General Terms and Conditions.

SOFTWARE AS A SERVICE TERMS AND CONDITIONS

These Software as a Service Terms and Conditions (hereinafter “SaaS Terms and Conditions”) between Provider and Customer, describe the general rights and obligations of Customer with respect to the SaaS solution provided by Provider as further specified in a WHOA WorkFlow Agreement (whenever a WHOA WorkFlow Agreement is mentioned, the name of the agreement may vary case by case but all terms and condititons remain applicable as described herein).

Definitions

All capitalized terms used in these SaaS Terms as well as in the WHOA WorkFlow Agreement that are either not otherwise defined in the SaaS Terms or WHOA WorkFlow Agreement shall then have the meaning ascribed to them in this Article.

“API Login Credentials” means the assignment of login credentials through the Service(s) portal or by means of their issuance by Provider to the Customer pursuant to a WHOA WorkFlow Agreement. This may be in the form of a username/password combination or token-based.
“Application Programming Interface (API)” means the interface that defines the interactions between the Service(s) and another intermediary software entity for the purpose of handling calls and/or requests to provide the Customer with certain forms of data as part of the Content, accessible only through the Service(s).
“Third Party Provider(s)” means a provider of data, information, software, services or other items that are part of or otherwise used in connection with Service(s).
“Service(s)” means the products and/or services ordered by Customer under a WHOA WorkFlow Agreement, or provided to Customer free of charge (if applicable) or on a free trial basis and made available online by Provider. Content does not constitute part of the products and/or services as defined herein
“User Accounts” means the assignment of login credentials that Customer’s employees assigned via the Service(s) portal or directly by Provider to Customer’s employees pursuant to a SaaS Agreement.
“Content” means all visual and non-visual information, documents, software, products and features obtained by Provider from publicly available sources or its Content Providers and included or made available to Customer in the course of using the Service(s).
“Intellectual Property Rights” means all intellectual property rights (including, but not limited to, patents, copyrights, trade secrets, database rights, design rights, goodwill and trademark rights), whether registered or unregistered, and including applications for registration thereof, rights in know-how and moral rights.
“Customer Data” means both electronic and non-electronic data, information or material, but excluding Content, provided or submitted to the Service(s) by or for Customer in the course of using the Service(s).
“Customer” means, in the case of a natural person accepting the WHOA WorkFlow Agreement on its own behalf, that natural person, or in the case of a natural person accepting the WHOA WorkFlow Agreement on behalf of a legal entity, that legal entity for which the natural person accepts the WHOA WorkFlow Agreement.
“Provider” means WHOA Systems B.V. (KVK 77683269].
“WHOA WorkFlow Agreement”: means a SaaS Order Form or other document incorporating these SaaS Terms and Conditions, entered into by and between Provider and Customer, specifying the Service(s) to be provided by Provider to Customer and specifying, as applicable, the number of User Accounts and/or API Login Details and the fees for such Service(s).

Grant

Subject to the SaaS Terms and Conditions and the WHOA WorkFlow Agreement, Provider hereby grants to Customer a non-exclusive, non-transferable, revocable right to use, through User Accounts or an API with API Login credentials, the Service(s) made available by Provider, albeit solely for Customer’s own internal business purposes. All rights not expressly granted to Customer are reserved to Provider.

Use and restrictions on use by Customer

Only those specifically identified as Customer in a WHOA WorkFlow Agreement are authorized to access and use the Service(s) specified in such WHOA WorkFlow Agreement. Unless expressly authorized in a WHOA WorkFlow Agreement, the Service(s) shall be used solely for Customer’s own internal business operations. Access to and use of the Service(s) is limited to the User Accounts and/or the API with API Login credentials provided to Customer.
Customer is not permitted to:
license, sub-license, sell, resell, transfer, assign, distribute or otherwise commercially exploit the Service(s) or the Content or make it available to third parties in any way; and/or
modify or create derivative works based on the Service(s) or the Content; and/or
create Internet “links” to the Service(s) and/or Content or offer the Service(s) and/or Content in a “frame” or “mirror,” whether or not through another service, server and/or wirelessly or non-wirelessly connected device to the Internet; and/or
reverse engineer or provide access to the Service(s) in any manner to:
build a competing product or service; and/or
build a product using similar ideas, features, functions or images from the Service(s); and/or
copy ideas, features, functions or images from the Service(s).
User Accounts cannot be shared or used by more than one individual user, but may be assigned from time to time to new users who will replace former users who have terminated their employment or otherwise changed positions and no longer (can no longer) use the Service(s).
A single pair of API Login credentials may be limited in the number of (simultaneous) requests they can make or the number of computers and/or servers that can connect from the same IP address, all of which is further specified in the WHOA WorkFlow Agreement.
Customer may only use the Service(s) for internal business purposes and shall not:
sending spam or otherwise sending duplicate or unsolicited messages in violation of applicable laws;
send or store infringing, obscene, threatening, defamatory or otherwise illegal or unlawful material;
transmit or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
interfere with the integrity or performance of the Service(s) or the data contained therein;
attempt to gain unauthorized access to Provider’s Service(s) or related systems or networks.

User accounts, API Login information and responsibilities.

Provider may, pursuant to a WHOA WorkFlow Agreement, provide Customer with one or more User Accounts for Customer’s employees only. In no event shall Customer or its employees provide User Accounts or User Account credentials to any third party.
Provider may, pursuant to a WHOA WorkFlow Agreement, provide Customer with one or more API Login credentials for exclusive use by Customer. Under no circumstances will Customer or its employees provide these API Login credentials to third parties.
Customer is responsible for all activities that occur under its provided User Accounts and/or API Login Data and will comply with all applicable domestic and foreign laws, treaties and regulations related to the use of the Service(s), including those related to data privacy, international communications and the transfer of technical or personal data. Customer is solely responsible for controlling and monitoring the use of the User Accounts and/or API Login Data. Customer is also responsible for compliance with the WHOA WorkFlow Agreement and the SaaS Terms and Conditions with respect to its employees and their User Accounts and/or API Login Data.
Customer shall:
Notify Provider immediately of any unauthorized and/or unauthorized use of any password, certificate or account or any other known or suspected breach of security related to User Accounts and/or API Login Data; and/or
promptly report and use reasonable efforts to stop the copying or distribution of Content to the extent known or suspected to the Customer in connection with the Service(s); and/or
not impersonate another user of the Service(s) or provide false identity information to access or use the Service(s).
Additional User Accounts and/or API Login credentials may be requested by written notice to Provider and upon approval, additional User Accounts and/or API Login credentials will be granted access to the Service(s). Provider reserves the right, at its sole discretion, to deny a User Account and/or API Login Details in assignment or revoke existing User Accounts and/or API Login Details for the Service(s) if used against the terms of these SaaS Terms and/or the WHOA WorkFlow Agreement.

Changes, upgrades and improvements

Provider reserves the right to change and/or modify its Service(s) and/or any portions or configurations thereof from time to time without notice. Such changes and/or modifications may include, without limitation, the addition or withdrawal of features and/or data, or changes in instructions and/or documentation. Such modification and/or customization shall never affect the functionality of the Service(s) to the extent that the purpose set forth in the WHOA WorkFlow Agreement can no longer be achieved.
Provider may also, in its sole discretion, make available enhancements, upgrades and other types of improvements to its Service(s). Improvements, upgrades and other types of enhancements to the Service(s) shall become part or integral to the Service(s) made available to Customer under the WHOA WorkFlow Agreement.

Usage Information and Data

Provider will back up Customer Data every day. Provider will not at any time retrieve Customer Data if it is accidentally or otherwise deleted by Customer. In the unlikely event that Customer Data is lost due to software or hardware failure, Provider will restore the most recent successful backup. Provider assumes no responsibility, implied or otherwise, for the quality or frequency of backup of Customer Data.
Provider does not own any data, information or material Customer provides to the Service(s) in the course of using the Service(s). Customer, not Provider, is solely responsible for the accuracy, quality, integrity, legality, reliability, suitability and intellectual property or use rights of all Customer Data and Provider shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store Customer Data. In the event the WHOA WorkFlow Agreement is terminated, Provider shall, upon request, make available a file of the Customer Data within thirty (30) days after termination of the same WHOA WorkFlow Agreement. After the expiration of this thirty (30) day period, all Customer Data (including backups of Customer Data) will be permanently deleted.
Provider reserves the right to withhold and/or delete Customer Data without notice in connection with any breach of these SaaS Terms or the WHOA WorkFlow Agreement, including, but not limited to, your non-payment. Upon termination for any reason, Customer’s right to access Customer Data shall immediately expire and Provider shall have no obligation to retain and/or forward Customer Data except as provided in this Section. During use of the Service(s), Provider will archive certain information and retain some usage and statistical information. In all cases, Provider reserves the right to irrevocably delete archived, usage and statistical data once it is older than three (3) months.

Property Rights

All Intellectual Property Rights in the Service(s) and Content, as well as any derivative works thereof, are and shall remain the exclusive property of Provider and/or the Third Party Provider(s). The Service(s) was/are compiled, prepared, reviewed, selected and arranged by Provider and any Third Party Provider(s) through the application of assessment methods and standards developed and applied through the commitment of significant time, effort, creativity and financial resources, the Service(s) thereby constitute the valuable intellectual property of Provider and/or the Third Party Provider(s). Customer shall comply with all reasonable requests by Provider to protect the rights in such Service(s). Subject to the limited rights expressly granted below, Provider reserves all right, title and interest in and to its Service(s), including all related Intellectual Property Rights. No rights are granted to Customer under any agreement other than as expressly set forth in any specific WHOA WorkFlow Agreement and its SaaS Terms and Conditions.
Copying, using, accessing or distributing the Service(s) or any Content in violation of the applicable WHOA WorkFlow Agreement and these SaaS Terms is strictly prohibited. Any breach of the WHOA WorkFlow Agreement and the SaaS Terms by Customer may be enforced by Provider or its Third Party Provider(s) through equitable relief (including but not limited to injunctive relief) in addition to any other rights and remedies available.
The WHOA WorkFlow Agreement never involves the sale of any ownership rights and does not give Customer any ownership rights in or relating to the Service(s) or the Intellectual Property Rights of the Service(s) and/or the Third Party Providers.

Fees

Customer shall pay all fees set forth in the WHOA WorkFlow Agreement. Unless otherwise stated in these SaaS Terms and Conditions or in a WHOA WorkFlow Agreement, this means that:
fees are based on purchased Service(s) and/or Content subscriptions and not on actual usage; and/or
fees are based on purchased Service(s) and/or Content subscriptions regardless of whether Customer exercises the rights granted under the WHOA WorkFlow Agreement and/or SaaS Terms;
payment obligations are non-cancellable;
fees paid are non-refundable;
purchased quantities (e.g. User Accounts and/or API Login Data) cannot be reduced during the relevant subscription period.
Amounts must be paid within 7 days of invoice date.
The fees stated in this article are exclusive of any taxes and/or similar charges and will be charged in addition to these charges, if applicable.

Duration

The WHOA WorkFlow Agreement commences on the date the Customer first accepts and signs it as such and ends once the period specified in the WHOA WorkFlow Agreement has expired.
The term shall be as specified in the applicable WHOA WorkFlow Agreement. Unless otherwise specified in the WHOA WorkFlow Agreement, the WHOA WorkFlow Agreement shall automatically terminate after the subscription period, unless either party notifies the other party in writing at least 30 (thirty) days prior to the end of the applicable period (email acceptable) of for the continuation of the WHOA WorkFlow Agreement as of the end of the then current period.

Termination and suspension

A party may terminate the WHOA WorkFlow Agreement at any time for the following reasons: 30 days after written notice to the other party of a material breach if such breach has not been cured after the expiration of a reasonable period of time; or
Any breach of Your payment obligations or unauthorized use of the Service(s) shall be considered a material breach of the WHOA WorkFlow Agreement and its SaaS Terms and Conditions. Provider may, in its sole discretion, terminate Customer’s User Account(s) and/or API Login credentials if Customer violates or otherwise fails to comply with the WHOA WorkFlow Agreement and its SaaS Terms. Customer agrees and acknowledges that Provider has no obligation to retain the Customer Data and may delete it if Customer has materially breached the WHOA WorkFlow Agreement and its SaaS Terms and Conditions, including but not limited to failure to pay outstanding fees, and such breach is not remedied within 30 days of notice of such breach.

Warranties, liability and indemnities

Customer acknowledges, understands and accepts that the Service(s) make no warranty to Customer with respect to the Service(s), express or implied, and that the Service(s) is provided on an “as is” basis at Customer’s sole risk. Provider expressly disclaims any implied warranty of fitness for a particular purpose. Neither the Service(s) nor directors, managers, officers, subsidiaries, shareholders, employees or agents of Provider make any warranty with respect to, and no such party shall have any liability to Customer for:
the accuracy, adequacy, timeliness, completeness, reliability, performance or continued availability of the Service(s); and/or
delays, omissions or interruptions therein.
Provider has no obligation to verify, monitor, control or review any information and/or data displayed through the Service(s). Customer acknowledges and agrees that:
it is solely responsible for assessing the accuracy, timeliness and completeness of all Content provided to it via Service(s); and
it has determined, based on its own assessment, that the Service(s) and the WHOA WorkFlow Agreement are suitable and satisfactory to Customer, and that Customer has not relied on any representation or warranty on the part of Provider in making that determination.
To the fullest extent permitted by law, Customer shall indemnify and protect Provider’s Service(s) directors, officers, affiliates, employees and agents against all losses, liabilities, judgments, suits, proceedings, claims, damages, costs (including attorneys’ fees) arising from any use of the Service(s) by Customer or by others using the User Accounts and/or API Login credentials in Customer’s possession.
Except as expressly agreed in the WHOA WorkFlow Agreement these SaaS Terms, in no event shall Provider be liable to Customer for any special, indirect, incidental, punitive or consequential damages howsoever caused, or for any loss of profits, or loss of time or goodwill, loss of use, cost or procurement of substitute goods or services whether in contract, tort or otherwise, arising out of or in any way connected with the Service(s), including but not limited to use or inability to use the Service(s), any interruption, inaccuracy, error or omission, even if advised of the possibility of such damages.
No action or claim of any kind arising out of or relating to the Service(s) or the WHOA WorkFlow Agreement or these SaaS Terms may be brought by Customer more than one (1) year after the cause of action or claim arose.
In the event that Provider is found liable for any damages arising out of or in connection with the WHOA WorkFlow Agreement or these SaaS Terms, Customer expressly agrees that upon entering into such an agreement, Provider’s total liability for any claims may not exceed the sum of the fees paid and/or payable by Customer to Provider under the WHOA WorkFlow Agreement for the applicable Service during the twelve (12) month period preceding the date such claim arose, less all payments of other claims covered by these provisions under the WHOA WorkFlow Agreement.

General provisions

Entire Agreement. It is the intent of the Parties that the WHOA WorkFlow Agreement, together with all of its annexes and/or appendices and other documents referred to in or referencing the WHOA WorkFlow Agreement:

are the final expression of the parties’ intent with respect to the subject matter of the WHOA WorkFlow Agreement; and
contains all terms and conditions agreed upon by the parties with respect to the subject matter; and
supersede all previous discussions, understandings and agreements of the parties with respect to the subject matter of the WHOA WorkFlow Agreement.

Assignment. Neither party may assign the WHOA WorkFlow Agreement or any rights or obligations under the WHOA WorkFlow Agreement without the written consent of the other party, with or without the effect of property law.

Notification

Method of Notice. The parties will give all notices and communications between the parties in writing by (i) personal delivery, or (ii) a nationally recognized courier service, or (iii) an email with proof of receipt.
Receipt of Notice. A notice under the WHOA WorkFlow Agreement will be effective upon
the other party’s receipt; and/or
if mailed, the first of receipt from the other party and the fifth business day after mailing.

Applicable law

The WHOA WorkFlow Agreement and all disputes arising therefrom shall be governed by the laws of the Netherlands.

Dispute Resolution

In the event that any Dispute (i.e. all disputes arising out of or relating to the WHOA WorkFlow Agreement, whether based in contract, tort or otherwise, hereinafter also referred to as “Dispute”) arising out of or relating to this WHOA WorkFlow Agreement is not resolved by the Parties within fifteen (15) days after the initial meeting of the Parties, the Parties shall attempt in good faith to resolve such Dispute by non-binding mediation in accordance with the rules of the Technology Arbitration and Mediation Institute (www. tami.nl) in Eindhoven as in effect on the commencement date of the Dispute with respect to the fifteen (15) day period. In the event that a dispute is deemed by either party to be impossible to resolve through mediation, a dispute shall be resolved by:

Arbitration. Any dispute or controversy arising out of the WHOA WorkFlow Agreement shall be settled by arbitration in the Netherlands, under the then current rules of the Technological Arbitration and Mediation Institute, and by 3 arbitrators; and
Award. The award of the arbitrators may be enforced in any court of competent jurisdiction.; and
Arbitral jurisdiction. The arbitrators will not have jurisdiction to award any punitive or consequential damages.

Recognition of irreparable harm. Each party acknowledges that their breach or threatened breach of their obligations under the WHOA WorkFlow Agreement may result in irreparable harm to the other party that cannot be adequately relieved by money damages alone.

Waiver

Failure by either party to enforce rights under the WHOA WorkFlow Agreement shall not be deemed a waiver of that party’s rights.
A waiver or extension is effective only if it is in writing and signed by the party issuing the waiver or extension.
Failure by a party to enforce any of its rights under the WHOA WorkFlow Agreement will not be considered a waiver of that or any other rights.
No exercise, partial or otherwise, of any right or remedy shall preclude any other or further exercise of any right or remedy.

Force Majeure

Neither Party shall be obliged to fulfill any obligation, including any legal and/or agreed warranty obligation, if it is prevented from doing so by circumstances beyond its control (also referred to as: force majeure). These include, but are not limited to, the following circumstances beyond the control of Provider: (i) circumstances beyond the control of Suppliers of Provider, (ii) failure to properly fulfill obligations entered into by Provider on behalf of Customer, (iii) defects in goods, hardware, software or materials of third parties used by Provider on behalf of Customer, (iv) governmental measures, (v) power failures, (vi) failures in the internet, data network or telecommunications facilities, (vii) (cyber) crime, (cyber) vandalism, war or terrorism and (viii) general transport problems.
If a force majeure situation lasts longer than sixty days, the parties have the right to terminate the WHOA WorkFlow Agreement in writing for breach. In that case, anything already performed under the WHOA WorkFlow Agreement shall be settled pro rata, without either party owing the other anything else.

If any part of the WHOA WorkFlow Agreement or any part of any provision of the WHOA WorkFlow Agreement is declared unenforceable or invalid, the remainder of the WHOA WorkFlow Agreement and any provision shall remain valid and enforceable.

The obligations of the parties under the CONFIDENTIALITY PROVISIONS, NON-COMPETITIVE OBLIGATION and EFFECT OF TERMINATION sections of the SaaS Agreement shall survive the TERMINATION, EXCEPTION, DATE OF DISABILITY of the SaaS Agreement.

The titles in the SaaS Terms or the WHOA WorkFlow Agreement are for reference only and shall not affect the meaning or interpretation of the WHOA WorkFlow Agreement or the SaaS Terms.

If either party brings an action to enforce its rights under the WHOA WorkFlow Agreement, the prevailing party may recover its costs (including reasonable attorneys’ fees) in connection with that action from the losing party, including in the case of Arbitration.

Unless otherwise expressly agreed to by the parties, in the event of any conflict between these SaaS Terms and Conditions and its attachments and/or the WHOA WorkFlow Agreement, the order of precedence shall apply, with provisions of the first document taking precedence over the second document and so on:

the WHOA WorkFlow Agreement;
the SaaS Terms and Conditions;
the annexes to the WHOA WorkFlow Agreement, with the first annex prevailing over the second and so on;
the Annexes to the SaaS Terms, the first Annex prevailing over the second and so on.

List of Annexes

NLdigital Conditions (as filed with the District Court of Midden-Nederland in Utrecht).

These General Terms and Conditions are in Dutch and English. In the event of any dispute regarding the content of these General Terms and Conditions, the Dutch text will be binding. Please email: vanprooijen@icrasystems.com to obtain the Dutch version of these SaaS general terms and provisions.

2023

General Terms and Conditions.

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