GENERAL TERMS AND CONDITIONS – Crobox B.V.
Effective from: the 15th of December 2017
The definitions and rules of interpretation in this clause apply to these general terms and conditions.
Affiliate: means an entity which directly or indirectly controls, is controlled by, or is under common control by the Customer.
Agreement: means the agreement between Crobox and the Customer including the Terms and Conditions. Authorised Users: means those employees and workers of the Customer who are authorised by the Customer to use the Product.
Business Day: means any day which is not a Saturday, Sunday or public holiday in The Netherlands.
Business Hours: means 9.00 to 17.00 local Amsterdam time, each Business Day.
Confidential Information: means information disclosed by (or on behalf of) one party to the other party in connection with or in anticipation of the Agreement (including the content of the Agreement) that is marked as confidential or, from its nature, content or the circumstances in which it is disclosed, might reasonably be supposed to be confidential. It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient or that was lawfully given to the recipient by a third party.
Customer: means the customer of Crobox that entered into the Agreement.
Customer Site: means those website(s) owned and operated by the Customer on which Crobox agrees to implement the Product and the Services.
Data Protection Laws: means the Dutch Data Protection Act (Wet bescherming persoonsgegevens) implementing the Directive 95/46/EC on the protection of individuals with regard to the processing of personal data (or as applicable any similar legislation in any jurisdiction implementing Directive 95/46/EC) as may be amended, modified or replaced from time to time, and including all related codes of practice.
Derivative Data: means information, know-how (including Crobox’s underlying data collection methodologies), data and materials that are derived, prepared or generated by Crobox and/or its sub-contractors within Crobox’s environment pursuant to (and/or as a consequence of) the Product.
Effective Date: is the date on which Crobox and the Customer enter into the Agreement.
Fees: means the fees for the Product and the Services to be paid by Customer to Crobox and which are included and agreed upon in the Agreement.
Intellectual Property Rights: means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Product: means the Software functionality and Services made available by Crobox as an application service provider (and as such functionality and services may thereafter be updated by Crobox from time to time). Crobox means Crobox B.V., a limited liability company, incorporated under the laws of the Netherlands, whose registered office is at Amsterdam, the Netherlands and whose office address is at Jollemanhof 17, 1019GW Amsterdam, the Netherlands and registered with the Trade Register of the Chamber of Commerce in Amsterdam, the Netherlands, under number 65563956.
System: means a “software as a service” (SAAS) system that is an online real-time prediction/conversion/profiling engine and which (i) enables a Customer to automatically build full personal profiles of its Customer Site visitors and based on these profiles to entice and convince these visitors to make certain actions, all focusing in particular on increasing online conversion (e-commerce), and (ii) consists of, among other things, the Software.
Term: has the meaning given in clauses 13.1.
Terms and Conditions: means these general terms and conditions, regardless of the form in which they are presented (on paper or expressed electronically, e.g. via the web site), and which form an integral part of and are applicable to the Agreement.
Third Party Users: means agency partners or other third parties identified and notified to Crobox in writing which the Customer may permit to use the Product in accordance with clause 2.1 b).
Virus: means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Clause, schedule and paragraph headings shall not affect the interpretation of the Agreement. Where the words include(s), including or in particular are used in the Agreement, they are deemed to have the words without limitation following them.
Subject to the timely payment by the Customer of the Fees and solely during the Term, Crobox grants to the Customer a non-exclusive, non-transferable right to:
a) permit the Authorised Users to use the Product;
b) permit Third Party Users to use the Product; and
c) permit a Customer Affiliate or Affiliates to use the Product in each case solely for the Customer’s internal business operations (and if applicable the business purposes of a relevant Customer Affiliate).
The Customer shall not:
a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Product (as applicable) in any form or media or by any means;
b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Product;
c) access all or any part of the Product in order to build a product or service which competes with the Product;
d) use the Product to provide services to third parties;
e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Product available to any third party; or
f) (without prejudice to clause 2.1 b) attempt to obtain, or assist third parties in obtaining, access to the Product.
a) repair and/or solve all operational issues, problems and/or errors regarding the Services, such as downtime of Crobox’s serves as soon as reasonable possible after reporting by the Customer to the helpdesk of Crobox; and b) respond to support questions during Business Days between 09.00 and 17.00 hour and as soon as reasonable possible after reporting by the Customer to the helpdesk of Crobox.
Crobox may use resellers or intermediaries for its benefit. In accordance with clause 18 and 21, any agreement entered into between the Customer and a reseller or intermediary of Crobox shall in no event (directly or indirectly) affect the Agreement, the Terms and Conditions and/or any provision thereof. Crobox agrees upon separate terms from these “general terms and conditions” directly with the reseller.
Notwithstanding clause 6.1, Crobox:
a) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Product may be subject to limitations, delays and other problems inherent in the use of such communications facilities; b) does not accept responsibility for any use of the Product contrary to Crobox’s instructions, or modification or alteration of the Product by any party other than Crobox or Crobox’s daily authorised contractors or agents; c) does not warrant that the Customer’s use of the Product will be uninterrupted or error-free; nor that the Product and/or the information obtained by the Customer through the Product will meet the Customer’s requirements; and/or d) is entitled to temporarily and/or completely limit the use of the Product to the extent (i) reasonable necessary in Crobox’s opinion or (ii) necessary for the maintenance or upgrades needed to improve the Product, without prior notification and/or any right of compensation of the Customer.
The Customer shall:
a) provide Crobox with: (i) all necessary co-operation in relation to the Agreement; and (ii) all necessary access to such information as may be required by Crobox in order to render the Product, including but not limited to security access information and configuration services;
b) comply with all applicable laws and regulations with respect to its activities under the Agreement;
c) carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Crobox may adjust any agreed timetable or delivery schedule as reasonably necessary;
d) ensure that the Customer Affiliates, Authorised Users and Third Party Users use the Product in accordance with the terms and conditions of the Agreement and shall be responsible for any Authorised User’s, Third Party Users or Affiliates breach of the Agreement;
e) to the extent applicable, obtain and shall maintain all necessary licences, consents, and permissions necessary for Crobox, its contractors and agents to perform their obligations under the Agreement, including without limitation the Services;
f) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Crobox’s hosting environment, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet; and
g) permit and assist Crobox to monitor Customers Site for the purpose of calculating a change of the Fee in accordance with clause 8.5.
In no event shall Crobox, its employees, agents and sub-contractors be liable to the Customer under the indemnity at clause 11.1 to the extent that the alleged infringement is based on:
a) a modification of the Product by anyone other than Crobox; or
b) the Customer’s use of the Product in a manner contrary to the instructions given to the Customer by Crobox; or
c) the Customer’s use of the Product after notice of the alleged or actual infringement from Crobox or any appropriate authority.
Subject to the provisions of clause 12.4, this clause 12 sets out the entire (financial) liability of Crobox (including any liability for the acts or omissions of Crobox’s employees, agents and sub-contractors) to the Customer respect of:
a) any breach of the Agreement;
b) any use made by the Customer of (any part of) the Product; and
c) any representation, statement or tortious act or omission (including negligence) or breach of statutory duty arising under or in connection with the Agreement.
Crobox shall have no liability for any damage caused by:
a) any Virus and/or update of the System/Software causing any damages;
b) any downtime of Crobox’s servers or the System;
c) errors or omissions in any information, instructions or scripts provided to Crobox by the Customer in connection with the Product; or
d) any actions taken by Crobox at the Customer’s direction.
Nothing in the Agreement excludes the liability of Crobox:
a) for death or personal injury caused by negligence;
b) for fraud or fraudulent misrepresentation; or
c) for any other liability which may not be limited or excluded by applicable law.
Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Agreement without liability to the other immediately on giving written notice to the other if:
a) (i) the other party is in material breach of the Agreement where the breach is incapable of remedy; or (ii) the other party is in material breach of the Agreement where the breach is capable of remedy and fails to remedy that breach within 14 days after receiving written notice of such breach; b) the other party enters into an arrangement or composition with or for the benefit of its creditors, goes into administration, receivership or administrative receivership, is declared bankrupt or insolvent or is dissolved or otherwise ceases to carry on business; or c) any analogous event happens to the other party in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets.
On termination of the Agreement for any reason:
a) all licenses granted by Crobox under the Agreement shall immediately terminate;
b) the Customer can no longer use the Product, nor access any profiles of Customer Site visitors;
c) each party shall return or destroy as directed by the other party and make no further use of any equipment, property, Confidential Information and other items (and all copies of them) belonging to the other party; and
d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving or coming into effect after termination, shall not be affected or prejudiced.
Neither party shall have any liability to other under or in connection with the Agreement if it is prevented from, or delayed in performing, its obligations under the Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of either party to the Agreement or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
NO PARTNERSHIP OR AGENCY
Nothing in the Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
RIGHTS OF THIRD PARTIES
A person who is not a party to the Agreement shall not have any rights under or in connection with it.