Article 1. DEFINITIONS
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The following definitions apply to the Cloud Conditions and all accompanying Appendices:
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1.1 Application(s): By means of the software modules made available by the Cloud Service, including the underlying databases and develop-ment platforms as well as the corresponding data collection(s) and accompanying documentation.
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1.2 Availability: The period that Customer actually has the Application at their disposal by means of the Cloud Service.
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1.3 Cloud Service: the Application(s) and/or Infrastructure and/or Platform Facilities made and kept available for Customer by SpinPanel against payment.
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1.4 User: a natural person authorized by Customer to use the Applications(s) and or Storage Capacity available via the Portal.
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1.5 Tools: the resources that User needs to have installed on their computer in order to be able to use the Application.
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1.6 Interface: a Tool being a communication link between the Cloud Service and systems within Customer's domain and that of SpinPanel.
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1.7 Portal: the internet site where Customer and User can use the Cloud Service and request changes.
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1.8 Server: a computer or an associated group of computers and associated hardware (cloud?, containing web server equipment, the Application(s), supporting software and/or database software, managed by or on behalf of SpinPanel, which is accessible through the Internet.
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1.9 Means of access: the means, such as a token or a combination of access code with a user name, with which the Portal, Server, the Application(s) and/or the Storage Capacity can be accessed.
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1.10 Personal data: all data concerning a directly or indirectly identified or identifiable natural person, such as the user or employees of Custom-er, which are processed when using the Cloud Service.
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1.11 SLA: the Service Level Agreement based on which the Cloud Service is rendered.
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1.11 SpinPanel: Cloud Service tool described on www.spinpanel.com, and trademark of the private limited company Computron?in the Netherlands known by the Chamber of Commerce with number 10024793.
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Article 2. AGREEMENT
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2.1 An agreement is established by signing and/or sending a written or electronic order confirmation within the SpinPanel Cloud Service and/or signing and sending this order confirmation.
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2.2 The Customer orders SpinPanel to provide the Cloud Service. This Cloud Service consists of:
a.making the Application(s)/Infrastructure/Platform Facilities, set out in the offer and further described in the SLA, available to Customer;
b.granting Customer the right to use the Application via the Portal in accordance with the stipulations of these Cloud Conditions;
c.granting a right of use to the Interface;
d.providing support to Users as further set out in the SLA; and
e.SpinPanel providing additional services to Customer upon request.
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2.3 The functionality of the current version of the Application will be described in the user documentation, available on the Portal in electronic form.
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Article 3.AVAILABILITY AND ADJUSTMENTS
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3.1 SpinPanel will make every effort to always have the Cloud Service that was agreed function properly and aim for the highest possible availability, quality and security of the Cloud Service. However, SpinPanel does not provide any guarantee that the Cloud Service functions without faults, failures or interruptions as SpinPanel is hosted in the datacenters of Microsoft Azure.
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3.2 SpinPanel reserves the right to change the technical and functional features of the Cloud Service in the interim to improve functionality, to repair possible faults and to comply with the prevailing laws and regulations.
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3.3 SpinPanel makes every effort to detect and repair possible faults in the Cloud Service. However, SpinPanel cannot guarantee that all faults will be repaired.
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3.4 If an adjustment as referred to in paragraphs 2 and 3 leads to a material deviation in the Cloud Service's functionality, then SpinPanel will inform Customer about that in writing or electronically prior to the adjustment becoming available.
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3.5 SpinPanel reserves the right to temporarily decommission the Cloud Service for, among others, maintenance, adjustments or improvements of SpinPanel' computer systems. To the extent possible, SpinPanel will decommission the Cloud Service outside of office hours and inform Customer in advance of any scheduled decommissioning. Such announced decommissioning is never regarded as a shortcoming on the part of SpinPanel in complying its commitments towards Customer.
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Article 4. TOOLS
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4.1 The Customer is responsible for ensuring the availability of the Cloud Service Tools as well as their functioning necessary to access and use the Cloud Service, including the (peripheral) equipment and software, auxiliary applications, configuration and Internet connection, which meet the technical and functional requirements stipulated by SpinPanel, that are to be used by Customer.
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4.2 The Customer is responsible for ensuring the maintenance of a connection to the energy network and others connections necessary to access to and use the Cloud Service.
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4.3 The Customer is responsible for implementing password policies that concern access to SpinPanel.
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4.4 Additional (licensing) conditions (of third parties) could apply to the use of auxiliary applications. SpinPanel does not guarantee the full functionality of the auxiliary applications used by Customer.
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Article 5.ACCESS TO THE SERVICE
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5.1 The Customer is responsible to ensure that all use, with or without its permission, of the Cloud Service and the Means of Access are made available to them. SpinPanel is not liable for damage incurred by the Customer and/or Third parties stemming form unauthorized use of the Means of Access.
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5.2 The Means of Access provided are not transferable, are strictly personal and exclusively for use within Customer's organization. The Customer will exercise the required care with respect to the use of the Means of Access and keep them secret from third parties.
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5.3 SpinPanel can always change the Means of Access at its own discretion and SpinPanel will inform Customer about this in due time.
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5.4 The Customer will immediately inform SpinPanel of any unauthorized use of the Means of Access or when Customer reasonably suspects that this is the case.
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5.5 The Customer can request SpinPanel to block the Means of Access. SpinPanel is also entitled to block the Means of Access at any time and at its own discretion if SpinPanel is aware of unauthorized use of the Means of Access. SpinPanel is not liable for any damage incurred by Customer and/or by third parties as a result of blocking the Means of Access.
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Article 6.USE OF THE CLOUD SERVICE
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6.1 The Customer is responsible for ensuring that, when the Cloud Service is used, they and the User(s), to the extent relevant, observe the following rules:
a.the Customer will ensure protection of its (peripheral) equipment, software, infrastructure and internet connection against viruses, com-puter criminality and (other) unlawful use by the User(s) or by third parties;
b.when using the Cloud Service, Customer and/or the User will not distribute any (computer) viruses or other files that could damage (the proper functioning of) the Cloud Service;
c.the Customer and/or the User will not perform (or have) any actions (performed) that could cause failures in the Cloud Service, (computer) networks or infrastructures (of other users) or that could cause inconvenience, limited use or unforeseen use (for other users) in respect to the above;
d.the Customer and/or the User will not abuse the Means of Access or break through the Cloud Service's security and/or attempt to do so;
e.the Customer and/or the User will not perform or omit any actions of which they reasonably know or should reasonably have known that those could lead to punishable use of the Cloud Service or which could be unlawful towards SpinPanel and/or third parties;
f.the Customer and/or the User will not disclose or distribute any racist or discriminatory material and/or child pornography. Distribution is also understood to include placement on or distribution through the Cloud Service's infrastructure;
g.the Customer and/or the User will not deliberately break into a computer system or a part thereof (hacking? against the will of the owner or administrator and without permission.
h.the Customer and/or the User will in no way breach the intellectual property rights of SpinPanel and/or those of third parties; and
i.the Customer and/or the User will not disclose, duplicate or otherwise use any information or data provided by SpinPanel in the context of the Cloud Service, other than for use in Customer's internal business operations, without SpinPanel' express prior written consent.
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6.2 If Customer and/or the User(s) act(s) contrary to one or more of the rules mentioned above, then Customer is obligated to follow any reasonable instructions (or to have such done) given by SpinPanel in that respect and to have the User(s) follow those too.
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6.3 If data that are stored, prepared, processed or otherwise entered are unlawful towards third parties, then SpinPanel is entitled, immediately and without prior notification, to remove the data from the Server and to destroy them. Already at this time, in case the above occurs, Customer grants SpinPanel permission to remove all offending data from the Server and to destroy them. SpinPanel will in no event be liable for any damage that results from these actions.
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6.4 SpinPanel can prevent Access to the Cloud Service by decommissioning the Means of Access or by suspending service delivery if they seriously suspect that it is used in breach of the stipulations of these Cloud Conditions. The obligation to pay remains in force during such decommissioning.
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Article 7.THIRD PARTY APPLICATIONS
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7.1 If and to the extent SpinPanel, in the execution of the Cloud Service, makes available Applications or other software of third parties to Customer, then the conditions of the third parties (Microsoft Azure, Microsoft Partner Center and Microsoft Office 365 in particular) are applicable, and the provisions between SpinPanel and Customer are set aside to the extent they pertain to the Applications and/or other software. The Customer will accept the conditions of the third parties referred to, provided that SpinPanel has informed Customer of the applicability of the conditions in writing or electronically.
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7.2 The provisions between SpinPanel and Customer with regard to the use of software will prevail if and to the extent the conditions of the third parties referred to are deemed not to be applicable or declared inapplicable.
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7.3 SpinPanel, with regard to the use and maintenance of the third party Application, can never be challenged in respect of anything more or other than what is applicable to the relationship between SpinPanel and the relevant supplier of that Application.
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Article 8.FEES AND PAYMENT
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8.1 The fees payable for the Cloud Service are included in the offer. For the determination of the amount of the monthly fee, the data and the quantities on the first day of the calendar month for which the monthly fees are determined are applicable.
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8.2 The fees stipulated in the offer and otherwise discussed by Parties in the course of the Cloud Service are expressed in US Dollar and exclude the due and payable turnover tax and other levies imposed by the government.
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8.3 SpinPanel is entitled to periodically amend the fees, which includes the right to change the prices and fees 1 time per contract year. SpinPanel will inform Customer of fee changes at least two calendar months in advance.
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8.4 SpinPanel will retrospectively bill Customer the agreed fees on a monthly basis. The final payment date of a bill is 14 days after the in-voice date. The legal interest as well as compensation for the extra-judicial costs incurred by SpinPanel with regard to the collection of the bill concerned are due and payable after the expiry of the payment date.
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8.5 If, based on general or particular facts and circumstances, there could be reasonable doubt whether Customer is/could be able to meet its payment obligations towards SpinPanel, then the latter is entitled to require Customer to provide surety, for example, in the form of a security deposit, bank guarantee or a guarantee deposit before SpinPanel com-plies with its obligations under the Cloud Conditions. The amount thereof will not be more than the amount that Customer would reasonably owe over a period of twelve calendar months, unless otherwise agreed.
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Article 9.SUSPENSION
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SpinPanel is entitled to entirely or partially block the access to the Cloud Service seven (7) days after without any prior warning or proof of default, if Customer fails to comply with any obligation under these Cloud Conditions.
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Article 10.INTELLECTUAL PROPERTY RIGHTS
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10.1 All intellectual property rights to all the Applications, Interfaces, other software, documentation and other materials to which any form of intellectual property right is attached rest exclusively upon Computron in the Netherlands known by the Chamber of Commerce with number 10024793 or its licensors.
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10.2 The Customer only obtains the non-exclusive rights of use and competencies as expressly granted in these Cloud Conditions or otherwise in writing. The Customer will not otherwise duplicate or disclose any of the Applications, Interfaces, other software, documentation and other materials developed or made available in the context of the Cloud Service. The Customer is not permitted to remove or change any designation of copyrights, brands, trade marks or other intellectual property rights to the Applications, Interfaces, other software, documentation and other materials developed or made available in the context of the Cloud Service, including designations regarding the confidential nature and duty to observe confidentiality of the materials.
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10.3 SpinPanel is allowed to take technical measures in order to protect the Applications, Interfaces, other software, documentation and other materials developed or made available in the context of the Cloud Service, provided that these measures do not negatively impact the functionality. If the Applications, Interfaces, other software, documentation and other materials developed or made available in the context of the Cloud Service have been protected by means of technical safety measures, then Customer is not allowed to remove or evade these.
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10.4 Each use, multiplication or disclosure by SpinPanel through technical safety measures that falls outside the scope of the Cloud Conditions or the granted rights of use, constitutes an infringement of SpinPanel intellectual property. The Customer will pay an immediately due and payable fine of $ 10,000 (ten thousand Dollar) per infringement to SpinPanel and continue to pay that amount for every day the infringement continues, without prejudice to SpinPanel other rights, including the right to compensation and compliance.
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10.5 The Customer is not allowed to independently repair faults in the Cloud Service's software or have those repaired, make changes therein, link them to other equipment and software, independently expand their functionality, change parameters and/or remove the safety measures.
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Article 11.INTERFACE USE
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11.1 SpinPanel hereby and for the duration of the Cloud Service grants Customer a non-exclusive and limitedly transferable right to use the Interface under the following conditions when using the Cloud Service. The Customer hereby accepts this right.
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11.2 The right of use includes all actions with regard to the Interface that are reasonably necessary in the context of the Customer and Users using the Cloud Service.
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Article 12.CONFIDENTIALITY
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12.1 The Customer and SpinPanel will ensure that all data received from the other Party, which is known to be or could reasonably be expected to be confidential, will remain secret. The Party that receives confidential information will only use this for the purpose which it has been provided for. Data will in any event be regarded as confidential indicated to be so by one of the Parties.
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12.2 The duty to observe confidentiality mentioned above does not apply when the confidential information:
a.is general knowledge, without this being caused by a violation of this duty to observe confidentiality;
b.was independently developed by the other Party without using this information;
c.was lawfully obtained from a third party and when the latter is not bound by a similar duty to observe confidentiality; or
d.is to be disclosed based on laws or regulations, a Court Order or an Order by a Regulatory Authority.
12.3 Parties undertake to use the information referred to in paragraph 1 only for the execution of these Cloud Conditions.
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12.4 Parties undertake to impose the same obligations as included above on the persons engaged by them in the execution of the Cloud Conditions.
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12.5 The above mentioned duty to observe confidentiality remains in force for the duration of the Cloud Conditions and up to two years after their termination.
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12.6 With each infringement of the duty to observe confidentiality included in this Article, the infringing Party forfeits an immediately due and payable fine of $ 5,000 (five thousand Dollar) per infringement, without prejudice to the other Party's right to have the damage caused by the infringement compensated and without prejudice to the other rights the Party has with regard to the infringement.
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Article 13.DATA
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13.1 The Customer remains the right holder with regard to the data that are stored, edited, processed or otherwise entered into with the aid of the Cloud Service.
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13.2 The Customer and its Users themself(ves) decide which data are stored, edited, processed or otherwise entered with the aid of the Cloud Service. SpinPanel has no knowledge of these data. The Customer therefore remains responsible for the data entered by them. SpinPanel is therefore not liable for any damage that results from the data entered by Customer. The Customer indemnifies SpinPanel against any claim for compensation that third parties would be able to recover from SpinPanel in any way, to the extent such a claim is based on the use of the Cloud Service by Customer.
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13.3 SpinPanel is not responsible for ensuring checking the correctness and completeness of the data provided, and is therefore not liable for the consequences of the use of any incorrect and/or incomplete data provided by Customer.
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Article 14.PROCESSING OF PERSONAL DATA
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14.1 Parties, to the extent relevant in the context of the Cloud Conditions, take care of the lawful processing of personal data in accordance with the relevant laws and regulations with regard to the protection of personal privacy, especially the Dutch Personal Data Protection Act. The Customer guarantees that personal data will only be entered into SpinPanel' systems in an entirely lawful way. The Customer indemnifies SpinPanel against all claims from third parties as a result of the Customer infringing the laws and regulations referred to above.
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14.2 If Customer enters, stores or otherwise processes personal data when using the Cloud Service in accordance with the terminology of the Dutch Personal Data Protection Act, the latter is the Party Responsible?and SpinPanel is the Processor?within the meaning of the Dutch Personal Data Protection Act.
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14.3 SpinPanel is responsible to ensure an appropriate security level in view of the risks that arise from the processing operation(s) and the nature of the personal data to be protected. SpinPanel also guarantees that everyone who acts under SpinPanel' authority, to the extent they have access to the personal data for which Customer is the Party Responsible, only carries out processing operations at the Customer's instructions and for the purpose specified by the latter.
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14.4 The technical and organizational security measures to be taken by SpinPanel will always comply with generally accepted and applicable security measures such as the Code of Practice for Information Security Management. The Customer will regularly assess the measures and check their compliance.
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14.5 At all times, SpinPanel is to report any security incidents to Customer. In the report, SpinPanel indicates the incident that occurred, what possible consequences the incident has had for the (access to the) personal data and the measures taken or to be taken to terminate the incident and to prevent such from happening in the future. SpinPanel will report an incident immediately upon discovery in case the incident possibly affects the privacy of any Party(ies) involved.
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14.6 SpinPanel will refrain from directly or indirectly processing personal data in countries outside of the European Economic Area. SpinPanel must obtain Customer's prior consent when it intends to directly or indirectly process personal data outside of the European Union. The Customer will not refuse this consent without reasonable grounds.
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14.7 SpinPanel will fully cooperate with Customer in order to (i) have any Party(ies) involved gain access to their personal data within the meaning of the Dutch Personal Data Protection Act; (ii) remove or correct personal data or mark then as incorrect; (iii) demonstrate that the personal data have been removed, corrected or marked as incorrect when they are indeed incorrect; and/or (iv), record the fact that the Party(ies) involved consider their personal data to be incorrect in case Customer disagrees. SpinPanel will separately bill Customer for the costs of the work.
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14.8 The Customer is entitled, at his own expense, to have compliance with the stipulations of this Article checked by an independent third party.
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14.9 SpinPanel will not store the personal data any longer than necessary for the execution of the Cloud Conditions, after which SpinPanel will permanently remove them without informing the Customer. The Cus-tomer will inform SpinPanel on the applicable storage periods.
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Article 15.LIABILTY AND INDEMNIFICATION
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15.1 SpinPanel' total liability towards Customer due to an attributable breach in complying with these Cloud Conditions, or for any other reason, is limited to compensation for direct damages up to a maximum of the amount of fees (excluding VAT) that Customer has paid in the twelve months preceding the event giving rise to the damage based on these Cloud Conditions with a maximum of $ 10,000 (ten thousand Dollar) for the duration of the Cloud Service/per event. This limitation of liability will apply mutatis mutandis to SpinPanel indemnification obligation.
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15.2 SpinPanel' liability for indirect damages, including loss of profit, lost savings, diminished goodwill, damage due to business interruption as well as damage due to claims of Customer's clients is excluded. SpinPanel' liability due to mutilation, destruction or loss of files, data, documents or other data carriers of Customer is also excluded.
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15.3 The exclusions and limitations with regard to SpinPanel' liability do not apply if the damage is caused by deliberate intent or gross negligence on the part of SpinPanel' operational management.
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15.4 Unless compliance by SpinPanel is permanently impossible, SpinPanel's liability due to an attributable breach in complying with the Cloud Conditions only arises if Customer immediately serves SpinPanel with a written notice of default, in which a reasonable period is set for curing the breach, and SpinPanel remains attributably in breach of meeting its obligation after this period. The notice of default must contain a complete and detailed description of the alleged breach, so SpinPanel actually has the opportunity to adequately respond to the notice of default.
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15.5 The condition for the arising of any right to compensation is that Customer, at all times, reports the damage to SpinPanel in writing as soon as possible after it has occurred. A claim for compensation against SpinPanel expires by the mere lapse of 24 months after the claim arises.
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Article 16.FORCE MAJEURE
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16.1 None of the Parties is obligated to fulfil any obligation, including a warranty obligation agreed between the Parties, in case a Party is prevented from doing so due to a Force Majeure. Force Majeure is understood to include Force Majeure affecting SpinPanel' suppliers, failure to properly comply with obligations of suppliers which are set out by Customer, government measures, outages of power, the Internet, computer network or telecommunication facilities, (civil) war, sit-ins, strikes, general transportation problems and terrorism.
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16.2 Each Party will be entitled to terminate the Cloud Service when circumstances of Force Majeure last over 90 days. In that case, the services that have already been rendered based on the Cloud Conditions will be settled proportionally without either Party owning the other anything else.
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Article 17.TERMINATION
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17.1 The Cloud Service is repeatedly tacitly extended for a period of one month, unless the Customer or SpinPanel terminates the Cloud Service by means of registered mail with due regard to a notice period of one month prior to the end of the period concerned.
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17.2 Each Party will be entitled to termination due to an attributable breach in fulfilling the Cloud Conditions when the other Party is attributably in breach of fulfilling their essential obligations under the Cloud Conditions. Dissolution is only possible after a written, complete and detailed notice of default has been served in which a reasonable period is set for curing the breach. Any payment obligation of Customer and any other of the latter's obligations to cooperate or those of a party to be engaged by Customer will always be essential obligations under these Cloud Conditions.
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17.3 The services that have already been rendered for the execution of the Cloud service, at the time of a dissolution as referred to above, will not be subject to reversal unless Customer can prove that SpinPanel is in default with respect to rendering a substantial part of the services. In that case, the value of the services that have already been rendered to Customer by SpinPanel (unless evidence to the contrary is provided) will be determined as being equal to the fees already paid. Amounts that SpinPanel had already billed prior to the dissolution with respect to the execution of Cloud Services that SpinPanel had already properly provided or rendered in that regard, remain due and payable notwithstanding due consideration to the stipulations of the preceding full sentence and become immediately due and payable at the time of dissolution.
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17.4 Each of the Parties can terminate the Cloud Service entirely or partially, immediately and without serving a written notice of default if the other Party ?be it provisionally or not ?is granted suspension of payments, if a petition for bankruptcy is filed against the other Party, or if the latter's company is liquidated or terminated for reasons other than a company restructuring. In case of such termination, SpinPanel is not responsible for ensuring any repayments of funds already received or for compensating damages. The right to use the Cloud Service and the Internet lapses in case Customer is declared bankrupt.
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Article 18.CONSEQUENCES OF TERMINATION
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18.1 In case the Cloud Service is terminated, then the Parties will continue to cooperate in good faith in a possible case that Customer needs support with the remigration of the data entered when using the Cloud Service and when transferring these to the Customer or to third parties to be designated by Customer during this remigration period? The continuity of the availability of the data and the services are key factors here. Parties will consult about the extent of the effort expected from SpinPanel. SpinPanel will be allowed to charge Customer the costs incurred by them with regard to the remigration of the services based on retrospective pricing.
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18.2 The Customer, after the termination, may request a once-off provision of the data entered when using the Cloud Service. SpinPanel will make the data available to Customer in a customary format, so the data can be reasonably processed by Customer. There is no (statutory) storage period attached to SpinPanel for the data entered by Customer, other than what is expressly referred to in Article 14. If Customer did not indicate that it requires the transfer of the data as set out above immediately after the termination of the Cloud Service, then SpinPanel is entitled to immediately remove the data that are stored, prepared, processed or otherwise entered by means of using the Cloud Service, and to remove them from the Server and destroy them without prior notification.
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Article 19.DISPUTES AND APPLICABLE LAW
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19.1 The Dutch law applies to the legal relationship between SpinPanel and Customer.
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19.2 Any disputes between the Parties are to be submitted to a Competent Court in the Gelderland judicial district. Parties can jointly choose to resolve a dispute by means of arbitration or mediation.
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Article 20.OTHER PROVISIONS
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20.1 The validity of the entire Cloud Conditions will not be affected when any stipulation of these Cloud Conditions seems to be invalid. In that case, the Parties will replace it with (a) new stipulation(s), where, as much as legally possible, the meaning of the original Cloud Condition(s) must be followed.
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20.2 If SpinPanel, based on a request or an authorized order by a government agency or in respect of a legal obligation, has to perform any operations with regard to the data of Customer, its employees or Users, then any associated costs will be charged to Customer, unless the cause of this investigation lies with SpinPanel. To the extent possible, SpinPanel will inform Customer about this beforehand.
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20.3 The version of any communication received or stored by SpinPanel is considered authentic (including log files), except for contrary evidence to be provided by Customer.
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20.4 Parties will always inform each other in advance and in writing of any changes in name, postal address, e-mail address, telephone number and, if requested, bank account details.
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20.5 Parties are not entitled to transfer the rights and obligations from these Cloud Conditions to a third party without the written consent of the other Party. The other Party will not refuse this consent without reasonable grounds; however, the other Party is entitled to attach rea-sonable terms and conditions to granting this consent.
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