END USER AGREEMENT & PROCESSOR AGREEMENT
Revised On: March 22nd, 2016
END USER AGREEMENT
The terms and conditions of this end user agreement apply to Your use of the App and the Services.
1.1. In these end user agreement, the following terms shall have the meanings set out below unless the context requires otherwise:
Account: Your account created via the App;
App: the app provided by Siilo that You purchase, use or intend to use;
Services: all services made available by Siilo, including but not limited to, services accessed through the App and storage of User Generated Content on Siilo’s servers;
Siilo: Siilo Holding B.V., Keizersgracht 585, 1017 DR Amsterdam, the Netherlands, its respective group company that offers and/or provide the App and/or the Services or another company that uses this end user agreement;
User Generated Content: communications, materials, information, data, opinions, photos, profiles, messages, notes, website links, text information, music, videos, designs, graphics, sounds, and any other content that You post or otherwise make available on or through the App or the Services or store on the same;
You/Your: you, being the user of the App and/or the Services, and your, as in the possessive pronoun of all that relates to you
2.1. Your use of the App and the Services is subject to the terms and conditions set forth in this end user agreement. If you have not yet concluded this end user agreement, you conclude it either by using or by accessing the App or the Services or any parts thereof. Such use and/or accessing constitute Your consent to and acceptance of this end user agreement. If You do not accept this end user agreement unconditionally in full, do not install, use or access the App or the Services and immediately delete the App should you have already installed it.
2.2. If You are a consumer you are not allowed to use the App or the Services and you must immediately terminate such use and delete the App.
2.3. Siilo is entitled to amend this end user agreement from time to time. If You do not accept such amendments, You must notify Siilo thereof in writing within four weeks after the date on which You have been informed of such amendments. Following such notification, Siilo may, in its sole discretion, decide to terminate the agreement with You (and reimburse You proportionally should you have paid a fee for a term that is not yet finished) or to continue such agreement under the former version thereof. If you do not notify Siilo timely of your non-acceptance, you will be unconditionally bound to the amended end user agreement.
2.2. Siilo is entitled to amend this end user agreement from time to time. If You do not accept such amendments, You must notify Siilo thereof in writing within four weeks after the date on which You have been informed of such amendments. Following such notification, Siilo may, in its sole discretion, decide to terminate the agreement with You (and reimburse You proportionally should you have paid a fee for a term that is not yet finished) or to continue such agreement under the former version thereof. If you do not notify Siilo timely of your non-acceptance, you will be unconditionally bound to the amended end user agreement.
3.1. The App and any software used to deliver the Services are licensed, not sold, assigned or transferred. Siilo grants You a personal, non-exclusive license to install and use the App and the Services as provided by or on behalf of Siilo, as set forth in this end user agreement. . All rights to use the App and the Services are limited to professional use.
3.2. The rights granted herein are subject to Your continuous compliance with this end user agreement. Without prejudice to any other rights and remedies Siilo may have hereunder, any non-compliance entitles Siilo to deny You further use of the App and/or the Services.
3.3. The license is limited to the intellectual property rights of Siilo and its licensors in the App and does not include any other rights.
3.4. All rights not expressly granted to You herein are reserved by Siilo. Siilo retains all its rights, titles and interest in and to the App and the Services, including, but not limited to, all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, computer codes, audiovisual effects, themes, characters, character names, stories, dialog, settings, artwork, sound effects, musical works, and moral rights whether registered or not and all applications thereof.
3.5. Unless insofar expressly authorized by mandatory applicable legislation, You will not, without prior written consent from Siilo or as set forth herein otherwise: (i) commercially exploit the App or the Services other than using it as it clearly is intended; (ii) distribute, lease, license, sell, rent, lend, convey or otherwise transfer or assign the App and the Services, any copies thereof, or any passwords or usernames of the App and the Services, (iii) copy, reproduce or distribute the App in any manner or medium, in whole or in part, or decompile, disassemble, or reverse engineer the App by any means whatsoever; (iv) make the App publicly available or available on a network for use or download by multiple users; (v) use or install the App (or permit others to do same) on a network, for on-line use, (vi) remove, alter, or obscure any product identification, copyright, intellectual property, author attributions, legal notices or other labels of the origin or source in the App, (vii) alter, modify, enhance, or create a derivative work of the App.
4. Warranties, liability and indemnity
4.1. Your use of the App and the Services is at Your own account and risk. You are responsible for any and all use of the App and the Services, as well as for the integrity of the password and other identifying means in respect of Your Account. You shall keep Your username and password secure and not allow anyone else to use Your username or password to access the App or the Services.
4.2. Siilo is neither responsible nor liable for any loss that results from the unauthorized use, with or without Your knowledge, of Your username, password and/or other identifying means.
4.3. You agree and warrant that Your use of the App and Services, and Your User Generated Content, will not infringe upon any and all rights of third parties, including but not limited to intellectual property rights, moral rights and privacy rights and, more specific, that such use will always be in conformity with all applicable laws and regulations and with the professional standards in respect of data protection and confidentiality.
4.4. You hereby agree to defend, indemnify and hold harmless Siilo and the parties involved by Siilo for providing the App and the Services to You from and against all damage, claims, costs, charges and expenses (including attorneys’ fees) arising out of Your use of the App and the Services.
4.5. You must notify Siilo immediately in the event You become aware of any access to or usage of the App and the Services of User Generated Content by third parties under Your Account that You did not authorize, or any other possible breach in security.
4.6. Siilo cannot guarantee that the App and the Services will always be available or will always work without any interruptions, errors or defects, or that the information provided on the App and the Services is complete, correct and/or up-to-date.
4.7. The App and the Services are provided to You ‘as is’ and might contain defects. They are provided without warranty of any kind, without performance assurances or guarantees of any kind, and Your use is at Your sole risk. Siilo, Siilo’s licensors and affiliated parties do not make, and disclaim, any and all express or implied warranties, including implied warranties of condition, error-free or uninterrupted use, accuracy of data, merchantability, compatibility, interoperability, satisfactory quality, fitness for a particular purpose, non-infringement of third party rights or that any errors or defects in the App and/or the Services will be corrected.
4.8. Siilo at all times has the right, but can never be obliged, to update, to upgrade and/or to adapt the App and/or the Services, to change or remove data or information stored on the App or the Services.
4.9. Siilo may agree to maintain certain service levels. Demanding fulfillment of Siilio’s obligations out of such further agreement shall be Your only right and remedy in the event of an error, defect, unavailability or other technical shortcoming of the App and/or the Services.
4.10. Siilo, Siilo’s licensors or affiliated parties will not be liable for any special, incidental, consequential or exemplary damages, including but not limited to loss of opportunity or lost profits, loss of goodwill, property damage, computer failure or malfunction and, to the extent permitted by law, damages for personal injuries, or other damage or losses from any causes of action, arising out of or related to the License or the App or the Services, including the possession, access, use or malfunction of the App or the Services, whether arising in tort (including negligence), contract, strict liability or otherwise and whether or not Siilo, Siilo’s Licensors or affiliated parties have been advised of the possibility of such damages.
4.11. In no event shall Siilo, Siilo’s licensors’ or and affiliated parties’ total liability exceed the actual price paid by You for the use of the App and Services. In the event You pay a recurring users fee, such liability is limited to the fee in respect of the period in which the cause of the liability occurred. Only in the event of gross negligent or willful misconduct of Siilo’s management team, no limitation to Siilo’s liability shall apply. The limitation of liability in this clause applies for all of Siilo’s and the other parties’ liability regardless of its origin. It applies to contractual as well as to non-contractual liability.
5. Term and termination
5.1. Unless set out otherwise by Siilo, the term of Your License shall commence on the date that You start to download, install or otherwise use the App and/or Services, and shall end on the earlier of: (i) the date that the term set by Siilo terminates and (iii) the date that You dispose of the App and/or Services, (iv) Your attempt to circumvent any technical protection measures used in connection with the App and/or Services; (v) Your use of the App and/or Services in breach of this end user agreement otherwise; or (vi) Siilo's termination of the License.
5.2. Without limiting Siilo’s statutory rights to terminate or Siilo’s other rights and remedies, Siilo is authorized to suspend the fulfilment of the obligations or to dissolve the License with You without incurring any liability for compensation in the event:
a) That You fail to fulfil Your obligations to Siilo, whether partly or in full;
b) Siilo finds out you do not use the App and/or the Services in accordance with professional standards;
c) Siilo receives complaints in respect of Your use of the App and/or the Services;
d) That Siilo becomes aware of circumstances that constitute valid grounds to expect that You will not timely fulfil Your total obligations;
e) That You were requested to furnish security for the fulfilment of Your obligations to Siilo and this security is not adequately furnished;
f) Of circumstances whose nature precludes that Siilo can be required to fulfil its obligations according to standards of reasonableness and fairness, or in the event of other circumstances whose nature precludes that Siilo may be reasonably expected to maintain its obligations without alteration.
5.3. In case Siilo determines that complaints in respect of Your behavior are incorrect or should not lead to further suspension of Your use of the App and/or the Services, Siilo shall allow You to continue the App and the Services. Under no circumstances Siilo shall become liable in any way if false complaints or wrong judgment of Your behavior, leads to suspension of Your use of the App and/or the Services.
5.4. Promptly upon termination, You must cease all use of the App and Services and remove and destroy all copies of the App in Your possession or control.
6.2. For personal data in User Generated Content Siilo is the processor and either You are, or your employer or the organization You work for is, the controller under the Dutch Data Protection Act (Wet bescherming persoonsgegevens). In the event that You are the controller You (as controller) and Siilo (as processor) hereby enter into the Data Processor Agreement attached to this end user agreement as Annex 1.
7. Survival and severability
7.1. Any provisions in this end user agreement, which by their nature extend beyond the termination or expiration of any license under this end user agreement, will remain in effect after such termination.
7.2. If any provision of this end user agreement is deemed to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. In case of any such invalid provisions, Siilo will replace such invalid provisions.
8. Questions and suggestions
8.1. Should You have any questions or suggestions concerning Your use of the App, the Services or this end user agreement, You can contact Siilo via firstname.lastname@example.org.
9. Governing law and competent court
9.1. This end user agreement is governed by and construed in accordance with the laws of the Netherlands.
9.2. The United Nations Convention for the International Sale of Goods (CISG) does not apply.
9.3. Any disputes regarding this end user agreement and/or the use of the App or the Services that cannot be settled amicably will be submitted to the relevant court at Amsterdam.
10.1. This version of the end user agreement is dated 22 March 2016
This Processor Agreement is an agreement between the user of the App and Services (hereafter: ‘Controller’) and Siilo (hereafter: ‘Processor’).
a. Controller is user of the App and Services owned, provided and operated by Processor. Controller and Processor concluded an End User License Agreement (hereafter: ‘EULA’) regarding the use of the App and Services.
b. In the context of the EULA Processor processes personal data for which Controller is controller and Processor is processor within the meaning of the Dutch Data Protection Act (Wet bescherming persoonsgegevens, hereafter: ‘Wbp’).
c. Having regard to the provisions in article 14 Wbp, Controller and Processor want to define the terms under which the Personal Data will be processed.
1.1. In the Processor Agreement the definitions of the EULA apply. In addition, the following definitions apply:
Controller, Data Protection Authority, data subject, personal data, processing, Processor, third party: the meanings as defined in the Wbp;
App: the app provided by Siilo that Controller purchases, uses or intends to use under the EULA;
Processor Agreement: this Processor Agreement;
Services: all services made available by Siilo, including but not limited to, services accessed through the App and storage of User Generated Content on Siilo’s servers;
Siilo: Siilo Holding B.V., Keizersgracht 585, 1017 DR Amsterdam, the Netherlands, or its respective group company that offers and/or provide the App and/or the Services;
EULA: the End User License Agreement concluded between Controller and Processor;
Dataleak: a security breach in which personal data is lost, or unlawful processing of personal data cannot be excluded;
Subprocessor: the party engaged as processor by Processor for the processing of personal data under this Processor Agreement and the EULA.
2. Formation, subject and instruction
2.1. This Processor Agreement is concluded with the formation of the EULA between Parties.
2.2. This Processor Agreement shall apply to the processing of personal data in the context of the EULA.
2.3. Controller herewith instructs Processor to process personal data in the context of the EULA. The processing consists of the sending and storing of personal data uploaded to and sent by Controller through the App and Services.
2.4. Controller has and maintains full control over his personal data.
2.5. Processor processes the personal data in a proper manner and with due care.
2.6. Processor will process the personal data only in accordance with Controller’s instructions, in compliance with the purposes and means determined by Controller, and in accordance with retention periods determined by Controller.
2.7. Controller warrants that his instructions to Processor lead to processing by Processor in compliance with applicable laws and regulations.
3.1. Processor shall immediately inform Controller of any established Dataleak.
3.2. Processor will of his own accord provide Controller with all information concerning any Dataleak, including the nature of the personal data, the amount of personal data and the number of data subjects involved, and the measures taken.
3.3. Having regard to the statutory duty resting on Controller to report a Dataleak, it is up to Controller to determine whether a Dataleak is to be notified to the Data Protection Authority.
4.1. Processor will keep the personal data secret. Processor shall ensure that personal data is not directly or indirectly (made) available to third parties. Third parties include staff of Processor in as far as such staff does not need to access personal data in the context of this Processor Agreement. The above does not apply if this Processor Agreement dictates otherwise, or in case of disclosure mandated by law or court ruling.
4.2. Processor ensures that his staff is subject to the confidentiality set out in this article.
4.3. Processor will notify Controller immediately of any request for inspection, provision or other form of enquiry and provision of personal data in breach of the confidentiality obligation contained in this article.
5. Security and control
5.1. Processor will, as shall Controller, provide appropriate technical and organizational measures to protect the personal data against loss or any form of unlawful processing. These measures will, taking into account the state of the art and the costs associated with the implementation and execution of such measures, ensure an adequate level of protection, taking into account the risks associated with the processing and the nature of the personal data.
5.2. The measures referred to in article 5.1 shall in any case include:
a) measures to ensure that only authorized personnel have access to the personal data processed in the context of the Processor Agreement;
b) measures to protect the personal data against accidental or unlawful destruction, loss, alteration, unauthorized or unlawful storage, access or disclosure;
c) measures to identify weaknesses with regard to the processing of personal data in the systems that are used for the provision of services to Controller;
d) an appropriate information security policy for the processing of personal data.
5.3. Processor will evaluate the information security measures taken by him and tighten, supplement or improve them to the extent warranted by requirements or (technological) developments.
5.4. Processor enables Controller to meet his legal obligation to monitor compliance with the technical and organizational security measures by Processor. This can be done by (but not limited to) reports by Processor, valid certification or similar means of control and proof.
5.5. Controller shall at all times have the right, in consultation with Processor and subject to a reasonable period of time, at his own expense, to have the technical and organizational security measures by Processor verified by an independent registered EDP auditor. Parties may determine by agreement that the audit is performed by a certified and independent auditor hired by Processor who will issue a third party statement (TPM). Controller will be informed of the outcome of the audit. Controller and Processor shall keep all results of audits based on this article 5.5 strictly confidential.
6. Rights of data subjects
6.1. A complaint or request from a data subject regarding the processing of personal data is forwarded without delay by Processor to Controller, who is responsible for handling the request.
6.2. Processor renders, in so far as this is reasonably possible, any assistance necessary to Controller to fulfil his obligations under the Wbp within the statutory periods, in particular the rights of data subjects regarding a request for access, correction, addition, deletion or blocking of personal data. Parties will discuss in good faith the reasonable allocation of the costs involved.
7.1. Processor is entitled to engage Subprocessors.
7.2. Processor shall contractually require each Subprocessor to respect confidentiality obligations, reporting requirements and security measures with regard to the processing of personal data, which obligations and measures shall at least comply with the provisions of this Processor Agreement.
7.3. Processor shall require each Subprocessor by contract not to process personal data outside the context of this Processor Agreement.
8. Processing outside the EEA
8.1. Parties shall ensure that, to the extent that personal data are processed outside the European Economic Area, such processing shall conform to the requirements of the Wbp.
9. Retention periods and destruction of personal data
9.1. Controller shall adequately inform Processor about (legal) retention periods that apply to the processing of personal data by Processor. Processor shall not process the personal data any longer than in accordance with these retention periods.
9.2. Processor shall destroy personal data processed in accordance with this Processor Agreement upon the termination of this Processor Agreement, unless the personal data must be kept longer, as in the case of (legal) obligations, or at the request of Controller. Controller may check at his own expense wether the personal data have been destroyed.
9.3. Processor will confirm that the destruction of the processed personal data has taken place.
9.4. Processor will inform all Subprocessors involved in the processing of personal data of the termination of the Processor Agreement, and will ensure that all Subprocessors shall destroy the personal data.
10.1. Changes to this Processor Agreement are valid only if agreed in writing between the Parties.
10.2. This Processor Agreement runs as long as the EULA is in force between Parties. The provisions of this Processor Agreement remain in force to the extent necessary for the settlement of the Processor Agreement, and insofar as they are intended to survive its termination. These include, without limitation, the provisions relating to confidentiality and conflicts.
10.3. This Processor Agreement is not transferable by either Party without the written consent of the other Party. Hoewever, no consent is required in case of transfer by Processor to a subsidiary or sister company of Processor.
10.4. This Processor Agreement supersedes all other agreements between Controller and Processor.
10.5. This Processor Agreement is governed exclusively by Dutch law.
10.6. Parties will exclusively submit their disputes related to this Processor Agreement to the relevant court in Amsterdam.
11.1. This version of the end user agreement is dated 22 March 2016