These Terms and Conditions (“Agreement”) govern the use of the Fiorent services (“Fiorent Services”) as provided by Fiorent to thecustomer organization or company hereby taking Fiorent Servicesto use (“Customer”), unless not explicitly otherwise agreed by the Parties.The Fiorent service is offered over the internet in the form of a Software-as-a-Service. Deviations from these terms and conditions are possible only by means of written confirmation by Fiorent.
Article 1. Definitions
The capitalized terms used in these Terms and Conditions, both in the singular and the plural, are understood to have the meaning as described in this article.
1.1. Account: the account of the Customer, which provides access to certain parts of the Platform and allows the Customer to use the Service.
1.2. Additional Features: specific expansions of the functionalities of the Services, indicated in a Quotation. Additional Features may be either (i) standard expansions of the Services, or (ii) expansions specifically developed for Customer.
1.3. Agreement: the agreement between the Parties under which Fiorent provides its Services to the Customer, of which these Terms and Conditions, appendices hereto, any accepted Quotations and (if applicable) Custom Term Proposals form an integral part.
1.4. Customer: Any legal entity or natural person acting in the course of its business or profession that concludes an Agreement with Fiorent for the provision of Services.
1.5. Customer Data: Any data processed through the Services by the Customer.
1.6. Intellectual Property Rights: all intellectual property rights and related rights, including but not limited to copyrights, database rights, domain name rights, trademark rights, brand rights, model rights, neighboring rights, patent rights and rights to know-how.
1.7. Custom Terms Proposal: Written proposal and all appendices thereto, which may or may not include a Quotation, agreed and signed by the Parties, of which these Terms and Conditions form an integral part – and which is one of the ways the Parties may conclude an Agreement.
1.8. Materials: all materials, including but not limited to websites, logos, leaflets, images, texts, video’s, audio, and all other content made available by any Party under the Agreement.
1.9. Party: Fiorent and the Customer (plural) or either Fiorent or the Customer (singular).
1.10. Platform: the platform to which access is provided by Fiorent as part of the Services, accessible through the Website , and of which the functionalities may differ, depending on the agreed Service Plan and Additional Features.
1.11. Quotation: an offer for the provision of paid Services (or trials thereof) to the Customer by Fiorent, through the Website (including during registration), included in the Custom Terms Proposal, or otherwise in writing, specifying the Services, the applicable Service Plans and/or (if applicable) the Additional Features, and of which these Terms and Conditions form an integral part.
1.12. Service Plan: the service plan under which Services will be provided under the Agreement, indicated in the Quotation. Depending on the agreed service plan, different features of the Service will be made available to Customers and different pricing may apply.
1.13. Services: the services provided by Fiorent to the Customer under the Agreement, including but not limited to the provision of access to the Platform, the Fiorent API and Additional Features, the provision of Training, consultancy services, and the development of custom Additional Features for Customer. Functionalities of the Services may differ depending on the Service Plan and Additional Features agreed between Parties.
1.14. Terms and Conditions: these general terms and conditions and any appendices thereto.
1.15. Training: Services provided concerning education, training, workshops, seminars and the like.
1.16. Website: www.fiorent.com
2. Conclusion and Fulfillment
2.1. Unless otherwise agreed in writing, the Agreement is concluded with the Customer’s completion of the registration form for an Account via the Website and subsequent receipt of a written registration confirmation from Fiorent, automated or otherwise.
2.2.During Account registration, the Customer is asked to provide login information (a unique username and password). The Customer is obliged to use any Accounts made available by Fiorent in a careful manner and to keep its login information secure and strictly confidential. Fiorent has the right to assume that all acts performed following authentication of these accounts have been performed under the supervision and with the approval of the Customer. The Customer is obliged to notify Fiorent immediately if it suspects abuse of and/or unauthorised access to its accounts.
2.3. After conclusion of the Agreement, access to the Services is granted for the duration of the Agreement.
2.4. After conclusion of the Agreement, as well as any additional agreements regarding (trial versions of) Service Plans or Additional Features, Fiorent will apply all commercially reasonable efforts to, as soon as possible, provide the Customer with access to the relevant specified Services for the duration of the Agreement in accordance with (if applicable) the Service Plan.
2.5. The Customer is obliged to do everything that is reasonably required and desired to ensure that the Service is performed correctly in a timely manner. In particular, the Customer will ensure that all information designated by Fiorent as essential or in respect of which the Customer should reasonably understand that it is required for the purpose of performing the Services, is provided to Fiorent in a timely fashion. The Customer makes sure that the information and details are correct, complete and up to date.
2.6. The Services may be integrated with third-party products and/or services. Such integration may only occur if Customer first registers with the third party in question and accepts the relevant terms and conditions applicable to those third-party products and/or services. Fiorent will in no case be liable or responsible for the functioning of such third-party products and/or services in relation to their integration with the Services.
2.7. Some (parts) of the Services may require implementation in order to function properly. Unless agreed otherwise in writing, the Customer is solely responsible for the implementation of the Services.
2.8. Fiorent will perform the Agreement to the best of its ability, with due care and expertise and in accordance with the applicable Service Plan. Upon conclusion of the Agreement, Fiorent will use reasonable endeavors to initiate fulfilment of the Agreement and allow the Customer to access the Services as soon as possible.
2.9. The Customer is under no circumstance entitled to suspend the performance of its obligations under this Agreement.
3. Order of precedence
3.1. In the event of inconsistencies between the documents that together form the Agreement, the following order of precedence will apply:
a. any additional written agreements between the Parties;
c. Custom Terms Proposal (if any)
d. Appendix 1: Data Processing Agreement;
e. these Terms and Conditions.
4. Access To The Services and Duration Of Service Plans
4.1. The scope of the Customer’s access to the Services will be determined by the agreed upon Service Plan. If no Service Plan is agreed, or if an agreed upon Service Plan expires or is terminated, the Customer will not be able to access most of the Services until a (new) Service Plan is agreed between the Parties. The Customer will still be able to access its Account during this period in order to access Quotations for Service Plans.
4.2. In the event that the (accepted) Quotation specifies that the Service Plan will be applicable for a determined period (hereinafter: “Initial Period”), the Service Plan will, at the end of such period, each time be tacitly renewed for the same period (hereinafter: “Renewal Period”), unless the Customer provides Fiorent with a notice of non-renewal:
a. at least seven (7) days before the renewal date in the event of a Service Plan with a duration of no more than one (1) month; or
b. at least thirty (30) days before the renewal date in the event of a Service Plan with a longer duration than one (1) month.
4.3. The terms, conditions and pricing of the Initial Period will apply to the Renewal Periods, unless Fiorent has provided written notice to the Customer of any applicable amended terms and conditions and/or an applicable pricing increase at least:
a. fourteen (14) days before the beginning of each Renewal Period in the event of an Initial Period with a duration of no more than one (1) month; or
b. sixty (60) days before the beginning of each Renewal Period in the event of an Initial Period of more than one (1) month.
4.4. Customer may at any time accept a Quotation for an upgraded Service Plan, upon which, the previously applicable Service Plan will immediately terminate, and the terms, conditions and pricing applicable to the upgraded Service Plan will immediately apply to the Agreement. In this event, Customer will not have a right to a refund or discount in relation to the unused portion of the terminated Service Plan.
5. Term and Termination
5.1. The Agreement will be entered into for an indefinite period of time
5.2. The Customer may, taking into account Article 5.7, terminate the Agreement at any time:
a. In the event the Agreement was concluded by Account registration, by deleting its Account; or
b. In the event that the Agreement was concluded by way of a Custom Terms Proposal, by notifying Fiorent in writing.
5.3. Fiorent may terminate the Agreement at any time, provided it takes into account a notice period of six (6) months.
5.4. Without prejudice to any other rights and remedies hereunder, Fiorent will be entitled to terminate the Agreement if the Customer commits a breach of any of its obligations under this Agreement and such breach is irremediable or – if such breach is remediable – the Customer fails to remedy that breach within a period of thirty (30) calendar days after being notified in writing to do so.
5.5. Fiorent may suspend or give notice to terminate the Agreement in writing with immediate effect, without notice of default being required, in the event Customer is declared bankrupt, the Customer applies for or is granted suspension of payments, the Customer’s activities are ceased or its business is wound up.
5.6.Where Fiorent suspends the performance of the Agreement, Fiorent will retain all its rights and claims under the Agreement and the applicable laws and regulations.
5.7. In the event that the Agreement is terminated, the amounts owed to Fiorent by the Customer will become immediately due and payable (irrespective of the reason for the termination). Termination of the Agreement will also result in termination of all active Service Plans.
5.8. The Customer will not have a right to any refunds or restitutions in the event a (paid) active Service Plan is terminated, irrespective of the reason for termination.
6.1. After or upon entering an Agreement for the use of the Service, Customer may make use of a trial version of a paid Service Plan offered by Fiorent (hereinafter: “Trial Service Plan”) with no additional charge. Access to a Trial Service Plan can be requested via the Website or offered (as part of) a Quotation (including during Account registration). Access to a Trial Service Plan is only granted upon receipt by Customer of a written confirmation from Fiorent. Rent man may at all times decide not to fulfil requests for (Trial Service Plan) Quotations
6.2. If access to a Trial Service Plan is agreed to between Parties, the applicable Service Plan under the Agreement (or the Customer’s lack thereof) will temporarily be upgraded to the agreed upon Trial Service Plan. The Trial Service Plan will be deemed expired at:
a. the end date of the Trial Service Plan as specified in the Quotation; or
b. the moment the Parties agree to a paid Service Plan.
6.3. Upon expiration, the Trial Service Plan will revert to the Service Plan previously applicable to the Agreement, unless agreed otherwise in the Trial Quotation or unless Fiorent, at its sole discretion, decides to extend the Trial Service Plan. If no Service Plan was previously applicable, the Customer will in that event not be able to access most of the Services until a Service Plan is agreed between the Parties.
7. Additional Features and Custom Features
7.1. Either on request by the Customer or on its sole discretion, Fiorent may provide a Quotation for Additional Features. Fiorent may at all times decide not to fulfill such requests.
7.2. After acceptance of the relevant Quotation by the Customer, access to the Additional Features – insofar as these are not developed specifically for the Customer – will be granted upon receipt by the Customer of a written confirmation from Fiorent, automated or otherwise.
7.3. Insofar as the Additional Features agreed upon between Parties are developed specifically for the Customer (hereinafter: “Custom Features”), Fiorent will provide access to the Additional Features when they, in Fiorent’s professional opinion, meet the agreed upon requirements and/or are suitable for use, and aim to do so on the date specified in the relevant Quotation.
7.4. Custom Features are provided on an ‘as-is’ and ‘as-available’ basis. The Customer indemnifies Fiorent and holds Fiorent harmless against all third-party claims relating to the use by, on behalf of, or with the approval of the Customer of the Custom Features.
8.1. In the event the Services provided by Fiorent to the Customer involve Training, the provisions of this Article 8 will apply.
8.2. Unless the Training takes place at a location designated by Fiorent, the Customer will ensure the availability of a suitable space and the presence of suitable facilities for the Training.
8.3. Using the information provided by Fiorent, the Customer must check for itself whether the level of knowledge and expertise of participants corresponds to the relevant Training course.
8.4. Unless a Training course has been developed for the Customer specifically, Fiorent retains the right to change the location of the Training or to combine or merge Training courses.
8.5. Cancellation of the Training course or absence of participants will under no circumstances result in an obligation for Fiorent to refund the amount agreed for the Training.
8.6. Unless the Parties agree otherwise, educational Materials are not included in the Training.
9. Customer Data
9.1. All Customer Data will remain the property of the Customer. Fiorent will not make any proprietary claims with regard to any Customer Data.
9.2. The Customer provides Fiorent with a non-transferable – and as far as necessary for performance of the Agreement – sublicensable license to use the Customer Data for the duration of the Agreement, insofar this is required for the provision of the Services.
9.3. In addition to the license specified in the previous subsection, Fiorent will receive an irrevocable and unrestricted license to use any analyses, reports and results generated by using Customer Data, in anonymized or aggregated form for its own purposes, such as improvement of its services – provided all relevant applicable legislation, such as the General Data Protection Regulation, is adhered to.
9.4. Fiorent will use reasonable endeavours to protect the Services against misuse, abuse and unauthorised access to the Customer Data.
9.5. The Customer represents and warrants that any submission or provision of Customer Data to Services is lawful and that the processing of such data in accordance with the Agreement does not contravene any applicable privacy laws and regulations.
9.6. Upon termination of the Agreement, Fiorent will have the right to remove or destroy all Customer Data. Fiorent may, at the request of the Customer, assist in exporting Customer Data. However, the Customer acknowledges that it remains solely responsible for making back-ups of any Customer Data it wants to keep past the date of termination of the Agreement.
10.1. With respect to the Materials supplied by Fiorent under the Agreement in the context of consultancy Services (hereinafter: “Consultancy Materials”), the Customer will only acquire the non-exclusive, non-transferable and non-sublicensable rights arising from the scope of the Agreement or as further granted.
10.2. Consultancy Materials shall only be used by the Customer for its own use and the specified purpose, unless otherwise agreed. More specifically, the Customer will only use the Consultancy Materials prepared by Fiorent for the purposes specified in the Agreement. In the event of a breach of this provision, Fiorent will be entitled to charge the standard rate applied by Fiorent for the relevant use of the Consultancy Materials, with a surcharge of fifty percent (50%) for the unauthorized use by the Customer, without prejudice to Fiorent’s right to claim (additional) damages. In addition, Fiorent shall in that case have the right to revoke the license to use the Consultancy Materials.
10.3. Fiorent will supply Consultancy Materials consisting of reports, data overviews or records if this is a standard part of the Service provided or if the Parties have agreed this in writing. The form and frequency of the aforementioned reports, data overviews or records shall be laid down in the Agreement. Fiorent cannot guarantee that any such (computerized or automated) Consultancy Materials supplied in the context of this Agreement will be completely free of errors.
11. Additional Work
11.1. Customer may request Fiorent to perform work, not concerning Additional Features, that falls outside the Agrment (hereinafter: “Additional Work”) at any time. Fiorent is not obliged to comply with such requests. In case of such a request, Fiorent will inform the Customer in advance of the associated (estimated) costs for the Customer and will only perform the Additional Work after Customer’s approval.
11.2. For Additional Work that Fiorent can demonstrate to be reasonably necessary for the provision of the Services, or when such necessity reasonably follows from the Customer’s instructions, Fiorent will not require approval. Such Additional Work will be performed on a subsequent costing basis at Fiorent’s usual hourly rates. Other costs incurred may also be charged to the Customer.
11.3. Fiorent will, when performing Additional Work, always charge the Customer the agreed rates, or in the absence thereof, its usual rates.
11.4. Refusal by Fiorent of a request for Additional Work will in no case constitute grounds for termination or dissolution of the Agreement or any Service Plans.
12. Intellectual Property Rights
12.1. All Intellectual Property Rights relating to the Services and the Platform, and any Materials and Additional Features developed and/or made available by Fiorent under the Agreement are vested in Fiorent or its licensors. The Customer will be granted the rights of use with regard to the aforementioned as described in this Article 12 or as otherwise ensuing from the Agreement.
12.2. Insofar as required for the performance of the Agreement, the Customer will acquire a non-exclusive, non-transferable and non-sublicensable right to use the Platform, Additional Features and any other Materials provided by Fiorent for the term of the Agreement and in accordance with the conditions set forth in the Agreement.
12.3. The Customer is not entitled to make changes to the Platform, Additional Features or any Materials developed and/or made available by Fiorent under the Agreement and are not entitled to a copy of the source code, except where this is permitted by mandatory law. The Customer is not permitted to retrieve the source code by means of reverse engineering, decompilation or otherwise.
12.4. Fiorent may take (technical) measures to protect the Platform, Additional Features and its Materials. If Fiorent has taken such security measures, the Customer is not permitted to evade or remove such security measures.
12.5. The Customer may not remove or modify any designation of Intellectual Property Rights or remove any mark indicating a confidential nature from Fiorent’ Materials.
12.6. The Customer authorizes Fiorent to publicly disclose that the Customer is a customer of Fiorent and Fiorent may use the Customer’s name and logo in any promotional materials, including but not limited to its Website and in press releases.
13. Use and Misuse
13.1. It is prohibited to use the Services in a manner that is in violation of these Terms and Conditions or applicable laws and regulations. Additionally, using the Services in a manner that may cause hindrance or loss and/or damage to Fiorent or any third party is expressly not permitted.
13.2. Fiorent fulfills an intermediary role on the Platform and is not responsible for information and Materials made available via the Platform by the Customers. The Customer acknowledges and agrees that Fiorent does not moderate or pre-screen any information or Materials stored or made available by the Customers.
13.3. It is explicitly prohibited to use the Platform (even if legally permitted to do so):
a. to willfully distribute malware or any other harmful software;
b. to store or make available information or Materials that infringe upon any Intellectual Property Rights or other third-party rights;
c. to promote or provide instructions or information about how to engage in illegal conduct, commit illegal activities or promote physical harm or injury;
d. to store or make available Materials that are threatening, libellous, defamatory, obscene, misleading, offensive or unlawful in any way whatsoever;
e. in any manner that may cause hindrance for other users of the Platform, or that may damage and/or impede the systems and networks of Fiorent or third parties.
13.4. If Fiorent determines that the Customer has violated this Article 13 or applicable laws and regulations, or receives a complaint in this regard, Fiorent may take measures to end the violation. These measures may include the suspension or termination of access to the Platform, or termination of the Agreement.
13.5. If, in Fiorent’s opinion, the operation of the computer systems or network of Fiorent or third parties and/or provision of services via the Internet is obstructed, impaired or otherwise at risk, in particular as a result of the transmission of excessive amounts of data, leaked personal data or virus activity, malware and similar harmful software, Fiorent is authorised to take any and all measures it deems reasonably necessary to avert or prevent such risk. These measures include, but are not limited to, suspension of the Services and termination of the Agreement.
13.6. Fiorent is entitled to disclose the name, address and other identifying data of the Customer or the end user concerned to a third party who complains that the Customer has violated its rights, provided that the applicable legal and/or jurisprudential requirements have been met.
13.7. Fiorent will be entitled to report any acts that may be punishable as criminal offenses. In doing so, Fiorent may provide the relevant Materials and all relevant information about the Customer and any involved third parties to the competent authorities and perform all other acts that these authorities request Fiorent to perform in the context of an investigation.
13.8. The Customer will follow all reasonable instructions issued by Fiorent in relation to the use of the Services.
13.9. Fiorent may recover from the Customer any loss and/or damage sustained as a result of the Customer’s violations of this Article 13. The Customer will indemnify Fiorent and hold Fiorent harmless against any and all third-party claims pertaining to loss and/or damage arising from a violation of this Article 13.
14.1. Unless specifically indicated otherwise, all prices and fees indicated by Fiorent are exclusive of VAT and other government levies.
14.2. If a price or fee is based on information provided by the Customer and this information proves to be incorrect, Fiorent has the right to adjust the prices or fees accordingly, even in the event the Agreement has already been concluded.
14.3. Fiorent is entitled to increase its prices and fees at any time. Fiorent will inform the Customer of any such changes at least two (2) months in advance. Use of the Services after the effective date will be regarded as acceptance of the amended pricing or fees.
15.1. Use of the Platform by the Customer may be subject to a monthly or yearly subscription fee, depending on the Service Plan and any Additional Features agreed between the Parties, as indicated in the relevant Quotation(s).
15.2. Use of and access to Additional Features, as well as the provision of Services with regard to implementation or Training, may, in addition to the above, be subject to a one-time fee, as indicated in the relevant Quotation(s).
15.3. All amounts owed in consideration for the Services, if any, may be invoiced digitally and paid in advance. All amounts must be paid within thirty (30) days after the invoice date.
15.5. A claim for payment becomes immediately due and payable in the event the Customer is declared bankrupt, applies for a suspension of payment, all or part of its assets are attached or is liquidated.
15.6. Under no circumstance is the Customer allowed to set off its payment obligations under the Agreement with a claim they might have, on whatever grounds, on Fiorent.
15.7. Prices may be increased by Fiorent with immediate effect if the prices of its suppliers of, for example, electricity, software licenses or data center services increase, without this creating a possibility for the Customer to terminate the Agreement.
15.8. If Fiorent wishes to reduce its applicable prices or fees, Fiorent is entitled to do so immediately without this creating a possibility for the Customer to terminate the Agreement.
16. Privacy and Data Protection
16.1. The fulfillment of the Agreement may entail the processing of personal data by Fiorent on behalf of the Customer. In the event that personal data are processed, the Parties agree on the terms concerning data processing as attached in Appendix 1, in which agreements on the processing and security of such personal data are be laid down.
17. Availability and Backups
17.1. Fiorent will use all reasonable endeavours to ensure continuous availability of the Services but cannot warrant uninterrupted availability.
17.2. Fiorent will make a back-up of all Customer Data once every day. These back-ups are made as a precaution for technical failures or disruptions on the side of Fiorent. Fiorent does not provide a back-up service and is not held to restore specific Customer Data or on the Customer’s request (for example when the Customer has accidentally removed specific Customer Data). If Fiorent nevertheless decides to honour such a request, it may charge the Customer with all reasonable costs incurred.
18.1. From time to time,Fiorent may perform maintenance on the Platform and make changes to the Platform in the form of updates or upgrades. Such updates or upgrades may result in a change in the functionality of the Platform. Suggestions by the Customer are welcome, but Fiorent determines which changes will be made.
18.2. The performance of maintenance-related activities may result in interruptions in the availability of the Platform. In the event Fiorent is able to foresee certain maintenance-related activities resulting in such interruptions, it will apply reasonable endeavors to ensure the activities do not take place during peak-hours – but instead during times when the demand for access to the Services is lowest.
18.3. Fiorent will use reasonable endeavors to notify the Customer of all planned maintenance-related activities – through e-mail or through the Platform – at least two (2) days in advance. Emergency maintenance may still occur at any time, without prior notification of the Customer.
18.4. Updates or upgrades to the Platform are performed at times to be determined by Fiorent. The Customer will not be able to use an older version of the Platform once an update or upgrade has been performed. Nor will the Customer have any right or claim to an update or upgrade that was announced by Fiorent but was not performed.
19.1. Documentation with regard to implementation, troubleshooting and general use of the Platform and Services is provided through the Website.
19.2. In addition to the online documentation, Fiorent provides support to the Customer through use of a helpdesk. The helpdesk can be reached through the Website.
19.3. Fiorent will assume that Customers will consult the online documentation before contacting the helpdesk. The Fiorent helpdesk may refer the Customer back the documentation in case the Customer’s question or issue can be answered or solved by consulting the documentation.
19.4.Fiorent will use reasonable endeavors to respond to each support request as quickly as possible. Yet it cannot warrant that a response or solution will be provided by the helpdesk in a set amount of time, as such response times are dependent on the nature and complexity of the question or issue at hand.
19.5. If Fiorent determines, at its sole discretion, that Customer has abused the helpdesk – for example by mistreating helpdesk personnel or by repeatedly refusing or neglecting to provide the cooperation described in the previous paragraph – Fiorent will have the right to immediately halt the provision of help desk support to Customer. If Fiorent opts to make use of this right, it will notify Customer of this decision within a reasonable time in writing.
20.1. The Parties will treat as confidential (i) the contents of this Agreement, as well as the nature and content of the relationship between the Parties and (ii) the information they provide to each other before, during or after the performance of this Agreement if this information has been marked as confidential or if the receiving Party knows or should reasonably assume that this information was intended to be confidential. The Parties also impose this obligation on their employees and on the third parties engaged by them for the performance of the Agreement.
20.2. This Article 20 will not apply to any information which:
a. is or becomes generally available to the public other than as a result of a disclosure by the receiving Party in breach of the Agreement;
b. was within the receiving Party’s possession prior to its disclosure to it by or on behalf of the disclosing Party;
c. becomes available to the receiving Party on a non-confidential basis from a source other than the disclosing Party not under obligation to keep such information confidential; or
d. is developed independently by the receiving Party.
20.3. In the event that a receiving Party becomes legally compelled to disclose any confidential information provided pursuant to the Agreement, such receiving Party will provide the disclosing Party with prompt written notice so that disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the confidentiality provisions of the Agreement.
20.4. Promptly after the expiration or termination of the Agreement for any reason, each receiving Party will deliver to each disclosing Party all originals and copies of any material in any form containing or representing the confidential information in its possession or will destroy the same at the request of the disclosing Party.
21.1. Fiorent’ liability for loss and/or damages resulting from a failure in the performance of the Agreement, an unlawful act or otherwise is limited to the amount (excluding VAT) that the Customer has paid Fiorent under the Agreement during the two (2) months prior to the event causing the damages.
21.2. Fiorent can only be liable towards the Customer for direct damages as a result of an attributable failure in the performance of the Agreement. Fiorent’ liability for indirect damages is excluded. For the purposes of this Agreement, indirect damages include lost savings, loss of data, loss of profit, damage to reputation and damage due to business interruption.
21.3. Fiorent’ liability for an attributable failure to perform the Agreement only arises if the Customer gives Fiorent prompt and proper written notice of default, giving Fiorent a reasonable time period to remedy the default, and Fiorent continues to fail to perform its obligations even after that time period. The notice of default must contain as detailed a description of the breach as possible so that Fiorent is able to respond adequately.
21.4. The limitation of liability as referred to in the previous paragraphs of this Article 21 will lapse if and to the extent that the damage is the result of intent or deliberate recklessness on the part of Fiorent’s management.
21.5. Any right to compensation is subject to the condition that the Customer notifies Fiorent in writing of the damage within 30 days after discovery.
21.6. Customer expressly acknowledges and agrees that Services provided under any Trial Service Plans, as well as Services provided while no Service Plan is applicable to the Agreement, are provided on an “as is” and “as available” basis and that Fiorent assumes no liability whatsoever for any kind of damages arising from Customer’s use of the Services in these situations, unless caused by the willful misconduct or deliberate recklessness of Fiorent’s management.
22.1. Fiorent cannot be obliged to perform any obligation under the Agreement if the performance is prevented due to force majeure. Fiorent is not liable for any loss and/or damage due to force majeure.
22.2. Force majeure is considered to exist in any event in case of power outages, Internet failures, telecommunication infrastructure failures, network attacks (including D(DOS) attacks), attacks by malware or other harmful software, civil commotion, natural disaster, terror, mobilisation, war, import and export barriers, strikes, stagnation in supplies, fire, floods and any circumstance whereby Fiorent is not enabled to perform or prevented from performing by its suppliers, irrespective of the reason.
22.3. If a force majeure situation has lasted for more than ninety (90) days, both Parties will be entitled to give notice to terminate the Agreement in writing with immediate effect. The Services which in that case have been delivered by Fiorent prior to the occurrence of the force majeure situation and during the force majeure situation will be paid for on a pro rata basis.
23.1. Fiorent may amend these Terms and Conditions at any time if the changes are not significant or are required by applicable mandatory law.
23.2. Fiorent will announce any changes or additions to these Terms and Conditions to the Customer in writing at least thirty (30) days before they take effect, to enable the Customer to take note of them.
23.3. If the Customer does not wish to accept a change or addition which falls outside the scope of Article 22.1, the Customer may give notice to terminate the Agreement until the date it takes effect. Use of the Services after the effective date will be regarded as acceptance of the amended or supplemented Terms and Conditions.
24.1. Any dispute between the Parties in connection with or rising from the Agreement will be submitted to the competent court in the Netherlands in the district where Fiorent has its registered office.
24.2. Where the Agreement refers to “written” or “in writing”, this also includes e-mail communication provided the identity of the sender and the integrity of the content can be adequately established.
24.3. The version of any communication of information as recorded by Fiorent will be deemed to be authentic unless the Customer supplies proof to the contrary.
24.4. Any general terms and conditions of the Customer will not form part of the Agreement.
24.5. If any provision of the Agreement is found to be contrary to applicable law, or is otherwise unenforceable, this provision will be amended to the extent that it is in accordance with applicable law, with due observance of the intended meaning of the relevant provision.
24.6. The Customer will not be authorised to transfer this Agreement or any of its rights and obligations arising therefrom to a third party without the express consent of Fiorent. Fiorent will be authorised to transfer this Agreement and all its rights and obligations arising therefrom to a third party that acquires the business operations to which this Agreement is subject.
This Data Processing Agreement (hereinafter: “DPA”) forms an integral and inseparable part of the Agreement concluded between Fiorent, (hereinafter: “Processor”) and the Customer (hereinafter: “Controller”) regarding the use of the Services;
Hereinafter jointly referred to as “Parties” and separately “Party”;
Taking into account that:
1. Purpose Of Processing
1.1. Processor agrees, under the terms of this Data Processing Agreement, to process personal data on behalf of Controller. Processing shall be done solely for the purpose of the Agreement and all purposes compatible therewith or as determined jointly. Moreover, processing may be done on the basis of a legal obligation.
1.2. The processing sees on the purposes as determined by Controller, in regard to the categories of personal data and Data Subjects as set out in Appendix A to this Data Processing Agreement.
2. Processor Obligations
2.1. Processor shall only process the personal data for the purposes as mentioned in article 1 of this Data Processing Agreement.
2.2. Regarding the processing operations as referred to in article 1, Processor shall comply with the GDPR.
2.3. Processor shall inform Controller if in its opinion an instruction of Controller would violate the applicable legislation regarding the processing of personal data or is otherwise unreasonable.
2.4. Processor shall, for as far as this is within his control and as far as necessary, provide assistance to Controller to fulfill Controller’s legal obligations under the GDPR. This concerns the provision of assistance in the fulfillment of its obligations under Articles 32 to 36 of the GDPR.
2.5. All obligations of Processor under this Data Processing Agreement shall apply equally to any persons processing personal data under the supervision of Processor, including but not limited to employees.
3. Confidentiality Obligations
3.1. Processor shall maintain the confidentiality of personal data provided by Controller. Processor ensures that the persons who are authorized to process the personal data, are contractually obliged to maintain the confidentiality of the personal data of which he or she is handling.
3.2. The confidentiality obligation shall not apply to the extent Controller has granted explicit permission to provide the information to third parties, the provision to third parties is reasonably necessary considering the nature of the assignment to Processor or the provision is legally required.
4. Notification and Communication
4.1. Controller is responsible at all times for notification of any personal data breaches, as referred to in Article 4 paragraph 12 of the GDPR (hereinafter: “Personal Data Breach”), to the competent supervisory authority, and for possible communication about the Personal Data Breach to Data Subjects.
4.2. In order to enable Controller to comply with this legal requirement, Processor shall notify Controller without undue delay and, in any case, within a maximum period of 48 hours, after discovering a Personal Data Breach. Processor will take reasonable measures to limit the consequences of the Personal Data Breach and to prevent further and future Personal Data Breaches.
4.3. A notification under the previous clause shall be made at all times, but only for actual Personal Data Breaches.
4.4. If necessary and reasonable, Processor will provide assistance to Controller, taking into account the reasonableness of the request, nature of the processing, and the information available to him, in regard to (new developments about) the Personal Data Breach.
4.5. The notification to Controller shall include, as far as known at that moment, at least:
a. the nature of the Personal Data Breach;
b. the (likely) consequences of the Personal Data Breach;
c. the categories of personal data concerned;
d. if and which security measures have been taken to protect the personal data;
e. the measures taken or proposed to be taken to address the Personal Data Breach and prevent future Personal the categories of Data Subjects concerned;
f. the categories of Data Subjects concerned;
g. approximate number of Data Subjects concerned; and
h. where necessary the deviating contact details to address the notification.
5. Rights Of Data Subjects
5.1. In the event a Data Subject makes a request to exercise his or her legal rights under the GDPR (Articles 15-22) to Processor, Processor shall pass on such request to Controller within a maximum period of three working days after the request was received. Processor may inform the Data Subject of such request being forwarded. Controller will then further process the request independently.
5.2. In the event that a Data Subject makes a request to exercise his or her legal rights to Controller, Processor will, if Controller requires this, cooperate as far as possible and reasonable.
6. Security Measures
6.1. Processor shall use reasonable efforts to implement appropriate technical and organizational measures to secure the processing operations involved, against loss or any form of unlawful processing (in particular against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed).
6.2. Processor shall use best efforts to ensure a level of security appropriate to the risk taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.
6.3. Controller shall only provide personal data to Processor for processing if it has ensured that the required security measures have been taken.
7.1. Controller has the right to verify compliance by Processor, of all points under this Data Processing Agreement, by means of an audit performed by an independent third party, who is bound by confidentiality obligations. The audit may only be performed in case of a reasonable and well-founded suspicion of violation of this Data Processing Agreement, which is communicated in writing to Processor, and may be carried out once a year.
7.2. If an independent third party has already carried out an audit in the past year, Processor can fulfill its obligation by giving access to the relevant parts of the audit report of that year, only if a verification of compliance of the obligations of Processor in this Data Processing Agreement is requested within the same year.
7.3. Processor and Controller jointly decide a date, time and scope of the audit.
7.4. Processor shall give its full cooperation to the audit and shall make available any employees and all reasonably relevant information, including supporting data such as system logs.
7.5. The audit findings shall be assessed by the Parties in joint consultation and may or may not be implemented by either Party or jointly.
7.6. The costs of the audit shall be borne by Processor in case the audit reveals discrepancies in the compliance of Processor to this Data Processing Agreement, which are directly attributable to Processor. In all other cases the costs of the audit shall be borne by Controller.
7.7. The audit and the results thereof will be treated confidentially by Controller.
8. İnvolvement Of Subprocessors
8.1. Controller authorizes Processor to involve subprocessors in providing the services under this Data Processing Agreement.
8.4 Controller is entitled to object in writing on reasonable grounds to a specific new, or changing of, subprocessor(s) within two weeks after Processor has sent the notification. If Controller makes an objection, the Parties will consult to reach a solution.
8.5. Processor imposes at least the same obligations on the engaged subprocessor(s) as agreed between Controller and Processor in this Data Processing Agreement.
8.6. Processor shall ensure that these third parties shall comply with the obligations under this Data Processing Agreement and is liable for any damages caused by violations by these third parties as if it committed the violation itself.
9. Transfer Of Personal Data
9.1. Processor may process the personal data in any country within the European Economic Area (EEA).
9.2. In addition, Processor may transfer the personal data to a country outside the EEA, provided that country ensures an adequate level of protection of personal data and complies with other obligations imposed on it under this Data Processing Agreement and the GDPR, including the availability of appropriate safeguards and enforceable Data Subject rights and effective legal remedies for Data Subjects.
10.1. Parties explicitly agree that regarding liability, the provisions as laid down in the Terms and Conditions apply.
11. Term and Termination
11.1. This Data Processing Agreement is entered into for the duration set out in the Agreement.
11.2. Derogations from this Data Processing Agreement shall be binding only if they have been expressly agreed in writing between the Parties.
11.3. If changes in legislation or regulations give cause for changes, this shall be assessed by the Parties in joint consultation and may or may not be implemented.
11.4. This Data Processing Agreement may be changed in the same manner as the Agreement.
11.5. Upon termination of the Data Processing Agreement Fiorent shall, at the request, and at the expense, of Controller:
a. return to Controller in original format all personal data available to it; or
b. destroy all personal data available to it.
The following appendices have been added to the Data Processing Agreement:
Processor shall process the following types of personal data, under the supervision of Controller, for the performance of the Agreement:
Of the following categories of Data Subjects:
Controller represents and warrants that the description of personal data and categories of Data Subjects in this Appendix 1A is complete and accurate and shall indemnify and hold harmless Processor for all faults and claims that may arise from a violation of this representation and warranty.