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1.1. The NomaDesk Service consists of:
(i) the delivery via internet of the software required for making the customer's End Hardware suitable for the NomaDesk applications,
(ii) an internet service for the exchange of electronic documents and information ("Collaboration"), their storage beyond the confines of the company ("Remote Backup") and making them accessible ("Remote Access"),
(iii) all other services that parties agree to deliver to the customer via internet as determined in the order form.
An update of the NomaDesk applications at regular intervals is included in the service.
1.2.
Aventiv will make best efforts to supply the NomaDesk Service to the customer continuously and reliably. The NomaDesk Service is supplied to the customer within 48 hours; nonetheless the request may be refused in the following cases:
(i) the information/data supplied by the customer that should allow Aventiv to bring about activation, is/are incomplete or incorrect so that it is not technically possible to bring about activation in a reasonable fashion.
(ii) the customer fails to abide by its obligations arising from other contracts with Aventiv or enterprises belonging to the Aventiv group.
1.3.
The undertaking of Aventiv is an undertaking to provide means both with respect to the transmission of data, the granting of access to data and the storage of data. Aventiv undertakes to use to its best ability its know-how, knowledge and logistic resources in order to provide the customer with a NomaDesk Service of the best possible quality.
Temporary, complete or partial disruption of the service, among others by the inaccessibility of the service, delayed transmission of data or the diminished quality of the data transmission cannot give rise to any liability on the part of the Aventiv. In the event of such problems the customer will inform Aventiv of this without delay.
Aventiv will make every effort to resolve the problem to the best of its ability. In the event of prolonged interruption, repeated disturbance in a short space of time or prolonged severe loss in transmission quality the customer may terminate the Contract unilaterally without the payment of any compensation, unless these problems are the consequence of force majeure, defects in the customer's own hardware, the intervention of the customer himself or the application of legal provisions, judgments or any other intervention by the authorities.
1.4.
The Aventiv Network consists of our network equipment in the Aventiv data centre.
The maintenance and the development of the Aventiv Network may compel Aventiv to restrict or suspend the NomaDesk Service during a short period of time. Aventiv undertakes to limit the duration of such restrictions or suspensions to the time that is strictly necessary for the performance of these works and to inform the customer of this in advance by every suitable means, except in those cases where force majeure makes this impossible. Such suspension or restriction of the NomaDesk Service does not constitute non-performance.
2.1.
These General Conditions are applicable to the provision of internet services for the exchange of electronic documents and information ("Collaboration"), their storage beyond the limits of the company ("Remote Backup") and making them accessible ("Remote Access"). The customer may not in any way reject the application of these General Conditions, amend or replace them. The general and special conditions specific to the customer are not applicable unless parties should agree otherwise in writing.
The contractual relationship between parties relating to the NomaDesk Service ("the Contract") is determined by these General Conditions comprising a license agreement, the NomaDesk Terms of Service (TOS), the Order Form, the technical manual (forum), notices on the website and where applicable those specific conditions referred to in aforementioned documents. The General Conditions form part of the order form and are handed over to the customer at the same time as the order form. The documents jointly constitute the entirety of the Contract between parties.
This Contract replaces all previous word-of-mouth or written arrangements between parties relating to the subject of this Contract.
2.2.
The Contract comes into effect upon the confirmation of the electronic order form on our website. Acceptance takes place by the notification of the customer of the activation by Aventiv.
2.3.
The Contract is agreed on the basis of the prices and rates mentioned on the electronic order form. The prices and rates are charged as of the time of the successful activation of the internet service for the exchange of electronic documents and information ("Collaboration"), their storage beyond the limits of the company ("Remote Backup") and making them accessible ("Remote Access").
2.4.
The Contract cannot be amended except subject to express written agreement with the exception of the technical manual (forum). Said manual may be unilaterally amended by Aventiv to reflect updates insofar this does not imperil the provision of the service by Aventiv. The customer is responsible for any adjustment to the software and the End Hardware that may be required for the implementation of and use of the upgrades taking into account the technical state of the art at the time of the upgrade. The technical manual (forum) may be consulted at all times on the Aventiv website.
3.1.
The extent of the activation and the fee associated with same is set out in the website or the electronic order form.
It is agreed that the customer is himself responsible for the installation of the software for making his End Hardware suitable for the use of the NomaDesk applications.
Aventiv bears no responsibility for the part of the activation carried out by the customer.
3.2.
The customer must have the required End Hardware and software at the time of activation, such as a computer with a working operating system (and software on a backing medium) and a hard drive.
The customer states that he has all the required licenses relating to the software installed, and where applicable reinstalled, by Aventiv on his End Hardware. In no case does Aventiv bear any liability in respect of the software that has already been installed on the End Hardware of the customer.
3.3.
Aventiv bears no liability whatsoever for the loss of information and data on the computer or server of the customer upon activation or during installation. The customer will make the necessary back-ups prior to the installation.
3.4.
After successful installation the customer is assumed to be correctly connected to the Aventiv Network. As of that moment the customer is liable for the subscription and activation payments and the risk of loss, theft, or damage of any installed Hardware is transferred to the customer.
4.1.
The subscription fee is payable in accordance with article 3.4 as of the first day of connection to the NomaDesk Service and the Aventiv Network until the final day of such connection. The customer pays the subscription fee in advance for a recurring period as defined by Aventiv that could be yearly recurring or monthly recurring, or both, unless parties should agree otherwise in writing. The subscription fee continues to be payable regardless of whether the customer makes use of the NomaDesk Service or otherwise.
The subscription fee comprises:
(i) authorization to process a predetermined volume of data and traffic via the NomaDesk Service.
(ii) the license to use Aventiv Software in accordance with article 5.
(iii) the use of other agreed services such as determined in the order form.
(iv) regular maintenance and normal repair works in the event of defects in accordance with article 1.3.
5.1.
Should during the course of the Contract the customer wish to change his subscription formula the following additional charges may be made. The subscription fee does not include charges that are made for the specific services delivered by Aventiv or by third parties that are listed in the order form and accompanied by a specification of the price.
With respect to services provided by third parties, Aventiv can only be regarded as an intermediary for invoicing and collection. Aventiv cannot be held to supply these services itself in its own name and for its account.
6.1.
The minimum duration of this Contract is mentioned on the website or the electronic order form where this period commences to run on the activation date. The period mentioned on the order form is a fixed duration and cannot be prematurely terminated except in those cases mentioned in these conditions.
6.2.
If the Contract is not terminated by means of direct communication via email, telephone or mail sent at the very latest one business day prior to the expiry of the contract period, the Contract shall be tacitly extended on each occasion for a period of recurrence.
6.3.
Upon the premature and/or unrightfully termination of the Contract by the customer, the customer will be liable for compensation equal to the subscription fee for the outstanding period.
6.4.
Upon the termination of this Agreement, the customer (a) acknowledges and agrees that all licenses and rights to use the NomaDesk Software and the NomaDesk Service shall terminate, and (b) will cease any and all use of the NomaDesk Software and the NomaDesk Service, and (c) will remove the NomaDesk Software from all hard drives, networks and other storage media and destroy all copies of the NomaDesk Software in the customer's possession or under the customer's control.
7.1.
Aventiv hereby grants the customer a limited, personal, non-commercial (at home or at work), non-exclusive, non-sublicensable, non-assignable license to download, install and use the NomaDesk Software on the customer's computer or PDA, for the sole purpose of internet storage, document sharing, collaborative applications and any other applications that may be explicitly provided by Aventiv.
7.2.
The customer will not sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the NomaDesk Software.
7.3.
The customer will not undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the NomaDesk Software.
7.4.
The customer acknowledges and agrees that the NomaDesk Software may be incorporated into, and may incorporate itself, software and other technology owned and controlled by third parties. Aventiv emphasizes that it will only incorporate such third party software or technology for the purpose of (a) adding new or additional functionality or (b) improving the technical performance of the NomaDesk Software and the NomaDesk Service. Any such third party software or technology that is incorporated in the NomaDesk Software falls under the scope of this Agreement. Any and all other third party software or technology that may be distributed together with the NomaDesk Software will be subject to the customer explicitly accepting a license agreement with that third party. The customer acknowledges and agrees that the customer will not enter into a contractual relationship with Aventiv or its Affiliates regarding such third party software or technology and the customer will look solely to the applicable third party and not to Aventiv or its Affiliates to enforce any of the customer's rights.
7.5.
Aventiv, in its sole discretion, reserves the right to add additional features or functions, or to provide programming fixes, updates and upgrades to the NomaDesk Software and the NomaDesk Service. The customer acknowledges and agrees that Aventiv has no obligation to make available to the customer any subsequent versions of the NomaDesk Software and the NomaDesk Service. The customer also agrees that the customer may have to enter into a renewed version of this Agreement in the event the customer wants to download, install or use a new version of the NomaDesk Software and the NomaDesk Service. Furthermore, the customer acknowledges and agrees that Aventiv, in its sole discretion and at any time, may modify or discontinue or suspend the customer's ability to use any version of the NomaDesk Software and the NomaDesk Service and/or terminate any license hereunder. Aventiv also may - at any time - suspend or terminate any license hereunder and disable any NomaDesk Software or the NomaDesk Service the customer may already have accessed or installed without prior notice.
7.6.
The NomaDesk Software distribution contains Open Source Software. he source code of the Open Source Software, the modifications by Aventiv and the licenses are either distributed with the NomaDesk Software, or can otherwise be obtained, at no cost, via a simple request at OpenSource@Aventiv.com.
The customer acknowledges and agrees (a) that the Open Source Software distributed with the NomaDesk Software interacts "at arm's length" with the NomaDesk Software, (b) that the source code and licenses have been made available to the customer and (c) that Aventiv by no means limits the customer's freedom to distribute copies of, or modify, the Open Source Software distributed with the NomaDesk Software.
The clauses in this agreement limiting the use of the NomaDesk Software do not apply to the Open Source Software.
7.7.
The customer is not allowed to use or modify the API, unless the customer agrees to and meets with the following subsequent terms:
(i) The customer may only make use of and/or modify the API to distribute the NomaDesk Software (a) for any legitimate purposes and (b) provided that the customer will not remove, overtake, hide or otherwise make the UI inaccessible for end users.
(Iii) The customer will constantly monitor the NomaDesk/Aventiv Website in order to ensure that the customer is distributing the latest stable version of the NomaDesk Software as well as that the customer is aware of any changes in the applicable legal documents. In the event the customer cannot agree on any changes in any applicable legal document, the customer will immediately cease any and all use of the API and, where applicable, any and all use of the NomaDesk Software.
The customer acknowledges and agrees that the customer's use and/or modification of the API will be at the customer's own risk and account.
7.8.
The customer acknowledges and agrees that any IP Rights arising directly from the API are the exclusive ownership of Aventiv or its licensors without any compensation to the customer. Insofar as necessary, this Agreement serves as a deed of assignment of all of the customer's right, title and interest in and to such API modifications to Aventiv, notwithstanding the customer's obligation to cooperate with Aventiv in order to finalize any other deed upon Aventiv's first request. The customer hereby irrevocably waives to the extent permitted by law any moral rights relating to the customer's API modifications. The customer furthermore represents and warrants that (a) the customer is authorized to assign the customer's rights as stated above and (b) the customer's API modifications are correct and accurate and (c) the API modifications do not infringe upon any third parties' rights, including but not limited to intellectual property rights.
7.9.
If the customer is interested in doing anything else than permitted under this Agreement or by the Distribution Terms, the API Terms or the NomaDesk/Aventiv Promotional Materials Terms, the customer will have to obtain Aventiv's written consent and agree on any further (commercial) terms.
7.10.
In order to receive the benefits provided by the NomaDesk Software and the NomaDesk Service, the customer hereby grants permission for the NomaDesk Software to utilize the processor, storage media and bandwidth of the customer's computer for the limited purpose of facilitating internet storage, document sharing, collaborative applications and any other applications that may be explicitly provided by Aventiv.
7.11. Exclusive Ownership
The customer acknowledges and agrees that any and all IP Rights are and shall remain the exclusive property of Aventiv and its licensors. Nothing in this Agreement intends to transfer any IP Rights to, or to vest any IP Rights in, the customer. The customer is only entitled to the limited use of the IP Rights granted to the customer in this Agreement. The customer will not take any action to jeopardize, limit or interfere with the IP Rights. The customer acknowledges and agrees that any unauthorized use of the IP Rights is a violation of this Agreement as well as a violation of intellectual property laws, including without limitation copyright laws and trademark laws.
7.12.
The customer agrees that the customer will not remove, obscure, make illegible or alter any notices or indications of the IP Rights and/or Aventiv's rights and ownership thereof.
7.13.
The customer acknowledges and agrees that the intellectual property rights regarding any translations made by the customer of any information on or accessible through the NomaDesk/Aventiv Website or as otherwise requested of the customer by Aventiv at any time prior to or subsequent of the Effective Date will be and remain the sole and exclusive property of Aventiv without any compensation to the customer. Insofar as necessary, this Agreement serves as a deed of assignment of all of the customer's right, title and interest in and to such translations to Aventiv, notwithstanding the customer's obligation to cooperate with Aventiv in order to finalize any other deed upon Aventiv's first request. The customer hereby irrevocably waives to the extent permitted by law any moral rights relating to the customer's translations. The customer furthermore represents and warrants that (a) the customer is authorized to assign the customer's rights as stated above and (b) the customer's translations are correct and accurate and (c) the translations do not infringe upon any third parties' rights, including but not limited to intellectual property rights.
7.14.
The customer is not allowed to use the NomaDesk/Aventiv Promotional Materials, unless the customer has agreed on and meets with the NomaDesk/Aventiv Promotional Materials Terms. These Terms are available upon simple request via promo@Aventiv.com.
8.1.
The amounts for which the customer is liable pursuant to this Contract will be charged monthly and will be processed via an automated payment processing system chosen by Aventiv.
Aventiv has the right to change the payment procedure and/or payment processing system at its own discrection, without notifying the customer.
8.2.
In the event of the absence of payment on the due date, interest will be payable as of right and without formal notification in accordance with the law on payment arrears with a minimum of 9.5%, as well as automatic compensation for late payment amounting to 10% with a minimum of € 250 and a maximum of € 2500.
8.3.
Any protest must be submitted within a month of the posting of the invoice. The invoice date is held to be the date of posting. Protests must be submitted within this period of time in order to be valid.
9.1.
Aventiv can only be held liable insofar the customer proves that Aventiv has committed a gross error, in the event of intent, or if Aventiv fails to perform an undertaking/a commitment that constitutes one of the main elements of the contract. The liability of Aventiv is limited to the restoration of the foreseeable, direct and personal loss that the customer has sustained, to the exclusion of all indirect or intangible loss such as, but not limited to business loss, loss of revenue or profit, loss of customers or contracts, loss or damage of data and supplementary costs. In all cases is our liability limited to a sum of no more than € 7,500 per annum, regardless of the number of claims made in that year.
9.2.
Aventiv cannot be held to be liable for delays or deficiencies in the performance of our services and the consequences of same in the event of facts or circumstances beyond the will of Aventiv, such as, but not limited to war, rebellion, riot, actions by civil or military authorities, explosions, strikes or labor conflicts, flood, prolonged frost, fire or storm. Equally Aventiv cannot be held liable if the customer fails to perform his obligations.
9.3.
Aventiv merely makes the NomaDesk Service available. The content of the communication that the customer achieves by the use of the NomaDesk Service remains in all cases the responsibility of the customer and Aventiv is not expected to limit or supervise same, nor can Aventiv be held responsible for the content of this communication.
The customer acknowledges that Aventiv has no control over the information, quality, safety or price of data, programs, or services on the internet that the client or third parties may have access to via the NomaDesk Service, and that Aventiv does not examine the information that the customer transmits, downloads or uploads. Aventiv excludes all possible liability relating to the content of the transmitted or received information regardless of its nature. The making available and exchange of data on the internet by the customer takes place at his own risk. The customer holds Aventiv free from all claims that third parties may institute against Aventiv by reasons of the incorrect or unlawful use of the NomaDesk Service by the customer. The customer must also adopt all necessary measures to protect the integrity and confidentiality of the data, among other things against viruses and computer criminals.
Furthermore Aventiv is not liable for actions or the negligence of other providers of communications services, nor for defects or deficiencies in their hardware.
9.4. Transfer
The customer may not transfer this contract or a part of same to another (juristic) person or entity without the express authorization of Aventiv. All rights and duties arising from the contract are transferred to the acquirer, and he accepts same. Acquirer and transmitter must supply Aventiv with a statement signed by both parties acknowledging the transfer of the contract. The customer remains liable for the satisfactory performance of the contract by acquirer at all times.
10.1.
In the event of non-payment on the due date Aventiv may, without prejudice to the application of article 8.2., and subject to prior formal notification of the (intention) to suspend the performance of its undertakings, refuse reactivation or repair until the payment of all outstanding sums without prejudice to its right to pursue the cancellation of the Contract.
10.2.
Should the customer not correctly perform his undertakings arising from this Contract, should the customer be in a state of suspension of payments, or should the customer have applied for a court-ordered composition or have filed an application for debt mediation, or if the customer has failed to perform essential undertakings arising from another contract between the customer and an enterprise belonging to the Aventiv group, Aventiv may as of the second working day following notification suspend the connection until the customer complies with all its obligations, or refuse reactivation or repair, or terminate the contract automatically and as of right without formal notification and without compensation. In such cases the customer will be liable for the compensation as set out in article 6.3.
10.3.
In the event of extreme urgency, formal reminder by a third party, or in the event of an order and/or injunction by an official authority or a court, Aventiv may suspend with immediate effect the connection or terminate the contract automatically, at once and as of right, without any formal notification being required. In such cases the customer will as quickly as possible be sent a written notification in which Aventiv sets out the reasons for the suspension or termination.
10.4.
In all other cases of termination, with the exception of what is provided in article 6.3, whether by the customer or by Aventiv, the subscription fees and other charges for specific services used by the customer, remain payable until the day on which the contract is effectively terminated, where these will be determined on a pro rata temporis basis.
This contract is governed by Belgian substantive law. Every dispute about the formation, interpretation or performance of the contract will be submitted exclusively to the courts at Ghent, Belgium. In the event of one or more provisions of these general conditions being invalid or void, the validity of the other provisions will not be affected.
"Order Form"
(Electronic) Order form that the customer receives and completes in order to order services from Aventiv. An activation notice received after the signing of the order form is regarded as acceptance.
"End Hardware"
The hardware that does not form part of the Aventiv Network and which the customer uses to make use of the NomaDesk Service, such as among other things a work station and all other hardware and software used by the customer for obtaining access to the internet, but not including the Aventiv Software.
"On-line communications and electronic mail"
Every form of electronic communication between the End Hardware of the customer and the Aventiv Network such as the transmission or receipt of messages (electronic post or email) or the completion, uploading or downloading of electronic documents, forms or displays.
"Aventiv Network"
Consists of the servers, storage systems and network systems in the Aventiv data centre which are the property of Aventiv or are controlled by Aventiv.
"API"
Application program interface that is included in or linked to the NomaDesk Software.
"IP Rights"
Any and all intellectual property rights, including but not limited to copyrights, trademarks and patents, as well as know-how and trade secrets contained in or relating to the NomaDesk Software and the NomaDesk Service, the Documentation, the NomaDesk/Aventiv Website or the NomaDesk/Aventiv Promotional Materials.
"NomaDesk Service"
The Service provided by Aventiv related to the usage of the NomaDesk Software, including data centre services, data storage and synchronization services on the NomaDesk Server, data integrity services on the NomaDesk Server (e.g., backup and restore), data security services, web based data access services, helpdesk services, as well as any future service related thereto.
"NomaDesk Server"
The server infrastructure, consisting of hardware and operating system software, owned by Aventiv, installed at data centre facilities controlled by Aventiv, and used in the framework of this Agreement.
"NomaDesk Software"
The software distributed by Aventiv for internet storage, document sharing and collaborative applications, including without limitation the API, UI and Documentation, as well as any future programming fixes, updates and upgrades thereof.
"NomaDesk/Aventiv Website"
Any and all elements and contents of the website available - among other URL's - under the URL www.Aventiv.com and the URL www.NomaDesk.com, from which website the NomaDesk Software can be downloaded and the NomaDesk Service can be configured.
"Open Source Software"
Any and all software, which is subject to the General Public License (GPL), Lesser General Public License (LGPL), Debian License, Apache License or any alternative open source license.
"UI"
The user interface of the NomaDesk Software.
© 2008 by Aventiv - NomaDesk Terms and Conditions - 20080908
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