Terms of service

1. Acceptance

These terms and conditions, and any other terms and policies referred to in these terms and conditions, form the agreement between FormConvo B.V. (referred to as "service provider", "we" or "us") and the user (referred to as "customer" or "you"), collectively referred to as the parties or each a party (agreement).

The service provider owns, or holds the relevant rights to, the FormConvo software and will license the use of the software as a service to the customer.

By accessing and/or using the services you:

• warrant to us that you have reviewed this agreement, including our privacy policy (available on the site), and you understand it;
• warrant to us that you have the legal capacity to enter into a legally binding agreement with us or (if you are under 18 years of age) you have your parent's or legal guardian's permission to access and use the site and they have agreed to the terms on your behalf; and
• agree to use the services in accordance with this agreement.

2. Services

On or from the effective date and during the term, the service provider agrees to provide the services in accordance with the terms of this agreement.

The customer agrees the service provider owns or holds the applicable licenses to all intellectual property rights including but not limited to copyright in the software and services and any documentation provided with the services by the service provider to the customer including any customer configuration documentation.

The service provider reserves the right to change or remove features of the services from time to time. Where there is any material alteration to the services in accordance with this clause, the service provider will provide the customer with 20 business days' notice and the customer agrees that any material alteration is at the service provider's discretion.

The parties agree that the service provider:

• will supply the services on a non-exclusive basis;
• does not make any warranty or representation as to the ability of the facilities or services of any third-party suppliers; and
• is not liable for any failure in, fault with or degradation of the services if that failure, fault or degradation is attributable to or caused by any failure of the customer environment or the facilities or services of any third party.

3. License

3.1 Service license

In consideration for payment of the fees, the service provider grants to the customer a non-exclusive, non-transferable (except as otherwise permitted under this agreement), personal, revocable, license to access and use the services in accordance with the service provider's intended purpose for the services (license).

The customer agrees that the license:

• commences from the effective date or the day the customer is granted access to the services by the service provider, whichever occurs first;
• permits the customer to use the services in accordance with the services' normal operating procedures; and
• permits the customer to provide access and use of the services to authorized users by embedding the services into customer's services to its customers, as applicable.

3.2 License restrictions

The customer must not access or use the services except as permitted by the license and may not do or authorize the commission of any act that would or might invalidate or be inconsistent with the service provider's intellectual property rights in the services or software. Without limiting the foregoing provisions, the customer agrees and acknowledges that it must not and will not permit any person to:

• resell, assign, transfer, distribute or provide others with access to the services;
• "frame", "mirror" or serve any of the services on any web server or other computer server over the internet or any other network;
• copy, alter, modify, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance the services or software; or
• alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality legend or notice, or any numbers, or other means of identification used on or in relation to the services or software.

4. Data

The customer grants to the service provider a limited license to copy, transmit, store and back-up or otherwise access, use or make reference to any intellectual property rights in the data:

• to supply the services including to enable the customer, its personnel and any authorized users to access and use the services;
• to do analysis for the purposes of improving services;
• for diagnostic purposes;
• to test, enhance and otherwise modify the services whether requested by the customer or not;
• to develop other services; and
• as reasonably required for the performance of the service provider's obligations under this agreement.

4.1 Customer representations

The customer represents and warrants that:

• any and all data supplied by the customer or otherwise accessed by the service provider through the provision of the services is the sole and exclusive property of the customer or the customer has secured any and all authorizations and rights to use the data as applicable;
• its data does not breach any relevant laws, regulations or codes;
• its data does not infringe the intellectual property rights of any third party;
• it will comply with all applicable laws and regulations in the jurisdiction where the customer accesses and publishes content using the services; and
• to the extent that the data contains personal data, it has obtained the necessary consents in order to transfer or permit access to this data in accordance with applicable privacy and data protection laws.

4.2 Data security

The customer acknowledges and agrees that:

• any collation, conversion and analysis of data performed as part of the services whether by the services or otherwise is likely to be subject to human input and machine errors, omissions, delays and losses including but not limited to any loss of data. The service provider is not liable for any such errors, omissions, delays or losses. The customer acknowledges and agrees it is responsible for adopting reasonable measures to limit the impact of such loss or error;
• the service provider may relocate the data to another jurisdiction. In each case, the service provider will give the customer 15 business days' notice and use all reasonable endeavors to minimize the effect of such change on the customer's access and use of the services;
• the service provider is not responsible for any corruption or loss of any data if such corruption or loss is due to an act or omission by the customer, its personnel, its related bodies corporate or any authorized users; and
• the service provider is not responsible for the integrity or existence of any data on the customer's environment, network or any device controlled by the customer or its personnel.

5. Payment

The customer must pay the service provider:

• the fee; and
• any other amount payable to the provider under this agreement,

without set off or delay using the payment method in accordance with the payment terms. All fees are in EUR, and are payable in advance.

If the customer requires the use of a purchase order, the customer is responsible for providing the applicable purchase order at the time of purchase. The customer acknowledges and agrees to the extent of any inconsistency between this agreement and any terms and conditions attached to the customer's purchase order, the terms of this agreement will prevail. The parties acknowledge and agree that any pre-printed standard terms and conditions attached to or on the back of any purchase order will not apply to this agreement.

If there is a variation, the service provider will include the variation fees due and payable for the variation performed in invoice(s) subsequent to the performance of any variation.

If any payment has not been made in accordance with the payment terms, the service provider may (at its absolute discretion):

• immediately cease providing the services, and recover as a debt due and immediately payable from the customer its additional costs of doing so;
• charge interest at a rate equal to the European Central Bank's base rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the due date;
• engage debt collection services and/or commence legal proceedings in relation to any such amounts; and/or
• report the customer to any independent credit data agencies.

6. Confidentiality

Each party must (and must ensure that its personnel do):

• keep confidential; and
• not use or permit any unauthorized use of, all confidential information.

This does not apply where:

• the information is in, or comes into, the public domain (other than by a breach of this confidentiality by the relevant party);
• the relevant party has the prior written consent of the party that disclosed the confidential information;
• the disclosure is required by law;
• the disclosure is required in order to comply with this agreement, provided that the party disclosing the confidential information ensures the recipient complies with the terms of this confidentiality; and
• the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with this agreement and provided that the party disclosing the confidential information ensures the adviser complies with the terms of this confidentiality.

7. Intellectual property

A party's ownership of, or any right, title or interest in, any intellectual property rights in an item which exists prior to the effective date (pre-existing material) will not be altered, transferred or assigned by virtue of this agreement.

The customer grants to the service provider a non-exclusive, royalty free, non-transferable and revocable license to use any of the customer's intellectual property rights including any pre-existing material as reasonably required for the service provider to provide the services to the customer.

We do not screen content uploaded onto the service, but we have the right (but not the obligation) in our sole discretion to refuse or remove any content that is available via the service that we deem inappropriate, illegal, offensive, threatening, libelous, defamatory, pornographic, obscene, or otherwise objectionable or violate any party's intellectual property rights or this agreement.

We have the discretion (but not obligation) to terminate a customer's access to and use of the services if, we determine that customer or its authorized users are repeat infringer of the intellectual property rights of us or third parties.

8. Privacy

Each party and its personnel agrees to comply with its obligations under Algemene Verordening Gegevensbescherming (AVG) / General Data Protection Regulation (GDPR) and any other applicable legislation or privacy guidelines as amended from time to time in relation to personal information collected, used or disclosed by that party or its personnel in connection with the services and this agreement.

Details on how the service provider complies with the AVG/GDPR and how it collects, discloses, holds or uses personal information is available in the service provider's privacy policy as set out on the service provider's website or as provided to the customer from time to time. The service provider reserves the right to amend its privacy policy as required from time to time.

The service provider will take all reasonable steps to notify the customer in writing if it becomes aware of any actual, threatened or suspected breach of data where such breach involves personal information.

The customer warrants that it has obtained each of its personnel's informed consent for the service provider, its related bodies corporate, and their respective personnel to use, store, manipulate or otherwise deal with the personal information contained in the data.

The customer must ensure that any collection, processing, use, disclosure and transfer by the customer and its personnel of personal information in connection with the performance of its obligations under this agreement complies with all applicable privacy law and the privacy policy of the customer.

9. Representations and warranties

9.1 General

Each party represents and warrants to each other party:

• it has full legal capacity and power to enter into this agreement, to perform its obligations under this agreement to carry out the transactions contemplated by this agreement, to own its property and assets and to carry on its business;
• no insolvency event has occurred in respect of it;
• this agreement constitutes legal, valid and binding obligations, enforceable in accordance with its terms; and
• the execution and performance by it of this agreement and each transaction contemplated by it does not conflict with any law, order, judgment, rule or regulation applicable to it or any document binding on it.

9.2 Service provider

The service provider warrants that to the best of its knowledge the services do not infringe the intellectual property rights of any third party and there are no actual or threatened proceedings for any intellectual property infringements in relation to the services.

The service provider does not warrant that the services will be error-free or will operate without interruption or that, except as set out in this agreement, the services will be performed in the manner intended by the customer or the services will meet the requirements of the customer.

10. Term and termination

10.1 Term

The term of this agreement takes effect on and from the effective date and continues for the initial term, if specified, and any renewal term, or otherwise indefinitely, unless this agreement is terminated earlier in accordance with the terms of this agreement.

10.2 Termination

Where there is no initial term or renewal term, customer may terminate this agreement by giving service provider at least 30 days prior written notice, such termination will take effect with at the expiry of the then current billing cycle.

The customer may terminate this agreement by giving at least 30 business days' notice to the service provider, or if the service provider is in breach (other than a trivial breach causing no material harm) of any provision of this agreement and, where the breach is capable of remedy, the service provider has failed to remedy the breach within 30 business days' of receipt of written notice from the customer describing the breach and calling for it to be remedied.

The service provider may terminate this agreement by giving at least 30 business days' notice to the customer if the customer is in breach (other than a trivial breach causing no material harm) of any provision of this agreement and, where the breach is capable of remedy, the customer has failed to remedy the breach within 30 business days of receipt of written notice from the service provider describing the breach and calling for it to be remedied.

The service provider may terminate this agreement immediately by giving written notice to the customer where:

• the customer undergoes a change of control to a competitor of the service provider as determined by the service provider;
• an insolvency event occurs in relation to the customer;
• the customer commits a breach of this agreement not capable of remedy; or
• breaches section 3.2 (license restrictions).

The service provider may suspend overdue accounts without notice to the customer. A €250 reinstatement charge applies to reactivate any suspended account once full payment has been received.

11. Dispute resolution

11.1 Disputes

A party must not commence court proceedings relating to any dispute arising from, or in connection with, this agreement (dispute) without first complying with this section unless:

• that party is seeking urgent interlocutory relief; or
• the dispute relates to compliance with this section.

Notwithstanding the existence of a dispute, the parties must continue to perform their obligations under this agreement.

11.2 Negotiation

In the event of a dispute, the party claiming there is a dispute must give written notice to the other party or parties to the dispute setting out the details of the dispute and proposing a resolution (dispute notice).

Within 10 business days after receipt of the dispute notice, each relevant party must (if applicable by its senior executives or senior managers who have authority to reach a resolution on its behalf) meet at least once to attempt to resolve the dispute in good faith. All aspects of every such conference, except for the occurrence of the conference, will be privileged.

11.3 Mediation

If the relevant parties are unable to resolve the dispute with 15 business days after receipt of the dispute notice, any party involved in the dispute may submit the dispute to mediation administered by the Netherlands Arbitration Institute (NAI), with such mediation to be conducted:

• in good faith;
• in Amsterdam; and
• in accordance with the NAI Mediation Rules.

The costs of mediation are to be split between the relevant parties, provided that each party will bear its own costs in relation to the mediation.

If the dispute has not been settled within 20 business days after the appointment of a mediator, or such other period as agreed in writing between the parties, the dispute may be referred by any party involved in the dispute (by written notice to the other parties) to litigation.

12. General

12.1 Notices

A notice or other communication given under this agreement must be:

• in writing, in English and signed by the sender; and
• addressed and delivered to the intended recipient by hand, prepaid post or email in accordance with the notice details last notified by the recipient to the parties.

The customer's notice details are set out in the customer's account. The service provider's notice details are set out on the site. A party may change its notice details by written notice to the other parties, which, for the customer, is by updating their account, and for service provider, is by updating the site.

12.2 Force majeure

If performance of this agreement or any obligation under this agreement is prevented, restricted or interfered with by reasons of force majeure and the affected party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the affected party invoking this provision shall be suspended to the extent necessary by such event. The affected party shall use reasonable efforts under the circumstances to remove such prevention, restriction or interference or to limit the impact of the event on its performance and must continue to perform with reasonable dispatch when the force majeure is removed.

12.3 Governing law and jurisdiction

This agreement is governed by the laws of the Netherlands. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Amsterdam and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

13. Contact us

If you have any questions about these terms of service, you can contact us:

• By email: support@formconvo.com
• By mail: FormConvo B.V., Herengracht 420, 1017BZ Amsterdam, Netherlands