Article 1 – Definitions
|"Agreement”||means the agreement between Priva and the Client, consisting of the Order Form and any attachments thereto, including the General Terms and Conditions.|
|“Client”||means the customer stated in the Order Form.|
|“Confidential information”||means all information disclosed by or behalf of a party (in whatever medium including in written, oral, visual or electronic form and whether before or after the date of this agreement) including all business, financial, commercial, technical, operational, organisational, legal, management and marketing information which is either marked as being confidential or which would reasonably be deemed to be confidential in the ordinary course of business.|
|“Effective Date”||means the date the Order Form is signed or otherwise ordered by the Client through Priva’s online purchase environment, insofar available.|
|“General Terms and Conditions”
||means these general terms and conditions for Horticulture Services.|
||means the online horticulture services, as made available by Priva via its websites and applications, structured and designed to enable the Client to monitor and control selected parts of his business operations.|
|“Initial Term”||means the number of years specified in the Order Form, commencing from (i) the date that the Client is provided with the user names and passwords necessary to activate the Horticulture Services or (ii) two weeks after the Effective Date, whichever occurs first.|
|“Order Form”||means the order form pursuant whereto Priva will provide to the Client and the Client will take from Priva the Horticulture Services in accordance with the terms of the Agreement.|
|"Priva”||means Priva B.V, a private company with limited liability having its official seat and office at Zijlweg 3 in De Lier, the Netherlands.|
||means Priva's IT systems (which includes any soft- or hardware provided by third party providers) that are used to run the Horticulture.|
Article 2 – Applicability
2.1 These General Terms and Conditions for the Horticulture Services shall apply to and are expressly incorporated into the Agreement and all subsequent agreements entered into between Priva and the Client in connection with the Horticulture Services.
2.2 The applicability of the Client’s general terms and conditions is hereby expressly excluded.
Article 3 – The Horticulture Services
3.1 The Client is granted a non-exclusive and non-transferable right to use the Horticulture Services as selected in the Order Form for monitoring and managing selected parts of its business operations including, as the case may be, alarms & notifications, reporting, planning and messaging purposes.
3.2 The Client is responsible for:
(i) Implementing and adhering to Priva's instructions, manuals and documentation related to the Horticulture Services;
(ii) ensuring that it has suitable and properly functioning hardware (including IT, computers and mobile devices), software and internet access to the Horticulture Services of sufficient capacity (together "IT Infrastructure");
(iii) the transmission of any data between its IT Infrastructure and the Priva Platform; and
(iv) the correct configuration of the Horticulture Services and Client's IT Infrastructure, including the interoperability of both.
3.3 The Client shall not:
(i) Use the Horticulture Services to provide similar services to third parties; and
(ii) Otherwise mis- or abuse the Horticulture Services or Priva Platform.
3.4 Unless specifically stated otherwise under these General Terms and Conditions, the Horticulture Services will be provided without any warranties, including any warranties related to availability of the Horticulture Services, errors and bug fixes, added functionalities, service requests and interoperability.
3.5 Moreover, Client acknowledges and agrees that Priva cannot warrant that the Client will be able to successfully use the Horticulture Services for the intended use, that it will be available on a continuous basis nor with consistent levels of quality and connectivity, due to the fact that such use depends partly on circumstances beyond Priva’s reasonable control, including those circumstances for which the Client will be responsible pursuant to this Article 3.
3.6 Priva has a right to change the Horticulture Services, including their look, feel, functionalities and interoperability with IT Infrastructure.
3.7 Priva has the right to suspend (wholly or in part) the provision of Horticulture Services to Client if, to Priva's reasonable judgement, Client violates any of the obligations in this Agreement.
Article 4 – User names and passwords
4.1 Priva shall provide the Client with the necessary access data, such as account names, user names and passwords. For security reasons, the Client must ensure that the passwords are changed immediately after Priva provided the such passwords and/or after having accessed the Horticulture Services for the first time. Client has the responsibility to keep all access data (including usernames and passwords) confidential.
4.2 The Client is responsible and liable for any use of the Horticulture Services, if any user obtained access to such service via the Client’s access data, even if the Client did not consent to or was unaware of such use.
4.3 The Client will not allow any third party to use or access the Horticulture Services unless with Priva's prior written consent.
4.4 The Client will ensure that, unless specifically stated otherwise, account details (including usernames and passwords) and any individual use of the Horticulture Services through such account is restricted to one specific individual only, and eg. not shared among other individuals.
Article 5 – Fees and Payment
5.1 The Client will pay Priva for the provision of the Horticulture Services in accordance with the charges set out in the Order Form. The charges are exclusive of VAT, and must be paid within 30 days after receipt of the invoice for the Horticulture Services, or as otherwise stated in such invoice.
5.2 The charges are fixed for the Initial Term and may be adjusted by Priva thereafter per the first day of each additional period of one year, provided that Priva has given the Client at least four (4) months prior notice.
5.3 The charges will be due annually in advance, or as otherwise stated in Agreement. If Client fails to make a timely payment under this Agreement:
(i) the Client shall be in breach of this Agreement, without any notice of default being required and all of Priva’s claims against the Client shall become immediately due and payable;
(ii) the Client shall be obliged to pay the statutory interest rate for commercial debts on the outstanding amount and all judicial and extra-judicial costs incurred by Priva relating to the recovery and collection of any overdue amount;
(iii) Priva reserves the right to suspend the Client’s access to and use of the Horticulture Services until all outstanding amounts (including interest and costs) are settled; and
(iv) the costs of suspending and reactivating shall be borne by the Client.
5.4 All payments to be made by the Client must be effected without set-off or suspension.
Article 6 – Liability and indemnification
6. Subject to article 6.3, in no event, whether in contract, tort (including in either case negligence), misrepresentation (other than fraudulent misrepresentation), breach of statutory duty or otherwise pursuant to the Agreement, Priva shall be liable for any loss of profits, anticipated savings, revenue, business, loss or corruption of data, loss of use, loss of goodwill, loss due to delay or any indirect or consequential loss or damage whatsoever.
6.2 Subject to articles 6.1 and 6.3, Priva’s aggregate liability, whether in contract, tort (including in either case negligence), misrepresentation (other than fraudulent misrepresentation), breach of statutory duty or otherwise pursuant to the Agreement, shall be limited to the net price paid or to be paid by the Client in the twelve (12) months preceding the date that the loss or damage occurred.
6.3 Nothing in the Agreement shall be deemed to exclude or limit Priva’s liability in respect of:
(i) Loss or damage caused by wilful intent or gross negligence of Priva or Priva’s officers, employees, agents or contractors; or
(ii) Injuries to or death of any person, caused by Priva or Priva’s officers, employees, agents or contractors.
6.4 Any claim for loss or damages must be notified to Priva within four (4) months as from the date on which the damage was caused, failing which such claim is deemed to be waived.
6.5 Client shall defend, indemnify and hold harmless Priva against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Client's use of the Horticulture Services.
Article 7 – Data Protection
7.1 The parties will observe all provisions of the relevant data protection laws and regulations, insofar as the violation of such provisions affects the interests of the other party. Both parties will implement appropriate technical and organisations measures to protect the personal data described under this Article 7, which includes appropriate confidentiality agreements with employees and contractors.
7.2 Priva will collect, process, store and use personal data to the extent that such is necessary for fulfilling its obligations and exercising its rights under this Agreement, and for the purpose of obtaining aggregated statistics related to the use of the Horticulture Services. The Client agrees that Priva may make the data available to subcontractors.
7.3 Client shall inform its employees and all the persons who will use the Horticulture Services provided to Client or who's data may be processed through the Horticulture Services ("Data Subjects") about the type of data which will be processed, of the purposes and duration of the processing and whether the data will be transmitted to third parties for the purpose of providing the Horticulture Services. Moreover the Client shall inform these Data Subjects about their rights regarding the data processed.
7.4 The Client warrants that it holds the written consent from these Data Subjects insofar required by law. The Client shall present the relevant consent to Priva on request.
Article 8 – Intellectual Property
8.1 Priva retains all intellectual property rights vested in the Horticulture Services and the Client shall not at any time acquire any rights, title or interest in these intellectual property rights by virtue of any use that the Client may make thereof pursuant to the Agreement.
8.2 The Client will not at any time contest Priva’s ownership of the intellectual property rights, nor assist anyone else to do so, nor do anything that would jeopardize or diminish Priva’s rights to the Horticulture Services or the value of the intellectual property rights vested therein.
Article 9 – Confidentiality
9.1 The receiving party of Confidential Information shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the disclosing party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the disclosing party in writing, to limit access to Confidential Information of the disclosing party to those of its employees, affiliates, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the receiving party containing protections no less stringent than those herein.
9.2 If this Agreement is terminated, the receiving party shall promptly return or destroy at the request of the disclosing party all Confidential Information of the disclosing party.
9.3 The receiving party may disclose Confidential Information of the disclosing party if it is required by law or regulations to do so, provided the receiving party gives the disclosing party prior notice of such disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party's cost, if the disclosing party wishes to contest the disclosure.
9.4. The terms and conditions of this Agreement are confidential and may not be disclosed by either party without the prior consent of the other party.
Article 10 – Term and Termination
10.1 The Agreement commences on the Effective Date and shall expire after the Initial Term. Following the Initial Term, the Agreement shall automatically renew for consecutive additional periods of one (1) year each, unless either party gives the other party written notice of its intention not to renew at least three (3) months prior to the date on which the Agreement would otherwise renew.
10.2 Each party may, without prejudice to any of its other rights arising hereunder, upon giving written notice to the other party, terminate the Agreement with immediate effect, if:
(i) the other party commits a material breach of the Agreement, which breach is not cured within 30 (thirty) days after written notice of the breach;
(ii) the other party has been granted provisional suspension of payment or is declared bankrupt or a resolution is passed or a petition is presented for the winding-up of the other party, such party has called a meeting of or has entered into or has proposed to enter into an arrangement, scheme of composition with creditors.
(iii) a situation of force majeure has lasted for more than sixty days.
Article 11 – Miscellaneous
11.1 This Agreement constitutes the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
11.2 Neither party may assign, sub-contract, transfer or dispose of any of its rights and obligations under the Agreement, either in whole or in part, without the prior written consent of the other party, provided that Priva may assign, sub-contract, transfer or dispose of any of its rights and obligations under the Agreement, either in whole or in part, to any of its affiliates without the Client’s prior consent.
11.3 The invalidity or unenforceability of any provision of the Agreement shall not affect the validity or enforceability of the remainder of the Agreement and the parties shall use all reasonable endeavours to agree within a reasonable time upon any lawful and reasonable variations to the Agreement which may be necessary in order to achieve, to the greatest extent possible, the same effect as would have been achieved by the invalid or unenforceable provision.
11.4 No amendment to the Agreement is valid or binding, unless made in writing (subject to Priva's right pursuant to article 11.5).
11.5 Priva is entitled to amend these General Terms and Conditions, which amendments shall apply to the Agreement with effect of the date that the Client is notified thereof.
11.6 Each dispute arising under the Agreement shall, in first instance, be settled by the competent Court of The Hague, which shall have exclusive jurisdiction in respect of any such disputes. The Agreement is subject to Dutch law.