Terms of Service

Filed with the Dutch Chamber of Commerce under registration number 88287165

1.1     These Terms of Service form an integral part of the Agreement concluded between MyCumulus and the Customer and apply to any Consultancy Services that MyCumulus provides the Customer under the Agreement.

1.2     Unless otherwise explicitly stated, the terms defined herein have the same meaning as the corresponding terms in the Agreement. 

1.3    Definitions:
"Agreement" refers to the Specific Terms, these Terms of Service and all annexes appended thereto;
"Confidential Information" is all oral or written information relating to the Agreement, and all trade secrets or confidential or proprietary information that the disclosing Party explicitly designates confidential or which shall reasonably be understood as confidential by a person familiar with the disclosing Party's business and industry (see Section 9.);
"Consultancy Services" include such training, data migration and similar Consultancy Services that MyCumulus provides the Customer from time to time;
"Customer Data" comprises the data or other information that the Customer or any party acting on the Customer's behalf provides MyCumulus for purpose of the Service Provision;
“Description of Support” refers to the technical assistance measures described on the website www.mycumulus.com/en/support/;
"Force Majeure" has the meaning stated in Section 14. below;
"Fee(s)" designate(s) the fee(s) payable for the Service Provision and any Consultancy Services as specified in the Specific Terms;
"Party/ies" individually or jointly refer to MyCumulus and the Customer;
“Personal Data” has the same meaning given it in the GDPR;
"Price List" refers to the Price List published and periodically updated on the website www.mycumulus.com/en/plans; 
"Service Provision" comprises the service(s) provided by MyCumulus under the Agreement, as described in the Specific Terms;
"Security Information" has the meaning defined in Section 3.4;
"Specific Terms" means the specific terms of the Agreement;
“Support” comprises the technical assistance described on the website www.mycumulus.com/en/support/; 
"Term" refers to the duration of the Agreement as specified in the Specific Terms;
"Terms of Service" refers to these general terms and conditions, which form an integral part of the Agreement;
"User" designates any individual in the Customer's organisation to whom the Customer has granted access to the Service Provision.

2.1    The Service Provision concerns software as a service (SaaS). Subject to the prompt payment of the Fees, MyCumulus hereby grants the Customer a limited, non-transferable and non-sub-licensable right to the Service Provision for its own business and in accordance with the Agreement.

2.2     The Service Provision may only be used professionally in connection with the Customer's business and in accordance with the purpose described in the Agreement. The Service Provision may not under any circumstances be used for criminal, unlawful or immoral purposes, including but not limited to acts that:

• allow, support or facilitate criminal or otherwise unlawful activity by the Customer or third parties;
• are generally considered to facilitate or allow said acts, or otherwise deemed disruptive, offensive or inappropriate; 
• are contrary to generally accepted ethical and moral values.
  
  

2.3    MyCumulus is not required to screen, audit, monitor or filter any Customer Data and/or processing activity to discover any criminal, unlawful or immoral behaviour by the Customer. If, however, any such Customer behaviour is discovered or brought to MyCumulus’s attention and notwithstanding the provisions in Section 13. (Audits) and 7. (Termination), MyCumulus may:

• notify the Customer to request information and/or demand that the Customer act in compliance with the Agreement and applicable law;
• deny the Customer further access to the Service Provision;
• temporarily or permanently remove Customer Data from the account or provided services.

2.4     The Customer may also purchase Consultancy Services in accordance with the procedure and conditions set forth in the Specific Terms.

3.1     The Customer shall only utilise the Service Provision in accordance with the terms of the Agreement and any documentation that MyCumulus stipulates.

3.2.    In order for MyCumulus to perform its obligations under the Agreement, the Customer is responsible for:

• reviewing the documentation provided by MyCumulus, taking motivated decisions based on the documentation, as well as obtaining any required authorisations regarding such information;
• guaranteeing good co-operation with MyCumulus, providing it with any necessary information and making sure that all the resources required by MyCumulus for the execution of the Service Provision (including any Consultancy Services) are provided to it;
• providing internet access to the facilities where MyCumulus provides services to the Customer, as well as providing the equipment and software that, according to MyCumulus, are required to use the provided services or that otherwise are necessary for such use;
• implementing and maintaining appropriate security measures and standards to protect Security Information and to prevent unauthorised access;
• faults and defects in the Customer's software and systems; and
• adequate back-up of the Customer's data.

3.3.     The Customer is solely responsible for the use of the provided services and any acts or omissions by Users that have been given access to said services. MyCumulus bears no responsibility in this regard. The Customer shall provide all Users with appropriate training to ensure compliance with this Agreement and that the use of the Service Provision by the Users will at all times comply with the provision of this Section and Section 2.2 above.

3.4    The Customer shall retain all usernames, passwords and other User and account data ("Security Information") in a careful and secure manner that prevents unauthorised access. The Customer shall promptly inform MyCumulus of any unauthorised use of or access to the Security Information.

3.5    The Customer is responsible for any unauthorised use of the Service Provision in the event that the Customer (i) provides third party access to the Service Provision without MyCumulus' prior written consent; (ii) handles Security Information in a negligent manner or (iii) fails to report suspected unauthorised access to the Security Information.

3.6    The Customer shall duly notify MyCumulus of any attempted infringements or security attacks involving the Service Provision that it comes to suspect or detect, and implement any measures necessary to prevent and/or minimise any such damage or loss.

4.1     The Customer shall, for the purpose of any Consultancy Services, provide access to the Customer’s systems, third party systems, personnel and equipment to the extent required for the performance of the Consultancy Services.

4.2    For the purposes of the Consultancy Services and in addition to the Customer's obligations pursuant to Sections 3 and 2.2 above, the Customer shall:

(a)     promptly notify MyCumulus of any update or change to the Customer’s software or third-party service that could affect the Service Provision or any integration of the Customer's systems and the Service Provision;
(b)    allow MyCumulus reasonable time to perform any subsequently required Consultancy Services due to such update or change; and
(c)     arrange for the communications with any third parties required for the proper and prompt performance of any Consultancy Services. 

5.1    MyCumulus will execute the Service Provision in accordance with the provisions of the Agreement from a website controlled by MyCumulus, and perform the agreed Consultancy Services. MyCumulus undertakes to fulfil its obligations under the Agreement with due care and in a professional manner, implementing the methods and standards generally applied by MyCumulus for these types of services.

The components involved in the MyCumulus Service Provision are:

• Back-end
• Web application
• MyCumulus app
• Pythagoras macro

5.2    By utilising the Service Provision, the Customer shall be able to:

• Collect, store and organise Customer Data;
• Modify and delete Customer Data;
• Customise the standard features of the Service, all this to the extent offered;
• Use support and directions from MyCumulus regarding the use of the Service, upon reasonable request. 

5.3    MyCumulus will provide the Customer with the instruction reasonably required to commence use of the provided services on the start date of the Term or on another date otherwise agreed between the Parties.

5.4    MyCumulus will provide the Customer with Support during the term of the Agreement upon reasonable request, keep the Services operational and provide regular maintenance, and supply the Customer with support and bug fixes from time to time, all this to the extend as agreed upon.

Unless otherwise specified in the Description of Support, MyCumulus shall respond to requests for Support by the Customer as soon as reasonably possible. The contact details for all requests for Support are:

• E-mail: support@mycumulus.com
• Phone: +31 85 080 55 27
• Built-in notification application on the website www.mycumulus.com

5.5    MyCumulus is authorised to engage subcontractors (including third party software providers) for the performance of the Service Provision and its obligations under the Agreement.

6.1    The Customer shall pay the Fees stipulated in the Specific Terms or otherwise specified in MyCumulus's valid Price List. Fees will remain unchanged for the first year of the Agreement. Thereafter, MyCumulus may adjust its Fees on 1 July of each year based on the differences indicated in Statistics Netherlands (CBS) Services Producer Price Index (SPPI), series 2015=100, Classification 6202 (Computer Consultancy) from January to January of the previous year. If the Customer does not agree to an adjustment of the Fee(s), the Customer may, supplementary to the provisions of Sections 15.1 and 15.2 below, terminate the Agreement no later than the effective date of the adjusted Fee(s) with observance of a one (1) month period of written notice. If the Agreement is not terminated by the Customer, taking into account the above, the Customer is deemed to indicate the Customer's acceptance of the adjusted Fee(s). For the sake of clarification and notwithstanding the foregoing, MyCumulus shall always be entitled to set amended commercial prices on expiry 'of the Term if, in its opinion, market circumstances so require.

6.2    Unless otherwise agreed, payments shall be made to MyCumulus within fourteen (14) days following the invoice date. In the case of late payment, the Customer is in default. MyCumulus is authorised to charge the Customer interest on any overdue payment at a rate 8 per cent above the current statutory interest rate but not exceeding fifteen (15) per cent in total per year. The Customer shall reimburse MyCumulus for the costs of collecting overdue payments. If the Customer is in default, this entitles MyCumulus to suspend its Service Provision and to deny the Customer access to both the Service Provision and the Customer’s account(s). The Customer waives the right to settle a debt to MyCumulus with a claim on MyCumulus.

6.3    All Fees are stated net of VAT and any other applicable tax or surcharge.

7.1    The Term of the Agreement is stated in the Specific Terms.

7.2    MyCumulus may terminate the Agreement with immediate effect and without being liable to the other Party, if any of the following occur: 

• The Customer commits a material breach of its obligations under the Agreement and does not rectify the breach within thirty (30) days following receipt of written notice from MyCumulus;
• The Customer files a petition for bankruptcy, is declared bankrupt, is subject to corporate reorganization, applies for suspension of payments, goes into liquidation or can otherwise be deemed insolvent; or
• The Customer has repeatedly breached any provision of the Agreement and has not duly rectified the breach on receipt of request thereto.

7.3    Termination of the Agreement must occur in writing.

7.4    On termination or expiry of the Agreement, the Customer shall immediately cease to utilise the Service Provision and pay any outstanding Fees to MyCumulus.

7.5    Either Party shall, in accordance with the instructions of the other Party, return or destroy all Confidential Information received or created in connection with the Agreement and permanently delete any copies thereof. This does not include Confidential Information which a Party is required to retain pursuant to applicable law or Confidential Information that is stored by a Party on routine back-up media for the purpose of disaster recovery and subject to destruction in due course. Accordingly, latent data such as deleted files and other non-logical data types that can normally only be retrieved by computer forensics experts and is generally considered inaccessible without the use of specialised tools and techniques will not be subject to the requirements for return or destruction of Confidential Information.

8.1    The Service Provision is generally available 24 hours a day, unless otherwise stated in the Specific Terms or Description of Support, or due to Force Majeure pursuant to Section 14. (Force Majeure). 

8.2    The Service Provision consists of a standard SaaS provided "as is". MyCumulus does not explicitly or implicitly guarantee that the Service Provision will meet the Customer's requirements and expectations, or that the operation or utilisation of the Service Provision will be uninterrupted or error-free. Any implicit guarantees related the Service Provision with regard to its satisfactory quality or fitness for a particular purpose are specifically excluded.

8.3    The Customer hereby accepts that all defects, errors or interruptions in the Service Provision will be rectified solely and exclusively in accordance with the Description of Support. The measures stipulated by MyCumulus in the Description of Support indicate the maximum extent of MyCumulus's liability regarding defects, operational failures, errors or disruptions in the Service provision, and the like. Hence, the Customer's right to damages or compensation for operational disturbances, defects, errors or interruptions in the Service Provision are exclusively limited to the Support measures stated in the Description of Support. 

8.4    MyCumulus shall not be in any way liable to the Customer or any User for any consequential or indirect damages of any kind, including but not limited to lost profits, lost turnover, lost revenue or established financial disadvantages as a result of the impossibility of using the Service Provision, or as a result of loss of Customer data or other data or information, based on tort, negligence, or otherwise. 

8.5    Any liability of MyCumulus under any circumstances shall be limited to the amount of the Fees for the Service Provision that has been invoiced by MyCumulus to the Customer during the six (6) months preceding the date of the incident giving rise to a claim against MyCumulus, and which has been paid by the counterparty on time, with a maximum of €35,000 (thirty-five thousand euros) per event or related events. MyCumulus will not accept any liability relating to its Service Provision to the Customer during a trial period free of charge. MyCumulus also does not accept any liability for damage or loss resulting from defects, errors or interruptions in the services of third parties, such as Amazon Web Services, on which MyCumulus’s Service Provision depends. Such situations are considered Force Majeure within the meaning of Section 14.

8.6    Any limitation or exclusion of liability of MyCumulus shall not apply to damage or loss due to the wilful intent or deliberate recklessness of MyCumulus or its managerial subordinates.

8.7    The Customer shall indemnify MyCumulus from and against all claims, liabilities, damages, losses and expenses (including reasonable attorneys' fees) arising from or in any way connected with third-party claims relating to the Customer's utilisation of the Service Provision in breach of the terms of the Agreement (including actions by a third party using the Customer's account).

9.1    The Parties shall, at all times, handle Confidential Information acquired in connection with this Agreement in a strictly confidential manner and not disclose such information to third parties or, by omission, allow third Parties to gain knowledge of Confidential Information.

9.2    For the purpose of the Agreement, "Confidential Information" shall mean all oral or written information relating to the Agreement, and all trade secrets or confidential or proprietary information that the disclosing Party explicitly designates as confidential or which shall reasonably be understood as confidential by a person familiar with the disclosing Party's business and industry in which it operates.

9.3    The Parties shall protect Confidential Information and prevent any unauthorised use or disclosure of said information. The Parties shall ensure that employees and other hired personnel and consultants comply with the confidentiality obligation stated herein.

9.4    The confidentiality obligation does not apply to:

• information that a Party comes to know otherwise than through this Agreement;
• is in the public domain or will enter the public domain without breach of this Agreement; or
• information rightfully received by a Party from a third party not subject to a confidentiality obligation.

9.5    A Party may disclose Confidential Information to the extent required by law, by a court of competent jurisdiction or a competent government authority, providing said Party gives reasonable prior notice to the other Party, unless such notice is prohibited by applicable law or a court order.

9.6     Notwithstanding the confidentiality obligation stated herein, MyCumulus may use the Customer's name and brand for marketing purposes. 

9.7    The other Party will never acquire any right, title, interest in, licence or right to use the disclosing Party's Confidential Information.

10.1    Unless explicitly agreed in writing, nothing in this Agreement shall be interpreted as a transfer of any intellectual property rights whatsoever. Either Party shall retain any and all of its intellectual property rights. Any intellectual property rights created or conceived during the Term shall vest in the Party developing such intellectual property rights.

10.2    MyCumulus is the owner and/or holder of rights (and retains all rights) to all products and services, and related materials, software, source code, instructions, documentation and tools, and all other related information and know-how involved in the Service Provision or any Consultancy Services, including copyright and other intellectual property rights related to the provided services, components, related documentation and know-how.

10.3     The Customer shall immediately notify MyCumulus of any detected or suspected infringement of any intellectual property rights in or to the Service Provision. MyCumulus is however not required to defend such rights. If MyCumulus chooses to defend its rights, the Customer shall assist MyCumulus at its own expense and to a reasonable extent. For the sake of further clarification, the Customer shall not be required to incur any external legal costs in relation to such dispute but shall make its personnel available to assist MyCumulus and its legal counsel.

11.1    The Parties shall at all times act in accordance with applicable data privacy legislation (GDPR). The MyCumulus privacy policy published and periodically updated on www.mycumulus.com is applicable. This policy will be sent to the Customer when entering into the Agreement. Please carefully read the privacy policy to learn about the conditions under which MyCumulus processes, uses and discloses your Personal Data.

Important notice! 

11.2    The Service Provision is not designed for nor capable of the processing, collection, storage, transfer or use of Personal Data. Moreover, MyCumulus does not hold or collect any User access data and/or Personal Data relating to Service Provision Users. The Customer, being the person responsible, allows Users to use the Service Provision and sets the conditions for accessing it. Access or User codes and/or passwords, are anonymous to MyCumulus, and cannot and will not be traced back to any Personal Data or Person by MyCumulus. The Customer is not allowed to use the Service Provision for the processing, collection, storage and/or transfer of Personal Data. By using MyCumulus services, the Customer guarantees MyCumulus that its Service Provision will not be used for any such purposes. The Customer shall indemnify MyCumulus from and against any claims, actions or demands, including but not limited to reasonable attorney and accounting fees, relating to or resulting from any breach of this guarantee.

12.1    The Customer is the holder of and retains all rights in and to the Customer Data. 

12.2    The Customer is liable for and shall indemnify MyCumulus from and against any infringement of any third party right or any other non-compliance with applicable law related to or as a result of the application or use of its Customer Data.

12.3    MyCumulus does not accept any liability for damages resulting from the deletion of, corruption of, loss of or failure to store any Customer Data except when such damages are due to the wilful intent or deliberate recklessness of MyCumulus or its managerial subordinates.

12.4    Notwithstanding the obligations stipulated in Section 7.5 (Confidential Information), MyCumulus will, on termination of the Agreement, agree with the Customer on the best method of transferring the data and/or digital assets. The work involved is not included in the Agreement. A quotation will be provided based on the agreed specifications of the transfer of data, including data format and hardware/media to be used.

13.1     At any time during the Term, MyCumulus (or an authorised representative of MyCumulus) shall have the right but, in accordance with Section 2.3 above, not the obligation to conduct audits concerning the Customer’s activities in order to determine whether the Customer fulfils the obligations of the Agreement. The Customer is solely responsible for the use and the manner of use of the provided services and for acting in accordance with the provisions of the Agreement in relation thereto.

13.2     The Customer shall, at any reasonable time and on receipt of reasonable notice, fully cooperate with MyCumulus in order to enable MyCumulus to assess if the Customer fulfils the obligations under the Agreement, such as the Customer's obligations pursuant to Sections 2.2, 3 and 11.2.

14.1    MyCumulus shall be exempted from performing its obligations under this Agreement if said non-performance is caused by a circumstance that is beyond the control of MyCumulus and that prevents or considerably impedes fulfilment of said obligations in due time ("Force Majeure"). 

14.2     Force Majeure includes but is not limited to fire, flood, earthquake, elements of nature, public electrical utility failure, acts of war, terrorism, riots, civil disorders, national or international pandemics, rebellions or revolutions, strikes, lockouts, or labour disputes, court order, delays, disruptions or outages of the Internet or telecommunications networks, third party non-performance or any other similar cause.

14.3    MyCumulus will immediately notify the other Party of any Force Majeure to which it is subject. If this Agreement cannot be properly fulfilled for more than three (3) months due to Force Majeure, the other Party has the right to terminate the Agreement with immediate effect and without compensation by providing simple written notice. MyCumulus shall make reasonable efforts to limit the consequences of Force Majeure but shall not be liable for damages as a result thereof.

15.1    MyCumulus is entitled to modify or adjust all or part of its Service Provision, providing the performance or functionality of the services is not significantly affected. If said modification or adjustment significantly affects the functionality of said services, MyCumulus shall notify the Customer of this altered functionality within a reasonable period, describing in any case the urgency of the alteration or adjustment and offering the Customer the opportunity to terminate the Agreement with due observance of a one (1) month period of written notice.

15.2    MyCumulus may, at its sole discretion, make amendments to the Terms of Service. The Customer will be notified of any such amendments at least one (1) month before they come into effect. If the Customer does not consent to a given amendment disadvantageous to the Customer, it may, no later than the effective date of the amended Terms of Service, terminate the Agreement with due observance of a one (1) month period of written notice. Failure to terminate the Agreement in accordance with the foregoing shall be deemed to indicate the Customer’s acceptance of the amended Terms of Service.

15.3    The Customer may not assign its rights under this Agreement to a third party without MyCumulus’s written consent. MyCumulus shall however be entitled to assign the Agreement to a third-party company or to any subsidiary or affiliate in its group of companies.

15.4    Should any provision of the Agreement or any part thereof be or become to any extent invalid or unenforceable, the Parties shall act in all reasonableness and good faith to agree on necessary and reasonable amendments to these Terms in order to safeguard the vital interests of the Parties and the overriding objectives prevailing at the time of their performance.

15.5    These Terms of Service have been drawn up in the Dutch language and translated into English. Wherever the wording of the English translation deviates from the Dutch version in a manner giving rise to a difference of interpretation, the Dutch version of the Terms of Service Provision shall prevail.

16.1     The Agreement is subject to Dutch law.

16.2    All disputes arising from the Agreement will be brought exclusively before the District Court of Amsterdam.