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The right of use
- Flogs will grant Client the right to use the Application for the duration of this Agreement in consideration to the terms below. For this purpose Flogs shall provide the Client with the Application (Widget). With the foregoing the Client can configure and manage the content which will be provided throughout the Application.
- Flogs guarantees a minimum of 98% Availability, except in cases of force majeure. 'Availability' means that the Server is accessible via the internet on the URL provided to the Client and that the Application is in reality offered on the Server. 'Availability' therefore does not mean the existence of a functioning point-to-point connection between the Client's systems and the Server.
- Flogs shall take severe measures in order to protect the information stored on the Server. The Client has access to the information regarding the said measures. Clients are expected to make use of the available security measures, to the extent that these are not already compulsory.
- Flogs has the right to upgrade the Application from time to time in order to improve its functioning and to remedy faults. Flogs shall make efforts to correct any faults in the Application that may arise, but cannot guarantee that all faults will be remedied. Because the Application is supplied to various customers, it is not possible to omit a particular update for the benefit of a specific Client. Clients will always log in to the most up-to-date version of the Application.
- The use of the Flogs Application is limited to a maximum of 1000 registered Users (End Clients). If this amount has been exceeded, a Flogs account manager can contact The Client to discuss further possibilities and compensations. Flogs is entitled to read out the data entered under client management – whether automated or not – and to use such data to make correct calculations for this purpose.
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Use of the Application
- The Client will determine which information is to be stored and/or exchanged by means of the Application. Flogs does not have any knowledge of this information. The Client is therefore responsible for ensuring that the said information is lawful and does not infringe any rights of third parties. Flogs accepts no liability for information that is stored and/or exchanged by means of the Application. The Client shall indemnify Flogs against any claims made by third parties alleging that the information stored and/or exchanged by means of the Application is unlawful.
- Flogs will not be held responsible for the correctness of the data used by the Client. Flogs is not liable for unlawful acts on the part of the Client.
- If Flogs believes that information that the Client has saved and/or exchanged by means of the Application is unlawful, then Flogs will act promptly to remove such information and render access to it impossible. Flogs shall never be held liable for any loss arising from such actions, nor is Flogs liable for unlawful acts on the part of the Client.
- Both Flogs and the Client are not permitted to disclose the user names and passwords provided by Flogs or created by the Client. Flogs is not liable for misuse or loss of user names and passwords by the Client, and is entitled to assume that Clients who log in with a user name and password are in reality authorised Users. As soon as the Client knows or has reason to suspect that user names and/or passwords have fallen into the hands of unauthorised parties, Flogs must be informed thereof immediately in writing and by telephone.
- Clients are required to take the utmost care in following instructions and advice for use given by Flogs and are bound to comply with generally accepted practices as regards normal use of such an Application.
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Non-disclosure
- Both Flogs and the Client and/or any intermediaries undertake not to disclose any data or information gained in the course of implementing this agreement as regards the other party's or parties' business activities.
- Flogs employees who have access to the Application or Servers have signed individual non-disclosure agreements with Flogs as regards to the said stored data.
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Privacy
- Use of the Application can involve processing of personal data. Flogs functions in this connection as an independent intermediary. Flogs will in this capacity adhere to all the statutory obligations to which it is subject. By entering into this agreement the Client undertakes to handle such personal data correctly and to comply with all its statutory obligations. Flogs will only carry out operations regarding such data on the Client's instructions or if it is required to do so by law.
- Flogs shall undertake appropriate technical and organisational measures to protect the Client's data against loss or against any form of unlawful processing taking into account state of the art and the costs involved. In particular, Flogs shall take the greatest care to prevent unauthorised persons from gaining access to the Client's data.
- Flogs shall not – unless expressly agreed – make use of data from the Client's database in any manner other than to provide Services to the Client. Flogs is permitted to make use of a copy of the environment for internal use in its acceptance environment in order to monitor the correct functioning of the Client's environment or to test the correct operation of a newer version of the Application.
- Parties understand and agree upon the fact that the published events are accessible for all who has access to Flogs or Clients website where the widget has been implemented.
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Intellectual property rights
- All intellectual or industrial property rights to the Application shall remain exclusively with Flogs. Granting a right of use to the Application does not imply any transfer of copyright or any other intellectual or industrial property right to the Application. Data entered or supplied by Users remain property of the Client.
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Liability
- Flogs is not liable for direct or indirect loss, including consequential loss, loss of profits, lost savings or loss caused by interruption of operations as a consequence of the use of the Application. Nor is Flogs liable for damage to or loss of stored data, regardless of whether such data have a monetary value.
- The limitations on liability stated in this Article shall not apply if the damage is the consequence of intent or deliberate recklessness on the part of Flogs or its supervisory staff. Flogs's total liability in this case is limited to compensation for direct loss suffered by the Client up to a maximum of € 1000 (excl. VAT). By 'direct loss' shall exclusively be understood: reasonable expenses incurred in determining the cause and extent of the loss insofar as such determination relates to any direct loss within the meaning of this Article; reasonable expenses incurred in preventing or reducing a loss insofar as Client proves that such expenses have resulted in a reduction of any direct loss within the meaning of this Article.
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Force majeure
- If Flogs is prevented from complying with an obligation arising from this Agreement as a consequence of force majeure, then neither Flogs nor the Client is required to comply with this obligation for as long as the situation of force majeure continues. The expression 'force majeure' shall include any failure of any suppliers of Flogs not due to their fault.
- If Flogs is prevented from complying with an obligation arising from this Agreement as a consequence of force majeure, Flogs may terminate this Agreement unilaterally after a period of 20 working days. The Client's payment obligations shall nevertheless continue in full force until the Agreement is terminated.
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Duration and termination
- This Agreement shall enter into effect on the date that an End Client first makes use of the Application.
- The Agreement will continue to apply until terminated by either Flogs or the Client as set out below
- The Agreement will automatically be terminated on the moment the Client removes the Application from its website. The Client does not need to specifically inform Flogs about removing the Application.
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Flogs may, at any time, terminate this agreement immediately without any notice if:
- (a) The Client has breached any provision of this Agreement (or have acted in a manner that clearly shows that he does not intend to, or is unable to comply with the provisions of this Agreement); or
- (b) Flogs is required to do so by law; or
- (c) the Application relies on data or services provided by a third party partner and the relationship with such partner has expired or been terminated or requires Flogs to change the way Flogs provides the data or services through the Application; or
- (d) providing the Application could create a substantial economic burden as determined by Flogs in its reasonable good faith judgment; or
- (e) providing the Application could create a security risk or material technical burden as determined by Flogs in its reasonable good faith judgement.
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Jurisdiction and general terms and conditions
- Dutch law exclusively applies to this Agreement and to any disputes arising from or connected to this Agreement. Disputes between the Client and Flogs arising from this Agreement shall be referred to the competent court in Amsterdam.
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Miscellaneous provisions
- The Client consents to Flogs using the Client's name in press releases or product brochures to state therein that the Client uses Flogs services.
- Departures from this Agreement will only be valid if agreed in writing. Notifications on the basis of this Agreement must be made in writing, unless otherwise stated in this Agreement. This Agreement replaces all previous agreements between the parties, both verbal and written, implicit or explicit, with the same subject as this Agreement.
- Flogs is entitled to sell all advertisement space and banners which can be exposed with the provide widget unless agreed upon differently in writing.
