These Fulldata B.V. (hereinafter: “Fulldata”) Terms of Service (“Terms of service”) apply to heuse by any customer (hereinafter: “Customer”) of Fulldata’s software product called CloudXcellence , or any other software product made available by Fulldata, on the basis of‘Software-as-a-service’, which is understood to mean a service by which Fulldata makes functionality available to and keeps functionality available for client remotely, through the Internet or another data network, without providing client with a physical carrier with or download of the relevant underlying software (hereinafter: “CloudXcellence”).
SCOPE OF THESE TERMS OF SERVICE
Fulldata owns, holds and controls CloudXcellence. CloudXcellence includes proprietary rightsin certain valuable trade names, trademarks and computer programs. By installing, having installed, clicking to accept, or using CloudXcellence, all the foregoing by using the orderform as designated by Fulldata, Customer accepts these Terms of service. If Customer complies with these Terms of service, Customer has the rights as described below.
USAGE RIGHTS AND LIMITATIONS
Fulldata owns, holds and controls CloudXcellence. CloudXcellence includes proprietary rightsin certain valuable trade names, trademarks and computer programs. By installing, havinginstalled, clicking to accept, or using CloudXcellence, all the foregoing by using the orderform as designated by Fulldata, Customer accepts these Terms of service. If Customer complies with these Terms of service, Customer has the rights as described below.
Customer shall not be allowed to remove or modify any designation concerning theconfidential nature or concerning copyrights, trademarks, business names or other intellectual or industrial property rights from the software or databases.
Fulldata shall be allowed to take technical measures to protect the software in CloudXcellence or with a view to agreed restrictions in the duration of the right to use CloudXcellence. Customer shall not be allowed to remove or evade such a technicalmeasure.
Infringement. Customer shall notify Fulldata as soon as practicable after Customer becomes aware of: (i) any actual, threatened or suspected infringement of anyintellectual property (including know-how) in respect of CloudXcellence, any related material or of any breach of confidence relating to any of the foregoing; (ii) any claim brought against Customer alleging that its use of CloudXcellence, any related material any intellectual property or other rights belonging to or alleged to belong to the claimant.
PRODUCT SUPPORT AND PRODUCT LIFECYCLE SUPPORT
Fulldata does not guarantee that CloudXcellence made available and held in thecontext of CloudXcellence is free of errors and functions without interruption. Fulldata shall make efforts to have bugs in the Fulldata software be fixed within areasonable term if and insofar the Customer has provided to Fulldata a detailed,written description of the interruption and circumstances under which the bugsoccurred. Fulldata shall provide a copy thereof upon request of the Customer. Wherethere are grounds for doing so, Fulldata may postpone the fixing of bugs until a newversion of the software is put into operation. Fulldata shall make available newversions of the Fulldata Software from time to time. More information is available the CloudXcellence Service Level Agreement.
Fulldata has the right to charge the repair costs to Customer if Fulldata candemonstrate, after repairing the error, that the cause of the error cannot be attributed to Fulldata for one of the following reasons:
- The error was caused by Customer or a third party, or by software changes carriedout by Customer without Fulldata consent or authorization.
- The error was caused by software or hardware that was not supplied by Fulldata.
- The error was caused by Microsoft software or by third party software, and Microsoft or the third party in question has announced not to repair the errorwithin the current version of the software.
Fulldata does not guarantee that defects in the Microsoft software or in other third-party software shall be fixed. Such software shall be supported and maintained inaccordance with the relevant third-party maintenance and support terms as may be applicable from time to time. More information on the applicable Microsoft Corporation maintenance and support terms for Microsoft Azure https://azure.microsoft.com/en-us
Fulldata is entitled to install temporary solutions, program bypasses or problem-avoiding limitations in CloudXcellence.
Based on the information provided by Fulldata concerning measures to prevent andlimit the effects of malfunctions, defects in CloudXcellence, corruption or loss of dataor other incidents, the customer shall identify and list the risks to its organization and take additional measures if necessary. Fulldata declares that it is prepared to provide assistance, at the customer’s request, to the extent reasonable and according to the financial and other conditions set by Fulldata, with respect to further measures to betaken by the customer. Fulldata is never obliged to recover data that has been corrupted or lost.
MAINTENANCE TIME AND SERVICES OF THIRD PARTIES
If and insofar as Fulldata, when providing CloudXcellence, uses software and/or services from third parties, the terms and conditions of such third parties shall applying the relationship between Fulldata and the Customer with respect to such softwareand/or services instead of the provisions herein in sofar these differ from those third-party terms and conditions.
If and insofar as, for whatever reason, the terms of third parties referred to above are deemed not to apply or are declared inapplicable in the relationship between the customer and Fulldata, the provisions of the conditions herein apply in full.
The parties shall keep confidential all data, facts and events that come to theirknowledge in relation to the order form and of which they know or should know thatpublic disclosure negatively impacts the interests of the other party. Information shallin any event be deemed confidential in the event such confidentiality is indicated by the disclosing party in writing. The order form shall be considered confidential.
The parties shall only use any confidential information for the purpose and during the period for which such information is made available.
The parties shall not be obliged to keep confidential any information that is available to the public, that the receiving party already had in its position without any illegal act,that is independently developed by the receiving party or that was received from athird party without any illegal act. The parties may use any experience, know-how and techniques that they have gained in relation to the order form and the order forms without limitation unless explicitly stated otherwise.
Use of Customer Data. Customer Data will be used only to provide Customer CloudXcellence including purposes compatible with providing those services.Fulldata will not use the Customer Data or derive information from it for anyadvertising or similar commercial purposes. Customer retains all right, title andinterest in the Customer Data. Fulldata acquires no rights in Customer Data, otherthan the rights required by Fulldata to provide CloudXcellence.
Fulldata shall only process any personal data following customer’s explicit order. The parties shall then adhere to the rules and regulations following the EU General Data Protection Regulation (hereinafter: “GDPR”). In such event the parties shall conclude aseparate data processing agreement. Fulldata shall comply with the obligations of aprocessor set forth in the GDPR and the customer shall comply with the obligationsof a processor set forth in the GDPR. Fulldata shall support customer in complying with its obligations to third parties based on the GDPR. The costs of such supportshall be invoiced at the tariff listed in the tariff list.
Customer Responsibilities. Customer shall have sole responsibility for the accuracy,quality, integrity, legality, reliability, appropriate and ownership of all of its data.Customer agrees to provide any notices and obtain any consents related to its useand Fulldata’s provision of CloudXcellence, including those related to the collection,use, processing, transfer and disclosure of personal information.
Customer agrees to provide notification to the individual users of CloudXcellence that their data may be processed for the purpose of disclosing it to law enforcement or other governmental authorities and agree to obtain the users consent for the same.
LIMITATION OF WARRANTY AND LIABILITY - DISCLAIMER
Warranty. Fulldata confirms and warrants that it is the owner of and/or controls allintellectual property rights and any other rights to CloudXcellence necessary toperform and administer an order form.
Limited Warranty. CloudXcellence is provided “as is” with all faults and, to the fullestextent permitted by law, Fulldata makes no other warranties or representations thandescribed above and accepts no other conditions in relation to CloudXcellence.Fulldata does not give any further representation, warranty or undertaking as to theeffectiveness, performance, quality, merchantability, durability or fitness for anypurpose of CloudXcellence or any related material or documentation or services, orthat CloudXcellence, or any related material or documentation or services supplied byFulldata is free from any defect or error.
Fulldata’ total liability due to an attributable failure in the performance of anobligation under the order form or on any other legal basis whatsoever, expresslyincluding each and every failure to fulfil a warranty obligation agreed with thecustomer, shall be limited to compensation for direct loss up to a maximum of theprice stipulated for the order form concerned (excluding VAT, discounts and third-party costs). If the order form mainly concerns a continuing performance obligationwith a term of more than one year, the price stipulated for that order form shall be setat the total amount of the payments (excluding VAT, discounts and third-party costs) stipulated for one year. Fulldata’s total liability for direct loss, on any legal basis whatsoever, shall never amount to more than the 12 months subscription fees.
Limited Liability. To the maximum extent permitted by law, Fulldata (and/or itssuppliers) is in no way liable to Customer by reason of any representation or thebreach of any implied condition, warranty or other term or any duty under any law orstatues, or under any express term of this Agreement, for any direct or indirect loss,damages, costs, expenses or other claim for compensation whatsoever (includingwithout limitation, consequential, special or incidental damages, damages for lostprofits or revenues, business interruption, or loss of business information), whetheroccasioned by the negligence of Fulldata, its servants or agents or otherwise, which arises out of or in connection with this Agreement, even if advised of the possibility of such damages or if such possibility was reasonably foreseeable.
Direct damages shall consist exclusively of the following:
Damages to equipment and software of the other party;
- Reasonable costs incurred to bring the performance in compliance with theorder form (such costs shall not be compensated in the event the order formis terminated);
- Reasonable costs made in order to prevent or restrict the damage, includingtaking emergency measures. Cost of personnel shall not be deemedreasonable costs to prevent or restrict damage;
- Reasonable costs to repair the damage.
- Reasonable costs to determine the damage;
Save for the provisions expressly laid down in these terms and/or order forms to which these terms apply, Fulldata does not accept any other obligations, nor does itprovide any guarantees with that CloudXcellence will reach customer’s aim or resultset. The provisions of this article and all other limitations and exclusions of liability referred to in these terms shall also apply for the benefit of all natural persons and legal entities that Fulldata engages in the performance of the order form.
COMMENCEMENT OF CLOUDXCELLENCE, RENEWAL AND TERMINATION
As stated in section 2 (a) of this Agreement the making available of CloudXcellence shall commence on the date of the order form. CloudXcellence is provided by Fulldata on a subscription- and fixed-term basis as further specified in the order form. The term shall automatically be extended unless either party terminates the subscription. Fulldata receives either directly from Customer or through Partner, Customer’s notification that Customer does not wish to renew at the end of the month.
Customer shall promptly ensure that it has the facilities required to use CloudXcellence. Fulldata shall only provide CloudXcellence on the instructions of the Customer. Customer may not allow third parties to make use of CloudXcellence as provided by Fulldata.
The customer shall owe the payment specified in the order form. In the absence of anagreed payment schedule, all amounts that relate to CloudXcellence provided byFulldata shall be payable End of Month.
Fulldata may change the content or scope of CloudXcellence delivery model. If suchchanges result in a change in the Customer’s current procedures, Fulldata shallinform the Customer about the matter as soon as possible and the costs of thischange shall be borne by the Customer. Customer may in this case give notice oftermination of the contract, which termination shall then take effect on the date onwhich the change takes effect, unless the change is related to changes in relevantlegislation or other instructions issued by competent bodies, or Fulldata bears thecosts of the change. Fulldata may continue to provide CloudXcellence using a new ormodified version of the software. Fulldata is not obliged to maintain, modify or addcertain features or functionalities of the service or Software Solution specifically forthe Customer.
Fulldata may temporarily put all or part of CloudXcellence out of operation for preventive, corrective or adaptive maintenance or other forms of service, especially inthe event Microsoft Corporation performs or announces to perform such preventive, corrective or adaptive maintenance. Fulldata shall endeavor to allow the period duringwhich the service is out of operation to last longer than necessary and shall endeavor that this period occurs outside office hours, unless this is not possible due to then applicable Microsoft Corporation’s service windows. Fulldata is never obliged toprovide a physical carrier to the customer that contains the software provided to and held by the customer in the context of CloudXcellence.
In addition to any other rights and remedies at law, Fulldata shall be entitled toterminate Terms of service forthwith by giving written notice if:
- Customer commits any breach of Terms of service and if the breach iscapable of remedy, fail to remedy it within 30 days after being given a writtennotice containing full particulars of the breach and requiring it to be remedied;
- Customer becomes directly or indirectly involved, in the design, development, manufacture and/or distribution of any products which compete directly with CloudXcellence.
- Customer breaches Fulldata’s intellectual property rights.
- In the event of bankruptcy or moratorium of payment of Customer.
- In the event Customer is liquidated or ceasing its business.
Obligations Surviving Termination. Notwithstanding any expiration or termination ofTerms of service and any exercise of rights by Customer under a separate agreementhereunder, the following rights and obligations shall survive any such termination orexercise of rights necessary to permit their complete fulfillment or discharge:
- Fulldata’s right (’s right if applicable) to receive or recover, and Customer’sobligation to pay any fees or other sums payable which are vested in, accruedor accruable at the time of termination or exercise of such rights.
- Any rights or remedies of Fulldata under this Agreement, with regards anycause of action or claim of either party, whether or not accrued at the time oftermination, arising from the other party’s breach of or failure to perform anyobligation under this Agreement.
- In addition to the rights and obligations which survive as expressly provided inthis Agreement, the Articles and Schedules which by their nature shouldsurvive, shall survive and continue after any termination or expirationhereunder.
Assignment. This Agreement is personal to Customer, Customer is not entitled to assign, mortgage, charge, or otherwise transfer or sub-license any rights under this Agreement, except with prior written approval.
Severability. If any provision hereof is determined by a tribunal of competentjurisdiction to be illegal or unenforceable, it shall automatically be deemed conformedto the minimum requirements of law and, along with all other provisions hereof, shallthereupon be given full force and effect.
Validity. Whenever possible, each provision of Terms of service shall be interpreted insuch a manner as to be effective and valid under applicable law, but if any provisionof Terms of service shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity and shall not invalidate the remainder of such provision or the remaining provisions of Terms of service that shall continue in full force and effect.
The order form, these terms and any non-contractual obligations relating to or arisingout of the order form shall be governed by and construed in accordance with Dutchlaw. Any disputes that may arise between Fulldata and customer on the basis of theorder form, any other agreement and/or any non-contractual obligations relating to orarising out of the order form or any other agreement, shall be settled through arbitration in accordance with the Arbitration Regulations of the Foundation for the Settlement of Automation Disputes (www.sgoa.org), without prejudice to the right ofeither of the parties to request an injunction in summary arbitral proceedings andwithout prejudice to the right of either of the parties to take precautionary legalmeasures.
Not withstanding the foregoing, the Fulldata reserve the right to seek and obtain injunctive relief, whether in the form of a temporary restraining order, preliminary injunction, injunction to enforce an arbitration award, or other order of similar import, including obtaining full payment of all fees and costs under Terms of service fromany court of competent jurisdiction.