Terms of Service | Sprootal

These Terms of Service (the Agreement) are entered into by and between Sprootal (Navigatio B.V., Rijnlaan 227, 3522BL Utrecht) (the Provider) and the entity or person placing an order for or accessing any Services (the Customer). If you are accessing or using the Services on behalf of your company or an organisation, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to You or Customer reference the company or organisation. The Effective Date of this Agreement is the date which is the earlier of (a) Customer's initial access to any Services (as defined below) or (b) the effective date stated in the first Order Form referencing this Agreement.

By confirming acceptance of this Agreement, or by accessing or using any Services, you agree to be bound by all terms, conditions, and notices contained or referenced in this Agreement. If you do not agree with this Agreement, you may not use the Services.

1 Definitions

The following terms have the meaning given below. Some terms are given in the sections in the body of this Agreement:

Activity Logs: has the meaning given in Section 6.6.
Affiliate: means an entity that controls, is controlled by, or is under common control with a Party, where "control" means direct or indirect ownership of, or the right to direct, more than 50% of the voting interests of that entity.
Anonymized Data: has the meaning given in Section 6.6.
Apps: means any applications the Provider makes available for use alongside the Services.
Authorized Reseller: means a third party expressly authorized in writing by the Provider to market, resell, or otherwise distribute the Services to the Customer.
Confidential Information: has the meaning given in Section 10.1.
Contractor: means an independent contractor or consultant engaged by the Customer who is not a competitor of the Provider.
Customer Data: means any data submitted to the Services by, or on behalf of, the Customer, including data uploaded, imported, or otherwise submitted via the Services (including from a Third-Party Platform).
Customer Properties: means the Customer's own websites, servers, applications, or other properties, owned or operated by or for the Customer, through which the Customer accesses or uses the Services.
Dashboard: means the Provider's user interface through which the Customer may access and administer the Services, whether via a browser or the Apps.
Dispute: has the meaning given in Section 16.3(b).
Documentation: means the technical documentation made available by the Provider to users of the Services.
DPA: means the data processing agreement attached to this Agreement as Exhibit A, which forms an integral part of this Agreement.
Excluded Claims: has the meaning given in Section 14.5.
Feedback: means comments, questions, suggestions, or other input relating to the Services, excluding Customer Data.
Initial Term: means the term specified in an Order Form during which the Services are made available to the Customer.
Intellectual Property Rights: means all patents, trademarks, copyrights, trade secrets, moral rights, and other intellectual or industrial property rights of any kind, whether registered or unregistered, wherever in the world such rights may exist, including all renewals, extensions, and improvements thereof.
Laws: means all applicable local, national, and international laws, regulations, and conventions.
Order Form: means a written or electronic order for Services that references this Agreement; upon execution by both Parties, each Order Form is subject to the terms of this Agreement.
Party: means the Provider or the Customer, as applicable, and "Parties" means both of them together.
Permitted User: means an employee or Contractor of the Customer or its Affiliate who is authorized to access the Services.
Professional Services: has the meaning given in Section 3.
Provider's Technology: has the meaning given in Section 9.1.
Renewal Term: means each successive period, equal in length to the Initial Term, following the then-current Subscription Term.
Security Policy: has the meaning given in Section 8.
Sensitive Personal Information: means (i) payment card data within the scope of the Payment Card Industry Data Security Standard (PCI DSS); (ii) health, medical, or patient information regulated under the U.S. Health Insurance Portability and Accountability Act (HIPAA), where applicable; or (iii) any other personal data falling within a "special category" under the EU General Data Protection Regulation or successor legislation.
Services: means the Provider's proprietary software-as-a-service offering, together with any related products, features, and functionality made available by the Provider to the Customer.
SOW: has the meaning given in Section 3.
Subscription Term: means the Initial Term or, as applicable, the then-current Renewal Term.
Support: means the standard technical support and maintenance described in any Service Level Agreement attached to the applicable Order Form.
Taxes: means sales, use, VAT, withholding, or similar taxes and levies, domestic or foreign, other than taxes on the Provider's net income.
Third-Party Platform: means any software, service, data source, or other offering that is not provided by the Provider but that integrates with, or is otherwise accessible through, the Services.
Trial Period: has the meaning given in Section 2.7.
Trial Subscription: has the meaning given in Section 2.7.

2 Provider Services

2.1 Provision of Services

The Services are made available on a subscription basis for the applicable Subscription Term. The Provider will provide, and the Customer will purchase, the Services identified in the relevant Order Form.

2.2 Access to Services

The Customer may access and use the Services solely for its own internal business purposes, in accordance with this Agreement, the Documentation, and any use restrictions stated in the applicable Order Form. Only Permitted Users may access and use the Services. Where the Customer receives API keys, passwords, or similar access credentials, it will ensure that all Permitted Users keep such credentials strictly confidential and do not share them with any unauthorized person. User accounts are personal to the individual to whom they are issued and may not be shared. If the Customer accesses the Services using credentials issued by a third party (such as Google), the Customer will comply with that third party's applicable terms governing use of such credentials. The Customer is responsible for all activity occurring under its accounts and credentials. Where a Permitted User ceases to be an employee or Contractor of the Customer, the Customer will promptly revoke that person's access to the Services and delete the associated user account.

2.3 Contractors and Affiliates

The Customer may allow its Affiliates and Contractors to act as Permitted Users, provided that the Customer remains responsible for their compliance with this Agreement and that their use of the Services is solely for the Customer's benefit.

2.4 General Restrictions

The Customer will not, and will not permit any third party to:

rent, lease, resell, sublicense, or otherwise make the Services available to a third party;
use the Services to provide, or to build into, any product or service offered to a third party;
reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, underlying ideas, algorithms, or non-public interfaces of the Services, or use the Services or any output of the Services, whether directly or through a third party, to train, develop, fine-tune, or otherwise improve any artificial intelligence or machine learning model or system, except, in either case, to the extent such restriction is prohibited by mandatory Law (and then only after prior written notice to the Provider);
copy or modify the Services or the Documentation, or create any derivative work based on either;
remove or obscure any proprietary notice contained in the Services;
publish or otherwise disclose to third parties any information regarding the performance of the Services; or
use the Services, or any output of the Services, to develop or to assist a third party in developing any product or service that competes with the Services.

2.5 Provider APIs

Where the Provider makes an API available as part of the Services, the Provider may monitor the Customer's use of that API and may limit the volume of calls or requests where the Provider reasonably believes such use breaches this Agreement or may affect the security, availability, or integrity of the Services (or otherwise expose the Provider to liability).

2.6 Apps

Where the Provider makes the Apps available for use alongside the Services, it grants the Customer a limited, non-exclusive, non-transferable, non-sublicensable license to use the object code of the Apps internally during the applicable Subscription Term, solely in connection with the Customer's use of the Services and in accordance with the Documentation and this Agreement.

2.7 Trial Subscriptions

Where the Customer is given free, trial, or evaluation access to the Services, it may use the Services under this Agreement for fourteen (14) days, or such other period as the Provider may specify (the Trial Period), as a Trial Subscription. A Trial Subscription is provided solely to allow the Customer to evaluate whether to purchase a paid subscription and may not include all features available under a paid Subscription Term. If the Customer does not enter a paid Subscription Term, this Agreement and the Customer's access to the Services will end upon expiry of the Trial Period. The Provider may terminate a Trial Subscription at any time, for any reason. Notwithstanding any other provision of this Agreement, the Provider assumes no warranty, liability, indemnity, support, or other obligation in respect of a Trial Subscription.

3 Professional Services

The Provider will provide the professional consulting services purchased under the applicable Order Form (the Professional Services). As part of the Navigatio group, the Provider may offer such consulting services in addition to the Services; whether, and on what terms, Professional Services are provided is a matter for agreement between the Parties on a case-by-case basis. The scope of the Professional Services will be set out in a statement of work referencing this Agreement and executed by both Parties, describing the work, fees, and any applicable milestones, dependencies, or other technical specifications (a SOW). Unless the Professional Services are provided on a fixed-fee basis, the Customer will pay the Provider's then-standard hourly rates (or those set out in the Order Form) for any services beyond the agreed scope, and will reimburse the Provider's reasonable travel and lodging expenses. The Customer may use any deliverable of the Professional Services in support of its authorized use of the Services, subject to Section 2 and the applicable SOW, but the Provider retains all right, title, and interest in any resulting work product, code, or deliverables, and any derivative, enhancement, or modification of the foregoing created by the Provider. Where Professional Services are provided free of charge, the Provider gives no warranty as to their performance.

4 Subscription Term, Fees & Payment

4.1 Subscription Term and Renewals

The Subscription Term and Renewal Term are as set out in the applicable Order Form. Unless the applicable Order Form provides otherwise, each Subscription Term automatically renews for a Renewal Term, unless either Party gives the other written notice of non-renewal, delivered in accordance with Section 16.4 (Notice), at least thirty (30) days before the end of the then-current Subscription Term. Absent such notice, the Subscription Term renews automatically at the Provider's then-current fees for the Services, subject to Section 4.3 (Fee Adjustment).

4.2 Fees and Payment

All fees are as set out in the applicable Order Form and are paid by the Customer in accordance with its payment terms. Except as expressly provided in Section 12 (Limited Warranty), Section 15 (Indemnification), or Section 16.7 (Modifications to this Agreement), all fees are non-refundable. The Customer is responsible for all Taxes, which are excluded from the fees stated in the Order Form. Where the Customer is required by Law to withhold Taxes from a payment, the fees payable will be increased so that, after the required withholding, the Provider receives the amount it would have received had no withholding applied. Late payments are subject to a service charge (buitengerechtelijke kosten) of 1.5% per month of the amount due, or the maximum permitted by Law, whichever is lower.

4.3 Fee Adjustment

The Provider may adjust the fees payable for each Renewal Term by giving the Customer written notice at least sixty (60) days before the start of that Renewal Term. Unless a different adjustment mechanism is agreed in the applicable Order Form, any such increase will not exceed the percentage change in the Dutch consumer price index (CPI, all-households series, as published by Statistics Netherlands (CBS)) over the preceding twelve (12) months, increased by three (3) percentage points. Absent timely notice under this Section, the fees for the upcoming Renewal Term remain as set out in the applicable Order Form.

4.4 Suspension of Service

Without limiting the Provider's termination or other rights under this Agreement, the Provider may suspend (opschorten) the Customer's access to the applicable Services (and any related Professional Services and Support), in whole or in part, without liability to the Customer: (i) where the Customer's account is thirty (30) days or more overdue; (ii) for the Customer's breach of this Agreement; or (iii) to prevent harm to other customers or third parties, or to preserve the security, availability, or integrity of the Services. Unless this Agreement has been terminated (beëindigd), the Provider will restore access promptly after the Customer has resolved the issue that gave rise to the suspension.

5 Term and Termination

5.1 Term

This Agreement takes effect on the Effective Date and expires upon the expiration or termination of all Subscription Terms.

5.2 Termination for Cause

Either Party may terminate (opzeggen) this Agreement (including all related Order Forms) with immediate effect if the other Party (a) fails to cure a material breach of this Agreement (including, with respect to the Customer, any of the circumstances described in Section 4.4) within thirty (30) days of written notice; (b) ceases operations without a successor; or (c) applies for a suspension of payments (surseance van betaling), is declared bankrupt (failliet verklaard), or becomes subject to any comparable insolvency, liquidation, or debt-restructuring proceeding under applicable Law, whether initiated by that Party or by a third party (and, in the latter case, not dismissed within sixty (60) days); provided that this termination right does not apply solely because a Party commences.

5.3 Effect of Termination

Upon expiration or termination of this Agreement, the Customer will immediately stop using and accessing the Services (including the Provider's Technology) and will delete (or, at the Provider's request, return) all copies of the Documentation, all passwords or access codes, and all other Confidential Information of the Provider in its possession. The Customer acknowledges that, from thirty (30) days after termination, it will no longer have access to any Customer Data held within the Services, and that the Provider may delete such data at any time thereafter, provided that, if the Customer submits a written request before the end of that thirty (30)-day period, the Provider will make the Customer Data available for export in a standard format determined by the Provider, at the Customer’s cost, for a further period of thirty (30) days, after which the Provider may delete the data without further notice. Except where an exclusive remedy is specified, either Party's exercise of any remedy under this Agreement, including termination, is without prejudice to any other remedy available to it under this Agreement, at law, or otherwise.

5.4 Survival

The following Sections survive expiration or termination of this Agreement: 2.4 (General Restrictions), 2.7 (Trial Subscriptions), 4.2 (Fees and Payment), 5 (Term and Termination), 6.3 (Storage of Customer Data), 6.5 (Indemnification by Customer), 6.6 (Usage Data and Anonymized Data), 9 (Ownership), 10 (Confidential Information), 12 (Limited Warranty), 14 (Limitation of Remedies and Damages), 15 (Indemnification), and 16 (General Terms).

6 Customer Data

6.1 Data Processing by the Provider

All processing of personal data carried out through the Services is governed by the DPA.

6.2 Rights in Customer Data

As between the Parties, the Customer retains all right, title, and interest (including all Intellectual Property Rights) in the Customer Data it submits to the Provider. The Customer grants the Provider a non-exclusive, worldwide, royalty-free, sub-licensable right to use, copy, store, transmit, modify, and display the Customer Data solely as necessary to provide the Services to the Customer.

6.3 Storage of Customer Data

The Provider does not offer an archiving service. The Provider's only undertaking in this respect is that it will not intentionally delete Customer Data before the end of the Customer's Subscription Term. All other obligations relating to storage are expressly excluded.

6.4 Customer Obligations

In General. The Customer is solely responsible for the accuracy, content, and lawfulness of all Customer Data. The Customer represents and warrants that it holds all rights, consents, and permissions necessary to collect, share, and use the Customer Data as contemplated by this Agreement (including to grant the rights described in Section 6.2), and that no Customer Data infringes (i) any third party's Intellectual Property Rights or rights of privacy or publicity, (ii) any Laws, or (iii) any terms of service, privacy policy, or other agreement governing the Customer's account with a Third-Party Platform. The Customer further warrants that all Customer Data complies with this Agreement, and remains fully responsible for any Customer Data submitted to the Services by any person, as if the Customer had submitted it itself.
No Sensitive Personal Information. Unless the Parties agree otherwise in writing, the Customer will not use the Services to collect, store, process, or transmit any Sensitive Personal Information. The Customer acknowledges that the Provider is not a payment processor and that the Services are not PCI DSS compliant. Any Sensitive Personal Information the Customer inadvertently submits will be treated by the Provider as Customer Data, and remains the Customer's responsibility.
Compliance with Laws. The Customer will comply with all applicable Laws in its use of the Services, including by not using the Services for unsolicited advertising, marketing, or any other activity that violates applicable Laws.

6.5 Indemnification by Customer

The Customer will defend the Provider against any claim arising out of or relating to the Customer Data, the Customer's use of a Third-Party Platform, or the Customer's use of the Services in violation of any Laws, and will indemnify the Provider for any damages and costs finally awarded against the Provider, or agreed in settlement by the Customer (including reasonable attorneys' fees), provided that the Provider: (i) promptly notifies the Customer in writing of the claim (in any event in time for the Customer to respond without prejudice); (ii) grants the Customer sole control over the investigation, defense, and settlement of the claim; and (iii) provides reasonable cooperation, at the Customer's expense. Notwithstanding the foregoing, (a) the Provider may participate in the defense at its own cost using counsel of its choice, and (b) the Customer will not settle any claim in a manner that requires action by, or admission of liability by, the Provider, or that does not fully and unconditionally release the Provider, without the Provider's prior written consent.

6.6 Usage Data and Anonymized Data

(a) The Provider may collect, use, and retain data (including data that is not anonymized) relating to the Customer's and its Permitted Users' use of the Services, including logs that identify which Permitted User carried out which action within the Services (Activity Logs). The Provider uses Activity Logs to provide Support, to diagnose and resolve technical issues, and to maintain the security and integrity of the Services. Activity Logs are processed in accordance with the DPA. (b) The Provider may also obtain and aggregate technical and other data about the Customer's use of the Services that does not identify the Customer (Anonymized Data), and may use Anonymized Data, during and after the term of this Agreement, to analyze, improve, support, and operate the Services and for any other business purpose, including to study usage of the Services and to prepare, publish, or otherwise share industry benchmarks, best-practice guidance, case studies, or similar reports. Any data the Provider uses for such study, benchmarking, or publication purposes will be Anonymized Data only. For clarity, this Section does not permit the Provider to identify the Customer as the source of any Anonymized Data without the Customer's prior written consent.

7 Third-Party Integrations

Where the Services integrate with a Third-Party Platform, the Customer may need to connect its account. Doing so authorizes the Provider to access it for purposes of this Agreement. The Customer remains responsible for complying with that platform's own terms and for keeping the account in good standing. The Provider bears no responsibility for a Third-Party Platform, for its subsequent handling of any exported Customer Data, or for the continued availability of an integration, and may disable one at any time, with or without notice. Nor does the Provider warrant that the Services or any integration (including with LinkedIn) complies with that platform's terms. That responsibility, and any liability for beta or pre-release functionality used at the Customer's request, rests with the Customer under Sections 6.4 and 6.5. This Agreement governs the Customer's use of the Services regardless of the access route.

8 Security

The Provider will apply commercially reasonable technical and organizational measures designed to protect the Services and the Customer Data against unauthorized access, use, alteration, or disclosure, as further described in the technical and organizational measures set out in the DPA (the Security Policy). The Provider is not responsible for transmission errors, unauthorized third-party access, or other causes beyond its reasonable control.

9 Ownership

9.1 Provider's Technology

This is a subscription agreement for access to and use of the Services. The Customer acknowledges that it obtains only a limited right to use the Services and that, regardless of any reference to "purchase," "sale," or similar terms in this Agreement, no ownership rights are transferred to the Customer. The Provider and its suppliers retain all right, title, and interest (including all Intellectual Property Rights) in the Services, the Documentation, any Professional Services deliverables, and all related and underlying technology, together with any derivative works, modifications, or improvements thereof, including Feedback (together, the Provider's Technology). Except as expressly set out in this Agreement, no rights in the Provider's Technology are granted to the Customer, and the Customer acknowledges that the Services are offered as a hosted, online solution and that it has no right to obtain a copy of the Services.

9.2 Feedback

The Customer may submit Feedback to the Provider from time to time. The Provider may use and exploit Feedback in connection with the Services freely and without compensation, and may disclose Feedback to third parties, provided that the Provider will not disclose the Customer's identity in connection with such use.

10 Confidential Information

10.1

All non-public code, inventions, know-how, business, technical, and financial information the Provider discloses to the Customer constitutes the confidential property of the Provider (Confidential Information), provided that it is identified as confidential at the time of disclosure or would reasonably be understood to be confidential or proprietary given its nature and the circumstances of disclosure. The Provider's Technology, any in-app guidance, tips, campaign examples, or other materials the Provider makes available to the Customer under a Subscription Term, performance information relating to the Services, and the terms of this Agreement are Confidential Information of the Provider without any marking or further designation.

10.2

Except as expressly authorized in this Agreement, the Customer will (1) keep Confidential Information confidential and not disclose it to third parties, and (2) not use Confidential Information for any purpose other than exercising its rights and fulfilling its obligations under this Agreement. The Customer may disclose Confidential Information to its employees, agents, contractors, and other representatives who have a legitimate need to know it, provided that those representatives are bound by confidentiality obligations at least as protective as this Section, and that the Customer remains responsible for their compliance with this Section.

10.3

The Customer's confidentiality obligations do not apply to information that the Customer can document: (i) was rightfully in its possession, or known to it, before receiving the Confidential Information; (ii) is or becomes public knowledge through no fault of the Customer; (iii) is rightfully obtained from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Customer who had no access to the Confidential Information.

10.4

The Customer may disclose Confidential Information to the extent required by Law or court order, provided it notifies the Provider in advance and cooperates with any effort to obtain confidential treatment. The Customer acknowledges that disclosure of Confidential Information in breach of this Section would cause the Provider substantial harm that damages alone could not adequately remedy, so that the Provider is entitled to seek injunctive or other equitable relief, in addition to any other remedy available to it at law.

10.5

This confidentiality obligation continues for as long as the relevant information retains its confidential or trade-secret character and does not lapse on expiration or termination of this Agreement or any Subscription Term.

10.6 Penalty

Without prejudice to the Provider's right to injunctive relief under Section 10.4 or to claim full compensation for its actual damages, the Customer will owe the Provider an immediately due and payable penalty of EUR 1,000 for each breach of this Section 10, and EUR 500 for every day such breach continues, without the need for prior notice of default. Payment of the penalty does not release the Customer from its obligations under this Section, and the Provider may claim compensation for damages exceeding the penalty amount.

11 Publicity

At either Party's request, the Parties may agree to issue a joint press release on a mutually agreed date. Neither Party is obliged to agree to a press release, and any release requires the prior written approval of both Parties, which approval will not be unreasonably withheld or delayed. The Parties may likewise agree that the Customer participates in other marketing activities promoting the Services to prospective customers. Such participation is voluntary and requires the Customer's prior consent. The Customer agrees that the Provider may identify the Customer as a customer of the Provider, including through the Customer's name and logo on the Provider's website and in its promotional materials. Such use will not be deemed an endorsement of the Services by the Customer. The Customer may, on the same basis, reference its use of the Services in its own marketing materials, subject to any written brand guidelines the Provider provides to the Customer.

12 Limited Warranty

12.1 Limited Warranty

The Provider warrants, for the Customer's benefit only, that the Services will operate in substantial conformity with the applicable Documentation. The Provider's sole liability, and the Customer's sole and exclusive remedy, for breach of this warranty is, at no charge to the Customer, that the Provider will use commercially reasonable efforts to correct the reported non-conformity or, if the Provider determines that this is not practicable, either Party may terminate the applicable Subscription Term, and the Customer will receive, as its sole remedy, a refund of any pre-paid fees for the unused portion of the applicable Subscription Term. This warranty does not apply (i) unless the Customer submits a written claim within fourteen (14) days of first noticing the non-conformity, (ii) where the error results from misuse, unauthorized modification, or third-party hardware, software, or services, or (iii) to use provided free of charge, on trial, or on an evaluation basis.

12.2 Warranty Disclaimer

Except for the limited warranty in Section 12.1, all Services, Support, and Professional Services are provided "as is" and "as available." The Provider and its Affiliates disclaim all other warranties, conditions, and undertakings, whether express, implied, statutory, or otherwise, including any warranty of merchantability, quality, title, fitness for a particular purpose, or non-infringement. The Provider does not warrant that the Customer's use of the Services will be uninterrupted, error-free, or that it will meet the Customer's needs, and is not liable for delays, interruptions, or failures inherent in use of the internet, electronic communications, Third-Party Platforms, or other systems outside its reasonable control.

13 Availability and Support

The Provider will use commercially reasonable efforts to make the Services available, except for: (a) planned maintenance, of which the Provider will give reasonable advance notice where practicable; (b) emergency maintenance; and (c) unavailability caused by factors outside the Provider's reasonable control, including any Force Majeure event, internet or telecommunications failures, or issues with a Third-Party Platform. Where the Customer notifies the Provider that the Services fail to operate in substantial conformity with the Documentation, the Provider will use commercially reasonable efforts to restore the Services within seven days of becoming aware of the failure, provided that this Section does not create any warranty, service-level commitment, or remedy beyond those set out in Section 12 (Limited Warranty), and the Customer's sole and exclusive remedy for any failure to meet this Section remains as set out in Section 12.1.

14 Limitation of Remedies and Damages

14.1 Consequential Damages Waiver

Except for Excluded Claims (defined below), the Provider (and its Affiliates) will have no liability arising out of or related to this Agreement, whether in contract, tort, or otherwise, for any loss of use, lost data, lost profits, failure of security mechanisms, business interruption, or any incidental, punitive, exemplary, indirect, special, or consequential damages of any kind, even where advised of the possibility of such damages, except in case of the Provider's intent or willful recklessness (opzet of bewuste roekeloosheid).

14.2

Where the Customer is established in the European Economic Area, the reference in Section 14.1 to "incidental, punitive, exemplary, indirect, special, or consequential damages" also includes any loss or damage that: (a) was not reasonably foreseeable to the Provider; (b) was known to the Customer but not to the Provider; or (c) could have been prevented by the Customer, such as losses caused by viruses, malware, or other malicious code, or loss of or damage to Customer Data. The Provider is not responsible for any adverse action a Third-Party Platform takes against the Customer.

14.3 Liability Cap

Except for Excluded Claims, the Provider's entire liability to the Customer arising out of or related to this Agreement, whether in contract, tort, or otherwise, will not exceed EUR 2,000 (two thousand euros) in aggregate. This Section 14.3 limits the Provider's liability only. It does not limit the Customer's liability to the Provider, which remains governed by the other provisions of this Agreement and by applicable Law.

14.4 Limitations to Exclusions

Nothing in this Section limits either Party's liability for death or personal injury, willful misconduct, or gross negligence. Where a jurisdiction does not permit certain exclusions or limitations of liability set out in this Section, those exclusions and limitations will apply to the fullest extent permitted by applicable Law.

14.5 Excluded Claims

means any claim arising (a) under Section 2.4 (General Restrictions); (b) under Section 6.4 (Customer Obligations) or Section 6.5 (Indemnification by Customer); or (c) from a Party's breach of Section 10 (Confidential Information) (excluding claims relating to Customer Data).

14.6 Nature of Claims and Failure of Essential Purpose

The waivers and limitations in this Section apply regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise, and survive and continue to apply even if a limited remedy under this Agreement is found to have failed of its essential purpose.

15 Indemnification

15.1

The Provider will defend the Customer against any third-party claim alleging that the Services, as provided by the Provider and used in accordance with this Agreement, infringe an Intellectual Property Right in the Netherlands or the European Union, and will indemnify the Customer for any damages and costs finally awarded against the Customer, or agreed in settlement by the Provider (including reasonable attorneys' fees), up to a maximum aggregate amount equal to the fees paid by the Customer under the applicable Order Form in the twelve (12) months preceding the claim, provided that the Customer: (i) promptly notifies the Provider in writing of the claim (in any event in time for the Provider to respond without prejudice); (ii) grants the Provider sole control over the investigation, defense, and settlement of the claim; and (iii) provides reasonable cooperation. Notwithstanding the foregoing, (a) the Customer may participate in the defense at its own cost using counsel of its choice, and (b) the Provider will not settle any claim in a manner that requires action by, or admission of liability by, the Customer, or that does not fully and unconditionally release the Customer, without the Customer's prior written consent.

15.2

Where the Customer's use of the Services is (or, in the Provider's view, is likely to be) enjoined, where required by a settlement, or where the Provider reasonably determines it is necessary to avoid material liability, the Provider may, at its discretion: (a) substitute a functionally similar product or service; (b) procure for the Customer the right to continue using the Services; or, if neither (a) nor (b) is commercially reasonable, (c) terminate this Agreement and refund, on a pro-rata basis, only those fees the Customer has pre-paid for the period after the date of termination. No refund is due in respect of the period up to the date of termination.

15.3

The Provider's indemnification obligation does not apply: (1) to the extent the alleged infringement results from modification of the Services by any party other than the Provider; (2) to the extent the alleged infringement results from combining the Services with products or processes not provided by the Provider; (3) to unauthorized use of the Services; (4) to any claim arising from Customer Data; (5) to any claim arising from the Customer's use of a Third-Party Platform; or (6) where the Customer settles or admits liability in respect of a claim without the Provider's prior written consent.

15.4

This Section sets out the Provider's and its Affiliates' entire liability, and the Customer's sole and exclusive remedy, for any claim of Intellectual Property infringement.

16 General Terms

16.1 Assignment

This Agreement binds and benefits each Party's permitted successors and assigns. Neither Party may assign this Agreement without the other's prior written consent, except that (a) either Party may assign it in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities, and (b) the Provider may assign it, in whole or in part, to an Affiliate, including to an entity that becomes an Affiliate after the Effective Date, in each case without the Customer’s consent. Any other attempted assignment is void.

16.2 Severability

If a competent court holds any provision of this Agreement unenforceable or invalid, that provision will be limited to the minimum extent necessary so that the remainder of this Agreement continues in effect.

16.3 Governing Law and Dispute Resolution

Governing Law. This Agreement is governed by the laws of the Netherlands, without regard to its conflict-of-laws principles.
Good-Faith Negotiation. Before initiating any legal proceeding relating to a dispute, claim, or disagreement arising from or relating to this Agreement (a Dispute), the Parties will first attempt in good faith to resolve it through direct negotiation between their respective representatives. Nothing in this Section prevents either Party, at any time, from seeking injunctive relief under Section 16.3(d) or from pursuing collection of undisputed amounts owed.
Litigation or IT-Arbitration. Any Dispute not resolved under Section 16.3(b) will, at the Provider's election, be submitted either to the competent court of Amsterdam, the Netherlands, to whose exclusive jurisdiction both Parties submit, or to binding arbitration administered by the Foundation for Dispute Resolution in Automation (Stichting Geschillenoplossing Automatisering, SGOA) in accordance with its rules then in force, with the arbitration seated in Amsterdam and conducted in the English language.
Injunctive Relief. Notwithstanding the foregoing, the Provider may apply for injunctive relief (or an equivalent form of urgent legal relief) in any jurisdiction.

16.4 Notice

A notice or communication required or permitted under this Agreement must be in writing, sent to the addresses set out in the Order Form or to any other address a Party has given in writing in accordance with this Section, and is deemed received by the addressee: (i) immediately, if delivered by hand; (ii) on the first business day after dispatch, if sent by overnight courier; (iii) on the second business day after mailing, if sent by registered or certified mail, postage prepaid and return receipt requested; or (iv) on the next business day, if sent by email.

16.5 Amendments and waivers

No supplement, modification, or amendment to this Agreement is binding unless (i) made in accordance with Section 16.7, or (ii) executed in writing by a duly authorized representative of each Party. No waiver is implied from conduct or a failure to enforce any right, and no waiver is effective unless made in a signed writing by a duly authorized representative of the waiving Party. No purchase order or other business form used by the Customer supersedes this Agreement; any such document has administrative purposes only and no legal effect.

16.6 Entire Agreement

This Agreement is the complete and exclusive statement of the Parties' mutual understanding and supersedes all previous written and oral agreements and communications relating to its subject matter.

16.7 Modifications to this Agreement

The Provider may modify this Agreement from time to time. Unless the Provider specifies otherwise, changes take effect for the Customer upon renewal of the then-current Subscription Term or entry into a new Order Form. The Provider will use reasonable efforts to notify the Customer of changes through the Customer's account, by email, or by other means, and continued use of the Services after a change takes effect constitutes acceptance of the updated Agreement. Where the Provider specifies that a change takes effect before the Customer's next renewal or order (for example, for legal-compliance or product reasons) and the Customer objects within ten (10) calendar days, the Provider may either (i) move the effective date of the change to the Customer's next renewal or order, or (ii) terminate the applicable Subscription Term and refund, as the Customer's sole remedy, any fees pre-paid for the terminated portion of the Subscription Term. The Provider may also make changes to the Services and will update the Documentation accordingly.

16.8 Force Majeure

Neither Party is liable for any delay or failure to perform an obligation under this Agreement (other than an obligation to pay fees) where the delay or failure results from an unforeseen event beyond that Party's reasonable control arising after signing, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power, telecommunications, or data-network services, or refusal of a government license.

16.9 Subcontractors

The Provider may use subcontractors and permit them to exercise the rights granted to the Provider to provide the Services, provided that the Provider remains responsible for (i) each subcontractor's compliance with this Agreement, (ii) the overall performance of the Services as required by this Agreement, and (iii) compliance with the DPA.

16.10 Court Orders

Nothing in this Agreement prevents the Provider from disclosing Customer Data to the extent required by Law, subpoena, or court order, but the Provider will use commercially reasonable efforts to notify the Customer where permitted to do so.

16.11 Independent Contractors

The Parties are independent contractors. This Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship, and neither Party may bind the other or incur obligations on its behalf without its prior written consent.

16.12 Export Control

In using the Services, the Customer will comply with all applicable export and import Laws. Without limiting the foregoing, (i) the Customer represents that it is not listed on any US, UK, or EU list of prohibited or restricted parties, and is not located in, or a national of, a country subject to a US, UK, or EU embargo or designated as "terrorist supporting"; (ii) the Customer will not (and will not permit any user to) use the Services in violation of any US, UK, or EU export embargo, prohibition, or restriction; and (iii) the Customer will not submit to the Services any information controlled under the U.S. International Traffic in Arms Regulations.

16.13 Counterparts

This Agreement may be executed in counterparts, each of which is an original and all of which together form one agreement.

16.14 Authorized Resellers

Where the Customer has procured the Services through an Authorized Reseller: (a) the commercial terms of that procurement, including fees and payment, are as agreed between the Customer and the Authorized Reseller, and this Agreement governs solely the Customer’s access to and use of the Services; (b) the Authorized Reseller is not the Provider’s agent, partner, or representative and has no authority to bind the Provider or to modify this Agreement; and (c) the Provider has no liability for any act or omission of an Authorized Reseller, including any representation made by an Authorized Reseller that is inconsistent with this Agreement.

Exhibit A — Data Processing Agreement

The data processing agreement referenced throughout this Agreement forms an integral part of it and is published in full at sprootal.com/dpa

The rest of the set: Privacy Policy Data Processing Agreement Cookie Policy