Nfield

Terms Of Use
2017

These Nfield Terms and Conditions are a part of- and applicable to the Agreement between NIPO Software B.V. ("We", "Us", "Our") and You, the customer as mentioned on the Contract ("You", "Your"). Please read these Nfield Terms and Conditions carefully.
1. DEFINITIONS
  1. In this Agreement, except where the context requires otherwise:

    Administrator means the natural person employed and appointed by You as Your authorized representative, charged with the power to authorize Users within the Application.

    Agreement means the agreement between You and Us regarding the Services as set forth in the Contract and these Nfield Terms and Conditions.

    Application means the web-based application on Nfield as made accessible to You via the Customer Domain.

    Complete means an interview that is completed through the use of the Application.

    Confidential Information means (a) the contents of the Agreement and all arrangements contemplated by the Agreement, (b) strategic, operational, commercial and financial information concerning the business, assets, liabilities, dealings, transactions, market information, technical information, source codes, know-how, customers, suppliers, processes or affairs of the other party and (c) any information, which is expressly indicated to be confidential or is imparted by one party to the other in circumstances importing an obligation of confidence.

    Contract means the contract as made available to You by Us and signed by both parties.

    Customer Content means the data created, uploaded and/or stored by You as a result of using the Services.

    Customer Domain means the part of Nfield that is accessible to You via the URL as specified by Us in the Contract following an authentication procedure, which may include a user name and password or any other authentication method that we may select at Our sole discretion.

    Evaluation Contract means a Contract so designated by Us.

    Fees means any and all payments, fees or other forms of remuneration that are or will become due under this Agreement, including – but not limited to – the Usage Fee and the Subscription Fee.

    Intellectual Property Rights means any and all existing and future intellectual property rights, including but not limited to patents, patent applications and patent rights; rights associated with works of authorship including copyrights and copyright registrations; rights related to the protection of trade secrets and confidential information including rights in know-how; design rights; trademarks, trade names and trademark applications and registrations; database rights; and any rights analogous to the aforementioned rights and any other proprietary rights relating to intellectual property.

    Nfield means the shared operating environment that runs the Application.

    Nfield CAPI App means the Nfield CAPI application that can be downloaded by Users on their Supported Devices via the following app stores: Google Play (Global) and Mobile 360 Assistent (China).

    Nfield Terms and Conditions means these general terms and conditions that govern Your use of Nfield and form part of the Agreement.

    NIPO Software Confidential Information means any and all information regarding the Application and the Nfield CAPI App.

    Second Line Helpdesk means an entrance to Our technical department for queries and to report incidents with respect to the Services that require technical knowledge of- or access to (parts of ) Nfield that Your first line helpdesk does not have.

    Commencement Date means the date indicated on the Contract.

    Services means granting You access to Nfield so as to enable You to store, manage and process data that relate to Your market research activities.

    Subscription Fee means the fee as referred to in clause 7.1 and as specified in the Contract.

    Supported Devices means the devices in a configuration as specified on www.nfieldmr.com/supporteddevices.aspx from time to time.

    Trial Period means the timeframe specified in the Evaluation Contract.

    User means the natural person employed by You that is authorized by the Administrator and registered for an account in order to use the Application and/or the Nfield CAPI App.

    Usage Fee means the fee referred to in clause 7.1 and as specified in the Contract.

2. GENERAL
  1. We will provide the Services subject to the terms set forth in the Agreement and will use reasonable endeavors to start providing the Services on the Service Commencement Date.
  2. In order to receive the Services, You will pay the Fees, owed to Us under this Agreement.

3. SERVICES SET UP
  1. When setting up the Services, You agree to observe any reasonable instructions provided by Us in connection with the implementation of the Services.
  2. You will elect an Administrator that is authorized to use Your account and to register Users.
  3. We will create an account for the Administrator and provide him access to this account.
  4. When the Administrator's account has been created, we will send You an e-mail through which You can activate the Services and invite Users to register for the Services. You must ensure and assume all responsibility that the Administrator username and password combination are kept secret. You understand that We do not have the Administrator username and password combination and that we are not able to retrieve the username and password combination as created by Your Administrator. If You believe Your username and password combination is in any way compromised, You alone must timely change the Administrator username and password combination. If You lost Your password, You may instruct Us to reset Your password.

4. PROVISION OF THE SERVICES
  1. You understand and agree that We will provide the Services as a standard service on an "as is" basis, which means that the Services offer the functionality and performance as We generally make available in Nfield from time to time to all our customers. We will use reasonable endeavors to make Nfield available for use 24/7, however, You accept that this does not mean that the Services will be provided uninterrupted or error free at all times. If we foresee that scheduled maintained may necessitate to temporarily interrupt the Services, We will announce this in advance.
  2. We will provide support by making available a Second Line Helpdesk that can be contacted by Your first line helpdesk via e-mail and by telephone during the hours specified on http://www.niposoftware.com/contact/contact-details.aspx to report issues and to submit queries regarding the use of the Services. You agree to make a first line helpdesk available to Users so as to enable them to report any and all issues and report queries regarding the use of the Services. You will ensure that Users will not directly contact the Second Line Helpdesk with queries that Your first line helpdesk should reasonably be able to resolve.
  3. Without prejudice to Our other rights, We are entitled to immediately suspend the Services if:
    (a) You and/or one or more Users use the Services contrary to Our instructions;
    (b) You and/or one or more Users misuse the Services and/or Nfield, which misuse - in Our reasonable opinion - materially affects the integrity of Nfield, or part thereof, or the performance of the Services in relation to other customers that use the Services, including but not limited to (i) creating structurally higher traffic in the management environment of Nfield and/or (ii) higher bandwidth usage;
    (c) We become aware that Customer Content, Your use and/or the use by one or more Users of the Services is contrary to applicable law or infringes the rights of a third party;
    (d) You have a substantially higher non completion rate of interviews than comparable customers that are using the Services;
    (e) the integrity of Nfield and/or the Services is - in Our opinion - affected or threatened to be affected by external factors such as hackers and viruses; or
    (f) following the first reminder as meant in clause 7.5, You continue to fail to pay any Fees that are due under this Agreement.
  4. If We duly use our rights set out in clause 4.3(c), then without prejudice to Our other rights, We are entitled to remove the relevant Customer Content stored in Nfield.
  5. If We duly use our rights set out in clause 4.3(f), then without prejudice to Our other rights, You shall continue to owe and pay all Fees.
  6. We expressly exclude any and all obligations including warranties, whether implied or by law that (a) Nfield and/or the Services satisfy any legal and/or regulatory requirements applicable to You and/or (b) that Nfield and/or the Services satisfy Your expectations, business purposes or any other characteristic not expressly set forth in the Agreement.
  7. We shall, in Our sole discretion, determine the technical composition of Nfield. We are at any given time allowed to change or replace:
    (a) Nfield and any parts thereof; and/or
    (b) the Application and any of its features.
  8. We are not responsible for any third party telecommunication services that are required to access Nfield, such as upstream and downstream internet access and You acknowledge that these services are not part of Our Services.

5. YOUR OBLIGATIONS
  1. You understand and agree that the Services are provided by Us in a standardized form to all of Our customers in various countries around the world through a shared environment that is logically separated from other customers. You agree that is Your own responsibility to assess whether the Services satisfy Your expectations, purposes and any and all business, regulatory, statutory and operational requirements applicable to You.
  2. We will agree to a Evaluation Contract if You enter into an agreement for receipt of the Services with Us for the first time so as to offer You an opportunity to assess the Services by using the same.
  3. You shall:
    (a) use the Services for Your own internal purposes only and not resell, or otherwise directly or indirectly make the Services available to any third party;
    (b) not reverse engineer, decompile, disassemble, or otherwise attempt to derive or access any of the Services' source code and/or human readable embodiment;
    (c) ensure that Users abide by the terms of the Agreement;
    (d) use the Services in accordance with applicable laws at all times;
    (e) without prejudice to clause 5.3(c), accept responsibility for any use made of Nfield and/or Services by Users;
    (f) keep secret and be responsible for any use that is made of the access codes and passwords provided by Us to access the Services;
    (g) observe all reasonable instructions provided by Us in relation to the use of the Services and/or Nfield; and
    (h) use the Services in accordance with and for the purposes for which We provide the same to You and refrain from any use that in Our reasonable opinion constitutes a misuse of the Services.
  4. You shall ensure that all Users have been trained to properly use the Services before any use by them occurs and, that, in all cases, any use by Users occurs in accordance with the Agreement. If so agreed to in writing, We shall provide training to Users against Our then current rates to provide such training and You shall reimburse all expenses incurred by Us and Our subcontractors.
  5. You acknowledge that the Services do not include any inspection or verification by Us of the input and the output of the data as processed by Nfield, which shall be Your sole responsibility.

6. CUSTOMER CONTENT
  1. We will regard Customer Content as Your Confidential Information and observe the confidentiality obligations set out in clause 8. We shall not access any Customer Data stored by You in Nfield, unless we are required to do so by applicable law or by the regulations of any regulatory authority or pursuant to any order of court or other competent authority or tribunal.
  2. You will retain all rights in the Customer Content and hereby grant Us the right to distribute the Customer Content to Users through the Application as is necessary for the performance of the Services as contemplated hereunder. This right terminates when this Agreement is terminated in accordance with the terms of this Agreement and We fulfilled our commitment under clause 13.6.
  3. We will undertake to provide You with the tools necessary to create, edit and maintain Customer Content. Such tools are subject to change at Our sole discretion and You acknowledge that such changes may include the removal of a pre-existing functionality.
  4. You acknowledge and agree that You will no longer be able to access the Customer Content following the deletion of the Customer Content by Us in accordance with clause 13.6.

7. FEES AND PAYMENT
  1. As from the Service Commencement Date, You will have to pay Us a monthly recurring Subscription Fee and a monthly recurring Usage Fee for the provision of the Services, which will be payable and invoiced in arrears.
  2. The Usage Fee is calculated by the number of Completes in the applicable calendar month. We shall calculate the Usage Fee and are entitled to do so by using solely the data stored and/or derived from Nfield related to Your use of the Services and/or Nfield, which data shall constitute complete evidence of the number of interviews and the amount of the Usage Fees, without prejudice to Your or Our right to produce evidence to the contrary.
  3. All Fees are expressed and payable in the currency set out in the Contract. All amounts due hereunder are exclusive of any taxes and shall be increased with applicable taxes, such as value added tax, sales tax or customs duties, withholding taxes or similar charges, which You hereby agree to pay.
  4. You will receive a quarterly invoice. In case the Agreement is terminated before the end of the quarter, We will send You a final invoice. All Fees and taxes that become due hereunder must be received by Us within 14 days of the date of the associated invoice. You shall not have the right to suspend, retain or set off Fees that are due.
  5. If You fail to pay within the payment term as described in clause 7.4, We will send You a first reminder. We will send a second and final reminder if You fail to pay the invoice within 40 days of the date of the associated invoice. You shall be in default without any further notice if You continue to fail to pay the invoice within 10 days following the second and final reminder.
  6. We shall be entitled to revise the Fees. If We exercise this right, We shall provide You with no less than 2 weeks prior written notice specifying the date as per which the new Fees apply. After the notification We will not revise the Fees for a period of twelve months thereafter. If You do not wish to be bound by the new Fees, You can terminate the Agreement during this 2 week notice period. If You do not terminate the Agreement during the 2 week notice period, You will pay the new Fees as per the date specified in the written notice.

8. CONFIDENTIALITY
  1. Each party undertakes to the other party that (unless the prior written consent of the other party shall first have been obtained) it shall, and shall procure that its officers, employees, advisers, subcontractors and agents, keep confidential and not by failure to exercise due care or otherwise by any act or omission disclose to any person whatever, or use or exploit commercially for its or their own purposes, any of the Confidential Information of the other party.
  2. You shall, and shall procure that the Users keep confidential and not to disclose to any other person that is not authorized to use the Services and not employed by You any of the NIPO Software Confidential Information.
  3. The consent referred to in clause 8.1 shall not be required for disclosure by a party of any Confidential Information:
    (a) to its suppliers, subcontractors, officers, employees and agents, in each case, to the extent required to enable such party to carry out such party's obligations under the Agreement;
    (b) to its professional advisers or suppliers who are bound to such party by a duty of confidence which applies to any information disclosed;
    (c) to the extent required by applicable law or by the regulations of any stock exchange or regulatory authority to which such party is subject or pursuant to any order of court or other competent authority or tribunal;
    (d) to the extent required for the resolution of disputes before an expert, arbitral committee or a court proceedings;
    (e) to the extent that the relevant Confidential Information is in the public domain, otherwise than by breach of the present duty of confidentiality by such party;
    (f) which is disclosed to such party by a third party who is not in breach of any undertaking or duty as to confidentiality whether express or implied; or
    (g) which that party lawfully possessed prior to obtaining it from the other.
  4. If a party becomes required, in circumstances contemplated by clause 8.3(d), to disclose any Confidential Information, such party shall give to the other party such notice as is practical in the circumstances of such disclosure and shall co-operate with the other party, having due regard to the other party's views, and take such steps as the other party may reasonably require in order to enable it to mitigate the effects of, or avoid the requirements for, any such disclosure.

9. INTELLECTUAL PROPERTY RIGHTS
  1. Without prejudice to clause 9.5, all Intellectual Property Rights to Nfield and/or the Services, including Intellectual Property Rights that may ensue from Your use of the Services, vest in Us. You shall have no rights in Nfield and/or Services and are not entitled to use any of Our trademarks.
  2. Subject to full payment of the Fees, We hereby grant You, and You hereby accept, a non-exclusive, non-transferable, limited license during the term of the Agreement to access Nfield for the sole purpose of storing, managing and processing data that relate to Your market research activities and subject to the restrictions and obligations set forth in the Agreement.
  3. The Intellectual Property Rights to any modification, customizations or additions to Nfield or the Application made by Us at Your request, regardless of whether this was done at Your expense, will vest in Us, unless explicitly provided otherwise in writing.
  4. In as far as the Intellectual Property Rights referred to in clauses 9.1 and 9.3 do not automatically vest in Us by operation of law, You hereby assign such rights to Us and insofar applicable assign these rights in advance, which assignment is hereby accepted by Us.
  5. All Intellectual Property Rights to any Customer Content will vest in You. You hereby license Us to perform the actions necessary to serve any Customer Content to the Users and You warrant to Us that You have the right to provide such a license.
  6. You shall indemnify and hold Us harmless from and against any claims by a third party that the Customer Content and any use, distribution, storage and/or duplication thereof as contemplated in the Agreement infringes on the Intellectual Property Rights of a third party.
  7. You agree that We shall have the unilateral right (but have no obligation whatsoever towards You, nor shall We actively undertake) to monitor, remove, redact or censor Customer Content in cases where We have knowledge or a reasonable suspicion that such content is infringing on the Intellectual Property Rights of third parties or contains tortious or unlawful statements or (moving) images. You agree that We shall have the right to perform the actions in this provision without prior consultation with or notice to You.
  8. We shall defend You against all claims by third parties and pay all damages awarded to such third parties in a final court decision against You, or in a settlement, based on the allegation that Your use of the Services infringes of the copyright of such third party, provided that the following conditions are met:
    (a) You allow Us sole control of the defense or settlement and do not confirm or admit to any of such third party claims;
    (b) You do not agree to any settlement without Our prior written consent;
    (c) the infringement was not caused by any information or materials provided, published, stored or processed by You, such as Customer Content; and
    (d) You use the Services in accordance with this Agreement.
  9. If the Services or any part thereof infringe, or, in Our opinion, are likely to infringe a third party's Intellectual Property Right then We, at Our own expense and sole discretion, may either:
    (a) modify (the relevant part of) the Services so as to make it non-infringing;
    (b) acquire a license so that Services can be provided as contemplated in this Agreement; or
    (c) terminate this Agreement in whole or in part.
  10. This clause sets out Our entire obligations and liabilities in relation to Intellectual Property Right infringements and shall be subject to the limitations set out in clause 10.

10. LIABILITY
  1. Regardless of the grounds for liability, where We are held liable, We shall only have an obligation to compensate for damages that are established in accordance with the governing law referred to in clause 14.1, provided that (i) damages that qualify as loss of revenue, business, profits, data or any other indirect, or consequential loss shall be excluded from such compensation and (ii) such obligation to compensate for damages shall in all instances be subject to the limitations as are set forth in this clause 10.
  2. Our duty to compensate for damages for any and all events occurring in any period of 12 consecutive months shall not exceed the Fees paid under this Agreement by You during that same period.

11. PROCESSING OF PERSONAL DATA
  1. We are the processor- and You are the controller of the personal data of Users that is contained in the Customer Content and are processed through the provision of the Services.
  2. We have adequate technical and organizational measures in place to ensure security for any data processing operations and will only process the Customer Content on Your behalf and for the purpose of providing the Services. We will not collect, process or use any Customer Content for any other purposes.
  3. You are responsible for the evaluation of the admissibility of the processing of the Customer Content and for ensuring the rights of the data subjects concerned. In this respect, You warrant that You obtained any personal data of Users processed through the provision of Services in accordance with the applicable data protection laws and that You have the authority to disclose such information. You undertake to comply with all applicable data protection laws and to respect obligations resulting thereof, notably with respect to Us as data processor, data subjects, competent data protection authorities and any other third parties.
  4. We engaged Microsoft Inc. to provide the Azure services on which the Application operates. You are therefore informed and accept that We use Microsoft Inc. as a sub-processor for the provision of the Services. In the event of a change of sub-processor, We will notify You of such a change.
  5. Upon termination of the Agreement, We will block and delete the Customer Content in accordance with clause 13.6.
  6. We will be responsible for the processing of Your contact details that You provided to Us upon conclusion of the Contract and the Administrator's contact details and will be deemed controller of any personal data contained in Your contact details. We will process Your contact details in accordance with our privacy policy and for the purpose of providing the Services, newsletters and marketing e-mails.

12. INDEMNITY
  1. You shall indemnify Us and hold Us harmless from and against (i) any claims by third parties, including Your affiliates, customers and/or suppliers that relate or ensue from the provision or use of the Services provided hereunder, (ii) Your failure to perform Your obligations hereunder, and (iii) Our failure to provide the Services, unless We have an obligation to indemnify You pursuant to clause 9 in which case We shall indemnify You if and to the extent as set out in clause 9.

13. TERM AND TERMINATION
  1. The Agreement will come into effect on the date on which You and We have both signed the Contract and shall remain in effect:
    (a) if the Contract is an Evaluation Contract: for the duration of the Trial Period after expiry of which the Agreement terminates forthwith, unless the Agreement is terminated prior to expiry in accordance with the provisions of this Agreement; or
    (b) if the Contract is not an Evaluation Contract: for an unlimited period of time until the Agreement is terminated in accordance with the provisions of this Agreement.
  2. Without prejudice to Your right to terminate the Agreement in accordance with clause 7.6, the Agreement may be terminated by either party at any time by giving written notice. Such termination takes effect at the end of the then current calendar month provided that the party that terminated the Agreement delivers notice to the other party ultimately 2 days (48 hours) before the end of the calendar month. If such notice was not received ultimately 2 days (48 hours) before the end of the calendar month then the termination takes effect at the end of the next calendar month. You may provide such written notice by sending a letter to Grote Bickersstraat 74, 1013KS Amsterdam or by e-mail to sales@niposoftware.com. Termination will only take place if We confirmed timely receipt of the termination notice.
  3. The Agreement may be immediately terminated in whole or in part by a party by written notice to the other party if the notified party:
    (a) materially fails to perform an obligation under the Agreement and failed to remedy such a failure within 30 days after having received a proper written notice of default; or
    (b) is declared bankrupt, becomes insolvent, applied for a moratorium, or upon the institution of any proceedings by it seeking relief, reorganization or arrangement under any laws relating to insolvency, or if an involuntary petition in bankruptcy is filed against a party and the petition is not discharged within 30 days after filing, or upon any assignment for the benefit of a party's creditors, or upon the appointment of a receiver, liquidator or trustee of any of a party's assets, or upon the liquidation, dissolution or winding up of its business or if any event analogous to the foregoing under the law of any jurisdiction has occurred in respect to the other party.
  4. In the event that this Agreement is terminated by either party for any reason:
    (a) All of Your rights in relation to Nfield will end, including Your right to access Nfield;
    (b) You shall immediately cease using Nfield and, within 30 days after termination, either return to Us or destroy all copies of any NIPO Software Confidential Information;
    (c) All Fees owed by You to Us shall become immediately due and payable without further notice or demand and in no event will We be obligated to refund to You any fees paid by You hereunder; and
    (d) Clauses 8 (Confidentiality), 9 (Intellectual Property Rights), 10 (Liability), 12 (Indemnity) and 14 (Governing Law, Dispute resolution) shall survive termination of this Agreement.
  5. Neither party may rescind this Agreement for cause. Article 6:265 of the Dutch Civil Code is hereby excluded.
  6. During a period of 30 days following the termination of this Agreement in whole, We can grant You access to Your Customer Content during a 24-hour period in order to retrieve Your Customer Content. After this 30 day period, We will make any and all Customer Content inaccessible and delete the Customer Content.

14. GOVERNING LAW, DISPUTE RESOLUTION
  1. The Agreement shall be governed by and construed in accordance with the laws of the Netherlands.
  2. All disputes, controversies or claims between the parties arising out of or in connection with this Agreement shall be submitted to the competent court in Amsterdam, the Netherlands.

15. MISCELLANEOUS
  1. Neither this Agreement nor any of Your rights under this Agreement may be assigned, transferred, or conveyed by operation of law or otherwise, without Our prior written consent. We may at any time assign part or all of its rights under this Agreement.
  2. This Agreement constitutes the entire Agreement between the parties with respect to the subject matter hereof and supersedes all previous proposals, both oral and written, negotiations, presentations, commitments, writings and all other communications between the parties.
  3. We may change these Nfield Terms and Conditions and declare such changed terms and conditions applicable to existing Agreements by giving You written notice hereof.
  4. This Agreement may not be amended, altered or modified except by an addendum or by Us unilaterally to the extent as provided for in the Agreement. Any handwritten changes or additions made by You to any part of the Agreement shall be null and void.
  5. In case of an inconsistency or discrepancy between the clauses of the Agreement, the relevant clauses in the body of the Contract take precedence.
  6. Where this document is translated into any other language than English, You acknowledge that this is merely for Your convenience and that the English language version will be controlling.
  7. We will endeavour to comply with all provisions that stipulate performance by Us on a certain date or during a certain period, but You agree that We are not in breach of the Agreement if We fail to comply with such stipulations.
 

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