GENERAL TERMS AND CONDITIONS
Last updated: March 2017
These general terms and conditions (“Terms”) are made by Equistor B.V., a private company with limited liability, having its seat at Boekenrodestraat 1, 2012 LD Haarlem, the Netherlands, registered with the Dutch Trade Register under number 60134135 (“Equistor”).
By using our Service, you agree to be bound by these Terms. Please read these Terms carefully before using our Service. We reserve the right to update, change or replace any part of these Terms without giving reasons by posting updates or changes on our website (www.equistor.com) (“Site”). You can review the most current version of the Terms at any time on our website. It is your responsibility to check our website periodically for changes. Your continued use of our Service following the posting of any changes constitutes acceptance of those changes.
1.1 In these Terms the following capitalized terms when used herein shall have the definition assigned to them below (unless the context requires otherwise):
|Project||each unique charter and/or other reference which represents an initiative or project entered into the Platform by Customer;|
|Agreement:||the agreement between Equistor and Customer;|
|Confidential Information||information that is not generally known to the public, such as software, product plans, pricing, marketing and sales information, customer lists, “know-how,” or trade secrets, which is designated as confidential or would normally under the circumstances be considered as confidential. It does not include information that the recipient already rightfully knew, that becomes public through no fault of the recipient, that was independently developed by the recipient, or that was lawfully given to the recipient by a third party. Customer Data is considered Customer’s Confidential Information.|
|Customer||the customer to whom the Service is provided by Equistor;|
|Customer Data:||the data transmitted into the Platform by Customer or End Users;|
|End User||each individual or entity that acts on behalf of Customer and is authorized to access and use the Platform in accordance with the Agreement;|
|Equistor||Equistor B.V., with registered seat at Boekenrodestraat 1, 2012 LD Haarlem, the Netherlands, registered with the Dutch Trade Register under number 60134135;|
|Force Majeure||circumstances beyond the reasonable control of Equistor as described in Clause 17;|
|Free Trial||the free use of the Service for a limited trial period of up to 30 days, unless another period is agreed upon;|
|Initial Term||the initial term of the Agreement;|
|Platform||the Equistor platform; an innovative software platform developed by Equistor for the Private Equity Industry that facilitates unprecedented insight into portfolio value creation;|
|Service||all services of Equistor, especially giving access to its software platform for the Private Equity Industry to accelerate value creation in portfolio companies and improve monitoring for private equity firms and investors;|
|Site||the website of Equistor with address www.equistor.com;|
|Successive Term||the automatic renewal term of the Agreement equal to the duration of the Initial Term;|
|Terms||these general terms and conditions.|
1.2 In these Terms, a reference to:
- singular words shall include the plural and vice versa and words in a particular gender shall include all genders, unless the context requires otherwise;
- the word “include” or “including” are used to indicate that the matters listed are not a complete enumeration of all matters covered, unless the contrary is specifically stated;
- the words “hereof”, “herein”, “hereto” and “hereunder” and words of similar import shall refer to these Terms as a whole and not to any particular provision thereof; and
- a clause or a schedule is a reference to a clause or schedule of the actual Agreement.
1.3 In these Terms, clause headings are inserted for convenience purposes only. They shall not affect the construction or interpretation of these Terms.
1.4 In case of conflict between or inconsistency of the provisions of the actual agreement and the contents of the Schedules and/or Annexes, the provisions of the actual agreement shall prevail.
1.5 The English language used in these Terms intends to describe Dutch legal concepts only and the consequences of the use of this language in English law or any other law shall be disregarded. In case of conflict between Dutch legal concepts mentioned in these Terms and the English translation thereof as used in these Terms, the Dutch text, and its meaning thereof under Dutch law, will prevail.
2.1 If Customer registers for a Free Trial, Equistor will make all or a part of the Service available to Customer on a trial basis free of charge until the earlier of (a) the end of the Free Trial period for which Customer registered to use the applicable Service or (b) the start date of a paid subscription to the Services. Additional terms and conditions may appear on the Free Trial registration web page within the Site or may agreed upon in the Agreement. Any such additional terms and conditions are incorporated into these Terms by reference and are legally binding.
2.2 Any data Customer or End User enters into the Platform during the Free Trial period may be permanently lost unless Customer purchases a subscription to the Service or exports such data before the end of the Free Trial period.
3 PROVISION OF SERVICES
3.1 Equistor shall provide to Customer access to the Platform and the right to use the Platform (non-exclusively) during the term of the Agreement.
3.2 Equistor shall provide to Customer a personal account name and password to access to a personal account within the Platform. If Customer has the right to use the Service for an unlimited number of End Users, Equistor will not supply the personal accounts for the End User, but will merely provide to Customer the possibility to create itself a personal account for each End User within the Platform.
3.3 Customer is responsible for the security of its passwords (and of its End Users) and for any use of the personal accounts and its passwords. If Customer becomes aware of any unauthorized use of the password or personal accounts, Customer will notify Equistor as promptly as possible.
4.1 Equistor shall manage and store the Customer Data in a secure environment during the term of these Terms. If Customer so wishes, the Customer Data can also be managed and stored by Customer itself. In that case, Equistor will not be responsible for the storage, security and accessibility of the Customer Data, and the relevant provisions of these Terms will not apply.
5.1 Equistor can provide additional services to Customer (such as ad hoc support, commercial advice and analysis on portfolio data) at Customer’s request. For these additional services separate fees and conditions (to be further agreed upon between Parties) will apply.
6.1 Customer shall pay to Equistor for the Service the fee specified in the Agreement hereunder (“Fee”). The Fee can be:
6.1.1 a Fee per month per End User: Customer pays a Fee for the subscribed number of End Users with a minimum of two, and may only use the Service for the subscribed number of End Users;
6.1.2 a Fee per month per Active Project: Customer pays a Fee for the subscribed number of Active Project with a minimum of one. Customer may use the Service for an unlimited number of End Users in accordance with the general rules of ‘fair use’ and ‘fair conduct; or
6.1.3 any other Fee specified in the Agreement: Customer pays any other Fee as specified in the Agreement hereunder. Additional conditions may apply.
6.2 Except as otherwise specified herein or in the Agreement, (i) Fees are quoted and payable in Euro’s (ii) Fees paid are non-refundable, and (iii) the number of subscriptions purchased cannot be decreased during the relevant subscription term stated in the Agreement (subscription Fees are based on such periods as shall be specified in the Agreement), (iv) Equistor may change the Fees upon notice to Customer.
6.3 Equistor will issue an (electronic) invoice. Customer will pay the Fee to Equistor within 15 (fifteen) days from the invoice date.
6.4 If payment has not occurred in time, Equistor will charge statutory interest plus an extra interest of 3% over the outstanding amount per day, from the date the payment was due until full payment is made.
6.5 Customer is liable for any reasonable direct and indirect costs including but not limited to all costs involved with the collection of the outstanding claims of Equistor.
6.6 Written quotations are valid for thirty (30) days from the date of the quotation unless otherwise noted on the quotation.
7.1 Security Level and Data Transfer. All facilities used to store and process the Platform and Customer Data will adhere to reasonable security standards no less protective than the security standards at facilities where Equistor processes and stores its own information. Equistor has implemented (at least) industry standard systems and procedures to ensure the security and confidentiality of the Platform and Customer Data, and protect against unauthorized access to or use of the Platform and Customer Data. Equistor may process and store the Platform and Customer Data in any desired country. By using the Platform, Customer consents to this processing and storage of the Platform and Customer Data. Parties agree that Equistor is merely a data processor.
7.2 New Applications and Services. Equistor may: (i) make new applications, tools, features or functionalities available for the Platform from time to time and (ii) add new services to the “Services” definition from time to time, the use of which may be contingent upon Customer’s agreement to additional terms.
7.3 Modifications to the Platform. Equistor may make commercially reasonable updates to the Platform, and may modify the functionality or features of the Platform at any time, provided that such updates and modifications do not materially denigrate the functionality of the Platform. Equistor will not be liable to Customer or any third-party for any such update or modification. From time to time, Equistor may change the location where the Platform is provided; provided, however, Equistor will remain responsible for the delivery of the Platform.
7.4 Repairs or Maintenance. It may be necessary for Equistor to perform scheduled or unscheduled repairs or maintenance, or remotely patch or upgrade the Platform, which may temporarily degrade the quality of the Platform or result in a partial or complete outage of the Platform. Although Equistor cannot guarantee that Customer will receive advance notice of repairs or maintenance, Equistor will endeavour to provide at least seven (7) days’ notice of scheduled repairs and maintenance.
7.5 Suspension of Service. Equistor may suspend all or part of the Services or the access to or use of Customer Data stored in the Platform (i) if Customer is delinquent on payment obligations for 15 (fifteen) days or more; (ii) upon receipt of a subpoena or law-enforcement request; or (iii) when Equistor has a commercially reasonable belief that Customer has breached these Terms or that Customer’s use of the Platform poses an imminent security risk or may subject Equistor to liability. Equistor will use commercially reasonable efforts to give Customer at least 12 (twelve) hours’ notice of a suspension unless Equistor determines in its commercially reasonable judgment that a suspension on shorter or contemporaneous notice is necessary to protect Equistor.
7.6 Deletion of Customer Data. Equistor may delete Customer Data 60 (sixty) days following any termination of these Terms. If Equistor is providing access to the Platform as a “trial” such as a demo, evaluation or pilot, Equistor may delete Customer Data stored in the Platform, immediately after the trial period, and is under no obligation to return Customer Data to Customer. If, however, immediately after the trial period Customer enters into a long term agreement with Equistor, Equistor will keep the Customer Data stored in the Platform in accordance with these Terms.
8.1 Equistor has taken measures to protect the Platform from unauthorized access to or unauthorized alteration, disclosure or destruction of the data entered into the Platform. In particular:
8.1.1 Equistor encrypts its services using SSL and data store based on AES-256 encryption.
8.1.2 Equistor uses two step verification when Customer wants to access its personal account.
8.1.3 Equistor reviews its information collection, storage and processing practices, including physical security measures, regularly to guard against unauthorized access to systems.
8.1.4 Equistor restricts access to personal information of Customers to its employees, contractors and agents who need to know that information in order to process it for Equistor, and who are subject to strict contractual confidentiality obligations and may be disciplined or terminated if they fail to meet these obligations.
9.1 If Customer has problems to access or use the Platform, it can reach Equistor by feedback form. Equistor will respond to Customer within a reasonable time and will use its best efforts to solve the problem.
10.1 When a Customer or its End Users create a personal account and/or during your use of the Service, Equistor may collect certain personal information of Customer or End Users such as name, address or e-mail address. The submission of personal information by Customer and End Users is governed by our Privacy Statement. This Privacy Statement can be found at our website (www.equistor.com).
11 OBLIGATIONS OF CUSTOMER
11.1 Customer is responsible for keeping its personal information, account permissions, billing and other account information up to date. In Equistor’s performance of the Services, Equistor may obtain information related to Customer’s use of the Platform. Customer agrees that Equistor may use such information in an aggregated, anonymized form to assist in improving and optimizing various aspects of the Platform or in support of generic marketing activities related to the Platform.
11.2 Customer represents and warrants that it has obtained all rights, permissions and consents necessary to use and transfer any Customer Data into the Platform (including providing adequate disclosures and obtaining legally sufficient consents from the relevant employees, agents and contractors). Customer is solely responsible for the Customer Data it stores in the Platform, including its maintenance, operation and compatibility in and with the Platform. Customer understands and agrees that Equistor has no control over the stored Customer Data. Equistor will not be responsible and is not liable for any disclosures, modifications or deletions of Customer Data resulting from any such transmission.
11.3 Customer must use reasonable security precautions in connection with its use of the Platform and comply with the terms and conditions of these Terms. Customer must cooperate with Equistor’s reasonable investigation of Service outages, security issues and any suspected breach of these Terms.
11.4 Customer is responsible for the use of the Platform by any user (not only End Users) and any person who gains access to the Customer Data or the Platform as a result of Customer’s failure to use reasonable security precautions, even if the use was not authorized by Customer. If Customer becomes aware of any violation of its obligations under these Terms by any user, Customer will immediately terminate such user’s access to the Platform.
11.5 Customer is responsible for properly using the Platform and taking its own steps to maintain appropriate security, protection and back-up of its Customer Data. Customer acknowledges that the Platform is not intended to replace and does not replace the need for Customer to maintain regular data back-ups or redundant data archives. Customer is responsible for maintaining back-up copies of its data that may be stored or processed in the Platform. Customer understands and agrees that Equistor is not responsible for any loss or corruption of its data.
12.1 Customer agrees not to:
12.1.1 permit any third-party to use the Platform, unless such third-party is an authorized End User using the Platform solely as necessary for Customer to enjoy the benefits of the Platform, this End User is bound by terms no less restrictive than those set forth in these Terms, and under the condition that Customer is responsible for any breaches by such End User,
12.1.2 sell, sublicense, rent, lease, grant a security interest in or otherwise transfer rights to the Platform;
12.1.3 copy, modify, translate, alter, adapt, publish, transmit, remove, reverse engineer, decompile, disassemble, reproduce, distribute, display, create derivative works, compilations or collective works based on or otherwise exploit any of the Platform software;
12.1.4 interfere with the use of the Platform, or the equipment used to provide access to the Platform, by other customers, authorized resellers, or other authorized users;
12.1.5 disable, interfere with or circumvent any aspect of the Platform;
12.1.6 use the Platform to violate, or encourage the violation of, the legal rights of others;
12.1.7 use the Platform to engage in, promote or encourage illegal activity;
12.1.8 use the Platform for any unlawful, invasive, infringing, defamatory or fraudulent purpose;
12.1.9 use the Platform to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature; and
12.1.10use the Platform, or any interfaces provided with the Platform, to access any other product or service of Equistor in a unlawful or unauthorized manner.
13.1 In connection with these Terms, each party may have access to or be exposed to Confidential Information of the other party. Confidential Information may not be shared with third parties unless such disclosure is to the receiving party’s personnel, including employees, agents, and subcontractors, on a “need-to-know” basis in connection with these Terms, so long as such personnel have agreed in writing to treat such Confidential Information under terms at least as restrictive as those herein.
13.2 Each party agrees to take the necessary precautions to maintain the confidentiality of the other party’s Confidential Information by using at least the same degree of care as such party employs with respect to its own Confidential Information of a similar nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality. The foregoing shall not apply to information that (1) was known by one party prior to its receipt from the other or is or becomes public knowledge through no fault of the recipient; or (2) is rightfully received by the recipient from a third party without a duty of confidentiality.
13.3 If a recipient is required by a court or government agency to disclose Confidential Information, the recipient shall, subject to any applicable lawful restrictions, provide advance notice to other party before making such a disclosure. The obligations with respect to Confidential Information shall survive termination of the Agreement.
14.1 Equistor is the holder of all intellectual property rights (such as patents, patent applications, trademarks, trademark applications, service marks, trade names, copyrights, trade secrets, licenses, domain names, mask works, information, proprietary rights, processes copyrights and trademarks) in relation to the Platform and the Services.
14.2 These Terms does not grant or transfer to Customer or its End Users any intellectual property right, implied or otherwise, to the Platform, the Services, or any other service or product of Equistor.
15.1 The Agreement shall commence on the day Customer registers for the Services and continues for the Initial Term specified in the Agreement. If Customer elect to use the Services for a Free Trial period and do not purchase a subscription before the end of that period, the Agreement will terminate at the end of the Free Trial period.
15.2 After the Initial Term, the Agreement will be automatically renewed for Successive Terms, unless either party terminates the Agreement ultimately one month before the end of the Initial Term or the relevant Successive Term, by means of a written notice addressed to the registered address of the other party.
15.3 Equistor may terminate the Agreement with immediate effect, without any notice being required and without being liable for any damages as a result of the termination, if Customer:
- is in default or negligent in the performance of its duties and obligations pursuant to the Agreement or these Terms, and has not remedied such non-performance within 14 (fourteen) days after having been notified in writing;
- has been dissolved of liquidated, or is in dissolution or liquidation;
- has been granted suspension of payments; and
- has been declared bankrupt.
16.1 If the Agreement expires or is terminated, then: (i) the rights granted by Equistor to Customer will immediately cease; (ii) Customer will remove the software of all its devices and return all copies of the software to Equistor, (iii) all Fees (including taxes) owed by Customer to Equistor are immediately due; (iv) Equistor may delete the Customer Data within 60 (sixty) days after the date of termination of these Terms; and (v) upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party.
16.2 The terms and conditions relating to Equistor’s liability, intellectual property rights and confidentiality shall survive termination of the Agreement for any reason.
17.1 Customer agrees that it uses the Platform at its own risk. Equistor disclaims all liability for direct or indirect consequential loss, damage or injury including loss of business opportunity, loss of use of profits or of contracts or business revenue, interest, goodwill or anticipated savings, damage or injury of any kind whatsoever, and all other pure economic loss, arising out of or in connection with the performance of the Services, regardless of the form of action, whether in an agreement, tort, strict product liability or otherwise, even if advised of the possibility of such damages and even if the damages were foreseeable.
17.2 Equistor disclaims all liability for violation, misappropriation or infringement of intellectual property rights, and further disclaims any liability for incidental or consequential damages arising out of any infringement of intellectual property rights in connection with the performance of the Services.
17.3 Customer acknowledges and agrees that it is solely responsible for the proper back-up of all Customer Data and that it shall take appropriate measures to protect its Customer Data. Equistor (and its third-party licensors, suppliers or contributors of certain included software) does not assume any liability or responsibility whatsoever for the loss and/or corruption of Customer Data.
17.4 Equistor is only liable in case of wilful misconduct or gross negligence and its liability will in no event exceed the total amount of the total Fees of one year.
17.5 Equistor shall be deemed to have been discharged from all liability in respect of the performance of the Services, whether under the law of contract, tort or otherwise, on the expiration of one year from the completion of the Services or one year after the termination of the Agreement (whichever period is shorter), and Customer (and persons claiming through or under Customer) shall not be entitled to commence any action or claim whatsoever against Equistor in respect of the performance of the Services after that date.
Customer will indemnify, defend, and hold harmless Equistor from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim: (i) regarding any Customer Data; (ii) regarding the use of the Platform by Customer or End Users in violation of the Rules of Conduct or any of the other obligations under these Terms; (iii) regarding any other unauthorized use of the Platform by Customer, End Users or other persons acting on its behalf; and (iv) Customer’s breach of these Terms or violation of any applicable law, regulation or order.
Equistor will not be liable to Customer for any failure to perform any of its obligations under these Terms during any period in which performance is delayed by circumstances beyond its reasonable control (“Force Majeure”), which includes (among others) an interruption in the access to the Internet, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), hacks, fire, explosion, power blackout, earthquake, flood, severe storms, strike, riot, embargo, acts of God, acts or omissions of Internet traffic carriers or actions or omissions of regulatory or governmental authorities (including the passage of laws or regulations or other acts of government or law enforcement that impact the delivery of the Services). Equistor will inform Customer of the Force Majeure as soon as reasonably possible. Equistor’s performance will be excused for the duration of the Force Majeure. In the case of a Force Majeure, Customer acknowledges and agrees that its Customer Data may not be recoverable and Customer accepts responsibility for re-entry of such Customer Data. Equistor is not liable for any damages of Customer nor is Equistor obliged to repay Customer (a part of) the Fee in the event of a Force Majeure.
20.1 The Agreement and these Terms (including its schedules and annexes) represents the entire understanding and agreement between parties with respect to the subject matter thereof and supersedes all previous agreements, both in writing and oral, including correspondence in this respect.
20.2 The invalidity or unenforceability of any provision of these Terms shall not affect the validity or enforceability of any other provision of these Terms. Any such invalid or unenforceable provision shall be replaced or be deemed to be replaced by a provision that is considered to be valid and enforceable and which interpretation shall be as close as possible to the intent of the invalid provision.
20.3 Equistor may make changes to these Terms, including pricing from time to time. Unless otherwise noted by Equistor, material changes to the Agreement will become effective 30 days after they are posted, except if the changes apply to new functionality or updates of the Platform in which case they will be effective immediately.
Customer is not allowed to assign or transfer any of its rights or obligations under the Agreement to a third party.
Any notice or other communication under or in connection with the Agreement or these Terms shall be in writing and shall be delivered personally or sent by registered mail to the party due to receive the notice at its registered address.
23.1 The Agreement and these Terms shall only be governed by and construed in accordance with the laws of the Netherlands.
23.2 All disputes arising out of or in connection with the Agreement and these Terms, including disputes concerning the existence and validity thereof, shall be exclusively submitted to the competent court of Amsterdam in the Netherlands.
2012 LD Haarlem
tel.: +31(0)20 240 4495
Dutch Trade Register number: 60134135
Equistor B.V. (“Equistor”) takes the privacy of its Customers very seriously and treats all their personal data with great care. We are committed to giving Customers transparency of our privacy practices and control over their data in connection with the services provided by Equistor (the “Service”). In order to guarantee your privacy, Equistor always acts in accordance with the Dutch Data Protection Act (Wet Bescherming Persoonsgegevens).
1. What information does Equistor collect and process?
Information you provide to us
In order to make optimum use of the Service, it is necessary to create a personal account. When you create an account, you may enter certain personal information. You are not obliged to provide all the data requested. Only user name and email address are obligatory. This information is sufficient for you to make a personal account. All the information you provide is used for such purposes as allowing you to set up a user account.
Automatically Generated Data
Equistor requires certain information in order for the Service to work as optimally as possible (for example, to keep you posted about software updates). It also helps us to improve our Service. That is why Equistor collects automatically generated data about your user behavior during your use of the Service. This information consists of the operating system you are using, location data, and the account number.
2. How does Equistor protect your information?
We work hard to protect your personal data from unauthorized or unlawful access, alteration, disclosure, use or destruction of your personal data. In particular: (i) we encrypt many of our services using SSL, (ii) we use a two-step verification process (username/password and question/answer stored with advanced encryption standard (AES) with a 256-bits block size) when you access your account, (iii) we review our information collection, storage and processing practices, from time to time to guard our systems against unauthorized access, and (iv) we restrict access to personal information to our employees and all other parties we work with, who are subject to strict contractual confidentiality obligations and may be disciplined or terminated if they fail to meet these obligations. Your account information is protected by a password for your privacy and security. You need to prevent
unauthorized access to your account by selecting and protecting your password appropriately, and limiting access to your account. You need to keep your password secret to avoid others using your account without your consent.
As stated above, Equistor takes appropriate technical and organizational measures to protect your personal information. However, Equistor cannot guarantee the security of user account information. Unauthorized entry or use and any other factors may comprise the security of user information any time.
3. How is the information that you provide used by Equistor?
To provide the Services. Equistor uses the information to provide its Services to you, such as to operate the Equistor online platform, giving you access to the online platform and to provide you additional Services.
To communicate with you about Equistor and to send you information about the Services. Equistor uses your data, for example, to answer your questions about the Service and to inform you of changes to the Services.
To configure the Services to your wishes and needs. Equistor uses your personal information so it can better respond to your wishes and needs. For example, the information can be used to make sure that you will use the Services at its best.
4. Transfer of data to countries outside the EU
For technical and operational reasons, it may be necessary that your data will be transferred to (the servers of) companies affiliated to Equistor or co-operators in other countries outside of Europe. Since legislation concerning data protection may then not offer the same protection as in the European Union, you hereby agree that your information provided can be transferred to another country outside of Europe.
5. Which cookies does Equistor use?
We use various technologies to collect and store information when you visit the website of Equistor, and this may include sending one or more cookies to your device (computer, tablet or smartphone). A cookie is a small text file containing a string of characters that can be placed on your device when you
If you do not want that cookies are sent to your computer, you can reset your browser to refuse all cookies or to indicate when a cookie is being sent. Follow the instructions provided by your website or mobile browser (usually located within the “Help” facility) to modify your cookie settings. Please note that some website features or services of Equistor may not function properly without cookies.
6. How can I view, edit or delete my personal data?
You can view or edit your personal data by logging in to your personal account. If you have problems with viewing or editing your personal data or you want to have your account deleted, please send us an e-mail at: www.equistor.com. Please be aware that if you delete your account, all the information you have entered into your personal account will be deleted from Equistor’s servers.
8. Modifications to this Privacy Statement
Equistor may update its Privacy Statement from time to time. When we change this Privacy Statement in a significant way, we will send you an e-mail and post a notification on our website along with the updated Privacy Statement.
9. Questions ?
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