Terms And Conditions Of Use
Please read this terms and conditions of use carefully before using the SaaS product of Axual BV (“Axual”).
Applicability & The SaaS Product
- This SaaS terms apply to all agreements with and of Axual. By indicating consent electronically, or accessing or otherwise using the SaaS product, the user agrees to these terms and conditions.
- The SaaS-service descriptions setting out the functionalities and features of the SaaS product are listed at the website of Axual. Axual shall provide the SaaS product to the user substantially as set out at its website.
- Axual reserves the right to make changes to the SaaS product at any time. If a change made by Axual has an adverse effect on the agreed contents of the SaaS product or the agreed service levels Axual shall inform its users of such change at least thirty (30) days before the effective date of the change. In such a case the users shall have the right to terminate the agreement subject to thirty (30) days’ prior written notice.
- Axual shall always have the right -but shall have no obligation- to make such changes to the SaaS product that (a) concern or relate to the production environment of the SaaS product and do not have an adverse effect on the agreed contents of the SaaS product or the agreed service levels, (b) are necessary to prevent any data security risk to the SaaS product, or (c) result from law or from an administrative order.
- The user is responsible for ensuring that only authorized users have access to the SaaS product. Authorized users are the owners of user, its employees and/or third parties who provide services to the user.
- The user ensures a proper usage of passwords, tokens and access procedures with respect to logging into the SaaS product.
- Axual reserves the right to refuse registration of, or to cancel, login IDs that it reasonably believes to violate the terms and conditions set forth in these terms, in which case Axual will promptly inform the user in writing of such refusal or cancellation. This clause is also applicable on the user who uses a free trial of the SaaS product
- If the user is using a free trial of the SaaS product, Axual makes such trial service available to the user until the earlier of (i) the end of the free trial, (ii) the start date of any purchased version of such SaaS product, or (iii) written notice of termination from Axual.
- Axual grants the user during the under clause 8 of these terms described trial period a non-exclusive, non-transferable right to access and use the SaaS product for users’ internal evaluation purposes in accordance with the documentation and specifications on the website of Axual and subject to the access and use restrictions set forth in these terms.
- User is authorized to use the SaaS product during the trial period only for evaluation and not for any business or productive purposes, unless otherwise authorized by Axual. Any data user enters into the SaaS product during the trial period will be permanently lost unless the user has purchased a subscription to the same SaaS product as covered by in the trial period.
- Notwithstanding anything to the contrary, Axual provides the SaaS product in the trial period “as is” and “as available” without any warranties or representations of any kind. Axual disclaims all implied warranties and representations, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose and non-infringement. User assumes all risks and all costs associated with its use of the SaaS product in the trial period. Any obligations on behalf of Axual to indemnify, defend, or hold harmless under this terms are not applicable to users using the SaaS product during the trial period.
- The SaaS product provided by Axual is offered with a service level which is mentioned upon purchase of a subscription. If there is no mention of a particular service level, the SaaS product are provided to the user strictly on an “as is” and “as available” basis, and the user makes no representation or does not warrant the availability of the SaaS product at any particular time. Any applicable service levels have been set out at the website of Axual, and are only applicable to the individual SaaS product, as set out. Any compensation set out in connection with such service levels shall be the users’ sole remedy and the Axuals’ sole liability as regards any non-compliance with such service levels, and such non-compliance shall not constitute a breach of the terms and/or agreement.
- Liability of Axual is excluded for indirect loss, consequential loss, loss of profits, loss arising from third party claims against the user, loss on account of excess of terms or property damage consisting of destruction, damage or loss of goods used by the user in the course of its business or profession. More in particular Axual will not be liable for any loss or damage, death, illness or injuries caused on account of, by or in connection with the execution of the services save in the event of wilful intent or gross negligence on the part of Axual.
- Axuals’ total liability will be limited to 50% maximum of the fee, exclusive of VAT, for the SaaS service concerned.
Intellectual Property and Fair Use
- All intellectual property rights in the SaaS product, software, databases, equipment, or other materials like analyses, designs, documentation, reports, quotations as well as any preparatory materials to be provided under the agreement will vest in Axual exclusively, its licensors or suppliers.
- Axual may take technical measures to protect the SaaS product or with an eye to agreed limitations in the validity of the right to use the software.
- The SaaS product includes open source software programs that are made available by third parties under their respective open source licenses as indicated in the documentation as described on the website of Axual. Axual warrants that such third party materials will not diminish the rights provided to the user herein, or limit users’ ability to use the SaaS Product in accordance with the documentation, or create any obligation on the part of user to license the software or products under any open source or similar license. Nothing herein shall derogate from mandatory rights user may have under any OSS licenses, if any.
- The user shall use and shall ensure that its authorized users use the SaaS product in accordance with the following acceptable use policy. The user is solely responsible for ensuring that the SaaS product is not used:
- to violate, or encourage the violation of, the legal rights (including without limitation intellectual property rights) of others;
- to engage in, promote or encourage any illegal activity;
- for any unlawful, invasive, infringing, defamatory, offensive, harmful or fraudulent purpose (for example, this may include phishing, creating a pyramid scheme or mirroring a website);
- to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature;
- to violate security or integrity of any network, computer or communications system, software application or network or computing device (such violations to include without limitation unauthorized access, interception of data or traffic or falsification of origin);
- to make connections to any users, hosts or networks unless the user has permission to communicate with them (such network abuses to include without limitation monitoring or crawling, denial of service attacks, intentional interference, operating open proxies, open mail relays or open recursive domain name servers, or to avoiding system restrictions);
- to interfere with the use of the SaaS product, or the equipment used to provide the SaaS product by others;
- to disable, interfere with or circumvent any aspect of the SaaS product;
- to generate, distribute, publish or facilitate unsolicited mass email, promotions, advertisements or other solicitations (“spam”), including alteration or obscuring mail headers or assuming sender’s identities, collecting replies to messages sent from a third party provider if such messages would violate the policies set out herein or comparable policies of such third party; or
- to use the SaaS product, or any interfaces provided with the SaaS product, to access any other product or service of Axual or its subcontractors in a manner that violates their applicable terms of service.
Fees and Payment
- The fees (if applicable) applied by Axual are the fees in effect on the date of conclusion of the agreement unless Axual and the user agree otherwise in writing. Fees are exclusive of turnover tax (VAT), excise duties and any other government levies imposed. All invoices of Axual must be paid within 30 days of invoice or so much earlier as will be indicated by Axual in the manner specified by Axual without any right to discount and/or set-off. All costs related to payment, including the possible provision of security, will be paid by the user.
- Upon expiry of the term referred to in article 19 the user will be automatically in default without any notice of default being required.
- Axual shall have the right to suspend the provision of the SaaS product for a reasonable period of time if this is necessary in order to perform installation, change or maintenance work in respect of the SaaS product or if such suspension results from installation, change or maintenance work in respect of public communication networks.
Suspension and Termination
- Axual shall also have the right to suspend the provision of the SaaS product and/or deny the users’ access to the SaaS product without first hearing the user due to a data security risk to the SaaS product or if law or administrative order requires Axual to do so or if Axual becomes aware of or reasonably suspects any activities of the user or its authorized users that infringe on the policies set out in these terms or if the SaaS product is used contrary to, or for a purpose prohibited by the agreement, applicable laws or administrative orders or in a manner that jeopardizes the provision of the SaaS product to other users .
- Axual shall always have the right to suspend the SaaS product, if the user is in default with its payment of the fees due under the agreement and does not pay such fees despite a request to pay within fourteen (14) days calculated from the date of such request. The suspension can be continued until the user has paid all fees due under the agreement.
- In case Axual observes a excessive use of the SaaS product by user, Axual has the right to either suspend the SaaS product, to impose limits to the use of the SaaS product or to terminate the agreement between parties.
- Either party has the right to dissolve the agreement only if the other party, following due and detailed written notice setting a reasonable term for remedying their breach, still fails to comply with essential obligations under the agreement.
- Axual may terminate the execution of its service by written notice without any notice of default or judicial intervention being required if the user does not comply with its (payment) obligation(s), is granted suspension of payments, whether or not provisionally, if the user applies for bankruptcy or if the users’ business is wound up or discontinued. Axual will never be required to pay any compensation on account of such termination.
Privacy & Security
- Axual is processor in the sense of the GDPR and, for that reason, has no control over the purpose of and the means for the personal data processing and, therefore, does not take any decisions on, amongst other things, the use of personal data.
- With the help of analytical cookies, Axual can keep track and measure which parts of the SaaS product are best visited. Statistics are made of the information that is collected. The SaaS product is optimized on the basis of these statistics and its content and navigation are made as user-friendly as possible. Axual only uses this data in an aggregated fashion, so that the information cannot be traced back to an individual.
- All information, data and products exchanged between Axual and the user or to which they have access, including software, preparatory materials, test results and trade secrets, will be treated as strictly confidential by the other party. This obligation to Confidentiality shall survive the termination or cancellation of the agreement between parties for a period of 3 years after the date of termination or cancellation.
- Without the prior consent of Axual the user may not transfer, either in full or in part, its rights under its legal relationship with Axual or any or several of the obligations arising therefrom to third parties or to have these executed by third parties.
Applicable Law and Choice of Forum
- The legal relations between Axual and the user will be governed by Dutch law only. Any disputes between Axual and the user will be settled exclusively by the competent Court of The Hague.
Axual B.V., October 1st, 2020