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Terms and Conditions of Use Plymovent Platform version March 2022

Article 1 Definitions

Capitalised words in these Terms and Conditions of Use have the meaning given to them in Annex hereto.

Article 2 General provisions

  1. The Terms and Conditions of Use contain the terms and conditions subject to which the User can and may use the Platform.
  2. The Terms and Conditions of Use apply in addition to the arrangements made in an (User) Agreement regarding the use of the Platform.
  3. In case of conflict between the provisions of an (User) Agreement and the Terms and Conditions of Use, the Terms and Conditions of Use prevail.
  4. In the relationship between Plymovent and its Suppliers, general, licence and/or other terms and conditions of the relevant Supplier may apply regarding the use of the Platform. To the extent required and desirable in Plymovent's discretion, the User hereby accepts those terms and conditions towards such Supplier and Plymovent and these terms and conditions will form part of these Terms and Conditions of Use. The User will comply with those terms and conditions.
  5. The User undertakes towards the Supplier to comply with the User's obligations under the Terms and Conditions of Use.
  6. The User may not transfer his rights under the Terms and Conditions of Use to a third party without Plymovent's consent. The provisions of the previous sentence have effect under property law.

Article 3 Use of the Platform

  1. The User may use the Platform subject to a User Agreement. Unless otherwise provided in the Agreement, each Agreement that is in force and (implicitly) confers rights to the User to use the Platform is also a User Agreement.
  2. In order to be able to actually use the Platform the User must have a Portal and an Account. The Website contains a Portal.
  3. The User may create an Account via the Platform or Plymovent may create an Account for the User. The User is subsequently able to login via the Portal and gain access to the section of the Platform reserved for him, which offers the Functionalities to which the relevant User is entitled.
  4. Plymovent determines which Functionalities are offered in the Platform in general and to a particular User. Plymovent may expand, modify or remove certain Functionalities without prior notice.
  5. When using the Platform the User must comply with the Terms and Conditions of Use, the (User) Agreement and the Applicable Laws and Regulations and must respect all rights of third parties. The User shall refrain from any acts of use that compromise the legitimate interests of Plymovent and from any (other) acts that are inappropriate, improper, careless or undesirable, all this in the sole discretion of Plymovent.
  6. The User shall take all (precautionary) measures that are reasonably necessary to secure the Platform and prevent unauthorised access to the Platform, including by changing passwords as often as necessary. The User shall change passwords immediately as soon as he is informed that the password in combination with the other login data is or has been the subject of a data breach at third parties.
  7. The User shall take all (precautionary) measures that are reasonably necessary to prevent third parties from abusing Platform. As abuse is considered any use of the Platform other than the use that the User may make of them under the Terms and Conditions of Use, the (User) Agreement and the Applicable Laws and Regulations.
  8. The User is obliged to follow all reasonable instructions of Plymovent regarding the use of the Platform. The User shall provide Plymovent with all information and shall lend every cooperation necessary to enable Plymovent to comply with its obligations towards the User and to exercise its rights towards the User.
  9. Plymovent may update the Platform. Where required, the User is obliged to cooperate with Plymovent in implementing Updates.

Article 4 Account Management and Account Responsibility

  1. Depending on the type of Professional Account, other Accounts may be created within that Professional Account and other Accounts may be created within the latter Accounts, and so on. All of the aforementioned Sub-Accounts are ultimately be retraceable to the Main Account in which the Sub-Account was created. The User of that Main Account is responsible and liable towards Plymovent for all Sub-Accounts created within his/her own Main Account.
  2. All legal and other acts of End Users of Sub-Accounts for which the User of the Main Account is responsible and liable pursuant to Clause 4(1) shall be imputed to the aforementioned User and shall be deemed to be (legal) acts of that User.
  3. Each User of a Main Account undertakes towards Plymovent that the End Users of all Sub-Accounts will comply with the Terms and Conditions of Use and will be jointly and severally liable towards Plymovent for the performance of those obligations by the End Users concerned.
  4. A User of a Professional Account may not invoke towards Plymovent the fact that the End Users of that Professional Account were not authorised to represent the User of that Professional Account with regard to Agreements.

Article 5 Entry into force, term, termination

  1. The User is entitled to use the Platform during the term of a User Agreement.
  2. Any User Agreements concluded for a definite period of time will upon expiry of the agreed term. Such User Agreements may not be terminated prematurely, unless otherwise agreed in the Terms and Conditions of Use or an Agreement. User Agreements concluded for an indefinite period of time may be terminated with effect from the end of a calendar month, subject to three (3) months’ notice.
  3. Plymovent may terminate a User Agreement with immediate effect, without any further (legal) act being required, if: (a.) the User is granted suspension of payments; (b.) the User is declared bankrupt; (c.) the legal control over the User changes and - in view of the change of control - Plymovent cannot reasonably be required to leave the User Agreement or an Agreement in force; (d.) the User fails to perform the obligations resting on him under the Terms and Conditions of Use or under an Agreement; (e.) in accordance with the provisions in an Agreement.
  4. The User must notify Plymovent of the circumstances referred to in paragraph 4 as soon as the User knows that those circumstances will materialise or threaten to materialise.

Article 6 Intellectual Property

  1. Plymovent or its licensors is/are the owner, or the party entitled to, all IP rights relating to the Platform. If, as a result of the User's use of the Platform, data or IP rights, or a claim to them, are created, including IP Rights to Feedback, these will be vested in Plymovent. Where such data or IP Rights, or a claim to them, are initially (also) vested in the User, the User grants Plymovent, by accepting the Terms and Conditions of Use, a perpetual, royalty-free, exclusive and unlimited right to use such data and IP rights, and undertakes to transfer to Plymovent all such data or IP rights, or claims to them, by means of a deed upon Plymovent’s first request.
  2. Plymovent grants the User a license to Plymovent IP Rights for the term of an User Agreement, within the scope required by the User to make normal use of the Platform for his own use, in accordance with Plymovent's designated use of the Platform and in accordance with the provisions of the Terms and Conditions of Use, Agreements and the Applicable Laws and Regulations. This licence expressly does not grant the User the right to make copies of Platform, to decompile or reverse engineer Platform, or to use Platform for research and development purposes.
  3. The EULA is non-transferable, non-exclusive and the User does not have the right to grant sub-licences.
  4. Any use of the Platform other than in accordance with the EULA is prohibited.
  5. The User grants Plymovent all rights to IP rights, other rights or data in respect of User Content Plymovent needs to be able and permitted to supply the Platform. If a third party is entitled to the relevant intellectual property rights, the User undertakes towards Plymovent and guarantees Plymovent that the User has sufficient rights or to grant this right.

Article 7 Confidential Information

  1. If a User receives Confidential Information from Plymovent, the User undertakes towards Plymovent: (a.) to keep the Confidential Information strictly confidential and to safeguard the strict confidentiality of Confidential Information; (b.) to only make Confidential Information available to persons who are required to take note thereof by virtue of their position; (c.) not to use Confidential Information for any purpose other than to perform an Agreement or to use the Platform, and (d.) to return to Plymovent all Confidential Information or, in Plymovent's discretion, destroy all Confidential Information at Plymovent's first request, without retaining any copies thereof.
  2. The obligation of confidentiality referred to in the previous paragraph does not apply to Confidential Information that: (a.) was already in the possession of or was already known to the User at the time that this information was provided to the User; (b.) was already in the public domain at the time that the information was provided to the User; (c.) is obtained, developed or produced by the User himself without using the Confidential Information; (d.) the User has become aware of in a manner other than by breaching a contractual obligation that the User or a third party has towards Plymovent and is not the result of any wrongful acts towards Plymovent; (e.) is disclosed to third parties with Plymovent's consent.
  3. The burden of proof for the circumstances referred to in Clause 7(2)(a) - (d) rests with the User.
  4. Plymovent does not guarantee the accuracy, completeness, quality and/or content of the Confidential Information and has no obligations to the User in that regard.

Article 8 Processing Personal Data

  1. If Plymovent is the Controller with regard to the processing of the User’s Personal Data, Plymovent will process this Personal Data in accordance with the provisions of the Plymovent Privacy Policy.
  2. If Plymovent is the Processor with regard to the processing of Personal Data for which the User is the Controller, the provisions of Clause 8(3)-11(20) apply, which clauses form the data processing agreement within the meaning of Article 28(3) GDPR.
  3. Users may not enter special Personal Data within the meaning of Article 9 GDPR into the Platform, such as data or information regarding racial or ethnic origin, political opinions, religion or beliefs, trade union membership, genetic or biometric data, health, sexual life and criminal history, nor may citizens service numbers or similar personal data be entered into the Platform.
  4. Plymovent processes Personal Data on behalf of the Controller pursuant to an Agreement. The Data Processing Agreement ends by operation of law on the earlier of the moment when the Agreement on the basis of which Plymovent processes Personal Data for the Controller’s benefit ends, or when Plymovent no longer processes Personal Data on behalf of the Controller.
  5. The Processor will process the Personal Data in a proper and careful manner and in accordance with the provisions of the GDPR and other applicable regulations regarding the Processing of Personal Data. The Controller is obliged to process Personal Data in such a way that the processing operations and the method, content or instructions thereof are not unlawful and do not infringe the rights of Data Subjects or third parties. The Controller shall indemnify Plymovent and hold Plymovent harmless against claims brought by Data Subjects against Plymovent in connection with a breach of the Customer's obligations under the Data Processing Agreement.
  6. The Controller shall reimburse Plymovent all costs and expenses Plymovent will be forced to incur in order to comply with its obligations under the Data Processing Agreement. The Controller owes Plymovent a fee calculated on the basis of subsequent calculation at the rates to be determined by Plymovent, for all acts and/or work performed by Plymovent under the Data Processing Agreement.
  7. Plymovent processes the Personal Data in accordance with the GDPR and other regulations applicable to the processing of Personal Data and solely on the orders and on the basis of written instructions of the Controller, unless Plymovent is required to do so by Applicable Laws and Regulations. In the latter case, but only insofar as is permitted, Plymovent shall promptly notify the Controller of such processing and its obligation to do so.
  8. Plymovent will enable the Controller to comply with the GDPR obligations within the applicable time limits. To this end, Plymovent will ensure that the Controller is able, among other things, to let Data Subjects exercise their rights and to comply with all other obligations the Controller may have under the GDPR.
  9. Plymovent will not transmit Personal Data to third countries or international organisations as referred to in Article 28(3)(a) GDPR, without the Controller’s explicit prior written instructions. In that event, the provisions of the preceding sentence do not apply if Plymovent is required, under Union or member state law applicable to it, to process, in which event Plymovent shall notify the Controller of that legal requirement prior to the processing, unless that legislation prohibits such notification on important grounds of public interest. The Controller hereby gives Plymovent the instruction referred to in the first sentence to the extent that transmission is necessary for engaging Sub-Processors.
  10. If the Data Processing Agreement is terminated, Plymovent shall delete or return the Personal Data processed at the Controller's instructions - in the Controller's written discretion - and Plymovent shall demonstrably remove all existing copies.
  11. Plymovent guarantees that the persons authorised to process the Personal Data have committed themselves to observe confidentiality pursuant to an agreement concluded with Plymovent or are bound by a statutory obligation of confidentiality.
  12. Plymovent guarantees that every natural person acting under Plymovent's authority and that has access to Personal Data only processes it on the instructions of the Controller. A natural person acting under Plymovent's authority and that has access to Personal Data may only process it other than on the instructions of the Controller if the law or a judicial decision requires that natural person to do so.
  13. Plymovent may outsource the performance of the Data Processing Agreement in whole or in part to Sub-Processors.
  14. Plymovent only uses Sub-Processors who provide adequate guarantees with regard to the application of appropriate technical and organisational measures to ensure that the processing complies with the provisions of the GDPR and that the rights of the Data Subjects are adequately protected. Plymovent will impose on these Sub-Processors the same or similar obligations as apply to it under this Data Processing Agreement and will monitor compliance by Sub-Processors.
  15. Plymovent will keep all Personal Data confidential. Plymovent is not permitted to provide Personal Data to Third Parties, unless Plymovent is obliged to do so: (a.) by law or a court decision, (b.) has received a written request from the Controller to do so, or (c.) has obtained the Controller's prior written consent to do so.
  16. In the event referred to in Clause 8(15)(1)(a): Plymovent shall (a.) notify Controller that Personal Data has been provided, or that a request to do so has been received, stating the identity of the applicant, the date of the request or of the provision, the identity of the Data Subject(s) involved, and a description of the relevant Personal Data; (b.) verify the basis of the request and the identity of the applicant; (c.) limit the provision to what is legally required, and (d.) enable the Controller to exercise the rights of Controller and the Data Subjects and to defend the interests of Controller and Data Subjects.
  17. The Controller and Plymovent will secure the Personal Data and the processing thereof in accordance with the rules imposed by or pursuant to the GDPR and by or pursuant to other (special) legislation regarding the processing of Personal Data. Plymovent shall take all appropriate technical and organisational security and other measures required under Article 32 GDPR to ensure a level of security appropriate to the risk, including inter alia, as appropriate, (a.) anonymisation, pseudonymisation and encryption of Personal Data; (b.) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of the processing systems and services; (c.) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; (d.) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
  18. When determining the appropriate technical and organisational (security) measures that are required under Article 32 GDPR to ensure a level of security appropriate to the risk Plymovent shall take into account (a.) the state of the art and the costs of implementation; (b.) the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons; (c.) the processing risks, especially as a result of accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed. The Controller accepts the security measures taken by Plymovent as being appropriate.
  19. Plymovent will immediately notify the Controller if an Incident occurs at Plymovent. It is at the Controller's discretion to decide whether or not the Incident is a Data Breach and whether or not the Incident or Data Breach must be reported to the Dutch Data Protection Authority or the relevant Data Subject(s). It is entirely up to the Controller to follow up on Incidents or Data Leaks as prescribed by Articles 33 and 34 GDPR. At the Controller's request Plymovent shall immediately take all measures necessary to remedy, mitigate or prevent the negative impact of a Data Breach on the relevant Data Subject(s).
  20. Plymovent's processing activities relate to the delivery of Platform by the Controller to Customers and/or Users. The purpose of the processing activities is to enable the Controller to supply Platform, perform and manage Agreements, and to administer, manage and communicate with Customers and Users. The processing activities relate to Users. The following Personal Data may be processed within this context: first and last name, username, password, email address, IP address, position, relationship with the Customer, usage acts performed within the Platform, and any other Personal Data entered by the End User into the Platform.

Article 9 Plymovent’s obligations, Limitation of Liability

  1. Plymovent shall make effort to properly deliver the Platform. However, under the Terms and Conditions of Use and any Plymovent has no obligations towards the Customer relating to the quality and/or availability of the Platform or any parts thereof, unless agreed otherwise between Plymovent and the Customer.
  2. Plymovent supplies the Platform ‘as is’ and in the factual and legal state they are in at the time of delivery to the Customer. The Platform may therefore be (temporarily) unavailable or otherwise defective.
  3. Insofar as Plymovent has any obligations towards the Customer, no failure to perform an obligation on the part of Plymovent may be attributed to Plymovent in the event of force majeure, which will for instance be the case, but not be limited to, in addition to or as provided in the relevant laws and regulations, in the event of (temporary) non-delivery or incorrect of insufficient delivery of goods, data, computer software or services by Suppliers, or epidemics or pandemics, emergency situations, inclement weather, natural disasters, war, etc., and the consequences thereof. Any warranty granted by Plymovent does not prevent Plymovent from invoking force majeure.
  4. To the maximum extent permitted by the Applicable Laws and Regulations, Plymovent excludes its liability towards the Customer and Users, on any basis, that is directly or indirectly related to the Platform or the delivery thereof, or at least shall limit the aforementioned liability to the maximum extent permitted under the Applicable Laws and Regulations. Plymovent shall in no event be liable for a higher amount than the amount paid by the Customer for the use of the Platform that caused the damage.
  5. The Customer or a User is not entitled to rescind an User Agreement within the meaning of Article 6:265 of the Dutch Civil Code or to annul it within the meaning of Article 6:228 of the Dutch Civil Code.
  6. The Customer or a User shall in no event have a claim against Plymovent by way of reversal within the meaning of Article 6:271 of the Dutch Civil Code or undue payment within the meaning of Article 3:53 in conjunction with 6:203 Dutch Civil Code.

Article 10 The User’s obligations

  1. If a User fails to comply with any of its obligations towards Plymovent under the Terms and Conditions of Use, Plymovent may exercise all rights and remedies that exist and are available to it under the Applicable Laws and Regulations.
  2. In addition to the provisions of the previous paragraph, any failure to perform the obligations the User has towards Plymovent under the Terms and Conditions of Use will, where required, and without any additional (legal) act, immediately result in the User being in default and Plymovent may (temporarily) suspend all or certain obligations it has towards the User, for example, by (temporarily) deactivating the Platform or restricting all or some usage possibilities of the Platform or (temporarily) limiting all or some Functionalities.
  3. If the User has an obligation to indemnify Plymovent or if the User warrants Plymovent a certain performance, this means, to the extent required in addition to the relevant Applicable Laws and Regulations, that: (a.) at Plymovent's first request the User shall, at its own expense and risk, assume the defence, and pay all legal and other costs, against any claims or demands of third parties, on the understanding that the User will comply with all reasonable instructions of Plymovent in the context of that defence, or, at the discretion of the indemnified party, shall compensate the indemnified Party for all legal and other costs reasonably incurred to defend itself against the liability, penalty or obligation, or (b.) at Plymovent's first request, the User shall indemnify and hold Plymovent harmless, whether or not by paying Plymovent, at Plymovent's first request, the amount that Plymovent is required to pay to the third party pursuant to the liability claim or demand.

Article 11 Final Provisions

  1. The User accepts that communication between Plymovent and the User may take place via the Platform. Any communications or statements made by Plymovent to the User via the Platform will be deemed to be written communications or statements made by Plymovent to the User.
  2. Plymovent reserves the right to amend these Terms of Use from time to time. Users will be informed of the changes in advance. If a User objects to an announced change prior to its entry into force, the change will not apply to that User. That User hereby accepts that this may have an adverse impact on the Platform and the way they function. Once the announced changes have entered into effect, the User will be deemed to have accepted them.
  3. If a provision or part of a provision of the Terms and Conditions of Use or an Agreement proves to be invalid or unenforceable, the remaining (parts of) the provisions will be construed as if such invalid or unenforceable provision had not been included and the invalid or unenforceable provision (or part thereof) will be deemed to have been replaced by a valid, enforceable provision that approximates the purport of the replaced provision as closely as possible.
  4. These Terms and Conditions of Use and all Agreements are governed by Dutch law. The applicability of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
  5. The court of the Oost-Brabant District Court, ‘s-Hertogenbosch, the Netherlands, has exclusive jurisdiction to hear in the first instance all disputes that have arisen or may arise as a result of the User Agreement or its performance.

Annex Definitions

  • Account: any Professional Account or End User Account that provides access to the section of the Platform reserved for the Account Holder.
  • Agreement: an agreement between Plymovent a Customer by virtue of which the User may use the Platform.
  • Applicable Laws and Regulations: the tax and other laws and regulations applicable to an Agreement, the Terms and Conditions of Use, the use of the Platform and the relationship between Plymovent and the User in general.
  • Confidential Information: all information of which the User becomes aware in the context of or as a result of an Agreement and its performance or the use of the Platform, and all information about Plymovent, the Platform and the Platform, such as information on techniques used, underlying principles, drawings, models, graphic representations, source codes, login data, customers, end users, projects, functionalities, possibilities for use and application, business models, prices, etc., with the exception of (unimportant) information of such a nature that if the User provides such information to Third Parties, no reasonable interest of Plymovent will be harmed.
  • Controller: the controller as defined in Article 4 at 7 GDPR.
  • Customer: a customer of Plymovent.
  • Data Breach: a personal data breach as defined in Article 4 at 12 GDPR.
  • Data Processing Agreement: the agreement referred to in Article 28(3) GDPR and contained in Clause 8(3)-(20) of the Terms and Conditions of Use.
  • Data Subject: the natural person to whom Personal Data relate.
  • Dutch Data Protection Authority: the supervisory authority established in the Netherlands pursuant to Article 51 GDPR.
  • End User: the natural person who actually uses the Platform.
  • End User Account: the account of the natural person who actually uses the Platform.
  • EULA: the license terms referred to in Clause 6.2 of the Terms and Conditions of Use.
  • Feedback: all comments, ideas, inventions, works, suggestions, signals, data, technical information or other forms of feedback provided by a User, actively or passively through technical settings, to Plymovent regarding the Platform and its use.
  • Functionalities: the functionalities or options for use and/or application of the Platform.
  • GDPR: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
  • Group Company; a legal entity forming part of the group of companies to which Plymovent belongs.
  • Incident: an event regarding which it is yet to be determined whether it is a Data Breach or a Data Breach of which it has yet to be determined whether or not it will likely pose a (high) risk for the rights and freedoms of natural persons as referred to in Articles 33(1) and 34(1) GDPR.
  • IP Rights: all intellectual property rights, as well as all property rights or other rights created on or with regard to know-how and (digital) data.
  • Main Account: the Professional Account in which Sub-Accounts are created in the manner described in Clause 4(1).
  • Main Agreement: the Agreement under which Plymovent processes Personal Data for the User.
  • Personal Data: a data as defined in Article 4 at 1 GDPR.
  • Platform: the digital environment called “MyPlymovent”.
  • Plymovent: Plymovent Group B.V., a private limited liability company having its registered office in (NL-1812 RK) Alkmaar, the Netherlands, or a Group Company that is party an Agreement or a User Agreement.
  • Plymovent IP Rights: the IP rights referred to in Clause 6.1 of the Terms and Conditions of Use.
  • Portal: the website or (mobile) application that provides online access to the Platform.
  • Processor: the controller as defined in Article 4 at 8 GDPR.
  • Professional Account: an account created for a Customer.
  • Software: the computer software relating to the Platform, including all Updates.
  • Sub-Account: an account created for another User within the Main Account of the relevant User in the manner described in Clause 4(1).
  • Sub-Processor: a third party engaged by Plymovent to process Personal Data for Plymovent's benefit over which Plymovent does not exert direct authority, as well as sub-processors, etc., engaged by these Sub-Processors.
  • Supplier: a third party that supplies Plymovent with goods, data, Software or services that Plymovent uses or applies for Platform.
  • Updates: changes made by Plymovent with respect to Software.
  • User: any natural or legal person who actually uses the Platform, any natural person or entity having a Professional Account, and any natural person who has an End User Account.
  • User Content: all digital data created by the User as a result of the use of the Platform and/or other data created by the User that the User uploads to the Platform.
  • User Agreement: an agreement pursuant to which an End User may use the Platform.
  • Terms and Conditions of Use: these Terms and Conditions of Use Platform, version March 2022.
  • Website: https://www.myplymovent.com