TRAC Terms and Conditions
Acceptance of the Terms
This agreement governs your subscription and use of our TRAC services. By accepting this agreement, either by clicking a box indicating your acceptance, by executing a Service Agreement that references this agreement or by actually using the TRAC service, you agree to the terms of this agreement. You must be of legal age to enter into a binding agreement in order to accept the Terms. If you are entering into this agreement on behalf of a company or other legal entity, you acknowledge that you have the authority to bind such entity and its affiliates to these terms and conditions. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this agreement and may not receive the TRAC services.
You may not receive TRAC Services if you are a direct competitor of Leadmark, except with our prior written consent. In addition, you may not receive TRAC Services for purposes of evaluating or monitoring their quality or performance, or for any other benchmarking or competitive purposes.
The agreement is effective between you and Leadmark as of the date of you accepting this Agreement.
“Application Form” means the initial order form and/or order confirmation and any subsequent order forms and/ or order confirmations evidencing among other things the type of Subscription, Subscription term, Initial Term, the number of Users Licences, ordered Professional Services, applicable fees, etc. Each such Application Form shall form an integral part of this Agreement. In the event of conflict between the terms of an Application Form and the terms of this Agreement, the terms of the Application Form shall prevail.
“Contract Start Date” means the date stated in the Application form, or if applicable during sign-up, or in any other form.
“Client” means the individual or the legal entity who activates TRAC Services provided by Leadmark and assumes payment responsibility for the same vis-à-vis Leadmark.
“Employer” means the legal entity entitled to ownership of the e-mail address used by the User upon registering and to which the User is associated through an employment relationship, consulting arrangement or similar circumstances. Employer shall not mean an Internet Service Provider (ISP) or similar provider even though such provider may be entitled to ownership of the e-mail address utilised by a User.
“Initial Term” means the initial contract period during which the Client subscribes to the Services.
“Project” means a sourced services and supplier relationships managed by the Client in the TRAC Service.
“Professional Services” means training, solution advising and any other related consultancy services.
“Renewal Term(s)” means successive renewal periods during which the Client subscribes to the Services.
“Services” means the at all times current version of the services, associated software, all the User’s Workspaces and other services related thereto provided to the User by Leadmark in accordance with this agreement. The service is provider under the name TRAC. TRAC is an online collaboration and communications solution for the governance of sourced services relationships including performance management, obligation tracking, contract administration, risk management, dashboards, reporting and with the characteristics and features as described at www.Leadmark.nl from time to time.
“Subscription” means the terms governing among other things the type of subscription, subscription term, billing frequency, the number of User Licences, applicable fees, etc.
“Trial Service” means a Service, which is provided free of charge or which is under development or evaluation and is marked “free”, “pilot”, “trial”, “beta” or “evaluation” (or a similar designation).
“Terms of Service” means the terms and conditions, available at the Web Site from time to time, to which all Users agree by activating their user account in the TRAC Service.
“User(s)” means all individuals who are authorized to start and/or participate in one or more of Client’s own projects. In the event of a Company User Enterprise Edition Subscription “Company User(s)” means all employees, consultants or any other individual that works for the Client, its subsidiaries or any other of its affiliated companies and who is authorized to participate in and/or to start an unlimited number of projects under a Company User Enterprise Edition Subscription. A user under such subscription with an email address containing the Client’s, its subsidiaries or any of its affiliated companies, domain name is presumed to be a Company User. The presumption does no exclude that a Company User may have an email address using another domain address than the Client its subsidiaries or affiliated companies.
“User Licence(s)” means, as applicable, the subscribed number of Users under a Subscription, or when applicable, the subscribed number of Company User Licences in a Company User Enterprise Edition Subscription.
“Web Site” means Leadmark’s web site at www.Leadmark.nl.
“Workspace” means a single service with a defined set of subscription terms and limited group of Users who are authorised to access the service.
2. Services, License Grant and Restrictions
2.1 Subject to the terms and conditions of this Agreement, Leadmark hereby grants to the Client a non-transferable, non-exclusive, non-sublicensable limited term world-wide right and licence for the Client and Users to access and use the Services for Client’s own Projects.
2.2 Leadmark reserves the right to implement new versions and upgrades of the Services including, but not limited to, changes that effect modifications to the design, operational method, technical specifications, systems, and other functions, etc. of the Services, at any time without prior notice.
2.3 Leadmark undertakes, in its sole discretion, to adopt reasonable measures in order to ensure that the Services are available over the Internet around the clock, seven (7) days a week. Leadmark shall be entitled to take measures that affect the aforementioned accessibility where Leadmark deems such to be necessary for technical, maintenance, operational, or security reasons. The Client is aware and acknowledges that the Client’s access to the Internet cannot be guaranteed and that Leadmark shall never be liable for deficiencies in the Client’s own Internet connections or equipment.
2.4 The Client shall be entitled, with or without compensation from Users, to provide Users with access to the Client’s Content and the Services provided by Leadmark. The Client is aware of and acknowledges that the Client is fully liable for the Users to whom the Client affords access to the Services. The Client shall not charge a User any fee for its use of the Services in excess of the Client’s direct costs to Leadmark for such User’s participation.
2.5 The Client shall be entitled to provide access to the Service to its service providers that are managed through the Service provided that the third party, in Leadmark’s sole discretion, is approved by Leadmark and that written documentation, in the form decided by Leadmark, is presented evidencing that the third party approves the assignment and that the new party accepts the terms and conditions of this Agreement.
2.6 Leadmark shall be entitled to retain subcontractors, including third party software suppliers, for the performance of obligations in accordance with this Agreement. Leadmark shall be liable for the subcontractors’ work and services in the same manner as for its own work and services.
2.7 In the event the parties have agreed that the Client should be provided training this will be provided under the Professional Services Terms and Conditions. In case of a class room training session it is the responsibility of the Client to (a) provide for a suitable location where training can take place equipped with a computer connected to Internet and to a projector, and (b) invite and make sure all relevant delegates will attend and to inform about the time, date, location and necessary preparations.
2.8 Leadmark offers free support materials and access to user manuals online. These materials can be used by all Users to address questions around use of the Services. If the Client has ordered dedicated training the following cancellation policy shall apply to; (i) Training at client site, Online and at Leadmark offices with a pre-defined scope, agreed number of resources or agreed number of hours. If Leadmark has received a written notice at least (i) fourteen (14) business days in advance of the class, the Client is entitled to a refund of its payment, (ii) seven (7) business days in advance of the class, the Client is entitled to a training class credit that must be used for another class offered by Leadmark within three (3) months of the date of the original class. Client is not entitled to a refund or class credit if less than seven (7) business days advance written notice is given. Failure to provide written notice at least fourteen (14) business days in advance of the class obligates the Client to make payment for the full price of the class.
2.9 Leadmark reserves the right to reschedule or cancel the date, time and location of a training class at any time, including replacing personnel who may be scheduled to deliver the training. In the event a training class is cancelled, the Client is entitled to a full refund unless the training class is cancelled by Leadmark due to circumstances beyond its reasonable control. In such event is the Client entitled to a full training class credit which must be used within three (3) months of the date of the original class for another class offered by Leadmark.
2.10 Leadmark shall not be responsible for any loss incurred by Client as a result of a cancellation or reschedule.
2.11 With acceptance of these terms and creating a user account using an e-mail address belonging to an Employer, such user account may be or may later become subject to additional terms and condition
resulting from the Employer’s existing or future business relation with Leadmark. The Client is aware of
and acknowledges that the Employer, in such event, may effectuate actions that could change the nature of the Services provided to the Client or impose access restrictions on regarding access to the Services and Content. Such actions may include, without limitation, administrative actions by the Employer, instructions issued by the Employer to Leadmark and actions due, but not limited to, reorganization, discontinuation of an employment or consulting relationship with the Client.
3. Trial Services
In case Trail Services are offered these are provided strictly “as is” unless agreed otherwise.
Such services are only offered on the initiative of Leadmark. The Client may use a Trial Service in a manner consistent with the terms and conditions of this Agreement, but Leadmark may, at its discretion, disable certain features of a Trial Service and enforce time limits on the Client’s right to use the same. In light of the fact that a Trial Service is provided under special commercial conditions, Leadmark disclaims, unless agreed otherwise, all warranties, representations, and liabilities as set forth in this Agreement and Leadmark shall not be liable for damages of any kind related to the Client’s or User’s use of a Trial Service.
Should the Client decide not to continue using the Service after the trail period, data can be extracted from the Service using the standard in-system Excel export functions. In case support is required from Leadmark, in addition to providing access to the standard functions, Leadmark has the right to charge the Client for these additional services. Such services would be provided under Professional Services Terms and Conditions.
In case of any conflict between the terms of this Agreement and any specific agreement between Leadmark and the Client conferning the Trial Services, the terms in the specific Trail Services agreement will prevail over the terms of this Agreement.
4. Customer Support
Leadmark provides support regarding Clients’ issues and enquiries in connection with use of the Services. Such support is provided on weekdays (excluding Dutch public holidays) during Leadmark’s regular office hours and to the reasonable extent decided upon from time to time in detail by Leadmark. Leadmark aims to respond to all issues and enquiries within 24 business hours.
Enquiries, issues and or error notices must be submitted to Leadmark using the TRAC in-system ticketing system. Should this not be available they can be submitted by email at email@example.com.
5. Client Obligations
5.1 The Client shall always comply with the security and administrative regulations as notified in conjunction with registration, by e-mail, as made available on the Web Site, or in any other manner. The Client shall also be responsible for notifying Users which Client affords access to the Services of this.
5.2 The Client shall ensure that all details provided regarding the Client’s contact information, billing information and payment information, where applicable, are correct and undertakes to update such information as soon as possible when changes to such information occurs.
5.3 The Client shall be responsible for the activities conducted by the Client and the Users within the Services and shall use the Services in compliance with national laws in conjunction therewith. All Content uploaded to, transferred through, publicly posted, processed or entered into the Services by the Client and/or Users shall be the sole responsibility of the Client.
5.5 The Client undertakes to use the Services in such a manner that such use does not prevent or disrupt other computer communications or mobile telephone communications or prevent or disrupt the equipment employed in order to provide and use the Services.
5.6 The Client is aware and acknowledges that a “fair use” data policy is applied, which means that data storage is limited to 1 GB per Workspace. In case of exceedance Leadmark will contact the Client to discuss mitigating actions. Should exceedance persist Leadmark may consider additional charges.
5.7 The Client is aware of and acknowledges that it is not permitted to use the Services in order to gain material in violation of applicable national law.
5.8 The Client undertakes not to use the Services in any manner which may result in the infringement of any third party’s copyright, or which constitutes a dissemination of business secret, or may incite a third party to commit or participate in a crime, or may be understood as constituting a threat, or to use the Services in any other manner incompatible with the purpose intended.
5.9 User accounts cannot be shared or used by more than one (1) individual User. User rights in TRAC are determined by company allocation, the Client is fully responsible for provision of complete and correct information regarding User company and email address for the purposes of user rights management in TRAC.
5.10 Users will report any identified malfunction or error in the Services as soon as possible to Leadmark and will refrain from continued use of the Services if the malfunction or error impacts data integrity and security.
5.11 The Client shall remain liable for the Users’ use of the Services under this Agreement and ensure that Users understand the terms of service and perform their obligations towards Leadmark. To the extent the Client is unable to perform an obligation on behalf of a User or is unable to cause the User to perform the same, the Client shall indemnify Leadmark insofar as Leadmark incurs any loss, provided that such loss is related to the non performance by the User of its obligations to Leadmark.
5.12 The Client shall defend and hold harmless Leadmark for any claim, suit or proceeding brought against Leadmark by Users and/or third parties arising out of or connected to Content processed by Users/the Client within the Services or for which the User/Client is otherwise responsible, unless Leadmark is liable for such claim in accordance with the provisions of clause 16, “Limitation of Liability”, below.
5.13 The Client is obligated to notify Leadmark regarding any suspected breach of these provisions.
6. Privacy and Confidentiality
6.1 Personal information the Client provides to Leadmark through the Service is governed by Leadmark’s Privacy Statement. Your election to use the Service indicates the Client accepts the Leadmark Pricacy Statement.
6.2 The Client is responsible for maintaining confidentiality of usernames, passwords and other sensitive information. The Client is also responsible for all activities that occur in the User accounts within the Clients Project. The Client will immediately inform Leadmark of any unauthorized use of user accounts through the in-system messaging service, by email to firstname.lastname@example.org or by calling us on any of the numbers listed on the website. Leadmark is not responsible for any loss or damage to the Client or any third party incurred as a result of any unauthorized access and/or use of User accounts, or otherwise.
6.3 Leadmark undertakes not to disclose to any third party, or otherwise make available, information received by Leadmark from the Client or Users within the scope of the Agreement. Furthermore, any other information received by a party that in any way relates to the other party, including but not limited to any business, financial, scientific, intellectual property, Client or potential Client related, technical or operational information shall be considered confidential and shall not be disclosed to any third party. The above confidentiality obligations shall not apply to such information as a party can demonstrate became known to that party other than pursuant to this Agreement or which is in the public domain. Nor shall the duty of confidentiality apply where a party is obligated to provide information pursuant to legal provisions, public authority regulations or court orders or otherwise agreed upon under this Agreement. The duty of confidentiality shall remain in force notwithstanding the termination of the Agreement.
6.4 The Client guarantees that all information provided to Leadmark in relation to the Services is gathered and provided to Leadmark in compliance with applicable laws, including applicable data protection laws.
6.6 Leadmark shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your data as provided in the Security Policy. Leadmark shall not to (a) modify Client data, (b) disclose Client data except as compelled by law in accordance or as expressly permitted in writing the Client, or (c) access Client data except to provide the Services or prevent or address service or technical problems, or at the Client’s request in connection with a support request by the Client.
6.7 With respect to any personal data (as defined in applicable data protection laws and regulations) that the Client will enter into the TRAC Service, parties agree that Leadmark will act as a “data processor” (as defined in applicable data protection laws and regulations including the EU Data Protection Directive 95/46/EC and of the Council of 24 October 1995 or the General Data Protection Regulation 2016/679 (when it comes into effect on May 25, 2018)) and that you will act as a “data controller” (as defined in applicable data protection laws and regulations). When you act as a processor with respect to any personal data that you will provide to Leadmark in relation to the Services, parties agree that Leadmark will act as a “data sub-processor” (as defined in applicable data protection laws and regulations).
6.8 In order to enable the Client as the data controller/processor to execute a data processing agreement based on the EU Model Clauses, upon request by email to email@example.com, Leadmark will provide the Data Processing Agreement.
7. Security, Passwords etc.
7.1 The Client shall ensure that User identities, passwords, and equivalent obtained by the Client in conjunction with registration are stored and used in a secure manner and cannot be accessed and thereby used by third parties. The Client shall be liable for any unauthorised use of the Services. Leadmark shall have no liability for any loss or damage arising from the Client’s failure to comply with these requirements.
7.2 Where it is suspected that any unauthorised person has become aware of a user identity and/or password, the Client shall immediately inform Leadmark thereof and also change such user identity and/or password.
7.3 The Client shall be liable for losses or damage incurred by Leadmark where the Client intentionally or negligently reveals a user identity/password to a third party or where a user identity and password otherwise become known to an unauthorised party, unless the Client notifies Leadmark immediately upon suspicion that such has occurred.
7.4 Leadmark shall adopt reasonable measures to ensure that the security of the Services meet relevant industry standards. Leadmark’s security measures are set forth in the Security Policy as applicable from time to time, which is available on the Web Site.
8. Communications from Leadmark
8.1 The Service may include certain communications from Leadmark, such as service announcements,
administrative messages and newsletters. The Client understands that these communications shall be considered part of using the Services. As part of our policy to respect the Client’s privacy, we provide the option of opting out from receiving newsletters from us. However, the Client will not be able to opt out from receiving service announcements and administrative messages. The Client is responsible for management of email settings to prevent announcements and messages being directed to junk or clutter folders.
9. Fees and Payments
9.1 The Client shall pay compensation for the Services in accordance with the fees set out in the Application Form or otherwise agreed. Notwithstanding the above, Leadmark may for each Renewal Term increase its fees with not more than five (5) per cent.
9.2 All Services provided by Leadmark shall be debited to the Client in advance from the agreed Contract Start Date and for the subscribed number of User Licences and the selected period as agreed between the parties If not otherwise agreed, payment for Professional Services shall be made against invoice within fifteen (15) days. (e.g. if a quarterly subscription plan for 1 user starts on May 1st, an invoice will be issued on that day for €90,- to be paid within 15 days)
The Client may upgrade a Subscription at any time with additional User Licences, or additional services as provided. Any added User Licences or services shall be coterminous with pre-existing User Licences and services. This means that Users added to the subscription will renewed at the same date and for the same period as pre-existing Users. (e.g. if a new User is added on July 1st and there is already a pre-existing User with a quarterly subscription plan from say May 1st to July 31st, the new User will also be renewed on August 1st for a period of 3 months similar to the pre-existing User)
The client may downgrade the Subscription by removing User Licences. This downgrade will take effect as per the first Renewal Term following the downgrade. (e.g. if a Client has a quarterly subscription plan for say 3 Users and reduces this to 2, the invoice for the subsequent renewed period will be adjusted to 2 users. There will be no reimbursement for the reduction over the current subscription period.)
Excess user licence fees are calculated based on the number of excess Users for each invoice period. This means that if Users are added during a running subscription/invoice period, the fee for these additional Users will be invoiced in arrears at the end of the running invoice period. Each excess user will be charged €1,- per day from the day of registration until the end of the current invoice periode.
9.3 All fees and prices are exclusive of value added tax (VAT) and other duties, taxes and rights imposed by an authority. Unless agreed otherwise, all fees and prices are denominated in euros and all payments must be settled in euros.
9.4 Payment shall be made by the Client by bank transfer against (i) invoice, (ii) through use of a credit card approved by Leadmark or (iii) a direct debit allowing Leadmark to automatically collect the payment. Payment must reach Leadmark in full within fifteen (15) days of the issue date of the invoice or credit card charge.
9.5 In case of overdue payments Leadmark is entitled to charge a monthly interest of 1.5 per cent over the outstanding amounts, with no warning or notice of default required for this. If the Client persists in failing to settle the claim after a warning or notice of default, Leadmark may refer to debt collection in which case the Client is required to pay all legal fees and out-of-court expenses, including all costs charge by external experts, in addition to the total amount then due.
9.6 Without prejudice to its other rights, Leadmark may temporarily disable the Client’s and the Users’ access to the Services in the event the Client has overdue payments in excess of twenty (20) days. In addition, Leadmark may terminate a Subscription, delete and destroy the Client’s Content and to immediately terminate this Agreement in the event of overdue payments in excess of forty five (45) days.
9.7 Leadmark may charge the Client an invoicing charge for requested paper invoices. Leadmark shall be entitled to charge a fee for any payment reminders and reserves the right to send the same via e-mail to an invoice reference provided by the Client.
9.8 In the event of early termination of a Subscription, the Services or the Agreement, the Client shall not be entitled to a refund of any prepaid fees.
9.9 Leadmark may decide to not exercise the rights pursuant to Article 9.5 and Article 9.6 if (a) the relevant payments are the subject of a reasonable dispute arising in good faith in the opinion of the Leadmark and (b) you provide all reasonable cooperation in the solution of the dispute. This leaves the (other) rights of Leadmark unaffected.
10. Term and Termination
10.1 This Agreement shall enter into force upon acceptance by the Client of these terms and conditions through execution of this Agreement online during Subscription sign-up, or acceptance by the Client of these terms and conditions in an Application Form, frame agreement, or in any other form.
10.2 The Initial Term is equal to the subscription plan/contract/billing term selected by the Client during sign-up or, when applicable, agreed upon in the Application Form or in any other form.
10.3 Upon expiration of the Initial Term, this Agreement will be automatically renewed with successive renewal terms at Leadmark’s then current terms and conditions. For the Subscription the Renewal Term is equal in duration to the forward looking billing term as selected online by the Client or as stated in the Application Form, or when applicable the duration of the agreed contract term and with agreed billing terms. For other Subscription types, the Renewal Term is equal to the Initial Term or as otherwise stated in an Application Form or mutually agreed upon.
10.4 This Agreement can be terminated by either party subject to written or online notice of termination as stated below, effective only at the end of the then current contract term and provided that all accrued and/or prepaid fees are paid in full. For Professional Edition Subscriptions, such notice of termination must be given by the Client, when applicable, in the online administration function at least three business days prior to the next contract term. For Enterprise Edition Subscriptions, if not otherwise agreed, notice of termination must be given in writing at least three (3) months prior to the end of the then current contract term.
10.5 Upon termination of a Subscription or the Agreement, Leadmark shall not be responsible for the Content generated by the Users/Client within the scope of the Subscription in question or the Services. Accordingly, it is the sole obligation of the Client to ensure that it possesses the necessary back-up copies, etc. of the Content that it desires to retain when the Subscription is terminated.
10.6 Upon the active termination of a Subscription by the Client, Leadmark shall be entitled to immediately delete and destroy all Content within the scope of the Subscription. In the event of expiration of the subscription term of a Subscription and in the absence of the Client’s renewal of the same, Leadmark shall be entitled to delete and destroy such Content thirty (30) calendar days following the expiration date.
10.7 Upon termination of a Subscription or this Agreement for any reason, Leadmark shall be entitled to and undertakes to permanently delete and destroy all copies of the Client’s Content related thereto within a timeframe reasonable relating to the back-up and administrative procedures applied by Leadmark from time to time.
10.8 Clauses 6 (Privacy and Confidentiality) and 17 (Limitation of Liability) shall survive any termination of this Agreement.
11.1 Leadmark reserves the right to amend the terms and conditions of this Agreement. The Client shall be informed of such amendments by e-mail or through the information being made available on the Web Site. The Client shall be deemed to have received such notice within two (2) weeks of the notice being sent by e-mail or made available on the Web Site. Where the Client does not accept the amendment, the Client shall be entitled, within thirty (30) calendar days from the date of dispatch of the e-mail or, where appropriate, thirty (30) calendar days from the amendment being published on the Web Site, provided that the changes have an adverse effect, that could not be considered as minor, on the Client, to terminate the Agreement with immediate effect. Where the Agreement is not terminated by the Client within the aforementioned time, the Client shall be deemed to have accepted the new terms and conditions.
12. Access Restrictions, Premature Termination
12.1 Leadmark shall be entitled, with immediate effect, to disable the Client’s or a User’s access to a project or to the Services or to terminate the Agreement at any time in writing where: (a) the Client or a User uses the Services in a manner that entails the perpetration of a crime; (b) the Client or a User uses the Services in a manner that occasions losses or the risk of loss for Leadmark or any third party; (c) the Client or a User uses the Services in a manner that violates Leadmark’s security or administrative regulations; (d) it may be reasonably assumed that continued dissemination of Content violates governing law; (e) notwithstanding reminders, the Client fails to pay agreed fees to Leadmark within a stated time; (f) the Client or a User uses the Services in a manner whereby the Client utilises resource or seeks unauthorised access to Leadmark’s systems which are not intended for the Client; (g) the Client otherwise fails to comply with the Agreement and such breach of contract is material; (h) the Client or a User does not comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Services or (i) the Client is placed into insolvent liquidation or is otherwise insolvent.
12.2 The Client shall be entitled to terminate the Agreement at any time in writing where: (a) the life span of the engagement is less that 15 days; (b) operational disruptions or data traffic errors occur to such an extent that the Client does not have access to the Services during a period in excess of (1) week;(b) Leadmark is in material breach of its obligations under the Agreement and fails to effect rectification within fourteen (14) days of a demand therefore; or (c) Leadmark is placed into insolvent liquidation or is otherwise insolvent.
13.1 All rights, including intellectual property rights and technical solutions, to the service are held by Leadmark or its licensors. Such rights and solutions may only be used by the Client in the manner stated in this agreement. Under no circumstances shall the Client or a third party acquire any intellectual property rights to the Services or to the software or technical solutions used in the Services or to any trade mark or any other business mark belonging to or used by Leadmark. Access to the Services is licensed, not sold.
13.2 In the event of an agreed case study or similar between Client and Leadmark, all intellectual property rights to material produced, including but not limited to photos, quotes, interviews, videos, testimonials, under such work will belong to Leadmark and may at its sole discretion be used by Leadmark in the marketing of its services.
13.3 All Content uploaded to, transferred through, publicly posted, processed or entered into the Services by the Customer and/or Users shall remain the sole property of the Client or its respective legal owner. Leadmark shall have no liability for such Content.
13.4 The User may not in any way modify, decompile, disassemble or reverse engineer the Services.
14.1 Leadmark, Leadmark logo, the names of individual Services and their logos are trademarks of Leadmark B.V. You agree not to display or use, in any manner, the Leadmark trademarks, without Leadmark’s prior permission.
15.1 Leadmark shall be entitled, in whole or in part, to assign its rights and obligations under the Agreement to a company within the same de jure or de facto group of companies as Leadmark or to a purchaser of all or substantially all of its stock or assets without the Clients’s prior consent.
16. Limited Warranty
16.1 Leadmark warrants to the Client that the Services will perform substantially and materially in accordance with its documentation available on the Web Site, under normal use and circumstances, and for the purpose intended. This warrant does not apply to Trial Services.
17. Limitation of Liability
17.1 Subject to the limitations set forth in this Agreement, each Party shall only be liable for direct damages. To the extent permitted under applicable law, Leadmark shall, in no event, be liable for any consequential, incidental, indirect, special, punitive, or other loss or damage whatsoever or for loss of business profits, business interrupt, computer failure, loss of business information or reputation even if Leadmark has been advise of the possibility of such damage.
17.2 In the event of major defects that seriously impede the Client’s use of the Services and that are attributable to Leadmark, Leadmark undertakes to act to rectify such defect without unreasonable delay. In the absence of intent, wilful misconduct or gross negligence on the part of Leadmark, Leadmark otherwise assumes no responsibility for defects or deficiencies in the Services. Error notification must be given by the Client in accordance with the instructions announced by Leadmark and within a reasonable time of the discovery of the defect.
17.3 The Client shall not be entitled to a reduction in payment, or to damages or other sanctions in the event of operational disruption or errors that impede data traffic that are not due to negligence by Leadmark.
17.4 Leadmark shall defend and indemnify Client from and against any damage, cost and expense (including reasonable attorneys’ fees) finally awarded or agreed in a settlement by Leadmark as a result of any claim, suit or proceeding brought against Client based on a claim that the authorized use of the Services furnished by Leadmark under this Agreement constitutes an infringement of any third party intellectual property right; provided that Leadmark has been notified promptly in writing of such claim, and given authority, information, and assistance to handle the claim or the defence of any suit, proceeding or settlement and that Client has not compromised or settled the claim, suit or proceeding without Leadmark’s prior written consent, and provided further that Leadmark shall have no obligations under this clause 17 to the extent any claim is based on the combination or use of the Services with other software, hardware or services not furnished by Leadmark or use of the Service in a manner prohibited under this Agreement, in a manner for which it was not designed where the Services would not otherwise itself be infringing.
17.5 In the event that the Services in such suit or proceeding are held to constitute an infringement, or if in Leadmark’s reasonable opinion the Services may constitute such infringement, and/or its further use is enjoined, Leadmark shall, at its own expense and at its option, either (i) procure for Client the right to continue the use of the Services, or (ii) replace the Services with non-infringing services of materially equivalent function and performance, or (iii) modify the Services so that it becomes non-infringing without materially detracting from function or performance. Should none of these measures be technically, commercially or economically reasonable to Leadmark, then either party may terminate this Agreement. Upon such termination, Leadmark shall refund the amount of fees paid in advance in respect of not yet used Services.
17.6 Each party’s liability under this Agreement shall, except for what is stated under Clauses 4, 5, 6.3, 14 or 16, under all circumstances be limited to direct losses in an amount corresponding to the agreed fees paid by the Client for the Services during the period of twelve (12) months immediately prior to the breach of contract that entitles a Party to damages. The foregoing shall not limit the Client’s payment obligations under clause 9 above.
17.8 A party may claim sanctions in accordance with the above only where the party provides the other party with a written notice thereof not later than sixty (60) calendar days after the party knew, or should have been aware, of the grounds for the claim.
18. Force Majeur
18.1 A party shall be released from liability in damages and other sanctions where the performance of a specific obligation (other than for delay in the payment of amounts due and payable hereunder and the maintenance of confidentiality) is prevented or rendered onerous due to circumstances beyond a party’s control and which could not reasonably have been foreseen. Such force majeure events include, inter alia, labour conflicts, lightning, fire, decisions of public authorities or other public regulations, errors in another operator’s network, delays in services from subcontractors due to events as stated above, general scarcity of transport, goods, or energy, or other similar circumstances.
18.2 Where a party’s performance is prevented for a period in excess of three (3) months due to an event as stated above, either party shall be entitled to terminate the Agreement in writing without any obligation to pay compensation.
19. General Provisions
19.2 If any provision of these Terms of Service are declared unenforceable for any reason, the remainder of the terms will continue in full force and effect, and the unenforceable provision shall be amended to
the extent possible and permitted by law to achieve as nearly as possible the same intent and economic effect as the original provision.
20. Governing Law, Export Control and Disputes
20.1 These Terms will be governed by and construed in accordance with the laws of the Netherlands. The application of the UN Convention on Contracts for the International Sale of Goods is explicitly excluded.
20.2 The User shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Services. Without limiting the foregoing, (i) the User represents that it is not named on any U.S. government list of persons prohibited from receiving exports, and (ii) that the Service may not be exported or re-exported into (or to a national or resident of) any U.S. embargoed countries (currently Cuba, Iran, North Korea, Sudan, and Syria).
20.3 Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the ICT mediation Regulations of the Foundation for the Settlement of Automation Disputes (www.sgoa.org), with its registered office in The Hague. The seat of arbitration shall be The Hague, The Netherlands. The language to be used in the arbitral proceedings shall be English.
Version 2.1 November, 2017