Fireko Terms and Conditions

 

DEFINITIONS

Article 1

For the following words in these terms of Conditions the following definitions apply:

a)               Additional Orders: the purchase of subscriptions, modules, changes to (the number of) (view only-) Users and changes to (the number of) Administrations, etc. after the

Fireko Online Agreement has come into effect;

b)              Confidential Information: confidential information concerning the Customer or Fireko, including (a) information which is designated in writing as ‘confidential’, (b) information that is not generally known to the public, (c) information which is not made generally accessible by the party to which the information relates and/or from whom the information originates, and (d) information which must be presumed to be confidential;

c)Customer: the natural person or legal entity that has entered into an Fireko Online Agreement with Fireko;

d)              Customer Data: all data that the Customer enters into the Web Application or is entered into the Web Application on behalf of the Customer.


h)              Defects: all failures in the Web Application which substantially interfere with the operation thereof, as described in the Documentation. The lack of certain functionality in a new version of the Web Application that was present in an earlier version is not considered to be a Defect;

i)                Documentation: Fireko's (electronic) documentation pertaining to the Web Application;

j)                Employee: an employee of the Customer or Fireko and/or a natural person or legal entity authorized to perform work for or under the responsibility of the Customer or Fireko;

k)               Fireko:Fireko as a supplier of services under the Fireko Online Agreement;

l)                Fireko Online Agreement: the agreement entered into and concluded between Customer and Fireko for the Fireko Online Services, including these Fireko Online Terms and Conditions.

m)             Fireko Online Service(s): the services to be provided by Fireko, as further described in the Fireko Online Agreement;

n)              Fireko Terms and Conditions: these Fireko Terms and Conditions;

o)              Log-In Data: usernames, passwords, tokens or other codes exclusively intended for the User to gain access to the Web Application.

p)              Log-In Procedure: the procedure prescribed by Fireko which the Customer must follow in order to gain access to the Web Application;

q)              Privacy Policy: the privacy policy of Fireko covering Fireko’s processing of Customer’s personal data which may be unique to each geographic region;

r)               Service Level Agreement: The statement issued by Fireko setting out the parameters of the expected service level of the Web Application which may be updated by Fireko from time to

s)               System Requirements: the minimum requirements  for the Customer’s hardware and software as prescribed by Fireko for the proper use of the Fireko Online Services;

t)               Third Party Components: a software (component), collection of components, or an API interface to a callable library (e.g., a .dll interface), developed by a third party and used by Fireko in its software for the Web Application.

u)              Third Party Services: a service developed by a third party that is enabled by a connection between the Web Application and a third party’s website or application. 

v)               User: the Customer, Employee of the Customer and/or of clients of the Accountant who uses the Fireko Online Service;

w)             Web Application: the software described in the Fireko Online Agreement, to which Fireko grants the Customer access by means of the Fireko Online Services for use in accordance with the provisions of the Fireko Online Agreement;

x)               Website: Fireko’s website for Fireko Online;

y)               Working Days: Monday through Friday, with the exception of official public holidays;

OFFER AND AGREEMENT

Article 2

2.1        These Fireko Terms and Conditions apply to the Fireko Online Agreement as well as to all negotiations, offers and other agreements with Fireko relating to Fireko Online Services, unless the parties have expressly agreed otherwise in writing. Wherever these Fireko Online Terms and Conditions refer to the Fireko Online Agreement, this shall be deemed to be a reference to the Fireko Online Agreement including these Fireko Online Terms and Conditions, unless specifically stated otherwise.

2.2        Fireko reserves the right, at its sole discretion, to change the Fireko Online Terms and Conditions from time to time. Fireko will provide reasonable advance notice through the Web Application, Website or by other means before the updated Fireko Online Terms and Conditions become effective. Fireko may also change or discontinue the Fireko Online Services, in whole or in part. In the event that the Customer does not agree to the proposed changes, the Customer may terminate the Fireko Online Agreement in accordance with Article 5.2., in absence whereof the Customer is deemed to have accepted the changed Fireko Online Terms and Conditions.

2.3        All offers or quotations regarding the Fireko Online Services are free of obligations and are revocable.

2.4        The Customer can place an order or Additional Order for Fireko Online Services in the manner indicated by Fireko. Each order and Additional Order shall be subject to acceptance by Fireko, and Fireko may accept or reject any orders and Additional Orders in its sole discretion. The Fireko Online Agreement comes into effect (the “Effective Date”) on the date Fireko sends the Customer a confirmation of the order or Additional Order.

2.5        The Customer accepts responsibility for the selection of the Fireko Online Service to achieve its intended results and acknowledges that the Fireko Online Service is a multi-tenant offering that has not been developed to meet the individual requirements of the Customer.

2.6        Fireko sets all its delivery periods to the best of its knowledge and complies with these periods as much as reasonably possible. Insofar it is maximally permitted under applicable law to stipulate such in the Fireko Online Terms and Conditions, the Customer is never entitled to any damages, compensation or discount as a result of a late delivery.

2.7        Any request of Customer to change the amount of Users and/or Administrations and/or modules shall be considered an Additional Order subject to the provisions of Article 2.4. In the event of a reduction the Customer shall expressly state which specific Users and/or Administrations and/or modules must be removed, in absence whereof Customer continues to owe a monthly fee for these Users and/or Administrations and/or modules.

RIGHT OF USE

Article 3

3.1        When the Fireko Online Agreement comes into effect, Fireko grants the Customer a nonexclusive, non-transferable right to use the Web Application during the term of the Fireko Online Agreement solely for the Customer’s internal operations, for the number of Users included in the Fireko Online Agreement and for the number of Administrations and modules included in the Fireko Online Agreement, as well as for any Additional Orders placed during the term of the Fireko Online Agreement. This right of use also includes the right to use the Documentation accompanying the Web Application.

3.2        The Customer may not allow the Web Application to be used by or for the benefit of any other person or legal entity besides the Customer and its Employees, with the exception of a Subsidiary. The Customer may not relicense or sublicense the Web Application or use the Web Application for third-party training, commercial timesharing, rental or service bureau use.

3.3        The Customer shall expressly not be permitted to use the Web Application for or having it used by more Users and/or Administrations than the number stated in the Fireko Online Agreement.

3.4        The Customer is prohibited from assigning or transferring any of its rights or obligations arising from the Fireko Online Agreement or the Fireko Online Terms and Conditions to any third parties to the extent that this is not explicitly allowed in the Fireko Online Agreement. The Customer shall refrain from selling and/or leasing the Fireko Online Services to other parties without the prior written consent of Fireko.

3.5        To the extent permitted to it by law, Fireko is entitled to make adjustments to the Web Application as it sees fit. Fireko will, at its sole discretion, inform the Customer in due time of updates and/or upgrades insofar as these are relevant for the use of the Web Application.

3.6        Customer is advised that the Fireko Online Services make use of certain Third Party Components and Third Party Services – as described in Articles 16.1 & 16.2, below – that are governed by license obligations that may contain limitations on exportation, importation, and access.  By accepting these Fireko Online Terms & Conditions, Customer agrees to comply fully with all relevant export laws and regulations that are applicable to Customer’s use of the Fireko Online Service in its geographic region (“Export Laws”), including without limitation the Export Administration Regulations (EARs) promulgated by the U.S. Department of Commerce, Bureau of Industry & Security, to assure that neither Customer nor any permitted User is granted access to the Fireko Online Service in a manner that results in: (a) an export, directly or indirectly, in violation of the Export Laws; or (b) use for any purposes prohibited by the Export Laws, including, without limitation, nuclear, chemical or biological weapons proliferation.  Customer represents and warrants that neither Customer nor any permitted User is a denied person or entity subject to restriction under the Consolidated Screening List (CSL) of the United States Government, a debarred party under the U.S. Arms Export Control Act (AECA), or a restricted person or entity under the U.S. Office of Foreign Assets Control (OFAC) list of Specifically Designated Nationals or Blocked Persons (the “SDN list”).

 

PRICE AND PAYMENT

Article 4

4.1        All prices, fees and other tariffs applied by Fireko are exclusive of VAT and exclusive of any taxes, levies, imports, duties, charges, fees and withholdings of any nature now or hereafter imposed by any governmental, fiscal or other authority, which can be adjusted interim in accordance with applicable governmental, fiscal or other changes in such levies. Payments shall be made in full and free and clear and without deductions for or on account of  any  such  taxes, levies, imports, duties, charges, fees and withholdings, save as required by law. If Customer is required by law to make any such deduction, it will pay to Fireko such additional amounts as are necessary to ensure receipt by Fireko of the full amount which Fireko would have received but for the deduction. Any and all liability in respect to (payment of) such deductions to the authorities shall be the sole responsibility of Customer.

4.2        The Customer owes Fireko a fee pursuant to the Fireko Online Agreement. The fee is due and payable, irrespective of whether the Customer uses the Fireko Online Services, from the Effective Date for the Fireko Online Agreement, in accordance with Article 2.4.

4.3        Fireko may adjust the fees referred to in this Article 4 on a monthly basis. Where possible Fireko will inform the Customer about such fee adjustment via the Fireko Online Website one month prior to the effective date of the fee adjustment. In the event that such fee adjustment results in higher fees and Customer does not agree to the proposed adjustment, the Customer may, terminate the Fireko Online Agreement in accordance with Article 5.2, in absence whereof the Customer is deemed to have accepted the adjusted fees.

4.4        Fees will be paid solely in advance.

4.5        Fireko may (at its sole discretion) offer the Customer various payment methods (e.g. credit card, iDEAL, PayPal etc). Where a specific payment method is offered by Fireko to the Customer and accepted by the Customer as a means of payment of its financial obligations under the Fireko Online Agreement, the Customer acknowledges and agrees that additional terms and conditions of Fireko may apply to such payment method. Some payment methods are facilitated by third parties (e.g. credit card companies). The Customer acknowledges and agrees that where Firekos uses the services of a third party for offering a payment method, the terms and conditions of such third parties may apply to the Customer in relation to its use of such payment method. The Customer is advised to familiarize itself with and agree to any such additional terms and conditions of Fireko and/ or a third party prior to its use of a specific payment method. 

4.7        The Customer shall provide Fireko with all information and cooperation including correct and current name, address and payment details and shall immediately inform Fireko via the Web Application of any change thereof. 

4.8 If the Customer fails to pay fees when they are due, or if the payment cannot be executed for reasons not attributable to Fireko, Fireko will inform the Customer thereof, whereby Fireko reserves the right to limit the Web Application functionality or block Customer’s  access to the Web Application without liability to the Customer. Upon request by the Customer, such limit of or blocked access to the Web Application may be lifted by Fireko within three (3) months if the outstanding amounts, plus an additional fee in accordance with Article 4.9, are fully paid.

4.9        If the Customer fails to meet its payment obligations under this Article 4, or fails to do so on time, the Customer is in default, without any further notice of default being required. Once in default, interest shall accrue on the unpaid balance of overdue amounts at a rate of 1.5% per month (or part thereof). Such interest shall accrue from the payment due date until the date payment of the overdue amount and accrued interest is made in full.

4.10      The Customer shall be liable to Fireko for all costs, expenses, loss and damages including, but not limited to, attorney fees and costs of collection incurred by Fireko, as a result of the Customer not meeting its payment obligations. The (collection) costs incurred by Fireko will be set at a minimum of 15% of the principal amount of the claim.

4.11      Notwithstanding the provisions of this Article 4, in the event of the occurrence of any situation referred to in Article 5.4 or if the Customer still fails to pay the due amounts after Fireko has followed the procedure described in Article 4.9, Fireko shall be entitled to require immediate advance payment from the Customer for the remainder of the intended term of the Fireko Online Agreement. This total fee will be immediately due and payable.

 

TERM AND TERMINATION OF THE AGREEMENT

Article 5

5.1        The Fireko Online Agreement commences when the conditions in Article 2.4 of these Fireko Online Terms and Conditions are fulfilled (the Effective Date) and is entered into for a period mentioned in the Fireko Online Agreement. The term of the Fireko Online Agreement will not change as a result of the Customer adding Additional Orders under the same Fireko Online Agreement. After this term the Fireko Online Agreement will be terminated. Parties can, subject to Article 2, enter into a new Fireko Online Agreement to continue the Fireko Online Services.

5.2        The Fireko Online Agreement can be terminated or changed by parties through the Web Application. If the Customer request to terminate the Fireko Online Agrement in advance of the end date, Customer is not entitled to any refund or compensation. Termination as used in this Fireko Online Agreement means “opzeggen” in the meaning of the Dutch Civil Code.

5.3        Without prejudice to any other rights or remedies available to it, Fireko may suspend without liability the performance of any of its obligations under the Fireko Online Agreement and/or block Customers access to the Fireko Online Services with immediate effect in the event that Customer neglects or fails to perform or observe  any of its obligations under the Fireko Online Agreement.

5.4        Fireko may terminate the Fireko Online Agreement without liability at any time with immediate effect and without judicial intervention by providing (electronic) notice to the Customer in the event Customer:

a)     neglects or fails to perform or observe any of its obligations under the Fireko Online Agreement and, after having been notified thereof in writing by Fireko, fails to remedy such neglect or failure within a reasonable  period after provision of such notice; or

b)     files or has filed against it a petition in bankruptcy which is not dismissed within 30 days, has a receiver appointed to handle its assets or affairs, admits that it is insolvent or is otherwise unable to pay its debts as they mature, when Fireko may reasonably conclude from the circumstances that the Customer is no longer able to pay its debts as they mature, is wound-up or liquidated or ceases to do business as a going concern.

The Fireko Online Agreement may also be partially terminated if and insofar the liquidation, suspension of payments or bankruptcy concerns one or more of Customer’s Administrations.

5.5        Notwithstanding anything to the contrary in the Fireko Online Agreement, termination of the Fireko Online Agreement shall neither relieve Customer of any accrued obligations to pay fees or other due amounts to Fireko, nor entitle Customer to any refund of fees or other amounts paid hereunder. Fireko is in no event obliged to pay any damages as a result of a termination as described in Articles 5.1, 5.3 or 5.4.

5.6        If the Fireko Online Agreement is terminated, the Customer may download all Customer Data up to  90 days after the termination date. After these 90 days the Customer will immediately and permanently cease use of the Web Application and will no longer have access to the Web Application and its data. After the 90 days period Fireko will remove the Customer Data still present in the Web Application.

5.7        For up to three months after the termination of the Fireko Online Agreement, the Customer may request Fireko to reactivate the Fireko Online Agreement.  Fireko has no obligation to honor such request if Fireko has not received proper payments from the Customer in accordance with Articles 4.8 and 4.9 and any reactivation will only become effective when the first payment of any applicable reactivation fee is received by Fireko. After the reactivation the Customer may again have access to  the Customer Data as it was stored in the Web Application prior to Customer’s termination, if and when such Customer Data is still readily available at Fireko and can be provided to Customer. In view of this Article 5.7, Customer hereby consents that Fireko (i) will retain Customer Data during the period of three months after the termination of the Fireko Online Agreement, and (ii) will delete the Customer Data upon expiration of such three month period, ultimately six (6) months after the termination of the Fireko Online Agreement. 

 

LOG-IN PROCEDURE

Article 6

6.1        The Customer and Users shall access the Web Application via the Log-In Procedure. Fireko is entitled to adjust the Log-In Procedure as it sees fit and shall inform the Customer thereof in a timely manner.

6.2        The Customer is responsible for the Log-In Data and must treat this data with due care. The Log-In Data is personal to the individual User and may not be shared with or transferred to any other party or person, neither within nor outside the Customer's organization. The Customer and Users must observe absolute secrecy concerning the Log-In Data. The Customer is solely and exclusively liable for all use of its Log-In Data by Customer, its Employees and Users. Furthermore all actions by the Users in this context are at the Customer's expense and risk. Fireko does not accept any liability in this respect.

RULES OF USE

Article 7

7.1        The Customer shall access and use the Web Application solely in accordance with:

a)     the provisions of the Fireko Online Agreement;

b)     these Fireko Online Terms and Conditions;

c)     the Documentation;

d)     all applicable laws, statutes and regulations.

The Customer shall not use the Fireko Online Services for action(s) and/or behavior that exposes Fireko to negative publicity.

7.2            The Customer guarantees that the Users will handle their access to the Web Application and the information thus obtained in a responsible manner. For clarity, the Customer retains and/or accepts unconditionally the ultimate responsibility for any information the Users add to or change in the Web Application.

7.3            The Customer shall not:

a)     use or attempt to use the Fireko Online Service for any illegal or unlawful purpose and/or for the purposes of publishing or otherwise distributing materials which are offensive, defamatory or in violation of any intellectual property rights belonging to any third party;

b)     use or attempt to use the Fireko Online Service in any way which disrupts, restricts or interferes with the provision of the Fireko Online Service and/or its availability to and use by other users authorized by Fireko;

c)     access or attempt to access any part of the Fireko Online Service which the Customer is not authorized to access and/or to access any data which is held within or accessible via the Fireko Online Service other than any data which has been entered by the Customer together with any data which is made publicly available by Fireko to all users within or via the Fireko Online Service;

d)     access or attempt to access any part of the Fireko Online Service via automated means (e.g. via a  “scrape”, “crawl” or “spider” );

e)     access, store, distribute, upload or transmit any viruses, Trojan horses, worms or any other electronic contaminants or devices during the course of the Customer's use of the Fireko Online Services;

f)      use any form of automated integration other than automated integration via the API’s (application programming interface) provided by Fireko;

g)     except as may be allowed by any mandatory applicable law and provided that the information that Customer requires is not otherwise available, reverse engineer, decompile, copy, distribute, disseminate, sub-license, modify, translate, scan, adapt or in any other way modify and/or reproduce any software or other code or script which forms part of or is accessible via the Fireko Online Service or Website; and/or

h)     cause or attempt to cause, by its actions or omissions, any direct or indirect disruption of the functioning of Fireko's infrastructure, or a part thereof, the infrastructure of third parties and/or links between these infrastructures by the content or size of its data traffic.

7.4        Without prejudice to the foregoing, the Customer shall refrain from using the Fireko Online Services for disseminating spam or facilitating spam (which includes without limitation having open SMTP relays and/ or proxies, having open proxies, hosting or enabling the hosting of websites advertised by means of unsolicited messages and providing DNS services for such websites). The Customer bears the burden of proof for demonstrating that permission was granted in advance by the addressee in the event of large quantities of communication sent by or on the Customer's behalf. The Customer is liable for the damage caused by the dissemination of spam. Damages are understood to include, but not limited to, the compensation for time spent by Fireko on removing the IP addresses of Fireko and other customers of Fireko that, as a result of the spam, have been included on spam filters' blacklists, as well as the costs arising from dealing with the complaints about the spam disseminated by the Customer.

7.5            Fireko provides the Fireko Online Services on the basis of a fair use policy. That is to say, it does not in principle impose any restrictions on the nature and size of the Customer's use of the Fireko Online Services other than referred to in the Articles 7.1 to 7.5 and Article 7.6. Fireko offers the Fireko Online Services for an amount of information stored by it and the volume of data transport realized by which can be expected as average in a small or medium sized enterprise. This is on the understanding that Fireko reserves the right to take measures in the event of excessive use, which is use that significantly exceeds an average Customer's use. The Customer must immediately take measures to end the aforementioned excessive load after the first notification from Fireko. Fireko has the right to suspend the Fireko Online Services in the event of (suspected) persistent excessive load. Fireko may charge to the Customer the costs associated with this excessive load at the prices and rates effective at that time. Excessive load is understood to include excessively high use of processing, memory, network, disk and storage capacity, as well as excessive use of support and management services.

7.6            If the Customer finds at any time that it is able to enter Fireko's network layers, it must report this to Fireko immediately.

7.7            The Customer is responsible for the operation of its hardware, software, configuration, peripheral equipment and internet connections necessary to use the Fireko Online Services. The Customer guarantees that the equipment and software it uses for the Fireko Online Services satisfies the System Requirements. The Customer is responsible for taking the necessary measures to protect its equipment, software and telecommunication, Log-In Data and internet connections against viruses, cybercrime and unlawful use by third parties.

7.8            If Fireko, at its sole discretion, feels that there is a danger to the undisturbed functioning of Fireko’s infrastructure and/or of the service provision to Fireko's Customers, such as but not limited to viral infections, denial of service attacks, port scans, hacking, spam from or because of the Customer, or otherwise, Fireko may give instructions that must be followed immediately by the Customer, and has the right to suspend service provision entirely or partially as long as the particular danger exists. The Customer is in default, without further notice of default being required, if the instructions are not followed by the Customer immediately.

7.10      For every (suspected) misuse or other improper use of the Web Application or any violation of the provisions of the Fireko Online Agreement, Fireko may, at its discretion and effective immediately:

a)     demand the Customer to temporarily or permanently remove any offending data from equipment, systems and/or (in the event of hosting) the Customer's servers; and/or

b)     temporarily or permanently limit or block the Customer’s access to or use of the Web Application;

c)     entirely or partly stop or suspend its service provision;

d)     terminate the Fireko Online Agreement, all without prejudice to the Customer's obligation to pay the remaining fees pursuant to the Fireko Online Agreement and without Fireko being required to pay the Customer any damages or other compensation. When feasible, it is Fireko's preference to give the Customer notice so that violations may be addressed voluntarily; however, Fireko reserves the right to act without notice when necessary, as determined by Fireko, at its sole discretion. Refunds or credits are not issued in connection with actions taken for violations of the Fireko Online Agreement.

 

AVAILABILITY

Article 8

8.1        Fireko shall use commercially reasonable efforts to ensure optimal availability of and access to the Web Application.  The applicability of any Service Level Agreements must be expressly agreed between parties.

8.2        Notwithstanding Article 8.1, Fireko is entitled, without any prior notice, to (temporarily) block or disable access to the Web Application or limit the use thereof insofar as may be reasonably necessary from time to time: a)  in order to carry out preventative or regular maintenance and upgrade work;

b)     in the event of any actual or suspected security breach; and/or

c)     in the event of any other emergency,  all without the Customer thereby being entitled to seek compensation from Fireko. Fireko will endeavor to limit these measures to a minimum and, to the extent commercially practicable, inform the Customer in a timely manner.

SUPPORT

Article 9

9.1        If included in the Fireko Online Agreement, the Customer is entitled to support for the use and functionality of the Fireko Online Services for the duration of the Fireko Online Agreement. Only a User can request support, which consists of the right to consult the Documentation and/or to submit questions through the Web Application. The Customer acknowledges and agrees that in providing support, Fireko is entitled to access and inspect the Customer Data under the conditions set out in Article 11.

9.2        Support does not include:

a)     services regarding system configurations, hardware and networks;

b)     structural work such as defining layouts, overviews, annual reports, lay-out of accountant’s charts, bookkeeping issues, import definitions and connections to third-party software;

c)     on-site support;

d)     extensions to the Web Application's functionality at the Customer's request;

e)     file conversion and/or returning/importing back up files;

f)      services with respect to external databases from manufacturers other than Fireko;

g)     configuration, training or other services not expressly described in the Fireko Online Agreement;

h)     support for operating- and other software from manufacturers other than Fireko, which is understood to include the third party software that can be started from the Web Application or third party connections to third party website;

i)       file repairs, the cause of which cannot be attributed to the Web Application;

j)      the provision of newly available products;

k)     support for the internet connection;

l)       support in an environment that is not supported according to the System Requirements.

CUSTOMER DATA

Article 10

10.1      The Customer will at all times remain the proprietor and owner of the Customer Data and Customer is solely responsible and liable for the content and accuracy of the Customer Data. The Customer’s compliance with all applicable government laws and regulations associated with the creation, retention or disposition of (computer generated) data in any jurisdiction where Customer uses the Web Application or transmits Customer Data using the Web Application is solely the responsibility of Customer. Fireko will not be subject to any statutory retention period regarding the data entered by the Customer within the Web Application.

10.2      Fireko warrants that the Customer Data is protected to the extent commercially and reasonably practical against loss, damages or destruction; but Fireko cannot guarantee that no loss, damages or destruction of data will occur. Fireko does not make a back-up of Customer Data. Therefore Fireko advises the Customer to make a back-up of all data entered through the Web Application as frequently as appropriate to enable it to recover such data with minimal impact to its business. Such back-ups need to be stored outside the (environment of the) Web Application. In no event shall Fireko be liable for the costs of (reproducing) mutilated, corrupt or lost data, nor or for any (consequential) damages or loss of profit on the part of the Customer.

 

PERSONAL DATA AND PRIVACY

Article 11

11.1      Customer acknowledges and agrees that Fireko’s Privacy Policy as published on the Website shall apply to Fireko’s processing of Customer’s personal information. The Customer hereby expressly agrees to the Privacy Policy. The terms in the Privacy Policy in combination with this Fireko Online Agreement constitute a data processing agreement under which Customer is the data controller and Fireko is the data processor. Fireko is entitled to amend the Privacy Policy from time to time and it is the Customer’s responsibility to ensure its review of the Privacy Policy and to familiarize itself with any changes. Customer’s continued use of the Web Application following any such change will constitute the Customer's acceptance of the revised Privacy Policy, notwithstanding anything to the contrary in these Fireko Online Terms and Conditions.

11.2      In relation to any data that the Customer has entered through the Web Application, the Customer:

a)     guarantees that it will process, store and use its personal data in accordance with all applicable laws, regulations and codes of practice;

b)     shall comply with all of its obligations as the controller and/or as processor of that data under any applicable data protection and privacy legislation, including, but not limited to, ensuring that all necessary information is provided to all data subjects whose data formed part of the data entered regarding the proposed use and disclosure of their data as a result of the Customer’s use of the Fireko Online Service;

c)     shall ensure that it has secured all necessary consents and authorizations which are required to enable it to process and store its personal data via the Web Application and Fireko shall have no responsibility or liability to the Customer to secure any required consents or authorizations on its behalf; and

d)     shall deal with any and all requests from data subjects and/or any other regulatory authority relating to the Customer Data. The Customer indemnifies Fireko in full on demand against any and all claims, costs, losses, damages, expenses, actions, fines and/or penalties which Fireko may suffer or incur or have imposed on it relating to any claims by Customer, its employees, agents and consultants, Customer’s clients and prospects or any other third party, or by a supervisory authority, regarding data which is processed by the Customer and/ or Fireko in the scope of the Fireko Online Agreement (including as a result of any claim or allegation that such processing is an infringement of any local and/or international data protection legislation and/or other legislation related to the processing of personal data) save that such indemnity shall not apply to the extent that any matter complained of is reasonably and directly attributable to any failure by Fireko to comply with any of its obligations under the Fireko Online Agreement.

11.3         Fireko warrants that, as a data processor, it shall take appropriate technical and organizational measures against the unauthorized or unlawful processing of Customer Data and against the accidental loss, destruction or damage of Customer Data. 

11.4         Except to the extent specifically provided in the Fireko Online Agreement or the Privacy Policy, and/or as may be reasonably required to enable Fireko to comply with its obligations under the Fireko Online Agreement, Fireko will not examine the data which the Customer has placed with Fireko through the Web Application and will not make data available to third parties (with the exception of subsidiaries and/or affiliates of Fireko), unless Fireko must do so pursuant to statute, a regulation, a judicial order or an order by a government or administrative agency. Fireko is entitled to access, aggregate and use Customer’s non-personally identifiable Customer Data; this data will in no way identify Customer or any other individual. Fireko may use this aggregated non-personally identifiable Customer Data to:

       assist Fireko to better understand how its customers are using EOL;

       provide its customers with further information regarding the uses and benefits of EOL,

       enhance business productivity, including  by creating useful business insights from such aggregated data and allowing Customer to benchmark its business’ performance against such aggregated data; and to otherwise improve EOL.

CONFIDENTIALITY

Article 12

12.1      Neither party will disclose Confidential Information received from the other party or use such information for any other purpose than for which the Confidential Information was disclosed and/or as may be reasonably necessary to enable each party to comply with its obligations under the Fireko Online Agreement and to exercise the rights granted to it pursuant to the Fireko Online Agreement, including that Fireko may disclose the Customer's Confidential Information to those of its officers, employees, agents, subcontractors and professional advisors who need to know it for the purpose of performing Fireko's obligations under the Fireko Online Agreement.

12.2      Both parties will take all reasonable precautions to ensure they comply with their confidentiality obligations. None of the provisions in this Article imposes any restrictions on the receiving party in respect of information or data – either the same or similar to the information or data contained in the Confidential Information or otherwise – when that information or data:

a)     was already the legal property of the receiving party before it was obtained from the disclosing party;

b)     was developed independently by the receiving party without using information or data from the disclosing party;

c)     is or will become generally known or accessible, other than by an act or omission on the part of the receiving party; or

d)     is disclosed to the receiving party by a third party, without a confidentiality obligation towards the disclosing party being breached.

12.3         The confidentiality obligations pursuant to this Article do not apply if the Confidential Information of the disclosing party must be disclosed pursuant to the law, an ordinance, a court order or a decision by a government agency, on condition that the receiving party makes every effort to limit the scope of the required disclosure.

12.4         The parties guarantee that their Employees, as well as third parties engaged by the parties, will comply with the confidentiality obligations set out in the Articles 14.1 and 14.2.

INTELLECTUAL PROPERTY RIGHTS

Article 13

13.1      All copyrights, patent rights, trade name rights, trademark rights, database rights, rights in designs (in each case whether registered or unregistered), rights in confidential information and trade secrets and other intellectual and industrial property rights, as well as all similar rights for the protection of (information in respect of) the Website, Web Application and Documentation are the exclusive property of Fireko or its licensor(s). None of the provisions in the Fireko Online Agreement or Fireko Online Terms and Conditions can be interpreted in such a way that it results in the full or partial transfer of these rights to the Customer.

13.2      The Customer is prohibited from changing, removing or making unrecognizable any notice in respect of Fireko’s intellectual property rights on or in the Website, Web Application or Documentation. The Customer is prohibited from using or registering any of Fireko’s brands, designs, logo's or domain names or similar names or signs corresponding to these, in any jurisdiction, anywhere in the world. All use of Fireko’s marks and other intellectual property, and all goodwill arising out of such use, will inure to the benefit of Fireko.

13.3      Fireko shall defend the Customer against any action brought against the Customer, to the extent that it is based on a claim that the Web Application used in accordance with the Fireko Online Agreement, the Fireko Online Terms and Conditions and the Documentation infringes a third party patent, copyright, or trade secret that is valid and enforceable in the jurisdiction applicable to the Fireko Online Agreement concluded between Fireko and the Customer, and shall hold Customer harmless from any liability for any costs or damages finally ordered by a court as the result of such a claim or resulting from the settlement thereof, provided the Customer:

a)     immediately notifies Fireko in writing of such legal claim when it is given notice of this (and all prior claims relating to such action);

b)     the legal claim regards the rights of a third party in a country that is a contracting party of the Berne Convention for the Protection of Literary and Artistic Works;

c)     cooperates fully with Fireko in every reasonable way at Fireko’s expense to facilitate the defense and settlement of any such action; and

d)     allows Fireko to have sole control of the defense and all negotiations for settlement of the claim as Fireko sees fit.

13.4      If an injunction is imposed on the Customer, prohibiting the use of the Web Application because of an infringement as referred to in Article 13.3 or, in Fireko's opinion, there is a chance that the Web Application will become the subject of a successful claim based on infringement, Fireko is entitled, at its sole discretion and expense, to;

a)     obtain the right for the Customer to continue to use the Web Application as per these Fireko Online Terms and Conditions;

b)     replace the Web Application or adapt it in such a way that this no longer constitutes an infringement, provided the functionality thereof remains materially unchanged; or

c)     if options a) and b) are not reasonably feasible  – at the discretion of Fireko -, to terminate the Fireko Online Agreement, as well as the rights granted under the Fireko Online Agreement, in relation to the infringing Web Application.

13.5      Without prejudice to the provisions in Article 13.3, Fireko is not liable toward the Customer pursuant to this Article insofar as a claim is based on:

a)     use of the Web Application in connection with data, equipment or software not provided by Fireko, whereby the Web Application in and of itself would not constitute any infringement or otherwise be the subject of the claim;

b)     incorrect or unauthorized use of the Web Application or use in a manner not described in the Documentation;

c)     any use of the Web Application by or on the behalf of the Customer in breach of the Fireko Online Agreement, the Fireko Online General Terms and Conditions and the Documentation;

d)     an amendment to the Web Application made by a natural person or legal entity other than Fireko; or

e)     Fireko's compliance with strict instructions from the Customer.

The Customer shall indemnify, defend and hold Fireko harmless against claims brought directly against Fireko as described in points a) to e) of this Article 13.5.

13.6         The Customer hereby acknowledges and accepts that Fireko’s full and exclusive liability for infringements of patents, copyrights, brands or other intellectual property rights is set forth  in the provisions in this Article 15 and in Article 17.

13.7         Fireko is entitled to make and maintain technical measures to protect the Website, Web Application and the Documentation, including the intellectual property rights thereto, taking into consideration the agreed restrictions in the use of the Website, Web Application and the Documentation. The Customer is prohibited from circumventing or removing such technical measures.

LIABILITY

Article 14

14.1      Fireko does not seek to limit or exclude in any way its liability for death or personal injury caused by negligence and/or for any other matter, claim or liability for which liability cannot be lawfully limited or excluded by Fireko. Each provision of the Fireko Online Agreement and these Fireko Online Terms and Conditions shall be read as subject to this Article 14.1 and no provision is intended to nor shall be interpreted as seeking to limit or exclude any such types of liability.

14.2      Subject to Article 14.1, Fireko’s total liability due to an attributable failure in the performance of the Fireko Online Agreement or on any legal basis whatsoever, expressly including each and every failure to fulfil any representation or warranty obligation agreed with the Customer, shall be limited to compensation for direct damages (as defined in clause 6:96 of the Dutch Civil Code) up to an amount equalling 50% of all amounts invoiced to and paid by the Customer in the six (6) months preceding the event causing such damages. Fireko’s total liability for direct loss, on any legal basis whatsoever, shall however never amount to more than EUR 10.000 (ten thousand euros). In all cases, a series of related events shall be considered a single incident for the purposes of these limits.

14.3      The exclusions and limitations of Fireko’s liability described in article 14.2 are entirely without prejudice to the other exclusions and limitations of Fireko’s liability described in the Fireko Online Agreement.

14.4 Subject to Article 14.1, Fireko is never liable for: punitive damages, loss of profits, missed savings, reduced goodwill, damages resulting from operational stagnation, damages resulting from claims by the Customer’s customers, corruption or loss of (the use of) data, damages associated with the use of third-party items, materials or software prescribed to Fireko by the Customer, damages associated with the deployment of suppliers prescribed to Fireko by the Customer, or any other form of indirect, incidental or consequential losses or damages, irrespective of the nature of the action (breach of contract, tort or otherwise), even if Fireko was notified of the possibility of such loss or damages or was aware of the possibility for such damages to occur whether as of the Effective Date of the Fireko Online Agreement or otherwise.

14.5      Fireko is never liable for any damages of whatever nature suffered by the Customer:

a)     due to the fact that the Web Application is temporarily unavailable, or temporarily unavailable in its proper or complete form;

b)     in connection with the functioning or malfunctioning of software of the Customer or of third parties (including Third Party Components and Third Party Services),  of the equipment of the Customer, Fireko or third parties, or of Internet connections of the Customer, Fireko or third parties; and/or

c)     in connection with the inaccurate, incomplete or late sending or receipt of Customer Data or any other data placed with Fireko via the Web Application.

The Customer acknowledges and accepts that the Web Application can never be perfect or be 100% free of Defects and that not all Defects can or will be remedied.

14.6         The exclusions and limitations referred to in this article 14 shall cease to apply if and insofar as the loss is the result of gross negligence or wilful misconduct on the part of Fireko’s higher management or such exclusions and limitations are otherwise prohibited by applicable mandatory law.

14.7         Except as provided in Article 13, Customer’s clients, prospects, employees, representatives, agents and (sub)Contractors are not intended to be third party beneficiaries under this Fireko Online Agreement and do not become a party to the Fireko Online Agreement; to the extent required the parties hereby agree that article 254 par. 1 Book 6 Dutch Civil Code does not apply and Customer agrees to indemnify in full and on demand Fireko, its Employees, representatives and/or (sub-)contractors and agents engaged for the fulfilment of the obligations of Fireko, against third-party claims resulting from or relating to the Fireko Online Agreement or Fireko Online Terms and Conditions, unless the Customer is able to enforce these claims against Fireko with due observance of the provisions in this Article, as if the Customer had suffered the damages itself.

14.8      Fireko shall only be liable if the Customer serves Fireko with proper notice of default for the attributable breach in question without delay, by electronic means in accordance with Article 16.6 of these Fireko Online Terms and Conditions, whereby and in such notice the Customer must provide Fireko with a reasonable term to remedy and cure the breach, (which in any event must not be less than 30 days), and Fireko culpably remains in breach of its obligations even after the term has passed. The notice of default must describe the breach as comprehensively and as detailed as possible, allowing Fireko to respond adequately.

14.9      In the event that Fireko is in breach of any of its obligations under the Fireko Online Agreement then any right to compensation or damages which the Customer may have (whether under the Fireko Online Agreement or otherwise and subject always to the limitations and exclusions as provided for under this Article 14) shall become void if the Customer fails to take measures to:

a)     limit and mitigate its damages immediately after it occurs;

b)     prevent (any other or additional) damages from occurring; or

c)     notify Fireko of the damages as soon as reasonably possible and provide it with all relevant information.

14.10      The provisions of this article and other limitations and exclusions of liability referred to in these Fireko Online Terms and Conditions shall also apply for the benefit of all natural persons and legal entities that Fireko engages in the performance of the Fireko Online Agreement.

14.11      The Customer acknowledges and accepts that the information that is made available via the Web Application and/or the Website by or on behalf of Fireko is provided without any guarantees unless explicitly stated otherwise, and the Customer or third parties are not entitled to derive any rights from this information.

14.12      With the exception of provisions that have been expressly included in the Fireko Online Agreement, Fireko does not make any other or further guarantees, promises or conditions in respect of the Fireko Online Services supplied to the Customer. Fireko hereby rejects all other guarantees, promises or conditions, either explicit, implicit or pursuant to the law (including but not limited to guarantees or warranties of merchantability or fitness for a particular purpose, non-infringement or other rights in respect of the Fireko Online Services.

 

FORCE MAJEURE

Article 15

15.1      Neither party is obliged to comply with a contractual obligation, with the exception of a payment obligation, resulting from the Fireko Online Agreement or the Fireko Online Terms and Conditions, if compliance is prevented by a force majeure. Force majeure includes but is not limited to: military actions, any acts of God, act of any government or other authority or statutory undertaking, industrial dispute, fire, explosion, accident, power failure, flood, riot or war (declared or undeclared), the elements, unavailability of or disruptions in telecommunication data network or internet connections, power loss/electrical power outage, delays or failures of Fireko's suppliers, transport problems and strikes.

15.2      If, at the time the force majeure occurs, Fireko has already partially met its obligations, or if Fireko can only partially meet its obligations as a result of the force majeure, Fireko is entitled to invoice separately for the performance already delivered or the deliverable part of the performance and the Customer is obliged to pay this invoice as if it concerns a separate agreement.

15.3      Throughout the duration of the force majeure, Fireko shall be entitled to suspend the fulfilment of its obligations. If this period lasts for more than three months, Fireko shall be entitled to terminate the Fireko Online Agreement with immediate effect by notice and without any obligation to pay the Customer any damages or compensation.

 

MISCELLANEOUS

Article 16

16.1      Fireko may at any time sub-license, assign, transfer, novate, charge, outsource or subcontract the performance of any of its rights and/or obligations under the Fireko Online Agreement.  In the case of any outsourcing or sub-contracting Fireko shall remain liable to the Customer for the acts or omissions of any of its service providers or sub-contractors as if those were the acts or omissions of Fireko itself under the Fireko Online Agreement.

16.2      If any provision from the Fireko Online Agreement or these Fireko Online Terms and Conditions is completely or partially void, voidable or conflicts with any applicable law, then, notwithstanding such illegality or unenforceability, this Agreement shall remain in full force and effect and such provision shall be interpreted and enforced as closely as possible to the intent of the parties. The other provisions of the Fireko Online Agreement or these Fireko Online Terms and Conditions will remain in full force.

16.3 Fireko's failure to exercise or delay in exercising any right, power or privilege under the Fireko Online Agreement or these Fireko Online Terms and Conditions shall not constitute a waiver, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof.

16.4 The Fireko Online Agreement constitutes the final, complete and exclusive statement of the Agreement between the parties in respect of the subject matter hereof and supersedes all prior and simultaneous written and oral negotiations, understandings and agreements between the parties in respect to the subject matter hereof, including specifically any Fireko advertising or sales materials.

16.5      Unless explicitly accepted by Fireko, the applicability of all or part of any general terms and conditions of the Customer including any terms and conditions contained on a purchase order or any ordering document, are hereby rejected.

16.6      Any communications between Fireko and the Customer may occur electronically except insofar as the Fireko Online Agreement and/ or the law provide differently. The version of the communication in question saved by Fireko will be considered proof thereof, subject to proof to the contrary by the Customer. Electronic communications shall be deemed to have been received on the day they are sent, unless the recipient proves otherwise. If the communication is not received because of delivery and/or accessibility problems, this is at the Customer's risk, even if the electronic inbox is located at a third party.

16.7      Except for the provisions of Articles 2.2 and 4.3, the Fireko Online Agreement may only be amended by means of an explicit agreement between the Customer and Fireko.

16.8      Any local translation of the Fireko Online Terms and Conditions is provided for convenience only; in case of differences between the English version and a local translation of the Fireko Online Terms and Conditions the English version shall prevail.

APPLICABLE LAW AND DISPUTES

Article 17

17.1 The Fireko Online Agreement, including these Fireko Online Terms and Conditions, are governed by and interpreted in accordance with the laws of the Netherlands exclusively. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) do not apply.

17.2      Notwithstanding the competency of any other court statutorily and peremptorily designated, any and all disputes, disagreements or claims resulting from or associated with the Fireko Online Agreement and/or the Fireko Online Terms and Conditions, or with the noncompliance, termination or invalidity thereof or any other dispute between the Customer and Fireko shall be exclusively submitted to the competent court in Breda, the Netherlands. However if the Fireko Online Agreement was concluded by and the Fireko Online Services were supplied to a Customer established outside the Netherlands and this Article is not valid under local law, any dispute, disagreement or claim arising out of or relating to the Fireko Online Agreement, or the breach, termination or invalidity thereof, shall be submitted to the adjudication of the competent court in the capital of the country where the Fireko Online Agreement was concluded by and the Fireko Online Services were supplied to the Customer.