Customer Terms of Use Enterprise

Latest update May 6, 2022

These TheyDo B.V. (hereinafter: “TheyDo”) Customer Terms of Use (“Terms of use”) apply to the use by any customer (hereinafter: “Customer”) of TheyDo’s software product called TheyDo Platform (as further described on TheyDo’s website www.theydo.com), or any other software product made available by TheyDo, on the basis of ‘Software-as-a-Service’ , which is understood to mean a service by which TheyDo makes functionality available to and keeps functionality available for Customer remotely through the cloud (Internet or another data network, (hereinafter: “TheyDo Platform Service”).
Scope of these Terms of use.


Scope

  • TheyDo owns, holds and controls the TheyDo Platform Service. The TheyDo Platform Service includes proprietary rights in certain valuable trade names, trademarks and computer programs. By setting up, having setup , clicking to accept, or using TheyDo Platform Service, all the foregoing by using the Order form or Invoicas designated by TheyDo or by accepting TheyDo’s proposal document (either in tangible form or electronically and all the foregoing hereinafter referred to as ‘Order form’, Customer accepts these Terms of use. If Customer complies with these Terms of use, Customer has the rights as described below.


Usage rights and limitations

  • For the duration of the term mentioned in an Order form and subject to payment of the fees mentioned in the Order form, Customer shall be provided a non-exclusive and non-transferable right to use TheyDo Platform Service, solely for its internal business and only subject to these Terms of use. For that benefit, Customer shall be provided access to the TheyDo Platform Service and for that purpose be given technical instructions by Theydo. In doing so the Customer shall comply with any technical limitations in TheyDo Platform Service that only allow the Customer to use it. Customer is not granted any rights to copy, modify, decompile or distribute the software as included in TheyDo Platform Service. 


Intellectual property rights – infringement

  • Intellectual Property Rights. All present intellectual property rights including copyright and industrial rights in TheyDo Platform Service and in particular to its software, databases, equipment or other materials developed or provided under the Order form, such as analyses, designs, documentation, reports, offers, as well as preparatory materials in that regard are the sole property of TheyDo, its licensors or its suppliers. This Agreement does not in any way purport to transfer any such rights to Customer in any respect. Customer shall only acquire the rights of use expressly granted in these terms or by law. Any other or more extensive right of the Customer to reproduce or to modify software, databases or other materials and- to the extent prescribed by law – reverse-engineering, shall be excluded. A granted right of use to the customer shall always be non-exclusive and non-transferable to third parties.

  • Customer shall not be allowed to remove or modify any designation concerning the confidential nature or concerning copyrights, trademarks, business names or other intellectual or industrial property rights from the software or databases.

  • TheyDo shall be allowed to take technical measures or to view in Customer’s workspace environment for the sole purpose  to protect the software in TheyDo Platform Service or with a view to agreed restrictions in the duration of the right to use TheyDo Platform Service. Customer shall not be allowed to remove or evade such a technical measure.

  • Infringement. Customer shall notify TheyDo as soon as practicable after Customer becomes aware of: (i) any actual, threatened or suspected infringement of any intellectual property (including know-how) in respect of TheyDo Platform Service, any related material or of any breach of confidence relating to any of the foregoing; (ii) any claim brought against Customer alleging that its use of TheyDo Platform Service, any related material any intellectual property or other rights belonging to or alleged to belong to the claimant.


Product support and product lifecycle support

  • TheyDo does not guarantee that TheyDo Platform Service made available and held in the context of TheyDo Platform Service is free of errors and functions without interruption. TheyDo shall make efforts to have bugs in the TheyDo software be fixed within a reasonable term if and insofar the Customer has provided to TheyDo a detailed, written description of the interruption and circumstances under which the bugs occurred. TheyDo shall provide a copy thereof upon request of the Customer. Where there are grounds for doing so, TheyDo may postpone the fixing of bugs until a new version of the software is put into operation. TheyDo shall make available new versions of the TheyDo Software from time to time. More information is available on Theydo’s website (see www.theydo.com).

  • TheyDo is entitled to install temporary solutions, program bypasses or problem-avoiding limitations in TheyDo Platform Service. 

  • Based on the information provided by TheyDo concerning measures to prevent and limit the effects of malfunctions, defects in TheyDo Platform Service, corruption or loss of data or other incidents, the customer shall identify and list the risks to its organization and take additional measures if necessary. TheyDo declares that it is prepared to provide assistance, at the customer’s request, to the extent reasonable and according to the financial and other conditions set by TheyDo, with respect to further measures to be taken by the customer. TheyDo is never obliged to recover data that has been corrupted or lost.


Maintenance time and service level agreement, services of third parties

  • If and insofar as TheyDo, when providing TheyDo Platform Service, uses software and/or services from third parties, the terms and conditions of such third parties shall apply in the relationship between TheyDo and the Customer with respect to such software and/or services instead of the provisions herein insofar these differ from those third-party terms and conditions.

  • If and insofar as, for whatever reason, the terms of third parties referred to above are deemed not to apply or are declared inapplicable in the relationship between the customer and TheyDo, the provisions of the conditions herein apply in full.


Confidential information

  • The parties shall keep confidential all data, facts and events that come to their knowledge in relation to the Order form and of which they know or should know that public disclosure negatively impacts thåe interests of the other party. Information shall in any event be deemed confidential in the event such confidentiality is indicated by the disclosing party in writing. The Order form shall be considered confidential.

  • The parties shall only use any confidential information for the purpose and during the period for which such information is made available.

  • The parties shall not be obliged to keep confidential any information that is available to the public, that the receiving party already had in its position without any illegal act, that is independently developed by the receiving party or that was received from a third party without any illegal act. The parties may use any experience, know-how and techniques that they have gained in relation to the Order form and the Order forms without limitation unless explicitly stated otherwise.


Customer Data

  • Use of Customer Data. Customer Data will be used only to provide Customer the TheyDo Platform Service hereunder, including purposes compatible with providing those services. TheyDo will not use the Customer Data or derive information from it for any advertising or similar commercial purposes. Customer retains all right, title and interest in the Customer Data. TheyDo acquires no rights in Customer Data, other than the rights required by TheyDo to provide TheyDo Platform Service.

  • TheyDo shall only process any personal data following the customer’s explicit order. The parties shall then adhere to the rules and regulations following the EU General Data Protection Regulation (hereinafter: “GDPR”). In such an event Theydo shall process such personal data in accordance with its then current Privacy Statement. 

  • Customer Responsibilities. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of its data. Customer agrees to provide any notices and obtain any consents related to its use and TheyDo’s provision of TheyDo Platform Service, including those related to the collection, use, processing, transfer and disclosure of personal information.

  • Customer agrees to provide notification to the individual users of TheyDo Platform Service that their data may be processed for the purpose of disclosing it to law enforcement or other governmental authorities and agree to obtain the users consent for the same.


Limitation of warranty and liability – disclaimer

  • Warranty. TheyDo confirms and warrants that it is the owner of and/or controls all intellectual property rights and any other rights to TheyDo Platform Service necessary to perform and administer an Order form. 

  • Limited Warranty. TheyDo Platform Service is provided “as is” with all faults and, to the fullest extent permitted by law, TheyDo makes no other warranties or representations than described above and accepts no other conditions in relation to TheyDo Platform Service. TheyDo does not give any further representation, warranty or undertaking as to the effectiveness, performance, quality, merchantability, durability or fitness for any purpose of TheyDo Platform Service or any related material or documentation or services, or that TheyDo Platform Service, or any related material or documentation or services supplied by TheyDo is free from any defect or error.

  • Liability. TheyDo’ total liability due to an attributable failure in the performance of an obligation under the Order form or on any other legal basis whatsoever, expressly including each and every failure to fulfill a warranty obligation agreed with the customer, shall be limited to compensation for direct loss up to a maximum of the price stipulated for the Order form concerned (excluding VAT, discounts and third-party costs). If the Order form mainly concerns a continuing performance obligation with a term of more than one year, the price stipulated for that Order form shall be set at the total amount of the payments (excluding VAT, discounts and third-party costs) stipulated for one year. 

  • Limited Liability. To the maximum extent permitted by law, TheyDo (and/or its suppliers) is (are) in no way liable to Customer by reason of any representation or the breach of any implied condition, warranty or other term or any duty under any law or statues, or under any express term of this Agreement, for any direct or indirect loss, damages, costs, expenses or other claim for compensation whatsoever (including without limitation, consequential, special or incidental damages, damages for lost profits or revenues, business interruption, or loss of business information), whether occasioned by the negligence of TheyDo, its servants or agents or otherwise, which arises out of or in connection with this Agreement, even if advised of the possibility of such damages or if such possibility was reasonably foreseeable. 

  • Direct damages shall consist exclusively of the following:

  1. Damages to equipment and software of the other party;

    • Reasonable costs incurred to bring the performance in compliance with the Order form (such costs shall not be compensated in the event the Order form is terminated); 

    • Reasonable costs made in order to prevent or restrict the damage, including taking emergency measures. Cost of personnel shall not be deemed reasonable costs to prevent or restrict damage;

    • Reasonable costs to repair the damage;

    • Reasonable costs to determine the damage.

  • Save for the provisions expressly laid down in these terms and/or Order forms to which these terms apply, TheyDo does not accept any other obligations, nor does it provide any guarantees with that TheyDo Platform Service will reach customer’s aim or result set. The provisions of this article and all other limitations and exclusions of liability referred to in these terms shall also apply for the benefit of all natural persons and legal entities that TheyDo engages in the performance of the Order form.


Commencement of the TheyDo Platform Service, renewal, term and termination

  • As stated in section 2 (a) of this Agreement the making available of TheyDo Platform Service shall commence on the Effective Date of the Order form. TheyDo Platform Service is provided by TheyDo on a subscription- and fixed-term basis as further specified in the Order form. Ultimately 60 days before the end of the term, Parties shall discuss an eventual renewal.

  • Customer shall promptly ensure that it has the facilities required to use TheyDo Platform Service. TheyDo shall only provide TheyDo Platform Service on the instructions of the Customer. Customer may not allow third parties to make use of TheyDo Platform Service as provided by TheyDo. 

  • The customer shall owe the payment specified in the Order form. In the absence of an agreed payment schedule, all amounts that relate to TheyDo Platform Service provided by TheyDo shall be payable each 12 month period in advance. All payments should be received by TheyDo within 30 days after invoice date.

  • TheyDo may change the content or scope of TheyDo Platform Service delivery model. If such changes result in a change in the Customer’s current procedures, TheyDo shall inform the Customer about the matter as soon as possible and the costs of this change shall be borne by the Customer. Customer may in this case give notice of termination of the contract, which termination shall then take effect on the date on which the change takes effect, unless the change is related to changes in relevant legislation or other instructions issued by competent bodies, or TheyDo bears the costs of the change. TheyDo may continue to provide TheyDo Platform Service using a new or modified version of the software. TheyDo is not obliged to maintain, modify or add certain features or functionalities of the service or Software Solution specifically for the Customer. 

  • TheyDo may temporarily put all or part of TheyDo Platform Service out of operation for preventive, corrective or adaptive maintenance or other forms of service, especially in the event a subprocessor of Theydo performs or announces to perform such preventive, corrective or adaptive maintenance. TheyDo shall endeavor to allow the period during which the service is out of operation to last longer than necessary and shall endeavor that this period occurs outside office hours, unless this is not possible due to then applicable Microsoft Corporation’s service windows. TheyDo is never obliged to provide a physical carrier to the customer that contains the software provided to and held by the customer in the context of TheyDo Platform Service.

  • In addition to any other rights and remedies at law, TheyDo shall be entitled to terminate Terms of use forthwith by giving written notice if: 

  1. Customer commits any breach of Terms of use and if the breach is capable of remedy, fail to remedy it within 30 days after being given a written notice containing full particulars of the breach and requiring it to be remedied; or 

    • Customer becomes directly or indirectly involved, in the design, development, manufacture and/or distribution of any products which compete directly with TheyDo Platform Service.

    • Customer breaches TheyDo’s intellectual property rights.

    • In the event of bankruptcy or moratorium of payment of Customer.

    • In the event Customer is liquidated or ceasing its business.

  • Obligations Surviving Termination. Notwithstanding any expiration or termination of Terms of use and any exercise of rights by Customer under a separate agreement hereunder, the following rights and obligations shall survive any such termination or exercise of rights necessary to permit their complete fulfillment or discharge: 

  1. TheyDo’s right (’s right if applicable) to receive or recover, and Customer’s obligation to pay any fees or other sums payable which are vested in, accrued or accruable at the time of termination or exercise of such rights. 

    • Any rights or remedies of TheyDo under this Agreement, with regards any cause of action or claim of either party, whether or not accrued at the time of termination, arising from the other party’s breach of or failure to perform any obligation under this Agreement. 

    • In addition to the rights and obligations which survive as expressly provided in this Agreement, the Articles and Schedules which by their nature should survive, shall survive and continue after any termination or expiration hereunder.


Miscellaneous

  • Assignment. This Agreement is personal to Customer, Customer is not entitled to assign, mortgage, charge, or otherwise transfer or sub-license any rights under this Agreement, except with prior written approval. 

  • Severability. If any provision hereof is determined by a tribunal of competent jurisdiction to be illegal or unenforceable, it shall automatically be deemed conformed to the minimum requirements of law and, along with all other provisions hereof, shall thereupon be given full force and effect. 

  • Validity. Whenever possible, each provision of Terms of use shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of Terms of use shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity and shall not invalidate the remainder of such provision or the remaining provisions of Terms of use that shall continue in full force and effect. 

  • Use of trade name. TheyDo is allowed to use Customer’s name and logo for marketing and/or educational purposes.

  • The Order form, these terms and any non-contractual obligations relating to or arising out of the Order form shall be governed by and construed in accordance with Dutch law. Any disputes that may arise between TheyDo and customer on the basis of the Order form, any other agreement and/or any non-contractual obligations relating to or arising out of the Order form or any other agreement, shall be settled through arbitration in accordance with the Arbitration Regulations of the Foundation for the Settlement of Automation Disputes (www.sgoa.org), without prejudice to the right of either of the parties to request an injunction in summary arbitral proceedings and without prejudice to the right of either of the parties to take precautionary legal measures.

  • Notwithstanding the foregoing, the TheyDo reserve the right to seek and obtain injunctive relief, whether in the form of a temporary restraining order, preliminary injunction, injunction to enforce an arbitration award, or other order of similar import, including obtaining full payment of all fees and costs under Terms of use from any court of competent jurisdiction.


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