Last Modified: 24 June 2024

Terrateam General Terms and Conditions

1. Applicability

1.1 These General Terms and Conditions apply to all offers and agreements between Terrateam and Customer unless expressly agreed otherwise in writing. Provisions or conditions set by Customer that deviate from, supplement, or are not included in these General Terms and Conditions shall only apply to Terrateam if and in so far as they have been expressly agreed to in writing by Terrateam. The applicability of any of Customer’s purchase or other terms is explicitly excluded.

1.2 Without prejudice to the provisions of this article, the provisions of these General Terms and Conditions prevail if a conflict should arise about any of the arrangements made by parties. Parties may agree to supplementary or adjusted conditions in the Services Agreement. In such cases, the conditions in the Services Agreement take precedence over the General Terms and Conditions. In the event of a conflict between the provisions of different sections of these General Terms and Conditions, the provisions of a prior section apply unless parties have explicitly agreed otherwise.

2. Definitions

2.1 Terrateam: Terrateam B.V. with its registered office in Bickerswerf 19 1013 KV Amsterdam, Chamber of Commerce number 89161955.

2.2 Terrateam Cloud: The Terrateam SaaS Basic, Terrateam SaaS Pro, or Terrateam SaaS Enterprise service granting Customer access via a cloud infrastructure to the Services.

2.3 Terrateam Self-Hosted: The Services provided on-premise via a self-hosted version on the own infrastructure of Customer of the Software with unrestricted access to all features, regular updates to ensure the latest features and security patches, ongoing support to address any issues, and installation support to assist with setting up the Software.

2.4 Customer: The legal entity that has concluded an Agreement with Terrateam or to whom Terrateam has issued an offer for this purpose.

2.5 General Terms and Conditions: The provisions contained in these Terrateam General Terms and Conditions.

2.6 Services: The services provided by Terrateam to Customer that are described in the Agreement and can include Software services to simplify the process of infrastructure automation, offering tooling to build software in the cloud.

2.7 Software: The software consisting of a continuous integration and deployment (CI/CD) platform for infrastructure as code.

2.8 IPR: Intellectual property rights as mentioned hereafter: (a) patents, utility models, designs, copyrights (including software rights), database rights, semiconductor topography rights, trademarks, company trademarks, trade secrets, know-how, and all other intellectual and/or industrial property rights; (b) any registration or application for registration of any of the goods referred to in (a).

2.9 Agreement: The agreement between Terrateam and Customer subject to which Terrateam shall perform the Services consisting of these General Terms and Conditions, the Services Agreement, and the SLA.

2.10 Services Agreement: The agreement which contains (a description of): the choice between Terrateam SaaS (Terrateam SaaS Basic, Terrateam SaaS Pro, or Terrateam SaaS Enterprise) or Terrateam Self-Hosted, the choice for a package with specific features, and the choice for the kind of SLA (tier 1, 2, or 3) and the corresponding fees. Furthermore, this agreement mentions the term of the Agreement if this deviates from the term stated in the General Terms and Conditions.

2.11 SLA: The Terrateam Service Level Agreement on support with a retainer including a number of hours (and a possibility to purchase more hours), possibly also consisting of, e.g., custom development and feature requests, cloud migration assistance, and workflow design.

2.12 Content: All data and information held by Customer which is transferred by Customer to or from the Services.

2.13 Confidential Information: Any information disclosed by a party that is designated as confidential in writing or would appear to a reasonable person to be confidential and that relates to a party’s business including its financial information, products, procedures, processes, plans or intentions, developments, trade secrets, know-how, design rights, market opportunities, personnel, customers, and/or Terrateam Customer, and any information derived from it.

3. Services

3.1 License

3.1.1 Customer is solely granted the rights of use of the Services laid down in the Agreement and in the applicable mandatory legal provisions for the duration of the Agreement. The right of use granted to Customer is non-exclusive, non-transferable, non-pledgeable, and non-sublicensable.

3.1.2 Customer may only use the Services for its own company or organization for its own business purposes and only insofar as this is necessary for the use intended by Terrateam. Customer is not free to allow third parties to use the Services provided by Terrateam.

3.1.3 Once the Agreement is in force, Terrateam will proceed to perform the Services as quickly as possible in accordance with the offer. If certain parts of the Services need to be paid for in advance, Terrateam shall not be required to provide these until the payments have been made by Customer.

3.1.4 Customer shall provide Terrateam in a timely manner with all information Terrateam has specified as necessary or that Customer can reasonably be expected to realize is necessary for the performance of the Services, such as a working e-mail address. Customer is responsible for keeping all passwords and account details relating to the Services confidential. If Customer suspects any unauthorized access to or use of the Services, Customer shall immediately notify Terrateam thereof.

3.1.5 Terrateam is not liable for any damage suffered or costs incurred as a result of the use or misuse that is made of access or identification codes or any other security means unless the misuse is the direct result of any intent or deliberate recklessness on the part of Terrateam’s management.

3.1.6 Terrateam performs its services with care to the best of its ability. All services provided by Terrateam are performed on the basis of a reasonable efforts obligation unless and insofar as Terrateam has explicitly promised a result in the Agreement and the result concerned has been described in the Agreement in a sufficiently precise manner. Terrateam makes every effort insofar as is reasonable to observe (delivery) deadlines and/or (delivery) dates as much as possible when providing the Services. Unless otherwise agreed, dates and deadlines always serve as an indication and do not bind Terrateam. Even if a deadline has been agreed, Terrateam will only be in breach after Customer has served Terrateam with notice of default except in cases prescribed as mandatory under the law in which default will apply by operation of law. Should a deadline be in jeopardy, Terrateam will consult with Customer to discuss the consequences of the delay on further planning.

3.1.7 Terrateam may continue the performance of the Services using a new or amended version of the underlying Software. Terrateam is not obliged to maintain, change, or add certain properties or functionalities of the Services specifically for Customer unless parties agree otherwise, e.g., in a SLA.

3.1.8 Terrateam provides the Services in accordance with the standards of competence and care that can reasonably be expected of a service provided in the industry. However, Terrateam cannot guarantee that these Services will be uninterrupted or error-free, nor does Terrateam give any guarantees with regards to the results that may be obtained from their use. Terrateam is never obliged to repair corrupted or lost Content. Customer himself remains responsible for compliance with all legal administration and retention obligations applicable to it.

3.2 SaaS

3.2.1 Terrateam may set specific conditions regarding the number of users of the SaaS-related Services in the Services Agreement.

3.2.2 Customer shall refrain from hindering other customers or internet users or causing damage to the servers used for the SaaS-related Services. Customer is forbidden to start up processes or programmes, whether or not via the server, of which Customer knows or can reasonably suspect that this will hinder or damage Terrateam, other customers, or Internet users.

3.2.3 Terrateam may temporarily take the SaaS-related Services partially or entirely out of operation for preventive, corrective, or adaptive maintenance or other forms of service. Terrateam will not allow the outage to last longer than necessary and if possible will allow it to take place at times when the SaaS Services are usually used least intensively. In addition, the Services may be temporarily taken out of use or at least suspended if Terrateam is entitled to do so pursuant to the law or these General Terms and Conditions.

3.2.4 Customer represents and warrants that its use of the Services will not be used to send spam or bulk unsolicited messages, will not interfere with, disrupt, or attack any service or network, will not be used to create, distribute, or enable material that is facilitates or operates in conjunction with malware, spyware, adware, or other malicious programs or code.

3.2.5 Transmission or storage of Content that is misleading and/or in violation with Dutch or local legislation or the instructions/guidelines of Terrateam is strictly forbidden. Terrateam reserves the right but not the obligation to monitor and edit Content and/or (partially) terminate or (partially) dissolve the Agreement if Customer sends or stores Content which is misleading and/or in violation with Dutch or local legislation or the instructions/guidelines of Terrateam.

3.2.6 If Terrateam believes that the performance of Terrateam or third-party infrastructures or networks or the services provided by a network are under threat, particularly due to the excessive sending of e-mail or other data, hacking attempts, (D)DoS attacks, poorly secured systems, or activity of viruses, Trojan horses, or similar software, Terrateam shall be entitled to take all measures that it reasonably considers necessary as a careful and competent contractor in order to avert or eliminate the threat without any obligation to provide compensation. If reasonably feasible, Terrateam shall consult with Customer beforehand.

3.2.7 In the event of force majeure, which shall in any case include blackouts or disruptions to the internet or telecommunications infrastructure, (D)DoS attacks, power failures, internal civil commotions, mobilization, war, traffic congestion, strikes, lockouts, business interruptions, pandemics, stagnation in supply, fire, floods, import/export delays, or in the event that Terrateam is unable to provide services due to its suppliers (for any reason whatsoever), meaning Terrateam cannot reasonably be expected to fulfil the Agreement, performance of the Agreement shall be suspended. Should the force majeure situation continue for a period of three (3) consecutive months or longer, each party is entitled to terminate the Agreement without liability for damages by giving notice to the other party in writing. Terrateam will inform Customer of all circumstances that prevent Terrateam from fulfilling its obligations pursuant to the Agreement. Parties will consult with each other to discuss which measures should be taken to minimize the consequences of the force majeure situation.

3.2.8 Without prejudice to the provisions of the preceding articles, Terrateam is entitled to temporarily suspend the provision of Services if Customer fails to fulfil an obligation towards Terrateam with regard to the Agreement and this failure justifies the suspension of Services. The Services will be reactivated if Customer meets his obligations within a reasonable period set by Terrateam. Customer must pay a reconnection fee for putting the service into operation. Terrateam may demand security from Customer prior to the (full) resumption of service levels.

3.2.9 Terrateam will only make the updates of the Services, which Terrateam also generally makes available to its other customers of the Services, available free of charge to Customer, including patches and/or fixes unless agreed otherwise in the SLA.

3.2.10 All modifications to the Services and all work that falls outside the Services and the SLA, whether at Customer’s request or as the result of system modifications being necessary for any reason whatsoever, shall be considered additional work (if extra costs are incurred). Additional work will be invoiced to Customer based on subsequent calculation according to Terrateam’s standard hourly rates as communicated to Customer.

3.2.11 Terrateam may make changes to the content or scope of the Services. If such changes are substantial and result in a change in the procedures applicable at Customer’s, Terrateam will inform Customer of them as soon as possible. The costs of this change will be for Customer’s account. In that case, Customer may terminate the Agreement by the date on which the change takes effect unless this change is related to amendments to relevant legislation or other regulations issued by competent authorities or Terrateam bears the costs of this change.

4. Fees and Payment

4.1 As compensation for the sale and delivery of the Services pursuant to the Agreement, Customer will pay the fees to Terrateam as defined in the Services Agreement. Prices given via the website are subject to programming, typing, and calculation errors. No liability is accepted for the consequences of such errors.

4.2 Unless otherwise specified, the rates are always excluding VAT.

4.3 Customer will pay Terrateam’ invoices fully and without discount, deduction, settlement, or counterclaim in USD within thirty (30) days after the invoice date.

4.4 If there is a periodic payment obligation, Terrateam is entitled to index its prices annually as of April 1 on the basis of the Dutch ‘Diensten Prijs Index’ (DPI) from the Dutch Central agency for Statistics.

4.5 Terrateam shall be entitled to raise fees immediately under the following conditions without Customer being entitled to terminate the Agreement:

If the fee rise is the result of an amendment of the obligations of Terrateam in the Agreement;
If the fee rise is the result of a price rise by (a) supplier(s) (including energy companies);
If the fee rise arises from an obligation upon Terrateam by virtue of the law;
If the fee rise is the result of changing market circumstances or inflation correction.

4.6 Terrateam may apply a maximum limit to the volume of data traffic, CPU use, storage, memory, and electricity that Customer may use per month under the agreement. If this maximum is exceeded, Terrateam shall be authorised to impose additional charges in line with the amounts stated in Terrateam’s offer or on its website.

4.7 Information from Terrateam’s administration serves as conclusive proof of the performance delivered by Terrateam and the amounts owed by Customer for the delivery of this performance without prejudice to the right of Customer to provide evidence in the contrary.

4.8 Customer is only entitled to settlement or retention of rights if Customer’s counterclaims have been legally established, are undisputed, or have been recognised by Terrateam.

4.9 Should Customer not meet its payment obligations on time, then Customer is legally in default and owes interest equal to the statutory interest. The interest due will in no case be lower than an interest of 1.5% (one point five percent) on the due amount per month. The interest on the due amount is calculated from the moment that Customer is in default until the moment that Terrateam has received the due amount in full. The foregoing supplements – and does not replace – the other rights that Terrateam has on grounds of the law or of reasonableness and fairness.

4.10 All judicial and extrajudicial costs incurred by Terrateam to enforce payment of the due amount by Customer will be borne by Customer.

4.11 In the event that: a) Customer is liquidated; b) Customer is seized; c) Customer is declared bankrupt; and/or d) Customer is granted a suspension of payments, the claims of Terrateam on Customer become due and payable immediately.

4.12 If Customer believes that the invoice (or part thereof) is incorrect, Customer shall inform Terrateam of its objections within fourteen (14) days of the date shown on the invoice. Terrateam will then investigate the matter and issue a new invoice if necessary. While such investigations are underway, Customer must still pay the non-contested part of the invoice by the original deadline.

5. IPR

5.1 With the exception of the limited access and rights of use granted pursuant to the Agreement, Customer does not acquire any IPR and/or interest in the Services and/or the Software. Customer agrees that all suggestions, requests for improvement, feedback, recommendations, or other information provided by Customer regarding the Service may be used by Terrateam without restriction or obligation to Customer. To the extent that intellectual property on such suggestions, requests for improvement, feedback, recommendations, or other information provided by Customer regarding the Services and/or Software does not belong to Terrateam by operation of law, Customer will provide all cooperation necessary for the transfer of the full IPR to Terrateam.

5.2 The Software include open-source software and/or third-party supplier software, which means that Customer’s use of the Services shall be subject also to the terms of any third-party license agreements or notices that are provided to Customer in the documentation for such software. Customer undertakes to comply with the terms of such third-party license agreements and rights provided by Terrateam through the Services.

5.3 The right to access and use the Services granted to Customer is subject to the following conditions and limitations:

(i) Customer may only use the Software in connection with the Services;
(ii) the Services must not be used at any point in time by more than the number of users specified in the Services Agreement;
(iii) Customer may not republish or redistribute any content or material from the Software;
(iv) Customer may not copy, modify, develop, translate, or in any other way amend the Services and/or the Software or permit any third party to do so or reverse-engineer, decompile, or disassemble the Software or by any other means recreate the Software’s source code, create derivative works of the source code, except for what is permitted under mandatory law;
(v) Customer may not use the Services in any way that is unlawful, illegal, fraudulent, or harmful or in connection with any such purpose or activity.

5.4 Customer may not sell, lease, sublicense, or divest any works developed by Terrateam or grant any restricted rights thereto or make them available to any third party in any way or for any purpose whatsoever, not even if the party in question uses the Software solely for Customer’s benefit unless agreed in advance elsewhere between Terrateam and Customer.

5.5 If Content issued to Terrateam by Customer is protected by any IPR, Customer must always ensure that it is in possession of all necessary licenses to issue the Content to Terrateam and for Terrateam to use them in order to provide the Services.

6. Liability

6.1 Terrateam, its employees, and third parties hired by Terrateam are under no circumstances liable for indirect damage including but not limited to consequential damage, lost profits, missed savings, reduced goodwill, damage due to business stagnation, for interruption of use, for damage resulting from claims from Customers’ customers, damage relating to the use of items, materials, or software from third parties prescribed by Customer to Terrateam, and damage related to the use of suppliers prescribed by Customer to Terrateam. The liability of Terrateam in connection with corruption, mutilation, destruction, or loss of Content is also excluded.

6.2 Per event and per year, the total cumulative liability of Terrateam, its employees, and third parties hired by Terrateam for direct damage is limited to an amount not exceeding the total of the fee owed and actually paid by Customer pursuant to the Agreement in the twelve (12) months prior to the event causing the damage. However, in no circumstances will the total amount of compensation for Customer’s direct losses exceed the sum of EUR 50,000 (excluding VAT) per year. Related events are classified as one event.

6.3 The maximum amount referred to in the aforementioned clause shall, however, be cancelled if and in so far as the damage is the consequence of gross negligence or intention on the part of Terrateam’s managerial staff.

6.4 Any liability of Terrateam due to an attributable failure in the fulfilment of the Agreement shall only arise if:

a) Customer immediately and properly declares Terrateam to be in default giving Terrateam a reasonable period in which to remedy the failure, and
b) Terrateam continues to fail attributably in the fulfilment of its obligations after such period. The notice of default must contain a description of the shortcoming that is as detailed as possible to enable Terrateam to respond effectively.

6.5 Customer’s right to claim under Section 6:271 of the Dutch Civil Code is excluded.

6.6 Terrateam shall never be considered liable for damage or loss as the result of force majeure as mentioned in article 3.15 of these General Terms and Conditions.

6.7 A right to compensation may only arise if Customer reports the loss to Terrateam in writing within thirty (30) working days after the claim has arisen.

6.8 No liability will be accepted for the consequences of not being able to send, receive, save, or modify data if an agreed limit has been reached for storage space, CPU capacity, memory, or data traffic.

6.9 If an excessive amount of data traffic occurs due to an external cause (e.g., a DoS attack), Terrateam shall be entitled to charge the costs to Customer within reasonable bounds.

7. Indemnification

7.1 Terrateam shall defend Customer and indemnify Customer regarding claims from third parties arising out of a claim that Customer’s use of the Services is in breach of or infringes upon a third party’s IPR. Terrateam’s liability under this article covers all costs, fees, expenses, losses, or damages that affect Customer in accordance with a court ruling or in a settlement ratified by/decided in arbitration or a judgement/arbitration ruling, including reasonable legal fees.

7.2 Terrateam’s obligation to indemnify Customer under this article only applies if:

(i) Customer has used the Services in accordance with all terms of the Agreement;
(ii) Customer immediately informs Terrateam in writing about the claims raised against Customer;
(iii) Terrateam is given full control over the legal process and has the sole right to make decisions in settlement negotiations and that the settlement absolves Customer of all liability; and
(iv) Customer works with Terrateam at the expense of Terrateam and for example follows instructions from Terrateam and provides Terrateam with reasonable assistance regarding the legal process.

7.3 Terrateam is not liable under this article if the claim from the third party is raised due to modifications, integrations, or customizations of the Services not performed by Terrateam or a Terrateam subcontractor.

7.4 In cases of an established infringement of a third party’s IPR, Terrateam shall at its own discretion:

(i) modify the Services so that they are no longer in conflict;
(ii) replace the Services with functionality that corresponds to the Services;
(iii) obtain a license for Customer’s continued use of the Services; or
(iv) terminate the Agreement with a refund of any fees paid in advance.

7.5 Customer is not entitled to raise any other claims against Terrateam arising from an infringement of a third party’s IPR. As such, this article constitutes Terrateam’s sole liability to Customer on account of infringements of third party IPR.

7.6 Customer shall defend and indemnify Terrateam regarding claims from third parties arising out of a claim that Content or Customer’s use of the Services is in breach of the Agreement or is in breach of or infringes on a third party’s IPR or applicable legislation. Customer’s liability under this article covers all costs, fees, expenses, losses, or damages that affect Terrateam in accordance with a court ruling or in a settlement ratified by/decided in arbitration or a judgement/arbitration ruling, including reasonable legal fees.

7.7 Customer’s obligation to indemnify Terrateam under this article only applies if:

(i) Terrateam immediately informs Customer in writing about the claims raised against Terrateam;
(ii) Customer is given full control over the legal process and has the sole right to make decisions in settlement negotiations and that the settlement absolves Terrateam of all liability; and
(iii) Terrateam works with Customer at the expense of Customer and for example follows instructions from Customer and provides Customer with reasonable assistance regarding the legal process.

8. Confidential Information

8.1 Any party receiving Confidential Information from the other party shall be obligated to keep such information confidential and:

(i) to use the disclosing party’s Confidential Information solely for the performance of its obligations under the Agreement;
(ii) keep the Confidential Information secure and apply no lesser security measures or degree of care to protect the disclosing party’s Confidential Information than the receiving party uses for its own Confidential Information; and
(iii) not to disclose the disclosing party’s Confidential Information to any third party unless there is a binding court order or the prior written consent of the disclosing party.

9. Duration, Suspension, Termination, and Dissolution

9.1 Unless explicitly agreed otherwise between Terrateam and Customer, the Agreement shall come into force at the effective date as defined in the Agreement and will remain in force for a period of twelve (12) months unless terminated earlier as defined in these General Terms and Conditions. At the end of this term, the Agreement will, to ensure uninterrupted service, be automatically renewed for successive renewal periods of 12 (twelve) months unless terminated earlier as defined in these General Terms and Conditions.

9.2 Parties have the right to terminate the Agreement at any time subject to a notice period of one (1) month. The termination will take effect at the end of the then-current term.

9.3 Terrateam is at all times entitled to suspend the fulfilment of its obligations pursuant to the Agreement or to (partially) terminate or dissolve the Agreement if:

Customer does not fully and/or timely fulfil its obligations as defined in the Agreement;
Terrateam becomes aware of circumstances which give it reasonable grounds to fear that Customer will only partly or improperly fulfil their obligations pursuant to the Agreement in which cases suspension of the Agreement is only permitted to the extent that the shortcoming justifies such an action.

9.4 Terrateam is further entitled to terminate or dissolve the Agreement if circumstances arise which are of such a nature that fulfilment of the Agreement becomes impossible or that maintaining the Agreement can no longer be reasonably expected of Terrateam.

9.5 Should the agreement be terminated or dissolved on the basis of this article, the claims of Terrateam on Customer become due and payable immediately. Should Terrateam suspend the fulfilment of their obligations, it retains its rights pursuant to applicable law and the Agreement.

9.6 Either party may terminate the Agreement in writing, in whole or in part, without notice of default being required and with immediate effect if the other party is granted a suspension of payments, whether or not provisional, a petition for bankruptcy is filed against the other party, or the company of the other party is liquidated or dissolved, other than for restructuring purposes or for a merger of companies. Terrateam may also terminate the Agreement in whole or in part without notice of default being required and with immediate effect if a direct or indirect change occurs in the decisive control of Customer’s company. Terrateam is never obliged to repay any sum of money already received or pay any sum of money in compensation because of termination as referred to in this article. If Customer is irrevocably bankrupted, its right to use the Software and the Services ends without Terrateam being required to cancel these rights.

9.7 All parts of the Agreement that by their nature should continue to apply after termination of the Agreement, including but not limited to the accrued rights to payment, confidentiality obligations, indemnity claims, and limitations of liability, remain in full force and effect after termination of the Agreement.

9.8 Despite the previous clauses, Terrateam always reserves the right to claim compensation in the event of suspension, (partial) termination, or dissolution.

10. Transition Services

10.1 The parties agree that in the event of termination of the Services as mentioned in the Agreement for any reason, they will immediately discuss the continuation of services by third parties or by Customer itself. Terrateam will support Customer with this transition in case of an infrastructure comparable to that of Terrateam at the rates applicable at that time. Terrateam shall not be obliged to provide Customer with a copy of the Content stored on the systems of Terrateam at that moment unless in view of continuation of the Services specified otherwise in an exit scheme agreed between parties. In such case, the copy will be provided in a CSV file format. Any exit scheme must be agreed in writing, further to which Terrateam can provide a copy of the Content. Customer itself remains responsible for compliance with all legal administration and retention obligations applicable to it. All costs associated with these transition services will be reimbursed by Customer.

11. Final Provisions

11.1 Parties shall always inform one another in writing immediately of any changes to their name, postal address, e-mail address, telephone number, and if requested, bank account number.

11.2 The received or saved version of any communications received by Terrateam shall be considered authentic unless Customer can supply evidence to the contrary.

11.3 Terrateam may use Customer’s name and logo in Terrateam’s promotional materials and on Terrateam’s website relating to Customer’s use of the Services. Otherwise, neither party may use the name, logo, or other trademarks of the other party for any purpose without the other party’s prior written approval.

11.4 Customer shall give Terrateam irrevocable permission to transfer all rights and responsibilities under the Agreement to third parties. However, Customer may only transfer its rights and responsibilities under the Agreement to third parties subject to the prior explicit written approval of Terrateam.

11.5 Postponing or neglecting to demand strict compliance from Customer by Terrateam or to exercise another right to which Terrateam is entitled will not constitute a waiver of rights. Neither single nor partial exercise of a right or legal remedy as defined in these General Terms and Conditions shall prevent further exercise of that right or legal remedy or the execution of another right or legal remedy.

11.6 If any provision of these General Terms and Conditions should be null and void or is annulled, the other provisions of these General Terms and Conditions remain fully applicable and effective. In that case, Terrateam and Customer consult as to arrange for new provisions which have the same purport as much as possible and that will replace the provisions that are null and void or that have been annulled.

11.7 These General Terms and Conditions and the Agreement are governed by Dutch law.

11.8 In the event of disputes arising from or related to the General Terms and Conditions and/or the Agreement and any non-contractual obligations arising out of or in connection with it, the parties will first enter into consultations and strive for an amicable solution. Should parties be unable to do so, the dispute will be submitted to the competent judge of the Amsterdam District Court.

12. Security

12.1 Security protection provided by Terrateam with respect to its systems and infrastructure meets the specifications on security parties have agreed upon in writing. Terrateam does not guarantee the security provisions are effective under all circumstances. If the Services Agreement does not include explicitly defined security, the security features provided meet a level that is not unreasonable and adequate in view of the state of the art, the implementation costs, the nature, scope, and context as known to Terrateam of the data to be secured, the purposes and the standard use of the Services, and the probability and seriousness of foreseeable risks.

13. Protection of Personal Data

13.1 Parties will at all times comply with the obligations arising from Dutch legislation on the protection of personal data and other relevant (national, European, and international) legislation regarding the protection of personal data that apply to the implementation of the Agreement.

13.2 Standard Clauses for Processing

13.2.1 The provisions set forth in this article shall in addition to the general provisions of these General Terms and Conditions apply if in the context of the performance of the Services, Terrateam processes personal data for the benefit of the controller(s) as a (sub)processor (data processor) as referred to in the legislation on the protection of personal data. This article, together with practical arrangements for processing in the Agreement, constitute a processor’s agreement as referred to in article 28 paragraph 3 of the General Data Protection Regulation (GDPR).

13.3 General

13.3.1 Terrateam shall process the personal data on behalf of Customer in accordance with Customer’s written instructions agreed with Terrateam.

13.3.2 Customer is a controller within the meaning of the GDPR and therefore has control over the processing of personal data and has determined the purpose and means of processing personal data.

13.3.3 Terrateam is a processor within the meaning of the GDPR and therefore has no control over the purpose of and means for processing the personal data and does not take decisions regarding the use of personal data among other things.

13.3.4 Terrateam implements GDPR as laid down in this article and in the Agreement (together the processor agreement). It is up to Customer to assess based on this information whether Terrateam offers adequate guarantees regarding the application of appropriate technical and organisational measures so that the processing meets the requirements of the GDPR and the protection of the rights of data subjects is sufficiently guaranteed.

13.3.5 Customer guarantees Terrateam that it acts in accordance with the GDPR, that it secures its systems and infrastructure at all times adequately, and that the content, use, and/or processing of the personal data are not unlawful and do not infringe any right of a third party.

13.3.6 Customer is not entitled to recover from Terrateam an administrative fine imposed on it by the supervisory authority as referred to in the GDPR on any legal grounds whatsoever.

13.4 Security

13.4.1 Terrateam will take the technical and organizational security measures as described in the Agreement. In taking the technical and organizational security measures, Terrateam has considered the state of the art, the implementation costs of the security measures, the nature, scope, and context ofhe processing, the nature of its products and services, the processing risks, and the risks varying in terms of probability and seriousness to the rights and freedoms of data subjects which Terrateam may expect in view of the use of the Services.

13.4.2 Unless explicitly stated otherwise in the Agreement, the Services are not designed for the processing of special categories of personal data or data relating to criminal convictions or offences.

13.4.3 Terrateam shall endeavour to ensure that the security measures to be taken by it are appropriate for the use of the Services intended by Terrateam.

13.4.4 Terrateam may make changes to the security measures taken if in its opinion this is necessary in order to continue to offer an appropriate level of security. Terrateam will record important changes and will inform Customer of these changes where relevant.

13.4.5 Customer may request Terrateam to take further security measures. Terrateam is not obliged to implement changes in its security measures in response to such a request. Terrateam may charge Customer for the costs related to the changes made at Customer’s request. Only after the amended security measures requested by customer have been agreed in writing by the parties will Terrateam be obliged to actually implement these security measures.

13.5 Personal Data Breaches

13.5.1 Terrateam does not guarantee that the security measures will be effective under all circumstances. If Terrateam discovers a personal data breach, it shall inform Customer without unreasonable delay.

13.5.2 It is up to Customer to decide whether the personal data breach about which Terrateam has been informed must be reported to the supervisory authority or to the data subject. Reporting personal data breaches remains at all times the responsibility of customer.

13.5.3 Terrateam shall, if necessary, provide further information on the personal data breach and shall cooperate in providing the necessary information to Customer for the purpose of a report to the supervisory authority or the data subjects.

13.5.4 Terrateam may charge the reasonable cost it incurs in this connection to Customer at its then current rates.

13.6 Confidentiality

13.6.1 Terrateam shall ensure that the persons processing personal data under his responsibility have a duty of confidentiality.

13.6.2 Terrateam is entitled to provide personal data to third parties if and insofar as provision is necessary pursuant to a court order, a statutory regulation, on the basis of an authorized order given by a government body, or for the proper execution of the agreement.

13.7 Obligations and Termination

13.7.1 In the event that the processor agreement ends, Terrateam shall remove all personal data in its possession and received from Customer within the period stipulated in the Agreement in such a way that it can no longer be used and is no longer accessible (rendered inaccessible) or if agreed, shall return a copy of it to Customer in a machine-readable format.

13.7.2 Terrateam may charge any costs incurred in the context of the provisions of the previous paragraph to Customer. Further arrangements in this regard may be laid down in the Agreement. The last mentioned provisions shall not apply if a statutory regulation prevents Terrateam from deleting or returning the personal data in whole or in part. In such a case, Terrateam shall only continue to process the personal data insofar as necessary on account of its statutory obligations.

13.8 Data Subject Rights, Data Protection Impact Assessment (DPIA), and Audit Rights

13.8.1 Terrateam shall, where possible, cooperate with reasonable requests from Customer in connection with rights of data subjects invoked with Customer. If Terrateam is approached directly by a data subject, it shall, where possible, refer the data subject to Customer.

13.8.2 If Customer is obliged to do so in accordance with the GDPR, Terrateam shall, following a reasonable request to that effect, cooperate in a data protection impact assessment (DPIA) or subsequent prior consultation.

13.8.3 At Customer’s request, Terrateam shall make available all information reasonably required to demonstrate compliance with aforementioned provisions regarding the processing of personal data, for example by means of a certificate, an audit report (Third Party Memorandum) drawn up by an independent expert on the instructions of Terrateam, or by means of other information to be provided by Terrateam. If despite this, Customer has reason to believe that the processing of personal data does not take place in accordance with aforementioned provisions, Customer may, at Customer’s expense, have an audit of this carried out no more than once a year by an independent certified external expert who has demonstrable experience in the type of processing carried out on the basis of the Agreement. Terrateam has the right to refuse an expert if in Terrateam’s sole opinion the expert affects his competitive position. The audit will be limited to verifying compliance with the agreements regarding the processing of personal data as laid down in the Agreement. The expert shall have a duty of confidentiality with regard to what he finds and shall only report to customer that which constitutes a shortcoming in the fulfilment of Terrateam’s obligations under the Agreement. The expert shall provide a copy of his report to Terrateam. Terrateam may refuse an expert audit or instruction if in its sole opinion this is in violation of the GDPR or other legislation or constitutes a breach of the security measures it has taken.

13.8.4 Parties will consult on the results of the report as soon as possible. Parties shall comply with the proposed improvement measures set out in the report in so far as this can reasonably be expected of them. Terrateam will implement the proposed improvement measures in so far as these are appropriate in its opinion, considering the processing risks associated with the Services, the state of the art, the implementation costs, the market in which it operates, and the intended use of the product or service.

13.8.5 Terrateam shall be entitled to charge Customer for the costs he incurs in connection with the provisions of this article.

13.9 Sub-processors

13.9.1 Terrateam has stated in the Services Agreement whether and if so which third parties (sub-processors) Terrateams involves in the processing of personal data.

13.9.2 Customer gives the contractor permission to use other sub-processors for the performance of its obligations under the agreement. Terrateam shall inform Customer of any change in the third parties engaged by Terrateam. Customer has the right to object to the aforementioned changes by the contractor.

14. Amendments to the General Terms and Conditions

14.1 Terrateam reserves the right to amend or supplement these General Terms and Conditions.

14.2 Amendments shall also apply to previously concluded agreements with due observance of a period of thirty (30) days after the announcement of the amendment on the Terrateam website or via email. Amendments of lesser importance may be implemented with immediate effect.

14.3 If Customer does not wish to accept an amendment to these General Terms and Conditions that works to its detriment, it must inform Terrateam of such prior to the date on which the new conditions enter into force. Terrateam may then withdraw the amendment in question, after which it shall no longer apply to Customer. If Terrateam does not wish to withdraw the amendment, Customer shall be entitled to terminate the Agreement on the date of the amendment, or if the amendment has already taken effect, on the date that notification of termination was received.

Terrateam Terms of Service - Usage and Guidelines