Terms and conditions

  1. Definitions

In these terms and conditions, the following capitalized terms have the meaning set forth here under:

  • Administration: records which are kept with the use of the Agiblocks Service;
  • Administrator: a User who has been appointed by Subscriber as an administrator of the Subscriber’s Agiblocks Service Environment;

 

  • After-Hours Support: Subscriber Support provided outside of the normal Monday through Friday 8:30-23:00 Central European Time (CET) Support Hours;

 

  • Agiblocks: the application for Commodity Trade and Risk Management by Agiboo BV;

 

  • Agiblocks Environment: the Agiblocks Service configured and dedicated to Subscriber, made available to the subscriber by a URL;

 

  • Agiblocks Service: the Agiblocks application made available on-line for administering and managing commodity trading activities;

 

  • Agiboo: Agiboo B.V., with its registered seat and office address at Guamstraat 8, 1339 NB, Almere, the Netherlands;

 

  • On-line Support Center: a web based system used to log and track all reports from customers sent via email or directly entered into the web based system;

 

  • Order Confirmation: the (electronic) order form which has been submitted by Subscriber to Agiboo that describes the services and applicable terms and conditions for these services;

 

  • Parties: Agiboo and Subscriber;

 

  • Standard Prices: the standard prices as disclosed by Agiboo for standard services as disclosed by electronic or any other form on standard subscription services and/or standard support services;

 

  • Support Ticket: a report, message or question from a User to Agiboo related to the use or a problem of the Agiblocks Service;

 

  • Subscriber: the natural or legal person who has entered into the Subscription Agreement;

 

  • Subscription: the composition of functions, services and users the subscriber has subscribed through;

 

  • Subscription Agreement: the agreement referred to in Article 2.1;

 

  • Subscription level: a combined set of functionalities and/or usage rights as specified in the standard prices;

 

  • Subscription fee: the fee subscriber is due to Agiboo related to services acquired through an Order Confirmation;

 

  • Subscription Start Date: 1st day of the month in which the subscriber signs the initial Order Confirmation and has paid the first Subscription fee in full;

 

  • Subscription Term: the time period a subcribtion fee has been paid for by a subscriber.

 

  • Subscription Renewal Date: first day of the month after a subscribtion term has been ended

 

  • Service Engagement Agreement: any special  set of terms and conditions which may have been agreed between Agiboo and Subscriber on non-standard services;

 

  • Support: the provision of Subscriber support pursuant to section 7.

 

  • Support Hours: the opening hours of Agiboo’s support department, being Monday to Friday 08.30 – 23.00 hours, Central European Time excluding Netherlands public holidays;

 

  • Subscription Fee Due Date: date on which the Subscription fees must be paid to continue using the Agiblocks Service;

 

  • User: a natural person who is authorized by Subscriber to use the Agiblocks Service on behalf of Subscriber and has access to the Agiblocks Service;

 

  1. Applicability

 

  • These terms and conditions and the Order Confirmation constitute the Subscription Agreement between Subscriber and Agiboo and are legally binding on Subscriber and Agiboo. The Subscription Agreement applies to each Subscription taken out by Subscriber.

 

  • The documents constituting the Subscription Agreement have the following order of priority (lowest to highest): the Order Confirmation, these general terms and conditions for SaaS subscribers and The Nederland ICT Terms and Conditions 2014. In case of conflict between those documents, the document with the highest priority will prevail.

 

  • Agiboo may make amendments to the Subscription Agreement. In case of an amendment, Agiboo will give Subscriber at least 30 days’ notice thereof. An amendment will be considered to be accepted by Subscriber if Subscriber does not reject the amendment within 30 days following the notification thereof. If Subscriber rejects the amendment, Agiboo will be entitled to terminate the Subscription Agreement by giving at least 90 days’ notice of termination with effect from the end of a calendar month.

 

  1. Subscriptions

 

  • An Order Confirmation defines the functions and usage rights of the Agiblocks Service and Agiblocks service levels provided within a Subscription to the Agiblocks Service.

 

  • The software functions, number of Users and scope of services offered under a Subscription and the rights attached to a Subscription depend on the Subscription level defined in the Order Confirmation.

 

  • Subscriber acknowledges being familiar and agrees with the functions offered under each of the Subscriptions taken out by Subscriber and the rights attached to those Subscriptions.

 

  • Agiboo will, at the Subscriber’s written request submitted through the On-line Support Center, register Users and create and manage functions, or remove Users or functions from the Agiblocks Service.

 

  • If the number of Users or Administrators, Administrations and/or other functionality of the Agiblocks Service or other services used by a Subscriber does not correspond with the specification as detailed on the Order Confirmation, Agiboo may charge Subscriber appropriate service fees for any Users, Administrators, Administrations, functionality, services and so on, being outside the scope as detailed on the Order Confirmation.

 

  • A Subscriber may only register its officers, employees and other persons employed or engaged by Subscriber as Users. On request of Agiboo, Subscriber must demonstrate that a User meets these requirements. The burden of proof that a User meets these requirements rests on Subscriber.

 

  • A Subscriber may extend a Subscription (users or functions) by signing a new Order Confirmation. The number of Users or functions may be extended at any time and will be effective immediately after such extension.

 

  • A subscriber may decrease in the number of Users, effectively unsubscribing users. Unsubscribing users will require a 30 day’s notice period, this notice period starts at the earliest next subscription renewal date of the relevant user.

 

  • A Subscription starts on the first day of the month in which the initial Order Confirmation has been submitted and the payment of the first Subscription fee has been processed.

 

  • A Subscription Extension is effective on the first day of the month in which the Order Confirmation the extension has been submitted and the payment of the respective Subscription fee has been processed.

 

  • A Subscription is automatically renewed each calendar month on the last day of the calendar month unless cancelled. Cancellation requires a 30 day’s notice period, this notice period starts at the earliest next subscription renewal date, unless Agiboo no longer offers the Subscription service.

 

  1. Subscription Fees and Pricing
    • The initial fees to be paid by Subscriber to Agiboo for the use of the Agiblocks Service and/or additional services are to be listed on an Order Confirmation.
    • Agiboo will invoice Subscriber additional services at the receipt of an Order Confirmation related to these additional services.
    • The recurring fees for Subscriptions are based on the services described in the accumulated Order Confirmations.
    • Agiboo will invoice Subscriber, initially starting on the Subscription Start Date. Thereafter, Agiboo will invoice Subscriber each additional month of the Agiblocks Service in the month preceding the month of service.
    • Standard Prices of standard subscription services or standard service levels or standard services will be made available through electronic correspondence or through a web site.
    • The prices for services, which cannot be obtained through the Order Confirmation but have been agreed in separate engagement agreements and/or are based on Agiboo’s Support Consulting and Advisory Fees will be determined by mutual consent.
    • Specific consultancy or training services offered by Agiboo to a Subscriber will be charged to Subscriber prior to execution of these services. Subscriber is required to pay for these services in advance of execution of these services. Agiboo may agree to post service payment of the fees for training or consultancy services.
    • Without the Subscribers approval Agiboo is entitled to increase its fees annually with the same percentage as the increase of the consumer prices during the prior calendar year as published by Statistics Netherlands (Centraal Bureau voor de Statistiek) and to round up those prices to whole Euro’s. Agiboo will give at least a month notice of such increase

 

  • Agiboo is additionally entitled to change its fees for subscriptions and or other services when it considers such reasonable and necessary to continue and maintain quality of these services. Subscribers will be notified at least 90 calendar days in advance of such a fee change. In case Subscribers decide to terminate a Subscription as a consequence of the additional change of fees, they are entitled to continue the services up to effectuation of their termination of the services under actual conditions, but only for a maximum period of 90 calendar days after the changed fees become effective. The subscriber will then be credited for the difference between the current fees and the changed fees at the effective termination of the service.
  • Agiboo is authorized to automatically or manually audit the user management data and/or configuration data entered in the Agiblocks Environment and to use those data to ensure correct calculation and invoicing of the fee for the use of the Agiblocks Service to Subscriber. In addition, Agiboo has the right to check the numbers of Users, Administrations, Configurations and Subscriptions maintained by Subscriber in the Agiblocks Service.
  • Agiboo will be entitled to suspend one or more User’s access to the Agiblocks Environment or the access of all Users when the number of Users or the functions used by Subscriber does not correspond with the Order Confirmation (s). Agiboo will be entitled to suspend a User’s access to Agiblocks if it has prima facie evidence that such User does not meet the requirements set forth in Section 6: Provision and Use of Agiblocks.

 

  1. Terms of Payment

    • Unless otherwise expressly stated, all monetary amounts are in EURO paid through normal banking channels.

 

  • Subscriber is required to pay by direct debit. In case of such payment by direct debit, the amount of the invoice will be debited from Subscriber’s account on the day of the invoice.

 

  • For international payments, transaction costs or exchange rate differences related to these international payment are at the expense of the Subscriber.

 

  • Alternatively Subscriber may pay by alternate banking channels, or payment services such as credit card companies, PayPal or After pay. Additional fees and conditions may apply.

 

  • If a direct debit entry or payment through alternative payment methods fails or is not honored (either completely or partly), Agiboo will be entitled to charge an administration fee to Subscriber of at most € 50,- per invoice.

 

  • All payments made by Subscriber will first be applied against the oldest of any outstanding invoices from Agiboo, irrespective of any other indication by Subscriber. Subscriber may not postpone payment or withhold payment of any amount due to Agiboo because of any set-off, counterclaim, abatement, or other reason.

 

  • All payments shall be due on invoice date. Payments on undisputed amounts not received when due shall accrue interest at five per cent (5 %) per month until paid. In addition, Subscriber shall pay all costs and expenses for collection. Furthermore, in the event any payment is not made when due, Agiboo shall be entitled to suspend services immediately, and, at its option, to terminate this agreement.

 

  • All sums payable by Subscriber to Agiboo shall become due immediately on the termination of the Subscription, despite any other provision

 

  1. Provision and use of Agiblocks

    • The Agiblocks Service is offered from a location selected by Agiboo and the location and the related infrastructure will not specifically be maintained for the Subscriber.

 

  • The Agiblocks Environment is made available through an URL. The Agiblocks Environment identified with the URL is maintained specifically for the Subscriber.
  • Agiboo has the right to modify the offered functionality of Agiblocks Service from time to time to improve or change the functionality and correct errors. Agiboo will make every effort to solve errors in Agiblocks Service, but does not warrant that all errors are corrected. If a modification results in a change in the functionality, Agiboo will give notice thereof via an online communication or an e-mail to the Administrator. No changes will be made or omitted for Subscribers or an individual Subscriber.

 

  • The Subscriber’s Users determine which information is saved and/or exchanged using the Agiblocks Service. Agiboo has no knowledge of this information. Subscriber is responsible for ensuring that the information saved and/or exchanged by Users is lawful and does not breach the rights of third parties. Agiboo does not accept any liability whatsoever for the information saved and/or exchanged using the Agiblocks Service.

 

  • Subscriber shall ensure that the Users carefully observe the user instructions and directions of Agiboo and are bound to the applicable practices of normal use of a web based service such as the Agiblocks Service. If the conduct of Subscriber or a User endangers the proper functioning of the Agiblocks Service, Agiboo will be entitled to block access to the Agiblocks Service by such User or all Users, without prior notice.

 

  • Agiboo is not permitted to use the data from the Agiblocks Environments or the Administrations, other than to provide services to Subscriber. Agiboo is permitted to use the data in anonymous form for statistical and performance management purposes. Agiboo is allowed to use a copy of an Agiblocks Environment to monitor the correct functioning of and Agiblocks Environment or to test the correct functioning of an update of the Agiblocks Service.

 

  • Agiboo, Subscriber and the Users are obliged to keep all User names and passwords secret. Subscriber shall endeavor that Users change their passwords frequently, but at minimum once a calendar year.

 

  • Agiboo is not liable for misuse or loss of User names and passwords, and it may assume that the Users who login using a User name and password are actually the Users who have been authorized to do so by Subscriber. The moment Subscriber knows or has reason to suspect that User codes or passwords have fallen into the hands of unauthorized persons, it will immediately inform Agiboo thereof.

 

  • Agiboo applies no fixed limit to the quantity of data and/or master files that Subscriber or Users may process using the Agiblocks Service. However, this does not mean that Agiboo will permit an unlimited processing of such data. In case of higher than average use of an Administration or the Agiblocks Environment compared to the number of Subscriptions being paid for, Agiboo will inform Subscriber thereof. When Subscriber does not reduce or cause the reduction of such use, Agiboo may impose a reasonable increase in fees. If Subscriber does not agree to pay the higher fees, Agiboo has the right to terminate the Subscription Agreement at no cost with 30 days’ notice.

 

  1. Support services

    • Subscriber has the right to Support for the use of the Agiblocks Service with respect to the functionality of the Agiblocks Service. Support comprises the explanation of Agiblocks documentation and help to allow Subscriber to get the Agiblocks Service working correctly. Support is limited by the Subscription level and/or Support Service levels acquired by the Subscriber and does not in any case extend to the full operation of functions when no training has been followed by the User, or the provision of implementation, training and consultancy services.
    • A Subscriber shall appoint at least one Administrator. The Administrator will act as principal contact person with Agiboo. Agiboo may require that an Administrator meets certain standards of competence set by Agiboo or attends certain training sessions.
    • Support Hours are defined as Monday through Friday from 8:30 to 23:00 Central European Time. The following Netherlands Public holidays are excluded from the normal Support Hours:
    • New Year’s Day
    • Christmas Day
    • Second Christmas day (Boxing Day)

 

  • All requests for Support in non-Support Hours shall be deemed to be After-Hours Support. After-Hours Support may be provided if Agiboo is notified 24 hours in advance of the request for After-Hours Support and a specific After-Hours Support Agreement is made or if there is a separate agreement where After-Hours Support is defined.
  • Support is provided via an On-line Support Center. If assistance is desired at the location of Subscriber, a separate agreement must be made.

 

  • Requests submitted to the On-line Support Center automatically create a help ticket. Agiboo confirms that a help ticket will be responded to within Support Hours. Agiboo will endeavor to adequately answer questions, but does not warrant the correctness and/or completeness of the answers. Questions regarding the method of commodity trading, risk management, accounting or internal record keeping regulations will not be handled.
  • Agiboo will be entitled to offer telephone support as a phone paid service. Support by telephone will only be given during Service Hours and will only be available to Administrators.

 

  • Subscriber shall ensure that, before submitting a help ticket, users will first ask their questions to their Agiblocks Administrator or consult the Agiblocks On-line Reference Guide located in the question mark in Agiblocks.

 

  • Help tickets have the following priority:

 

  • Priority A: for the Agiblocks Service being entirely unreachable owing to a fault on the part of Agiboo, or the Agiblocks Service having entirely stopped, such that none of the functions are available;

 

  • Priority B: on a problem that causes a serious application error, which can endanger the progress of an essential processing period, but which does not bring the entire Agiblocks Service to a stop;

 

  • Priority C: on a minor problem in the Agiblocks Service that does not require the immediate response of Agiboo;

 

  • Priority D: on all questions and requests for information regarding the use or implementation of the Agiblocks Service.
  • The following response times apply within the Service Hours:

 

  • Priority A Tickets: 2 hours
  • Priority B Tickets: 5 hours;
  • Priority C Tickets: 8 hours;
  • Priority D Tickets: 20 hours.

 

In determining the response time, only Service Hours will be taken into account. Agiboo will decide in good faith which Priority applies to a Ticket.

 

  • Agiboo is not liable for the incorrect, incomplete or delayed sending and/or receipt of a help ticket submitted by a User, caused by the incomplete functioning of the telecom services or hardware of third parties and/or Subscriber.
  • Subscriber can monitor how Agiboo follows up a help ticket in the On-line Support Center.

 

Agiboo and third parties who are engaged by Agiboo may have access to an Agiblocks Environment and may make those changes to an Agiblocks Environment as they deem necessary for solving a problem indicated in a help ticket.

  • Agiboo can freely choose which staff member deals with a help ticket. Subscriber cannot demand to be served by a specific person.
  1. Accessibility, Availability and Performance

 

  • Agiboo will make every effort to ensure the accessibility of the Agiblocks Service by Subscriber for the purposes to which it is entitled.

 

  • Problems with accessing Agiblocks should be submitted via a help ticket to the Agiboo On-line Support Center.
  • Agiboo shall provide reasonable Support during Support Hours for any failure of Agiblocks including any failure to provide access to the Agiblocks Environment provided always that such failure is not due to the fault of the Subscriber.

 

  • Routine upgrades and preventative maintenance shall be performed as needed but will not be scheduled without written Subscriber notice.
  • Agiboo provides that Agiblocks will be available to Subscriber at least 95.0% in any calendar month.

 

  • Availability = (Total Time – Lost Time)/Total Time x 100%

 

  • Total Time = Available time for 8:30 – 23:00 Monday through Friday for work days within a month excluding Netherlands public holidays listed in section 7.3.

 

  • Lost Time = Lost time in hours. The total elapsed time, within an eight and one-half (8.5) hours per day, between the limits of Support Hours 8:30 – 23:00 Central European Time, Monday – Friday, excluding Netherlands public holidays.

 

  • Lost Time shall commence upon notification by the Subscriber via a help ticket to the On-line Support Center of a fault condition which prevents full access to Agiblocks and shall end when the problem has been eliminated and access to Agiblocks is again available.

 

  • Lost Time does not include agreed upon or scheduled maintenance during 8:30 – 23:00 Central European Time.

 

  • If Agiboo does not meet the availability obligation, Subscriber will be eligible to claim and receive compensation as described below.

 

Monthly Uptime Percentage Compensation subtracted from the next Subscription invoice
< 95.0% – >= 90.0% 1%
< 90.9.0% – >= 80.0% 5%
< 80.0% 15%

 

Any claim for compensation needs to be filed by Subscriber through the On-line Support Center and such a claim should be substantiated with a detailed specification of the down time(date, time, duration) and a calculation of the compensation.

 

  • The availability set forth in section 8.5 does not apply in the following situations:

 

  • during the regular maintenance or upgrade period windows. Agiboo will inform Subscriber about such maintenance window in writing in advance of the maintenance or upgrade period;

 

  • in case of incidents resulting from or attributable to force majeure;

 

  • in case of any problem or disruption caused by an act of a User;

 

  • in case of the unavailability of the Agiblocks Environment at the request of Subscriber or unavailability of the Agiblocks Environment during work at the request of Subscriber.
  • Agiboo will make every effort to ensure that the Agiblocks Service works properly without any problems and that the speed is sufficient to be able to continuously work with it during the day.
  • Agiboo only warrants the performance indicated in Article 8.6 if and insofar as Subscriber satisfies the minimum system requirements specified by Agiboo, including the support of Internet Explorer, Firefox and other browsers that run under Windows, Apple Macintosh and Linux or other platforms. Moreover, Subscriber must have sufficient bandwidth. Systems and band width requirements are disclosed in the Agiblocks documentation but may vary over time.

 

  1. Data Back-Up, Recovery and Transfer

 

  • Subscriber consents to a reserve copy being made of any production data in an Agiblocks Environment. The back-up procedure used by Agiboo will be done daily after 23:00 and before 1:00. The backup will be kept for 4 weeks.
  • Upon the request of Subscriber Agiboo will restore data in the Agiblocks Environment using reserve copies. For such service a separate engagement agreement is required at applicable standard fees and consulting rates

 

  • Before the termination date of the Subscription Agreement, Subscriber may upon written request, obtain a copy of their data in a generally accessible file format. In case of such a request, a separate engagement agreement is required at applicable standard fees and consulting rates. Agiboo accepts only an engagement responsibility for such engagement; the liability of availability, completeness, integrity and so on is explicitly excluded.

 

  • After termination of the Subscription Agreement Agiboo will destroy all Subscriber data within 7 calendar days of the termination date.
  1. Privacy and Security

 

  • Agiboo and all employees of Agiboo shall observe strict confidentiality in respect of all data in the Administrations and the Agiblocks Environments and all information that can be derived there from. Agiboo and Subscriber will observe strict confidentiality in respect of all information on each other’s business which is of a confidential nature.
  • The use of the Agiblocks Service may involve processing personal data. In this regard, Agiboo will act as data processor as referred to in Article 1 sub e of the Dutch Data Protection Act (Wet Bescherming Persoonsgegevens) and shall observe all obligations resulting therefrom. Subscriber will be deemed to be the responsible person as referred to in Article 1 sub of the Dutch Data Protection Act in respect of the personal data in the Administrations and shall meet all its obligations resulting therefrom.
  • All staff who act under the authority of Agiboo and have access to personal data, will observe confidentiality with respect to those personal data.

 

  • Agiboo will take reasonable measures to protect the personal data saved or processed in the Agiblocks Service and shall strictly adhere to the Dutch Data Protection Act. Agiboo will make reasonable effort to prevent unauthorized persons from accessing data of Subscriber.

 

  • The data of Subscriber will be saved and processed on one of the Servers, all of which are located in a country forming part of the European Economic Area (EEA).

 

  • Subscriber shall take reasonable measures to ensure that the Users will use the customary security software that should normally be installed on a computer, such as anti-virus, anti-spam, anti-spyware, anti-malware, anti-phishing and firewall software, as well as the security measures that Agiboo makes available.

 

  1. Confidentially of Information and Intellectual Property

 

  • During the term of this Agreement and in perpetuity thereafter, each party shall keep in confidence all of the Confidential Information, as defined below, of the other party, and shall not use such Confidential Information of the other party without such other party’s prior written consent. No party shall disclose the Confidential Information of any other party to any person, except to its own employees, agents and independent contractors to whom it is necessary to disclose the Confidential Information for the sole purpose of performing their duties and/or exercising their rights under this Agreement, and who have agreed to receive it under terms at least as restrictive as those specified in this Agreement.  Each party shall maintain the confidentiality of the Confidential Information, with not less than the standard of care that an ordinarily prudent business would exercise to maintain the secrecy of its own most confidential information. Each party shall immediately give notice to the other party of any unauthorized use or disclosure of any Confidential Information.  Each party agrees to assist the other party in remedying such unauthorized use or disclosure of Confidential Information.  Upon either party’s request, the other party shall return all copies of Confidential Information and proprietary materials or information, and all copies and notes made thereof, received from hereunder, or destroy all Confidential Information and copies and notes made thereof, and provide a certification in writing to such effect.
  • Each party acknowledges that any party’s use or disclosure of Confidential Information, other than as specifically provided for in this Agreement, shall result in irreparable injury and damage to the owner. Accordingly, each party hereby agrees that, in the event of use or disclosure other than as specifically provided for in this Agreement, the owner shall, in addition to damages and other available remedies, be entitled to equitable relief as granted by any appropriate judicial body, including temporary restraining orders and preliminary injunctions, without the necessity of posting bond, which is hereby waived.
  • “Confidential Information” shall mean, without limitation, any and all technical and non-technical information including trade secret, know-how and proprietary information, software, computer code, source code, object code, benchmarks, competitive analyses, firmware, designs, schematics, techniques, plans or any other information relating to any research project, work in process, future development, scientific, engineering, manufacturing, marketing or business plan or financial or personnel matter relating to any party or the Funds, its present or future products, sales, prices, fees, suppliers, customers, customers, employees, contractors, investors and/or subsidiaries.
  • In case of a non-standard Subscription Agreement and all of its terms and conditions, and the negotiations among the parties prior to and after execution of the non-standard Subscription Agreement shall also be deemed Confidential Information;
  • Agiboo shall have the right to publicize in general terms its service to Subscriber in any medium.
  • Confidential Information shall not include information to the extent that: such information is or becomes publicly available other than through any act or omission of any party in breach of this Agreement; such information was received by the receiving party, other than under an obligation of confidentiality, from a third party who had no obligation not to disclose such information to others; such information was in the possession of the receiving party at the time of the disclosure as established by documentary evidence; such information was independently developed by the receiving party as established by documentary evidence without reliance on the Confidential Information and without the use of any persons who have had access to the Confidential Information; or applicable regulation, court order or other legal process requires the disclosure of such information, provided that prior to such disclosure the disclosing party shall give sufficient notice to the owner so that the other party may take reasonable steps to obtain a protective order or otherwise oppose or limit such disclosure, provided that the disclosing party does not disclose any more information than necessary to comport with such legal process, and provided that the disclosing party provides reasonable assistance to the owner to enable the owner to obtain a protective order.
  • Subscriber acknowledges and agrees that all intellectual property rights in the Agiblocks Service, including the functional and technical design, the lay out, the programming, the structure of the database, the functionalities and the source codes of the Agiblocks Service, and all related documents exclusively belong to Agiboo or its licensors. The provision of the Agiblocks Service or any related product or service does not imply any transfer of intellectual property rights to Subscriber
  • This Section shall survive the termination or expiration of this Agreement.

 

  1. Indemnities
    • Any Subscriber shall indemnify Agiboo against all liabilities, costs, expenses, damages and losses (including legal costs and expenses) suffered or incurred by Agiboo arising out of or in connection with:
      • any breach of sections 6.4, 6.5, 10.2 and 10.6.
      • any third party claim arising out of or in connection with Subscriber’s unauthorized use or adaptation of the Agiblocks;
      • claims from third parties that are based on an allegation that the information saved and/or exchanged by Subscriber or Internal Users is unlawful.
    • This section shall survive termination of this Agreement.

 

  1. Limitation of Liability
    • In no event shall any party be liable to any other party or third party in connection with this Agreement, regardless of the form of action or theory of recovery – such as breach of contract, tort, breach of warranty, failure of essential purpose, infringement of intellectual property, or otherwise –, for any: indirect, special, exemplary, consequential, incidental or punitive damages, even if that party has been advised of the possibility of such damages; lost profits, lost revenues, lost business expectancy, business interruption losses, loss of data or business information, computer failure or malfunction, and/or benefit of the bargain damages; cost of cover or replacement; and/or (d) direct damages in an amount in excess of all amounts paid between the parties under this Agreement during the twelve (12) month period immediately preceding the event giving rise to the claim.  The limitations set forth in this Subsection do not apply to any party’s breach of its confidentiality obligations, violation or infringement of another party’s intellectual property rights and/or gross negligence, recklessness or intentional misconduct. This limitation of liability shall not apply to either party’s breach of confidentiality.
    • Agiboo shall have no liability to Subscriber under the following circumstances: Subscriber does not follow the instructions as specified by Agiboo; the Agiblocks Service is used in violation of this Agreement; the Agiblocks Service is configured, customized or maintained by anyone other than Agiboo.
    • Each party acknowledges and agrees that each party shall be liable, accountable and responsible solely for its own acts, omissions and/or breaches of this Agreement, and shall not liable, accountable or responsible in any way for: any acts, omissions and/or breaches of the Agreement by any other party; and/or any breaches of this Agreement to the extent directly caused by any other party’s negligence, gross negligence, recklessness, intentional misconduct, failure to perform its obligations in accordance with the terms of this Agreement and/or breach of this Agreement.
    • In addition to Agiboo, each of its affiliated companies, employees, agents and sub-contractors may invoke the limitation of liability set forth in Article 13.1 through 13.3.
    • This section shall survive termination of this Agreement.

 

  1. Transferability & Termination

 

  • Subscriber may not, without the prior written consent of Agiboo, assign, transfer, or pledge its rights and obligations under the Subscription Agreement, or allow a third party to make use thereof.
  • Agiboo may at any time assign, transfer, or in any other manner dispose of any or all of its rights and obligations under the Subscription Agreement. Agiboo may subcontract or delegate any or all of its obligations under the Subscription Agreement to a third party.
  • An Agiblocks Service and/or service subscription Agreement is entered into for an indefinite period, and therefore any subscription term is automatically renewed at the end of its period. Either party may terminate the Agreement for convenience. In the event that Subscriber wishes to terminate this agreement, termination requires a 30 day’s notice period, this notice period starts at the earliest next subscription renewal date In the event that Agiboo wishes to terminate this agreement, a ninety (90)-day written notice of intent to terminate must be delivered to the other party, this notice period starts at the earliest next subscription renewal

 

  • Upon termination of this Agreement, all of Subscriber’s rights to access the Agiblocks Environment shall cease immediately and Agiboo will no longer be responsible for saving the data in the Agiblocks Environment. Upon Termination, Subscriber may request Agiboo to make the data saved in the Agiblocks Environment available for the Subscriber. In such case article 9. 3 shall apply.
  • Once terminated, the Agiblocks Service cannot be restarted or renewed but only recreated via a new Order Confirmation.
  • Notwithstanding anything to the contrary contained herein, the termination of this Agreement by any party will in no way terminate or otherwise constitute a waiver of any payer’s obligation to pay all payees any fees earned by such payees prior to the termination date. This provision, as well as all provisions of this Agreement regarding ownership, indemnification, confidentiality and limitations of liability, shall survive the termination of this Agreement.
  • This Agreement may be terminated upon a party’s material breach by written notice from a non-breaching party affected by such breach, provided that the breaching party shall have ten (10) days to cure such breach, or upon such shorter notice as is required by law, order, or instruction from a court of competent jurisdiction, regulatory body, or self-regulatory organization with jurisdiction over the terminating party.
  • This Agreement shall automatically terminate upon written notice, without a right to cure, if any party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency or reorganization pursuant to bankruptcy laws or laws of debtor’s moratorium, or in the event of a similar act of insolvency.

 

  1. Force Majeure
    • In the event that a party is unable to perform its obligations under the terms of this Agreement because of fire, strikes, war, riots, acts of civil or military authority, acts of God, earthquakes, judicial action, unavailability or shortage of labor materials or equipment, transmission failure, failures or delays in delivery of vendors or suppliers, delays in transportation, the acts or omissions of the other party or any other cause beyond that party’s reasonable control (each a “force majeure event”), the party will not be liable to the other parties for any damages resulting from such failure to perform or otherwise from such causes. Such non-performance will not be a default or a ground for termination as long as reasonable means are taken by the non-performing party to expeditiously remedy the problem causing such non-performance.

 

  1. Non-Solicitation and Non-Competition
    • During the term of this Agreement and any renewals hereof, and for a period of three (3) years thereafter, no party shall, without the other party’s consent, directly or indirectly solicit or encourage any of the other party’s employees or subcontractors to enter into any employment or contract for services with the soliciting party or any of its agents or contractors.
    • During the term of this Agreement and any renewals hereof, and for a period of three (3) years thereafter, Subscriber shall not develop, directly or indirectly, any computer software or system that facilitates trading of commodity products, or that substantially functions or competes with the Software Service obtained.

 

  1. Headings and Notices
    • The headings contained in this Agreement are for purposes of convenience only and will not affect the meaning or interpretation of this Agreement.
    • No amendment or variation of the Subscription Agreement shall be effective unless it is in writing and signed by both Parties or in accordance with Article 2.3
    • Notices hereunder will be in writing, will be delivered personally, sent by certified mail (return receipt requested) or sent by overnight courier, and will be addressed to a party either at address above or at a changed address specified by it in a notice to the other party.
    • Notices from Agiboo to a Subscriber will be made to the Administrator as registered by the Subscriber.
    • Notices to Agiboo will be made to support@agiboo.com and registered as a help ticket in the On-line Support Center. Subscriber will bear the burden of proof that a notice has been received by Agiboo.

18.  Waiver

  • No delay or failure of any party in exercising any right, power, or privilege hereunder shall affect such right, power, or privilege, nor shall any single or partial exercise thereof, or any abandonment or discontinuance of steps to enforce such right, power or privilege. The rights and remedies of any party hereunder are cumulative and not exclusive and any waiver, permit, consent or approval of any kind by any party of any breach or default hereunder, or any such waiver of any provision or conditions hereof, must be in writing and shall be effective only to the extent set forth in such writing.  No waiver shall be deemed to be a continuing waiver in respect to any subsequent or default, either of similar or different nature, unless expressly so stated in writing.

19.  Arbitration

  • Each party shall use commercially reasonable efforts to resolve all immaterial disputes (those involving less than EUR 10,000) by mutual agreement.
  • Each party agrees that no party will seek to institute arbitration proceedings to resolve a dispute; unless it has taken all commercially reasonable efforts to resolve such dispute with the other party or parties and such efforts have failed for a period of not less than sixty (60) days. Each party agrees that any controversy or claim arising with any other party that is not resolved in the foregoing manner, including but not limited to those relating to this Agreement or breach of this Agreement or any agreements or instruments relating to this Agreement, including any claim based on or arising from an alleged tort, shall be submitted to arbitration.
  • Each party agrees to appoint one arbitrator, and the two appointed arbitrators shall appoint a third arbitrator. The arbitrators shall conduct such arbitration in the Netherlands. The institution and maintenance of an action for judicial relief or pursuit of a provisional or ancillary remedy shall not constitute a waiver of the right of any party to submit the controversy or claim to arbitration, if the other party contests such action for judicial relief.  A claim for arbitration must be initiated by sending written notice of the claim to the other party at its address for notice as provided in this Agreement.
  • Judgment on the award rendered by the arbitrators may be entered in any court sitting in the forum state and/or the defendant’s domicile state, and the parties waive any claim that such courts do not have personal jurisdiction over it or are inconvenient forums. The prevailing party in connection with any dispute involving a court proceeding shall be entitled to collect its costs, expenses, and reasonable attorneys’ fees from the other party.
  • Notwithstanding anything to the contrary, this Section shall not be construed to prevent a party from instituting, and a party is authorized to institute, litigation to toll the expiration of any applicable limitations period, to preserve a superior position with respect to other creditors, to seek immediate injunctive or other equitable relief with respect to an infringement or alleged infringement of such party’s intellectual property rights, confidentiality rights or other rights as to which equitable relief is sought, or to enforce an arbitration award under this Section. Such actions must be initiated and maintained in any federal court sitting in the Netherlands, or the state circuit court sitting therein, and the parties waive any claim that such courts do not have personal jurisdiction over it or are inconvenient forums.

20.  Entire Agreement

  • This Agreement embodies the entire agreement of the parties related to the subject matter hereof, superseding any and all prior agreements, proposals, and understandings, whether written or oral, relating thereto. Except as provided in the Subsection relating to the substantive and procedural law of an Arbitration forum state, this Agreement shall be construed, regulated and administered under Dutch law without regard to its conflicts of law principles. If any of the provisions or parts of this Agreement are determined to be illegal or invalid, such provisions or parts shall be omitted without affecting the other provisions or parts of this Agreement which shall remain in full force and effect.

Attachments

  1. Nederland ICT Terms and Conditions 2014 English
  2. Agiboo’s Support, Consulting and Advisory Fees