Article 1 - General
Both the use of the BrandManagement Software by Licensee and all related Services offered by Brandware to Licensee are governed by the Agreement, the General Terms, the Tariff Rate card, the Hosting and Security Policy and any documents incorporated by reference in any of these. When Brandware uses the term Agreement, Brandware is referring collectively to all of them, and to any other documents that may be incorporated by reference in any of them.
Article 2 - Acceptance of Agreement
The individual who accepts the Agreement on behalf of Licensee represents that he or she has authority to bind Licensee to the Agreement.
Article 3 - Subcontractors
Brandware uses third party service providers to perform all or any part of the Services. Brandware remains responsible to Licensee for Services performed by this third party service providers to the same extent as if Brandware performed the Services itself.
Article 4 - Services
During the term of the Agreement Brandware offers Licensee services ("Services") for maintenance ("Maintenance"), support ("Support"), Consulting ("Consulting"), hosting ("Hosting") and documentation ("Documentation") in accordance with the Agreement.
Article 5 - Support
Licensee can contact the service desk of Brandware ("Service Desk") during business days (Business Days) between 09:00 and 17:30 CET ("Business hours") at the telephone number +31 20 7079984. Business Days are all calendar days, except weekends and official Dutch public holidays. Licensee can send 24/7 an email to the Service Desk. If Licensee sends an email outside Business hours, the email is received by Brandware at 9:00 AM CET the next Business Day.
Article 6 - Documentation
All Documentation regarding the functionality and/or use of the BrandManagement Software is available on the website of Brandware. The Documentation will be provided free of any charge. The Documentation will be provided in electronic format only.
Article 7 - Maintenance
Maintenance includes both new features (Feature Release) and bugfixes (Bugfix Release) of the BrandManagement Software:
- A Feature Release meaning a new version of the the BrandManagement Software consisting of an improvement to the existing the BrandManagement Software through added functionality and/or enhanced performance;
- A Bugfix Release meaning a new version of the the BrandManagement Software consisting of error fixes, compatibility updates to maintain compliance with specifications, and standards compatibility updates to interoperate with specific standards.
Article 8 - Hosting
Hosting includes all Services for the installation and hosting of the BrandManagement Software on hard- and software that is controlled and maintained by Brandware. The Hosting Terms are applicable for all Licensees that agree to use the Hosting Services of Brandware.
Article 9 - Consultancy
Consulting includes all Services that are not Support, Maintenance, Hosting or Documentation, like:
- Services for the modification of the BrandManagement Software and other specific requirements of Licensee to use the BrandManagement Software;
- Services for training of Users of the BrandManagement Software.
Article 10 - PortalManager
Licensee needs to appoint at least one employee as the PortalManager of the BrandPortal. The PortalManager is responsible for the operation of the BrandPortal within the organization of Licensee. Licensee is able to appoint one or more additional PortalManagers and/or BrandManagers.
Article 11 - Maintenance Documentation
Brandware shall completely or partially adapt, revise or replace the Documentation periodically if such should be reasonably necessitated by the provision of Bugfix Releases and Feature Releases.
Article 12 - Service Request
A request for Service ("Service Request") is submitted by the Licensee by email or phone to the Service Desk. After receiving the Service Request, Brandware will send a confirmation of the Service Request (Confirmation) to Licensee within a time frame of a maximum of 4 hours after receiving the Service Request. A copy of this Confirmation will be sent to the PortalManager. The confirmation of the Service Request will include:
- Service Request number
- Short description of the Service Request
- Person the requested the Service
- Time of receiving the Service Request by Brandware
- Information required of the BrandManagement Software (if applicable)
- Indication of response time ("Response Time")
Article 13 - Failure of the BrandManagement Software
In any case of a failure of the BrandManagement Software to comply with the agreed functions, properties or specifications ("Specifications") in the sense that the failure obstructs or inhibits the proper use of the BrandManagement Software ("Issue"), Brandware shall detect and eliminate the Issue in accordance with this General Terms.
Article 14 - Response Time
The Response Time to a Service Request shall be as follows:
- For a high-priority Problem, i.e. the BrandManagement Software or a significant part thereof does not function at all, as a result of which the Licensee's business operations supported by the BrandManagement Software cannot be continued: within 8 Business hours;
- For a medium-priority Problem, i.e. the BrandManagement Software or a significant part thereof displays a serious loss of functionality, but can still be used to some extent, as a result of which Licensee's business operations supported by the BrandManagement Software are considerably impeded but can be continued with the use of extra manpower, measures and/or means: maximal 7 Business days;
- For a low-priority Problem, i.e. the BrandManagement Software or a significant part thereof displays inhibitive shortcomings, but can still be used, and Licensee's business operations supported by the BrandManagement Software can be continued as such: Next Bugfix/Feature Release;
- For Consulting: to be scheduled by Brandware after receipt of the approval of the Consulting by the PortalManager.?
The above Response Time starts at the time Brandware received all necessary information of the BrandManagement Software from Licensee.
Article 15 - Fees
A Service Request for Support, Documentation and/or Maintenance is fulfilled without additional charge. A Service Request for Consulting is fulfilled for the agreed Consulting fee (Consulting Fee). Fees are charged in time units of 15 minutes with a minimum of 30 minutes per Service Request.
Article 16 - Approval of Consultancy
All Service Requests, that require more than 2 hours Consulting to fulfill, need to be approved by the PortalManager. Without an approval of the Service Request by the PortalManager Brandware will not start with the fulfillment of the Service Request.
Article 17 - Problems caused by Brandware
Problems caused by Brandware will be remedied by Brandware as soon as possible according to the agreed Response Time. If Brandware demonstrates that the Problem cannot be remedied as soon as possible, Brandware shall be entitled to incorporate temporary, problem-avoiding restrictions in the BrandManagement Software, or provide temporary solutions to Problems in the form of a program bypass in order to circumvent the Problem in question. These restrictions or program bypasses shall affect the functions of the BrandManagement Software as little as possible.
Article 18 - Problems not caused by Brandware
Licensee shall not be entitled to exercise any rights to Services if a Problem does not concern any of the guaranteed Specifications or if an Problem is attributable to a cause not imputable to Brandware, such as erroneous information from the Licensee, improper use of the BrandManagement Software, faults in other hardware and/or software products, any modifications Licensee has made to the BrandManagement Software without Brandware's prior written permission, or to any other circumstances that are or should be at the Licensee's expense and risk. In that event, Problems shall be remedied by Brandware at Licensee's expense on the basis of subsequent calculation at the rates applicable for Consulting.
Article 19 - Onsite Services
If necessary, Brandware provides Services on the site(s) of Licensee. The minimum of Consulting on the site(s) of Licensee at one event is 3 consecutive hours excluding travel time. Travel expenses are charged at EUR 0,30 per kilometer.
Article 20 - Feature Release
Brandware shall undertake to adequately examine the possibility of improving the quality of the BrandManagement Software and make new Feature Releases available to Licensee. Brandware shall inform Licensee as soon as possible about a new Feature Release and research into a new Feature Release, as well as about the content and consequences thereof. Feature Releases will be developed and released by Brandware in its sole discretion.
Article 21 - Installation
Licensee has the right to use a perpetual, non-exclusive Brand Portal Software license for installation on your own server computer ("Installation Copy"). Licensee is responsible for all costs related to the purchase of the required hard- and software and the installation and maintenance of the hard- and software.
Article 22 - Installation services
Licensee has during the term of the agreement the right to services. Licensee is not required to install a Feature Release or a Bugfix Release. Brandware, however, only provides services related to the latest Release and the two preceding Releases. If Licensee let install a Release by Brandware, the terms, such as procedures for Consultancy, apply to them.
Article 23 - Hosting
Unless otherwise agreed, the Hosting of the BrandManagement Software takes place on a server managed by Brandware cloud hosting ("production Server") in a secure data center ("Production Data Center") that uses a firewall and other advanced technology. Physical access to the Production Data Center is protected to the highest standards. Brandware uses cloud hosting whereby data is replicated at all times to multiple secure data centers to minimize any interruption. In addition, Brandware ensures a continuously copy of the BrandManagement Software is hosted on a server ("Backup Server") in another secure data center ("Backup Data Center").
Article 24 - Data
Licensee stores during the use of the BrandManagement Software and through Hosting information, data and other materials ("Data") on the BrandManagement Software ("BrandManagement Software") and a file directory ("File Directory") who just like the BrandManagement Software are hosted by Brandware.
Article 25 - Hosting Maintenance
Brandware is responsible for the maintenance of the BrandManagement Software, the File Directory, the Server and other used soft- and hardware. Brandware has the right to interrupt the Hosting without prior consent of the licensee, if this pause if necessary for the maintenance of the BrandManagement Software and/or other soft- and hardware. Each break is scheduled, if possible, on weekends or weekdays between 18:00 and 08:00 CET. Brandware will inform licensee at least 7 days before the scheduled maintenance.
Article 26 - Security
Brandware takes adequate measures to protect the Data from unauthorized use by third parties. The information regarding these measures is available to licensee in the hosting & security policy of Brandware ("Hosting & Security Policy").
Article 27 - Backup of Data
Brandware guarantees one backup ("Backup") of the Data each day. Brandware permanently archives the Backup on backup servers ("Backup Server") in another Datacenter. A daily Backup is archived by Brandware during 1 month. A weekly Backup is archived by Brandware for 6 months and a monthly Backup is archived for one year.
Article 28 - Copy of Backup
Licensee is able to request a copy of a Backup of the Data ("Backup Copy") anytime for storage on its own server or other data storage devices. Brandware guarantees that the Backup Copy is available in a standard readable data format. The actual fee for a Backup Copy is available at the Service Desk.
Article 29 - Data Encryption
The BrandManagement Software provides licensee the ability to encrypt Data during transmission, both to and from the Servers as during storage. Brandware is not responsible for damage resulting from the unauthorized use of Data that is not encrypted when using the BrandManagement Software.
Article 30 - Limitations to Hosting and License
The maximum disk space for Data storage ("Storage"), Data traffic ("Traffic"), amount of users ("Users") is limited in the Agreement. If the amount of Storage/Traffic/Users required by Licensee exceeds the limit Licensee will be charged the then-current fees for Hosting and/or License.
Article 31 - Loss of Data
Brandware shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure of the Data by Licensee.
Article 32 - Ownership of Data
Licensee is the sole owner of the Data. Licensee shall have sole responsibility for the accuracy, integrity, legality, and intellectual property right of the Data.
Article 33 - Interruptions Hosting
The Hosting may be subject to limitations, delays, and other problems inherent to the use of the Internet and electronic communications. Brandware is not responsible for any delays, delivery failures, or other damage resulting from such problems.
Article 34 - Data after termination Services
Brandware will delete all Data of Licensee 90 days after the termination of the Agreement.
Article 35 - User management
Brandware provides the PortalManager of Licensee with a unique user account ("User Account") and password ("Password"). The PortalManager is able to provide other users ("User") the User Accounts and Passwords. Licensee is solely responsible for the use and maintenance of these User Accounts and Passwords.
Article 36 - Confidentiality
Brandware agrees to treat as strictly confidential and shall not divulge, directly or indirectly, to any other person, for any purpose whatsoever, any confidential information Brandware receives from Licensee. Brandware shall not make use of or copy such confidential information, except for the purpose of this Agreement.
Article 37 - Escrow
Brandware has an escrow policy ("Escrow"). The source code of the BrandManagement Software and Documentation are owned by another legal entity ("Owner") than Brandware. Should a situation arise in which Brandware would no longer be in a position to provide the Services, the Owner guarantees the availability of both the BrandManagement Software and the Documentation for all Licensees. The Escrow is available for Licensee at the offices of Brandware.
Article 38 - Invoices
Brandware will charge Licensee the fixed and variable Fees, as described in the Agreement, as follows:
- Fixed Fees, such as License Fees, in the month before or on the first day of each new License period;
- Variable Fees, such as Fees for Consulting and Hosting, on or around the date the Services incurred, or on or around the first day of the new month or quarter that follows on date the Services incurred, at Brandware option.
Article 39 - Termination Services by Brandware
Brandware may terminate the Agreement on written notice if:
Brandware discovers that the information Licensee provided to Brandware about the proposed use of the BrandManagement Software and Services was materially inaccurate or incomplete;
- Brandware determines, in reasonable discretion, that there is evidence of fraud or unlawful activities in connection with the use of the BrandManagement Software and Services by Licensee;
- Licensee fails to comply with any provision of the Agreement and does not remedy the failure within thirty (30) days of Brandware notice to Licensee describing the failure.
Article 40 - Termination Services by Licensee
Licensee may terminate the Agreement on written notice if Brandware materially fails to provide the BrandManagement Software and/or Services as agreed and does not remedy that failure within thirty (30) days of Licensee written notice describing the failure.
Article 41 - Force Majeure
Brandware will not be in violation of the Agreement if the failure to perform the obligation is due to an event beyond control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
Article 42 - Warranties
Brandware warrants that the BrandManagement Software will perform in accordance with the specifications as described in the Documentation. Brandware does not warrant that the operations of the BrandManagement Software will be uninterrupted or error-free. Brandware warrants that it has the right to license the BrandManagement Software under this Agreement and that the BrandManagement Software and/or any Bugfix Releases and/or any Feature Releases will not infringe upon the intellectual property rights of third parties.
Article 43 - Liability
The entire liability of Brandware for any breach of the foregoing limited warranties will be refund of the License & Maintenance Fees paid by Licensee in the year prior to the breach. In no event shall Brandware or any of its licensors and/or subcontractors be liable for any direct or indirect losses or damages of any nature resulting from, arising out of or in connection with the use of, or inability to use the BrandManagement Software, except in cases of gross negligence or wilful misconduct on the part of Brandware.
Article 44 - Increase of Fees
Brandware has the right to adjust the Fees once a year in accordance to the applicable annual inflation correction percentage of the CBS of the Netherlands. Brandware will notify Licensee at least 3 months in advance of the Fee adjustment.
Article 45 - Compliance
Licensee is solely responsible for compliance with all applicable laws, treaties and regulations in connection with the use of the BrandManagement Software, including those related to data privacy, international communications and the transmission of personal data.
Article 46 - Rights to Services
After termination of the Agreement in accordance with the Agreement and/or if Licensee fails to pay any Fee within 60 days after receiving an invoice, Licensee's right to Services is ended.
Article 47 - Jurisdiction
The Agreement between Brandware and Licensee is subject to Dutch Law. Disputes will be adjudicated exclusively by the court with jurisdiction in Amsterdam, The Netherlands.