Terms of Service

1. DEFINITIONS AND STRUCTURE

1.1. In these Terms, the capitalized words shall have the meaning attributed to them in Clause 16.
1.2. Any Quotation made by LegionellaDossier shall be open for acceptance within the period specified in the Quotation or, if no period is specified, within 30 days from the date of the Quotation. No Order submitted by the Customer shall be deemed final or accepted by LegionellaDossier unless and until confirmed by LegionellaDossier.
1.3. The terms and conditions included in these Terms will govern each Quotation issued by LegionellaDossier and each Order between LegionellaDossier and Customer, including Customer’s use of the Services.
1.4. General terms and conditions of Customer are explicitly excluded by Parties.

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2. TERM AND RENEWAL

2.1. An Order shall enter into force on the Order Effective Date and shall continue until the end of the Order Term.
2.2. An Order shall automatically renew for a period equal to the Order Term (Renewal Period) commencing on the expiring date of the initial Order Term. LegionellaDossier shall be entitled to increase the Charges for any Renewal Period, upon notice to Customer not less than fifteen (15) days prior to the expiration date of the Order Term.
2.3. If either Party wishes to terminate an auto-renewing Order at the end of the Order Term, that Party must provide an (electronic) written notice of termination to the other Party not less than thirty (30) days prior to the expiration date of the Order Term. If notice is not served as set forth in the preceding sentence, the Order shall renew in accordance with Clause 2.2 above.

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3. PROVISION OF SERVICES

3.1. LegionellaDossier hereby grants to Customer, on and subject at all times to the terms and conditions of these Terms, a non-exclusive, non-transferable, limited license for Authorized Users to access and use the relevant parts of the Services for which it paid the Charges for the duration of the Order Term according to the terms of an Order.
3.2. Suspension. Without limitation on any other rights and remedies hereunder, LegionellaDossier may suspend Customer’s right to access the Services or use any portion or all of the Services immediately upon notice to Customer if LegionellaDossier reasonably suspects or knows:

• (i) poses a security risk to LegionellaDossier, the Services or any third party;
• (ii) may adversely impact availability or performance of the Services or the systems or software of any other customer of LegionellaDossier;
• (iii) may subject LegionellaDossier or any third party to any liability;
• (iv) may be fraudulent;
• (i) that Customer’s (or an Authorized User’s) use of or access to the Services:
• (ii) that Customer (or an Authorized User), is in breach of this Agreement or any other agreement by which software being used on or in conjunction with the Services is licensed.
• (iii) LegionellaDossier shall reinstate the suspended Services once it has established the cause of the suspension has been remedied or ceased to exist. Where the cause of the suspension persists for more than thirty (30) days, LegionellaDossier may immediately terminate this Agreement and any Orders.

3.3. When providing the Services, LegionellaDossier shall provide reasonable maintenance services related to the Services, unless otherwise agreed in the Order.
3.4. LegionellaDossier may update its Services from time to time, ensuring that such modifications do not materially adversely affect the functionality of the Services. In such instances, LegionellaDossier shall use reasonable efforts to inform Customer of such modifications.

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4. MOBILE APPLICATION

4.1. The Services may require the use of mobile applications by an Authorized User, to which specific terms of use may apply.
4.2. LegionellaDossier shall allow Customer to create accounts for Authorized Users to download and use such mobile application.
4.3. Customer shall instruct Authorized Users to install all available updates for the mobile applications. Customer further acknowledges and agrees that the Services may not properly operate should any Authorized User fail to do so, and LegionellaDossier is not liable for any damages caused by a failure to update mobile applications accordingly.
4.4. LegionellaDossier takes proactive measures to keep Authorized Users and Customer informed about software updates for their mobile applications.
4.5. LegionellaDossier prohibits the sharing of accounts with third parties. Each account is intended for use by a single individual and may not be shared or accessed by others. Customer shall instruct Authorized Users to keep their login details confidential and do not share these with third parties.
4.6. LegionellaDossier makes reasonable efforts to keep its mobile application available and updated, but provides such mobile application “as is” without warranty of any kind.

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5. HARDWARE PRODUCTS

5.1. In case LegionellaDossier provides one or more hardware product(s) to the Customer for the use of the Service, the following applies. LegionellaDossier only provides support for using the hardware products in accordance with the Services and does not provide support with respect to the configuration of the hardware products or other usage of the hardware products. In deviation of Clause 11 of these Terms, hardware products are provided “as is” without warranty of any kind.
5.2. Parties may agree additional terms and conditions on the provision of hardware products which shall be laid down in a separate annex to the Order.

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6. CUSTOMER OBLIGATIONS

6.1. Customer shall not (directly or indirectly): (a) copy or reproduce the Services or the Documentation; (b) exceed the subscribed volume of Services as set forth in the applicable Order; (c) assign, sell or otherwise transfer the rights granted to Customer to any third party; (d) remove any copyright or trademark on or contained in the Services or the Documentation; (e) decompile, attempt to derive the LegionellaDossier code or underlying ideas or algorithms of any part of the Services; (f) modify, reverse engineer or disassemble the Services; (g) prepare derivative works based upon the Services or the Documentation; (h) disrupt the integrity or performance of the Services; (i) use the Services in a manner that infringes on the Intellectual Property Rights or privacy rights of any third party; (j) attempt to gain unauthorized access to the Services or its related systems or networks.
6.2. Customer is solely responsible for ensuring:

• (i) that only appropriate Authorized Users have access to the Services,
• (ii) that such Authorized Users have been trained in proper use of the Services, and
• (iii) proper usage of passwords, tokens and access procedures with respect to logging into the Services.

6.3. Customer shall at all times:

• (i) ensure that Authorized Users comply with all terms of these Terms;
• (ii) provide all cooperation necessary for LegionellaDossier to provide the Services, including but not limited to provision of all available information and documents reasonably required by LegionellaDossier to fulfil its obligations under the Order;
• (iii) prevent any unauthorized access to, or use of, the Services, and shall notify LegionellaDossier promptly of any such unauthorized access or use.

6.4. Except solely as expressly stated in these Terms, Customer assumes sole responsibility and shall not hold LegionellaDossier liable for results obtained from the use of the Services by Customer, and for conclusions drawn from such use.
6.5. Customer is responsible for the compliance at all times of itself and its Authorized Users with all terms of these Terms. Customer accepts liability for the applicable acts and omissions of its Authorized Users as if they were acts or omissions of Customer itself.

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7. CHARGES AND INVOICING

7.1. In consideration of the provision of Services by LegionellaDossier under any Order, LegionellaDossier shall invoice, and Customer shall pay the Charges. The Charges for the Services will be set out in each Order.
7.2. Billing Information. Customer shall provide accurate, current and complete information on Customer’s billing and payment information, address and billing contacts, including email address and phone number, and will promptly notify LegionellaDossier if this information changes.
7.3. All sums payable under any Order shall be paid in local currency, unless otherwise agreed in the Order.
7.4. Customer shall not withhold, offset or deduct any amounts from payments for Charges due (other than any deduction or withholding of tax as required by law).
7.5. Inflation adjustment. LegionellaDossier reserves the right to adjust prices annually, in line with the inflation rate as determined by the CBS in the consumer price index.
7.6. Disputed amounts. Should Customer have any questions over the amount of any invoice issued by LegionellaDossier, Customer shall notify LegionellaDossier no later than ten (10) Business Days before the due date of the relevant invoice, failing which Customer shall be deemed to have accepted such invoice as conclusive evidence of the correct amount to be charged.
7.7. Sales tax. All sums due to LegionellaDossier under or in relation an Order are exclusive of any sales tax (VAT) which shall be charged in addition in accordance with the relevant regulations in force at the time and shall be paid by Customer in full at the same time as payment is due under the relevant invoice.
7.8. Non-payment. If Customer fails to make payment in accordance with this Clause 7, then LegionellaDossier shall be entitled to charge interest on the overdue amount at the lesser of the maximum rate allowed by law or a rate above the base rate of the Central Bank of the Netherlands from time to time in force, from the date on which such amount fell due until payment.
7.9. Refunds. All payment obligations under any and all Orders are non-cancellable and all payments made are non-refundable, including upon early termination the relevant Order. Notwithstanding the foregoing, solely in the event an Order is terminated pursuant to Customer’s termination in accordance with Clause 14.2, LegionellaDossier shall refund to Customer on a pro-rata basis for the remaining Order Term.

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8. IP RIGHTS

8.1. LegionellaDossier and its licensors own any and all Intellectual Property Rights in the Services and Documentation. Except solely as expressly stated herein, these Terms do not grant Customer any rights to, or in, any Intellectual Property Rights in respect of the Services or Documentation.
8.2. LegionellaDossier has the right to use Customer’s figurative mark, logo and/or name in its external communication.

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9. DATA PROCESSING

9.1. Subject to the Personal Data required by LegionellaDossier for processing activities identified in Clause 9.2 below, Customer acknowledges that the Services are not meant to process Personal Data.
9.2. LegionellaDossier may process Personal Data of Authorized Users in order to set up and verify accounts, facilitate access to the Services, and provide support. All such Personal Data will be processed by LegionellaDossier as data controller pursuant to the applicable Data Protection Laws.
9.3. Parties shall enter into a data processing agreement if either Party acts as a data processor for the other Party under an Order. Such data processing agreement will be incorporated as an annex to such Order.
9.4. LegionellaDossier may collect and use data following from using the Services by the Customer in anonymized and aggregated form, to analyze and improve the Service and for distribution in general benchmarking data and industry reports, provided that any reported data is aggregated and anonymized such that no Personal Data of Customer is revealed.

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10. CONFIDENTIALITY

10.1. Each Party shall not use the other Party’s Confidential Information other than in the exercise and performance of its rights and obligations under these Terms and the relevant Order.
10.2. The restrictions imposed by Clause 10.1 shall not apply to the disclosure of any Confidential Information which:

• (i) is required by law or regulation to be disclosed to any person who is authorised by law or regulation to receive the same;
• (ii) before any negotiations or discussions leading to the relevant Order was already known by the receiving Party (and was obtained or acquired in circumstances under which the receiving Party was not bound by any form of confidentiality obligation); or
• (iii) is now in or hereafter comes into the public domain other than as a result of a breach of this Clause 10.

10.3. Each Party shall notify the other Party if it becomes aware of any unauthorized disclosure of any Confidential Information and shall afford reasonable assistance to the other Party, at that other Party’s reasonable expense, in connection with any enforcement proceedings which that other Party may elect to bring against any person.

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11. WARRANTIES

11.1. During the Order Term, LegionellaDossier warrants that the Services will be performed in substantial conformity with the Documentation. The foregoing warranty shall not apply to the extent of any non-conformance resulting from negligence, error, or misuse of the Services (including use not in accordance with the Documentation) by Customer, the Authorized User or by anyone other than LegionellaDossier.
11.2. Customer shall report any breach of warranty to LegionellaDossier within a period of twenty (20) days of the date on which the incident giving rise to the claim occurred. Customer’s sole and exclusive remedy for breach of these warranties will be for LegionellaDossier, at its expense, to rectify such non-conformity as soon as reasonably practicable.
11.3. LegionellaDossier disclaims (and disclaims on behalf of its licensors and/or contributors to any third party products) all other warranties, conditions and other terms, whether express or implied, including the implied conditions and warranties of merchantability and fitness for a particular purpose. LegionellaDossier will have no liability for delays, failures or losses attributable or related in any way to the use or implementation of third-party software or services not provided by LegionellaDossier.

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12. INDEMNITIES

12.1. Subject to the provisions of Clause 12.5 below, LegionellaDossier shall defend, indemnify and hold Customer harmless in respect of all damages and reasonable costs (including reasonable legal fees) and expenses arising directly from an IPR Claim which is valid and enforceable in the legal jurisdiction in which the IPR Claim is commenced.
12.2. If any IPR Claim is made, or in LegionellaDossier’s reasonable opinion is likely to be made, against Customer, LegionellaDossier may at its sole option and expense:

• (i) obtain for Customer the right to continue using the Services in the manner permitted under these Terms; or
• (ii) modify or replace the infringing part of the Services so as to avoid the infringement or alleged infringement, but in such a way that does not materially adversely affect the functionality of the Services; or
• (iii) terminate the relevant Orders and refund Charges paid in advance by Customer in respect of any period following such termination.

12.3. Clauses 12.1 and 12.2 shall not apply to any IPR Claim which arises from:

• (i) any changes, modifications, updates, add-ons or enhancements made to or available through the Services other than those developed by LegionellaDossier;
• (ii) combination or use of the Services with any other software, program, hardware or device not developed by LegionellaDossier or which is combined in a manner other than that specified by LegionellaDossier, if such infringement would not have arisen but for such combination or use; or
• (iii) compliance by LegionellaDossier with designs, plans, instructions or specifications furnished by Customer.

12.4. The provisions of Clauses 12.1 through 12.3 shall be Customer’s sole and exclusive remedy in connection with an IPR Claim.

12.5. Conduct of claim. Losses which fall within the scope of Clauses 12.1 above shall be a “Claim”. The indemnifying party’s obligations under Clauses 12.1 above are subject to the provisions of this Clause 12.5:

• (i) the indemnified party shall not admit any liability or agree to any settlement or compromise of a Claim without the prior (electronic) written consent of the indemnifying party;
• (ii) the indemnifying party shall be entitled at any time from notification in accordance with Clause 12.5 under (iv) to assume exclusive conduct of the Claim (which shall include, but not be limited to, the exclusive right to conduct any proceedings or action, negotiate the settlement of the Claim provided that any settlement contain no admission of liability or wrongdoing by the indemnified party and to conduct all discussions and dispute resolution efforts in connection with the Claim);
• (iii) the indemnified party shall, at the indemnifying party’s request, cost and expense, give the indemnifying party all reasonable assistance in connection with the conduct of the Claim;
• (iv) the indemnified party gives the indemnifying party prompt notice of any Claim or threatened Claim; and
• (v) the indemnified party takes all reasonable steps to mitigate any liabilities which are the subject of the indemnity in this Clause 12.

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13. LIABILITY

13.1. Limitation of liability. Subject only to Clause 13.3 below, in no event shall LegionellaDossier’s liability to Customer exceed the aggregate amount paid or payable by Customer under the relevant Order during the twelve (12) months prior to the event giving rise to the claim, whether in contract, tort, under any warranty or any other theory of liability (Standard Cap), or solely for purpose of any liabilities as a result of breach of confidentiality under Clause 11 or under the indemnities set forth in Clause 13 above exceed three (3) times said aggregate amount (Super Cap).
13.2. No liability. Subject only to Clause 13.3 below, to the maximum extent permitted by applicable law, neither Party shall be liable for any indirect, consequential, incidental, special, punitive or exemplary loss or damages or for any loss or damage to data, arising out of or in connection with these Terms, even apprised of the possibility or likelihood of such damages occurring.
13.3. Exceptions. Nothing in these Terms excludes or limits the liability of either Party for (i) death or personal injury caused by negligence; (ii) fraud or fraudulent misrepresentation; or (iii) damages which cannot be excluded or limited by applicable law.

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14. TERMINATION

14.1. No termination for convenience. Orders cannot be terminated for convenience.
14.2. Termination for cause. Either Party may terminate any Orders with immediate effect by giving (electronic) written notice to the other Party if:

• (i) the other Party fails to pay any amount due under these Terms or any Order on the due date for payment and remains in default after fourteen (14) days from being notified in writing of such a past-due payment;
• (ii) the other Party commits a material breach of any term of these Terms or any Order and fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so, provided that the notice includes sufficient information regarding the nature of the breach;
• (iii) the other Party commences bankruptcy, insolvency or similar proceedings or becomes insolvent or is liquidating, dissolving or ceasing business operations.

14.3. Termination shall not affect clauses which by their nature are intended to continue to apply after termination.

14.4. Upon termination or expiry of an Order:

• (i) Customer will have no further right to access or use the Services and
• (ii) each Party shall within thirty (30) days after (electronic) written request return or destroy any Confidential Information of the other Party within its possession or control. LegionellaDossier shall use reasonable commercial endeavours to deliver the back-up to the Customer within thirty (30) days of its receipt of such a written request, provided that the Customer has, at that time, paid all Charges outstanding at and resulting from termination (whether or not due at the date of termination).

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15. GENERAL PROVISIONS

15.1. Force majeure. LegionellaDossier shall not be in breach of these Terms or any Order nor liable for delay in performing, or failure to perform, any of its obligations thereunder if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of LegionellaDossier or any other party), failure of a utility service or transport or telecommunications network or the internet, act of God, war, riot, civil commotion, compliance with any law or governmental order, rule, regulation or direction, fire, flood or storm. In such circumstances LegionellaDossier:

• (i) shall use reasonable efforts which are consistent with accepted practices in the industry to resume performance as soon as practicable under the circumstances;
• (ii) shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for three (3) months, either Party may terminate any affected Orders by giving thirty (30) days’ (electronic) written notice to the other Party.

15.2. Modification of the Terms. LegionellaDossier reserves the right to modify and/or supplement the Terms unilaterally. In such instances, LegionellaDossier will provide prior notice of the modifications to the Customer. The modified Terms shall be effective from the effective date as communicated herein.
15.3. If there is a conflict or inconsistency between any constituent part of these Terms and/or any Order, the following order of precedence will be applied. The document higher in the following order of precedence will prevail with respect to such conflict or inconsistency, unless the document lower in the order of precedence expressly states otherwise with respect to that specified conflict or inconsistency:

• (i) the Order;
• (ii) the Clauses of these Terms;
• (iii) the Schedules to these Terms (if any);
• (iv) the annexes to the Orders (if any).

15.4. No failure or delay by a Party in exercising any right or remedy provided by law or under these Terms or any Order shall impair the right or remedy, or operate as a waiver or variation of it, or preclude its exercise at any subsequent time. No single or partial exercise of any right or remedy shall preclude any further exercise of the right or remedy or the exercise of any other right or remedy.
15.5. If any provision of these Terms or any Order, or portion thereof, is held to be void, invalid, illegal or unenforceable, this shall not affect the legality, validity or enforceability of the remaining provisions. The invalid provisions shall, if required, be modified or amended to the fullest extent possible under applicable law so as to reflect the original meaning and intent of the parties.
15.6. The mere lapse of a date or agreed time frame for performance of the service shall not automatically constitute a default under these Terms or the relevant Order.
15.7. No provision of these Terms or any Order creates a partnership between the Parties or makes a Party the agent of the other Party for any purpose, unless expressly stated otherwise. A Party has no authority to bind, to contract in the name of, or to create a liability for the other Party in any way or for any purpose.

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16. GOVERNING LAW AND JURISDICTION

16.1. These Terms and any Order shall be governed by and construed in accordance with the laws of the Netherlands.
16.2. The competent court of Amsterdam shall have exclusive jurisdiction over all disputes, controversies or claims between the Parties arising in connection with these Terms or any Order.

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17. DEFINITIONS

17.1. The following capitalized terms shall have the following meanings, where words in singular shall include the plural and vice versa:

• (i) Agreement shall mean the Orders and Terms together concluded between Parties.
• (ii) Authorized Users shall mean employees, agents, consultants, contractors, or vendors authorized by Customer to use the Services.
• (iii) Charges means the charges for the Services.
• (iv) Clause means a clause of these Terms.
• (v) Commencement Date means the date Customer is allowed to use the Services, as agreed in the Order.
• (vi) Confidential Information means information, in whatever form or medium, which has been kept confidential by the Party from whom the information originates and which has not come into the public domain during the Term and for the duration of any Order in breach of any obligation of confidence, including without limitation information relating to the commercial or technical know-how, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing and marketing of a Party.
• (vii) Data Protection Laws means all data protection laws applicable to the processing (including transfer) and use of Personal Data in the context of activities carried out pursuant to these Terms and any Order, including but not limited to the General Data Protection Regulation (GDPR) (and any amendments thereto) and any local legislation implementing the applicable data protection laws in the country where Parties are established.
• (viii) Documentation shall mean the user guides and specifications for the Services that are made available from time to time at its website or otherwise by LegionellaDossier.
• (ix) Intellectual Property Rights means patents, trademarks, service marks, logos, trade names, internet domain names, rights in designs, copyright (including rights in computer software) and moral rights, database rights, semi-conductor topography rights, utility models, rights in know-how and other intellectual property rights, in each case whether registered or unregistered and including applications for registration, and all rights or forms of protection having equivalent or similar effect anywhere in the world.
• (x) IPR Claim means any claim or action against Customer by any third party wherein the use of the Services by Customer in accordance with this Agreement directly infringes the Intellectual Property Rights of that third party.
• (xi) Personal Data means personal data as defined in the GDPR.
• (xii) Order means the electronic or physical order form signed by or on behalf of LegionellaDossier and Customer, including any annexes, and which Order identifies the Customer, Customer Facilities, Services ordered, the Charges, the Order Term; and other information as LegionellaDossier may reasonably require.
• (xiii) Order Effective Date means the date both Parties signed the relevant Order.
• (xiv) Order Term means the term which shall commence on the Commencement Date and continues until the end of the term set forth in the Order, as renewed in accordance with Clause 2.3.
• (xv) Quotation means any proposal, quotation or offer made by LegionellaDossier to the Customer.
• (xvi) Renewal Period has the meaning given to it in Clause 2.3.
• (xvii) Schedule means the documents as referenced in these Terms constituting an integral part of these Terms.
• (xviii) Service(s) means LegionellaDossier’s core software-as-a-service legionella control platform and ancillary services, including any hardware products for the use of the services, as specifically specified in the Order and further described in the Documentation.
• (xix) Terms means these general terms and conditions governing the Services, including the Schedules thereto (if any).