1.1 “Content” means all visual, written or audible data, information or material including, without limitation: documents, spreadsheets, text messages, form entries, web pages, and similar material, which are uploaded to, transferred through, publicly posted, processed or entered into the Services by the Customer or the Users.
1.2 “Contract Start Date” means the date stated in the Order form, or if applicable the day the Customer has signed up online, or in any other form.
1.3 “Customer” means the individual or the legal entity who activates Services provided by Bizztracker and assumes payment responsibility for the same vis-à-vis Bizztracker.
1.4 “Order Form(s)” means the initial order form and/or order confirmation either in written or by e-mail, and any subsequent order forms and/ or order confirmations evidencing among other things the billing detail, the applicable fees, etc. Each such Order Form shall form an integral part of this Agreement. In the event of conflict between the terms of an Order Form and the terms of this Agreement, the terms of the Order Form shall prevail.
1.5 “Services” means the at all times current version of the web services, associated software, and other services related thereto provided to the Customer by Bizztracker in accordance with this Agreement. The Services are offered as a Software as a Service with several subscription types (free, professional, corporate or enterprise), with the characteristics and features as described at www.bizztracker.com. In addition, the Services may include additional services and add-ons, including third party software, as agreed between the Customer and bizztracker on a Subscription or case-by-case basis.
1.6 “Subscription” means the terms governing among other things the type of subscription, the billing frequency, the applicable fees, etc.
1.7 “Trial Service” means a Service, which is provided free of charge or which is under development or evaluation and is marked “free”, “demo”, “trial”, “beta” or “evaluation” (or a similar designation).
1.9 “User(s)” means all individuals who are authorized to start and/or participate in one or more Customer Communities.
1.10 “Community” means a business environment in the software with a defined set of subscription terms and a group of Users who are authorized to access the Community.
1.11 “Web Site” means Bizztracker’s web site at www.bizztracker.com and any related sub domains including but not exhaustive, app.bizztracker.com and support.bizztracker.com.|
2 Services, License Grant, Restrictions
2.1 Subject to the terms and conditions of this Agreement, Bizztracker hereby grants to the Customer a non-transferable, non-exclusive, non-sublicensable limited term world-wide right and Licence for the Customer and Users to access and use the Services.
2.2 Bizztracker reserves the right to implement new versions and upgrades of the Services including, but not limited to, changes that effect modifications to the design, operational method, technical specifications, systems, and other functions, etc. of the Services, at any time without prior notice.
2.3 Bizztracker use reasonable endeavors, in its sole discretion, to adopt reasonable measures in order to ensure that the Services are available over the Internet around the clock, seven (7) days a week. Bizztracker shall be entitled to take measures that affect the aforementioned accessibility where Bizztracker deems such to be necessary for technical, maintenance, operational, or security reasons. The Customer is aware and acknowledges that the Customer’s access to the Internet cannot be guaranteed and that Bizztracker shall never be liable for deficiencies in the Customer’s own Internet connections or equipment.
2.4 The Customer shall be entitled, with or without compensation from Users, to provide Users with access to the Customer’s Content and the Services provided by Bizztracker. The Customer is aware of and acknowledges that the Customer is fully liable for the Users to whom the Customer affords access to the Services. The Customer shall not charge a User any fee for its use of the Services in excess of the Customer’s direct costs to Bizztracker for such User’s participation.
2.5 Bizztracker shall be entitled to retain subcontractors, including third party software suppliers, for the performance of obligations in accordance with this Agreement.
3 Trial Services
3.1 Trial Services are provided strictly “as is”. The Customer may use a Trial Service in a manner consistent with the terms and conditions of this Agreement, but Bizztracker may, at its discretion, disable certain features of a Trial Service and enforce time limits on the Customer’s right to use the same. In light of the fact that a Trial Service is provided free of charge, Bizztracker disclaims all warranties, representations, and liabilities as set forth in this Agreement and Bizztracker shall not be liable for damages of any kind related to the Customer’s or User’s use of a Trial Service.
4 Customer Obligations
4.1 The Customer shall always comply with the security and administrative regulations as notified in conjunction with registration, by e-mail, as made available on the Web Site, or in any other manner. The Customer shall also be responsible for notifying Users of such regulations and also the User’s fulfilment regarding such regulations.
4.2 The Customer shall ensure that all details provided regarding the Customer’s contact information, billing information and credit card information, where applicable, are correct and undertakes to update such information as soon as possible when changes to such information occurs.
4.3 The Customer shall be responsible for the activities conducted by the Customer and the Users within the Services and shall use the Services in compliance with national laws in conjunction therewith. All Content uploaded to, transferred through, publicly posted, processed or entered into the Services by the Customer and/or Users shall be the sole responsibility of the Customer.
4.4 The Customer shall be responsible for monitoring its Content and shall be liable vis-à-vis Bizztracker for ensuring that Content transferred to or handled within the Services which is processed by the Customer and/or Users does not infringe any third party rights nor in any other manner violates governing legislation, and that the Customer and Users possess such necessary licences from third parties as may be required in order to process the Content/use the Services.
4.5 The Customer undertakes to use the Services in such a manner that such use does not prevent or disrupt other computer communications or mobile telephone communications or prevent or disrupt the equipment employed in order to provide and use the Services.
4.6 The Customer is aware of and acknowledges that it is not permitted to use the Services in order to gain material in violation of applicable national law.
4.7 The Customer undertakes not to use the Services in any manner which may result in the infringement of any third party’s copyright, or which constitutes a dissemination of business secret, or may incite a third party to commit or participate in a crime, or may be understood as constituting a threat, or to use the Services in any other manner incompatible with the purpose intended.
4.9 The Customer shall remain liable for the Users’ use of the Services under this Agreement and ensure that Users perform their obligations towards Bizztracker. To the extent the Customer is unable to perform an obligation on behalf of a User or is unable to cause the User to perform the same, the Customer shall indemnify Bizztracker insofar as Bizztracker incurs any loss, provided that such loss is related to the non-performance by the User of its obligations to Bizztracker.
4.10 The Customer shall defend and indemnify Bizztracker for any claim, suit or proceeding brought against Bizztracker by Users and/or third parties arising out of or connected to Content processed by Users/the Customer within the Services or for which the User/Customer is otherwise responsible, unless Bizztracker is liable for such claim in accordance with the provisions of section 11, “Limitation of Liability”, below.
4.11 The Customer is obligated to notify Bizztracker regarding any suspected breach of these provisions.
5 Fees and Payment Terms
5.1 The Customer shall pay compensation for the Services in accordance with the fees set out in the Order Form or otherwise agreed. Notwithstanding the above, Bizztracker may each calendar year increase its fees with not more than 10 per cent.
5.2 Payment shall be made by the Customer against invoice or through use of a credit card approved by Bizztracker. Payment must reach Bizztracker in full within fourteen (14) days of the issue date of the invoice or credit card charge. Interest on overdue payments shall be payable according to law. Bizztracker shall be entitled to charge a fee for any payment reminders and reserves the right to send the same via e-mail to an invoice reference provided by the Customer. The Customer shall be responsible for the reasonable costs incurred by Bizztracker when collecting overdue fees.
5.3 The Customer undertakes to make payment of invoices, in the currency stated on the invoice, into the account stated on the invoice.
5.4 Without prejudice to its other rights, Bizztracker may temporarily disable the Customer’s and the Users’ access to the Services in the event the Customer has overdue payments in excess of twenty (20) days. In addition, Bizztracker may terminate a Subscription, delete and destroy the Customer’s Content and to immediately terminate this Agreement in the event of overdue payments in excess of fifty (50) days.
5.5 In the event of early termination of a Subscription, the Services or the Agreement, the Customer shall not be entitled to a refund of any prepaid fees.
6.1 Bizztracker shall hold title to any and all intellectual property rights and technical solutions to the Services or, in the alternative, shall possess a sole right to use the same. Such intellectual property rights and technical solutions may only be used by the Customer in the manner stated in this Agreement. Under no circumstances shall the Customer or a third party acquire any intellectual property rights to the Services or to the software or technical solutions used in the Services, or to any trade mark or any other business mark belonging to or used by Bizztracker. Access to the Services is licensed, not sold.
In the event of an agreed case study or similar between Customer and Bizztracker, all intellectual property rights to material produced, including but not limited to photos, quotes, interviews, videos, testimonials, under such work will belong to Bizztracker and may at its sole discretion be used by Bizztracker in the marketing of its services.
6.2 All Content uploaded to, transferred through, publicly posted, processed or entered into the Services by the Customer and/or Users shall remain the sole property of the Customer or its respective legal owner. Bizztracker shall have no liability for such Content.
6.3 The Customer may not in any way modify, decompile, disassemble or reverse engineer the Services except as permitted by law.
7 Customer Support
7.1 Bizztracker provides customer support by e-mail regarding Customers’ enquiries in connection with use of the Services. Such support is provided on weekdays (excluding Dutch public holidays) during Bizztracker’s ordinary office hours and to the reasonable extent decided upon from time to time in detail by Bizztracker.
7.2 Enquiries and/or error notices must be submitted to Bizztracker by e-mail in accordance with the contact information available on the Web Site.
8 Personal Data, Privacy, Disclosure
8.1 In order for the Customer to be able to use the Services, the Customer must provide certain data to Bizztracker regarding the Customer’s representatives, including but not limited to full name, e-mail address, contact details and type of organisation. Following receipt of such data, Bizztracker will process the same using automatic data processing in order to enable Bizztracker to administer and otherwise perform its obligations within the scope of the Services and to ensure that unauthorised persons do not gain access to the Services.
8.2 In addition, in order for the Customer to be able to use the Services, the Customer must also allow Bizztracker to store and retrieve session information on the Customer’s representatives’ end terminal equipment, through the use of “cookies”. The purpose of such storage and retrieval of information is to enable the necessary login/logout procedures used in the Services and to ensure that unauthorised persons do not gain access to the Services.
8.5 The Customer is aware of and acknowledges that Bizztracker will obtain the consent of the Users according to sections 8.1 – 8.4 above. Customer guarantees that such consent is given by the Users. A User that does not give its consent will not gain access to the Services. If third party applications are made available by Bizztracker within the Services, Customer acknowledges that Bizztracker may allow such third party application provider access to Content and personal data as required for the interoperation of such embedded or linked applications.
8.6 If Bizztracker is considered to be a personal data assistant to Customer, Bizztracker will accept such assignment based on the instructions and guidelines given by the Customer as the controller of personal data who has the full responsibility for the registered data under the applicable national law.
8.7 Bizztracker shall adopt adequate technical systems and operational procedures to protect the privacy of the Customer and the Users. Bizztracker’s
information gathering and dissemination practices are set forth in the Privacy Statement, which is available on the Web Site.
8.8 The Customer accepts that Bizztracker is not obliged to disclose information to Customer in respect of individual Users use of the Service.
8.9 The Customer agrees that Bizztracker may disclose the fact that the Customer is a paying customer of Bizztracker. In relation thereto, the Customer agrees that Bizztracker may use the Customer’s name and logo to identify the Customer as a customer of Bizztracker on the Web Site, and as part of a general list of Bizztracker’s customers for use and reference in Bizztracker’s promotional and marketing literature.