These General Terms and Conditions apply to all offers of, agreements with and services provided by Awaretrain, established in Nijmegen and registered with the Dutch Chamber of Commerce under registration number 68933886.
Article 1 - Definitions
1.1 Agreement: every agreement / agreement between Awaretrain and the Customer under which Awaretrain provides services.
1.2 Customer: the person or legal person who has entered into an Agreement with Awaretrain or a person or legal person who has received an Offer from Awaretrain for the purpose of entering into an Agreement with Awaretrain.
1.3 Terms and Conditions: the provisions of this document that are always an integral part of any Agreement.
1.4 Intellectual property: all intellectual property rights and related rights, including but not limited to copyrights, database rights, domain name rights, commercial rights, know-how rights, trademark rights, design rights, related rights and patent rights.
1.5 Offer: any offer or other offer by Awaretrain to the Customer for the conclusion of an Agreement.
1.6 Platform: an online platform of Awaretrain for which (insofar as agreed) can be granted to the Customer via the internet and with which certain Services can be provided by Awaretrain and / or with which certain information can be collected by Awaretrain.
1.7 Service (s): the service (s) that Awaretrain will perform on behalf of the Customer as described in the Awaretrain Offer, the Agreement or any other medium.
1.8 Security Audit: any form of information security audit on behalf of the Client, which may include an analysis of security flaws or vulnerabilities in the Client's software or infrastructure, the Client's physical security measures (buildings and equipment), and employee security awareness from the Customer.
1.9 Website: https://awaretrain.com and https://learning.awaretrain.com
Article 2 - Scope of the Agreement and conclusion
2.1 These General Terms and Conditions apply to each Awaretrain Offer relating to the services and the form, in conjunction with the Offer, an integral part of each Agreement.
2.2 The applicability of any purchase conditions or other (general) conditions of the Customer are expressly excluded.
2.3 All Awaretrain Offers are without obligation and valid for 30 days after the date of the Offer.
2.4 The Agreement is concluded with the acceptance, confirmation or signature of the Offer by the Customer. If the acceptance by the Customer (even in the smallest detail) deviates from the Offer, the Agreement will only be concluded if Awaretrain acknowledges in writing that the acceptance of the Customer differs from the original Offer and confirms that Awaretrain agrees to the acceptance by the Customer.
2.5 The following order applies if there are inconsistencies between the provisions of different agreed documents:
(i) the Offering;
(ii) the terms of any applicable processor agreement (if any);
(iii) these Terms and Conditions.
2.6 After the Agreement has been concluded, Awaretrain will make commercially reasonable efforts to deliver the agreed Services with the necessary care and skill within the agreed time. However, times or deadlines stated by Awaretrain or stated in the Agreement are always estimates and are not considered final deadlines unless expressly stated otherwise.
2.7 The Customer will provide all cooperation that is reasonably necessary to enable the timely and correct execution of the Services by Awaretrain and / or third parties engaged by it. In this regard, the Client will, inter alia:
(i) provide all information and other materials that Awaretrain indicates are required or that the Customer should reasonably understand are necessary for the performance of the Services; and
(ii) Provide Awaretrain with access to all locations where the Services are performed and provide all on-site support reasonably requested by Awaretrain.
Article 3 - Information security
3.1 If the Agreement includes Security Audits, the Parties will reasonably record the means, purpose and scope of this Security Audit in writing. Security audits are conducted by Awaretrain staff and / or third parties engaged by Awaretrain who have sufficient expertise and skills to identify and identify vulnerabilities and vulnerabilities. Awaretrain cannot guarantee that all vulnerabilities and vulnerabilities will actually be discovered and identified.
3.2 After completion of the Security Audit (s), Awaretrain will report its findings to the Client by means of a written audit report.
3.3 Although Awaretrain will make all reasonable efforts to prevent damage to the IT infrastructure and other objects or materials of the Customer and / or third parties when performing the Security Audit (s), Awaretrain cannot guarantee that no damage is caused when performing a Security Audit. Therefore, with regard to Security Audits, Awaretrain can only be held liable for damage caused by willful misconduct or recklessness.
3.4 The Client indemnifies Awaretrain against and against all claims from third parties that directly or indirectly arise from or are related to the Security Audit (s). Furthermore, the Customer will (at Awaretrain's first request):
(i) Fully compensate Awaretrain if any fines or obligations to pay compensation are imposed on Awaretrain as a result of or in connection with the Security Audit (s); and
(ii) Fully offset any legal costs of Awaretrain (including the costs of lawyers, legal advisers or other (technical) experts) arising from or related to the Security Audit (s).
3.5 If employees or other persons engaged by Awaretrain are arrested, arrested or detained by the police, (supervisory) authorities or private security personnel, on the suspicion of having committed a criminal offense or a wrongful act, the Customer is obliged to do everything in its power to remedy the situation, assuming that the arrest, arrest or detention is directly or indirectly related to the Security Audit (s).
3.6 If the Agreement includes Security Audits, the Customer authorizes Awaretrain within the scope of the agreement to deactivate, circumvent or otherwise monitor and use the digital and physical security measures used by the Customer. The Customer declares and guarantees:
(i) Provide sufficient information to third parties who may be adversely affected by the performance of the Security Audit; and
(ii) That having been informed by the Customer, that the aforementioned third parties have given explicit permission for the performance of the Security Audit.
3.7 For the purpose of the Security Audit, the Client hereby grants Awaretrain permission to impersonate third parties, as well as to address employees and other representatives of the Client under false pretenses.
3.8 All rights and obligations of Awaretrain arising from this article also apply to third parties engaged by Awaretrain.
Article 4 - The Platform
4.1 Should the Agreement include the delivery of the Platform by Awaretrain, Awaretrain will make commercially reasonable efforts to guarantee uninterrupted availability of the Platform. However, specific uptimes or other service levels apply only when such service levels have been agreed in writing between Awaretrain and the Client.
4.2 Awaretrain actively maintains its Platform, as a result of which the Platform may be temporarily unavailable. When maintenance is expected to adversely affect the availability of the Platform, Awaretrain will endeavor to perform such maintenance when the use of the Platform is low on average according to Awaretrain's statistics. Emergency maintenance can be performed by Awaretrain at any time.
4.3 If Awaretrain is of the opinion that the functioning of its systems, network, Platform or Services is at risk, Awaretrain has the right to take all measures that it reasonably considers necessary to avert or prevent this danger. Awaretrain will take appropriate technical and organizational security measures to prevent the most common risks related to the Platform.
4.4 Awaretrain will use commercially reasonable efforts to ensure that the Platform is compatible with the latest versions of commonly used web browsers. The Client ensures that he and / or his employees use updated web browsers. Awaretrain, in its sole discretion, is entitled to discontinue any support of older versions of web browsers.
4.5 Awaretrain will use commercially reasonable efforts to provide the Client with support regarding the Platform during office hours. Contact information for support can be found on the website. In accordance with Article 6.4, Awaretrain is not obliged to provide or provide support with regard to the Client's own systems.
4.6 An account or certain login details may be required to use the Platform. Unless otherwise agreed, accounts and credentials are for individual use only and may not be shared by multiple people / end users. The Client is fully responsible for maintaining the confidentiality of any login details, or for persons for whom the Client is responsible (e.g. employees or freelancers appointed by the Client). Awaretrain may assume that actions taken from Customer's accounts are authorized and controlled by Customer. If login credentials are accidentally disclosed or otherwise disclosed to an unauthorized third party, Customer must promptly notify Awaretrain and take all measures reasonably expected from Customer to avoid misuse of its accounts.
4.7 The Client declares and guarantees that the Platform will not be used in violation of applicable legislation, the Agreement or the rights of third parties. The Customer will ensure that only natural persons use the Platform, and that it is not permitted to use the Platform in a way that is a nuisance or causes hindrance to Awaretrain or third parties. This includes the use of personal scripts or programs for uploading or downloading large amounts of data or excessive use of the Platform.
4.8 If Awaretrain notices or is aware of (alleged) unlawful or unauthorized use of the Platform by a third party, Awaretrain has the right to take all reasonable measures to stop the (alleged) illegal or unauthorized use. In addition, Awaretrain is entitled in such cases to provide Customer contact information to third parties (including authorities).
Article 5 - Intellectual property and content
5.1 The (digital) information that is stored or processed by the Client using one of the Services is and remains the property of the Client (or the property of the suppliers or licensors of the Client). To the extent necessary to provide the Service, Awaretrain receives a limited license to use such information for the performance of the Service.
5.2 Unless explicitly agreed in a written document signed by both parties, both parties do not wish to transfer Intellectual Property. The Services and any other information or software provided by Awaretrain are the Intellectual Property of Awaretrain or its licensor (s). None of these items may be copied or used without the prior written consent of Awaretrain, except and to the fullest extent permitted by Agreement and by mandatory law.
5.3 When entering into the Agreement, Awaretrain grants the Client a non-exclusive license to use one or more of the Services, insofar as agreed. This License is granted for the duration of the Agreement. This license does not include the right to sublicense, sell or otherwise multiply or disclose the Services, software or information in any way, unless otherwise agreed.
5.4 If the parties agree that Awaretrain will provide certain content that will be used by the Client (on its own or an external learning management system or in any other way), the parties must agree on the how the content can be used and the number of people allowed to use the content. As far as possible, the Customer will inform Awaretrain of its intentions for the content and the number of people who will use it. Awaretrain is not obligated to provide any form of support with regard to the Customer's learning management system or platform (or any third party of the Customer) on which the content is used.
5.5 Upon request, the Client will provide Awaretrain with a comprehensive report containing the information necessary for Awaretrain to verify that the use of the content and the number of people using the content is in accordance with the agreements. In addition, Awaretrain is entitled to conduct personal and on-site audits or have them performed by a third party for Customer's files and systems to ensure compliance with the Agreement (including ensuring that the maximum number of people who use the content used has not been exceeded).
5.6 If a report or audit shows that the use of the content or the number of persons using the content is not in accordance with the Agreement and that the Client has paid too little, the Parties must adhere to the following procedure :
a. if the underpaid fees are less than five percent (5%) of the relevant fees paid by the Client, the parties will discuss in good faith whether and how the Agreement should be amended;
b. if the underpaid fees are more than five percent (5%) of the relevant fees paid by the Client, the Client will also pay Awaretrain all underpaid fees based on the commercial terms in the Agreement.
Article 6 - Privacy
6.1 The execution of the Agreement may involve the processing of personal data by Awaretrain on behalf of the Client, whereby the Client is considered the 'data controller' and Awaretrain as the 'data processor'. If personal data are processed, the parties conclude a processor agreement in which they lay down in writing the conditions under which Awaretrain processes such personal data.
6.2 Parties will comply with their respective obligations under applicable privacy laws. The Customer hereby guarantees that the content, use and / or processing of personal data is not illegal and does not infringe any right of a third party.
Article 7 - Prices and payment
7.1 Awaretrain will invoice all amounts due as specified in the Offer and can do this electronically. Any objections of the Customer against (the amount of) an invoice do not suspend the payment obligation. All invoices are subject to a payment term of 30 days, unless the invoice indicates a different payment term, or a different term has been agreed in writing.
7.2 If the Customer buys a service that is billed based on the number of users (this may be the case, for example, when Awaretrain offers a Platform), Awaretrain is always entitled to invoice based on the maximum number, in a month simultaneously registered users with the Platform. Such subscribed users do not only consist of the "activated" users, but also of the "non-activated" users. Furthermore, it is irrelevant whether such subscribed users actually used the Platform in the relevant month.
7.3 All Awaretrain prices are in euros (€) and exclude VAT and other taxes.
7.4 If an invoice is not paid within the payment term, the Customer will receive 14 extra days to pay all outstanding amounts. If the Client does not pay the amount (s) due within the above 14 days, the Client will automatically be in default (without the need for a formal notice of default) and Awaretrain can: (i) deliver all or part of the Suspend services, and / or (ii) engage a debt collection agency, and then the Client must fully reimburse Awaretrain for all judicial and extrajudicial costs, including all costs and fees from lawyers and experts.
7.5 Awaretrain has the right to adjust agreed prices and fees annually with a maximum of 5% due to inflation, higher costs or other market conditions. If Awaretrain increases prices more than 5% per year, the Customer has the right to terminate the Agreement in writing on the date the price increase takes effect.
7.6 All amounts owed to Awaretrain are immediately due and payable if the Client is declared bankrupt, the Client applies for or receives a moratorium, the Client's activities are terminated or his company is liquidated.
Article 8 - Liability
8.1 The total liability of Awaretrain for loss and / or damage as a result of an attributable shortcoming in the performance of the Agreement, an illegal act or on any other legal basis, is limited to a maximum amount equal to the amounts (excluding VAT) paid by the Customer to Awaretrain under the relevant Agreement in the six (6) months prior to the event causing the damage. The total compensation paid by Awaretrain never exceeds € 25,000 per year.
8.2 Awaretrain is in no way liable for any indirect damage or consequential damage, such as: loss of income, missed savings or damage as a result of business interruption.
8.3 The aforementioned limitation of liability does not apply if the damage or loss is the result of intent or deliberate recklessness on the part of Awaretrain management.
8.4 Awaretrain is only liable as a result of an attributable shortcoming in the execution of the Agreement if the Customer declares that Awaretrain is immediately in default in writing and that Awaretrain grants a reasonable period to remedy the violation, and Awaretrain culpably fails to fulfill its obligations. after this period has expired. The notice of default must describe the breach as fully and in detail as possible to enable Awaretrain to respond adequately.
8.5 To be entitled to compensation, the Customer must always report the loss to Awaretrain in writing as soon as possible after the loss has occurred. Any claim for damages against Awaretrain will lapse if a period of 6 months has elapsed from the start of the claim.
8.6 Awaretrain cannot be obliged to fulfill any obligation under the Agreement if performance is prevented as a result of force majeure. Awaretrain is not liable for loss and / or damage as a result of force majeure. There is always force majeure in the event of a power failure, no internet connection, failures of the telecommunication infrastructure, network attacks (including D (DOS) attacks), attacks by malware or other malicious software, civil unrest, natural disasters, terror, import and export barriers, strikes, supply / supply issues, fires, floods and any situation where Awaretrain cannot perform or is prevented from doing so on behalf of its suppliers, for whatever reason.
8.7 If a force majeure situation has lasted longer than 60 days, both parties have the right to terminate the Agreement in writing with immediate effect. The Services provided by Awaretrain in that case prior to the occurrence of the force majeure situation and during the force majeure situation will be paid on a proportional basis.
8.8 In the event of termination by the Customer due to a breach by Awaretrain of the performance of the Agreement, the work already performed and the corresponding payment obligation cannot be canceled.
Article 9 - Confidentiality
9.1 Parties undertake to maintain the confidentiality of all confidential information that they receive from the other party. In any case, information is considered confidential if it is designated as such by one of the parties or if the recipient knows or can reasonably suspect that it is of a confidential nature.
9.2 With regard to confidential information, Parties will:
(i) Consider all reasonable measures to keep and store confidential information securely, while at the same time ensuring at least the same level of security as for their own confidential information;
(ii) Do not use the confidential information for any purpose other than performance of the Agreement;
9.3 Both parties will also impose a similar duty of confidentiality on their employees and on any third parties appointed by them to perform the Agreement.
9.4 Confidential information may be disclosed in response to a valid court order or other government measure, provided that (if permitted by such order) the disclosing party is notified as soon as possible after receipt of the order, and given the opportunity to seek legal compensation against such disclosure.
9.5 Information that would otherwise be confidential information will not be considered confidential if the receiving Party demonstrates in writing that the information:
a. has been lawfully obtained by the receiving Party from publicly available sources such as newspapers, patent databases or informational websites;
b. has been lawfully obtained by the receiving Party from a third party, provided that the third party does not breach a confidentiality obligation to the disclosing party;
c. was already in the possession of the receiving Party before the date of issue by the disclosing party; or
d. has been developed independently by the receiving party and without the use of information from the disclosing party.
9.6 At the disclosing party's first request and immediately upon termination of the Agreement, the receiving party will destroy or delete any confidential information in its possession and report that it has been done upon request.
Article 10 - Term and termination
10.1 The Agreement commences on the date of signature of the Agreement or acceptance of the Offer and remains in force until the date of fulfillment of the Agreement, unless otherwise provided in the Offer.
10.2 Either party may terminate the Agreement in writing if the other party:
(i) applies for a moratorium or is declared bankrupt;
(ii) has been dissolved or is no longer able to do business for any other reason.
10.3 If the Agreement is terminated, the amounts due to Awaretrain will become immediately due and payable by the Customer (regardless of the reason for the termination).
Article 11 - Changes to the General Terms and Conditions
11.1 Awaretrain can change these General Terms and Conditions at any time. Awaretrain will notify the Customer of the changes or additions by email at least thirty days before they take effect, so that it is aware of this.
11.2 If the Customer objects to the changes, Awaretrain will reconsider the change and withdraw it if the objection is considered well-founded. However, if Awaretrain decides to implement the changes despite the objection, the Customer has the right to terminate the Agreement until the changes come into effect. From the moment that the changes take effect, the Customer is deemed to have accepted the changed General Terms and Conditions.
Article 12 - Other provisions
12.1 Only Dutch law applies to the Agreement.
12.2 In the event of a dispute relating to the Agreement, the parties will make reasonable efforts to find an appropriate solution by mutual agreement. Insofar as the rules of mandatory law do not provide otherwise, disputes that cannot be resolved amicably will be brought before the competent Dutch court in the main location of Awaretrain.
12.3 Awaretrain may transfer its rights and obligations under the Agreement to a third party that takes over Awaretrain or its business activities.
12.4 The Customer will immediately notify Awaretrain of any change of name, (postal) address, e-mail address, telephone number and other information and details that are relevant to the performance of the Agreement.
12.5 If any provision of the Agreement is deemed invalid or unenforceable for any reason, the remaining provisions will remain valid and enforceable. If a court finds that a provision of the Agreement is invalid or unenforceable, but that it would become valid and enforceable by limiting such provision, then this provision would be deemed to be written, interpreted, and maintained as such. If a court finds that any provision of the Agreement is invalid or unenforceable, Awaretrain and the Client will turn to each other to agree on a new provision to replace the invalid or unenforceable provision. This new provision will be as similar to the invalid or unenforceable provision as is legally possible.