GENERAL TERMS AND CONDITIONS – SWYDO
Swydo will provide its Customers access to “Software as a Service” applications for data access and data reporting under the following Terms and Conditions.
A list of defined terms used in these Terms and Conditions are included in Clause 15.
1.1 These Terms and Conditions apply to all offers and quotes of Swydo as well as to all agreements between Swydo and its Customers.
1.2 The Signup Form together with these Terms and Conditions form the entire agreement between Swydo and the Customer regarding the Service.
2. LICENSE AND SERVICE
2.1 During the Term, Swydo will make the Service available to the Customer pursuant to a License.
2.2 The License is limited to use of the Service for business purposes.
2.3 The License will become effective after acceptance of the Customer by Swydo, thereby granting the Customer access to the Service via the Account during the Term.
2.4 The Customer acknowledges and agrees regarding the use of the License, that, the Customer and its user(s) (natural persons authorised to access the Service) shall, where relevant, adhere to the following rules:
a) the Service is exclusively used for business purposes;
b) access to the Services is not transferred to third parties outside its organisation, e.g. sharing log-in codes; and/or
c) the Service will not be changed, copied, reverse engineered, modified, extended or decompiled.
2.5 Swydo is entitled to perform random audits in order to confirm Customer’s compliance with these rules.
3.1 After the Signup Form is submitted, Swydo will provide the Customer with login details of the Account.
3.2 The Customer can create four (4) levels of authority to the Account, starting with the Owner / the Administrator having all rights to the Account including opening and terminating the Account, add new data sources and amending billing details and contract addresses. The User can use the Service and add new data sources and the Contributor can use the Service, but has no authority to add new data sources or new users to the Account. By creating new Users the Customer acknowledges that the User can add new data sources to the Account on its behalf.
3.3 The Customer is responsible for maintaining the confidentiality of all login information for the Account and undertakes towards Swydo that the Administrator, the Users and the Administrator will do the same.
4. FEES AND PAYMENT
4.1 Swydo charges a Fee to the Customer consisting of a Base Fee and an additional Data Source Fee (if applicable) for the Service that applies during the Initial Term and/or the Extended Term as the case may be.
4.2 The Base Fee will be paid by the Customer monthly in advance unless otherwise agreed in the Signup Form. The Base Fee includes access to the Service and the use of ten (10) data sources.
4.3 If additional data sources are added an additional fee is charged by Swydo per data source; the Data Source Fee. The Data Source Fee will be charged on a monthly basis in arrears.
4.4 All Fees are stated and payable in USD (US$) and exclusive of VAT and other applicable taxes. The Customer is responsible for due payment of all (additional) taxes, levies, or duties imposed by tax authorities in Customer’s own country.
4.5 No refunds or credits for Fees or other fees or payments will be provided to the Customer, unless explicitly stated otherwise in these Terms and Conditions.
4.6 The applicable Fee during the Initial Term and/or the Extended Term is published on Swydo’s website and can be amended by Swydo unilaterally from time to time. The new Fee will be applicable as of the start of the next Extended Term.
4.7 The Customer is not entitled to set off outstanding amounts due.
4.8 If the Customer fails to pay, or fails to pay in due time, the Customer will be, without a warning or notice of default being required, charged with the outstanding amount of statutory interest for trade agreements due. If a Customer remains in default after having been warned or having been issued a notice of default, Swydo may claim, in addition to the total amount owed, all legal and extrajudicial costs incurred, including all expenses charged by external experts. This shall be without prejudice to the other legal and contractual rights of Swydo.
4.9 Credit card or payment details can be forwarded by Swydo to an external payment processor.
5. INTELLECTUAL PROPERTY
5.1 All intellectual property rights in and in connection with the Service and/or related services (if any) exclusively remain with Swydo. Nothing in these Terms and Conditions is intended to include a transfer of any intellectual property rights to the Customer.
5.2 Swydo will at all times be entitled to introduce technical protection measures to protect the Service (including the associated intellectual property rights), even if that would lead to a restriction on the use of the Service. The Customer is never allowed to directly or indirectly (through a third party) remove or circumvent such technical protection measures.
5.3 The Customer is aware and acknowledges that Swydo uses open source software of third parties as integrated part of the Service.
5.4 If the Service becomes, or in Swydo’s opinion is likely to become, the subject of an infringement claim, Swydo may at its option and expense and as the Customer’s sole and exclusive remedy: (i) procure for the Customer the right to make continued use of the Service; (ii) replace or modify the Service so that it becomes non-infringing; or (iii) terminate the License and refund a prorated portion of the prepaid but unused Fee paid.
6. SUPPORT AND MAINTENANCE
6.1 Swydo will use commercially reasonable efforts to make the Service available to the Customer.
6.2 The Customer may correspond with Swydo regarding questions or issues relating to its Account and the Service to the helpdesk by e-mail and /or telephone.
6.3 Swydo may at any time (temporarily) suspend or limit the use or availability of the Service or part thereof, insofar this is necessary to execute maintenance or implement updates, new releases, adjustments or improvements. Swydo endeavours to inform the Customer of the in advance of these situations, if and when possible. Any (temporarily) suspension or limitation of the availability of the Service or part thereof does not create any claim or right to compensation or refund(s) of the Customer against Swydo.
7. DISCLAIMER, NO WARRANTIES
7.1 The nature of the obligations of Swydo is one of commercially reasonable efforts and not a commitment of result.
7.2 Although the Service has been developed and compiled with the greatest level of skill and care, Swydo does not guarantee that the Service will at all times function without defects or interruptions. The Service is provided “AS IS” and “AS AVAILABLE”. To the extent permitted by law, Swydo disclaims all express or implied warranties, including the implied warranty that the Service is suitable for a particular purpose. The Customer assumes sole responsibility for use of the Service by the Customer and any conclusions drawn from such use. Swydo shall have no liability for any damage caused by errors or omissions in any information or Data provided by the Customer in connection with the use of the Service.
7.3 Swydo provides no guarantee whatsoever with regard to, and shall not be liable for damages or (financial) reimbursement as a result of: (i) the failure of the Service to meet the expectations of the Customer, (ii) the non- or uninterrupted availability of the Service, (iii) the compatibility or the correct operation of the Service in combination with the hardware or software of the Customer, (iv) the Data entered by the Customer or a client.
7.4 Swydo does not guarantee that support is available at all times and that the support advice provided is always correct.
7.5 The Customer is responsible for securing and maintaining the network connections that connect its network to the Service. Swydo is not responsible for notifying the Customer of any fixes or enhancements to any software, computer networks or telecommunications facilities (including but not limited to the internet) of the Customer.
8. LIABILITY, FORCE MAJEURE
8.1 Swydo’s total aggregated liability towards the Customer is in all circumstances and for all claims limited to the compensation of direct damages only, up to the amount equal to the Fee invoiced by Swydo and paid by the Customer during the last three (3) months prior to the moment on which the damages occurred.
8.2 The liability of Swydo for indirect damage, including consequential damage, loss of profit, lost savings, reduced goodwill, damage caused by stagnation, damage caused by claims from the Customer’s clients, damage connected with the Customer’s use of goods or services prescribed by Swydo is excluded.
8.3 Swydo is not liable for any costs or damage as a consequence of the mutilation, destruction or loss of Data, files, documents and other data carriers of the Customer.
8.4 Swydo is not liable in the event a claim is not reported in writing to Swydo within three (3) months after (i) discovery by the Customer of an event or circumstance that gives or may give rise to such claim, or (ii) the moment that the Customer could have reasonably discovered an event or circumstance that gives or may give rise to such claim. The statute of limitations for all legal claims is 12 months after a claim or breach of defect in performance has been notified to Swydo.
8.5 These Terms and Conditions apply without limitation to all persons and legal entities affiliated to Swydo and who are or may be liable in relation thereto. These Terms and Conditions constitute for these persons and/or third parties an irrevocable third-party clause within the meaning of Section 6:253 of the Dutch Civil Code, without financial consideration, and may be invoked by these persons and/or third parties
8.6 Swydo is not obliged to fulfil any obligation, in case of force majeure, meaning that the fulfilment of an obligation of Swydo is hampered or would be unreasonably costly as a consequence of a circumstances beyond the control of Swydo, including but not limited to: (i) the failure to properly fulfil obligations by suppliers, (ii) governmental measures, (iii) power failure, internet failure, data network failure, (iv) war and (v) general transport problems.
8.7 If a situation of force majeure exceeds sixty (60) days, each party shall have the right to terminate the agreement. Performances already delivered under the agreement will, in that case, be settled proportionately, without parties owing each other any payment in all other respects.
8.8 The Customer indemnifies Swydo for all claims from third parties arising from the use of the Service and/or the performance by Swydo of its obligations under an agreement with the Customer.
9. PERSONAL DATA PROCESSING AND PROTECTION
9.1 Through use of the Service, Swydo may have access to Data that includes personal data, within the meaning of the GDPR, of Customer employees and/or Customer clients. If this is the case then this clause shall apply and qualify as a ‘data processing agreement’ within the meaning of the GDPR, whereby Swydo qualifies as the “(sub-)processor” and the Customer as the “controller”.
9.2 The Customer is independently responsible for compliance with applicable data protection laws and regulations – such as the GDPR – with regard to the collection and processing of personal data of its clients. The Customer shall indemnify and hold Swydo harmless from and against any and all claims, damages, losses, costs or expenses or any damages or costs awards sustained or incurred by Swydo in connection with any complaint made against Swydo as a result of Customer’s failure to comply with applicable data protection laws or regulations in respect of the collection and processing of personal data of its clients.
9.3 Swydo will process personal data under the authority of the Customer in accordance with this data processing agreement. Processing shall exclusively take place within the framework of providing the Service and any services provided by Swydo in connection therewith. Swydo shall not process the personal data for own purposes unless it acquires a legitimate basis for such processing.
9.4 Swydo will take adequate technical and organisational measures to protect the personal data against loss or any form of unlawful processing (e.g. unauthorised inspection, impairment, change of or access to the personal data), thereby taking into account the state of the art, the sensitivity of the personal data and the costs associated with the implementation of the such measures. Swydo does not guarantee that the security measures are effective under all circumstances.
9.5 Swydo will store the personal data within the European Economic Area (EEA). Swydo may transfer the personal data to a country outside the EEA, provided that the legal requirements for such transfer have been fulfilled.
9.6 In the event of a data breach (i.e. a breach of the security of personal data that results in a chance of adverse effects, or has adverse effects, for the protection of the personal data), the Customer remains solely responsible for notification of the relevant supervisory authority and/or the relevant data subject(s) to the extent applicable. In order to enable Customer to comply with this statutory obligation Swydo will inform the Customer as soon as possible after a data breach occurred. Such notification will include the following information:
(i) the nature of the data breach in connection with the personal data,
(ii) where possible, the categories of the data subjects and personal data types,
(iii) the potential consequences of the data breach,
(iv) the measures Swydo proposed or has taken to deal with the data breach and/or the measures to limit the potential adverse effects of the data breach.
9.7 In the event a Customer client addresses a request to exercise his / her privacy rights to Swydo, Swydo will forward such request to the Customer and the Customer will handle the request further.
9.8 A confidentiality obligation vis-à-vis third parties applies to any and all personal data that Swydo receives and/or collects within the framework of this date processing agreement. The confidentiality obligation hereunder is not applicable to the extent that the Customer consents to the provision of the information to third parties, or if the provision of information to third parties is reasonably required in connection with the performance of the Service or related services, or if there is a statutory obligation to provide the information to a legal authority.
9.9 The Customer is entitled to have an independent third-party auditor, bound by confidentiality, conduct an audit on compliance with the GDPR, more specifically the security measures. The costs associated to any such audit shall be borne by the Customer. An audit will take place only in case of a specific suspicion of abuse of personal data and not more frequently than once every year. Any findings resulting from the audit will be assessed by Swydo and, at the discretion of Swydo, be implemented by Swydo.
9.10 Swydo ensures that Data stored and processed by the Service are stored separately from, and are not co-mingled with Data of other customers.
9.11 This data processing agreement applies as long as Swydo processes personal data in connection with providing the Service to the Customer. As soon as the License has been terminated, Swydo will irrevocably delete all Data of the Customer after a period of three (3) months, unless Dutch statutory provisions (e.g. financial administration) require Swydo to retain (part of) the Data for a longer period.
10. TERM AND TERMINATION
10.1 Agreements are entered into for the duration of the Initial Term. After expiry of the Initial Term, the Agreement are automatically extended for Extended Terms of one month each.
10.2 Agreement may be terminated by both Customer and/or Swydo in writing at the end of the applicable Term taking into account a notice period of 30 calendar days.
10.3 Swydo has the right to terminate the agreement with immediate effect in the event Swydo – in its sole discretion – establishes or reasonably presumes non-compliance of the Customer with one or more material obligations under these Terms and Conditions without being or becoming liable for damages or other compensation towards the Customer as a result thereof.
10.4 Swydo furthermore has the right to terminate an agreement with immediate effect by providing notice to the Customer, in the event the Customer:
a) is declared bankrupt or files for bankruptcy;
b) requests a suspension of payments;
c) is or becomes unable to pay its debts as they fall due, or proposes to make any arrangement or composition with its creditors;
d) ceases to conduct all (or substantially all) of its business; or
e) fails to pay the Fee to Swydo on the due date.
10.5 Upon termination of an agreement, the right of the Customer to use the Service ceases and the Account will no longer be accessible by the Customer. The Customer may request Swydo to convert the Data in a machine-readable format for transfer to Customer or a third party appointed by Customer, provided Swydo is reimbursed for the costs associated with such Data conversion.
10.6 Where in these Terms and Conditions reference is made to termination of an agreement, this includes the termination of the License of the relevant Customer.
11. EXPORT CONTROL
11.1 To the extent the Service is subject to export control and economic sanctions laws, the Customer acknowledges and accepts that it will comply with all such applicable export control and economic sanctions laws.
11.2 The Customer is not allowed to access or use the Service if the Customer is located in any jurisdiction in which the provision of the Service is prohibited and the Customer is not allowed to use the Service if it is a party, individual or organization listed on the consolidated list of persons, groups and entities subject to Dutch and/or EU financial sanctions.
12. COMPLAINT AND DISPUTE PROCEDURE
12.1 In the event of any dispute arising from or in connection with an agreement or the Service and/or these Terms and Conditions, the party claiming there is a dispute must give written notice to the other party setting out the details of the dispute and proposing a resolution. Within 14 days after receiving the notice, the other party shall respond and propose a potential solution or method for resolving the dispute by other means, in good faith.
12.2 If the parties do not resolve the dispute or (if the dispute is not resolved) agree on an alternate method to resolve the dispute within 28 days after receipt of the notice, the dispute may be referred by either party to litigation.
13. APPLICABLE LAW AND COMPETENCE
13.1 These Terms and Conditions, including any other arrangement or agreement between Swydo and the Customer, related to or in connection with providing the Service, are governed exclusively by the laws of the Netherlands. The application of the Vienna convention on contracts for the international sale of goods is excluded.
13.2 Any and all disputes that cannot be resolved through the complaint and dispute procedure, shall be dealt with exclusively by the competent court in Amsterdam, the Netherlands.
14.1 If any provision of these Terms and Conditions is held invalid or otherwise unenforceable, the enforceability of the remaining provisions of these Terms and Conditions will not be impaired thereby. In such event, the invalid provision will be replaced with a provision that is valid thereby taking into account the intention of the original invalid provision.
14.2 Swydo’s failure to exercise, or delay in exercising any rights under these Terms and Conditions does not constitute a waiver of such rights.
14.3 Nothing in these Terms and Conditions shall create or be deemed to create a partnership, agency or relationship of employer and employee between Swydo and the Customer.
14.4 Swydo reserves the right to unilaterally amend these Terms and Conditions from time to time. Any such amendments shall be effective after acceptance by the Administrator, the User or the Customer on behalf of the Customer of the new version of such Terms and Conditions. A rejection by the Customer of the new Terms and Conditions implies that the relevant agreement terminates after a period of 30 days from declining the new Terms and Conditions. By using the Service after receiving the notification of the new Terms and Conditions, the Customer confirms to have accepted the new Terms and Conditions.
In these Terms and Conditions, the following definitions have the following meaning:
Account means a separated online environment in which the Customer may access and use the Service during the Term;
Administrator means the agent appointed by the Customer to control the Account on behalf of the Customer;
Base Fee means the fee charged for using the Service and ten (10) data source connections;
Clause means a clause or article in these Terms and Conditions;
Customer means the customer of Swydo using the Service, taking into account that the Services are rendered exclusively business to business and all other contractual counterparties;
Data means all data (including personal data) uploaded to or transmitted via the Account by or on behalf of the Customer or by and on behalf of any client of the Customer;
Data Source Fee means the fee charged for adding data sources to the Service;
GDPR means regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data;
Fee means the Base Fee and the Data Source Fee jointly;
Intellectual Property Rights means all intellectual property rights wherever in the world, whether registered or unregistered and any application or right of application for such rights, including copyright and related rights, database rights, patent rights, utility models and rights in designs, trade names, trademarks, rights in trade secrets, know-how, passing off rights, unfair competition rights and any other similar rights that may exist;
Initial Term means the initial term of the agreement between Swydo and the Customer;
License means the non-exclusive, limited and non-transferrable right to use the Service during the Term;
Swydo means Swydo B.V.
Service means access to and use of the Swydo application for data access and data reporting as available from time to time through the Account;
Signup Form means the form as submitted by the Customer on the website of Swydo; and
Term means the Initial Term and the Extended Term; and
Terms and Conditions means the general terms and conditions of Swydo as applicable and amended from time to time.
Version: August 2021