- We reserve the right to amend this Agreement at any time. Amendments shall be applicable upon thirty (30) days’ notice to you.
- Right to use VOGSY
- Your employees may use VOGSY for project management and business management purposes. This right of use is non-exclusive, non-assignable, non-transferable and is limited by and subject to this Agreement.
- In VOGSY you may grant administrator rights to individuals (“administrators”) in your organization. Administrators may manage VOGSY for your company, create and manage user accounts and attribute authorization levels to users or groups of users. These authorization levels determine to which functions in VOGSY a user has access.
- VOGSY may offer the possibility to connect to other applications via API interfaces integrated within VOGSY, for which additional developer terms and conditions may apply.
- Provision of our services
- We are committed to maximizing the availability and usability of VOGSY.
- We continuously improve VOGSY. We may add, remove or alter functionalities from time to time. You are required to always use the latest upgrades and updates of VOGSY. In the event that we remove a function from VOGSY that has a material adverse effect on you, you may terminate this Agreement by providing us with 30 days prior written notice from the date you were notified of such change.
- Based upon our reasonable judgement and in our sole discretion, including but not limited to in the case of (suspected) misuse, violation of this Agreement or our user instructions or fraud, we may;
(i) adapt or limit the functionality of VOGSY,
(ii) block access to VOGSY,
(iii) block a certain account; or
(iv) terminate this Agreement.
- Your obligations
- You will be responsible for implementing VOGSY within your organization. You may contract a service provider to assist you with the implementation. We can assist you in finding an implementation partner.
- You will be responsible for arranging the support you require for your use of VOGSY. You may contract a service provider to provide you with support services. We can assist you in finding a support partner.
- You are responsible for all hardware, software and telecom services required to use VOGSY. Use of VOGSY requires a G Suite account. You are responsible for your users having a valid G Suite account. You are responsible for your users and administrators use of VOGSY and for the log-in data consisting of usernames and passwords assigned to your users and administrators. With respect to the use of VOGSY and the log-in data the following applies:
(a) You will ensure that only authorized users are given access to VOGSY.
(b) Login data is personal for the designated user and may not be shared with or used by other users.
(c) You are responsible for keeping the login data confidential and secure and will follow all our reasonable instructions in that respect.
(d) If you suspect VOGSY or the log-in data is being misused or become aware of the fact that log-in data has not been kept secure or confidential, you will inform us immediately and we may, in our sole discretion:
(i) adapt or limit the functionality of VOGSY;
(ii) block access to VOGSY; or
(iii) block a certain account.
- VOGSY may only be used for the purpose for which VOGSY has been made available as stated in the user documentation. VOGSY is designed for use by natural persons. Use of VOGSY by means of software agents is prohibited.
- You must comply with all relevant laws and regulations when using VOGSY. You must also comply with all our reasonable user instructions made known by us from time to time.
- If you, when using VOGSY, get access to information that clearly is not meant for you, you shall not access such information and shall immediately inform us.
- If and to the extent that you suspect a case of unauthorized use of VOGSY, you must report it to us immediately.
- You agree and warrant that you and your employees do not: (i) copy, modify, translate, or reverse engineer any portion of VOGSY (unless permitted by law); (ii) use any robot, spider, software agent or other automated device to use, monitor or copy VOGSY, or parts thereof; (iii) reformat or frame any portion of VOGSY; (iv) interfere with the access of any other users of VOGSY to it; (v) transmit any viruses, worms, defects, Trojan horses or other items of a destructive nature through VOGSY; (vi) use VOGSY to violate the security of any computer network, crack passwords or security encryption codes; or (vii) use any device, software or routine that interferes with the proper working of VOGSY.
- Fees and payment
- You shall pay the rates as specified on our website.
- Fees will be invoiced by us each month in arrears, based on the actual number of users that have been given access to VOGSY. Invoices are payable within 14 days after date of the invoice and payment will be effected automatically via the payment method that you selected during the registration process or in VOGSY. You agree to ensure that payment with your selected payment method is timely made throughout the term of the Agreement.
- We have the right to block access to VOGSY or terminate the Agreement in the event you fail to pay us the applicable fees on time. Early termination of this Agreement by us in accordance with this clause does not entitle you to any refund from us or relieve you from your obligations hereunder.
- You will bear the costs of your own IT systems and telecom connections and software (including G Suite subscriptions) necessary to use VOGSY.
- All fees offered and agreed by us are stated in the currency specified in the registration form (and absent such specification in euros) and are exclusive of turnover tax (VAT), sales taxes and other government taxes levied with respect to the delivery of goods and/or the provision of services.
- During the term of this Agreement, we shall be entitled to adjust our fees every year, in line with the prices in the market. We shall promptly notify you of any changes in our fees.
- If you disagree with an invoice from us, you shall notify us accordingly within 10 days after the invoice date, stating the reasons for its objection. If you dispute an invoice, such dispute does not suspend your obligation to pay the invoice.
- If the agreed term of payment is exceeded, you shall be in default by operation of law, without a prior demand or notice of default being required from us. As from the moment you are in default, you shall owe us default interest equal to the statutory interest for commercial contracts, plus compensation of the extrajudicial collection costs.
- Rights granted to you hereunder shall only be conferred or transferred to you under the condition that you fully and timely pay the invoiced fees in the manner set forth above.
- Ownership of data
- You are and will remain the sole owner of all data that you input in VOGSY.
- Upon termination or expiration of this Agreement, we will keep your data for a maximum period of 1 month, after which period we will delete your data. At your written request, and provided you do not have any outstanding invoices owed to us, we can assist in transferring data to you at our standard fees. We may require advance payment for such assistance.
- Rights of intellectual property
- All rights of intellectual property in VOGSY, including, copyrights, trade mark rights, database right s and trade name rights and other items used by VOGSY, are owned by us and/or our licensors. You do not acquire any such rights. This also applies to any changes in the settings in VOGSY made by or on behalf of your company. If necessary, you hereby transfer any such rights to us and we accept such transfer.
- Security and confidentiality
- We will use commercially reasonable efforts to secure VOGSY, its contents and the data centers from which VOGSY is hosted from unauthorized access and alteration, but cannot guarantee that unauthorized access or alteration will not take place. VOGSY is hosted by Google and is secured according to the security standards of Google. For more information see http://cloud.google.com/security. You are also required to take commercially reasonable efforts to secure VOGSY from unauthorized access.
- You must refrain from breaching any security measure implemented in VOGSY and you must refrain from accessing or trying to access the source codes of our software.
- We are committed to keep the information you process in VOGSY and your use of VOGSY confidential. Neither party shall use, copy, adapt, alter disclose or part with possession of any information or data of other party which is disclosed or otherwise comes into its possession directly or indirectly as a result of this Agreement and which is disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed (“Confidential Information”) without the prior written consent of other party except as strictly necessary to perform its obligations or exercise rights under this Agreement. Notwithstanding the foregoing, we are entitled to use the data obtained from your use of VOGSY for statistical and analytical purposes, including but not limited to improve VOGSY and for making commercial offers. Furthermore we may use the aggregated, non-personally identifiable data obtained from your use of VOGSY to enhance business productivity, including by creating useful business insights from these data and allowing you to benchmark your business’ performance against other businesses.
- Confidential Information does not include information that (a) is previously rightfully known to the receiving party without restriction on disclosure, (b) is or becomes known to the general public, through no act or omission on the part of the receiving party, (c) is disclosed to the receiving party by a third party without breach of any separate non disclosure obligation, or (d) is independently developed by the receiving party. Neither party shall disclose any Confidential Information of the disclosing party to any third party other than employees, professional advisors and approved subcontractors on a “need to know” basis only to whom disclosure is necessary for the proper performance of their duties under this Agreement.
- Notwithstanding the foregoing, if required by law, regulation, or judicial or court order, the receiving party may disclose Confidential Information of the disclosing party, but will give adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment therefor.
- Both parties shall direct its employees, agents and sub-contractors to comply with the provisions of this Article 8 and are bound by terms and conditions of use and non-disclosure at least as onerous as those contained in this Article.
- Personal Data
- When using VOGSY you may enter personal data in VOGSY. With respect to such personal data the parties undertake to comply with the applicable data protection legislation. With respect thereto the parties agree and understand that:
(a) you act as the controller and we act as the data processor;
(b) we will process the personal data according to your documented instructions, which instructions are deemed to be incorporated into this Agreement;
(c) we undertake confidentiality and security obligations as set forth in this Agreement;
(d) we will notify you of any breach of the security measures in relation to the personal data processed by us on your behalf. This notification will include a description of:
(i) the nature of the breach;
(ii) authorities where further information about the breach can be acquired;
(iii) the recommended measures to be taken to restrict the negative effects of the
(iv) the established and presumptive effects of the breach for the processing of the
personal data and measures we have taken or proposed to restrict these effects;
(e) we will keep a list of all breaches that lead to a significant chance of severe negative effects or to severe negative effects for the data protection. This list has to include, but should not be limited to, facts and information about the nature of the breach;
(f) the parties will renegotiate this Agreement in good faith whenever a change of the personal data processed hereunder or the reliability requirements requires so.
- Notwithstanding any other provision of this Agreement, you are fully responsible for the data processed through the use of VOGSY. You also understand and agree that the data that you process through VOGSY is not illegal and does not infringe the rights of third parties.
- YOU SHALL INDEMNIFY AND HOLD HARMLESS VOSGY AGAINST CLAIMS BY THIRD PARTIES, OF WHATEVER NATURE, IN RELATION TO THE PROCESSING OF DATA THROUGH VOGSY.
- YOU SHALL INDEMNIFY AND HOLD HARMLESS VOGSY AGAINST CLAIMS BY THIRD PARTIES, OF WHATHEVER NATURE IN RELATION TO ANY VIOLATION OF ANY REGULATIONS RELATED TO THE PROTECTION OR PRIVACY AND PROCESSING OF PERSONAL DATA IN RELATION TO VOGSY.
- You understand that it is your responsibility to sufficiently acquaint yourself with VOGSY, its functionalities and its performance before entering into this Agreement and before using VOGSY for your business. You are aware that we offer the possibility of free trial use of VOGSY for that purpose.
- Limitations of liability
- We shall not be liable to you or be deemed to be in breach of this Agreement due to any cause beyond our reasonable control, whether it could have been foreseen or not. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond our reasonable control: virus infections, hacking, interruptions of the internet, Acts of God, explosion, flood, tempest, fire, extreme weather conditions, or accident; war or similar circumstance, threat of war, insurrection, civil disturbance or requisition; acts, restrictions, regulations, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; strikes, lockouts, boycotts, or other industrial action or trade disputes (whether involving our employees or employees of a third party); and power failure or breakdown in machinery.
- TO THE FULLEST EXTENT PERMITTED BY LAW, OUR TOTAL LIABILITY WHATSOEVER, IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), OR HOWSOEVER OTHERWISE ARISING IN CONNECTION WITH DIRECT DAMAGE IN THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT FOR EACH RESPECTIVE BREACH OR SERIES OF RELATED BREACHES OR ANY AND ALL LOSSES, SHALL NOT EXCEED IN THE AGGREGATE THE LOWER OF (I) OF THE TOTAL ANNUAL FEES PAID BY YOU TO US IN THE YEAR SUCH LIABILITY OCCURRED OR (II) € 100.000.
- IN NO EVENT SHALL WE, OUR AFFILIATES OR LICENSORS BE LIABLE TO YOU HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGE (WHETHER FOR LOSS OF PROFIT, LOSS OF BUSINESS OR OPPORTUNITY (WHETHER ACTUAL OR ANTICIPATED), MISSED SAVINGS, DEPLETION OF GOODWILL, LOSS DUE TO LOSS OR MUTILATION OF DATA, COSTS, EXPENSES OR OTHER CLAIMS FOR CONSEQUENTIAL COMPENSATION).
- THE LIMITATIONS ON OUR LIABILITY ABOVE SHALL APPLY WHETHER OR NOT THE WE, OUR EMPLOYEES, LICENSORS OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING.
- The limitations and exclusions referred to in this clause will not apply in the event of:
(a) intentional or willful recklessness by us, our subordinates or assistants; or
(b) negligence by us causing damage resulting from death or injury.
- Subcontracting and Assignment
- We will be entitled to engage subcontractors for the performance of the Agreement.
- You are not permitted to assign, delegate or otherwise transfer the Agreement or any rights hereunder. Any such attempted assignment, delegation or transfer will be null and void. We are permitted at our sole discretion to assign the Agreement or any rights or obligations hereunder to any third party, without giving prior notice.
- Term and termination
- This Agreement will last for a term of 12 months. This Agreement will automatically renew for successive 12 months periods, unless terminated by either party by giving the other party at least 3 months’ notice prior to the end of the current term.
- Each of the parties is entitled to terminate this Agreement by providing written notice to the other party if:
(a) the other party is in material breach of this Agreement and has failed to cure such breach within 30 days after being demanded to do so by the other party; or
(b) the other party terminates or suspends all or a substantial portion of its business activities, becomes insolvent, admits its inability to pay its debts, or in the case of the voluntary or involuntary filing of a petition for or adjudication of bankruptcy under any applicable bankruptcy or insolvency act (including federal, state or municipal acts if applicable), the appointment of a receiver, trustee, custodian, or liquidator, or any act or action constituting a general assignment by such party of its properties and/or interest for the benefit of creditors.
- Effective upon termination of this Agreement, whatever the cause, (i) your right to use VOGSY ends by operation of law and (ii) all amounts owed by you will be immediately due and payable. Additionally, Articles 8, 11, 14 and 15 shall survive the termination or expiration of this Agreement.
- Applicable Law and Forum
- Unless stated otherwise in writing, this Agreement any and all offers, agreements, deliveries or services provided between the parties shall be governed by and construed in accordance with the laws of the Netherlands, without giving effect to the United Nations Convention on the Contracts for the International Sale of Goods.
With respect to any disputes arising between the parties, parties hereby submit exclusively to the personal jurisdiction of the Court in Amsterdam, the Netherlands. The parties consent and agree that the Court of Amsterdam is a convenient forum for, and has proper venue over, the resolution of all legal actions, proceedings and disputes arising out of or relating to their relationship. ANY CAUSE OF ACTION AGAINST VOGSY B.V., REGARDLESS WHETHER IN CONTRACT, TORT OR OTHERWISE, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH ACTION IS PERMANENTLY BARRED.
- If any provision of this Agreement or any other agreement between the parties, is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (i) such provision shall be deemed to be restated to reflect as nearly as possible the original meaning of the terms or agreement in accordance with applicable law, and (ii) the remaining terms, provisions, covenants and restrictions shall remain in full force and effect.
- This Agreement constitutes the entire agreement and understanding of the parties and supersedes all prior agreements, representations (excluding fraudulent misrepresentations), writings, proposals, negotiations, understandings, communications, oral or written, express or implied between the parties regarding the subject matter of this Agreement and to the extent permitted by law.
- The failure to exercise, or delay in exercising, a right, power or remedy provided by the Agreement or by law shall not constitute a waiver of that right, power or remedy. If we waive a breach of any provision this Agreement, this shall not operate as a waiver of a subsequent breach or that provision or as a waiver of a breach of any other provision.
- Any agreement between the parties is for the sole benefit of the parties thereto and, except as otherwise contemplated therein, nothing therein expressed or implied shall give or be construed to give any person, other than the parties thereto, any legal or equitable rights thereunder.
- Nothing contained in any agreement between the parties shall be read or construed so as to constitute the relationship of principal and agent or of partnership between the parties. Neither of the parties may pledge or purport to pledge the credit of the other party or make or purport to make any representations, warranties, or undertakings for the other party.
Amsterdam, June 14th, 2018