1.1 This Agreement sets forth the terms upon which Fenestrae provides Customer with the Service that Customer purchased directly from Fenestrae or from a Fenestrae authorized reseller.
1.2 Additions to or deviations from this Agreement shall only apply where agreed in writing between the parties.
1.3 The applicability of any of Customer’s purchasing or other conditions is expressly rejected.
2.1 Agreement means this online services agreement, the Service Level Agreement and, if applicable, any Order Document.
2.2 Customer means the legal entity that ordered the Service and is registered as such in the customer administration systems of Fenestrae.
2.3 Customer Data means any data, information or materials provided or submitted by Customer to Fenestrae in the course of using the Service.
2.4 Documentation means all Fenestrae's standard user documentation, in electronic format, which may be delivered to Customer under the Agreement.
2.5 Order Document means, if applicable, the initial order document for the Service and any subsequent order documents, whether submitted in writing or by electronic means, specifying amongst other things the number of licenses and other services contracted for, the applicable fees and the license period(s) (as applicable).
2.6 Production Use means use of the Service solely to operate Customer's ordinary business for the benefit of its Users.
2.7 Service means the remote access to and availability of the Technology via the internet or another network, as well as the automatic processing of Customer Data using the Technology.
2.8 Service Level Agreement means the document updated from time to time by Fenestrae that sets out the service levels applicable to the Service, the current version of which is available at www.UDOCX.com.
2.9 Technology means all of Fenestrae's proprietary technology, including but not limited to the fax server Technology and unified communications solutions and associated algorithms, user interfaces, know-how, techniques, designs, look and feel and Documentation developed, operated and maintained by Fenestrae, and made available by Fenestrae to Customer in providing the Service.
2.10 Users means Customer's employees who are authorized to use the Service and have been supplied by Customer (or by Fenestrae at Customer's request) with user access and identification codes.
3 Service; grant of license
3.1 Subject to the terms and conditions of the Agreement and subject to full payment of the related fees, Fenestrae provides Customer with the Service and grants Customer a non-exclusive, non-transferable, non-sublicensable periodic license to use the Service and the Technology for Production use by its Users. Any further use is solely permitted if expressly agreed upon in writing by Fenestrae.
3.2 Customer shall not make the Service and the Technology available to any third party, make derivative works based upon the Technology, or commercially exploit the Service.
3.3 Customer is responsible for use of the Service by its Users, regardless of whether or not there is (still) a relationship of authority between Customer and these Users. Customer shall ensure that use of the Service shall at all times comply with applicable laws and regulations, including without limitation those related to data privacy and electronic communications.
3.4 The Service and Technology may not be used in the course of operating power stations, mass transportation systems or for any direct medical systems.
3.5 Customer is responsible for the manner in which the results obtained through the use of the Service are used. Fenestrae is not responsible for checking the accuracy and completeness of the results of the Service. Customer itself shall regularly check the results of the Service.
3.6 Fenestrae is permitted to install technical provisions for the purpose of protecting the Service and the Technology in relation to an agreed restriction of the right to use the Service and the Technology. Customer shall under no circumstances be permitted to circumvent such technical provisions or to arrange for this to be carried out.
3.7 Customer shall ensure that the Users treat the access and identification codes necessary to access and use the Service as confidential and with due care and shall ensure that these codes are only supplied to authorised employees. Fenestrae is entitled to change the access or identification codes assigned to Users. Customer shall notify Fenestrae immediately of any unauthorized use of any access and identification codes or any other known or suspected breach of security. Fenestrae is under no circumstances liable for any damage or costs arising from the use or misuse of access or identification codes, except where misuse was possible as a result of an act or omission on the part of Fenestrae.
3.8 Fenestrae is not obliged to have a backup centre or other backup facilities. It is Customer's own responsibility to make backups of or otherwise secure its Customer Data.
4 Provision of the Service
4.1 Fenestrae shall make every effort to ensure that the Service is provided with due care and in accordance with the Service Level Agreement.
4.2 If Fenestrae carries out work relating to the Customer Data pursuant to a request or an authorised order from a government agency or in connection with a statutory obligation, Customer shall be invoiced for all of the associated costs.
4.3 Fenestrae may continue to provide the Service using a new or amended version of the Technology. Fenestrae is not be obliged to maintain, change or add certain features or functionalities of the Service or the Technology specifically for the Customer.
4.4 Fenestrae may (temporarily) suspend the Service in full or in part without liability: (a) for the purpose of carrying out preventive, corrective or adaptive maintenance, in which event Fenestrae shall not suspend the Service for longer than necessary and shall arrange for this to take place outside of office hours where possible and, according to the circumstances, upon advance notice to Customer; (b) if Fenestrae reasonably believes that the Service is being used (or has been or will be used) in violation of the Agreement; (c) if Fenestrae discovers that Customer has used similar services abusively in the past; (d) if Customer doesn't cooperate with Fenestrae's reasonable investigation of any suspected violation of the Agreement; (e) if Fenestrae reasonably believes that the Service has been accessed or manipulated by a third party without Customer's consent; (f) if Fenestrae reasonably believes that suspension of the Service is necessary to protect its network or Fenestrae's other customers; (g) if a payment for the Service is overdue; or (h) if suspension is required by law.
4.5 Fenestrae shall give Customer reasonable advance notice of a suspension under the preceding Clause and a chance to cure the grounds on which the suspension is based, unless Fenestrae determines, in its reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary.
4.6 Any periods of decommissioning announced in advance due to maintenance work or to circumstances outside of Fenestrae's sphere of influence, including without limitation the circumstances set out in Clause 4.4, will not be taken into account when assessing availability of the Service. The assessment will be based on the Service as a whole during the term of the Agreement. Barring proof to the contrary, the availability and service level measured by Fenestrae shall be conclusive evidence.
4.7 The service is limited to fair usage and legitimate use only. Not considered to be legitimate use are the following non-exhaustive practices of using the service for professional mailrooms, re-selling services, sharing subscriptions between multiple devices or connect automated input processes to the service.
Optical Character Recognition and Form Recognition are subject to a fair usage limit of 250 pages per license per month. Once the limit has been reached, this service can be switched off. Extending limits can be acquired against additional costs.
5 Intellectual property rights
5.1 All intellectual property rights and similar rights to the Service and the Technology made available to Customer on the basis of the Agreement shall remain exclusively vested in Fenestrae and/or its licensors. Customer shall only acquire those rights of use that are explicitly granted in the Agreement. Any rights of use granted to Customer are non-exclusive, non-transferable and non-sublicensable.
6 Limited warranty and liability
6.1 The Service and the Technology are provided "as is", without any warranties. Fenestrae expressly does not warrant that the Service is free of defects and will at all times be provided without interruptions. Fenestrae shall endeavour to fix any defects within a reasonable period of time, but expressly does not warrant that defects will be fixed. Fenestrae does not warrant either that the Service will be adapted according to changes in relevant laws and regulations in a timely manner.
6.2 To the maximum extent allowed by law, Fenestrae (also for the benefit of its licensors) excludes liability for all damages, including but not limited to any loss of profit, loss of savings, reduced goodwill, loss due to business interruption and loss as a result of claims from Customer's own customers, as well as any other indirect or consequential damages, arising out of or related to the use of or inability to use the Service or the Technology, even if Fenestrae has been advised of the possibility of such damages. Fenestrae's liability due to the scrambling, destruction or loss of Customer Data is also expressly excluded.
6.3 If, in deviation of the preceding Clause, Fenestrae is held liable, whether in contract, tort, or otherwise, Fenestrae's liability to Customer will in no event exceed the total amount of the fees payable for the Service for the respective contract period.
6.4 A condition for the existence of any right to compensation shall in all cases be that Customer notifies Fenestrae in writing of the damage as soon as possible after it occurs. Any claims for damages against Fenestrae shall expire by the mere passage of twenty four months from the date on which the claim arose.
7 Processing of Customer Data
7.1 All Customer Data submitted by or on behalf of Customer to the Service shall remain the sole property of Customer or its licensors.
7.2 The Customer Data may contain personal data (persoonsgegevens) within the meaning of the Dutch Data Protection Act (Wet bescherming persoonsgegevens). With regard to the processing of such personal data, Fenestrae is generally to be considered the data processor (bewerker) under the Dutch Data Protection Act, at least in as far is it concerns Customer Data submitted to the Service by or on behalf of Customer for automatic processing purposes.
7.3 Responsibility for the Customer Data processed using the Service shall rest solely with Customer. Customer guarantees to Fenestrae that the content, the use and/or the processing of the Customer Data is not unlawful and does not infringe the rights of third parties. Customer indemnifies Fenestrae against legal claims, of whatever nature, by thirds parties in relation to the Customer Data submitted to the Service. For avoidance of doubt, individuals whose personal data is recorded or processed within the context of the processing of the Customer Data, are also considered third parties in the meaning of this Clause.
7.4 Fenestrae will solely process Customer Data in accordance with the instructions of Customer under the terms of this Agreement and will implement adequate security measures, having regard to the state of the art, the sensitivity of the data and the costs associated with the implementation of the security measures. It is Customer's responsibility to inform Fenestrae of the sensitivity of the data. If more security measures than average result to be necessary, Fenestrae may charge an additional fee for such measures.
7.5 In as far as necessary and technically possible Fenestrae will assist Customer in meeting its (statutory) obligations vis-à-vis third parties with regard to the Customer Data. Fenestrae may charge an additional fee for such assistance.
7.6 With regard to certain Customer Data, Fenestrae may be considered the data controller (verantwoordelijke) under the Dutch Data Protection Act. An example is correspondence between Fenestrae and Customer and a contact person within the Customer’s organisation. Fenestrae will process such personal data in accordance with the Dutch Data Protection Act.
8.1 Both of the parties shall only be authorized to terminate the Agreement as a result of an attributable failure to perform the Agreement, if the other party, in all cases following written notice of default providing as many details as possible and setting a reasonable term in which the breach can be remedied, attributably fails to meet its fundamental obligations arising from the Agreement. Customer's obligations to obey the restrictions on its rights of use shall in all cases be regarded as fundamental obligations arising from the Agreement.
8.2 If Customer has already received the Service for the purpose of executing the Agreement at the time of termination as referred to in the preceding Clause, the Service and the related payment obligation, if any, cannot be revoked unless Customer is able to demonstrate that Fenestrae is in default in respect of a substantial part of the Service. Any amounts invoiced before termination in connection with the Service, shall remain due in full, subject to due observance of the provisions of the preceding sentence, and shall become immediately due and payable at the time of termination.
8.3 Either of the parties shall be entitled to terminate the Agreement in part or in full, with immediate effect, in writing without notice of default if the other party is granted a moratorium of payments, provisionally or otherwise, if a winding-up petition is filed in respect of the other party, or if the other party’s company is wound up or terminated for reasons other than reconstruction or the merger of companies. Fenestrae shall under no circumstances be obliged to reimburse any sums of money that have already been received or to pay any compensation in the event of such termination.
8.4 Upon termination or expiration of the Agreement Customer must cease all use of the Service and the Technology and shall remove and destroy all copies of the Documentation.
8.5 Upon termination or expiration of the Agreement other than reason of Customer's attributable failure to perform the Agreement, Fenestrae will make available to Customer or to any third party designated by Customer a file of the Customer Data within 30 days of termination if Customer so requests at the time of notification of termination. In such event, Fenestrae shall not be obliged to carry out data conversion. In any other event of termination, Fenestrae shall have no obligation to maintain any Customer Data or to forward any Customer Data to Customer or any third party designated by Customer.
8.6 Any provision of the Agreement that is by nature intended to survive the termination or expiration of the Agreement, shall remain in full force and effect after any such termination or expiration.
9 Applicable law and disputes
9.1 All Agreements between Fenestrae and Customer are governed by the laws of the Netherlands. The applicability of the Convention of Contracts for the International Sale of Goods 1980 (CISG) is expressly excluded.
9.2 Any dispute arising between Customer and Fenestrae in connection with an Agreement concluded between Customer and Fenestrae shall be brought to the competent court in The Hague, the Netherlands.
10.1 Customer shall not be entitled to sell and/or transfer the rights and/or obligations arising from the Agreement to a third party without Fenestrae's prior written approval. Fenestrae shall be entitled to sell and/or transfer the rights and/or obligations arising from the Agreement to a third party without Customer's prior written approval, but only in the context of an acquisition (assets or shares), reconstruction, merger or demerger.
10.2 Customer agreed to comply with all European Union and foreign export control laws or regulations applicable to the Service. Customer shall promptly notify Fenestrae of any export restrictions that may apply to Customer. The Service provides technology that may be subject to export controls regulations. Customer acknowledges and agrees that the Service shall not be used in or by, and none of the underlying information or technology may be transferred or otherwise exported or re-exported to any embargoed country or a national or resident thereof. Country embargoes are subject to change without notice. By using the Service, Customer warrants that it and its Users are not located in, under the control of, or a national or resident of an embargoed country. Customer agreed to comply strictly with all applicable export laws and assumes sole responsibility for obtaining licenses to export or re-export as may be required.
10.3 If any provision of this Agreement is null and void or is voided, the other provisions of this Agreement will remain fully in effect. In this case, Fenestrae and Customer will consult with one another to agree new provisions to replace the void or voided ones. In doing so, the purpose and meaning of the void or voided provision will be taken into account as far as possible.
1 July 2016