Version: June, 2019
In the Agreement, which these terms and conditions are a part of, the following definitions are used, regardless of whether the term is used in the plural or singular form in the Agreement. Agreement: the agreement between Virtual Vaults and the Customer to provide the Service. Authorisation/Authorised: the authorisations allocated by or on behalf of the Customer to gain access to and to use the Service. Confidential Information: information that is confidential by nature or which has been labelled as such, including in any case personal data, trade secrets and know-how, source code, commercial plans, financial information, Content and customer and relationship data Content: the documents, information and data which is placed or generated by, at the behest or invitation of the Customer on the Platform or in a Vault. Customer: the contract party with whom Virtual Vaults has entered into the Agreement. Failure: the reproducible and serious non-fulfilment of the functional or technical specifications of the Platform that are explicitly described by Virtual Vaults in writing. Guest user: is an Authorised person who is invited by the Customer in accordance with its Authorisation. On the basis of an individual email address and password, the Guest user has registered a user profile recorded on the Virtual Vaults Platform. Party: Virtual Vaults and/or the Customer Platform: the online shielded Virtual Vaults platform of which the intellectual property rights belong to Virtual Vaults, its licensors and/or its suppliers and with the help of which the Service is provided. The Platform (and the Service) is running and will continue to run on the infrastructure of (or administered by) of Virtual Vaults. Service: the agreed services to be provided by Virtual Vaults to the Customer - including the Vault - as defined in the Agreement (including the Service description and, where relevant, the - additional - choices made by the Customer on the order form or the order interface of the Virtual Vaults Platform). The Service includes the Subscription and any other agreed modules. Subscription: the agreed services to be provided by Virtual Vaults to the Customer (such as Vaults and Support) to which the Subscription Tier and Subscription Term relate. The term of the Subscription will commence on the day it is available for the first Guest user/User and will continue through the end of the Agreement. Subscription Term: the agreed upon subscription term as set out in the Subscription description (‘Build your subscription’). Subscription Tier: the agreed number of Users (Team Size) as set out in the Subscription description (‘Build your subscription’). Team Size: the maximum number of Users as defined in the Subscription Tier with right to access and use of the Service. User: is an Authorised person who is invited by the Customer in accordance with its Authorisation and who is a team member who falls under the Subscription Tier. Users are employees or other individuals on the side of the Customer. On the basis of an individual email address and password, the User has registered a user profile on the Virtual Vaults Platform. A User may never be a competitor of Virtual Vaults. Vault: the agreed virtual data room which is part of the Service and which bears a name assigned by the Customer and a randomly generated unique identification number. Vault Admin: a User who is authorised by the Customer in writing or through the Platform to act as project representative with the highest administrative role within a Vault to make decisions about Authorisation (roles, access rights, authorities), Content, the Service (including the closing and archiving of a Vault); this all within the terms of the Agreement. In addition, they may invite or deactivate other Vault Admins. Vault Owner: a user who, on the basis of an individual email address and password, has registered a user profile on the Virtual Vaults Platform and who is legal representative of the Customer (or authorised to act on its behalf) and has the authority to make decisions about the Service (including the closing and opening of a Vault) and payment details. This Vault Owner has access to the Platform but not to the Vault (and its Contents). Virtual Vaults: Virtual Vaults Nederland B.V.
3.1 The Agreement is established by the signing by (the last of) both Parties or per the date of confirmation of receipt of the Virtual Vaults order form completed and sent by the Customer or per the date of receipt of the completion by the Customer of the order interface of the Virtual Vaults Platform. The Agreement has an initial term from the date of establishment until the last day of the initial Subscription Term. 3.2 Unless the Agreement is terminated in accordance with the relevant provisions in the Agreement, the Agreement will be renewed automatically each time with the renewal term as set out in the Subscription description (‘Build your subscription’), in the absence of which the term will be the same as the initial Subscription Term. 3.3 The Agreement may be terminated by the end of the agreed Subscription Term with due observance upon agreed notice period, in the absence of which a notice period of one (1) month applies. 3.4 Any termination (opzegging) of the Agreement must take place: (a) in writing by registered letter to the other Party; or (b) through the respective and provided functionality in the Platform with which the Customer indicates that it will cease the use of the only or last Vault under the Agreement (closing of the Vault). If before the Content – such as referred to in Article 14 - is deleted the Customer undoes the termination (opzegging) of the Agreement within the notice period and through the relevant and offered functionality of the Platform – by which the Customer indicates it wishes to continue (reopen) the use of the only or last Vault, the Agreement will (again) be automatically renewed each time, subject to termination in accordance with Article 3.2. 3.5 One (1) month is a calendar month.
4.1 From the start of the agreed Subscription Term for the Service, the Customer will owe the agreed fees associated with the Subscription Term, as laid down in the Agreement (Subscription Fees and Pricing; the Virtual Vaults order form; or the order interface of the Virtual Vaults Platform). The Customer may not offset or suspend payment. 4.2 Per the date of the upgrade of the Subscription Tier, the Customer will owe an additional fee to Virtual Vaults that is equal to the difference between the fee already owed for the lower Subscription Tier and the fee associated with the higher Subscription Tier to which the Customer has upgraded. 4.3 If the Customer wishes to downgrade the Subscription Tier during a Subscription Term (switch from a higher Subscription Tier to a lower Subscription Tier), the Customer will continue to owe the fee associated with the initially agreed Subscription Tier during the Subscription Term in which the downgrade takes place. The Customer owes the fee associated with the lower Subscription Tier from the first day of the next renewal period of the Agreement. 4.4 In case of the non-timely payment, the Customer will, by operation of law, owe the statutory commercial interest rate and, after the Customer has been sent a payment reminder in any way, the claim may be transferred, in which case the Customer must pay all judicial and extrajudicial costs, including costs of third parties that are engaged. 4.5 Payment must take place within the agreed payment period, in the absence of which a payment period of 20 days from invoice date applies. 4.6 Prices and rates are in Euros, exclusive of VAT and other government levies. 4.7 Fees will be billed monthly, quarterly, or annually, depending on the selected Subscription Term.
6.1 A Vault, unless otherwise agreed, may only be used for a maximum of one (transactional) project (use for a project exists as soon as one or more Guest users are invited). Thus it is not allowed to reuse or recycle a Vault for an additional project or other purpose. For this purpose, Virtual Vaults may, but is not required to, monitor/check Vaults. In all cases when Virtual Vaults suspects that this clause is being violated, Virtual Vaults has the right to deny access to a Vault. Virtual Vaults may take these measures without further notice. If an additional Vault is needed, the Customer must conclude a new agreement. 6.2 During the term of the Agreement, the Vault Owner and the Vault Admins may close one or more Vaults through the respective functionality in the Platform or by requesting Virtual Vaults to close such Vault(s). During the term of the Agreement, the Vault Admin may reopen a closed Vault (or have such reopened), taking into account the provisions of Article 14. . 6.3 During the Agreement, the Vault Admin may direct Virtual Vaults to archive the Content in accordance with the relevant applicable archiving procedure of Virtual Vaults (“Closing medium”) against the agreed (archiving)fee. The Vault Admin may submit a request for archiving to Virtual Vaults up to fourteen (14) days after the closing of a Vault. The request to archive must be made through the Platform. 6.4 The storage capacity of a Vault is based on the Fair Use Principle. The Fair Use Principle serves to prevent excessive use of the Vault. Under the Fair Use Principle, excessive or other misuse is not allowed. Excessive use means: storage utilisation that is substantially above the average of a similar Vault type. If Virtual Vaults suspects excessive use or suspects misuse, Virtual Vaults will contact the Customer. Parties will then consult with each other to see if the use can be reduced and/or the Vault is used according to the Fair Use Principle. If in the opinion of Virtual Vaults the use cannot be reduced and/or the Vault is not used in accordance with the Fair Use Principle, Virtual Vaults reserves the right to charge a surcharge and/or to suspend the Service, temporarily or permanently deny access to one or multiple Vaults or to cancel the Agreement.
8.1 Each party will treat Confidential Information from the other party confidentially, and not use this for a purpose other than the implementation of the Agreement. 8.2 The confidentiality will not apply if: (a) the information is (made) public through no fault of the recipient; (b) the information is needed for the receiving party to be defend itself in court; [c] the receiving party has a legal obligation to disclose. In the event of [b] and [c], the receiving party will immediately inform the originating party of the necessity of disclosure and will limit the disclosure to that which is necessary for its defence in court or to meet its legal obligation. 8.3 Virtual Vaults will the treat the Content confidentially as stated in this Article. 8.4 The processing of personal data under the Agreement is subject to the Data Pro Processing Conditions (which are part of the Agreement). 8.5 The Customer will ensure that the Data Pro Statement, which is part of the Agreement, adequately describes the requested processing of personal data. 8.6 The Parties will comply with applicable laws and regulations to protect personal information. 8.7 In order to comply with the provisions of article 46(2)(c) GDPR, the Customer hereby authorises Virtual Vaults to conclude on behalf of the Customer a Standard Contractual Clauses (SCC) as published by the European Commission (2010/87/EU; or a subsequent version issued by the EC).
9.1 The liability of Virtual Vaults under any grounds whatsoever and regardless of the legal basis, expressly including the warranties and indemnities agreed to with the Customer, is limited to compensation of the damages that can be attributed directly to Virtual Vaults up to the amount of the payments made by the Customer based on the Agreement in the twelve (12) months prior to the damage event. For the duration of the Agreement, the liability will in no way exceed EUR 50,000.00. 9.2 Liability for indirect damage, including but not limited to consequential damages, lost profit, missed savings, reduced goodwill, damage by business stagnation and damage of third parties is excluded. 9.3 The liability limits contained herein will not apply: (a) to the extent there is any intentional act or wilful recklessness by the leadership of Virtual Vaults; (b) to the extent that this is in conflict with any applicable mandatory law. 9.4 Any claim for damages will expire after one (1) year from the moment the damage first arose. 9.5 Except in the cases that compliance by Virtual Vaults with one of its obligations is permanently impossible due to a failure that can be attributed to Virtual Vaults, the liability of Virtual Vaults only arises if Virtual Vaults attributably remains in default after Virtual Vaults received a proper written notice with statement of the failure accompanied by a proper substantiation of the alleged failure of Virtual Vaults and in which Virtual Vaults is given a reasonable period of time for remediation. 9.6 Virtual Vaults has obtained adequate business, professional liability and cybersecurity insurance in line with its liability as stated in this article. 9.7 All limitations and exclusions of liabilities agreed between the Parties will also apply for the benefit of all natural persons/legal entities which Virtual Vaults uses in the implementation of the Agreement as well as for the benefit of their subcontractors.
10.1 Neither party will be held to fulfil an obligation if it is hindered in doing so by force majeure. Force Majeure means among other things: force majeure at a supplier of Virtual Vaults, defects in equipment, software or materials of third parties, government actions, power outages, failures of internet, data networks or telecommunication facilities, armed conflict, general transport problems, staff shortages and strikes. 10.2 Each party will have the right to terminate (opzeggen) the Agreement if a force majeure event lasts longer than 45 days. Termination (opzeggen) must take place by registered letter.
11.1 As far as part of the Service products and/or services of third parties are provided, the terms of said third party will apply to its products and/or services. These terms and conditions are available free of charge from Virtual Vaults and/or directly from the third party. If and insofar as, for whatever reason, such third-party terms and conditions are deemed not to be applicable or are declared inapplicable in the relationship between the customer and the supplier, the provisions of these general terms and conditions of Virtual Vaults shall apply in full.
12.1 The Customer will indemnify Virtual Vaults from any action based on the Content infringing on rights of third parties or being in conflict with applicable laws or otherwise being unlawful or unauthorised and will reimburse all costs for Virtual Vaults as a result thereof. 12.2 Virtual Vaults will indemnify the Customer against any legal claim of a third party which is based on the allegation that the elements of the Service developed by Virtual Vaults itself or other works delivered under the Agreement that are developed by Virtual Vaults attributably infringe on a Dutch intellectual or industrial property right, on the condition that: 12.2.1 The Customer immediately informs Virtual Vaults by registered letter and in advance by email about the existence and the content of the legal claim; 12.2.2 The Customer refrains from any acknowledgement or other statement related to the relevant intellectual property rights which has or may have any negative impact on the defence of Virtual Vaults and the further handling of the case, including agreeing to any settlements, without the prior written consent of Virtual Vaults; and 12.2.3 The Customer will leave the leadership of the defence against the claim and the further handling of the case, including the agreement to any settlements, to Virtual Vaults. For this purpose, the Customer will provide any required information and cooperation to Virtual Vaults to defend itself against the legal claim, with the understanding that: (a) the Customer is entitled to retain its own legal representation with respect to the claim; (b) Virtual Vaults will involve the Customer in the handling of the case; and (c) Virtual Vaults will not, without the consent of the Customer, agree to any settlement related to the legal claim for which the Customer is indemnified by Virtual Vaults, to the extent that the settlement would create costs for the Customer or would have a significant negative impact on the further use of the works agreed to under the Agreement for which Virtual Vaults indemnifies the Customer. The Customer will not refuse or delay its consent on unreasonable grounds. 12.3 The Customer indemnifies Virtual Vaults against any legal claim, regardless of the legal basis, of Guest users/Users in connection with the implementation of the Agreement, and will reimburse all resulting costs for Virtual Vaults.
13.1 Parties are entitled to the terminate the Agreement with immediate effect in the following cases: 13.1.1 In case the other Party does not fulfil the obligations under the Agreement, this all with due observance of the provisions in paragraph 13.3 of this article; 13.1.2 In the event of force majeure in accordance with the provisions of article 10.2; 13.1.3 In case of (application for) bankruptcy or suspension of payments of the other Party. 13.2 Except in the cases referred to in article 13.1.2, article 13.1.3 or in the case that fulfilment by Virtual Vaults of one of its obligations is no longer possible due to actions or omissions that can be attributed to Virtual Vaults, there will only be an option to terminate (opzeggen) the Agreement until after Virtual Vaults remains in default after Virtual Vaults received a proper written notice with statement of the failure by a proper substantiation of the alleged attributable failure of Virtual Vaults and in which Virtual Vaults is given a reasonable period of time for remediation. 13.3 Subject to the termination options mentioned above in this article and in article 3, interim termination (tussentijdse opzegging) of the Agreement is expressly excluded as well as the whole or partial dissolution (ontbinden) of the Agreement. If during the term of the Agreement, the Customer nevertheless, despite the above, indicates that it wishes to terminate the Agreement, Virtual Vaults is no longer obligated to provide the agreed Service and the Customer, without any further notification or notice being required, will owe to Virtual Vaults a lump sum equal to the fee due under the Agreement until the time the Agreement ends/would end in accordance with the provisions of article 13.1, 13.1.3 or article 3. The buy-out amount being due and payable does not affect the payability of that which was already provided and/or delivered under the Agreement.
14.1 At end of the Agreement, without further notice being required, the Service and the access of (the Users and Guest users of) the Customer to the Platform and the Service will end with immediate effect. 14.2 If one or more Vaults were closed during the term of the Agreement, then from the time the Agreement ends they can no longer be reopened under the Agreement. In that event, the Vault Admin can only reopen a Vault and the Content located therein if, before the Content is removed from the systems of Virtual Vaults as referred to in the following paragraph of this item, the Customer has concluded a new agreement with Virtual Vaults for this purpose. 14.3 After the request for archiving, Virtual Vaults will provide (a copy of) the Content to the Customer in accordance with the applicable archiving procedure of Virtual Vaults (“Closing medium”) against the agreed (archiving) fee. The Vault Admin may submit a request for archiving to Virtual Vaults up to fourteen (14) days from the closing of the Vault. The request to archive must be made through the Platform. Virtual Vaults will remove the Content from its active systems within a period of 30 days from (a) the time Virtual Vaults was notified of the closing by Customer – using the relevant and provided functionality in the Platform - of a Vault; or (b) the end of the Agreement, whichever comes first. Parties can agree to another time period in writing. The Customer must ensure before that date that: (a) if it uses the Archive option of Virtual Vaults, it has verified the Content thereof in a timely manner; (b) if it does not use the Archive option of Virtual Vaults, it has – where necessary - made a current backup of the Content and has verified such in a timely manner. 14.4 Without prejudice to the other provisions of this article, in case of an application for bankruptcy of Virtual Vault, the Customer may submit a request for archiving and Virtual Vaults will as soon as possible after said request provide (a copy of) the Content to the Customer in accordance with the applicable archiving procedure of Virtual Vaults (“Closing medium”) against the agreed (archiving) fee.
15.1 The Customer will never transfer the rights and obligations under the Agreement to a third party without the prior consent from Virtual Vaults, which consent will not be unreasonably withheld. 15.2 Virtual Vaults may transfer its rights and obligations under the Agreement to a Virtual Vaults affiliate, being an entity which has control over or is controlled by Virtual Vaults. The term “control” means the (in)direct legal or economic ownership of at least 50% of the total of all shares with voting rights in an entity.
16.1 Provisions which in their nature are intended to survive the termination of the Agreement, will remain in effect. These will in any case include the provisions relating to Liability, Confidentiality and Privacy.
17.1 These Terms and Conditions are available in Dutch and in a variety of translations. In the event of possible differences in interpretations, the Dutch version will prevail. 17.2 If a provision is wholly or partially void or annulled, this will not affect the remaining provisions of the Agreement. The Parties will consult with each other as soon as possible to agree to a provision with a similar intent which will replace the void or annulled (part of the) provision. 17.3 Data from the administration/registers of Virtual Vaults is considered as conclusive proof. 17.4 None of the provisions is intended as a clause that assigns rights to a third party (not a contract party), with the exception of article 9.7
18.1 These terms and conditions are governed by Dutch law. 18.2 Disputes arising as a result of the Agreement and/or as a result of any subsequent agreements that are a result thereof, will be settled by arbitration in accordance with the Arbitration Regulation of the Stichting Geschillenoplossing Automation (SGOA), this all without prejudice to the right of the parties to request a provisional measure in (arbitration) injunction proceedings and without prejudice to the right of the parties to take pre-judgement measures. The place of arbitration will be The Hague. 18.3 If a dispute as a result of the Agreement or as a result of subsequent agreements that are a result thereof should fall within the jurisdiction of the subdistrict court, each of the parties, in deviation of the provisions of article 18.2, is authorised to file the case as subdistrict case before the legally competent District Court. Prior authority only accrues to parties if no arbitral proceedings were filed yet with regard to said dispute in accordance with the provisions of article 18.2. If the case was filed by one or more parties for hearing and judgement with the legally competent District Court with due observance of this article 18.3, the subdistrict of said District Court has jurisdiction to hear the case and to render a relevant judgement. 18.4 Each of the Parties will, with regard to a dispute as a result of the Agreement or as a result of subsequent further agreements that are a result thereof, in all cases be authorised to file ICT-Mediation proceedings in accordance with the ICT-Mediation Rules of Procedure of the Stichting Geschillenoplossing Automation (SGOA). The counterparty must actively take part in a filed ICT-Mediation, which legally enforceable obligation will in any case include at least one joint meeting of mediators and parties, in order to give this extrajudicial form of dispute resolution a chance. Each of the parties is free to end the ICT-Mediation proceedings after a first joint discussion of mediators and parties. The provisions of this paragraph will not stand in the way of a party deeming such necessary to ask for a provision in (arbitration) injunction proceedings or take pre-judgement measures.