Terms and conditions
These Terms of Service are between you or the entity you represent ("you") and CheckTech B.V., Stationsplein 3 (3rd floor) 4811 BB, Breda, the Netherlands. Besides these Terms of Service, the agreement between you and Check6 consists of the Order Form, the Services Description and the Service Level Agreement (together, the "Agreement"). The Agreement is effective as of the date on which we provide you with confirmation of the Services you purchased or the date as of which the Services are renewed.
The following terms have the following meanings:
Account: a User account on the Check6 Platform
Check6 Platform: the digital platform developed by Check6 that provides you and your Users a point of access to the Services.
Custodian: a party that provides data to Check6 at the request of and authorized by you, in a manner supported by Check6.
Instructions: instructions forwarded by Check6 to you from time to time relating to access to and use of the Check6 Platform and the Services.
Order Form: the order form.
Services: access to the Check6 Platform and services made available by Check6 to you via or based on the Check6 Platform as set out in the Order Form.
Services Description: the description of the Services as amended from time to time and made available through the Check6 Platform.
SLA: the Service Level Agreement as amended from time to time and accessible at [www.check6portal.com].
User: you or a person who is authorised by you to access and use the Services.
The Agreement is entered into for an initial term of twelve (12) months, unless the Order Form specifies otherwise. Upon expiry of this initial term, the Agreement shall automatically renew for an additional term of twelve (12) months or any other period as agreed between parties, unless terminated by either party with at least one-month prior written notice.
a. Subject to you complying with the terms of the Agreement, Check6 shall use reasonable efforts to provide the Services in accordance with the Services Description and the SLA, during the term of the Agreement, except if the nature of the Services indicates otherwise. b. Should Check6 not provide certain Services in accordance with the Agreement, your sole remedy shall be to have Check6 re-perform the relevant Services upon reasonable written notice.
4. Applicability and ranking order
a. These Terms of Service apply to all agreements between Check6 and you. b. Check6 may unilaterally amend the Services Description, SLA and other terms of this Agreement from time to time to optimise its product offering. Material changes to the Agreement shall become effective 30 days after they are posted, except if the changes apply to new functionality in which case they shall be effective immediately. Check6 shall use reasonable endeavours to inform you of any such changes in advance. Should any such amendment materially and negatively affect the value of the Services to you, you may inform Check6 of your objections in writing within 15 days after the amendments have been posted. If Check6 does not adequately address such objections within 15 days after receiving such notice, you may terminate the Agreement with prior written notice as of the moment the change becomes effective. c. The applicability of any other (general) terms and conditions which may be used by you are hereby specifically rejected. d. To the extent parts of the Agreement conflict with each other, the earlier mentioned part will prevail over the later mentioned part: Order Form, Terms of services, Services Description and SLA.
a. You shall pay the fees as set out in the Order Form and in accordance with the terms stated on each invoice we send. You shall pay each invoice submitted by us within 14 days of the date of the invoice in full and cleared funds to the bank account nominated by us. b. All fees are exclusive of VAT and other levies that are or may be imposed in relation to the Services. All fees must be paid in the currency mentioned on the Order Form.
c. If you consist of several natural and/or legal persons, each such person or persons shall be deemed to be jointly and severally committed to fulfil the obligations under the Agreement. d. You are not entitled to suspend payment or to set off amounts due. If you fail to pay the amounts due or do not pay them in accordance with the terms, you shall automatically be in default. Check6 shall thereafter charge interest at 1% per month on your outstanding amounts. If you, after a reminder, fail to pay in full you shall compensate Check6 for all costs of recovery and legal proceedings. This shall not affect the other legal and contractual rights of Check6.
6. Rights and obligations Check6
a. Check6 shall maintain the Check6 Platform. Check6 shall endeavour to provide maintenance at such hours as to least affect the use of the relevant Services, but may suspend the Services for emergency maintenance at any time. Check6 shall endeavour to inform you of the maintenance in advance. b. In order to prevent possible liability towards third parties, Check6 may restrict your use of the Services. If Check6 reasonably deems you to violate the terms of the Agreement, Check6 may deny you or a User access to the Services.
7. Your obligations
a. Unless otherwise agreed upon, you are solely responsible for the use of the Services by the Users, the manner in which they use the results of the Services, and their compliance with the Agreement.
b. You shall ensure that Users:
· comply with all applicable laws, regulations and Instructions;
· cooperate with Check6 and provide upon request all information that Check6 requires by law, regulation or according to Check6's internal policies for the provision of the Check6 Platform and the Services;
· not (i) copy, modify, or reverse engineer the Check6 Platform and/or the Services, (ii) design or make derivative works based upon the Check6 Platform and/or the Services, (iii) use the Check6 Platform and/or the Services to develop any products or services without Check6's prior approval, nor (iv) sell, license, rent, transfer or assign (any part of) the Check6 Platform and/or the Services to any third party.
c. In order to use the Check6 Platform, Users need an Account and login information provided by Check6. You must keep all Account and login information secure and must not share it with any unauthorised persons. You are liable for all use made of the Services via an Account. You fully indemnify Check6 against all claims by third parties regarding damage or otherwise, in any way whatsoever arising from such use.
d. You may appoint one or more Custodians to provide data in the formats supported by Check6. Check6 will not be responsible for the behaviour of the Custodians, nor for the data provided by Custodians or third party data providers used by Check6 (but Check6 may assume the correctness and completeness of such data).
8. System Requirements and Security
a. You shall need to have in place adequate software and data communication facilities for connecting to and communicating with the Check6 Platform, as further set out in the SLA. Check6 is not a party to any agreement in this respect between you and your supplier(s). All fees and costs of access to and use of the services offered by these third- party suppliers shall be for your own account and its access to and usage of such services are at your own risk.
b. You are solely responsible for the adequate security of your systems and devices used to access and use the Services, including but not limited to having in place up-to-date anti-virus software, anti-spyware software, firewall software and any and all other relevant security tools generally used in the industry.
c. You shall ensure that correct log-off procedures are followed when exiting or leaving the Check6 Platform or otherwise ending access to the Services, and shall not leave any system or device used for accessing the Check6 Platform unattended if such system or device is still logged on to the Check6 Platform.
d. Should you discover or suspect any unauthorised access to and/or use of the Services, for example as the result of a virus or spyware, you shall immediately take all necessary measures to prevent any such unauthorised access and any loss and/or damage as a result thereof, and you shall inform Check6 immediately without delay. Check6 reserves the right to block access to (any part of) the Check6 Platform and/or the Services at any time if it suspects any unauthorized access to and/or use of the Check6 Platform and/or the Services, including following any notification from you to Check6 to that effect. The means of notification and the contact details of Check6 can be found in the Check6 Platform or are otherwise communicated by Check6. A failure to notify Check6 without undue delay constitutes gross negligence of you.
9. LIMITATION OF LIABILITY
a. Check6 does not warrant that the Services shall be uninterrupted, available or complete at all times, nor that the Services shall be free from any errors, faults or viruses. Check6 shall not be responsible for the accuracy, completeness or timeliness of information provided to you through the Services. Unless explicitly agreed otherwise, the information in or provided through the Services does not constitute advice to you.
b. Any failure by Check6 to ensure the availability, performance and/or quality of (any part of) the Services does not constitute a breach of the Agreement and Check6 shall not be liable, whether asserted on the basis of the Agreement or otherwise, for any loss and/or damage resulting from your or User's use of or inability to use (any part of) the Services, including any loss and/or damage caused by any incorrectness or incompleteness of the information in or provided through the Services. Check6 excludes and limits its liability in this respect to the fullest extent possible under applicable law.
c. In no event shall Check6 be liable, whether asserted on the basis of the Agreement or otherwise (e.g. on the basis of tort), for any indirect or consequential loss or damage, damage to reputation, costs of procuring an equivalent service or product, or loss of profit, business, business opportunity, goodwill, data, anticipated savings, wasted expenditure, losses incurred as a result of any claim against you which has been caused by the actions or omissions of Check6, or losses of customers and contracts, regardless whether or not such loss or damage was reasonably foreseeable.
d. Subject at all times to clauses 9a, b and c above, Check6' aggregate liability per year is limited to compensation for direct damages up to a maximum amount equal to the total amount paid by you in the relevant calendar year, but never more than one million Euro.
e. Nothing in the Agreement shall limit the liability of either party for death or personal injury caused by negligence, fraud or fraudulent misrepresentation, or any other liability that cannot be lawfully excluded.
You shall indemnify and hold harmless Check6 against, and reimburse Check6 on demand for any loss, damage, cost and expense (including legal expenses) incurred by Check6 in connection with any claim, demand, litigation, arbitration or other proceedings arising from or in connection with:
· Check6 being or becoming involved in any dispute, judicial or extrajudicial proceeding or any out-of-court proceeding between you and a third party related to User's access to and use of (any part of) the Services;
· your or a User's failure to comply with the Agreement;
· fraud committed by User;
· any power of attorney or authorisation granted by you to a User or Custodian or by a third party to you and/or any action taken thereunder, being invalid, non-binding or unenforceable.
11. Ownership and Intellectual Property Rights
a. Check6 retains ownership of any and all rights to the Check6 Platform and the Services, any and all associated designs documentation, and all the intellectual property rights therein and thereto (including without limitation trade secret rights).
b. The trade names, brands and logos (or signs similar thereto) from Check6 and appearing on or in the Check6 Platform and/or the Services are the exclusive property of Check6. You are not permitted to use any of those trade names, brands and logos without prior consent of Check6.
a. Each party shall ensure that any and all data and information it receives from the other party is kept confidential. This duty of confidentiality shall not apply to Check6 if and insofar as Check6 is required to provide the data or information concerned to a third party in accordance with a court decision or a statutory requirement, or if and insofar as doing so is necessary for the proper performance of the Agreement. Each party may only use the (confidential) data and information it receives from the other party for the purpose(s) for which it was provided.
b. You acknowledge that the Services are confidential in nature and that these may contain trade secrets of Check6 and its suppliers.
14. Termination Without prejudice to either party's right to terminate the Agreement in whole or a part of the Services under applicable law, either party may terminate the Agreement or a part of the Services for convenience by means of cancellation by sending an official notice thereto to the other party. Such cancellation shall have effect three months after notice of cancellation is received by us. You may terminate this Agreement or (part of) the Services at any time during its term; however, you must pay all amounts due and owing before the termination is effective, and no refunds shall be provided.
15. Transferability / Subcontracting Check6 may freely assign its rights and/or obligations under the Agreement to any third party without any cooperation of consent of you being required. Check6 may engage the services of third parties for the performance of its obligations under the Agreement without your prior cooperation and/or consent.
16. Survival of rights and obligations Rights and obligations under the Agreement that by their nature should survive, including, but not limited to, any and all provisions concerning intellectual property, confidentiality, indemnity and liability, shall remain in effect after termination or expiration of the Agreement.
17. Partial invalidity/Unenforceability If at any time any provision of the Agreement is or becomes illegal, invalid or unenforceable in any respect under any law or regulation of any jurisdiction, the legality, validity or enforceability of the other provisions shall not in any way be affected or impaired thereby.
18. Third Party Rights
a. A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists, or is available, other than in that Act.
b. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement is not subject to the consent of any person that is not a party to this Agreement.
19. Applicable law & dispute resolution
a. This Agreement and the Services provided thereunder and any and all non-contractual obligations arising out of or in connection therewith, will be governed by and construed in accordance with the laws of England and Wales, unless the Order Form stipulates that the laws of the Netherlands are applicable.
b. All disputes arising in connection with the present Agreement, or further agreements resulting therefrom, shall be settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute.