Algemene voorwaarden

1. Toepasselijkheid

De Algemene Voorwaarden vormen samen met onze Privacyverklaring, een eventuele Dienstorder (zoals hieronder gedefinieerd) en, indien van toepassing, onze API Gebruiksvoorwaarden, een bindende overeenkomst (de “Overeenkomst”) tussen Construsteel BV (“Construsteel”) en u of de rechtspersoon die u vertegenwoordigt (“Klant” of “u”). De Overeenkomst is ook van toepassing als u een recht tot gebruik van de Diensten (zoals hieronder gedefinieerd) koopt krachtens een Opdracht die is aangegaan tussen u en een door Construsteel gemachtigde agent, verkoper of wederverkoper van de Diensten (een “Gemachtigde wederverkoper”). Medewerkers van de Klant die de Overeenkomst ondertekenen worden geacht bevoegd te zijn de Overeenkomst te ondertekenen en de Klant rechtsgeldig te binden.

Deze Algemene Voorwaarden zijn van toepassing op alle door Construsteel gedane aanbiedingen en gesloten overeenkomsten. Afwijkende voorwaarden van de opdrachtgever zijn niet van toepassing, mits deze uitdrukkelijk schriftelijk door Construsteel zijn aanvaard. Indien enige bepaling uit deze algemene voorwaarden niet geldig mocht zijn, blijven alle overige bepalingen van kracht.

LEES DEZE OVEREENKOMST ZORGVULDIG DOOR. DEZE OVEREENKOMST IS VAN TOEPASSING OP UW GEBRUIK VAN DE DIENSTEN. DOOR IN TE LOGGEN OP UW CONSTRUSTEEL ACCOUNT, HET REGISTRATIEPROCES TE VOLTOOIEN OF TOEGANG TE VERKRIJGEN TOT OF GEBRUIK TE MAKEN VAN DE SERVICES, VERKLAART U DAT (1) U DEZE OVEREENKOMST HEEFT GELEZEN, BEGRIJPT EN ERMEE INSTEMT HIERAAN GEBONDEN TE ZIJN, (2) U DE WETTELIJKE LEEFTIJD HEEFT OM EEN BINDENDE OVEREENKOMST AAN TE GAAN MET CONSTRUSTEEL, EN (3) U DE BEVOEGDHEID HEEFT OM DE OVEREENKOMST PERSOONLIJK OF NAMENS HET BEDRIJF DAT U ALS GEBRUIKER HEEFT GENOEMD AAN TE GAAN EN DAT BEDRIJF AAN DE OVEREENKOMST TE BINDEN. DE TERM “U” OF “GEBRUIKER” VERWIJST NAAR DE NATUURLIJKE PERSOON OF RECHTSPERSOON, AL NAAR GELANG VAN TOEPASSING, DIE ALS GEBRUIKER WERD GEÏDENTIFICEERD TOEN U ZICH REGISTREERDE VOOR DE SERVICES. ALS U NIET AKKOORD GAAT MET DEZE OVEREENKOMST, MAG U DE SERVICES NIET OPENEN OF GEBRUIKEN.

2. Definities

Toegangsprotocollen | Wachtwoorden, sleutels, certificaten, toegangscodes, technische specificaties, connectiviteitsnormen of -protocollen, of andere relevante procedures, die nodig kunnen zijn om de Klant of een Bevoegde Gebruiker toegang te verlenen tot de Diensten.

Bevoegde Gebruiker | Elke persoon die een werknemer is van de Klant of een filiaal, partner, serviceprovider of een andere persoon of entiteit die door de Klant gemachtigd kan worden om toegang te krijgen tot de Diensten op grond van de rechten van de Klant onder deze Overeenkomst.

Klantgegevens | Alle gegevens, informatie, programma’s en andere inhoud die door de Klant wordt verstrekt of verzonden naar de Software en gehost via de Diensten, met inbegrip van, maar niet beperkt tot, Klantgegevens en Marketinginhoud van de Klant.

Marketinginhoud van de klant | Handelsmerken, handelsnamen, dienstmerken, slogans, logo’s, andere bronaanduidingen, en marketing en promotionele inhoud die door de Klant aan ConstruSteel wordt verstrekt in verband met reclame, promotie en verkoop van producten en diensten van de Klant.

Documentatie | schriftelijke informatie (in gebruikers- of technische handleidingen, trainingsmateriaal, specificaties of anderszins, in papieren, elektronische of andere schriftelijke vorm) over de Software die ConstruSteel online of op andere wijze aan de Klant beschikbaar stelt.

Communicatie met eindgebruikers | Communicatie van de klant met zijn klanten, waaronder e-mails, communicatie via websites en transacties en soortgelijke opt-in communicatie.

Eindklantgegevens | Online gegevens die door de Klant of een Geautoriseerde Reseller via de Software zijn verzameld met betrekking tot de klanten van de Klant.

Intellectuele eigendomsrechten | Alle intellectuele eigendomsrechten, industriële eigendomsrechten en andere eigendomsrechten over de hele wereld, met inbegrip van alle rechten op, op of voortvloeiend uit octrooien, octrooiaanvragen, uitvindingen (al dan niet octrooieerbaar), onthullingen van uitvindingen, handelsgeheimen, knowhow, eigendomsinformatie, auteursrechtelijk beschermde werken, maskers, morele rechten, handelsmerken, dienstmerken, software, gegevens, technologie, lay-outontwerpen en ontwerprechten, en alle registraties, aanvragen, verlengingen, vernieuwingen of heruitgaven van het voorgaande.

Diensten | De Software, Documentatie, E-mail Ondersteuning en eventuele aanverwante diensten die door de partijen zijn overeengekomen in een Opdracht.

Opdracht | Elk online of schriftelijk formulier of andere communicatie verstrekt door ConstruSteel waaruit de initiële aanwijzing van de Dienst door de Klant blijkt en eventuele vervolgopdrachten tot afname van de Diensten.

Software | De software-as-a-service applicatie zoals deze is, gehost op ConstruSteel’s servers of die van zijn hosting dienstverleners, en benaderd en gebruikt door de Klant via het wereldwijde web, inclusief alle wijzigingen, correcties, bug fixes, verbeteringen, updates en andere aanpassingen aan deze software, ongeacht of deze zijn gemaakt door of namens ConstruSteel, de Klant of een derde partij.

Systeemeisen | De minimale (systeem)eisen die ConstruSteel aan de Software stelt om deze te kunnen gebruiken. Deze systeemeisen zijn vastgelegd in de Overeenkomst tussen partijen.

3. MODIFICATION TO THE AGREEMENT

ConstruSteel may amend the Agreement from time to time due to changes to the Services, to account for developments under the law, or for any other reason. When material modifications are made, ConstruSteel may (and where required by law, will) send an email to you at the last email address you provided to us pursuant to the Agreement to provide an updated copy of the Agreement. ConstruSteel may require you to provide consent to the updated Agreement in a specified manner before further use of the Services is permitted. If so, ConstruSteel will inform Customer as soon as possible, but certainly two (2) months prior to the effective date of the changes, about the intended changes of the terms and conditions. If Customer does not agree with the intended changes, Customer may give notice of termination of the agreement taking effect from the date that the changes enter into effect. If Customer does not expressly object in writing within fifteen days after receiving the communication from ConstruSteel and prior to the announced changes entering into effect against the announced changes, Customer is considered to have agreed to the changes.

4. PROVISION OF SERVICES

4.1 Overview of Services. The Services include using the Software as it is to retrieve customer information, viewing data available, and using the Software to send messages to end customers through email messages. The Services shall also include any required, usual, appropriate or acceptable methods to perform activities related to the Services, including (a) carrying out the Services or the business of which the Services are a part, (b) carrying out any benefits, rights and obligations related to the Services, (c) maintaining records relating to the Services, and (d) complying with any legal or self-regulatory obligations related to the Services.

4.2 Access. Subject to Customer’s compliance with the terms and conditions contained in this Agreement, ConstruSteel grants Customer and its Authorised Users a non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Services during the Term (as defined below). ConstruSteel reserves the right at all times to not give access to the software and or services for a SaaS subscription requesting company without prior notice for reasons to refuse.

4.3 Restrictions. Customer agrees that it will not, and will not permit any Authorised User or other party, without an explicit written acceptance of ConstruSteel upfront, to: (a) permit any party to access the Software or Documentation or use the Services, other than the Authorised Users authorised under this Agreement; (b) modify, adapt, alter, translate, or create derivative works of the Software or Documentation, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Software or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Software; (e) bypass, delete, or disable any copy protection or security mechanisms of the Software; (f) use or demonstrate the Services in any other way that is in competition with ConstruSteel; (g) remove any notice of proprietary rights from the Services; (e) copy, modify, translate or otherwise create derivative works of any part of the Services; (h) use manual or automated software, devices, robots, spiders, or other processes to “crawl” or “spider” or to retrieve, index, “scrape”, “data mine” or in any way gather information, content or other materials from the Services in an unauthorised manner or reproduce or circumvent the navigational structure or presentation of the Services; (i) use the Services in a manner which interferes with or disrupts its integrity or performance; (j) use or allow the transmission of, transfer, export, re-export or other transfer of any software, technology or information forming a part of the Services in violation of any export control or other laws and regulations of the Netherlands or any other relevant jurisdiction; or (k) use or copy the Software or Documentation, except as expressly allowed herein. ConstruSteel shall have the right, but not the obligation, to review and monitor all use of the Services to ensure compliance with the terms and conditions of this Agreement.

4.4 Authorization and Account Information. Customer represents and warrants that: (i) the information Customer provides in connection with Customer’s registration for the Services is accurate and complete; (ii) if Customer is registering for the Services as an individual, that Customer is at least 18 years of age and has the legal capacity to enter into this Agreement; and (iii) if registering for the Services as an entity or organization, (a) Customer is duly authorised to do business in the country or countries and state and Dutch jurisdictions where it operates, (b) the individual accepting this Agreement and completing the registration for the Services meets the requirements of subsection (ii) above and is an authorised representative of Customer, and (c) Customer’s employees, officers, representatives and other agents accessing the Services are duly authorised to access the Services and to legally bind Customer to this Agreement and all transactions conducted under Customer’s account.

4.5 Limitations on Use. The delivery of messages by means of the Software and Services may involve transmissions over various networks, and the messages may need to be reformatted or otherwise revised by ConstruSteel to conform to the formatting or technical requirements of such networks in order for ConstruSteel to effectively provide the Services. Customer understands and agrees that messages exceeding maximum character limitations may be truncated, abbreviated, reduced or otherwise abruptly cut short and that images and text may need to be reformatted or otherwise modified by ConstruSteel in order to effectively provide the Services. As a result, ConstruSteel may establish general practices and limits concerning the maximum number of messages or campaigns that may be distributed by Customer or the maximum size of any messages or campaigns that may be transmitted through the Services.

4.6 Downtime. Customer acknowledges that Customer’s access to and use of the Services may be suspended for the duration of any scheduled or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of any type of updates, power outages, system failures or other interruptions, or any other acts, omissions or failures on the part of ConstruSteel.

4.7 Service Orders. Each Service Order is hereby incorporated into this Agreement by reference and is subject to the terms and conditions of this Agreement; provided, however, that in the event of a conflict with the terms contained in any Service Order, the terms contained in the body of this Agreement shall control unless express reference to the superseded term in the Agreement is set forth in the Service Order. Any terms and conditions that may be contained in any acknowledgement, invoice, purchase order or other Customer-provided form are specifically null and void.

5. USE OF THE SERVICES

5.1 IT Responsibilities of Customer. Customer shall be responsible for setting up and configuring the Software, including providing ConstruSteel with applicable configuration data to be used by the Software, including without limitation any Access Protocols that Customer provisions or causes to be provisioned to Customer’s employees, service providers, or other third parties authorised by Customer. Customer shall be responsible for obtaining and maintaining, at Customer’s expense, all of the necessary telecommunications, computer hardware, software, services and Internet connectivity required by Customer or any Authorised User to access the Software from the Internet. ConstruSteel expressly refers to the System Requirements specified by ConstruSteel.

5.2 Access Protocols. Customer is solely responsible for protecting and safeguarding any Access Protocols that have been provided to Customer or that are generated in connection with Customer’s use of the Services. Customer agrees not to disclose or make available any Access Protocols other than to its Authorised Users and shall use commercially reasonable efforts to prevent unauthorised access to, or use of, the Access Protocols and the Services. Customer is solely and fully responsible for any use of or access to the Services using Access Protocols, any Security Incident (as defined below) caused by Customer’s Authorised Users, and all activities that occur in connection with its Access Protocols and its use of the Services. Without limiting the foregoing, Customer is responsible for all charges and liabilities applicable to data and information transmitted to and stored under Customer’s account on the Services. In the event Customer believes the Access Protocols have been compromised, or there has been any unauthorised use or access of the Services under Customer’s account or any other known or suspected breach of security, Customer shall immediately notify ConstruSteel by email to support.online@construsteel.com, but in no event more than twenty four (24) hours following discovery of such breach. Although ConstruSteel is not obligated to monitor Customer’s Access Protocols, in the event ConstruSteel believes Customer’s Access Protocols have been compromised, or there has been any unauthorised use or access of the Services under Customer’s account or any other known or suspected breach of security, ConstruSteel may suspend Customer’s access to the Services, terminate the affected Access Protocols, or take any other action ConstruSteel reasonably deems appropriate to protect the integrity of the Software and the Services. For purposes of this Section 4.2, a “Security Incident” means unauthorised access to, use or disclosure of any data maintained by ConstruSteel.

5.3 Prohibited Activities. Customer may not, and shall not permit any of its employees, contractors or Authorised Users to use the Services (i) in violation of this Agreement; (ii) to infringe, misappropriate, or otherwise violate the Intellectual Property Rights of any third party or any rights of publicity or privacy; (iii) to violate any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export/import control, unfair competition, anti-discrimination and/or false advertising); (iv) to store or transmit defamatory, libelous, unlawfully threatening, or unlawfully harassing data; (v) to store or transmit obscene, pornographic or indecent data in violation of applicable law; (vi) to introduce or propagate any unauthorised data, fraudulent messages or malicious content such as malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code; (vii) to transmit any content that is designed to intentionally evade filters; (viii) to send any prohibited calls to life-line services, such as hospitals, fire, police, emergency, or utility-related telephone numbers; (ix) for harvesting, or otherwise collecting, information about others without their consent; or (x) for misleading others as to the identity of the sender of messages or broadcasts by creating a false identity, impersonating the identity of someone/something else, or by providing contact details that do not belong to Customer. Customer may not attempt to discover, access, read, alter, destroy, or damage any programs, data or other information stored on or in connection with the Services by any other party. Customer may not interfere with or attempt to interfere with or disrupt the integrity, security, functionality or proper working of the Services. Customer may access the Services only through the interfaces and protocols provided or authorised by ConstruSteel. Customer may not access the Services through unauthorised means, such as unlicensed software clients. Customer may not compile or use the ConstruSteel provided materials or any other information obtained through the Services for the purpose of spamming, unsolicited contacting, or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations.

5.4 No Children’s Information. Customer agrees not to upload or incorporate into any customer lists, or otherwise provide to ConstruSteel any information about individuals that Customer knows or has reason to know are under the age of 13. If Customer discovers that it uploaded, incorporated into any customer lists, or otherwise provided to ConstruSteel any information about individuals that Customer knows or discovers are under the age of 13, Customer agrees to promptly remove such information from ConstruSteel’s systems and notify ConstruSteel of such occurrence.

5.5 Suspension, Limitation and Termination of Access. ConstruSteel shall be entitled, without liability to Customer, to immediately suspend, terminate or limit Customer’s access to the Services at any time in the event that ConstruSteel  determines, in its reasonable discretion, that (i) the Services are being used by Customer, or its Authorised Users, in violation of applicable federal, state or Dutch law or ordinance or this Agreement or these General terms and conditions; (ii) the Services are being used by Customer in an unauthorised, inappropriate, or fraudulent manner; (iii) the use of the Services by Customer adversely affects ConstruSteel’s equipment or service to others; (iv) ConstruSteel is prohibited by an order of a court or other governmental agency from providing the Services; (v) there is a denial of service attack or any other event which ConstruSteel determines, in its sole discretion, may create a risk to the Services or to any other customers if the Services were not suspended; (vi) there is a security incident or other disaster that impacts the Services or the security of Customer Data; or (vii) any amount due under this Agreement is not received by ConstruSteel within fourteen (14) days after it was due. Without limiting the generality of this Section, ConstruSteel shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer‘s right to use the Services pursuant to this Section 4.5.

6. INTELLECTUAL PROPERTY

6.1 Ownership. Customer acknowledges and agrees that the Services (including the Software and Documentation) are protected by copyright and other laws relating to Intellectual Property Rights, and that the Services embody valuable confidential information of ConstruSteel and its suppliers, the development of which required the expenditure of considerable time and financial resources. All right, title, and interest in and to the Services, and all worldwide Intellectual Property Rights therein and associated therewith, are the exclusive property of ConstruSteel and its suppliers. All rights in and to the Services not expressly granted to Customer in this Agreement are reserved by ConstruSteel and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Services, or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Software. Customer shall not obscure, alter, or remove any notice of copyright, trademark, or other Intellectual Property Right designation appearing on or contained within the Services.

6.2 Continuous Development. Customer acknowledges that ConstruSteel may continually develop, deliver and provide to Customer ongoing innovation to the Software in the form of new features, functionality, and efficiencies. Accordingly, ConstruSteel reserves the right to modify the Services, or any Software, from time to time. Some modifications will be provided to Customer at no additional charge.

6.3 Feedback. In the event that Customer elects, in connection with any of the Services, to communicate to ConstruSteel, either directly or through an applicable Authorised Reseller, any comments and suggestions for improvements to the Services, whether written or oral (collectively, the “Feedback“), ConstruSteel, in its sole discretion, shall be entitled to use the Feedback without restriction, and such Feedback will not be treated as confidential to Customer. Customer hereby grants ConstruSteel, on behalf of itself and its Authorised Users, a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into ConstruSteel products and services.

6.4 Customer indemnifies ConstruSteel for any damages and all costs and expenses which Customer is ordered to pay pursuant to a legal action commenced by a third party in relation to a violation or purported violation to valid patents, copyrights, trademarks or other rights of third parties by the use by Customer, in accordance with the agreement and the documentation, of the Software or any part thereof, provided that Customer immediately notifies about such a legal action in writing whenever it is announced to Customer and Customer allows ConstruSteel to set up a defence at own discretion against the claims in question and to come to terms and provided that Customer provides all relevant information and other cooperation for this to ConstruSteel upon first request of ConstruSteel.

6.5 If an injunction has been imposed on the use by Customer of the Software due to an act of infringement and there is a possibility that the Software and/or the documentation and/or the templates and/or other information will be the subject of a successful claim on account of infringement, then ConstruSteel has the right to, at own discretion and own account:

(I) acquire the right for Customer to keep on using the Software as stipulated in these conditions; (II) to replace the Software or adjust it so that it no longer infringes, provided that its functionality remains fundamentally unchanged; or (III) if the previous options (I) and (II), at the sole discretion of ConstruSteel, are not reasonably achievable, to terminate the agreement and/or these Conditions, just like the rights accrued pursuant to the agreement and/or these conditions pertaining to that infringing Software.

6.6 Without prejudice to what is stipulated in article 6.5, ConstruSteel is not liable pursuant to this article towards Customer to the extent that a claim is related to (I) use of the Software in relation to information, equipment of Software not provided by ConstruSteel, where the Software in itself would not infringe or otherwise be the subject of the claim; (II) incorrect use of the Software or use in a manner not specified in the documentation; (III) a modification of the Software which is implemented by a different (legal) person than ConstruSteel; or (IV) the compliance by ConstruSteel of the express instructions of Customer. Customer indemnifies ConstruSteel against claims as set out in points (I) to (IV) of this article.

6.7 Customer acknowledges and accepts that the complete and exclusive liability of ConstruSteel for infringement on patents, copyrights, trademarks or other intellectual property rights reads as stipulated in this article 10.

6.8 ConstruSteel is entitled to set up technical provisions and maintain them to protect the (intellectual property rights on) the Software and the documentation which are the basis of the Software and taking into account the agreed upon limitations in the use of the Software. Customer is not allowed to circumvent or remove technical provisions. In this context, ConstruSteel is entitled to set (any) further additional requirements to the hardware and software used by Customer, other than specified under System Requirements.

6.9 ConstruSteel may effect execution of a check and/or inspection in order to verify whether Customer observes the conditions of the agreement and these conditions, provided that this check and/or inspection is executed during customary office hours, in such a way that the business activities of Customer are not unreasonably hindered by this. Such a check may be executed by ConstruSteel or by an independent expert selected and hired by ConstruSteel. Customer is obligated to provide the information, support and access to its buildings and systems which are reasonably necessary in order to enable ConstruSteel or the expert to adequately carry out its monitoring task. A summary note will be submitted after the check which shows the findings pertaining to the check of the reports issued by Customer and the compliance by Customer to the agreement and these conditions. The costs of this check are at the expense of ConstruSteel, unless the check shows that Customer does not observe the conditions of the agreement or these conditions, in which case the costs are at the expense of Customer.

7. FEES AND EXPENSES; PAYMENTS

7.1 Fees Generally. In consideration for the Services, Customer will pay to ConstruSteel (or the applicable Authorised Reseller) the then-current fees for the in the “Account” named configuration of Customer’s account for the Software unless otherwise set forth in an applicable Service Order(s) (“Fees“). ConstruSteel shall be entitled to withhold performance and suspend or discontinue the Services until all amounts due are paid in full.

7.2 Fee Increases. ConstruSteel or Authorised Reseller will provide Customer fourteen (14) days advance notice for any increase in fees. Any increases to the Fees shall apply at the beginning of the Customer’s following Term. Customer’s continued use of the Services after a Fee increase will constitute Customer’s agreement to the increase in Fees.

7.3 Billing, Invoicing, and Payment Terms. ConstruSteel will charge Customer the Fees for the Services in advance for each billing period before the first day of such billing period. All Fees for Services are due and payable in EURO and are non-refundable. If the option to pay by credit card is involved, then the following applies, (a) Customer hereby irrevocably authorises ConstruSteel, or if applicable, the Authorised Reseller, to charge the credit card or other payment method provided for any such amounts when due, (b) amounts due will be automatically charged, (c) if Customer’s credit card is declined, ConstruSteel, or if applicable, the Authorised Reseller, will attempt to reach out to Customer for a new payment method, and (d) if Customer’s credit card expires, Customer hereby gives ConstruSteel, or if applicable, the Authorised Reseller, permission to submit the credit card charge with a later expiration date. If ConstruSteel or, if applicable, an Authorised Reseller, fail to resolve an issue with Customer resulting from a credit card decline or expiration, ConstruSteel may terminate the account due to non-payment. All billing disputes must be emailed to online@construsteel.com within fourteen (14) days of delivery of the billing statement or invoice, and disputes not made within that time are waived by Customer. Late payments, including those resulting from credit card declines, will accrue interest at a rate of three percent (3%) per month, or the highest rate allowed by applicable law. If ConstruSteel, or if applicable, the Authorised Reseller, must initiate a collections process to recover Fees due and payable hereunder, then ConstruSteel, or if applicable, the Authorised Reseller, shall be entitled to recover from Customer all costs associated with such collections efforts, including but not limited to reasonable attorneys’ fees. In the event ConstruSteel, or if applicable, the Authorised Reseller, delivers to Customer an invoice for any Fees or interest payments owed hereunder, such invoiced amounts shall be due within fourteen (14) days of the date of such invoice.

7.4 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on ConstruSteel’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees, the delivery of the Services, or the licensing of the Software to Customer. To the extent that ConstruSteel charges any of the aforementioned taxes, they are calculated using the tax rates that apply based on the billing address provided by Customer. Such amounts are in addition to the Fees and will be billed to Customer’s authorised payment method. If Customer is exempt from payment of any such taxes, Customer must provide ConstruSteel with evidence of exemption. If Customer is not charged any of the aforementioned taxes by ConstruSteel, Customer is responsible for determining if taxes are payable, and if so, self-remitting such taxes to the appropriate tax authorities in Customer’s jurisdiction. Customer will make all payments of Fees to ConstruSteel free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of Fees to ConstruSteel will be Customer’s sole responsibility, and Customer will provide ConstruSteel with official receipts issued by the appropriate taxing authority, or such other evidence as ConstruSteel may reasonably request, to establish that such taxes have been paid. Customer shall indemnify, defend, and hold ConstruSteel harmless in connection with any proceedings brought by any taxing authorities in connection with this Agreement.

7.5 Expenses. If pre-approved by Customer in a Service Order, Customer shall reimburse ConstruSteel for reasonable out-of-pocket expenses (including travel and living) incurred in performing its obligations for specific Services under such Service Order. All costs and expenses incurred by Customer in connection with this Agreement are the sole responsibility of Customer.

7.6 Audit. ConstruSteel may audit Customer’s records relating to its use of the Services to verify Customer’s compliance with the terms of this Agreement. ConstruSteel will give Customer at least ten (10) days’ advance notice of any such audit and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Customer’s normal operations. If any such audit should disclose any underpayment of Fees, Customer shall promptly pay ConstruSteel such underpaid amount, together with interest thereon, at the rate specified in Section 7.4. If the amount of such underpayment exceeds five percent (5%) of Fees actually paid during the audited period, Customer shall also pay ConstruSteel for ConstruSteel’s reasonable expenses associated with such audit.

8. CUSTOMER DATA AND RESPONSIBILITIES

8.1 Customer Data. The Customer Data hosted by ConstruSteel as part of the Services, and all worldwide Intellectual Property Rights therein, is, as between ConstruSteel and Customer, the exclusive property of Customer. Customer grants ConstruSteel a non-exclusive, sublicensable, transferable, worldwide, royalty-free and fully paid license to use the Customer Data as necessary for purposes of providing the Services and enabling the operation of the Software. Customer warrants that Customer is the owner or legal custodian of, or otherwise has the right to provide to ConstruSteel, Customer Data transmitted via the Services and has the full authority to transmit and store the Customer Data through the Services. Notwithstanding anything to the contrary herein, ConstruSteel, as a part of the Services, shall have the right to collect and analyse aggregated data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (“Aggregated Data“), and ConstruSteel shall be free (during and after the term of this Agreement) to (a) use Aggregated Data to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and any other ConstruSteel offerings, and (b) disclose Aggregated Data solely in aggregate or other de-identified form in connection with its business.

8.2 End Customer Data. In connection with ConstruSteel’s performance of the Services, ConstruSteel may collect End Customer Data. Customer acknowledges that such End Customer Data may include non-personal information and Customer Personal Data (as defined in the Data Protection Addendum) of Customer’s customers as well as data relating to End Customer Communications. ConstruSteel will not retain, use or disclose such End Customer Data for any purpose other than to provide the Services to Customer, to improve the Services generally, or as otherwise directed by Customer, provided, however, that ConstruSteel may create and derive from processing related to the Services anonymised and/or aggregated data that does not identify any Customer or End Customer, and use, publicise or share with third parties such data for ConstruSteel’s legitimate business purposes. If Customer cancels its account with ConstruSteel or becomes inactive due to unpaid past-due amounts, ConstruSteel may delete all End Customer Data after a period of one (1) months. Customer acknowledges and agrees that if Customer requires further assistance in addition to the functionality described in this Section 8.2 Customer shall reimburse ConstruSteel for such assistance at ConstruSteel’s then-current professional services rates, which shall be made available to Customer upon request. Customer shall hold ConstruSteel, its subcontractors, suppliers and licensors harmless from any and all data protection claims relating to such access. ConstruSteel may transfer End Customer Data to its successor or acquirer in a merger, acquisition or other consolidation, including without limitation the sale of all or substantially all of ConstruSteel’s stock or assets or business to which this Agreement applies.

8.3 Customer Personal Data. ConstruSteel shall collect, use, disclose and otherwise process Customer Personal Data, and safeguard the privacy, confidentiality and security of Customer Personal Data in accordance with the requirements set forth in the Data Protection Addendum, which is hereby incorporated into this Agreement by reference.

8.4 Customer Responsibilities for Data and Security. Customer and its Authorised Users shall have access to the Customer Data and shall be responsible for all changes to and/or deletions of Customer Data and the security of all passwords and other Access Protocols required in order to access the Software. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data, and for the adequate security, protection and backup of Customer’s Data on Customer’s equipment. Customer understands that the Services may store and backup files that are no longer usable due to corruption from viruses, software malfunctions and other causes, which might result in Customer restoring files that are no longer usable. ConstruSteel will have no liability to Customer for any unauthorised access to, or use, alteration, corruption, deletion, destruction or loss of any Customer Data on Customer’s equipment.

8.5 Compliance with Applicable Laws.

(a) General. With respect to End Customer Communications and Customer Marketing Content, Customer shall be responsible for compliance with all applicable Dutch Federal and State, local, and foreign laws and regulations, including but not limited to (i) any applicable laws that govern online promotions, offers, gift cards, coupons, and/or gift certificates, data privacy and protection, intellectual property, and the sending of electronic marketing messages, including the telephone consumer protection legislation, legislation against pornography, children’s online privacy protection, and other applicable and effective legislation, rules, and regulations; and (ii) laws and regulations that apply to commerce.

(b) Responsibility for Messages. For the avoidance of doubt, Customer is solely responsible for the information or content submitted, posted, transmitted or made available through Customer’s use of the Services. Customer shall comply with all applicable laws and regulations relating to the sending of emails and/or text messages (“Messages“) and the protection and privacy of End Customer Data. Customer acknowledges and agrees that ConstruSteel does not control nor does it monitor Customer’s Messages nor guarantees the accuracy, integrity, security or quality of such Messages. Customer represents and warrants that: (a) Customer is solely responsible for Messages; (b) Customer has the legal right to use and send all Messages; (c) the timing and purpose of all Messages, campaigns and programs are in compliance with all applicable laws, rules and regulations; and (d) ConstruSteel’s use of the Messages as directed for the purpose of delivering the Services shall not violate the rights of any third party or any laws, rules or regulations. With respect to email communications sent on Customer’s behalf, ConstruSteel and/or its respective affiliates or third-party service providers shall be an initiator but not a sender for purposes of commercial messages and Customer shall be deemed the sender of such messages and shall be solely responsible for complying with Customer’s obligations as a sender. With respect to text message communications sent on Customer’s behalf, ConstruSteel and/or its respective affiliates or third party service providers shall be a provider but not a maker or initiator for purposes of the protection of consumers for commercial telephone calls and Customer shall be deemed the maker or initiator of such messages and shall be solely responsible for complying with Customer’s obligations as a maker or initiator. Customer agrees to only send permission-based Messages in connection with its use of the Services. “Permission-based” means that all recipients must have opted-in to receive Messages from Customer.

(c) Consent. In addition, Customer represents and warrants that Customer has obtained and/or will obtain prior express consent to contact each wireless phone number Customer has delivered to and/or will deliver to ConstruSteel (the “Recipient“) in connection with the provision of any Services and the intended Recipient is the current subscriber to, or the non-subscriber customary user of, the wireless phone number. If the Messages are initiated to induce the purchase of goods or services or to solicit a charitable contribution (“Solicitations“), Customer represents and warrants that: (a) Customer has incorporated an interactive opt-out mechanism; and (b) Customer has, unless an exemption applies, obtained from the Recipient of any Solicitation, an express written agreement that meets the necessary requirements by law. Upon request, Customer shall provide reasonable proof of compliance with the provisions set forth in this Section and ConstruSteel shall have no obligation to provide Services where ConstruSteel reasonably believes that Customer has not so complied.

9. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS

9.1 Mutual Representations and Warranties. ConstruSteel and Customer each represents and warrants that: (i) it has full corporate right, power, and authority to enter into this Agreement; (ii) the execution of this Agreement by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a party or is otherwise bound; (iii) it shall comply with all applicable federal, state, local, and foreign laws and regulations.

9.2 Customer Representations and Warranties. Customer represents and warrants that: (i) Customer is the owner or legal custodian of, or otherwise has the right to provide to ConstruSteel, all Customer Data and End Customer Data, and has the full authority to transmit and store the Customer Data and End Customer Data through the Services; (ii) no Customer on-line coupon or similar marketing offer, deal or advertisement to market Customer’s products and services (each, an “Offer“) will violate any applicable laws or regulations or contain ConstruSteel’s name, trademarks, or other branding and, upon claim by a customer, whether on the ConstruSteel website or a third party partner website or otherwise, will be available for redemption by such customer; (iii) Customer will comply with any Offer terms and conditions as set forth therein and in any other advertising or marketing terms, and will at all times honor the terms of any Offer offered or otherwise promoted via the Services; (iv) Customer is solely responsible for Customer Data and End Customer Data, and for the security thereof; (v) Customer has all necessary rights and licenses, consents, permissions, waivers, and releases to use the Customer Data and End Customer Data to enable ConstruSteel to use and disclose the same to Customer as intended by the parties under this Agreement and the terms of any applicable Service Orders; (vi) Customer has a legally sufficient privacy policy that is made available to customers prior to their provision of any Customer Personal Data to Customer or ConstruSteel; (vii) that use by ConstruSteel of Customer Data and End Customer Data (a) will not infringe, misappropriate, or otherwise violate the Intellectual Property Rights or other rights of any third party, (b) will not constitute defamation, invasion of privacy or publicity, or otherwise violate any similar rights of any third party, and (c) will not be used in any illegal activity or promote illegal activities, including, without limitation, in a manner that might be illegal or harmful to any person or entity; and (viii) it will not distribute, share, or facilitate the distribution of unauthorised data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code.

9.3 Limited Warranty. ConstruSteel warrants solely to Customer that the Software, when used in accordance with the terms of this Agreement, will function substantially in accordance with the Documentation during the term of this Agreement. The foregoing warranty shall not apply to performance issues of the Software or Services resulting from (i) content provided by or passed through Customer or third parties in connection with the Services (including Customer Data and End Customer Data); (ii) Customer’s data structures, operating environment, equipment or other technology; (iii) the use or combination of the Software or the Services with any other software or hardware not supported by ConstruSteel; (iv) causes external to the Software or Services, such as problems with the hardware, network or other infrastructure with which the Software or Services are used; (v) unauthorised or improper use of the Software or Services; (vi) any modification of the Software or Services by Customer or its Authorised Users; or (vii) third party components incorporated into the Services, including open source software. Provided that Customer notifies ConstruSteel in writing of any breach of the foregoing warranty during the term of this Agreement, ConstruSteel shall, as Customer’s sole and exclusive remedy, use commercially reasonable efforts to correct such non-conformance.

9.4 Disclaimer. The limited warranty set forth in section 9.3 is made for the benefit of customer only. Except as expressly provided in section 9.3 and to the maximum extent permitted by applicable law, the services (including the software and documentation) are provided “as is,” and ConstruSteel makes no (and hereby disclaims all) other warranties, representations, or conditions, whether written, oral, express, implied, or statutory, including, without limitation, any implied warranties of satisfactory quality, course of dealing, trade usage or practice, merchantability, title, noninfringement, or fitness for a particular purpose, with respect to the use, misuse, or inability to use the software, documentation, or services (in whole or in part) or any other products or services provided to customer by ConstruSteel, and any offers. Without limiting the generality of the foregoing, ConstruSteel does not warrant that the software or the services will meet customer’s requirements or operate without interruption or downtime or be error free. Some states and jurisdictions do not allow the exclusion of implied warranties or conditions or limitations on how long an implied warranty lasts, so some of the above limitations may not apply to customer.

9.5 Authorised Reseller Warranties. Notwithstanding anything in this Agreement to the contrary, the warranties provided by ConstruSteel hereunder with respect to the Software or the Services may not be extended, supplemented or modified by an Authorised Reseller, and if an Authorised Reseller makes any additional warranty, representation or commitment regarding the Software or the Services (or modifies an existing warranty, representation or commitment granted by ConstruSteel regarding the Software or the Services), the Authorised Reseller shall be solely responsible for any such additional warranties, representations or commitments or modifications.

10. LIMITATION OF LIABILITY

10.1 ConstruSteel endeavours to carry out the obligations, which ConstruSteel is subject to, to the best of its knowledge and ability. ConstruSteel is never subject to a result obligation in the matter, but only an obligation of effort. Customer is completely responsible for the input in the Software and the result following from the Software. Customer is required to monitor the result and the quality.

10.2 ConstruSteel endeavours to safeguard the accessibility and functioning of the Software as much as possible. However, ConstruSteel is also dependent on third parties for this and is therefore not able to guarantee that the Software always functions undisturbed. In addition, the Software requires periodic maintenance, and the Software may possibly not be available during this maintenance. ConstruSteel makes an effort to plan this maintenance outside of office hours as much as possible, unless the maintenance and the expansions take place upon request of Customer. Customer is aware of the aforementioned and accepts periodic maintenance and incidental failures in the functioning of the Software. No right to damages accrues to Customer in this matter.

10.3 ConstruSteel is solely liable for the direct damage and loss which Customer or a third party affiliated to Customer suffers as a result of an attributable failure in the performance or wrongful acts on the side of ConstruSteel, notwithstanding paragraphs 4 to 8 of this article. ConstruSteel is never liable for indirect damage or loss, including but not limited to direct trading loss, lost profits, missed savings, reduced goodwill, damage and loss due to business interruption, damage and loss as a result of claims of Customer or its employees, damage or loss of (user) data, damage or loss related to the use of things, materials or software of third parties prescribed by Customer to ConstruSteel, damage or loss related to hiring suppliers prescribed by Customer to ConstruSteel, for consequential damage or loss, regardless of the nature of the act (breach of contract, wrongful act or otherwise).

10.4 ConstruSteel is never liable for any damage or loss of any kind whatsoever suffered by Customer related to the Software or SaaS services temporarily not being available, or temporarily not being correctly or completely available.

10.5 ConstruSteel is never liable for any damage or loss, of any kind whatsoever, suffered by Customer related to the (failure of) functioning of programming of Customer or of third parties, of equipment of Customer, ConstruSteel or third parties, or of internet connections of Customer, ConstruSteel or third parties.

10.6 ConstruSteel does not accept liability for not correctly sending or receiving information which is placed with Customer using the Software, or for not doing so completely or in a timely manner.

10.7 To the extent ConstruSteel is not eligible to the liability exclusions or limitations set out in this article, its liability is at all times limited per case to the amount which the insurer of ConstruSteel will pay out or to an amount of 30 % of all amounts invoiced in the six (6) months prior to its default to ConstruSteel, in relation to the obligation in which ConstruSteel has failed, with a maximum of an amount of € 5,000, less credit invoiced sent by ConstruSteel to Customer in this period.

10.8 To the extent that ConstruSteel is also not eligible for the limitation specified in this article, the liability of ConstruSteel is, under any circumstance, limited to no more than an amount of € 10,000.

10.9 Customer acknowledges and accepts that the reimbursement for the Software and the SaaS services is determined with observance of the liability limitation as referred to in this article.

10.10 Customer acknowledges and accepts that the Software and SaaS services can never be perfect or 100% free of imperfections and that not all imperfections will (and can) be remedied.

10.11 Customer indemnifies ConstruSteel for claims of third parties following from or related to the agreement or these conditions, unless Customer can enforce these claims towards ConstruSteel with observance of what is stipulated in this article, if Customer is the party who would have suffered this damage or loss.

10.12 The liability of ConstruSteel due to attributable failure in the performance of the agreement with Customer is only formed in all circumstances if Customer immediately and adequately puts ConstruSteel in default in writing. The notice of default needs to contain a description of the failure as complete and detailed as possible, to ensure that ConstruSteel is able to adequately respond to it.

10.13 Complaints about (repair) work activities carried out by ConstruSteel are to be communicated by Customer in writing to ConstruSteel, at the risk of forfeiture, within 8 days after discovery. But certainly within 14 days after completion of the work activities in question.

10.14 The Software will apply as valid between parties if Customer makes any use of the Software for productive or operational purposes and from the moment of the putting it into use.

10.15 Any right to damages lapses if Customer has failed to take measures to:

(I) the limit the damage or loss immediately after it has occurred;

(II) prevent that (other or additional) damage or loss arises; or

(III) if Customer fails to notify ConstruSteel as soon as is reasonably possible of the damage or loss and to provide all relevant information, taking into account the set periods in the conditions.

10.16 Each claim for damages against ConstruSteel lapses if Customer has not judicially involved ConstruSteel within 12 months, after the claim arises.

10.17 Partner Services. Furthermore and notwithstanding anything herein to the contrary, Customer acknowledges and agrees that: (i) any Services (“Partner Services“) provided by, through or in partnership with an Authorised Reseller or any other third-party partner of ConstruSteel (“Partners“) are provided to customer “as is,” without warranty of any kind. ConstruSteel hereby disclaims on behalf of the partners all other warranties with respect to such partner services. To the fullest extent permitted under applicable law, no partner shall have any liability to customer other than as may be set forth in the partner’s standard terms and conditions for the partner services, (ii) each Partner is hereby granted a limited license to use any content supplied by Customer in connection with the Partner Services (“Partner Marketing Content“), with the right to sublicense to its partners in connection with the operation of the Partner Services, provided that Partner and its publisher partners shall not provide any third party with access to Partner Marketing Content nor use Partner Marketing Content for its or their own commercial benefit beyond the provision of the Partner Services; (iii) at Customer’s request, reasonable efforts will be used by the Partners to remove from publication any Customer Marketing Content, but in no event will a Partner or its publisher partners have any liability if such Customer Marketing Content nonetheless continues to be published; (iv) Customer will cooperate to provide ConstruSteel with all information reasonably required by a Partner to provide any Partner Services; (v) each Partner is an intended third party beneficiary of this Section 9.3; and (vi) the terms and conditions of all Partner Services shall be subject to the Partner’s standard end user terms and conditions for such Services.

10.18 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 10 shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the Fees have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.

11. CONFIDENTIALITY

11.1 Confidential Information. During the term of this Agreement, each party (the “Disclosing Party“) may provide the other party (the “Receiving Party“) with certain information regarding the Disclosing Party’s business, technology, products, or services, or other confidential or proprietary information (collectively, “Confidential Information“) in whatever form (written, oral or visual) that is furnished or made available to the Receiving Party by or on behalf of the Disclosing Party that (a) if in tangible form, the Disclosing Party has labeled in writing as proprietary or confidential, (b) if in oral or visual form, the Disclosing Party has identified as proprietary or confidential at the time of disclosure, or (c) is of a character that is commonly and reasonably regarded as confidential and/or proprietary. For the avoidance of doubt, the Software, Documentation, and all enhancements and improvements thereto, will be considered Confidential Information of ConstruSteel.

11.2 Prion of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except for exercising its rights and performing its obligations under this Agreement. The Receiving Party will limit access to the Confidential Information to its employees and contractors who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorised use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and, upon request, the Receiving Party shall provide to the Disclosing Party written notice certifying compliance with this sentence, unless prohibited by applicable law.

11.3 Exceptions. The confidentiality obligations set forth in this section will not apply to any information that: (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) the Receiving Party can prove, by clear and convincing evidence, was already known to the Receiving Party without restriction at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

12. INDEMNIFICATION

12.1 By ConstruSteel. ConstruSteel will defend at its expense any suit brought against Customer, and will pay any settlement ConstruSteel makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Software infringes or misappropriates any Intellectual Property Rights. If any portion of the Software becomes, or in ConstruSteel’s opinion is likely to become, the subject of a claim of infringement, ConstruSteel may, at ConstruSteel’s option: (a) procure for Customer the right to continue using the Software; (b) replace the Software with non-infringing software which does not materially impair the functionality of the Software; (c) modify the Software so that it becomes non-infringing; or (d) terminate this Agreement and refund to Customer the pro-rated portion of any prepaid fees attributable to any unused Services, and upon such termination, Customer will immediately cease all use of the Services. Notwithstanding the foregoing, ConstruSteel shall have no obligation under this Section or otherwise with respect to any infringement claim based upon (v) the Customer Data (w) any use of the Services not in accordance with this Agreement or as specified in the Documentation; (x) any use of the Services in combination with other products, equipment, software or data not supplied by ConstruSteel; (y) any modification of the Software by any person other than ConstruSteel or its authorised agents; (z) modification of the Software based upon specifications furnished by Customer (any of the foregoing circumstances under clauses (v) through (z) will be collectively referred to as a “Customer Indemnity Responsibility“). This Section 12.1 states the sole and exclusive remedy of Customer and the entire liability of ConstruSteel, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for third party claims and actions described in this Section 12.1.

12.2 By Customer. Customer will indemnify, defend and hold ConstruSteel, its officers, directors, affiliates, subsidiaries, licensors, agents and employees (each a “ConstruSteel Party“) harmless from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs arising out of or relating to: (a) a Customer Indemnity Responsibility; or (b) Customer’s breach or alleged breach of any representation, warranty or obligation under the Agreement, or any violation of law; (c) claims relating to the Offers or the fulfillment thereof (including claims by purchasers or other Customers of the Offers on the Service relating to Customer’s products or services); or (iv) the use, transmission, access, disclosure, or other processing of Customer Data.

12.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.

13. TERM AND TERMINATION

13.1 Term. Unless otherwise specified on an applicable Service Order, this Agreement commences on Customer’s registration for an account, and shall continue in effect for fourteen (14) days (the “Initial Term“). Thereafter, and unless otherwise specified in a Service Order, this Agreement and each applicable Service Order shall automatically renew for successive monthly terms (each a “Renewal Term“), unless either party provides notice to the other of its intention not to renew at least one (1) month prior to expiration of the then-current Renewal Term. Notification of such non-renewal from Customer to ConstruSteel must be emailed to online@construsteel.com, which must be confirmed by ConstruSteel. If Customer chooses not to renew, Customer must fully notify ConstruSteel in writing at least one (1) month prior to the expiration of the then-current Renewal Term, in which case, Customer will continue to have access to the Services and be billed until the end of the then current term. Customer shall not receive a refund for any unused portion of the Term. In the case Customer fails to fully notify ConstruSteel of its intent not to renew within this time, the Renewal Term will commence at the end of the then-current term and Customer is responsible for the payment of Fees for the Services rendered for that Renewal Term. Customer shall not in any event be entitled to any refund of any Fees previously paid to ConstruSteel for Services. The Initial Term and all Renewal Terms will collectively be referred to as the “Term“.

13.2 Termination. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than one (1) month after receipt of written notice of such breach. ConstruSteel may terminate this Agreement at any time without cause and without notice. In addition, ConstruSteel may terminate this Agreement upon written notice to Customer (or upon written notice provided to an Authorised Reseller and then passed along by an Authorised Reseller to a Customer) if (a) Customer becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, or liquidation for the benefit of creditors or (b) in the event of non-payment in accordance with Section 7.3. Upon a termination by ConstruSteel without cause, Customer may be entitled to a pro-rata refund of any pre-paid and unused Fees advanced to ConstruSteel.

13.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate (except that all payment obligations accrued prior to termination or expiration shall survive); and (b) within one (1) month after the effective date of termination, each party shall comply with the obligations to return all Confidential Information of the other party, as set forth in Section 11.2. All liabilities accrued under this Agreement prior to the effective date of termination and the following Sections will survive expiration or termination of this Agreement for any reason: 1, 2, 3, 4.3, 4.4, 4.5, 5.3, 5.5, 6, 7, 8.4, 8.5, 9.4, 9.5, 10, 11, 12, 13.3, 13.4, 14 and 15.

13.4 Data Deletion, Preservation, Retrieval or Transfer.

(a) In the event of a temporary suspension of Customer’s access to Services, (i) ConstruSteel will not take any action to intentionally erase or delete Customer Data stored on the Services; and (ii) applicable Fees will continue to accrue. In the event Customer becomes inactive due to past-due amounts, Customer agrees that ConstruSteel may delete all End Customer Data after a period of one (1) month. If this Agreement is terminated for any reason other than Customer’s breach, ConstruSteel will not take any action to intentionally erase or delete Customer Data stored on the Services for a period of one (1) month, after which ConstruSteel may delete the End Customer Data. If this Agreement is terminated on account of Customer’s breach or alleged breach of these this Agreement, ConstruSteel will not take any action to intentionally erase or delete Customer Data stored on the Services for a period of one (1) month with respect to customer Communications as discussed above, after which ConstruSteel may delete End Customer Data, unless required by applicable law. In each case, Customer’s post-termination retrieval or transfer of Customer Data will be conditioned on ConstruSteel’s receipt of all applicable Fees for the period following termination, payment in full of any other amounts owed, and Customer’s compliance with such reasonable terms and conditions as ConstruSteel may establish with respect to such retrieval or transfer. In addition, if Customer utilises the professional services of ConstruSteel to assist Customer in connection with such retrieval or transfer, Customer will be responsible for ConstruSteel’s then current charges for such professional services. In the event that ConstruSteel does not receive all such Fees and amounts due within the applicable time periods described above, or in the event that Customer fails to notify ConstruSteel of Customer’s election with respect to the retrieval or transfer of Customer Data within such period, ConstruSteel shall have no obligation to continue to store Customer Data or permit Customer to retrieve or transfer the same.

(b) ConstruSteel will respond to requests to transfer or delete End Customer Data only to the extent such requests are addressed to ConstruSteel from an email address from the email domain that is the same as the domain associated with Customer’s ConstruSteel account. To the extent the request does not originate from the specific email address associated with Customer’s ConstruSteel account (the “Authorised Email“), ConstruSteel will notify Customer of the request at the Authorised Email, and ConstruSteel will deem such request valid unless it receives a response within 5 business days from the Authorised Email objecting to the request. ConstruSteel will deem valid any request addressed to ConstruSteel from the Authorised Email, and Customer is solely responsible for the validity of all requests or communications addressed to ConstruSteel from the Authorised Email.

14. SUPPORT

14.1 During the agreement, Customer has the right to support, unless agreed upon otherwise. To be able to maintain the right to support, Customer is required to cooperate to at least 1 update per year.

14.2 Support comprises the right for Customer to submit questions during working days with the help desk using the customer portal at support.online@construsteel.com or by telephone, after which ConstruSteel will make an effort to the best of its knowledge and ability to plan and carry out the provision of support depending on the priority of the question as estimated by ConstruSteel.

14.3 Support does not comprise:
a) services pertaining to system configurations, hardware and networks;
b) structural work, including the definition of layouts, overviews, setup of roles and outlines of rights, import definitions and links with software of third parties;
c) support on location other than specified in the agreement and/or in the event that additional assistance services are purchased;
d) expanding the functionality of the Software upon request of Customer;
e) the conversion of files;
f) services pertaining to external databases of other producers than ConstruSteel;
g) installation, configuration, training or other services not expressly specified in the agreement;
h) support for (operation) software of other producers than ConstruSteel, which is also meant to include the software of third parties which can be started from the Software;
i) file repairs, for which the cause cannot be attributed to the SaaS services or the Software;
j) the provision of new products that have become available;
k) support for the internet connection, unless delivered by ConstruSteel in the context of the agreement;
l) support in an environment which is not supported according to the system requirements.

14.4 Support can only be requested by the contact of Customer.

14.5 Before asking for support, Customer is obligated to first have consulted the applicable instructions in the Software.

14.6 In the context of rendering support, ConstrucSteel or its supplier is entitled to have access to the information of Customer, to the extent reasonably required.

14.7 If ConstruSteel performs work activities for Customer pertaining to the subjects referred under article 14 paragraph 3, ConstruSteel will charge these work activities separately in addition to the remuneration for the agreed upon SAAS services and Software, in accordance with the prices that apply with ConstruSteel at that time and incurred costs.

14.8 The installation of no more than 1 update during office hours of ConstruSteel is for free. Customer will pay an additional price agreed upon with ConstruSteel outside of office hours. If it agreed upon that ConstruSteel will test the Software after an update, then the Customer will pay a price agreed upon with ConstruSteel.

14.9 Bringing the update in line with custom work by ConstruSteel, or by components and reports, workflows, import and export definitions, graphs, websites, links, overview settings, filters, tiles and such developed by the Customer, is charged as consultancy work on the basis of subsequent costing.

14.10 Such things which have been made available as dataset may be recovered by loading a new version of the relevant dataset. Alterations made in this data will be lost by doing so.

14.11 A backup of the software is made for each update. This may be restored upon request of Customer up to 2 hours after the update of the Software. Changes in the interim period will be lost in that case.

14.12 ConstruSteel has the right to, at all times, without providing reasons why, limit or block access of Customer for support for an undetermined period, if there is a suspicion of misuse or other improper use.

14.13 Customer guarantees that its employees handle the access to support and the information acquired this way in a responsible manner, while Customer also unconditionally maintains the responsibility and/or accepts for any information which the employees communicate towards the helpdesk of ConstruSteel.

14.14 The information made available by or on behalf of ConstruSteel through support is, unless specified otherwise, given subject to reservation and without Customer, its employees or third parties being able to derive any rights from it.

15. AVAILABILITY

15.1 To the extent that ConstruSteel renders SaaS services, ConstruSteel makes an effort for optimum availability of and access to the Software. ConstruSteel has also, at least, imposed this obligation to its supplier(s), if applicable.

15.2 Without prior announcement, ConstruSteel is entitled to (temporarily) disable the access to the Software or limit its use, to the extent that this is necessary for (preventive) maintenance or adjustments or improvements to be performed of one or more SaaS services or Softwate, without this involving a right to damages of Customer towards ConstruSteel. ConstruSteel makes an effort, if aforementioned work activities are carried out during office hours, to limit the inconvenience to a minimum and, if possible, inform Customer in a timely manner.

16. LOGIN PROCEDURE

16.1 Customer is obligated to observe the Login procedure as indicated by ConstruSteel.

16.2 ConstruSteel is entitled to adjust the Login procedure at own discretion, unless a specific Login procedure has been agreed upon. ConstruSteel will inform Customer of this in a timely manner.

16.3 ConstruSteel and/or employees of Customer need to carefully handle and be responsible for the Login information. Login information is not transferrable and can only be used by employees of Customer. Customer and employees are obligated to observe strict confidentiality when it comes to the Login information towards everyone. Customer and/or its employees are liable for any use of the Login information. All actions of Customer and its employees are at the expense and risk of Customer.

17. DATA PROTECTION

17.1 Customer is obligated to observe the Login procedure as indicated by ConstruSteel.

17.2 Customer guarantees to ConstruSteel and its suppliers and subcontractors that those parties involved in the data processing as referred to in the GDPR have given permission for the intended processing of personal information, or that these may otherwise be processed in a legally valid manner as stipulated in art. 6 and/or 9 GDPR. By concluding the agreement, ConstruSteel is considered to have been instructed to carry out those data processings which are reasonably required for a proper execution of the agreement. ConstruSteel will otherwise only process the personal information in accordance with the instructions of Customer.

17.3 By concluding the agreement, the employees of ConstruSteel as well as third parties affiliated to ConstruSteel which are involved in the execution of the agreement are entitled to process the personal information in the context of the agreement on behalf of ConstruSteel. In this context, ConstruSteel will ensure suitable confidentiality agreements with these employees and affiliated third parties.

17.4 ConstruSteel, in its capacity of processor, will observe the obligations which follow from the relevant laws and legislation, including the General Data Protection Regulation (GDPR). In particular, ConstruSteel will make sure to take reasonable technical, organizational and legal measures to protect the personal information. ConstruSteel will provide an explanation to Customer or any involved parties which address ConstruSteel upon first request when it comes to these measures. In additional, ConstruSteel will grant all cooperation that can reasonably asked of ConstruSteel in order to enable Customer to comply with its obligations following the GDPR towards involved parties.

17.5 In the unlooked-for event that a violation in relation to the personal information (‘data breach’) as referred to in the GDPR occurs, ConstruSteel will grant all cooperation which can reasonably be asked of ConstruSteel in order to enable Customer to comply with its obligation to disclose. In turn, Customer will grant ConstruSteel all cooperation which can reasonably be asked of Customer in order to limit or remedy the consequences of a data breach and prevent a future data breach. In this context, ConstruSteel may require Customer to grant cooperation to an immediate reset of passwords, the tightening up of existing security measures and the introduction of new security measures.

17.6 Customer indemnifies ConstruSteel for all claims of third parties pertaining to the agreement between ConstruSteel and Customer/or the information processed by Customer in the context of the agreement which may be introduced against ConstruSteel in relation to a breach of the GDPR not attributable to ConstruSteel and/or other relevant laws and legislation pertaining to data protection.

18. TAKE DOWN NOTICE AND PROCEDURES

It is ConstruSteel’s policy to respond to notices alleging that any material uploaded by users of the Services or the Software infringes another person’s copyright. If you believe any material accessible on or from the ConstruSteel website or the Services infringes your copyright, you may request removal of those materials (or access thereto) from this website by contacting the ConstruSteel copyright agent (identified below) and providing the following information:

Our agent for copyright issues relating to the ConstruSteel website or Services can be contacted as follows:

ConstruSteel BV
Kroezenhoek 1
7681 PP DEN HAM
The Netherlands

Email: online@construsteel.com

For all email submissions please include the subject line: Takedown Request.

ConstruSteel has adopted a policy of terminating, in appropriate circumstances, accounts of users of the Services or Software who are deemed to have repeatedly uploaded content that infringes the intellectual property rights of others.

19. MISCELLANEOUS

19.1 Marketing. Customer agrees that ConstruSteel may refer to Customer by name and trademark in ConstruSteel’s marketing materials, website and other communication. Customer acknowledges and agrees that ConstruSteel does not certify or endorse, and has no obligation to certify or endorse, any of Customer’s products, services, or content.

19.2 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the Dutch laws, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts located in Almelo, Overijssel (The Netherlands), for any lawsuit arising from or related to this Agreement. All disputes arising out of or in connection with this agreement shall be exclusively settled by the competent court in Almelo, Overijssel (The Netherlands).” Customer may not bring any suit or action against ConstruSteel for any reason whatsoever more than one (1) year after the cause of action accrued.

19.3 Export. Customer agrees not to export, re-export, or transfer, directly or indirectly, any technical data acquired from ConstruSteel, or any products utilising such data, in violation of the Dutch export laws or regulations.

19.4 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

19.5 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

19.6 Remedies. Customer acknowledges that the Services contain valuable trade secrets and proprietary information of ConstruSteel, and that any actual or threatened breach by Customer of its obligations with respect to Intellectual Property Rights of ConstruSteel will constitute immediate, irreparable harm to ConstruSteel for which monetary damages would be an inadequate remedy. In such case, ConstruSteel will be entitled to seek immediate injunctive relief without the requirement of posting bond.

19.7 No Assignment. Customer may not assign its rights or delegate any obligations hereunder without the express prior written consent of ConstruSteel. Any assignment by Customer without the prior written consent of ConstruSteel shall be null and void. ConstruSteel may assign its rights or obligations hereunder without notice or consent; provided, however, that the Services shall continue to operate as specified in this Agreement. This Agreement shall inure to the benefit of each party’s permitted successors and assigns.

19.8 Force Majeure. Without limiting any other provision in the Agreement, ConstruSteel, or any ConstruSteel Party, is not responsible or liable to any Customer for delay or failure to perform its obligations hereunder in the event that any of ConstruSteel or ConstruSteel Parties’ operations or activities are affected by any cause or event beyond the sole and reasonable control of the applicable ConstruSteel Party (as determined by such party in its sole discretion), including, without limitation, by reason of any acts of God, equipment failure, threatened or actual terrorist acts, air raid, act of public enemy, war (declared or undeclared), civil disturbance, insurrection, riot, epidemic, pandemic, fire, explosion, earthquake, flood, hurricane, unusually severe weather, blackout, embargo, labor dispute or strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slowdown, any law, rule, regulation, action, order, or request adopted, taken, or made by any governmental or quasi-governmental entity (whether or not such governmental act proves to be invalid), or any other cause, whether or not specifically mentioned above.

19.9 Independent Contractors. Customer’s relationship to ConstruSteel is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other.

19.10 Notices. Where ConstruSteel requires you provide an email address, you are responsible for providing ConstruSteel with your most current email address. In the event that the last email address you provided to ConstruSteel is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, ConstruSteel’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to ConstruSteel at the following email address: online@construsteel.com. Notice shall be deemed to have been duly given on the first business day following successful email transmission to ConstruSteel.

19.11 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.

19.12 Entire Agreement. This Agreement, any applicable Service Orders, our Acceptable Use Policy, Privacy Statement, Data Protection and, if applicable, our API Terms of Use constitute the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorised signatory of Customer and ConstruSteel.

19.13 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Services, please contact us at support.online@construsteel.com. We will do our best to address your concerns.