Cloudscanner Marketplace Terms v.1.0 / October 2016

Transcription

1 These Cloudscanner Marketplace Terms and Conditions ( Terms ) describe the relationship between the company or other legal entity on behalf of whom you are accepting these Terms ( Customer ) and Cloudscanner, as identified below. Your acceptance of these Terms constitutes a legally binding agreement between Customer and Cloudscanner. By accepting these Terms, you represent and warrant having the authority to enter into these Terms with Cloudscanner on behalf of Customer, and agree to be bound by its terms. The Terms contain the terms and conditions applicable to Customer s access and use of the Cloudscanner Platform, Customer s purchase of Cloud Services from Providers, and the provision of supportive services by Cloudscanner. Clause 1 Definitions and Interpretation 1.1 In these Terms, the following terms shall have the following meaning: Administrator: The person designated by Customer as its primary contact, who has the authority to bind Customer, conclude Cloud Services Agreements, administer Cloud Service subscriptions and designate other Users. Agreement: The marketplace platform agreement between Customer and Cloudscanner, concluded by Customer s acceptance of these Terms. These Terms form an integral part of the Agreement. Cloud Service: Any (cloud) service or product offered by a Provider and listed on the Platform. Cloud Services Agreement: The agreement between Customer and Provider including all applicable legal terms and conditions under which Customer is granted the right to use or access the Cloud Services after purchase on the Platform. Cloud Services Fee: All fees set by Providers (i) for Customer s use of or access to the Cloud Services, including any set-up, connection or installation fees and whether or not dependent on usage and (ii) for any additional services to be provided by Provider in relation to the Cloud Services such as support, additional work or consultancy services. Cloudscanner Services: Any services provided by Cloudscanner to Customers and Providers. Cloudscanner Services may include invoicing, processing and administration of Cloud Services Agreements and subscriptions, first line (technical and/or billing) support, dispute handling and conciliation, Cloud Services comparison features and services, and reviews and ratings. Customer Portal: The web based, password protected portal on the Platform through which Customer can manage its Cloud Services, Cloud Services Agreements and Cloud Services subscriptions. IP-Rights: All intellectual property rights and related rights anywhere in the world, including patent rights, copyrights, neighboring rights, trademark rights, trade name rights, design rights, database rights, rights on a par with intellectual property rights and rights to know-how. Party/Parties: Where applicable, Cloudscanner and/or Customer. Platform: The marketplace platform offered by Cloudscanner on which Customers can view Provider Content, can purchase Cloud Services directly from Providers and can enter into Cloud Service Agreements with Providers, which is currently web based and may in future also be offered via mobile apps, API s or other means of distribution. The definition of Platform includes all information, materials, content, data, applications, software and updates made available by Cloudscanner as part of the Platform. For the avoidance of doubt, it does not include the Cloud Services or Provider Content. Providers: The entities that offer the Cloud Services listed on the Platform and with whom Customer concludes Cloud Services Agreements. Provider Content: All information, specifications, categorization, materials, data and documentation related to the Cloud Services provided by Providers for publication on the Platform, including advertisements and listings for the Cloud Services, the Cloud Services Agreements, any additional terms of use for the Cloud Services, any license agreements and any privacy, security, availability and support policies and procedures applicable to the Cloud Services, information regarding the nature and volume of the Cloud Services, the Cloud Services Fees, technical specifications, system and network requirements, availability guarantees and services levels, certifications, sustainability, support information and information with regard to security and data protection levels and compliance, if any. Users: Persons designated by the Administrator who shall have access to the Platform via the Customer Portal and who are granted the rights, authorizations and functionalities within the Customer Portal as decided by the Administrator. 1.2 Use in these Terms of the words including, among others, such as, for instance or any similar wording shall not limit the generality of the foregoing. Clause 2 Applicability and Amendment 2.1 These Terms apply to the Agreement, any use of the Platform by Customer and, where applicable, to any Cloud Services Agreements between Customer and Provider. The applicability of any general terms and conditions of Customer or of any third party is explicitly excluded, whether or not referred to, offered or relied on by Customer in negotiation or at any stage in the dealings between the Parties, including any standard or printed terms tendered by Customer, unless Cloudscanner has specifically acknowledged the applicability of other terms in writing. 2.2 Cloudscanner is entitled to amend or supplement these Terms at any time. Such amendments shall take effect immediately. The most up-to-date version of the Terms can be found on the Platform. Amendments or supplements will be brought to Customer s attention during the use of the Platform. Customer will notify Customer by in advance in the event that an amendment or supplementation will significantly affect Customer s rights or obligations Clause 3 The Platform 3.1 The Cloudscanner Platform is a marketplace for Cloud Services. On the Platform, Customer can compare Cloud Services that are offered by various Cloud Service Providers, purchase Cloud Services directly from Providers and enter into Cloud Services Agreements with Providers. Cloud Services are provided by the Providers. Cloudscanner only provides the technology and services to enable access and use of the Platform and to enable Customers and Providers to enter into transactions between them. Cloudscanner has no control over the quality, safety, lawfulness or correctness of the Cloud Services that are offered or the Providers authority to offer Cloud Services. 3.2 Cloudscanner acts as an intermediary, providing the technology and services to enable access and use of the Platform and the Cloudscanner Services, and as an agent on behalf of the Providers. Cloudscanner receives a commission on Cloud Services Fees paid by Customers. Customer acknowledges and agrees that Providers and not Cloudscanner are the sellers, providers and/or licensors of the Cloud Services to Customer, that Cloudscanner is not a party to the Cloud Services Agreements, that Cloudscanner does not accept any liability under the Cloud Services Agreements and that Cloud Services Agreements do not affect the Agreement or the relationship between Cloudscanner and Customer. Clause 4 Access to the Platform 4.1 Customer must submit certain information to Cloudscanner with regard to its identity such as name, place of business, chamber of commerce registration number and VAT number. Customer warrants that all information provided is and shall remain true, accurate, complete and up-to-date at all times. Page 1 of 5

2 4.2 All use of the Platform is for the risk, account and responsibility of Customer. 4.3 Customer must appoint an Administrator within the Customer Portal. The Administrator may appoint an unlimited number of Users who will have access to the Customer Portal. The Administrator and the Users may be granted different levels of authorizations on the Platform, as further described in the Customer Portal. The Administrator and the Users are required to provide their full name, a valid Customer address and any other information reasonably requested by Cloudscanner. The Administrator and the Users will be provided with a unique username to access and use the Platform and an associated password. Administrator and the Users must keep their username and password combination secret. Customer is responsible and liable for any unauthorized access to the Customer Portal due to any loss of usernames ad password combinations or to such combinations becoming known to unauthorized persons by no fault of Cloudscanner. Customer is liable for any and all use of the Platform by Administrator and Users, via Customer s account and/or any Customer related username and password combinations. 4.4 The Portal may include single sign-on functionality through which Customer can log-in to various Providers systems. 4.5 Any access to the Platform via automated means is strictly prohibited except insofar as the Platform includes features that are designed for such use. 4.6 Cloudscanner reserves the right to restrict log-in and change log-in procedures, passwords and/or usernames if this is necessary in the interest of the (correct) operation of the Platform, for protecting legitimate (business and/or legal) interests of Cloudscanner, Customer, Providers or third parties, if Cloudscanner is legally obligated to freeze the then current information on the Platform or is instructed by government authorities or regulators to do so. Clause 5 Provider Content on the Platform 5.1 Providers advertise and offer Cloud Services on the Platform and Customers can enter into Cloud Services Agreements with Providers on the Platform. All Provider Content is published by, and offered to Customer by, Providers and not by Cloudscanner. Cloudscanner endeavors to maintain a high standard of offerings on its Platform but makes no guarantees and is not liable for any inaccurate, incomplete or outdated Provider Content. The use of Provider Content may be subject to terms and conditions of the Provider. Cloudscanner accepts no liability in this regard. 5.2 Although Cloudscanner may have tested, reviewed and approved Cloud Services and/or Provider Content, Cloudscanner accepts no liability whatsoever in this regard. Access to and use of any Cloud Services is at Customer s risk and responsibility and Customer acknowledges and agrees that Providers remains fully responsible and liable for providing the Cloud Services. 5.3 Cloudscanner may make translations of Provider Content to other languages. Translations are reviewed and approved by Providers before publication and Providers are therefore responsible and liable for such translations. Cloudscanner does not accept any liability for (faults in) translations. 5.4 Any categorizations, ratings or descriptions of Cloud Services are for Provider s account and are solely for Customer s convenience. Cloudscanner accepts no liability and makes not representations or warranties that such categorizations, ratings or descriptions are accurate, complete or up-to-date. 5.5 Providers may amend all Provider Content at any time. Clause 6 Concluding Cloud Services Agreements 6.1 Cloud Services Agreements and associated licenses or documentation are between Customer and Provider. Cloudscanner may offer various means for Customers and Providers to conclude Cloud Services Agreements and the associated licenses and documentation on or via the Platform such as downloading and printing of agreements for physical signing, digitally signing agreements via Docusign or similar services or click-to-agree. If Cloud Services Agreements are concluded digitally via the Platform, Cloudscanner will provide Customer with adequate proof of acceptance. 6.2 If Customer wishes to agree on any specific or additional terms with regard to the Cloud Services, Customer must negotiate and agree these terms directly with the Provider. If reasonably possible, Cloudscanner shall assist Customer upon request. 6.3 Execution of any Cloud Services Agreements after acceptance on the Platform may be subject to final approval by Provider. 6.4 Customer is responsible for any and al use of the Cloud Services. The Cloud Services may not be acquired or used for any unauthorized, unlawful, or inappropriate purposes. 6.5 Customer is solely responsible for sending any notices to Provider that may be required under the Cloud Services Agreements. Insofar as such notices are not made via Platform communications features, Customer is obliged to send Cloudscanner simultaneous copies of all notifications. Cloudscanner may send reminders, payment notices and notices of interest and/or penalties for late payment, including on behalf of Provider. Customer acknowledges and agrees that Provider is entitled to send legal notices, demands and other communications to Customers in accordance with the Cloud Services Agreement, and otherwise enforce correct performance of Cloud Services Agreements by Customers. Provider and not Cloudscanner is entitled to suspend and/or terminate any Cloud Services or Cloud Services Agreements. 6.6 Providers and/or Cloudscanner may remove listings for Cloud Services from the Platform at any time. Providers should continue to perform any Cloud Services Agreements already concluded and continue to provide the relevant Cloud Services, also after the listings for the relevant Cloud Services may have been removed. Cloudscanner shall continue to act as an intermediary for, inter alia, invoicing and payment. Cloudscanner accepts no liability for Provider s obligation to perform the Cloud Services Agreements. Clause 7 Customer Portal 7.1 Customer can manage its Cloud Services subscriptions and Cloud Services Agreements via the Customer Portal. Such includes customary mutations of subscription-based services such as termination, renewal, upgrades and downgrades, insofar as such is in accordance with the relevant Cloud Services Agreement. Cloudscanner and the relevant Provider may offer the possibility to automatically provision Cloud Services upon acceptance of the Cloud Services Agreement by Customer or upon Customer placing an order via the Customer Portal. If a specific Cloud Service can be automatically provisioned, this will be clearly communicated on the Customer Portal. 7.2 Notwithstanding any other rights and remedies of Cloudscanner, Cloudscanner may revoke or suspend Customer s Portal, for any reason to Cloudscanner s discretion, for instance if it is obligated to do so by law or instructed by a government authority or court, if Customer violates any term of these Terms, provides inaccurate, outdated or misleading information or engages in fraudulent activity. If Cloudscanner is not legally obligated to immediately revoke or suspend in accordance with this Clause 7.2, Cloudscanner shall provide prior written notice of at least thirty days. Clause 8 Fees Invoicing and Payment 8.1 Customer shall pay to Cloudscanner a fee for use of the Platform. The fees and payment terms are communicated on the Platform. 8.2 Cloud Services Fees are determined by and to the sole discretion of Providers, and may be amended by Providers in accordance with the Cloud Services Agreements. Page 2 of 5

3 8.3 All Fees are published on the Platform exclusive of VAT. 8.4 Cloudscanner shall charge the Cloud Services Fees to Customer on behalf of Providers and shall send Customers invoices in Providers name and on Providers behalf. Customers shall be billed to pay all Cloud Services Fees either into a bank account in name of Cloudscanner, or into a third-party funds account in name of a separate foundation. Any Cloud Services Fees paid by Customer that are held by Cloudscanner or a third-party funds foundation are held to the order of the Provider and will be administered as such. Customer shall only pay Cloud Services Fees to Providers directly if this is explicitly agreed in writing by Cloudscanner in advance. 8.5 Cloudscanner may provide Customer with separate invoices for each Provider and/or for each specific Cloud Service. Simultaneously with any invoices Cloudscanner shall provide Customer with a detailed overview of the total amount payable for the relevant period and a breakdown per Provider and/or Cloud Service. This overview should not be regarded as a collective invoice. If Customer disputes any invoice or amounts charged by a Provider, such does not relieve Customer of the obligation to pay amounts due to other Providers or related to other Cloud Services. 8.6 All fees will be charged monthly in advance, unless agreed otherwise. All charges are non-refundable. Customer shall pay all invoices within the payment term as agreed upon or as stated on the invoice. If no payment term has been agreed upon and no payment term is stated on the invoice, Customer shall pay invoices within a period of fourteen days after the invoice date. Notwithstanding any other rights of Cloudscanner, Customer shall be due a late payment charge of one percent for each month that Customer exceeds any payment term. Customer acknowledges and agrees that Providers may charge additional late payment charges in accordance with the Cloud Services Agreements and that Provider may be entitled to suspend the Cloud Service in accordance with the relevant Cloud Services Agreement. 8.7 Payment and billing terms may vary depending on the relevant Provider and Cloud Service. 8.8 Cloudscanner may in the future offer various different payment methods. Customer warrants to be authorized to use any payment method it selects in the Customer Portal and authorizes Cloudscanner to charge it for the Cloud Services Fees. Additional terms may apply to the use of any alternative payment methods. 8.9 All payments shall be made without deduction or withholding of any taxes. If Customer is required to deduct or withhold any taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, Cloudscanner receives an amount equal to the sum it would have received had no such deduction or withholding been made Cloudscanner may publish Cloud Services Fees in Customer s own currency or in another currency differing from the currency used by Provider. Customer agrees to pay the applicable Cloud Services Fees as listed by Providers and invoiced by Providers through Cloudscanner, in the currency as agreed between Customer and Provider and in accordance with these Terms and with any specific terms listed for the relevant Cloud Service Customer acknowledges and agrees that Cloudscanner will only pay Cloud Services Fees to Providers after having received the corresponding amounts from Customer Some Cloudscanner Services may require that the Parties enter into a separate agreement. Cloudscanner may charge additional fees for such additional Cloudscanner Services. Clause 9 Support, Disputes, Refunds and Reviews 9.1 Customer acknowledges and agrees that Provider is responsible for any errors in its Cloud Services, for offering technical support for the Cloud Services in accordance with the Cloud Services Agreement and for handling any complaints regarding service levels, performance, availability, functionality or any other issues with regard to the Cloud Services. Under no circumstances can Cloudscanner be obligated to provide any (first line) support. If Customer submits any questions or complaints with regard to the Cloud Services, Cloudscanner may forward these to Provider. 9.2 Customer is obligated to inform Cloudscanner of any disputes between Customer and Provider, or any complaints it has submitted to Provider regarding the Cloud Services or any quality of service by Providers. 9.3 Customer may contact Cloudscanner with billing disputes and with claims against Customer for refunds and credits. In the event of any disputes between Customer and Providers, Cloudscanner shall act as an intermediary to try to resolve the dispute. Customer accepts and agrees that Cloudscanner may also act as an agent of Provider in the handling of disputes. Cloudscanner does not have any responsibility to resolve, or accept any liability for, disputes, refunds or credits and may elect at any time and to its own discretion to direct disputes back to Customer and Provider to resolve amongst themselves. 9.4 Cloudscanner shall only refund any Cloud Services Fees to Customer if so instructed by Provider. If Cloudscanner refunds Customer, Customer will defend, indemnify and hold Cloudscanner harmless with respect to any claim by Provider, including by paying any associated costs, losses, damages, expenses and attorneys fees. 9.5 Cloudscanner may provide Customers with the possibility to review the Cloud Services and the overall quality of service by Provider. Cloudscanner shall be entitled to publish these reviews on the Platform. Cloudscanner shall submit reviews to Providers for rebuttal before publication. Providers shall be able and entitled to publicly respond to reviews on the Platform, which responses shall be viewable together with the review. Customer is fully responsible and liable for its reviews and will defend, indemnify and hold Cloudscanner harmless with respect to any claim by Provider with regard to a review, including by paying any associated costs, losses, damages, expenses and attorneys fees. Clause 10 Promotion and Marketing 10.1 With Customer s prior consent, Cloudscanner may use Customer s name, trade names, trademarks and logo s and any other information related to Customer to promote the Platform through its own and any third party online and offline channels (e.g. Adwords, advertising networks, etc.), at its own expense and to its own discretion, and has the right to publicly communicate that Customer is a user of the Platform The order in which Cloud Services are listed on the Platform is determined to the sole discretion of Cloudscanner. Ranking may for instance be based on name, price, rating, uptime, etc. Cloud Services may also be ranked higher as a paid-for promoted service. Promoted services will always be clearly marked and identifiable as such Parties may agree on further (joint) promotion and (content) marketing activities. Cloudscanner and/or its licensors own all right, title and interest in and to any marketing content created by Cloudscanner. Cloudscanner has the right to use such marketing content to its own discretion, including Customer s name, trade names, trademarks and logo s and any other information related to Customer. Clause 11 IP-Rights 11.1 Cloudscanner and/or its licensors own all right, title and interest in and to the Platform and all of its parts, including any software, API s, databases, designs, texts and images, and all IP-Rights therein. Subject to the limited rights expressly granted hereunder, Cloudscanner reserves all rights, title and interest in and to the Platform including all related IP-Rights. Cloudscanner hereby grants Customer a non-exclusive and non-transferrable right to use the Platform, including any API s, solely during the Page 3 of 5

4 term, and subject to the terms and conditions, of these Terms. Customer shall not (i) modify or copy the Platform or create any derivative works based on the Platform; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute or otherwise make the Platform available to any third party, other than as permitted herein; (iii) reverse engineer or decompile any portion of the Platform, including but not limited to, any software utilized by Cloudscanner in the provision of the Platform, except to the extent permitted by law; (iv) access the Platform in order to build a commercial product or service; or (v) copy any features, functions, integrations, interfaces or graphics of the Platform Customer hereby transfers to Cloudscanner, as Cloudscanner accepts, all IP-Rights into any reviews regarding Cloud Services as submitted by Customer, insofar as necessary and possible, by current transfer of future rights to the reviews. If no such transfer of rights is possible, Customer hereby grants Cloudscanner a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use the reviews in the broadest sense possible, including for promotional purposes outside of the Platform, and for sublicensing to Providers Licenses for Cloud Services are between Customer and Provider. Cloudscanner does not grant any rights or licenses in the Cloud Services on behalf of Provider Cloudscanner shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Platform any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the operation or functionality of the Platform, but shall have no obligation to do so Cloudscanner owns all right, title and interest in and to the aggregated and statistical data derived from the operation of the Platform, including any IP-Rights. Nothing herein shall be construed as prohibiting Cloudscanner from utilizing such statistical information for any purposes, provided that Cloudscanner s use of information cannot, directly or indirectly, reveal any Confidential Information. Clause 12 Confidentiality 12.1 For the purposes of the Agreement, Confidential Information shall mean each Party s business or technical information, including but not limited to any information relating to software plans, designs, costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by the disclosing Party as "confidential" or "proprietary" or the receiving Party knows or should reasonably know is confidential or proprietary as well as the terms, conditions and pricing of the Agreement (but not its existence or parties) A Party shall not disclose or use any Confidential Information of the other Party except to those of its affiliates, officers, directors, agents, employees, contractors, consultants and financial and legal advisors who have a need to know such Confidential Information as reasonably necessary to perform its obligations or exercise its rights pursuant to the Agreement or with the other Party's prior written permission Each Party agrees to protect the Confidential Information of the other Party in the same manner that it protects its own Confidential Information, but in no event using less than a reasonable standard of care A disclosure by one Party of Confidential Information of the other Party to the extent required by law shall not be considered a breach of the Agreement, provided that the Party so compelled promptly provides the other Party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other Party's cost, if the other Party wishes to contest the disclosure The Parties acknowledge and agree that due to the unique nature of each Party s Confidential Information, damages alone would not be an adequate remedy for breach of any disclosure or use (or threatened disclosure or use) of a Party s Confidential Information. Accordingly, without prejudice to any other rights and remedies it may have, either Party shall be entitled to seek equitable relief in any competent court or jurisdiction (including without limitation injunctive relief) concerning any threatened or actual disclosure or use of that Party s Confidential Information in breach of the terms of the Agreement Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the other Party; (ii) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (iii) was independently developed by a Party without breach of any obligation owed to the other Party; or (iv) is received from a third Party without breach of any obligation owed to the other Party. Customer Data shall not be subject to the exclusions set forth in this Clause. Clause 13 Term and Termination 13.1 The Agreement is entered into as of the date that Customer has accepted these Terms and will remain in full force and effect until terminated in accordance herewith Each Party may terminate the Agreement without cause upon thirty days prior written notice without thereby becoming liable to pay any damages or compensation, save as otherwise provided for in these Terms. Customer acknowledges and agrees however that Cloud Services Fees for Cloud Services purchased on the Platform shall continue to be payable to Cloudscanner also after termination Cloudscanner may terminate the Agreement by rescission ( ontbinding ) immediately, without any written notice of default or judicial intervention being required, and without being liable to Customer for any damages or compensation, if Customer applies for a suspension of payments or is declared bankrupt, or a request for bankruptcy has been made or if a significant part of the capital or the business assets of Customer are seized or attached. For the avoidance of doubt, if Cloudscanner is declared bankrupt, Customer shall continue to be liable to pay the Cloud Services Fees to Providers. Customer and Providers shall in that case organize invoicing and billing between them directly Sections of these Terms that, by their terms, require performance or establish rights after termination or expiration of the Agreement, will survive such termination or expiration If a Provider notifies Cloudscanner that it has terminated a Cloud Services Agreement with Customer, Cloudscanner will notify Customer and terminate the order for the relevant Cloud Service and collect any final payments due through the effective date of termination Notwithstanding any other rights of Cloudscanner, Cloudscanner has the right to temporarily or permanently revoke or suspend Customer s access to the Customer Portal and/or the Platform including if Customer violates these Terms, any applicable laws and regulations or otherwise acts unlawfully or if Customer does not timely pay the Platform fee due to Cloudscanner or if Cloudscanner has reasonable grounds to suspect that Customer violates any Cloud Services Agreements. Clause 14 Warranties 14.1 Each Party warrants that it shall comply with all applicable laws and regulations and the exercise of rights granted under the Agreement to the other Party will not obligate the other Party to pay any third party any amounts The Platform is provided by Cloudscanner on an asis and as available basis. Cloudscanner does not warrant that access to, or use of, the Platform shall be uninterrupted and error free. Cloudscanner expressly excludes any and all explicit and tacit guarantees, undertakings and indemnifications, of any kind whatsoever, including but not limited to those with respect to the quality, safety, lawfulness, integrity and correctness of the Platform Customer warrants that (i) it shall not abuse the Platform or interfere with any third party s use of the Platform and Page 4 of 5

5 shall not circumvent or manipulate the Platform or Cloudscanner s invoicing process, such as by directly contacting Providers to conclude Cloud Services Agreements outside of the Platform and (ii) all Cloud Services Fees and any other fees and charges for use of the Cloud Services or for services related to the Cloud Services, shall be paid through the Platform and that it will not use any other payment methods for the Cloud Services Clause 15 Indemnifications 15.1 Each Party agrees to defend, indemnify and hold the other Party and its affiliated companies, its management, directors, employees, representatives and legal successors, harmless with respect to any third party claims alleging a breach of the representations and warranties made by the indemnifying Party in these Terms, including with regard to non-infringement of IP-Rights Customer agrees to defend, indemnify and hold Cloudscanner and its affiliated companies, its management, directors, employees, representatives and legal successors, harmless with respect to any third party claims, including by paying any associated costs, losses, damages, expenses and attorneys fees, (i) by Providers, based on alleged violation of, or failure by Customer to correctly, fully and/or timely perform its duties under or related to, the Cloud Services Agreements and (ii) with respect to any damage that ensues from misuse or use of the Platform, the Customer Portal or of any Customer related username and password. Clause 16 Limitation of Liability 16.1 To the maximum extent permitted by law and subject to Clause 16.4, either Party s aggregate liability arising out of or related to the Agreement, whether in contract, tort or otherwise, shall be limited to the amount actually paid out by the insurer of that Party due to the event giving rise to damages or, if no payment is made by the insurer, to an amount equal to the Cloud Services Fees paid or payable by Customer under the Agreement during the six (6) month period preceding the date on which the event giving rise to damages occurred, or ,- (fifty thousand euros), whichever is greater Subject to Clause 16.4, in no event shall either Party have any liability to the other Party for any special damages (even if the Party from which damages are being sought was aware of the possibility of such damages), loss of profits, loss of anticipated savings, loss of business opportunity, loss of goodwill or loss of use. Customer will not assert that its payment obligations under the Agreement are excluded as Cloudscanner s lost profits The limitations of liability in this Clause 16 apply collectively to each Party s affiliated companies, their management, directors, employees, representatives and legal successors, who may at all times rely upon the provisions of this clause for their own benefit The limitations of liability in this Clause 16 do not apply with respect to the indemnification obligations in Clause 15, the confidentiality obligations in Clause 12, Customer s payment obligations or insofar as damages are caused by gross negligence or willful misconduct Cloudscanner may contract third parties to assist in performing its obligations or exercising its rights under the Agreement If any court of competent jurisdiction determines that any provision of these Terms is illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect and the Party s shall negotiate in good faith a provision to replace the illegal, invalid or unenforceable provision Neither Party may assign the Agreement (or any rights or duties under it) without the other Party s prior written consent, provided that either Party may assign the Agreement without the other Party s consent in connection with a merger, acquisition, or sale of all or substantially all of its assets Either Party s delay or failure to exercise any right or remedy will not result in a waiver of that or any other right or remedy The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications. Cloudscanner B.V. is a limited liability company incorporated under the laws of the Netherlands, with statutory seat in Amsterdam and registered with the Chamber of Commerce under number Cloudscanner s offices are located at: Kabelweg 48A 1014 BB Amsterdam The Netherlands Clause 17 Applicable Law and Competent Court 17.1 These Terms and the Agreement are construed in accordance with and shall be governed by and interpreted in accordance with the laws of The Netherlands Parties agree that all actions and/or proceedings arising under or in connection to these Terms or the Agreement shall exclusively be brought before the competent court in the district of Amsterdam, The Netherlands. Clause 18 Miscellaneous 18.1 Neither these Terms or the Agreement, nor any terms and conditions contained herein, create a partnership, joint venture, employment relationship, or franchise relationship. Page 5 of 5