With a Brandware brand portal you have all the tools to easily manage and share your guidelines and brand assets.
Version 1st of June 2018
Article 1 – Brandware
The actual deliverables and services are defined in the Agreement.
Article 2 – General
If there is an inconsistency between any of the provisions of the above mentioned agreements and/or documents, the provisions of the agreement/document with the lower number shall prevail in preference to the agreement/documents with the higher number.
Article 3 – Acceptance of the Entire Agreement
The individual(s) who sign(s) any agreement and/or document that is part of the Entire Agreement on behalf of Licensee represents that he or she has the authority to bind Licensee to the agreement/document signed by him/her. The Entire Agreement is considered accepted and assigned when Brandware has received the signed Agreement, General Terms and Conditions and a Purchase Order (when applicable and required for invoicing).
Article 4 – Subcontractors
Brandware uses third party service providers to perform all or any part of its obligations under the Entire Agreement. Brandware remains responsible to Licensee for the performance of its obligations even if these are subcontracted to third party service providers to the same extent as if Brandware performed these obligations itself.
Article 5 – Services
During the term of the Agreement Brandware offers Licensee services (“Services”) for maintenance (“Maintenance”), support (“Support”), Consulting (“Consulting”), hosting (“Hosting”) and documentation (“Documentation”) in accordance with the Entire Agreement.
Article 6 – Support
Licensee can contact the service desk of Brandware (“Service Desk”) during business days (Business Days) between 09:00 and 17:30 CET (“Business hours”) at the Client Portal ( https://clients.brandware.nl ) or email@example.com Business Days are all calendar days, except weekends and official Dutch public holidays. Licensee can send 24/7 an email to the Service Desk. If Licensee sends an email outside Business hours, the email is considered to be received by Brandware at 9:00 AM CET the next Business Day.
Article 7 – Documentation
All Documentation regarding the functionality and/or use of the Brand Portal Software is available on the support website of Brandware. The Documentation will be provided free of any charge. The Documentation will be provided in electronic format only.
Article 8 – Maintenance
Maintenance includes both new features (Feature Release) and bugfixes (Bugfix Release) of the Brand Portal Software:
Article 9 – Hosting
Hosting includes all Services for the installation and hosting of the Brand Portal Software on hard- and software that is controlled and maintained by Brandware. The Hosting & Security Policy of Brandware (“Hosting & Security Policy”) is applicable for all Licensees that agree to use the Hosting Services of Brandware.
Article 10 – Consultancy
Consulting includes all Services that are not Support, Maintenance, Hosting or Documentation, like:
Article 11 – PortalManager
Licensee needs to appoint at least one employee as the PortalManager of the BrandPortal. The PortalManager is responsible for the operation of the BrandPortal within the organisation of Licensee. Licensee is able to appoint one or more additional PortalManagers and/or BrandManagers.
Article 12 – Maintenance Documentation
Brandware shall completely or partially adapt, revise or replace the Documentation periodically if such should be reasonably necessitated by the provision of Bugfix Releases and Feature Releases.
Article 13 – Service Request
A request for Service (“Service Request”) is submitted by the Licensee by email or on the Client Portal to the Service Desk. After receiving the Service Request, Brandware will send a confirmation of the Service Request (Confirmation) to Licensee within a time frame of a maximum of 4 hours after receiving the Service Request. A copy of this Confirmation will be sent to the PortalManager. The confirmation of the Service Request will include:
Article 14 – Failure of the Brand Portal Software
In any case of a failure of the Brand Portal Software to comply with the agreed functions, properties or specifications (“Specifications”) in the sense that the failure obstructs or inhibits the proper use of the Brand Portal Software (“Issue”), Brandware shall detect and eliminate the Issue in accordance with the Agreement and these General Terms and Conditions.
Article 15 – Response Time
The Response Time to a Service Request shall be as follows:
The above Response Time starts at the time Brandware received all necessary information of the Brand Portal Software from Licensee.
Article 16 – Fees
A Service Request for Support, Documentation and/or Maintenance is fulfilled without additional charge. A Service Request for Consulting is fulfilled for the agreed Consulting fee (Consulting Fee). Fees are charged in time units of 15 minutes with a minimum of 30 minutes per Service Request.
Article 17 – Approval of Consultancy
All Service Requests, that require more than 2 hours Consulting to fulfil, need to be approved by the PortalManager. Without an approval of the Service Request by the PortalManager Brandware will not start with the fulfilment of the Service Request.
Article 18 – Problems caused by Brandware
Problems caused by Brandware will be remedied by Brandware as soon as possible according to the agreed Response Time. If Brandware demonstrates that the Problem cannot be remedied as in accordance with the agreed Response Time, Brandware shall be entitled to incorporate temporary, problem-avoiding restrictions in the Brand Portal Software, or provide temporary solutions to Problems in the form of a program bypass in order to circumvent the Problem in question. These restrictions or program bypasses shall affect the functions of the Brand Portal Software as little as possible.
Article 19 – Problems not caused by Brandware
Licensee shall not be entitled to exercise any rights to Services if a Problem does not concern any of the guaranteed Specifications or if a Problem is attributable to a cause not imputable to Brandware, such as erroneous information from the Licensee, improper use of the Brand Portal Software, faults in other hardware and/or software products, any modifications Licensee has made to the Brand Portal Software without Brandware’s prior written permission, or to any other circumstances that are or should be at the Licensee’s expense and risk. In that event, Problems shall be remedied by Brandware at Licensee’s expense on the basis of subsequent calculation at the rates applicable for Consulting.
Article 20 – Onsite Services
If necessary, Brandware provides Services on the site(s) of Licensee. The minimum of Consulting on the site(s) of Licensee at one event is 3 consecutive hours.
Article 21 – Feature Release
Brandware shall undertake to adequately examine the possibility of improving the quality of the Brand Portal Software and make new Feature Releases available to Licensee. Brandware shall inform Licensee as soon as possible about a new Feature Release and research into a new Feature Release, as well as about the content and consequences thereof. Feature Releases will be developed and released by Brandware in its sole discretion.
Article 22 – Installation
Licensee has the right to use a non-exclusive Brand Portal Software license installed on the Brandware Hosting Platform (“Installation Copy”) for the duration of the Agreement. Brandware is responsible for all costs related to the purchase of the required hard- and software and the installation and maintenance of the hard- and software. This installation type is also known as “Software as a Service” or “SaaS”.
Article 23 – Installation services
Licensee has the right to services during the term of the Agreement. Licensee is not required to install a Feature Release or a Bugfix Release. Brandware, however, only provides services related to the latest Release and the two preceding Releases. If Licensee let install a Release by Brandware, the terms, such as procedures for Consultancy, apply to them.
Article 24 – Hosting
Unless otherwise agreed, the Hosting of the Brand Portal Software takes place on a server managed by Brandware (“Production Server”) in a secure data center (“Production Data Center”) that uses a firewall and other advanced technology. Physical access to the Production Data Center is protected to the highest standards. Brandware uses cloud hosting whereby data is replicated at all times to multiple secure data centers to minimise any interruption. In addition, Brandware ensures a continuously copy of the Brand Portal Software is hosted on a server (“Backup Server”) in another secure data center (“Backup Data Center”). For more information reference is made to the “Hosting and Security Policy”.
Article 25 – Data
Licensee stores during the use of the Brand Portal Software and through Hosting information, (personal) data and other materials (“Data”) on the Brand Portal Software (“Brand Portal Software”) and a file directory (“File Directory”) who just like the Brand Portal Software are hosted by Brandware. For Licensee (Data Controller) to fully comply to the General Data Protection Regulation (GDPR), affective 25th of May 2018, a Data Processing Agreement (DPA) should be in place with Brandware as Data Processor.
Article 26 – Hosting Maintenance
Brandware is responsible for the maintenance of the Brand Portal Software, the File Directory, the Server and other used soft- and hardware. Brandware has the right to interrupt the Hosting without prior consent of the licensee, if this pause if necessary for the maintenance of the Brand Portal Software and/or other soft- and hardware. Each break is scheduled, if possible, on weekends or weekdays between 18:00 and 08:00 CET. Brandware will inform licensee at least 7 days before the scheduled maintenance.
Article 27 – Security
Brandware takes adequate measures to protect the Data from unauthorised use by third parties. The information regarding these measures is available to licensee in the Hosting & Security Policy.
Article 28 – Backup of Data
Brandware guarantees one backup (“Backup”) of the Data each day. Brandware archives the Backup on a backup server (“Backup Server”) in a different Datacenter. For more information see the “Hosting and Security Policy”.
Article 29 – Copy of Backup
Licensee is able to request a copy of a Backup of the Data (“Backup Copy”) anytime for storage on its own server or other data storage devices. Brandware guarantees that the Backup Copy will be made available in a standard readable data format for a fee. The fee for a Backup Copy and a physical data storage device can be requested though the Service Desk.
Article 30 – Data Encryption
The Brand Portal Software provides licensee the ability to encrypt Data during transmission, both to and from the Servers as during storage. Brandware is not responsible for damage resulting from the unauthorised use of Data that is not encrypted when using the Brand Portal Software.
Article 31 – Limitations to Hosting and License
The maximum disk space for Data storage (“Storage”), Data traffic (“Traffic”), amount of users (“Users”) is limited in the Agreement. If the amount of Storage/Traffic/Users required by Licensee exceeds the limit Licensee will be charged the then-current fees for Hosting and/or License.
Article 32 – Loss of Data
Brandware shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure of the Data by Licensee.
Article 33 – Ownership of Data
Licensee is the sole owner of the Data. Licensee shall have sole responsibility for the accuracy, integrity, legality, and intellectual property right of the Data.
Article 34 – Interruptions Hosting
The Hosting may be subject to limitations, delays, and other problems inherent to the use of the Internet and electronic communications. Brandware is not responsible for any delays, delivery failures, or other damage resulting from such problems.
Article 35 – Data after termination of Services
Upon request, Brandware will provide online access to the Data within 90 days of the termination of the Agreement in a default, by Brandware determined, format. Brandware will delete all Data of Licensee 90 days after the termination of the Agreement.
Article 36 – User management
Brandware provides the PortalManager of Licensee with a unique user account (“User Account”) and password (“Password”). The PortalManager is able to provide other users (“User”) the User Accounts and Passwords. Licensee is solely responsible for the use and maintenance of these User Accounts and Passwords.
Article 37 – Confidentiality
Parties agree to treat as strictly confidential and shall not divulge, directly or indirectly, to any other person, for any purpose whatsoever, any confidential information received from the other Party. Parties shall not make use of or copy such confidential information, except for the purpose of the Agreement.
Article 38 – Escrow
Brandware has an escrow policy (“Escrow”). The source code of the Brand Portal Software and Documentation are owned by another legal entity (“Owner”) than Brandware. Should a situation arise in which Brandware would no longer be in a position to provide the Services, the Owner guarantees the availability of both the Brand Portal Software and the Documentation for all Licensees. The Escrow is available for Licensee at the offices of Brandware.
Article 39 – Invoices
Brandware will charge Licensee the fixed and variable Fees, as described in the Agreement, as follows:
Article 40 – Termination of Services by Brandware
Brandware may terminate the Agreement on written notice if:
Article 41 – Termination of Services by Licensee
Licensee may terminate the Agreement on written notice if :
Article 42 – Rights to Services after termination
After termination of the Agreement in accordance with the Agreement and/or if Licensee fails to pay any Fee within 90 days after the date of an invoice, Licensee’s right to Services will end.
Article 43 – Installation Copy after termination
In case of termination of the Agreement Brandware will discontinue to host and support the Installation Copy.
Article 44 – Force Majeure
Brandware will not be in violation of the Agreement if the failure to perform the obligation is due to an event beyond control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organised labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
Article 45 – Warranties
Brandware warrants that the Brand Portal Software will perform in accordance with the specifications as described in the Documentation. Brandware does not warrant that the operations of the Brand Portal Software will be uninterrupted or error-free. Brandware warrants that it has the right to license the Brand Portal Software under this Agreement and that the Brand Portal Software and/or any Bugfix Releases and/or any Feature Releases will not infringe upon the intellectual property rights of third parties.
Article 46 – Liability
The maximum liability of Brandware for any breach of the foregoing limited warranties will be refund of the License & Maintenance Fees paid by Licensee in the year prior to the breach. In no event shall Brandware or any of its licensors and/or subcontractors be liable for any direct or indirect losses or damages of any nature resulting from, arising out of or in connection with the use of, or inability to use the Brand Portal Software, except in cases of gross negligence or wilful misconduct on the part of Brandware.
Article 47 – Increase of Fees
Brandware has the right to adjust the Fees once a year in accordance to the applicable annual inflation correction percentage of the derived CPI figures from the CBS (‘CPI-afgeleid’) of the Netherlands. Brandware will notify Licensee at least 3 months in advance of the Fee adjustment.
Article 48 – Compliance
Licensee is solely responsible for compliance with all applicable laws, treaties and regulations in connection with the use of the Brand Portal Software, including those related to data privacy, international communications and the transmission of personal data.
Article 49 – Jurisdiction
The Agreement between Brandware and Licensee is subject to Dutch Law. Disputes will be adjudicated exclusively by the court with jurisdiction in Amsterdam, The Netherlands.