Terms and Conditions
GENERAL TERMS AND CONDITIONS SEMANSYS TECHNOLOGIES B.V.
These General Terms and Conditions of Semansys Technologies B.V. are applicable to any use by User of our Platform and Application(s). Prior to installing or downloading the Application or accessing the Platform, the User needs to accept and declare itself bound by these General Terms and Conditions.
DEFINITIONS AND APPLICABILITY TERMS
1.1 In these General Terms and Conditions, the words written by a capital letter will have the meaning as described in this clause or as specified elsewhere herein:
- Account: the personal account of the User through which he may execute the Services.
- Agreement: the ‘partner agreement’ or ‘customer agreement’ (as the case may be) between Semansys and User regarding the use of the Platform and the deployment and use of the Application(s), as applicable, together with these Terms and any other appendices.
- API: Application Programming Interface.
- Application(s): the downloadable and / or web- based software application(s), including API’s, through which access can be obtained to the Platform and use can be made of functionalities within the Platform in order to perform the Services.
- Confidential Information: all information (in writing, orally, electronically or otherwise) in or in connection with the execution of the Agreement and that is marked as confidential, secret or, from its nature, content or the circumstances in which it is disclosed, should be understood as such at the time of disclosure, such as but not limited to: finances, processes, specifications, methods, designs, formulae, tests, concepts, data, source code, object code, technical information, research and development, business relations, business development practices, marketing research, strategies, technology, know-how, and pricing information.
- Intellectual Property Rights: all intellectual property rights, whether or not registered, anywhere in the world, including but not limited to, patents, copyrights (including all rights in and related to software, source code and object code), utility models, design rights, trademark rights, trade name rights, database rights and rights to know-how and trade secrets.
- Platform: the web based software platform made available to the User ‘as a service’ in order for the User to perform the Services.
- Semansys: the private company with limited liability Semansys Technologies V., established in The Hague at the Prinses Catharina-Amaliastraat 5 (2496 XD) and registered in the trade register of the Chamber of Commerce under number 27260962.
- Services: the business reporting services and/or services in connection with the build, validation, management or extension of taxonomies, that User desires to perform either for the benefit of itself, or for the benefit of its customer(s).
- Terms: these General Terms and Conditions of Semansys.
- User: the legal entity who wishes to obtain access to the Platform and/or make use of the Application(s).
1.2 Additions to or deviations from these Terms shall only apply where agreed in writing between Semansys and User.
1.3 The applicability of any of the User’s purchasing or other conditions is expressly rejected.
1.4 If any provision of these Terms is null and void or is annulled, the other provisions of these Terms will remain fully in effect. In this case, Semansys will replace the void or annulled provision with a valid provision, thereby taking into account the purpose and meaning of the void or annulled provision.
1.5 Semansys reserves the right to unilaterally amend these Terms. Where appropriate, the new version of the Terms will have to be accepted again by the User before further use of the Platform and Application(s). If the User does not agree with the amended version, the User is required to notify Semansys within fourteen (14) days after receiving the notice of the amended version of the Terms. In such event, the last applicable version of the Terms remains applicable, unless Semansys and User agree otherwise in writing. Regardless of the foregoing, the new, amended version of the Terms shall apply to any subsequent offers made, subsequent Agreements or subsequent work commissioned to Semansys and/or legal relationships arising subsequently from existing Agreements.
1.6 All obligations arising from these Terms for the User – insofar as applicable – also apply mutatis mutandis to employees (including subcontractors) and/or customers of the User.
CONCLUSION OF THE AGREEMENT
2.1 An Agreement is deemed to have been concluded when:
- User obtains access to the Platform – either through installation or downloading the Application(s) or otherwise – and prior thereto agreed to the applicability of these Terms; or
- User, whether or not on the basis of a proposal or quotation of Semansys, provides an assignment to Semansys, which assignment Semansys accepts.
- 2.2 Any interim (delivery) dates or deadlines stated by Semansys are always target dates, of an indicative nature only and non-binding on Semansys.
- 2.3 The User is responsible for the correctness and completeness of all information, data and documents provided to Semansys from time to time, even if these are provided by third parties.
- 2.4 The User is not entitled to transfer the rights and obligations arising from the Agreement to a third party without the prior, written consent of Semansys.
COMPENSATION AND PAYMENT
3.1 For being granted with the right to access the Platform and/or make use of the Application(s), the User will pay to Semansys the fees as indicated in the Agreement.
3.2 Unless explicitly indicated otherwise, all prices are exclusive of value added tax (VAT) and other governmental levies. All prices are in euros and must be paid in euros.
3.3 Unless agreed otherwise in writing, the applicable fees are due on a monthly basis in advance by means of direct debit.
3.4 Invoices of Semansys must be paid by User within a period of fourteen (14) days after the invoice date. The right to set off or suspend (partial) payments of the agreed fees by User is excluded.
3.5 Semansys reserves the right to increase the fees and rates annually, in January of each calendar year, in accordance with the applicable CBS index figure.
3.6 If the User does not, does not timely, or does not fully pay an invoice of Semansys, Semansys is entitled to the statutory commercial interest from the due date of the invoice until the date on which full payment is received by Semansys, without a notice of default being required, and without prejudice to any other rights of Semansys on the basis of these Terms or applicable law. Where applicable, Semansys is also entitled to all legal and other costs (including collection costs) incurred as a result of the non-payment under the Agreement.
3.7 In the absence of (timely or complete) payment of an invoice by the User, Semansys will also be entitled to immediately (fully or partially) suspend the User’s access to Platform and/or Application(s) until all outstanding payments have been received in full, without prejudice to potential other rights of Semansys on the basis of these Terms or applicable law.
PLATFORM AND APPLICATION USE
4.1 Through an online registration or a mutually signed Agreement, and acceptance of the Terms, the User is granted with the right to access the Platform to perform the Services, such in accordance with the Agreement and these Terms. In that context, the User obtains a temporary, limited, non-exclusive and non-transferable right to use the Application(s) as further detailed in the Agreement, which Application(s) provide access to the Platform.
4.2 Unless agreed otherwise in writing, the User may only make use of the Platform in and for its own company or organisation and only for the intended use, i.e. providing the Services.
4.3 To ensure the proper operation of the Application(s) and Platform, Semansys may recommend or require the utilisation of specific hardware, software or systems (including Internet browsers). The User will be independently responsible to obtain and implement such specific hardware, software or systems (including Internet browsers). Semansys shall not be liable for any damage or claims as result of the incompatibility of hardware, software or systems (including the Internet browser) of User with the Application(s) or the Platform.
4.4 The User is not permitted to, directly or indirectly, use or access the Platform or the Application(s):
- a) to modify, decompile, reproduce and/or translate the underlying software;
- b) to otherwise make the Platform or the Application(s) – including its underlying software – subject to modification, decompilation, reproduction or reverse engineering;
- c) to hack the Platform and/or gain unauthorized access to the data files, documentation or materials of other Users;
- d) to use it for the distribution of viruses, spyware, Trojan Horses, hoaxes or other malicious malware;
- e) to use it for the distribution of content that infringes Intellectual Property Rights, privacy rights or other third parties rights.
4.5 Semansys is entitled to verify and monitor the User’s compliance with the limitations as described in this clause 4. In the event the User does not comply or acts in breach with one or more of the limitations as described in this clause 4, Semansys reserves the right to immediately (temporarily) suspend and/or refuse the User’s access to the Platform and/or Application(s).
4.6 The capacity of the Platform is designed for reasonable use of the Platform by the User. If the use of the Platform (whether or not due to peak load) requires more capacity than estimated by Semansys, Semansys may (temporarily) block access to the Platform and/or the Application(s). Semansys is not liable for any disadvantage or damage as a result hereof.
4.7 The User is independently responsible for executing or performing the Services while using the Platform. Semansys shall never be liable for any claims, damages, costs or other disadvantages incurred by the User or any of its customers (where applicable) resulting from or in connection with the Services provided or offered by the User.
5.1 The User is independently responsible for keeping any Account passwords secret.
5.2 If the User knows or suspects that a third party has gained access to the Account, the User will immediately inform Semansys. The above applies without prejudice to the User’s obligation to immediately take measures to prevent further access or misuse or loss of data files, documents or materials within the Account.
INSTALLATION AND HOSTING
6.1 The means and conditions for installing or hosting the Application(s) will be agreed by Semansys and User in the Agreement.
6.2 If it has been agreed in writing that the Application(s) will be deployed at the User’s premises, the User will install, organise, parameterise and tune the Application(s) himself. Unless agreed otherwise in writing, Semansys is not obliged to carry out data conversion.
MAINTENANCE AND SUPPORT
7.1 Although the Platform and the Application(s) have been developed with the utmost care, Semansys does not guarantee that the Platform and Application(s) will at all times function without any defects. The Platform and the Application(s) are offered ‘AS IS’.
7.2 Semansys undertakes its best commercial efforts to resolve any errors or defects in the Platform and/or the Application(s) as soon as possible.
7.3 Any service level agreements (SLA) can only be agreed upon in writing. The User shall always inform Semansys of all circumstances that may affect the (availability of the) Platform and/or Application(s). Subject to evidence of the contrary, the availability and any service levels under the SLA (if applicable), as measured by Semansys shall serve as proof thereof.
7.4 The data within the Platform will be predominantly provided by or via the User or third parties. Semansys does not provide any guarantees with regard to the correctness and completeness of those data and will never be liable for claims, loss or damage in whatever form incurred by the User or a third party, arising from or in connection with data generated or uploaded by the User or a third party.
7.5 Semansys will at any time be entitled to (temporarily) limit or restrict access by the User to the Platform and/or Application(s) if necessary in the context of maintenance or implementing updates, releases, modifications or improvements to the Platform or Application(s). Such limitation or restriction will never grant the User with a right to (damage) compensation towards Semansys. To the extent reasonably possible, Semansys will inform the User in advance of an upcoming unavailability of the Platform or Application(s).
7.6 Semansys will never be liable for claims, loss or damage in any form whatsoever incurred by the User or a third party, arising from the (temporary) unavailability of the Platform or Application(s).
7.7 Semansys may require the User to adjust its software or systems if this is necessary for the proper functioning of a new release of the Platform or Application.
7.8 Maintenance of the Platform and/or Application(s) does in any event, not include:
- the repair of errors or defects due to the improper use or unpermitted modification of the Platform or Application(s);
- the repair of errors in the input of data by the User or its customers (as applicable);
- the recovery of corrupt or lost data.
7.9 If Semansys carries out maintenance or work upon request of the User in connection with the excluded repairs or recoveries as specified in section 8, Semansys may charge the costs of such maintenance or work in accordance with its standard rates.
7.10 Semansys has a support desk available during business days and office hours (from 09.00 AM to 05.00 PM CET) to assist the User, where necessary, with technical questions regarding the use of the Platform and the Application(s).
INTELLECTUAL PROPERTY RIGHTS
8.1 All Intellectual Property Rights in and in connection with the Platform and the Application(s), vest exclusively with Semansys or its licensors.
8.2 The User only obtains the rights of use as explicitly granted under these Terms or under the Agreement. A right of use granted to client is at all times non-exclusive, non-transferable, non-pledgeable (niet-verpandbaar). Any other or far-reaching rights are expressly reserved.
8.3 Semansys is entitled to implement technological measures or indications of confidentiality in order to protect the Intellectual Property Rights in and in connection with the Platform and/or Application(s), even if that would lead to a restriction of user functionalities. The User is never permitted to directly or indirectly remove, (to) circumvent or (to) alter such measures or indications.
8.4 Semansys indemnifies the User against any legal action of a third party based on the allegation that the Platform, Application(s), websites or other materials developed by Semansys infringe an Intellectual Property Right of such third party, on the condition that the User immediately informs Semansys in writing of the existence and content of the legal action and leaves the handling of the case, including making any settlements, entirely to Semansys. To this end the User will grant Semansys any required powers of attorney, information and cooperation to defend himself, if necessary in the name of the User, against these legal actions. This obligation to indemnify will lapse if the alleged infringement relates: (i) to materials provided to Semansys by User for use, tooling, processing or incorporation, or (ii) to data files, materials or documents provided by User in the course of performing its Services. If it is irrevocably established in court that the Platform, Application(s), websites or other materials developed by Semansys infringe any Intellectual Property Right belonging to a third party, or if in the opinion of Semansys there is a reasonable chance that such an infringement will occur, Semansys will, if possible, ensure that the User can continue to use the Platform, Application(s), websites or materials supplied, or (a) functionally equivalent other Platform, Application, websites or materials. Any other or more far-reaching indemnification obligation on the part of Semansys is excluded.
8.5 All data (files) provided, uploaded or otherwise submitted to the Platform in the course of performing the Service are and remain – in the relationship between the User and Semansys – the property of the User. Upon expiry or termination of the Agreement, such data (files) will be returned to the User without delay, without Semansys retaining a copy in any form whatsoever, except to the extent necessary to comply with a statutory or contractual obligation.
8.6 The User guarantees that no rights of third parties prevent data files, materials or documents provided by User in the course of performing its Services, from being uploaded, submitted, used, transmitted or otherwise processed onto or via the Platform. The User indemnifies Semansys against any claim by a third party based on the allegation that such upload, submission, use, transmission or processing infringes any right of such third party.
CONFIDENTIALITY AND TAKING OVER PERSONEL
9.1 The User and Semansys will observe strict confidentiality regarding the Confidential Information received from the other party. Confidential Information will only be used for the purpose for which it has been provided.
9.2 During the term of the Agreement and for one year following termination of the Agreement, the User shall not engage or otherwise employ, directly or indirectly, members of staff of Semansys who are or were previously involved in the execution of the Agreement, unless after obtaining the prior written consent of Semansys. Conditions may be attached to the aforementioned consent.
PROCESSING PERSONAL DATA
10.1 In the course of hosting and maintaining the Platform and/or Application(s), Semansys may have access to personal data – within the meaning of the European General Data Protection Regulation (“GDPR”) – of employees and/or customers of the User. In such event, this clause applies and qualifies as a ‘data processing agreement’ whereby Semansys qualifies as the ‘processor’ and the User as the ‘controller’, within the meaning of the GDPR. This clause will apply as long as Semansys processes personal data on behalf of the User. Upon termination of the Agreement, or upon first instruction of the User, the personal data processed on the User’s behalf will be deleted, without retaining copies thereof, except to the extent necessary to comply with a statutory or contractual retention obligation.
10.2 The User is independently responsible for compliance with applicable data protection laws and regulations – including the GDPR – with regard to the collection and processing of personal data of its employees and/or customers. The User indemnifies and holds Supplier harmless from and against all claims, damages, losses or costs in connection with any claim or complaint made against Semansys as a result of the User’s failure to comply with applicable data protection laws or regulations in respect of the collection and processing of personal data.
10.3 Semansys has taken appropriate technical and organizational measures with regard to the processing of personal data in order to protect it against loss or any form of unlawful processing (such as unauthorized access to, modification or provision of personal data), taking into account the state of the technology, the nature of the personal data and the costs associated with taking the measures. Semansys does not guarantee that the security is effective under all circumstances.
10.4 Semansys will generally process the personal data in countries within the European Economic Area (EEA). Insofar as personal data are being transferred to countries or organizations outside the EEA, Semansys will observe the legal requirements in respect thereof.
10.5 Semansys may use third parties (“sub-processors”) in connection with the processing of the personal data. Semansys will in any case ensure that it imposes at least the same obligations to those third parties as agreed in this clause.
10.6 Semansys will keep the personal data secret and will require its employees and any sub-processors or other third parties to do the same.
10.7 The User will at all times be and remain responsible for reporting a data breach (which is understood to mean: a breach of the security of the personal data that leads to (the possible) unintentional or unlawful destruction, loss, alteration, unauthorized disclosure of – or access to – the personal data, or any indication that such a breach will take or has taken place) to the supervisory authority and / or the data subjects involved. To enable the User to comply with this legal obligation, Semansys will inform the User of the data breach as soon as possible after discovery of the data breach, stating the following information: a) the nature of the data breach, where possible, including the types of personal data, and categories of data subjects; b) the day and time the breach occurred; c) the possible consequences of the breach; d) the measures taken or proposed to tackle the data breach and/or to limit any adverse consequences thereof.
10.8 Upon prior written notice to Semansys, the User has the right to have the security measures taken by Semansys audited by an independent IT expert who is bound by confidentiality at most once per calendar year. Such an audit will only take place in the event of a concrete suspicion of security breaches involving the personal data by Semansys or its sub-processors. The findings as a result of an audit will be assessed by Semansys and will only be implemented at Semansys’ discretion and in the manner determined by Semansys. The costs of
LIABILITY AND INDEMNITY
11.1 The total liability of Semansys on account of an attributable failure in the performance of the Agreement or for any other reason, explicitly including any failure in the performance of a guarantee obligation agreed with the User and any indemnification obligation, is limited to compensation of direct damages up to the maximum amount actually paid out by the liability insurance of Semansys as a result of the claim in question. In the event, the liability insurance of Semansys does not pay out any amount, regardless of the reason thereof, the total liability of of Semansys will be limited to the maximum amount of the fees actually paid by the User in the six (6) months preceding the damage occurrence (excluding VAT).
11.2 Only direct damage is eligible for compensation. Direct damage means:
- damage to the User’s material goods;
- damage to other property of the User and/or third parties;
- costs of necessary alterations and/or changes to the User’s goods incurred in order to limit and/or repair damage;
- reasonable costs incurred to prevent or limit direct damage, which could be expected as a result of the claim on which the liability is based;
- reasonable costs incurred to determine the cause of the damage, the liability and the method of repair insofar as direct damage is concerned.
11.3 Semansys’ liability for indirect loss or damage, including but not limited to consequential loss or damage, loss of profit, missed savings, reduced goodwill, loss or damage due to business stagnation, loss or damage as a result of claims by the User’s customers and loss or damage as a result of corruption or loss of data or documents shall be excluded.
11.4 The exclusions and limitations referred to in this section do not apply if and insofar as the damage is the result of intent or wilful recklessness on the part of the Semansys’ management.
11.5 Unless performance by Semansys is permanently impossible, any liability of Semansys on account of an attributable failure in the performance of the Agreement will only arise if the User immediately gives Semansys notice of default in writing, whereby a reasonable period for remediation of the default is set and Semansys continues to fail imputably in the performance of its obligations after that period. The notice of default must contain a detailed description of the breach so that Semansys is given the opportunity to respond adequately.
11.6 A condition for the creation of any right to compensation is always that the Client reports the damage to Semansys in writing as soon as possible after it has arisen. Any claim for compensation against Semansys lapses by the mere expiry of twelve (12) months after the claim has arisen.
11.7 The provisions of this clause as well as all other limitations and exclusions of liability referred to in these Terms and/or the Agreement also apply to the benefit of all (legal) persons engaged by Semansys in the performance of the Agreement.
11.8 Semansys is not obliged to fulfil any obligation under the Agreement that is prevented by, or compensation for any damage that is the result of ‘force majeure’ within the meaning of Article 6:75 Dutch Civil Code. Force majeure on the part of Semansys is in any event understood to include: i) war, ii) natural disasters, iii) disease, epidemic, pandemic, iv) government measures, Brexit, v) power failure, vi) interruptions or disruptions to energy services, Internet or telecommunication services and/or facilities, vii ) non-compliance by third parties, viii) network attacks, including, denial-of-service (DoS) or distributed denial- of-service (DDoS) attacks.
11.9 If, as a result of force majeure, Semansys fails to fulfil its obligations under the Agreement for an uninterrupted period of more than 3 (three) months, the User is entitled to dissolve the Agreement (in whole or in part) through a registered letter with immediate effect, without judicial intervention, while this shall not give rise to any right to compensation.
TERM AND TERMINATION
12.1 In addition to any termination provisions agreed upon in the Agreement, both User and Semansys will be entitled to terminate the Agreement in one of the events specified in this clause.
12.2 Either party will be entitled to immediately terminate the Agreement (in whole or in part) on account of an attributable failure in the performance of the Agreement after the defaulting party has been given written notice of default in as much detail as possible, setting a reasonable term for performance, and the defaulting party has not remedied the non-performance, unless continued performance has become impossible in which case a notice of default may be omitted.
12.3 Either party may terminate the Agreement (in whole or in part) in writing with immediate effect, without a notice of default being required, if (i) the other party is granted a suspension of payments – provisional or otherwise – or if, (ii) a petition for bankruptcy is filed in respect of the other party, or if (iii) the other party’s company is wound up or terminated other than for the purpose of reconstruction or amalgamation of companies.
12.4 Amounts invoiced by Semansys prior to the termination will remain due in full and shall become immediately due and payable at the time of termination. Upon termination, regardless of the reason thereof, Semansys will never be obliged to refund any monies already received or to pay damages. Upon termination, for reasons attributable or due to User, the right to use the Platform and Application(s) as provided to the User shall lapse and the User shall be no longer entitled to make use of the Application(s) and access the Platform.
12.5 Any provisions under these Terms which by their nature are intended to continue into force after the termination of the Agreement shall survive the termination of the Agreement and remain in full effect. Such provisions include at a minimum the following: 1, 8, 9, 10, 11, 12.4, 12.5, 12 and 13.
APPLICABLE LAW AND COMPETENCE
13.1 These Terms, the Agreement and / or any other subsequent legal relations between Semansys and User shall be exclusively governed by Dutch law.
13.2 In the event of any dispute relating to the interpretation or implementation of the Agreement and/or these Terms, the User and Semansys shall endeavour to resolve such dispute by mutual agreement.
13.3 If the User and Semansys do not reach a mutually agreed solution to the dispute, the dispute shall be exclusively settled by the competent court in The Hague, the Netherlands.
The Hague, December 2020