CLOUD RESELLER AGREEMENT WHEREAS:
1. The Distributor has concluded a partner agreement with Thynx N.V. (hereinafter referred to as 'Thynx'), an ICT company specialised in the installation, configuration and management of traditional IT environments, server-based computing and virtual desktop environments. Thynx has
developed a multi-tier platform for provisioning and billing of cloud services as defined below, with the aid firstly of its knowledge and experience and secondly the recent emergence of virtualization technologies. This offers companies the opportunity to use a professional ICT infrastructure without having to incur the costs themselves of a full investment in said infrastructure.
2. The Distributor will market and distribute the platform provided by Thynx and cloud services via the platform through its network of resellers on the basis of the partner agreement between the Distributor and Thynx.
3. The Reseller is interested in distributing the platform provided by Thynx in cooperation with the Distributor.
4. The Parties wish to lay down the further terms and conditions of their cooperation in this agreement.
HAVE AGREED AS FOLLOWS: Article 1: Definitions
1. Agreement This Agreement.
2. Cloud End User Agreement
The agreement that will be concluded between the Reseller and the Customer regarding the supply of the Cloud Services via the Platform.
3. Cloud Services
ICT services consisting of a combination of hardware, software and networking components, hosted by a third party service provider, provided by this third party service provider to the Customer through the Distributor and the Reseller via the Platform.
4. Cloud Services Related Documents
All documents related to the Cloud Services supplied by the Reseller to the Customer via the Platform enforced and used by the service provider of the Cloud Services, included, but not limited to service level agreements (SLA’s), customer terms & conditions, end user license agreements, etc., which documents are available via the Control Panel.
5. Control Panel
The part of the Platform, made available by Thynx to the Customer, the Reseller and Distributor through which (i) the Cloud Services may be ordered, subject to the User login name and password being entered, (ii) the Customer, the
Reseller or the Distributor can view the status of orders, (iii) communications with Thynx are possible, (iv) the most recent version of essential information, including, but not limited to the Platform Service Level Agreement, the Cloud Service Related Documents, the helpdesk telephone numbers, the helpdesk log and the status of the solution of incidents can be viewed, and (v) all invoicing of fee’s for the Platform and for the Cloud Services will be provided.
6. Customer
A customer of the Reseller using the Platform to purchase the Cloud Services via the Reseller.
7. Officer
The employee, agent or subcontractor of a Party. 8. Platform
The separate or joint use of the Cloud Services Delivery Platform, which is a combination of hardware, software and networking components, together forming an Information Technology System, provided by Thynx to the Customer through the Distributor and the Reseller.
9. Platform Service Level Agreement
The service level agreement concluded between Thynx and the Reseller containing the service levels to be provided by Thynx with respect to the Platform, which agreement is available via the Control Panel.
10. User
Individual on whose behalf the Customer uses the Platform to purchase the Cloud Services via the Reseller.
11. Term Sheet
Appendix to this Agreement containing the variable elements of this Agreement, which is available via the Control Panel.
Article 2: Subject
1. This Agreement contains the terms and conditions under which the Reseller will license the Platform and distribute and sell the Cloud Services via the Platform to the Customers.
2. The Distributor hereby appoints the Reseller as its non-exclusive reseller of the Platform and the Cloud Services, and the Reseller accepts the appointment by the Distributor, and undertakes to continue with carrying on its business during
the entire term of the Agreement in accordance with the provisions of said Agreement.
3. The appointment of the Reseller by the Distributor is not exclusive. The Distributor will work with a large number of partners to distribute and license the Platform and the Cloud Services.
4. In order to safeguard the quality of the Platform, a number of requirements and conditions are stipulated with respect to use of the Platform. These requirements and conditions are set out in Article 10 below.
5. The Platform Service Level Agreement and Article 10 of this Agreement contain the service levels to be provided with regard to the Platform. The Reseller acknowledges that it has taken note of and reviewed the Platform Service Level Agreement prior to the Reseller being able to use the Platform and executing the part of the Agreement relating to the Platform. The Platform Service Level Agreement is available via the Control Panel and can be asked for in hard copy, which the Distributor will provide on first written request of the Reseller. The Platform Service Level Agreement is deemed to be part of this Agreement. 6. The Reseller hereby accepts the terms and conditions of the Platform Service
Level Agreement and will at all times adhere and remain compliant to the terms and conditions thereof.
7. The Distributor will offer Cloud Services to be provided to the Customer through the Reseller via the Platform. The Reseller is entitled to suggest and add Cloud Services to the Platform upon prior consent of Thynx and the Distributor. These Cloud Services will be the sole responsibility and liability of the Reseller. The Distributor accepts no liability at all with regard to such Cloud Services, and the Reseller will indemnify and hold the Distributor harmless against any claims on whatsoever ground in this respect.
8. The Cloud Services Related Documents will be made available via the Control Panel and can be asked for in hard copy, which the Distributor will provide on first written request of the Reseller. The Cloud Services Related Documents are
deemed to be part of this Agreement.
9. The Reseller acknowledges that it has reviewed the Cloud Services Related Documents prior to executing this Agreement. Reseller hereby accepts the terms and conditions of the Cloud Services Related Documents and will at all times adhere to and remain compliant to the terms and conditions thereof, also in the relation between the Distributor and the Reseller. This means that the Reseller agrees and accepts that the Distributor with regard to the Cloud Services only operates as a serving hatch and that between the Distributor and the Reseller with regard to the Cloud Services the same rights, obligations and liabilities apply as between the third party service provider of the Cloud Services and the
Distributor, amongst others in accordance with the Cloud Services Related Documents.
10. The Reseller undertakes to procure and guarantees that it will refer the
Customers to the Cloud Services Related Documents available via the Platform or hand over the written documents prior to the Customers being able to use the Cloud Services. Customers will be required to agree to the terms and conditions of the Cloud Services Related Documents and will ensure and guarantees that the Customers at all times remain complaint with the terms and conditions of these Cloud Services Related Documents.
11. The Reseller is fully responsible for the marketing and distribution of the Platform and the Cloud Services, and for the terms and conditions, performance and settlement of Customer’s care with regard to the Cloud End User Agreements. The Reseller will not in any way create or convey the impression that Thynx or the Distributor will be responsible or liable for the Cloud Services.
Article 3: Relationship between the Parties
1. The Reseller will distribute and license the Platform to the Customers, and will distribute and sell the Cloud Services via the Platform to the Customers in its own name and for its own account and risk. The Reseller will act as an
independent trader, both in relation to the Distributor and the Customers. 2. This Agreement does not constitute one Party as representative or agent of the
other Party for any purpose whatsoever; except for those stipulated herein. The Reseller does not have the right to bind the Distributor or to enter into any agreement in the name of or at the expense of the Distributor, unless the Distributor has authorised the Reseller to do so beforehand in writing. Article 4: Rights and obligations of the Distributor
Quality of the Platform
1. The Distributor shall procure that its Officers dispose of the required know-how, experience, knowledge, skills and training to make available and maintain the Platform, in accordance with the standard applying in the ICT sector.
2. The Distributor undertakes to use all reasonable efforts to make available and maintain the Platform in accordance with the provisions included in the
Platform Service Level Agreement and the Cloud End User Agreement. The Distributor and the Reseller hereby confirm that they have taken note of these documents. The Reseller acknowledges that all of the obligations of the
Distributor (and Thynx) are obligations of means.
3. The Distributor will ensure that its Officers are apprised of and comply with the requirements of the Agreement.
Changes to the Platform
6. The Distributor has the right to make changes to the Platform at any time without prior notice and without any obligation to pay any damages to the Reseller or the Customer. Current information on the Platform shall be made available via the Control Panel.
Article 5: Rights and obligations of the Reseller
General obligations of the Reseller
1. The Reseller shall look after the interests of the Distributor and shall act as a good businessman.
2. The Reseller shall devote its best efforts for the adequate promotion, marketing, distribution and license of the Platform and the Cloud Services, and will maintain an organization, personnel and facilities sufficient therefore.
3. In case the third party provider of the Cloud Services sets limitations with regard to the area of distribution of the Cloud Services, the Reseller will comply with these limitations.
4. The Reseller undertakes to market and distribute the Platform and the Cloud Services in accordance with this Agreement.
5. The Reseller agrees not to take any action that could diminish or harm the reputation or the goodwill of the Distributor, Thynx, the Platform, the intellectual property rights or the third party provider of the Cloud Services.
6. The Distributor is entitled to give the Reseller reasonable instructions and directions with regard to the promotion, marketing, distribution and license of the Platform and the Cloud Services.
Purchase obligation
6. No sales targets have been established for the Reseller at the time of concluding this Agreement. The Parties will, however, discuss sales on a regular basis.
Training
7. Prior to the marketing and distribution of the Platform, the Reseller will follow a training programme in accordance with the requirements set forth in the
8. The Reseller will pay the Distributor an annual training fee which is set out in the Term Sheet. Additional courses are available at the prices indicated on the Control Panel.
9. The annual fee will be invoiced by the Distributor to the Reseller upon the conclusion of the Agreement, and will be payable by the Reseller with effect from its appointment as a Reseller of the Platform. It will fall due in the same month in any subsequent calendar year as that in which the contract was concluded. The invoice must be paid within the term contained in the Term Sheet.
10. If the compensation is not paid punctually or if the Reseller does not participate in the mandatory training as described in the training programme, and such failures are not remedied within 10 calendar days of receipt of notice of default sent by the Distributor to the Reseller by registered post or email, the
Distributor may refuse the Reseller access to the Control Panel until such time as all obligations have been met. However, Cloud End User Agreements running at that moment will be observed (with access to the Platform).
11. The training program may be adjusted over time via the Control Panel, without prior notice and without providing reasons to the Reseller.
Placing Orders, complaints
12. Orders for the Cloud Services for a Customer must be placed directly by the Customer or through the Reseller via the Control Panel.
13. The Customer must have accepted the Cloud End User Agreement before placing an order.
14. If and when the Distributor accepts the order, the Reseller and the Customer are bound by the respective agreements.
15. If the Distributor accepts the order, an activation code for the Customer will be issued to enable use of the Cloud Services.
16. Any complaint in relation to the Platform and/or the Cloud Services must be sent by registered post or email with substantiation, to the Distributor within 20 calendar days of delivery or provision to the Customer, failing which the Platform and/or the Cloud Services will be regarded as having been definitively accepted and the invoices will be payable. Any complaint made pursuant to this Article 5.16 does not entitle the Reseller to suspend payment of the Platform fee and/or the price for the Cloud Services and/or to set off any amount against any claim on the Distributor.
Article 6: Use of the Control Panel
1. Through the Control Panel (i) the Cloud Services can be ordered, (ii) the Distributor, the Reseller and the Customer can view the status of orders, (iii) communications with Thynx are possible, (iv) the most recent version of essential information, including, but not limited to the Platform Service Level Agreement, the Cloud Services Related Documents, the helpdesk telephone numbers, the helpdesk log and the status of the solution of incidents can be viewed, and (v) all invoicing of fee’s for the Platform and for the Cloud Services (from the Distributor to the Reseller and from the Reseller to the Customer) will be provided. To that end, the Reseller shall receive a transferable and non-exclusive licence for use of the Control Panel. In addition, the Reseller will receive a login name and a password for one User.
2. As provided for in Article 5.13 - 5.15, all orders for the Cloud Services must be placed by the Customer or via the Reseller on the Control Panel, subject to the User's login name and password being entered.
3. The Reseller undertakes to observe any licence terms and all terms of use attached to the Control Panel and shall ensure that its Users will do the same. 4. The Distributor undertakes to make all reasonable efforts to have the Control
Panel accessible to the Reseller and the Customer to the largest extent possible. If the Control Panel is not accessible, the order can be placed by sending a fax to the Distributor.
5. If the Distributor or Thynx establishes that the Reseller, the Customer or a User endangers the operational availability of the Control Panel, Reseller's,
Customer's or Users' access to the Control Panel can be temporarily or permanently blocked, without any compensation being due.
Article 7: The Platform fee and the price for the Cloud Services
1. As remuneration for the access to the Control Panel, the Reseller is obliged to pay the Distributor an upfront fixed non-refundable setup fee as mentioned in on the Control Panel and/or the Distributor’s website.
2. As remuneration for the rights and licenses, maintenance and support under this Agreement the Reseller furthermore shall pay to the Distributor a recurrent annual fixed non-refundable fee as mentioned on the Control Panel and/or the Distributor’s website.
3. In case the Reseller suggests and adds Cloud Services to be provided to the Customer via the Platform, and Thynx and the Distributor have agreed to on board these Cloud Services, the Reseller is obliged to pay the Distributor an on boarding and/or recurrent fee for the Cloud Services provisioned under this
Agreement. The on boarding fee and/or recurrent fee will be agreed upon by the Distributor and the Reseller in good faith on an ad hoc basis.
4. The Reseller buying price and the recommended Customer price for the Cloud Services is mentioned on the Control Panel and/or the Distributor’s website. 5. Prices are in euros and exclusive of VAT.
Article 8: Invoicing, Payment
1. The Platform fee and the price for the Cloud Services will be invoiced for the first time by ordering, and subsequently recurring in accordance with the term agreed upon by means of advance invoicing.
2. All invoicing of fee’s for the Platform and for the Cloud Services (from the
Distributor to the Reseller and from the Reseller to the Customer) will be provided through the Control Panel or otherwise. Within the scope of this invoicing, the names and logos, the bank account numbers and the contact details of the Distributor and the Reseller will be used. After termination or expiration of this Agreement, the Distributor will no longer use and delete the aforementioned invoicing data with regard to the Reseller. The Distributor and the Reseller will be responsible for collecting the respective invoice amounts, contribution of VAT, etc, and the proper and timely processing of any payments. The Reseller will assess whether this way of invoicing is permitted under the applicable laws and
regulations (legal and tax), and will inform the Distributor accordingly.
Furthermore the Reseller will inform The Distributor about each and every change in such laws and regulations, and changes in the invoicing data.
3. All invoices must be paid by Reseller within 30 days after invoice date without any discount, setoff or suspension of payments. All payments will be applied, after paying any interest and costs owed, against the oldest outstanding invoice.
4. In the event of failure to pay on the due date, the Reseller will owe the Distributor ipso jure a late payment fee of 1% for each month or part of a month, and compensation at a fixed rate of 10% of the invoice amount, without the requirement of prior notice of default.
5. The Distributor will make efforts to implement a payment gateway for on line payment by the Customer to the Reseller against a set-up fee and/or a recurring fee and/or a revenue share. Such fee or fees will be agreed upon in good faith on an ad hoc basis. The Reseller will be the contracting party to the Payment Gateway Provider.
6. Any complaint in relation to an invoice must be sent to the Distributor by registered post or email, with substantiation, within 10 days of the invoice date, failing which the invoice will be regarded as having been definitively accepted.
7. Any complaint made pursuant to Article 8.6 does not entitle the Reseller to suspend payment of the Platform fee and/or the price for the Cloud Services. The mere fact that the Reseller has not received payment from the Customer for the Platform and/or Cloud Services is not a valid reason to postpone the payment of an invoice to the Distributor.
8. The Distributor reserves the right, in the event of full or partial default on the part of the Reseller, to deny the Reseller access to the Platform until such time as all outstanding amounts, together with any interests and/or costs, have been paid in full. However, Cloud End User Agreements running at that moment will be observed (with access to the Platform).
Article 9: Information requirements
1. The Reseller shall regularly inform the Distributor of its activities and the market developments.
2. The Reseller shall regularly inform the Distributor of relevant statutory
provisions, government provisions and regulations which are in force or will enter into force, and which are important for the licensing and use of the Platform and/or the sale of the Cloud Services.
3. The Reseller must notify the Distributor immediately (and in any event within 10 days) of any general complaints, remarks or recommendations received from Customers in respect of the Platform and/or the Cloud Services.
Article 10 Warranty, Service levels, Data Protection, Compliance with law 1. The Distributor guarantees that the Platform (i) is allowed/authorized for
distribution, (ii) is free of third party claims/rights and (iii) complies with all applicable laws and regulations.
2. The only warranties the Distributor provides with regard to the Platform, shall be those set forth in this Article 10. The Reseller shall give the same warranty and no other to Customers as the Distributor gives to the Reseller. The Reseller agrees not to make any (additional or other) warranties, express or implied, to the Customers without the prior written authorisation of the Distributor.
3. The Platform Service Level Agreement and this Agreement contain the service levels to be provided with regard to the Platform. Reference is made to these agreements.
4. The Reseller undertakes and guarantees that the Customers will be referred and bound to the Platform Service Level Agreement.
5. All service with regard to the Platform will be settled between the Reseller and the Customer and the Distributor and the Reseller, whereby the Distributor will involve the Thynx, on the basis of the Platform Service Level Agreement, irrespective of any arrangements in the Platform Service Level Agreement contrary thereof.
6. The Reseller will at all times adhere and remain compliant to the following principles:
- The Reseller declares that it is not connected to the Platform with the aim of deliberately causing damage to the Platform or Thynx. The Reseller
undertakes to take all due care when using the Platform and any hardware leased from the Distributor or Thynx. For example, the Reseller will notify the Distributor immediately of any faulty configuration which results in its ability to access any third party data on the Platform. Use of the Platform for bulk e-mails or spam is prohibited.
- The Reseller indemnifies the Distributor against all claims by third parties for damages suffered as a result of unlawful use of the Platform by the Reseller. The Reseller has sole liability for any damage that it may cause to third parties or the Distributor by inappropriate use of the Platform, as in the case of unlawful activities such as piracy or downloading and/or offering illegal text and/or images, etc.
- In no circumstances will the Reseller pass on its account information to third parties or allow use of the Platform by or on behalf of third parties.
- If the Distributor discovers that the Reseller is endangering the operational availability of the Platform, the Distributor will have the right to temporarily or permanently block access for the Reseller without this giving rise to any right to compensation.
- The Reseller undertakes to obtain the requisite licences for all software it intends to use, or to insource use of this software through the intermediary of the Distributor. The Reseller will indemnify the Distributor at all times against any possible third party claims against the Distributor in relation to this software.
- Where software is used for graphic applications, the Distributor may refuse to provide the services on account of the higher than average load graphics place on the Platform.
- Should the Reseller outsource ICT services to third parties, it will be solely responsible and liable for the selection of the said third party. The
Distributor accepts no responsibility and liability for the results of the work of the said third parties or for integration of that work into the Platform.
- Upon the termination of this Agreement, the Reseller will cooperate fully with the transfer of systems and data. This will be charged at the applicable hourly rate for management work. As a rule the transfer will take place during the final weeks before the end of the period of the license of the Platform, in consultation with the Reseller.
7. The Reseller licenses the Platform during the term agreed upon between the Distributor and the Reseller. Given the evolution of technical standards and changing market expectations, the provisions relating to the service levels will be updated from time to time by Thynx. In such circumstances, the Reseller and the Customer will be informed as follows. The Control Panel contains the prevailing version of the service levels at all times. When changes have been made to the service levels, a warning will be sent to the Users in an e-mail sent to their respective e-mail addresses.
8. The Reseller hereby accepts the terms and conditions of the most recently published provisions on service levels on the Control Panel and will at all times adhere and remain compliant to the terms and conditions thereof.
9. The Cloud Services Related Documents contain the terms of guarantee and the service levels to be provided with regard to the Cloud Services. Reference is made to these Cloud Services Related Documents. The Cloud Services Related Documents are deemed to be part of this Agreement.
10. The Distributor shall comply with all applicable data protection directives and regulations that impose obligations on processors of personal data. For the avoidance of doubt, the Distributor however does not qualify as the controller of the processing of personal data undertook by end customers or Resellers on the Platform. As processor, the Distributor ensures that no unauthorized access to such data is possible and warrants that it will take all appropriate necessary and/or mandatory actions and security measures in this regard as described in the Platform Service Level Agreement and the Cloud Services Related
Documents.
11. The obligations imposed on the Distributor as processor, leave unaffected the obligations that are incumbent on the controllers of the processing, such as the obligations to inform the data subjects of the processing, to assess the security measures in the light of the sensitivity of the personal data in question, to file the processing with Data protection authorities etc.
12. The Reseller acknowledges that information processed in the course of performing the Cloud Services may contain personally identifiable information of individuals and associated metadata and that the processing of such information may therefore involve the processing of personal data. The Reseller shall take all necessary measures to ensure that it, and all its employees, are aware of any responsibilities they have in respect of applicable privacy laws and/or regulations. The Reseller understands and agrees that the Distributor has no control or
on behalf of the Customer. Reference is made to the applicable Cloud Services Related Documents.
13. The Reseller shall in the execution of this Agreement and further agreements, which may result therefrom, take into account all applicable statutory and government provisions as well as regulations, including product regulations. 15. The Reseller acknowledges and agrees that the Cloud Services and any related
technology may be subject to applicable export control and trade sanction laws, regulations, rules and licenses. The Reseller agrees to comply with all relevant laws, including, without limitations the laws of any country from which the technology is exported or re-exported.
Article 11: Liability, Indemnification
1. Any liability on the part of the Distributor for an imputable failure to comply with the Agreement or on any other grounds (including but not limited to the warranty obligation agreed with the Reseller) is limited to the amount that the Distributor receives from its insurer under its commercial liability insurance in relation to the damage for which the Reseller has held the Distributor liable. 2. If no insurance payments are made in relation to the damage in question, the
liability of the Distributor (i) with regard to the Platform will be limited to 50% of the last annual fee for the Platform as determined in Article 7 paid by the Reseller to the Distributor and (ii) with regard to the Cloud Services will be limited to 50% of the last monthly fee for the Cloud Service concerned as determined in Article 7 paid by the Reseller to the Distributor.
3. In no circumstances will the Distributor be liable to the Reseller for any special, consequential, indirect, criminal or incidental loss, including but not limited to losses caused by delays, lost profits, lost savings, increased operational costs, damages caused by the Reseller's customers, loss of customers, loss of
goodwill, etc., howsoever caused, regardless of the basis of liability, and
regardless of whether or not it was advised in advance of the possibility of such damages arising in any way from this Agreement or otherwise.
4. The liability of the Distributor due to mutilation, destruction or loss of information, documents or data, howsoever caused, is also excluded.
5. The Distributor cannot be held liable for operational problems or performance problems with the local internet connection, as a result of which the Platform and/or the Cloud Services is/are not available.
6. The Distributor accepts no liability at all with regard to any Cloud Services suggested by and added to the Platform by the Reseller, and the Reseller will indemnify and hold the Distributor harmless against any claims on whatsoever ground in this respect.
7. The Reseller is responsible for the installation of appropriate mechanisms for the security, storage and recovery of data in the event of any irregularity in the implementation of the Platform and/or the Cloud Services.
8. Where the Reseller leases or buys hardware from the Distributor, the warranty on this hardware does not extend beyond the warranty provided by the supplier to the Distributor. Moreover, the Distributor cannot be held liable for hardware operational problems if the Reseller has made modifications to the hardware. 9. Where the Reseller leases or buys hardware from third party ICT suppliers, the
Distributor is not liable for damages caused to and/or by such hardware, the functioning of such hardware or the compatibility thereof with the Platform. This provision applies mutatis mutandis to ICT services ordered by the Reseller from third party ICT suppliers.
10. The restrictions and exclusions referred to in paragraphs 1 - 9 above do not apply insofar as the damage in question is caused by an intentional act or gross negligence on the part of the management of the Distributor.
11. The restrictions and exclusions referred to in paragraphs 1 - 9 above apply mutatis mutandis to the Distributor's indemnification obligations as referred to in paragraph 14.
12. Save where compliance by the Distributor is permanently impossible, the Distributor's liability on the grounds of imputable failure to comply with the Agreement arises only if the Distributor receives notice of default in writing from the Reseller immediately, in which a reasonable period is allowed to
remedy the failure, and the Distributor remains in default of its obligations after the aforesaid period. The notice of default must describe the shortcoming in as much detail as possible and as completely as possible, in order to give the Distributor the opportunity to respond adequately.
13. Any right the Reseller may have to compensation is at all times conditional upon the Reseller reporting the damage to the Distributor at the earliest
opportunity after its occurrence. Any claim for damages against the Distributor is extinguished automatically 24 months after the inception of the claim. 14. The Distributor indemnifies the Reseller against any claims and impending
claims by third parties against the Reseller, the costs (including reasonable legal fees) of defence against such claims, and any obligations the Reseller has to third parties if such claims, costs and obligations are based on or arise from product liability for the Platform or failure on the part of the Distributor to properly implement this Agreement with regard to the Platform. This indemnification by the Distributor is not applicable if (i) the defect which caused the damage did not exist at the time of delivery or (ii) the damage is
caused by any act or omission in relation to the Platform by the Reseller, the Customer or a third party.
15. The Reseller indemnifies the Distributor against any claims and impending claims by third parties against the Distributor, the costs (including reasonable legal fees) of defence against such claims, and any obligations the Distributor has to third parties if such claims, costs and obligations are based on, arise from or in connection with the Reseller’s, or any third party engaged or
employed by the Reseller, marketing, distribution or sale of the Platform and/or failure to properly perform the terms of this Agreement.
16. The indemnified Party will notify the indemnifying Party in writing of such a claim at the earliest opportunity and will not consent to liability, settlement or any other compromise without the prior written consent of the indemnifying Party. The indemnifying Party is entitled, at its own discretion, to take over the defence against such a claim and may choose to settle or otherwise dispose of the claim. The indemnified Party will provide to the indemnifying party any assistance that the indemnifying Party may reasonably require in connection with responding to the claim. Costs and expenses in such cases will be borne by the indemnifying Party.
Article 12: Intellectual property rights
1. The Reseller expressly acknowledges that the Platform shall be owned by Thynx or a third party with whom Thynx has concluded a (license) agreement on this subject. This Agreement does not constitute any transfer of any intellectual property right.
2. The Reseller undertakes not to infringe or to attack these rights in any way, directly or indirectly, by use or otherwise and neither directly nor indirectly to do any act which would or might invalidate such registration or title, nor apply to vary or cancel any registered user ship of these rights.
3. The Distributor will grant to the Reseller a not for resale licence for use of the Platform (hereinafter ‘NFR licence’) and to distribute and (sub)license the Platform to the Customers under trade name or mark to be freely chosen, but only for the duration of the Agreement and for the purpose of executing this Agreement.
4. The Reseller is not allowed to use any trademarks owned by the Distributor without prior written approval. After the written consent of the Distributor, the Reseller shall only have the right to use these trademarks for promotion and marketing activities under this Agreement, and only in compliance with the Distributor’s trademark usage guidelines available on the Control Panel.
5. The Reseller shall submit a proposal for use of the trademarks, and any significant variations in any approved use, to the Distributor for approval no less than 10 days prior to the proposed use and shall not make use of the trademarks or any significant variation thereof until such approval is received in writing from the Distributor. The Reseller acknowledges the Distributor’s
exclusive right in and to the trademarks and agrees that any use of the trademarks shall not create any right, title or interest therein for the Reseller, and every use thereof shall inure to the benefit of the Distributor. The Reseller will not adopt, use or attempt to register any trademarks or trade names that are confusingly similar to the trademarks of the Distributor or in such a way as to create combination marks with the trademarks. At the Distributor’s request, the Reseller shall promptly modify or discontinue any use of the trademarks if the Distributor determines that such use does not comply with the Distributor’s trademark usage guidelines.
Article 13: Commencing date, Term of the Agreement and Termination
1. This Agreement shall enter into force on the date as determined in the Term Sheet.
2. This Agreement shall be concluded for an indefinite term, and can be
terminated by either Party taking into account a termination notice period of three months.
3. In addition, each Party may immediately and without giving notice or having to pay compensation, terminate the Agreement based on a serious failure of the other Party to perform. A serious failure to perform shall include, but not limited to:
- a crime committed by the other Party, within or outside the framework of this Agreement;
- the inability of the other Party to comply with the provisions of this Agreement within 10 days after receipt of notice of default sent by registered letter;
- the bankruptcy or court composition of the other Party; - the liquidation or winding-up of the other Party;
- regular payment problems in respect of the Reseller (i.e. where at least two of the Distributor's invoices were not paid by the Reseller on the due date); - failure by the Reseller to comply with the necessary quality requirements to distribute the Platform and/or the Cloud Services or to organise the first-line help desk and/or
- in the event of unlawful or harmful use of the Platform by the Reseller; - development by the Reseller of a directly competing activity or the intention
3. Each cancellation or termination of this Agreement other than based on Article 13.3, regardless of the reason, must be notified by registered letter. The addressee is deemed to have received the cancellation within three days of the date of dispatch thereof.
4. No claims for indemnity or compensation can be lodged by reason of the
termination of this Agreement, save where these claims are based on breach of contract or tort. Investments made by the Reseller with respect to the execution of this Agreement are for its own risk and account and cannot be claimed from the Distributor in case of termination. Neither shall the Reseller be entitled to any goodwill compensation.
Article 14: Consequences of termination of the Agreement
1. In case of termination of this Agreement, the Distributor will in reasonableness and fairness assist and participate in the possible migration of the Customer to the own service of the Distributor, the Reseller or the service of a third party provider. In case such migration involves additional work for the Distributor, it will be entitled to charge a reasonable compensation for the work.
2. Otherwise, the Reseller shall be obliged after expiration or termination of the Agreement, for whatever reason, to stop the distribution, licensing and use of the Platform, the Control Panel, the NFR licence and the Distributor’s trademarks, and to stop the activation of new Cloud Services and to change running Cloud Services. The Reseller shall furthermore refrain from longer presenting itself as the Reseller of the Platform and the Cloud Services.
3. Expiry or termination of this Agreement in accordance with the terms of this Agreement shall not prejudice or affect any right of action or remedy which shall have accrued at the time of such expiration or termination and any obligations which expressly or by implication are intended to come into or continue in force on or after such expiration or termination.
Article 15: Confidentiality
1. Each Party undertakes to keep confidential from third parties all information of a commercial, technical, operational or financial nature with regard to the other Party or third parties or related to the Platform of which they have become aware during the term of this Agreement, including the contents and the terms of this Agreement, and refrain from using said information for their own benefit or that of any other person or entity. Each Party shall ensure that this
obligation will be observed under the same terms and conditions by its Officers. 2. Confidential information shall not be deemed to include the information or data
- was already known to the receiving Party at the time of the announcement by the other Party (this must be proven by the receiving Party);
- is released as a result of statutory obligation or a judicial verdict which has taken effect, in which case the other Party will be notified without delay; - are within the public domain after being made public, without this being
attributable to an act or negligence of the receiving Party;
- are made known to the receiving Party by a third Party having the right to do so.
3. Said duty of confidentiality shall remain in force after the termination of this Agreement for a period of 5 years. Upon the termination of the Agreement, each Party will return all data and documents obtained from the other Party to the latter, without keeping copies thereof, and to permanently discontinue all further use of said data. Each Party shall ensure that this obligation will be observed under the same terms and conditions by its employees and Officers. 4. In the event that one Party shares confidential information acquired from the
other Party with third parties, the other Party shall have the right to immediately terminate the Agreement. If the Reseller breaches the
confidentiality agreement, the Distributor can block all access to the Platform without the Reseller having any right to compensation. Third parties in this paragraph do not include employees or authorities.
Article 16: Prohibition to recruit staff
1. During the term of the Agreement and for a period of twelve months following the termination thereof, the Reseller is also prohibited from directly, indirectly or through a third party recruiting Officers of the Distributor, regardless for which position, non-observance of which will give rise to compensation of the actual damage of the Distributor.
2. The Reseller shall ensure that the obligations under Article 16.1 shall be observed under the same terms and conditions by its Officers.
Article 17: Applicable law and disputes
1. The validity, interpretation and implementation of the Agreement is governed by Belgian law.
2. Any dispute relating to the conclusion, validity, implementation and/or
termination of this Agreement will be settled by the competent court in Ghent. 3. Before instituting a procedure before the Court, Parties will, however, attempt
Article 18: Final provisions
1. This Agreement constitutes the entire agreement between the Parties concerning the subject stated above and supersedes and cancels any prior agreement or any contemporaneous oral agreement between the Parties on the subject.
2. All documents and information available via the Control Panel as referred to in this Agreement form an integral part of the Agreement and are subject to the provisions of the Agreement.
3. Any adjustment or amendment of this Agreement will only be binding upon the Parties if agreed upon in writing and duly signed by both Parties.
4. Should any provision of this Agreement, or the implementation thereof, be void or unenforceable, the other provisions will not be affected by this and remain in full force and effect. In this case the Parties, within the limits of the applicable law, will draft a new stipulation that meets the objectives intended by the void or unenforceable stipulation, and include this as an appendix to this
Agreement.
5. This Agreement shall be binding upon and inure to the benefit of the Parties, their legal representatives, successors and assigns. Each Party is strictly prohibited from transferring the rights and obligations arising from this Agreement, in part or in whole, to a third party, without the other Party's express prior written approval.
6. Each Party shall bear its own costs of the conclusion and the implementation of this Agreement.
7. The failure of either Party to enforce at any time one or more of the terms or conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions.
8. The English language of this Agreement shall be the only authentic text. 9. A failure in the performance of their obligations under this Agreement cannot
be attributed to a Party if the failure is caused by circumstances beyond the reasonable control of said Party such as fire, flood, strikes, labour unrest or other disruptions of the economy, unavoidable accidents, embargos, blockades, legal restrictions, riots, government measures, non-availability of means of communication, terrorist attacks, war, etc.
10. In case of temporary force majeure the mutual obligations of the Parties shall be suspended until the hindrance is eliminated. Where force majeure persistently prevents fulfilment, by which the Parties also understand a force majeure situation which lasts for more than 90 days, the Agreement shall end by right.
The Parties shall then have no right to fulfilment, compensation for this reason and/or postponement.
Drafted in twofold at [LOCATION] on [date] whereby all Parties declares to have received one original.
[DISTRIBUTOR] [RESELLER]
Represented by Represented by
………. ……….
[NAME] [NAME]
PLATFORM SERVICE LEVEL AGREEMENT Article 1: Definitions
1st line Help desk Support for all Licensees on all Problems with the exception of those which initial investigation shows are directly related to the Platform.
2nd line Help desk Support for all Licensees on all Problems which initial investigation shows are directly related to the Platform.
3rd line Help desk Support for all Licensees on all Problems which are directly related to the Platform and cannot be resolved by the 2nd line Help desk with the aid of predetermined procedures. Solutions to these problems will be documented in the procedures manual.
Availability The extent to which the Licensee can make uninterrupted use of the Platform. Availability is expressed as a percentage of time over a certain measurement period.
Cloud Service Related Documents All documents related to the cloud services supplied via the Platform enforced and used by the service provider of the cloud services, included, but not limited to service level agreements, customer terms & conditions, end user license agreements, etc., which documents are available via the Control Panel.
Complaint Any actual expression of dissatisfaction with regard to the service delivery of the Platform.
Control Panel The part of the Platform, made available by Thynx to the Licensee through which (i) cloud services may be ordered, subject to the user login name and password being entered, (ii) the
licensee can view the status of orders, (iii) communications with Thynx are possible, (iv) the most recent version of essential information, including, but not limited to the SLA, the Cloud Service Related Documents, the Helpdesk telephone numbers, the Helpdesk log and the status of the solution of incidents can be viewed, and (v) all invoicing of fee’s for the Platform and
for the cloud services will be provided. Customer A customer of the Reseller who licenses
the Platform on the basis of the agreement between the Reseller and the Customer.
Distributor A partner of Thynx who licenses the Platform on the basis of a Partner Agreement
Help desk The organization unit responsible for receiving and dealing with reports of malfunctions, answering questions from the licensees and providing support for Problems in the context of the Platform. Incident Operational occurrence that is not part
of the standard operation of the system and degrades the level of operational service.
Licensee A Distributor, Reseller or Customer Management Maintaining the software, repairing
identified defects and adjusting the software to changes in circumstances. The implementation of new versions of application and system software is also covered by management.
Platform The separate or joint use of the Cloud Services Delivery Platform, which is a combination of hardware, software and networking components, together forming an Information Technology System used for provisioning and billing of cloud services.
Problem The underlying cause of an Incident. Reseller A partner of Thynx who licenses the
Platform on the basis of a Cloud Reseller Agreement.
Response Time The interval between the time at which the Reseller reports a malfunction to Thynx and the time at which Thynx confirms receipt of the report.
Security The extent to which authenticity, confidentiality and integrity of processes and data exclusivity is safeguarded.
SLA This service level agreement between
Thynx and the Reseller.
Standard Modification A modification to the software made at a Licensee’s request by Thynx, with prior knowledge of the impact, costs and duration.
Start Time The time within which a start is made on dealing with a reported Incident. Technical Warranties The provisions on (i) Availability of the
Platform and (ii) Response Time and Start Time for calls to the 2nd or 3rd line
Help desk.
Thynx Thynx N.V., with registered office and office address at 9400 Ninove, Nederwijk 267 and registered in the Register for Legal Entities under enterprise number 0896.689.378
User Individual on whose behalf the
Licensees license the Platform.
Article 2: Subject
1. This SLA contains the service levels to be provided by Thynx in the context of maintenance, Help desk and quality parameters with regard to the Platform. Thynx provides a number of Technical Warranties in relation to the Platform.
2. Thynx shall use commercial best efforts to provide continuous and consistent service and to meet the Technical Warranties with respect to this SLA.
3. The Reseller or the Customer may not make direct claims against Thynx. All service with regard to the Platform will be settled between the Reseller and the Customer and the Distributor and the Reseller, whereby the Distributor will involve Thynx on the basis of this SLA.
4. The purpose of this SLA is also to agree on and organise Incident reporting, cooperation between the parties involved in the service of the Platform and the respective
responsibilities of Thynx, the Distributor, the Reseller and the Customer. Thynx is consistently endeavouring to improve the quality of the Platform.
5. This SLA does not apply to maintenance, Help desk and service levels of cloud services provisioned by the Platform. For the SLA’s on individual cloud services the Cloud Services Related Documents apply.
Article 3: Change service levels
1. These provisions are applicable to the license of the Platform during the term agreed upon between the Licensees. Given the evolution of technical standards and changing market expectations, these provisions will be updated from time to time by Thynx. In such circumstances, the Licensees will be informed as follows. The Control Panel contains the prevailing version of the service levels at all times. When changes have been made to the service levels, a warning will be sent to the Licensees in an e-mail sent to their respective e-mail addresses.
2. The Licensees are bound by the most recently published provisions on service levels on the Control Panel.
Article 4: Overview of the service 1. Thynx is responsible for:
the Management and maintenance of the Platform in accordance with the SLA and the most recently published provisions on service levels on the Control Panel;
the guidelines of the respective suppliers;
the 3 rd line Help desk.
2. The Distributor is responsible for:
the 2 nd line Help desk.
3. The Reseller is responsible for:
the 1st line Help desk.
4. The Customer is responsible for:
the Internet connection;
the hardware used by the Customer to establish the connection with the Platform;
all hardware and software that is not specifically included in the Platform;
compliance with the principles provided for in Article 9.5 of the agreement between the Reseller and the Customer.
Article 5: Detailed description of the service
Maintenance
1. Maintenance comprises:
Preventive maintenance: - proactive monitoring of status;
- identifying trends, common problems, interrelationships and causes; - installing upgrades;
- optimizing.
Corrective maintenance:
- receiving of Incident reports and monitoring the handling thereof;
- resolving Incidents and restoring the functioning of all or part of the application, repairing and/or if necessary replacing a software module by a new version.
Additive maintenance:
- introducing Standard and non-Standard Modifications and expansions upon request. 2. Maintenance of the platform is carried out in accordance with the guidelines of the
hardware and the software suppliers.
Security
3. Thynx will use its best endeavours to ensure that loss of data is virtually impossible by backing up to tape.
Help desk
5. The 1st, 2nd and 3rd line Help desk offer support to the Customer as described in the
definitions.
6. The 1st line Help desk is provided by the Reseller, and regards support for the Customer
and its Users on all Problems with the exception of those which initial investigation shows are directly related to the Platform.
7. The 2st line Help desk is provided by the Distributor, and regards support for the Reseller on
all Problems which initial investigation shows are directly related to the Platform.
8. The 3rd line Help desk is provided by Thynx, and regards support for the Distributor on all
Problems which are directly related to the Platform and cannot be resolved by the 2nd line Help desk with the aid of predetermined procedures. They provide support facilities for the Distributor which can only be activated by logging an Incident or Problem in the Help desk tool on the Control Panel.
Article 6: Quality parameters Help desk
1. The Help desk can be contacted by logging an Incident or Problem in the Help desk tool in the Control Panel. The Control Panel is accessible 24/7/365.
2. This SLA does not define the service levels for the 1st and 2nd line Help desk. The Reseller
and the Distributor will, however, log calls about Incidents or Problems relating to the Platform in the Help desk log provided on the Control Panel.
3. The 1st, 2nd and 3rd line Help desk will handle Incidents or Problems during office hours on
working days (Monday to Friday) from 09.00 - 18.00 hours and in accordance with the applicable standards in the industry.
4. In case of an emergency, the 3rd line Help desk can be contacted outside office hours on a
special telephone number. The telephone number applicable at the time can be found on the Control Panel, followed by a backup phone number.
5. Two permanent telephone numbers are available in the event that the Control Panel is completely inaccessible and the two telephone numbers applicable at that time cannot be retrieved from the Control Panel. One of these two permanent telephone numbers is always accessible.
6. If a non-emergency problem is reported using the Help desk tool it will not be dealt with until the next working day.
Incident Management (2nd and 3rd line) Help desk
7. 2nd and 3 rd line Help desk involves the classification, Management and handling of
Incidents.
8. The Reseller will log the Incident or malfunction in the Help desk log on the Control Panel, thereby activating the 2nd line Help desk.
9. The Reseller will report any Incidents or Problems immediately and undertakes to provide all information and documents necessary to allow careful and meticulous compliance by Thynx with its obligations.
10. If the Problem cannot be resolved by the 2nd line Help desk, Thynx itself will activate the 3rd
line Help desk.
11. Thynx will continue dealing with the Help desk call until reporting back to the Reseller's 1st
line Help desk. The status of processing the Incident or Problem is entered in the Help desk log.
Response Times and Availability
12. As a rule, a best efforts obligation applies in relation to Response Times and Availability. 13. The SLA covers resolution of Incidents or Problems, changes or extensions to the Platform
(for example when new Users join) as well as new functionality for existing Customers. 14. See "Terms and Definitions" for the definition of "Response Time" and "Start Time".
Subject Max Response Time Start Time
Standard Support Within one working day Within two working days
Fee for interventions
15. If Problems are attributable to the Platform, the call to the Help desk will not be charged. 16. If the call to the Help desk is not related to a Problem that is attributable to the Platform,
the call to the Help desk will be charged by at the applicable rates published on the Control Panel. The rates vary depending on which type of maintenance contract is concluded.
Maintenance
17. Preventive maintenance
This is scheduled maintenance to prevent malfunctions or to adapt functionality whereby the Users may not be able to continue to use the Platform, as in the case of a hardware and software upgrade. This maintenance is carried out outside office hours. Thynx will notify the Reseller and the Customer of scheduled maintenance at least 10 working days in advance using the Help desk system on the Control Panel.
18. Corrective maintenance
This is unscheduled maintenance whereby the Customer may not be able to continue to use the Platform. Corrective maintenance relates to changes and adjustments on account of an Incident or change of functionality that involves immediate necessary adjustments to maintain proper functioning of the system. This maintenance can be carried out at all times ad hoc at the discretion of Thynx. Where possible, a work-around will be applied for the Incident Thynx will notify using the Help desk system on the Control Panel, but does not guarantee.
19. Additive maintenance
This involves extensions of the Platform.
20. Maintenance on the Platform will not affect the availability or use of activated cloud services that are already in use by the Customer.
Availability (uptime)
21. Thynx will exert best efforts to achieve average Availability of the Platform over a year of 99.9% between 6 a.m. and midnight, seven days a week.
Article 7: Requirements for Use
1. The Licensee is granted a non-transferable and non-exclusive licence for each registered User to use the Platform for the term of the Partner Agreement conducted between Thynx and the Distributor, respectively the Cloud Reseller Agreement between the Distributor and the Reseller, respectively the agreement between the Reseller and the Customer. The Licensee undertakes to respect the licence conditions and all terms and conditions for use of the Platform. The Licensee furthermore guarantees that all Users will similarly respect these conditions and assumes full responsibility for these Users.
2. In order to safeguard the quality of the Platform, a number of requirements and conditions are stipulated with respect to use of the facilities by the Licensees and the Users in the respective agreements between Thynx and the Distributor, the Distributor and the Reseller and the Reseller and the Customer.
Article 8: Communication and Reporting
Help desk
1. Help desk Incidents and reports are included in the Help desk log. Initially, this includes:
a call number (automatically generated);
the time of the report;
the person who reported the Incident;
the description of the Incident or Problem;
the Licensee.
2. This is supplemented by:
the solution that was applied;
the time at which the Problem was finally resolved.
3. The Help desk log is accessible on the Control Panel to the Licensees, in relation to the Incidents and Problems reported by or on behalf of a Customer.
Invoicing
4. Invoices received by the Licensees will be accompanied by a statement of the calls to the Help desk and of the services taken up.
Article 9: Procedures for Complaints
1. A Complaint is distinguished from a normal Incident resulting in a Help desk call and Help desk reporting in the Help desk log.
2. A Complaint is where a Licensee expresses dissatisfaction about the functioning of the Help desk and/or software maintenance carried out by Thynx or about consistent poor
performance of the Platform.
3. A Complaint will only be accepted if it is sent by registered letter or email to Thynx within 10 calendar days after the Incident or event which gave rise to the Complaint.
Article 10: Obligations under the applicable privacy laws and/or regulations
1. In the context of the Platform, the Reseller, the Distributor and Thynx have the capacity of a processor for any data processing realised by the Customer on the Platform. This does not make them in any way responsible for the processing of personal data by the Customer within the meaning of the applicable privacy laws and/or regulations, since they are only carrying out technical processing operations at the instruction of the Customer.
2. The Customer guarantees in the in the agreement between the Reseller and the Customer to fully observe the applicable privacy laws and/or regulations. The Customer takes
cognisance of the technical and organisational safety measures foreseen by the Reseller, evaluate these measures in light of the data processing intended by it, and the risks connected thereto, and considers these measures adequate.
3. As the processor, the Reseller, the Distributor and/or Thynx is responsible only for:
implementing the security measures it undertakes in this SLA;
processing the data from the Customer in accordance with the Customer's instructions, which are tantamount to the provision of services on the one hand and storage of the Customer's confidential data on the other.
Article 11: Final provisions
1. This SLA constitutes the entire agreement between the parties concerning the subject stated above and supersedes and cancels any prior agreement or any contemporaneous oral agreement between the parties on the subject.
2. Any adjustment or amendment of this SLA will only be binding upon the parties if agreed upon in writing (including, but not limited to electronically) and duly signed by both parties. 3. Should any provision of this SLA, or the implementation thereof, be void or unenforceable,
the other provisions will not be affected by this and remain in full force and effect. In this case the parties, within the limits of the applicable law, will draft a new stipulation that meets the objectives intended by the void or unenforceable stipulation, and include this as an amendment to this SLA.
4. This SLA shall be binding upon and inure to the benefit of the parties, their legal
the rights and obligations arising from this SLA, in part or in whole, to a third party, without the other party's express prior written approval, with the exception of Thynx, who will be entitled to transfer the SLA to a subsidiary or group company.
5. Each party shall bear its own costs of the conclusion and the implementation of this SLA. 6. The failure of either party to enforce at any time one or more of the terms or conditions of
this SLA shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions.
7. The English language of this SLA shall be the only authentic text.
8. A failure in the performance of their obligations under this SLA cannot be attributed to a party if the failure is caused by circumstances beyond the reasonable control of said party such as fire, flood, strikes, labour unrest or other disruptions of the economy, unavoidable accidents, embargos, blockades, legal restrictions, riots, government measures, non-availability of means of communication, terrorist attacks, war, etc.
9. In case of temporary force majeure the mutual obligations of the parties shall be suspended until the hindrance is eliminated. Where force majeure persistently prevents fulfilment, by which the parties also understand a force majeure situation which lasts for more than 90 days, the SLA shall end by right. The parties shall then have no right to fulfilment, compensation for this reason and/or postponement.
User Guidelines to the Control Panel General
Service Provider provides hosting Services. By using the Services, Licensee (hereafter defined as End Customer, Reseller or Distributor of the Services) agrees to comply with the User Guidelines to the Control Panel, outlined in these guidelines and also to indemnify Service Provider against any claims by third parties arising from violation of these guidelines.
Service Provider reserves the right to make changes to these User Guidelines at any time, and any changes will be effective immediately upon posting to the Control Panel. Licensee’s are responsible for regularly reviewing the Policy. Continued use of the Services following any changes shall constitute acceptance of the changes.
Definition of the Control Panel
The part of the Platform, made available by Thynx to the Distributor, the Reseller and the Customer through which (i) the Cloud Services can be ordered subject to the user's login name and password being entered, (ii) the Distributor, the Reseller and the Customer can view the status of orders, (iii) communications with Thynx are possible, (iv) the most recent version of essential information, including, but not limited to the Platform Service Level Agreement, the Cloud Services Related Documents, the helpdesk telephone numbers, the helpdesk log and the status of the solution of incidents can be viewed, and (v) all invoicing of fee’s for the Platform and for the Cloud Services will be provided.
Use of the Control Panel
1. The Licensee is granted a non-transferable and non-exclusive license for use of the Control Panel. 2. The Licensee gets access to the Control Panel after receiving unique identification codes, login’s
and passwords from Service Provider.
3. The Licensee has to prevent the use of the Control Panel by others than Licensee and /or its employees.
4. In order to control access-rights Licensee will install one Administrator. Service Provider will grant Administrator the rights to activate other users, to grant them users rights or take them away, such as amongst others the access to the information on the Control Panel of the availability to close agreements.
5. The licensee undertakes to respect any licence conditions and all terms and conditions for use attached to the Control Panel and is committed to ensuring that its Users will do the same. 6. Licensee is responsible for the non-disclosure of ID-codes, logins and passwords. Service Provider
cannot be responsible or held liable for the misuse of usernames and passwords. Service Provider may assume that anybody who gets access through the Control Panel, has been granted access to the Control Panel by the Licensee. When a suspicion arises that usernames and passwords have come under control of unauthorised, Licensee has to inform Service Provider. Service Provider has in such an occasion the right to act accordingly.
7. If Service Provider discovers that one or more Users are endangering the operational availability of the Control Panel, access by the Licensee can be temporarily or permanently blocked, without this giving rise to any right to compensation.
8. The costs Licensee has to make to realise and maintain connection and access to the Control Panel, including telecommunication costs, are the responsibility of Licensee.
9. It’s the obligation of Licensee to always register correctly all relevant data, such as mail addresses, addresses, names and its changes in the Control Panel.
Version : August 6, 2012
