Terms and Conditions (EMEA Only – Europe, Middle East, and Africa)
- 1.1 Acceptable Use Policy: A description of what Lytho may be used for and what it may not be used for as published on the Lytho website and as updated from time to time;
- 1.2 Active User: A User that has been created in Lytho, can gain access to Lytho and has not been de-activated.
- 1.3 Administrator User: A User with rights to create new Users, assign Services to Users and to set Dashboard parameters;
- 1.4 Agreement: The Order(s) and these conditions;
- 1.5 Confidential Information: any information from a Party the receiving Party must reasonably understand to be confidential, which includes (i) any information of a disclosing party clearly marked as “confidential information”, (ii) this Agreement, the Lytho functionality, the Lytho documentation and all underlying logic and methods, (iii) data stored in Lytho, (iv) commercial business information including customers, prices, business relations, business methods, financial information. However, information that is (i) publicly available, or (ii) obtained independently without violation of this Agreement, or (iii) obtained from third parties without restrictions on disclosure, is no “Confidential Information”;
- 1.6 GDPR: Regulation (EU) 2016/679 of 27 April 2016, also known as the General Data Protection Regulation;
- 1.7 Documentation: Written materials issued by Lytho that describe the functionality of Lytho;
- 1.8 Intellectual Property Right: All rights designated as “Intellectual Property Rights” under applicable law, including copyrights, trademarks, patents and including all registrations and applications of such rights;
- 1.9 Login Details: Information required by a User to gain access to Lytho;
- 1.10 Lytho: The online services provided under this Agreement, including its Documentation;
- 1.11 Notice: A written message by mail with receipt confirmation, facsimile or e-mail. In case of e-mail the Notice is deemed to have been given upon confirmation of receipt (which includes auto-receipt messages) and in all other cases on the date as per the receipt confirmation;
- 1.12 Order Form: The first page of this Agreement specifying the pricing of Lytho and confirming the Agreement between the Parties;
- 1.13 Party: the Customer and/or Lytho;
- 1.14 Services: Specific feature-groups of Lytho for which different pricing exists.
- 1.15 Term: The period for which the agreement has been entered into as provided in the Order Form;
- 1.16 User: Individual accessing Lytho on behalf of Customer;
Words starting with a capital have the meaning as defined in clause 1; ‘Including’ means ‘including but not limited to’; A definition of a singular applies also to the multiple thereof; A definition of a verb applies to all conjugations of it.
3. Rights of Customer
- 3.1 Customer shall receive Login Details for an Administrator User from Lytho.
- 3.2 Customer receives the right to have Users use Lytho and store and process data in Lytho as described in the Documentation. The Administration User shall assign specific Services and rights to Users.
- 3.3 Access to the Lytho Dashboard for Administration Users providing insight in the development of the use of Lytho by Customer, including a warning system for growth of Lytho use as described in the Documentation.
- 3.4 In case Lytho is used by Customer to process data in any unlawful way, for any unlawful purpose or in breach of the Acceptable Use Policy this shall be considered a material breach of this Agreement by Customer.
4. Ordering, pricing and invoicing
- 4.1 Customer places an order through an Order Form. The Order form contains the minimum use, pricing and the Term.
- 4.2 Customer may use the Administrator User to create additional Users and to de-activate them. A User is de-activated if all Services for the User have been switched off.
- 4.3 Customer shall be invoiced prior to or at moment of the start of the Term for the minimum use agreed in the Order Form. In case Lytho is being used above the agreed minimum Customer shall be invoiced immediately after the end of each month at the prices in the Order Form for (i) each User for the Services activated for that User any moment during that month above the agreed minimum and (ii) for all data uploaded to Lytho above the agreed minimum during a month and (iii) all data downloaded from Lytho above the agreed minimum during a month.
- 4.4 The payment term for invoices is 14 days. After 14 days Notice shall be given that payment was not received and another 14 days term shall be given. If no payment is received after this second term of 10 days the Lytho services to Customer shall be suspended until full payment has been received. Customer shall not be entitled to terminate this Agreement and shall be required to pay all fees in case of a suspension of service based on this paragraph.
- 4.5 In no circumstance shall Customer be entitled to a refund of fees due or paid.
- 4.6 Lytho is entitled to change the prices and/or these Terms and Conditions once a year. This change will not exceed the increase of the Harmonised Index of Consumer Pricing (HICP).
- 4.7 Customer is not entitled to set-off payment obligations under this Agreement against any existing or potential payment obligation of Lytho to Customer.
- 4.8 All prices are excluding any applicable VAT, duties or sales taxes.
5. Term and termination
- 5.1 This Agreement commences at the moment the Administration User Login Details have been provided to Customer and continues for the Term. After a Term the agreement shall be extended for another period equal to the Term unless either Party provided Notice of termination at least one month prior the end of the then current Term.
- 5.2 Lytho may terminate this Agreement in case of material breach of this Agreement by Customer and the breach has not been cured within 10 days after Notice of such breach has been given by Lytho.
- 5.3 Lytho may terminate this Agreement in case reasons exist to seriously doubt if the Customer shall be able to continue to fulfill its obligations under this Agreement, which includes situations of bankruptcy, insolvency and discontinuation of the regular business activities of Customer.
- 5.4 Lytho is entitled to terminate this Agreement if Customer has not paid within 15 days after suspension of services based on clause 4.4.
- 5.5 Lytho is entitled to terminate this Agreement for any free-of-charge Users with a 30 day Notice.
- 5.6 Termination of this Agreement for other reasons than explicitly stated in this Agreement is excluded – to the extend applicable law permits such exclusion.
- 5.7 Lytho provides for data retrieval functions of all Customer data in the LYTHO database at any time. It is Customers responsibility to retrieve all Customer data
prior to termination of this Agreement. After termination of this Agreement Lytho shall permanently erase all customer data from the LYTHO database within 14 days after termination and shall not keep any copy of the Customer data.
- 5.8 Except for clause 3 all clauses of these Terms & Conditions survive termination of this Agreement.
6. Confidentiality and Intellectual Property
- 6.1 Both Parties shall protect the other Party’s Confidential Information in a way at least as protective as it protects its own business secrets. Each Party shall exclusively allow access to Confidential Information of the other Party to persons on a need-to-know basis for the proper execution of this Agreement.
- 6.2 Parties shall be authorized to disclose Confidential Information if required to do so by any competent court of law or competent regulatory authority, provided that (i) such disclosure is covered by protective measures which reasonably protect the other Party’s interests and (ii) the disclosing party has given prompt Notice to the disclosing Party of the Confidential Information to prevent such disclosure through appropriate legal means – to the extent that Party is at liberty to provide such message.
- 6.3 This agreement does not provide or imply any transfer of any Intellectual Property Right from one Party to the other. The use and copying of any screens or Documentation of Lytho is allowed under this Agreement to the extend required for the effective use of Lytho. Customer shall not copy materials of Lytho protected by any Intellectual Property Right for any other purpose.
Lytho strives the functionality of Lytho to be materially functioning in accordance with the documentation. Lytho intends to make Lytho available continuously. Lytho does not warrant uninterrupted service nor does Lytho warrant that the system shall meet the expectations of customer. Even though Lytho makes all commercially reasonable efforts to prevent flaws in the provided functionality and availability of Lytho, Lytho does not warrant that no faults in the functions or availability shall exist. The functionality may and shall develop over time and it is up to the sole discretion of Lytho what the content of such development shall be.
- 8.1 Lytho shall not be held liable for any damages Customer may suffer as a result from using Lytho for more than the fees paid in the year directly prior to the moment of the event causing the damages. Lytho shall not be liable for any damages caused by the use of Lytho by Customer for (i) damages suffered by third parties, (ii) loss of profits or loss of revenues (iii) damages resulting from disruption of business processes of Customer and (iv) damages following from loss of data. This limitation of liability shall apply to any and all causes of action brought by Customer against Lytho, including claims based on breach or repudiation of contract, warranty or tort.
- 8.2 The limitation of liability shall not apply in case of willful misconduct, willful negligence, fraud and in case of bodily harm. The limitation on liability allowed to the maximum extend under applicable law shall apply to this Agreement in case applicable law does not allow limitation in accordance with this clause.
- 9.1 Customer shall indemnify Lytho for claims of third parties that are based on actions by Customer or any of its Users, including any and all content in Lytho created by Customer or any of its Users and including any claims for damages or fines by authorities and/or any other third party based on violation of the GDPR.
- 9.2 Lytho shall indemnify Customer for claims made by third parties against Customer that are based on the assertion that Customer breaches any Intellectual Property Right of such third party by the use of Lytho.
- 9.3 The indemnifying Party will provide indemnification under the conditions that the affected Party shall promptly provide Notice to the indemnifying Party of any such claim and the affected Party will fully authorize the indemnifying Party to represent it in its defense.
- 9.4 If as a result of any claim of infringement against any Intellectual Proprietary Right of any third party, Customer is enjoined from using Lytho, or if Lytho believes that the Software used for Lytho is likely to become the subject of a claim of infringement, Lytho may require Customer to immediately discontinue the use of Lytho in which case this Agreement shall terminate two days after Notice has been given, giving the Customer the opportunity to retrieve all Customer data from Lytho.
- 10.1 Customer may process data in Lytho that may include personal data as defined in the GDPR. Lytho shall prevent that anybody other than Users of Customer shall have access to data of Customer, which includes any personal data stored on behalf of Customer. Lytho is Processor in the meaning of the GDPR.
- 10.2 Lytho shall ensure a high level of security on all data processed by Customer in Lytho.
- 10.3 Customer shall keep Login Details secret except for the User for whom the Login Details have been created. Customer undertakes that Login Details do not reach any other person.
- 10.4 Lytho shall – on first request by Customer – provide to Customer audit reports from independent auditors that show GDPR compliance by Lytho and Lytho as Processor in the meaning of the GDPR.
- 10.5 Lytho uses data processing services of Amazon Web Services (AWS) for Lytho with explicit instruction to AWS to process data only inside the European Union. On first request Customer shall receive the then current agreements between AWS and Lytho with all relevant certifications and quality assurances of AWS relevant to GDPR compliance.
- 10.6 Lytho provides all functionality as standard features to enable Customer to fulfill its GDPR obligations concerning data transparency (reporting to Data subjects of which personal data is stored), correction, deletion, data retrieval and removal of Personal Data for which keeping it is no longer required. Using these functions in order to comply with the GDPR is responsibility of the Customer.
- 10.7 Lytho shall immediately inform Customer in case it becomes aware that unauthorized persons have gained access to data stored by Customer in Lytho (Data Breach). Lytho shall provide all required cooperation to Customer to minimize the magnitude and the effects of the Data Breach.
Any waiver of the provisions of this Agreement or rights or remedies of either Party must be provided by Notice. Failure, negligence or delay to enforce any such rights or remedies at any time, will not be construed as a waiver and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such Party’s right to make subsequent action.
If any provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the Parties will in good faith agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the Parties fail to agree on such an amendment, such invalid provision will be severed from the remaining provisions, which will continue to be valid and enforceable to the fullest extent permitted by applicable law.
This Agreement may be executed in two or more counterparts, each of which will be considered an original but all of which together will constitute one agreement.
14. Injunctive Relief
Parties acknowledge and agree that it would be difficult to fully compensate the other for damages resulting from the breach or threatened breach of this Agreement or of its Intellectual Property Rights and, accordingly, that each Party will be entitled to seek temporary and injunctive relief, including temporary restraining orders, preliminary injunctions and permanent injunctions, to protect its rights. This provision with respect to injunctive relief will not, however, diminish any right to claim and recover damages.
15. Standard Terms, entire agreement
No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with the use of Lytho will have any effect on the rights, duties or obligations of the Parties under – or otherwise modify – this Agreement, regardless of any failure of Lytho to object to such terms, provisions or conditions. This Agreement is the entire agreement for the use of Lytho by Customer. No documents are part of this Agreement – including any documents leading to this Agreement – unless explicitly referenced to in this Agreement. In case of discrepancy between terms agreed in the Order Form and these Terms & Conditions the terms of the Order Form prevail. The Customer agrees that her name may be used for Marketing purposes.
16. Force majeur
In case a Party is in breach of its obligations under this Agreement due to fire, flood, earthquake, exceptional wind, any natural disaster, war, riot, civil disorder, strike, lockout, disrupting labor dispute, embargo, quarantine or disrupting governmental action (Force Majeur), such Party is excused of performance from the moment it provides Notice of Force Majeur to the other Party. Breach of obligations due to Force Majeur shall be no ground for termination of this Agreement – without prejudice to clause 5, termination.
Neither this Agreement nor any rights or obligations under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Lytho. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns.
18. Applicable Law
- 18.1 The laws of The Netherlands shall govern, construe and enforce all of the rights and duties of the Parties arising from or relating in any way to the subject matter of this Agreement. The Vienna Convention on the International Sale of Goods shall not apply.
- 18.2 Any dispute arising out of or in connection with this Agreement that is not amicably resolved between the Parties shall exclusively be submitted to the district court in Amsterdam, The Netherlands.