General Terms & Conditions of Scaura B.V.
Chapter 1 – Terms & Conditions
These are the General Terms and Conditions (as defined below) of SCAURA B.V., with its principal place of business at Nieuwe Prinsengracht 39-2, 1018 EG Amsterdam, registered at the Dutch Chamber of Commerce under file number 63950375, which apply to the purchase of Services and use of the Platform (as defined below).
- For the purpose of these General Terms and Conditions of SCAURA B.V. (referred to below as the ‘General Terms and Conditions’), capitalised terms have the meaning ascribed to them in paragraph 3 (terms additionally written with a capital letter are defined in these General Terms and Conditions).
- The use of the words ‘such as’ and ‘including’ when introducing an element or a list of elements does not limit the meaning of the words to which the element or list relates to such elements or elements of a comparable nature.
- ‘Subscription’: means the right of the Customer to use a Service during the Subscription Service.
- ‘Subscription Period’: means the period under the Subscription that the Customer is entitled to receive the Service.
- ‘Content’: the content of the Customer’s profile on the Platform, regardless of whether the Customer or a third party has placed that content on the profile.
- ‘Services’: the services to be provided by SCAURA in the context of and related to the SCAURA mobile web application and this Agreement, including but not limited to the Software, Platform, Releases, maintenance and Services Packs.
- ‘Customer’: the legal entity or natural person, acting in the exercise of a profession, which or who purchases or intends to purchase the Services from SCAURA.
- ‘Mobile Website(s)’: website(s) made suitable for use on mobile devices, including but not limited to tablets and smartphones developed by or on behalf of the SCAURA App.
- ‘New Licences’: extra licences that are provided under an existing SCAURA account to the Customer, so the Customer can use SCAURA on several Platforms or for the link of the SCAURA application, and for which the Customer owes a fee to SCAURA.
- ‘Agreement’: the agreement that is concluded between the Customer and SCAURA in accordance with the provisions of Article 3 of these General Terms and Conditions and of which these General Terms and Conditions form an integral part.
- ‘Parties’: SCAURA and the Customer jointly, or each of them separately.
- ‘Platform’: the App and/or desktop or mobile website ‘scaura.com’.
- ‘Trial Subscription’: means the possibility for a new Customer (or a Customer that is considering to buy/purchase a Service) to use the Service, without a price being charged for that purpose, for a trial period of 1 (one) month (or another trial period jointly agreed in writing), and for which the Customer does not owe a fee to SCAURA under the Agreement.
- ‘Release’: an improved version of the Software in which an important change in functionality is made, with a higher version number. Improvements may relate to bug fixes. Additional improvements and user simplifications of the Software that were not present at the time of acceptance and that form part of new software options or new modules are not included.
- ‘Service Pack’: a version of the Software in which a small adjustment, the solution for a Flaw, or an improvement is made within the current Release.
- ‘Software’: the standard executable software of SCAURA, Apps and Mobile websites, which are made available to the Customer under the Agreement.
- ‘System Requirements’: the minimum third-party hardware and software requirements that SCAURA prescribes from time to time for the Customer’s computer system.
- ‘User’: the Customer for whom a User ID is created, which gives access to the Software (regardless of whether this natural person uses the Software).
- ‘User ID’: a code exclusively intended for the User, consisting of a user name and a password. Only the User may user the User ID.
- ‘Confidential Information’: the Customer’s confidential information about SCAURA, including (i) information that is indicated in writing as being confidential, (ii) information that is not made generally accessible by the Party to which it relates and/or originates from, and/or of whose confidential nature the other Party must be assumed to be reasonably aware.
- ‘SCAURA App’: The mobile application that SCAURA makes available to the Customer under the conditions of these General Terms and Conditions.
- ‘SCAURA Account’: the Customer’s account that is accessed by the Customer using the Customer’s User ID.
- ‘SCAURA’: SCAURA B.V., with its registered office at Nieuwe Prinsengracht 39-2, 1018 EG Amsterdam.
- These General Terms and Conditions apply to all offers, proposals and Agreements by which SCAURA provides Services of any nature and however named to the Customer. All offers and other statements made by SCAURA are without obligation, unless SCAURA has expressly indicated otherwise in writing.
- Amendments and additions to these General Terms and Conditions are valid only if they have been agreed in writing between the Parties.
- The applicability of the Customer’s purchasing, delivery or other general terms and conditions is expressly excluded, unless SCAURA has expressly agreed in writing to the Customer’s general terms and conditions.
- If any provision of these General Terms and Conditions is void or annulled, the other provisions of these General Terms and Conditions will remain fully in force. In that case, SCAURA and the Customer will consult in order to agree on new provisions to replace the void or annulled provisions, for which the aim and purpose of the void or annulled provisions will be taken into account as far as possible.
3. Formation of the Agreement
- The Customer warrants the accuracy and completeness of the data that is provided by it or on its behalf to SCAURA, and which forms the basis of SCAURA’s offer for the provision of Services.
- An Agreement is formed after there is an offer and acceptance between SCAURA and the Customer. The SCAURA account is delivered as soon as SCAURA provides the USER ID details to the Customer in writing, regardless of whether the Customer uses these details.
- On its formation, the Agreement replaces all other earlier Agreements, as well as the negotiations and that which has related to the realization of the Agreement.
- SCAURA will perform the Service in the area of ‘Software as a Service’, as determined between the Parties in the Agreement, to the Customer, as well as the other Services agreed between the parties.
- Unless agreed otherwise in writing, the Customer is responsible for the management, including control of the settings, the use of the Service and the manner in which the results of the Service are used.
- SCAURA declares that the rendered Services, including but not limited to the Platform and the Software, will largely function from the delivery date of the Services, or from another commencement date if SCAURA has explicitly agreed on this date with the Customer.
5. Performance of Services
- SCAURA will do its utmost to provide the Service with care, where applicable in accordance with the arrangements and procedures recorded in writing with the Customer. All of SCAURA’s Services are performed on the basis of a best-effort obligation, unless and insofar as a result has been expressly promised in the written Agreement and this result has also been described with adequate determinability. Any service level arrangements are always only expressly agreed in writing.
- SCAURA will provide the Services only on the Customer’s instructions. If SCAURA performs work relating to the data of the Customer, its employees or users that is based on a request or order made by a competent government body or in connection with a statutory obligation, the associated costs will be charged to the Customer.
- SCAURA may alter the content or scope of its Services. If these alterations result in a change to the Customer’s procedure, SCAURA will inform the Customer of this as soon as possible and the costs of this change will be payable by the Customer. In that case, the Customer may terminate the Agreement in writing as from the date on which the alteration becomes effective, unless this alteration relates to relevant legislative amendments, other instructions given by competent bodies or SCAURA must assume responsibility for the costs of this alteration.
- SCAURA may continue the performance of the Service using a new or altered version of the Software. SCAURA is not obliged to maintain, alter or add certain properties or functionalities of the Service or software specifically for the Customer.
- SCAURA may temporarily deactivate all or part of the Service for maintenance. SCAURA will not allow the deactivation to last longer than necessary, will arrange for it to be outside office hours, if possible, and, depending on the circumstances, to commence after the Customer has been notified via SCAURA.com.
- SCAURA reserves the right to permanently discontinue SCAURA at any time. This must be announced at least 3 (three) months in advance on SCAURA.com.
6. Prices and payment
- All payments exclude turnover tax (VAT) and other taxes or levies that are or will be imposed by the authorities. Customers based outside the Netherlands are not liable to pay VAT, unless a VAT number can be supplied.
- Customers pay licences on the basis of invoices. After purchasing a licence by telephone, the Customer will immediately receive an invoice that can be paid according to the agreed conditions or the payment terms specified on the invoice. The amount due can also be paid by credit card.
7. Account Terms
- If the Customer consists of several natural persons and/or legal entitles, each of these persons will be jointly and severally liable to pay the amounts due under these General Terms and Conditions.
- Where applicable, the Customer must give SCAURA notice within 30 (thirty) days of the invoice date that the invoice is disputed and clearly and fully state the reasons for disputing it. If the Customer does not dispute the invoice within the above period, it will be deemed to have accepted the invoice.
- Once there are any payment arrears of three months, the SCAURA account will be closed until the arrears are paid or further arrangements have been made with SCAURA. The Customer will receive instructions by e-mail on how to pay outstanding invoices and when the account will be reactivated.
- If the Customer has a periodic payment obligation, SCAURA will be entitled to change the applicable prices and rates in writing, subject to at least 1 (one) month’s notice. These price changes will be announced on www.Scaura.com. If the Customer does not wish to agree to such a change, the Customer may terminate the Agreement in writing within 14 (fourteen) days of the notice as from the date on which the change would enter into effect. However, the Customer will not be entitled to terminate the Agreement if the Parties have agreed that the applicable prices and rates would be adjusted according to an index or other criterion agreed between them.
- If the Customer fails to pay the amounts due, or does not pay on time, the Customer will be in default, without the need for any demand or notice of default, and must pay interest of 1% (one per cent) per month, unless the statutory commercial interest rate is higher, in which case the Customer must pay the statutory commercial interest rate. If the Customer still fails to pay the amount due after a demand or notice of default, SCAURA may hand over its claim for collection, in which case the Customer will be liable, besides the total amount due, to reimburse all judicial and extrajudicial costs, including all costs calculated by external experts.
8. Account conditions
- Customers are personally responsible at all times for keeping their USER ID confidential. Customers are also personally responsible at all times for keeping their password confidential. SCAURA cannot be held liable for the loss or consequences of disclosing a USER ID or password, except as insofar as this can be attributed to SCUBA.
- The Customer is responsible for all activities and Content that is placed under the SCAURA account, as well as for the users of New Licences.
- SCAURA may not be used for illegal purposes. The Customer must not contravene Dutch legislation.
9. Confidential information
- The Customer and SCAURA must ensure that all data received from the other Party, which they know or reasonably ought to know is confidential in nature, remains confidential. The Party that receives the Confidential Information will use this only for the purpose for which it is provided. Data will be regarded as confidential in any case if one of the Parties has indicated that it is confidential.
10. Privacy, data processing and security
- If SCAURA has to process personal data of the Customer under the Agreement, the Parties will enter into a processor’s agreement on the basis of the Dutch Personal Data Protection Act [Wet bescherming persoonsgegevens – Wbp], which is appended as Schedule 1 to these General Terms and Conditions.
- If SCAURA deems it important for the performance of the Agreement, the Customer must immediately inform SCAURA, on request, how it performs its obligations under legislation for the protection of personal data.
- Responsibility for personal data and any other data that is processed by using a Service that SCAURA provides lies exclusively with the Customer. The Customer warrants towards SCAURA that the content, use and/or processing of the data are not unlawful and do not infringe any thirdparty rights. The Customer indemnifies SCAURA against any third-party claims instituted for whatever reason in connection with this data, its processing or the performance of the Agreement.
- The Customer indemnifies SCAURA against the claims of people whose personal data is registered or processed as part of a registration of personal data that the Customer holds or is responsible for under any laws or regulations, unless the Customer proves that the underlying facts of the claim must be attributed solely to SCAURA.
- If SCAURA is obliged to provide a form of information security under the Agreement, that security must conform to the security specifications that the Parties have agreed to in writing. SCUARA never warrants that the information security is efficient under all circumstances. If security that is expressly described in the Agreement is lacking, the security must be at a level that is not unreasonable, given the prior art, the sensitivity of the data and the costs associated with implementing the security.
- If computer data or telecommunication facilities are used during the performance of the Agreement or otherwise, SCAURA will be entitled to allocate access or identification codes to the Customer. SCAURA is entitled to change allocated access or identification codes. The Customer must deal carefully and confidentially with the access and identification costs and disclose these to authorised personnel only. SCAURA will never be liable for damage, loss or costs that arise from the use or misuse of access or identification codes, unless the misuse has been facilitated as a direct consequence of an act or omission by SCAURA.
- If possible, SCAURA will remove the Customer’s data and the Software from its own network after the termination of the Agreement. SCAURA is not obliged to maintain the Software after the termination of the Agreement. There is no obligation on SCAURA to retain the data and/or Software unless the law stipulates otherwise.
11. Retention of Title and Intellectual Property Rights
- All intellectual property rights to the software, websites, databases, equipment or other materials, such as analyses, designs, documentation, reports, offers, animation, graphic backgrounds, sound recordings, music, audio drivers, menuing systems, operating systems, fullmotion video players, multitasking kernels, routines and drivers, as well as their preparatory materials, which are developed under the Agreement or made available to SCAURA by licensors or its suppliers, vest exclusively in SCAURA, its licensors or its suppliers.
- SCAURA grants the Customer a revocable, non-exclusive, transferable, royalty-free and worldwide licence to use the rights referred to in paragraph 1 of this article for the purposes as specified in these General Terms and Conditions and/or the Agreement.
- All IP rights of the Customer in relation to audio, visual, graphic, textual or other forms of material (referred to below as the ‘Customer’s Material’), which are separately developed and/or delivered by the Customer to SCAURA, are identifiable as the Customer’s Material and incorporated by SCAURA in the work it delivers but can still be separately identified (i.e. there is no mixture by which the entitled party cannot be identified), including but not limited to audiovisual content, textual content, game software, creative concepts, trademarks, logos and/or characters, similarities and forms, film, model consents and visual material will vest, or continue to vest, in the Customer or its licensors. For the duration of this Agreement, the Customer grants SCAURA a non-exclusive and non-transferable licence to use the Customer’s Material for the performance of the Agreement and the provision of the Services.
- SCAURA may retain the items, products, proprietary rights, data, documents, software, data files and the interim and final results of the provision of its Services in its possession, received or generated for the purpose of the Agreement, despite any existing obligation to hand over or transfer them, until the Customer has paid all amounts owing to SCAURA.
- The Customer may not remove or alter any reference to the confidential nature or copyrights, patent rights, trademarks, trade names or any other intellectual property rights relating to the Software, websites, data files, equipment or materials.
- Even if the Agreement does not specifically authorise it, SCAURA is permitted to introduce technical devices to protect the Software, equipment, data files, websites, source codes, etc. in connection with an agreed restriction in the content or duration of the right to use these items. The Customer is not entitled to remove or circumvent, or have a third party remove or circumvent, such a technical device.
- SCAURA indemnifies the Customer against any third-party claim based on the assertion that Software, websites, data files, equipment, source codes or other materials developed by SCAURA itself infringe an intellectual property right of that third party, on condition that the Customer notifies SCAURA immediately in writing of the existence and content of the third-party claim and leaves the handling of the case, including the reaching of any settlements, entirely up to SCAURA. The Customer will grant the necessary powers of attorney, information and cooperation for SCAURA to defend these claims, in the Customer’s name, if necessary. This obligation to indemnify will cease to apply if the alleged infringement relates (i) to materials that the Customer has provided to SCAURA for use, processing, adaptation or incorporation, or (ii) to changes that the Customer has made, or arranged for a third party to make, to the software, website, data files, equipment or other materials without SCAURA’s written consent. If it is irrevocably established in law that the software, websites, data files, equipment or other materials that SCAURA has developed itself infringe any third party’s intellectual property right or if there is a good chance, in SCAURA’s opinion, that such an infringement will occur, SCAURA will, if possible, ensure that the Customer can continue to use the supplied or functionally equivalent other software, websites, data files, equipment or materials. Any other or more far-reaching obligation of SCAURA to indemnify is excluded.
- All rights, including applicable ancillary rights, relating to word and/or figurative marks, as well as combinations and parts thereof, which the Customer makes or will make available for the performance of the Agreement in any form, vest exclusively in the Customer, regardless of how these are used or saved, unless agreed otherwise in writing. SCAURA may not reproduce, copy, provide or disclose to third parties, or otherwise use the above word and/or figurative marks other than solely for the performance of the Agreement.
- The risk of loss, theft, misappropriation or damage of items, products, data, documents, software, data files or details (codes, passwords, documentation, etc.) that are produced or used for the performance of the Agreement passes to the Customer as soon as these come into the actual possession of the Customer or an agent of the Customer. Insofar as these objects are in the actual possession of SCAURA or an agent of SCAURA, SCAURA bears the risk of loss, theft, misappropriation or damage.
- Insofar as the Software that SCAURA will deliver is open source Software, the risk passes to the Customer as soon as the Software is delivered to the Customer in accordance with these General Terms and Conditions. From that moment, SCAURA is not liable for any shortcomings that cannot be attributed to it and which, for example, arise from the adaptation of the Software by the Customer, its employees or third parties that it hires.
13. Right of Use
- The Customer receives only the rights of use that are expressly conferred under these General Terms and Conditions, the Agreement or by law. Any other or more far-reaching right of the Customer to reproduce the Software, websites, data files or other materials is excluded. Any right of use to which the Customer is entitled is non-exclusive and non-transferable to third parties in all cases.
- The Customer may gain access to the Software only by means of the USER IDs provided by SCAURA, subject to the restrictions specified in the Agreement relating to the number of Users, etc.
- The right of use also includes the right to use the documentation pertaining to the Software.
- The right to use the Software does not become effective before the Customer has signed the Agreement or accepted the order confirmation, and has also accepted the applicable General Terms and Conditions in writing or electronically.
- The Customer may not use, arrange for the use, or allow the use of the Software for or by others or more than the maximum number of Users or other parameters by which use is restricted as specified in the Agreement.
- Pursuant to this Agreement, the Customer: a) must at all times ensure that the SCAURA account, Software and documentation are adequately protected against misuse, damage (including damage due to latencies such as viruses, worms, trojan horses, logic bombs, etc.), theft or destruction by any party; b) must prevent unauthorised persons from distributing, copying, reproducing, translating, modifying, parsing, decompiling, imitating, altering, reconstructing, having access to, or in any other way duplicating or adapting the SCAURA account, Software and/or documentation; c) must immediately notify SCAURA of all details relating to the unauthorised access or impermissible copying, alteration or use of the SCAURA account, Software and/or documentation; d) must ensure that restrictions such as the authorised number of Users, etc. as specified in the Agreement are not exceeded.
- The Customer is personally responsible for the Software receiving correct and properly formatted data from all software and hardware used to exchange data with the Software or by which data is presented to the Software.
- SCAURA has a support help desk that is available on business days between 9 a.m. and 6 p.m. The applicable time zone is Central European Time/European Central Time. The support help desk can also be contacted any time by e-mail at email@example.com.
- Support may be requested only by the Customer and its employees.
- If it transpires that the Customer was not entitled to support, or that the act performed does not fall under the scope of Support, SCAURA may charge the costs of the Support provided to the Customer at its applicable prices and the Customer will be obliged to pay SCAURA the price thus charged.
- Maintenance is normally performed on business days between 9 a.m. and 5 p.m. Different or extended opening hours are also possible. SCAURA will notify the Customer of this in due time.
- Maintenance involves SCAURA tracing and repairing all faults in the Software, as reported by the Customer to SCAURA, to the best of its ability.
- SCAURA will regularly back up all data files that are generated, used and/or applied with the help of the Software.
- SCAURA may require of the Customer to adapt its computer system to the new System Requirements indicated by SCAURA in connection with increased functionality or Software Service Packs or Releases that have higher requirements. If the Customer fails to comply with these new System Requirements and nevertheless uses the Software, SCAURA will not be liable in any way for any ensuing damage.
- Maintenance services do not include:
- Services relating to system configuration, hardware and networks that belong to the Customer or fall under its management;
- structural work such as defining layouts;
- support at the Customer’s location;
- expanding the functionality of the Software at the Customer’s request;
- Services relating to external databases or products/services other than those of SCAURA;
- training or other Services not expressly described in this Agreement;
- maintenance of or support for SCAURA’s software other than its Software and/or operating software; maintenance of or Support for hardware including mobile devices that belong to the Customer or fall under its management;
- file repairs, where the cause cannot be attributed to SCAURA’s Software;
- providing services other than the Software and related Services that are marketed by or on behalf of SCAURA;
- reproducing and/or restoring garbled or lost data;
- Services arising from changes to or glitches in the system on which the Software runs (such as network failures, updates of non-SCAURA software);
- m. support relating to Links that the Customer has made in the Software;
- support relating to changes in the Links that were last made by the Customer in the Software;
- support relating to faults in or the incorrect functioning of the Software that arises from significant changes or adaptations to the Software or configuration of the Software compared to the configuration at the time of delivery.
16. Delivery and delivery periods
- All delivery periods and dates that SCAURA specifies or agrees to are determined to the best of its knowledge based on the information that it was aware of at the time of entering into the Agreement. Interim delivery dates specified by SCAURA or agreed between the Parties always serve as target dates, are not binding on SCAURA and are given only as an indication. SCAURA will make reasonable efforts to observe the latest delivery periods and dates as far as possible.
- SCAURA is not bound by a delivery period or date, latest or otherwise, which cannot be met because of reasons beyond its control that have occurred since entering into the Agreement.
- The mere fact that SCAURA has failed to meet a latest delivery period or date that has been specified by SCAURA or agreed between the Parties does not imply that SCAURA is in default. In all cases – therefore also including if the Parties have expressly agreed a latest delivery period or date in writing – SCAURA will be in default for exceeding a deadline only after the Customer has given it a written notice of default and offered a reasonable period for remedying the situation. The notice of default must contain the most complete and detailed description possible of the breach, so SCAURA is given the opportunity, where possible, to duly and properly remedy the breach.
17. Term of the Agreement
- The Agreement is entered into for the duration of the Trial Subscription. During the Trial Subscription, the Customer will be entitled to terminate the Agreement at any time in accordance with the provisions of Article 18.
- After the Trial Subscription expires, it will automatically be converted into a 1 (one)-year Subscription with monthly invoicing in accordance with Article 6.2.
- The 1 (one)-year Subscription Period, in accordance with the previous paragraph, will automatically be extended after the Subscription expires by a 1 (one)-month Subscription Period each time. The Customer is entitled to terminate at any time during the 1 (one)-month Subscription Period in accordance with the provisions of Article 18. This Subscription Period will be invoiced in accordance with Article 6.2. 4. Paragraphs 1 and 2 of this article do not apply insofar as the Customer has purchased New Licences. In this case, a 1 (one)-year Subscription will automatically apply with monthly invoicing in accordance with Article 6.2.
- The Customer is personally responsible for cancelling its SCAURA account. This must be done by sending an e-mail to firstname.lastname@example.org. No other form of cancellation will be accepted or processed. As soon as you cancel your SCAURA account, with due observance of the notice period, the account (including payment) will be discontinued immediately. 3. All your data will be removed three months after your account is discontinued. 4. You are at all times personally responsible for the statutory obligation to retain your workslips, even after cancelling your SCAURA account.
- Either Party is entitled to terminate the Agreement because of an attributable breach in its performance only if the other Party, always after having been given a written notice of default in all cases that is as detailed as possible and gives a reasonable period for remedying or eliminating the breach, is in attributable breach of performance of the essential obligations under the Agreement. The payment obligations of the Customer and all other cooperation obligations of the Customer or of a third party it has hired always qualify as essential obligations under the Agreement.
- If the Customer has already received Services under the Agreement on the termination date as referred to in Article 19.1, these Services and the accompanying payment obligation cannot be reversed, unless the Customer proves that SCAURA is in default in respect of an essential part of those Services. Amounts that SCAURA has invoiced to the Customer before the termination for what it has already duly and properly performed or delivered under the Agreement remains owing, with due observance of the provisions of the previous sentence, and will be immediately due and payable on the termination date.
- Either Party is entitled to terminate all or part of the Agreement without any notice of default and with immediate effect if the other Party is granted a provisional or final moratorium on the payment of debts, if a petition is filed for the bankruptcy of the other Party, if the undertaking of the other Party is liquidated or ends other than through restructuring or the merger of undertakings, or if there is a change in the decisive control of the Customer’s undertaking. SCAURA will never be obliged to refund any amounts already received or to pay compensation because of such termination. If the Customer is declared bankrupt, the right to use the software, websites, etc. that have been provided to the Customer will lapse by operation of law.
- SCAURA does not warrant that the Software to be made and kept available to the Customer for the purpose of Application Service Provision and/or ‘Service as a Service’ will function flawlessly and uninterruptedly. SCAURA will endeavour to repair faults in the Software within a reasonable period if and insofar as this is Software that SCAURA has developed itself and the faults/defects concerned have been described in detail to SCAURA within 10 (ten) business days.
- If the Customer has reported a fault/defect, SCAURA may postpone the repair of the faults until a new version of the software is put into use. SCAURA does not warrant that faults in software that it has not developed itself will be remedied. SCAURA is entitled to introduce temporary solutions, program workarounds or problem-avoiding restrictions in the Software. If the Software has been developed on the Customer’s instructions, SCAURA may charge the repair costs to the Customer at its normal rates.
- SCAURA is not responsible for checking the accuracy and completeness of the results of providing the Service and the data generated by using the Service. The Customer will regularly check the results of providing the Service and the data generated by using the Service itself. SCAURA is likewise not responsible for the Content that the Customer places in the SCAURA account.
- The Customer will assess the risks for its organisation and adopt additional measures, if necessary, based on the information provided by SCAURA with regard to measures for preventing and limiting the consequences of failures, defective service provision, garbled or lost data, or other incidents. SCAURA declares that it is prepared, at the Customer’s request, to reasonably cooperate in further measures of the Customer under financial and other conditions that it will set itself. SCAURA is never responsible for repairing garbled or lost data.
- SCAURA does not warrant that the Software to be made and kept available to the Customer for the purpose of Application Service Provision and/or ‘Service as a Service’ will be adapted to relevant legislative amendments in due time.
- SCAURA’s total liability for an attributable breach in the performance of the Agreement or for any other reason, expressly including any breach in the performance of an obligation agreed with the Customer is limited to the compensation of direct damage, which is capped at the net invoice amount stipulated for that Agreement (excluding VAT) for the month in which the damage occurs or from which it arises. This limitation of liability applies by analogy to Article 12.5 of these General Terms and Conditions.
- SCAURA’s liability in any case is always limited, regardless of the provisions of the previous paragraph, to the net invoice amount (excluding VAT) of the year in which the damage occurs or from which it arises.
- SCAURA’s liability for indirect damage, consequential damage, lost profits, loss of turnover, lost savings, reduced goodwill, damage caused by business interruption and damage relating to the use of the items, materials or third-party software that the Customer prescribes to SCAURA is excluded. SCAURA’s liability for hacking of the account and the garbling, destruction or loss of data or documents is likewise excluded.
- The exclusions and limitations of SCAURA’s liability, as described in the previous paragraphs of this article, do not affect the other exclusions and limitations of SCAURA’s liability under this Agreement.
- The exclusions and limitations referred to in Articles 21.1 to 21.4 will cease to apply if and insofar as the damage results from the intentional acts or wilful recklessness of SCAURA’s management.
- Unless performance by SCAURA is permanently impossible, its liability for an attributable breach in the performance of an Agreement arises only if the Customer has immediately given SCAURA a written notice of default, setting a reasonable period for remedying or eliminating the breach, and SCAURA, even after that period, remains in attributable breach of its obligations. The notice of default must contain the most complete and detailed description possible of the breach, so SCAURA is given the opportunity, to respond adequately.
- The condition for any right to compensation to arise is always that the Customer must report the damage as soon as possible after it occurs to SCAURA in writing, although within no more than 2 (two) months. Any claim to compensation against SCAURA lapses as soon as 12 (twelve) months has passed since the claim arose.
- The provisions of this article, as well as all other limitations and exclusions of liability specified in these General Terms and Conditions, also apply in favour of all legal and natural persons used by SCAURA in the performance of the Agreement.
22. Force majeure
- Neither Party is obliged to perform any obligation, including any warranty obligation agreed between the Parties, if that Party is prevented from acting because of force majeure. Force majeure includes: (i) force majeure of SCAURA’s suppliers, (ii) the failure of suppliers prescribed by the Customer to SCAURA to duly comply with their obligations, (iii) defective items, equipment, software or materials of third parties whose use has been prescribed by the Customer to SCAURA, (iv) government measures, (v) electricity cuts, (vi) the failure of internet, computer network or telecommunication facilities, (vii) war, (viii) sit-ins, (ix) strikes, (x) general transport problems and (xi) the unavailability of one or more employees.
- If the force majeure situation lasts for more than ninety days, each Party will be entitled to terminate the Agreement in writing. In that case, performances that have already been rendered under the Agreement will be settled proportionately, without the Parties being liable to pay each other anything else.
23. Extra work
- If SCAURA has performed work or other Services, at the request or with the prior consent of the Customer, which falls outside the content or scope of the agreed Services, this work or these Services will be paid by the Customer in accordance with the agreed rates and, in the absence of agreed rates, in accordance with SCAURA’s usual rates. SCAURA is not bound or obliged to comply with such a request and it may require a separate written Agreement to be concluded for this purpose.
- The Customer accepts that the agreed or expected date of completion of the Services and the mutual responsibilities of the Customer and SCAURA may be affected by the work or Services referred to in this article. The fact that extra work, or the need for extra work, arises during the performance of the Agreement will never be a ground for the Customer to terminate or set aside the Agreement.
- Insofar as a fixed price has been agreed for the provision of Services, SCAURA will inform the Customer in writing, on request, of the financial consequences of the extra work or Services as referred to in this article.
24. Assignment of rights and obligations
- The Customer is not entitled to sell and/or assign the rights and/or obligations under the Agreement to a third party.
- SCAURA is entitled to assign its claims to payment of fees to a third party.
25. Governing law and disputes
- Agreements between SCAURA and the Customer are governed by Dutch law. The application of the Vienna Sales Convention 1980 is excluded.
- All disputes arising from or relating to this Agreement will be solely subject to the judgment of the competent court in Amsterdam.
Chapter 2 – Processor’s Agreement
- ‘Processor’: means SCAURA if SCAURA, during the performance of the obligations under the Processor’s Agreement concluded between the Customer and SCAURA, qualifies as a ‘Processor’ under the applicable legislation on personal data protection.
- ‘Controller’: means the Customer if the Customer, during the performance of the obligations under the agreement concluded with SCAURA, qualifies as a ‘Controller’ under the applicable legislation on personal data protection.
- ‘personal data’: has the meaning as specified in the applicable legislation on personal data protection.
- ‘personal data processing’: has the meaning as specified in the applicable legislation on personal data protection.
- ‘Agreement’: the agreement that is concluded between the Customer and SCAURA in accordance with the provisions of Article 3 of these General Terms and Conditions and of which these General Terms and Conditions form an integral part.
- Data processing The Parties agree that any processing of personal data by the Processor that results from the performance of the agreement by the Parties will be performed by SCAURA as the Processor and the Customer as the Controller. This Schedule sets out the conditions applicable to the data processing by the Processor on behalf of the Controller under the agreement.
- Scope and purpose SCAURA will receive the personal data from the Customer and save this promptly in order to provide the Services to the Customer. The purpose of such personal data processing is to ensure that SCAURA can provide Services to the Customer.
- Term This Schedule will remain in force for the duration of the agreement between the Parties and subsequently until the Processor has completed all and any personal data processing on behalf of the Controller.
- On termination of the data processing On such completion of all and any personal data processing after the expiry or termination of this Agreement, the Processor will immediately return all personal data or duly delete/destroy it and, within 7 days of an inquiry/request by the Controller, confirm that the personal data has been returned or that the data has been deleted or destroyed.
- General Terms and Conditions SCAURA’s General Terms and Conditions apply to this Processor’s Agreement. Words, abbreviations and expressions are defined as in Article 1 of this agreement or in Article 1.3 of the General Terms and Conditions.
- Provisions If any provision of this Processor’s Agreement is contrary to a provision of the General Terms and Conditions, the provision of the Processor’s Agreement will take precedence over the provision of the General Terms and Conditions.
3. Processor’s obligations
- The Parties agree that in the relationship between the Processor and the Controller, the customers of the Controller are customers of the Controller and not customers of the Processor for the purpose of data protection. The Controller moreover acknowledges that in the relationship between the Processor and Controller, all personal data relating to the provision of Services by the Processor to the Controller is data of the Controller and/or its customers, and that this data does not belong to the Processor. The Processor agrees to comply with the prevailing data protection legislation that applies to personal data processing for the purpose of the Services. When processing personal data for the Controller, the Processor will:
- ensure that its personal data processing for the Controller is in accordance with all applicable legislation that applies to it as the processor of such data, but that this provision will not in any way be construed to mean that the Processor is obliged to comply with legislation that applies only to the Controller;
- not process any personal data other than is reasonably required to comply with its obligations towards the Controller under the Agreement;
- ensure within its own organisation that there is proper security with regard to confidentiality, integrity and accessibility for personal data processing, by means of planned, systematic measures, insofar as this is necessary for the Processor to comply with the applicable data processing legislation;
- provide documentation on its security measures and routines, insofar as this information is required to comply with the obligations under the applicable data processing legislation, and to make this documentation available at the Controller’s request;
- register and report any deviations from its documented security measures and routines, including but not limited to all reported and documented attempts to gain unauthorised access to the security of the computer systems in which the personal data is processed, of which the Processor is aware and other infringements of that data which the Processor becomes aware of, in accordance with and insofar as such registration and reporting is required under the applicable data protection legislation;
- remove information in accordance with reasonable and written guidelines of the Controller; and
- ensure cooperation with and assistance of the Processor, in accordance with and as required by the applicable legislation, in order to comply with the rights of data subjects to access their data and/or correct inaccurate or incomplete information under the applicable data protection legislation.
4. Controller’s obligations
- During the performance of this Agreement, the Controller must comply with the data protection legislation that applies to the Controller, including but not limited to ensuring that there is a statutory basis to process personal data for the purpose of the Agreement, obtaining all necessary permission, and all other requirements for personal data processing under this Processor’s Agreement, except for those provisions that specifically identity the obligations of the Processor.
- If the Processor or Controller makes use of a Subprocessor, this party must ensure that each subprocessor assumes responsibility for the obligations of the Processor under this Processor’s Agreement.
6. Location of data processing
- All and any personal data processing for the purpose of this Agreement will take place in Switzerland, the European Union or the European Economic Area. The Processor may not transmit/transfer personal data to countries outside the region consisting of Switzerland, the European Union and the European Economic Area without the Controller’s prior written consent. Such a transmission/transfer must comply with the requirements of the relevant data protection legislation.
7. Notification requirement
- If there has been a security leak and/or data leak at the Processor (including unauthorised access to personal data that leads to a significant risk of adverse consequences for personal data protection), the Processor undertakes to immediately inform the Controller of this fact. The Processor undertakes to ensure that the information provided to the Controller is complete, correct and accurate.
- If the applicable laws or regulations impose such an obligation on the Processor, the Processor will cooperate in informing the relevant authorities and/or data subjects.
- The notification requirement at least involves reporting the fact that there has been a leak, as well as:
- the cause or suspected cause of the leak;
- the known and/or expected consequences of the leak at that time;
- the actual or proposed solution; • the measures that have already been adopted.
8. Dealing with requests from data subjects
- If a data subject addresses a request to the Processor, on the basis of the applicable legislation, to examine, correct, supplement, alter or block data, the Processor will forward the request to the Controller, and the Controller will deal with the request further. The Processor may inform the data subject of this fact.