not received due to delivery and/or accessibility problems on the side of the Purchaser’s e-mail box or computer, this is at the Purchaser’s risk, also if the e-mail box is hosted at a third party.
- If the Purchaser does not make the data files, information, data or materials necessary for performance of the Agreement available to Embloom, or not in a timely manner, or not in accordance with the agreements, or if the Purchaser fails to comply with its obligations in any other way, Embloom will have the right to suspend performance of the Agreement, fully or partially, as well as the right to charge the resulting costs on the basis of its usual rates, everything without prejudice to Embloom’s right to exercise any other statutory right. The Purchaser is responsible for the correct choice and timely and adequate availability of telecommunication facilities, including an internet connection, for the performance of the Agreement and the use of the Applications, Goods and/or Services of Embloom, with the exception of the facilities used and managed directly by Embloom. Embloom is never liable for damage or costs resulting from transmission errors, malfunctions or unavailability of these facilities, unless the Purchaser proves that such damage or costs are due to intent or gross negligence of Embloom, its managers or subordinates.
- Within the framework of the performance of the Agreement and the use of the Applications, Goods and/or Services, Embloom assigns access or identification codes (login codes) to the Purchaser/User. Embloom can change the access or identification codes assigned to the User. The Purchaser/User shall treat the login codes confidentially and with care.
- Embloom is never liable for damage or costs resulting from abuse of login codes or incorrect or unlawful use of the Applications, Goods and/or Services.
Article 11: Price
- All prices are in euro and excluding turnover tax (VAT), other levies imposed by the government and (administrative) costs. The percentage and amount of the turnover tax as well as the (administrative) costs are stated separately on the invoice.
- Unless stated otherwise, all quotations issued by Embloom are subject to price changes. If the Purchaser has a periodic payment obligation, Embloom is entitled to adjust the applicable prices and rates in writing with due observance of a notice period of at least two months.
- The applicable prices and rates may be revised by Embloom annually, at the start of a calendar year, on the basis of the material price index of the Dutch Healthcare Authority of the previous year.
- If the prices and rates are increased by more than the price indexation as referred to in the previous paragraph, the Purchaser will be entitled to terminate the Agreement within thirty days after the notice, with effect from the date on which the adjustment take effect.
- The provisions regarding prices and rates in paragraphs 3 and 4 do not apply to the prices and rates of Content for which (additional) license fees apply. License fees will be adjusted by Embloom at the time when Embloom is instructed to do so by the relevant licensor or at the time when the change in the license fees becomes known to Embloom. Prices and rates will never be adjusted with retroactive effect.
- The parties will record the date or dates on which Embloom will charge the fees for the agreed performances to the Purchaser in the Agreement. In the absence of an explicitly agreed invoicing schedule, all amounts relating to the provision of the Applications, Goods and/or Services and the right to use them are payable at the time when the Applications are made available.
- If the Purchaser wishes to change the variant of the Services, this will be possible with effect from the next calendar month if the change concerns a so-called upgrade. This means that the new variant desired by the Purchaser is more extensive than the variant the Purchaser is using at that time.
- During the term of the Agreement, a so-called downgrade of the variant of the Services is only possible at the end of the contract term, with due observance of a period for notice of the change of two months.
Article 12: Payment and default
- Unless explicitly agreed otherwise in writing, payment shall be made by transfer to the bank account designated by Embloom. The value date stated on Embloom’s bank statements is regarded as the day of payment.
- Invoices shall be paid by the Purchaser in accordance with the payment conditions stated on the invoice, unless otherwise is indicated. In the absence of a specific arrangement, the Purchaser shall pay within fourteen days after the invoice date. The Purchaser is not entitled to set off or suspend a payment.
- Embloom is at all times entitled to require security, in a form to be determined by Embloom, for the timely and correct compliance with the (payment) obligations, in which case the Purchaser will be obliged to comply, and suspend performance of the Agreement until the required security has been provided to the satisfaction of Embloom.
- Embloom is at all times authorised to invoice any partial performance separately.
- Embloom can retain possession of the things, goods, property rights, data, documents, data files received or generated within the framework of the Agreement and the (interim) results of the services provided by Embloom, despite an existing obligation to surrender, until the Purchaser has paid all amounts payable to Embloom.
- If the Purchaser does not pay the amounts due in a timely manner, the Purchaser will owe statutory (commercial) interest on the outstanding amount without any warning or notice of default being required. If the Purchaser still fails to pay the claim after a warning or notice of default, Embloom may pass the claim over for collection, in which case the Purchaser will also be obliged to pay, in addition to the total amount due at that time, all judicial and extrajudicial costs, including the costs charged by external experts in addition to the costs determined in court. The Purchaser also owes the costs incurred by Embloom for a failed mediation, if the Purchaser is ordered by award or judgment to pay all or part of the outstanding amount.
- In the event of non-payment, late payment or partial payment, Embloom is authorised to suspend the further provision of Applications, delivery of Goods and/or performance of Services until the time when the Purchaser has fully complied with its payment obligations, including payment of any (commercial) interest and costs due.
- Embloom is at all times entitled to require, before delivering any (further) performance, that the Purchaser makes an advance payment or an immediate cash payment at the time when the Applications are made available, the Goods are delivered and/or the Services are performed, in which case the Purchaser will be obliged to comply. If Embloom and the Purchaser have agreed payment of an advance, Embloom will not start performance until the advance has been paid to Embloom.
- Each payment by the Purchaser will in the first place be regarded as payment of any payable costs or any payable interest, and after full payment thereof, the payment will be regarded as payment of the oldest outstanding invoice, regardless of whether something else is stated with the payment.
Article 13: Periods
- All periods for delivery or performance specified or agreed by Embloom have been set to the best of its knowledge, on the basis of the information known to Embloom at the time of entering into the Agreement. Embloom makes every reasonable effort to observe the agreed periods as much as possible. The mere exceeding of a specified or agreed period does not cause Embloom to be in default. In all situations, therefore also if the parties have explicitly agreed a deadline in writing, Embloom will only be in default on account of exceeding a time limit after the Purchaser has given it a written notice of default.
- Embloom is not bound to periods and deadlines that can no longer be observed due to circumstances beyond its control that occur after the Agreement has been entered into. Nor is Embloom bound to periods and deadlines if the parties have agreed a change in the content or scope of the Agreement. If a deadline or period threatens to be exceeded, Embloom and the Purchaser will enter into consultations as quickly as possible.
Article 14: Expiry periods
- Unless the parties have explicitly agreed otherwise in writing, or otherwise is provided in the conditions, any claim against Embloom will in any case expire by the lapse of one year since the time of delivery or provision or one year since the time when delivery or provision should have taken place or, if it concerns services, one year since the date of the service provision or one year since the date when the service provision should have taken place, in so far as mandatory national and international regulations do not prescribe otherwise.
Article 15: Guarantees
- Embloom guarantees that the Services with regard to the Applications will be performed in a competent manner.
- Embloom guarantees availability in accordance with the provisions of the Agreement and the SLA up to and including its own infrastructure. Embloom is in no way responsible for the telecommunication connections downstream from its infrastructure.
- Embloom does not guarantee that the online material made available via or within the Applications is up-to-date, complete and accurate.
Article 16: Liability: indemnity
- Embloom’s total liability for an attributable failure in the compliance with the Agreement is limited to compensation for direct damage up to twice the amount stipulated for the relevant Agreement (excluding VAT) per event, whereby a series of related events is regarded as one event. If the Agreement is mainly a continuing performance contract with a term of more than one year, the price stipulated for the Agreement is set at the total of the fees (excluding VAT) stipulated for one year.
- Embloom is never liable for indirect damage. In these Conditions, indirect damage includes consequential damage, lost profit, missed savings and business interruption.
- Embloom is never liable for any clinical diagnosis or decision-making based on (results and/or outcomes of) the Services and/or Applications, nor for the effects of the use of (the online material available within) the Applications.
- The limitations referred to in the preceding paragraphs of this article expire if and in so far as the damage is due to intent or gross negligence on the part of Embloom or its managers.
- The Purchaser itself is liable for damage caused by errors or defects in the data, information, instructions or advice provided by it to Embloom or a third party or by Services and actions performed by it for Embloom or a third party.
- In the event of an attributable failure, Embloom shall first be given a written notice of default, stating a reasonable period to still comply with its obligations or remedy any errors or limit or eliminate damage.
- Precondition for the arising of any right to compensation is always that the Purchaser reports the damage in writing to Embloom as quickly as possible after it has arisen. Each claim for compensation against Embloom expires by the mere lapse of 24 months since the arising of the claim.
- Embloom declares that it has taken out proper a professional liability insurance. Embloom’s liability is at all times limited to the amount paid out in the relevant case under this insurance of Embloom.
- If and in so far as a limitation of liability as referred to in this article derogates from provisions of the processing agreement agreed between the parties, the provisions of the processing agreement prevail, provided that Embloom explicitly reserves the right to invoke the limitations of liability contained in these Conditions in so far as the processing agreement does not provide for this.
Article 17: Risk
- The risk of loss or theft of or damage to things, goods, software or data that are the subject of the Agreement passes to the Purchaser at the time when they have been placed in the actual possession of the Purchaser or an auxiliary of the Purchaser.
- The Purchaser bears the risk of the selection, use and application in its company or organization of the Applications, data, Content, data files and other goods and materials and of the Services to be provided by Embloom, and is also responsible for the monitoring, privacy and security procedures and an adequate system management.
Article 18: Termination of the agreement
- Either party is only authorised to terminate the Agreement if the other party attributably fails in the compliance with essential obligations under the Agreement, provided always and in all cases after a proper and detailed written notice of default stating a reasonable period for remedying the failure.
- If an Agreement that by its nature and content does not end as a result of completion has been entered into for an indefinite period, it can be terminated by either party by written notice, stating reasons, after proper consultation with the other party. If the parties have not agreed an explicit notice period, a reasonable notice period shall be observed. The parties will never be liable to pay compensation on account of termination.
- In derogation from the provisions of regulatory law, the Purchaser can terminate an Agreement for the performance of Services only in the cases provided for in these Conditions.
- Either party may terminate the Agreement in whole or in part in writing with immediate effect, without notice of default, if (i) the other party is granted a provisional or other suspension of payments, (ii) the other party’s bankruptcy is petitioned for, (iii) the company of the other party is liquidated or terminated otherwise than for the purpose of a reconstruction or merger of companies. Embloom will never be obliged to refund monies already received or pay compensation on account of such a termination. In the event of termination of the Agreement, the right to use the Applications, Goods and/or Services made available to the Purchaser by Embloom expires by operation of law.
- Embloom has the right to terminate the Agreement with immediate effect for the future by written notice in the event that the Purchaser fails to comply with one or more of its obligations under the Agreement or infringes one of Embloom’s (intellectual property) rights.
- The Purchaser is entitled to dissolve the Agreement if the Purchaser validly dissolves or terminates one or more other agreements between the parties because of an attributable failure of Embloom and the Purchaser proves that the Applications have become useless to it because of that dissolution or termination.
- If the Purchaser has already received performances under the Agreement at the time of a dissolution as referred to in this article, these performances and the related payment obligations cannot be undone, unless the Purchaser proves that Embloom is in default with regard to those performances. Amounts that Embloom has invoiced prior to the dissolution in connection with what it has already properly performed or delivered to perform the Agreement remain fully payable, without prejudice to the provisions of the previous sentence, and become immediately due and payable at the time of the dissolution.
Article 19: Force majeure
- Neither party is obliged to comply with any obligation if it is prevented from doing so as a result of force majeure. Force majeure exists, inter alia, if the performance of the Agreement is prevented, temporarily or otherwise, as a result of circumstances that are reasonably beyond the control of the party concerned, such as accidents, fire, illness and malfunctions in the equipment.
- If a force majeure situation has lasted longer than ninety days, the parties have the right to terminate the Agreement by written notice. What has already been performed under the Agreement will in that case be settled proportionally, without the parties owing each other anything else.
Article 20: Intellectual Property Rights
- All intellectual and industrial property rights in the Applications, software, associated systems and networks, websites, data files, Content, equipment or other materials and goods, such as analyses, designs, Documentation, reports and Offers made available under the Agreement, as well as in preparatory materials thereof, rest exclusively with Embloom, its licensors or its suppliers. The Purchaser/User only obtains the rights to use that are explicitly granted to it in these Conditions, the Agreement and the law. Any other or further right of the Purchaser to reproduce the Applications, software, associated systems and networks, websites, data files, Content, equipment or other materials and goods is excluded. A right to use accruing to the Purchaser/User is non-exclusive and non-transferable to third parties.
- The Purchaser/User is not permitted to remove any notice concerning the confidential nature or concerning copyrights, brands, trade names or other intellectual or industrial property rights from the Applications, software, websites, data files, Content, equipment or other materials and goods, or change such a notice.
- Embloom is allowed to take technical measures to protect the Applications or with a view to agreed restrictions on the duration of the right to use the Applications. The Purchaser/User is not permitted to remove or circumvent such technical measures.
- The Purchaser shall immediately notify Embloom if it finds that a third party is infringing any intellectual or industrial property right of Embloom, its licensors or its suppliers, or if a third party has any claim against the Purchaser in connection with the intellectual or industrial property rights of Embloom, its licensors or its suppliers. If Embloom so requires, the Purchaser shall give all reasonable assistance to help end the infringing acts or dispute as quickly as possible.
- In the event that the Purchaser infringes any intellectual or industrial property right as described in this article, Embloom may claim from the Purchaser an immediately due and payable, non-offsettable penalty of € 250,000.00 per infringement and for each day that such infringement continues, without prejudice to Embloom’s right to full compensation.
Article 21: Reporting complaints
- If the Purchaser is not satisfied at the way in which Embloom performs or has performed the Agreement, the Purchaser can report its fully and clearly described complaint to Embloom within a reasonable period. Any questions and/or complaints with regard to the Applications, Goods and/or Services provided by Embloom can be reported to Embloom’s management by mail to the address specified in article 1 paragraph 1 or by e-mail to firstname.lastname@example.org.
- Complaints reported to Embloom will be responded to by Embloom within a period of fourteen days from the date of receipt. If a complaint requires a foreseeable longer response time, Embloom will send a confirmation of receipt of the complaint to the Purchaser within the aforementioned period. Such a confirmation will also contain an indication of the period within which the Purchaser can expect a more detailed response.
Article 22: Governing law and disputes.
- The Agreements between Embloom and the Purchaser and all legal relationships arising from them or related to them are governed by Dutch law. The applicability of the Vienna Sales Convention 1980 is excluded.
- If disputes arise, the parties will first attempt to reach an amicable settlement.
- In so far as mandatory national or international legal rules do not prescribe otherwise, any disputes with regard to or arising from or in connection with an Agreement concluded by Embloom, these Conditions and all legal relationships arising from them or related to them, will be submitted exclusively to the competent court in Maastricht or to the competent court in the place of residence of the Purchaser, such at the discretion of Embloom.
- A dispute is deemed to exist as soon as one of the parties declares so.
PROVISIONS SERVICE LEVEL AGREEMENT (SLA)
Article 23: SLA General
- Embloom will make the Applications available in accordance with the service levels set out in this part of the Conditions. If Embloom does not achieve a specific service level described in this part, the consequences thereof are described hereinafter in the Conditions.
- Embloom will provide error corrections and error prevention services, or other types of services with regard to the Applications, provided that the Purchaser accepts and implements all maintenance and new releases offered by Embloom.
Article 24: SLA Exclusions
- The Service Level guarantees defined in this part of the Conditions do not apply in the following situations:
- During the regular Service Window: up to 4 times per calendar month for up to 4 hours between 23.00 hours and 7.00 hours CET. Embloom reserves the right to move this regular Service Window, provided that this has been notified to the Purchaser in writing and has no noticeable adverse consequences for the Purchaser.
- In the event of incidents due to force majeure.
- For carrying out service activities or upgrades that cannot take place during the regular Service Window, provided that this has been notified to the Purchaser in writing in advance.
- Any problem or malfunction resulting from actions of the Purchaser.
- The unavailability of the Applications at the request of the Purchaser or Users, and/or the unavailability of the Applications during work at the request of the Purchaser or Users.
- The unavailability of Users when Embloom requests assistance from the Purchaser in identifying or isolating the problem or malfunction.
Article 25: Response times
- Support is available for all Reports during the Service Hours, the response times for all Categories being as follows: Category A: 1 hour, Category B: 2 hours, Categories C and D: 1 working day.
- Embloom strives for the following solution times: Category A: 1 working day and Category B: 2 working days The solution times with regard to Reports in Categories C and D depend on the planning.
- Support on site does in principle not take place, since the Applications are offered from a central location, via a generic and uniform version. If on-site assistance is desired, an appointment can be made separately by mutual consultation at the then current consultancy rate for the Purchaser.
- The Purchaser shall give Embloom the necessary access to the databases and/or data of the Purchaser and/or Users, and allow that changes necessary to resolve the Report are made.
- The Purchaser shall arrange for a minimum of 1 and a maximum of 3 contact persons, who are familiar with the (operation of the) Applications and can be contacted or relied upon as main contact person or deputy main contact person.
Article 26: Reports
- Reports to Embloom shall be made by the Purchaser.
- Users shall first address their Reports to the Purchaser.
- All Reports can be made by telephone (via +31 (0)43-3507385) or by e-mail (via email@example.com).
- Embloom is not liable for any problem in the transmission of reports, the operation of the general telecom services, as provided by a telecom company, or the correct operation of the telecom equipment of the Purchaser and/or Users.
- This SLA only applies to Reports made by telephone or e-mail. Embloom provides no support in response to Reports made by the Purchaser and/or Users in other ways, for example via social media channels.
Article 27: Accessibility & availability
- If the Purchaser or User is unable to access the Applications via the internet, the Purchaser shall report this.
- Embloom strives for an availability of 99% uptime on average per calendar month, except during the SLA Exclusions, as described in article 24 of the Conditions.
- Embloom is free to select which person acts as contact of the Purchaser or tries to resolve the Report. The Purchaser cannot stipulate a specific person as contact or service provider.
- The Applications can be used via PCs with the then common, usual and current internet browsers. If an older version of an internet browser and/or a not very common version is used, this can affect the operation of the Applications.
Article 28: Security
- The Applications are made available from a location equipped for this purpose. This location is optimally equipped, in accordance with the current state of the art and knowledge and at a current and acceptable cost level, to make the Applications available in a professional manner.
- Also the physical protection of the building, the protection against unauthorised access, the 24×7 hardware support, the fire protection, the protection against power outages and of internet access, the firewall, security, data protection, data backup, etc. fall within the scope of the provisions of paragraph 1 of this article.
Article 29: Back-up & Recovery Strategy
- The production environment of Embloom runs on a dedicated VPS on the Highlander platform of True (www.true.nl). The design of the platform is fully redundant, which means that downtime is kept to a minimum. True makes a daily snapshot of the entire VPS and a safety backup of all configuration data for disaster recovery. Daily safety copies are also made of the Applications, including data. These are stored off-site on a backup server with an encrypted file system. The retention period is thirty days.
- In the event that a technical failure of the infrastructure cannot be coped with by redundancy, resetting the VPS snapshot is the first resort. If the snapshot is not available, the safety copies will be relied on. As a last resort, the entire environment can be rebuilt at another data centre on the basis of the off-site safety copies.
Article 30: Failures / non-compliance with the SLA
- If Embloom demonstrably fails in the compliance with its obligations as set out in this part of the Conditions on the SLA, the Purchaser shall notify Embloom in writing. Embloom has then three (3) days to restore the service to a level that is at least equal to the level as described in this SLA or to the level of before the reported failure.
- If Embloom is also unable to implement the correction as referred to in the preceding paragraph in a timely manner, the Purchaser shall give Embloom a written notice of default. Embloom has then seven (7) days to restore the service to a level that is at least equal to the level as described in the SLA or to the level of before the first reported failure.
- If Embloom is unable to realise the correction as referred to in paragraph 2 of this article, the Purchaser has the option to terminate the Agreement with immediate effect in writing.
- If the situation as described in paragraph 1 of this article occurs three (3) times during 1 (one) calendar year, the Purchaser may also invoke the provisions of paragraph 3 of this article.