Article 1.         Interpretation and Definitions

1.1 For the purpose of the Agreement, the following definitions apply:

API
Means the connection between the Sellable Platform and the Third Party Platforms.

Sellable
Means the limited liability company Sellable BV.

Customer
Means the entity with which a Subscription is entered into.

Data
Means any and all data (including, but not limited to, transaction data and customerdata) related to products being offered and sold on Third Party Platforms, which will be processed in the Sellable Platform through the Service, as specified in the Subscription.

Documentation
Means the standard manuals and training materials for the use of the Sellable Platform (which may be amended by Sellable from time to time).

Interface
Means the graphical user interface with which Customer can access reports and/or (aggregated) management information and/or data, on the basis of the Data as processed in the Sellable Platform.

Dashboard
the Sellable landing page for logged users that includes aggregated information and / or data where an overview is presented.

Error
Means a substantial, demonstrable and reproducible non-fulfilment of the Sellable Platform with the Documentation.

Third Party Platforms
Means the (own or third party) platforms used by Customer, which will be configured with the Sellable Platform, for processing the Data between these platforms and the Sellable Platform, as specified in the Subscription.

IP-Rights
means any patent right, copyright, design right, trade mark right, sui generis rights in databases, whether registered or not, as well as any application to register any of the aforementioned rights, and (rights in) trade secrets, or know-how and any other intellectual or industrial right of whatever nature in any part of the world.

Subscription
Means the type of subscription agreement by which Customer orders the Service and which is to be agreed by the Parties.

Sellable Platform
Means the standard market place management platform including underlying technology and software, which enables the Customer to manage its products offered and sold on Third Party Platforms more efficiently, as further outlined and specified in the Subscription. The platform includes the API, Dashboard and the Interface. The definition of Sellable Platform includes but is not limited to all programs, database structure, documentation, source codes, object codes, variations, memory maps, algorithms, plans, charts, graphs and other materials now or hereafter relating to or incorporated therein together with all future revisions to or updates thereof and all technical and operating manuals and any other documentation relating to it.

Requirements
Means the functional and technical requirements with respect to the Sellable Platform, in order to parameterize the Service to the specifics of Customer, as further laid down by Sellable in the Documentation.

Schedule
Means an exhibit to these Terms and/or the Subscription.

Service
Means the (distant) access and use of the Sellable Platform by the Customer for product management purposes, as further specified in these terms and the Subscription.

Service Fee
Means the fee to be paid by the Customer to Sellable for use of the Service.

Support: means the standard support and maintenance provided by Sellable related to the Sellable Platform, as specified in these Terms.

1.2 These Sellable Platform SAAS Terms (“the Terms”) govern all the rights and obligations of the Parties in relation to the Service and the use of the Sellable Platform, as specified in the Subscription. All documents related to a Subscription are interpreted together as one agreement between the Parties (“the Agreement”). In case of an irreconcilable conflict among the provisions of the documents of the Agreement, the following order of precedence applies:

1. the Subscription;
2. these Terms.

Article 2. Subject of the Agreement

2.1. Subject to the terms and conditions of the Agreement, Sellable shall use reasonable efforts in setting-up, installing and configuring a version of the Sellable Platform for the purposes of having Customer use the Sellable Platform, all as set forth in the Subscription. Sellable shall use reasonable efforts in providing the Service to the Customer as well as the standard Support and extended Support, if part of the Subscription, in accordance with Schedule 1. 

2.2 Sellable hereby grants the Customer a limited, personal, non-transferable, non-exclusive, non-sub-licensable right, upon payment of the Subscription, to use the Service in accordance with the Agreement.

Article 3.         Sellable obligations 

3.1 Sellable will use best efforts in providing the Service to the Customer. 

3.2 Sellable will use best efforts to make a (online) training available to the users of the Service designated by the Customer (Customer’s key users). 

3.3 Sellable shall be allowed to take technical measures to protect the Service and/or the Sellable Platform or with a view to agreed restrictions with respect to the right to use the Service. The Customer shall not be allowed to remove or evade such technical measures.

3.4 During and after the Agreement, Sellable will not publicly make any negative statements regarding the Customer nor otherwise take any actions in this respect that may harm the name and reputation of the Customer.

3.5 Sellable will render best efforts in providing the following support:

3.5.1. Standard Support is available for Errors only. 24×7 support is only available in case the Service cannot be used, or essential elements of the Service cannot be used (“Priority one Incidents”). The Customer will notify Support requests to Sellable as soon as reasonably possible. The Support will be rendered during regular business hours from 9:00 to 17:00, Monday through Friday, CET.

3.5.2 Sellable will make available qualified technical representatives to render Support. This support relates to troubleshooting of Sellable Platform issues, file management, report troubleshooting, interpretation of error messages, problem diagnosis, and recommendations for fully utilizing Sellable Platform capabilities. Sellable also will answer questions regarding procedures, documentation, proper operation, service, training, and Sellable Platform enhancements.

3.5.3 Sellable will provide updates and releases, if and when available. Customer must keep the Sellable Platform current in respect of updates and releases. Scheduled releases, which are issued periodically, may include available fixes for reported, verified, and corrected problems, when and if available.

3.5.4 Customer shall designate in writing individuals within its organization to coordinate all service requests to Sellable. Customer shall identify these individuals in writing to Sellable and may change these individuals from time to time upon written notice.

3.5.5 Customer shall make available to Sellable one or more designated employees of Customer knowledgeable in information services at such times and to the extent as may be reasonably required by Sellable to perform its Support services hereunder.

3.5.6 Support is not provided for any Error Sellable reasonably believes is not attributable to Sellable, including but not limited to Errors caused by (a) Customer’s or a third party contractor’s modifications; (b) operation of another platform other than the Sellable Platform (for example, the Third Party Platforms, operating systems or databases) or any hardware or other equipment owned by Customer; (c) use of the Sellable Platform that does not conform with the Requirements, (d) misuse by Customer of the Sellable Platform, or (e) Customer’s failure to be current. In the event Sellable provides Error correction services and, in doing so, reasonably determines that the Error was not caused by the Sellable Platform, Sellable shall be entitled to charge and Customer shall pay for the time and materials expended at Sellable’s then-standard commercial rates. 

Article 4.         Duties and obligations of Customer

4.1 Customer understands and agrees that Sellable’s performance is dependent, in part, on Customer’s actions. Accordingly, Customer will provide Sellable timely with the items and assistance as necessary to perform the Service  and any dates or time periods relevant to the performance by Sellable shall be appropriately and equitably extended to account for any such delays.

4.2 The Customer may not – nor permit any third party to – make use of the Service other than as expressly stipulated in the Agreement and/or as expressly and explicitly allowed by overriding mandatory law, such as the Copyright Act.

4.3 The use of the Service by the Customer’s nominated users is personal. Therefore, the users may not give any other person remote or other access to Sellable Platform. The login and password made available to the user are also personal. The user must keep these codes strictly confidential and/or use these codes with due care. The use of said codes shall be solely the responsibility of and the risk of user. The Customer shall indemnify, defend, and hold harmless Sellable from any claim, proceeding, loss or damages based upon any use, misuse, or unauthorized use of user’s login code and/or password relating to the Service.

4.4 During and after the Agreement the Customer will not publicly make any negative statements regarding Sellable, the Service (including Support) or the Sellable Platform, nor otherwise take any actions in this respect that may harm the name and reputation of Sellable.

4.5 The Customer will adhere to its responsibilities, as outlined in these terms, and will also follow up all reasonable instructions and guidelines issued by Sellable in connection with the Service and/or Support.

4.6 The Customer is responsible for meeting the Requirements (provided by Sellable) in order to be able to access and use the Service. The Customer is responsible for delivering and processing correct, complete and adequate Data through the Sellable Platform; the Customer agrees and understands that any inadequate, incorrect or incomplete Data will negatively impact the Service. The purchase, use and maintenance of electronic communication facilities and the Customer’s own IT-infrastructure (including software and hardware) in order to be able to use the Service, is for the Customer’s own account and risk. Sellable will in no event be liable for any damage, loss or costs, including loss of Data, or any inability to use the Service as a result of a shortcoming, defect, other malfunction and/or any other non-availability of the aforesaid electronic communication facilities and/or IT-infrastructure and/or in Customer not meeting the Technical and Functional Requirements (provided by Sellable) and/or the Customer using inadequate Data.

4.7 In using the Service, the Customer is responsible for compliance with all laws and regulations that apply to it.

Article 5.         Service fee

5.1 Customer shall pay the Service Fees agreed upon and set forth in the Subscription. The Service Fees are at all times to paid in advance, by credit card only. All prices and fees are exclusive of, and Customer shall pay, to the extent applicable, all taxes, duties, levies or fees, or other similar charges imposed on by any taxing authority (other than taxes imposed on Sellable’s income), related to the Service and the Agreement.

5.2 In addition to the foregoing, Customer shall pay Sellable its actual out-of-pocket expenses which are reasonable and necessary for Sellable to incur in furtherance of its performance hereunder; provided, however, that payments for such expenses shall not exceed the limits which may be set forth in the Subscription. Sellable agrees to provide Customer with such original receipts, ledgers, and other records as may be reasonably appropriate for Customer or its accountants to verify the amount and nature of any such expenses.

5.3 Sellable is entitled to limit or block access to the Service and to suspend its Service if a Service Fee is not paid in time.

5.4 Sellable is entitled to adjust the Service Fees once per calendar year. Sellable will inform the Client in time in case of any increase.

Article 6.          Intellectual property

6.1 All IP-rights including, but not limited to, the Sellable Platform, Service, API, Documentation, the Requirements and Support are and remain exclusively owned by Sellable. The Customer acquires limited rights of use only in as far as explicitly granted under the Agreement. Furthermore, Sellable exclusively owns and/or may use all rights in any ideas, concepts, know-how and techniques with respect to the Service, Support, the Sellable Platform and/or the Documentation as well as the technology in connection thereto.

6.2 The Customer is aware that the Sellable Platform, Service, and Support and other materials provided contain confidential information and trade secrets of Sellable. Both during the Agreement and for a period of 5 years thereafter, the Customer undertakes to keep such secret and not to make third parties acquainted with them or grant their use to the same, and to use them only for the purpose of the Agreement. The expression ‘third parties’ includes affiliated organizations of the Customer and any such persons working in Customer’s organization not nominated by the Customer to use the Service, equipment and/or other materials.

6.3 It is explicitly acknowledged and agreed that (i) the Customer may not and shall not permit any third party to reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code of the Sellable Platform, (ii) the Customer may shall not, and shall not permit any third party, to copy, make error corrections or otherwise modify or adapt the Sellable Platform nor create derivative works based on the Sellable Platform, and/or (iii) the Customer may not sell, (sub-)license, assign, transfer or lease the Service nor use the Service for commercial time-sharing, rental, or service bureau use.

6.4 Customer will not be permitted to remove from or change any designation concerning copyrights, trademarks, trade names or other intellectual or industrial property rights, including any indications concerning confidential nature and/or secrecy.

6.5 Sellable does not claim any ownership rights in Data, and Sellable is not responsible for such Data. Customer grants Sellable a royalty-free, worldwide irrevocable, sublicensable and transferable right to use Data, by any and all means, to the extent that this is required in the context of providing the Service and/or for amending and/or improving the Service. For the avoidance of doubt, this article will survive termination of the Agreement. Customer represents and warrants that it has all rights to grant the license as laid down in this article, without infringing or violating any third party rights, including but limited to, any privacy rights, publicity rights, intellectual property rights or any other proprietary rights. Customer indemnifies Sellable against any and all third party claims, based upon any alleged infringement of such third party rights in relation to the Data. Notwithstanding the foregoing Sellable can remove and/or block any Data uploaded through the Service for any reason and without notice.

6.6 Customer acknowledges and agrees (i) Sellable may collect and analyze (the latter both during and after the term hereof) data and other information relating to the provision, use and performance of various aspects of the Service (including, without limitation, Data and data derived therefrom), and (ii) Sellable may (during and after the term hereof), use such information and data (including to commercially exploit) in aggregate or other form in connection to any (non-)commercial purpose, such as but not limited to statistical reports, benchmark reports data and/or in connection with market segments.

Article 7.         Duration and termination

7.1 The Agreement is valid for the period as specified in the Subscription and will commence on the date of execution or acceptance of the Subscription. After this term, the Agreement will automatically be renewed for, each time, a period of one month, unless terminated by either Party with a notice period of four (4) weeks before expiry of the renewed period (the end-date defined as the “Termination Date”). The right of either Party to early terminate for convenience is excluded.

7.2 The Agreement will automatically terminate, without Sellable becoming liable whatsoever to Customer, if Sellable is not allowed to provide the Service and/or Support any longer for whatever reason, including but not limited to changes in the applicable law.

7.3 Sellable may terminate this Agreement in the event that Customer materially breaches this Agreement, including, without limitation, non-payment of amounts due to Sellable under a Subscription, provided that Sellable provides Customer with written notice of the breach and a thirty (30) day cure period, unless a notice of breach is not required in which event Sellable may terminate immediately.

7.4 Customer may terminate this Agreement in the event that Sellable materially breaches this Agreement, including, without limitation, failure to perform its obligations under a Subscription, provided that Customer provides Sellable with written notice of the breach and a thirty (30) day cure period, during which the breach remains uncured.

7.5 Either Party may terminate this Agreement with immediate effect if either Party petitions for bankruptcy or voluntary or involuntary dissolution, is declared insolvent, makes an assignment for the benefit of creditors, or has a receiver or trustee appointed over all or substantially all of its assets.

7.6 Upon termination of the Agreement or a Subscription for any reason being effective, any and all rights granted to Customer shall immediately cease. Customer shall promptly pay Sellable all amounts due. Customers account and Data upon termination will not be deleted, for the purpose of being able to activate the account at a later stage if the Customer requires to do so. Any personal data will be stored in conformity with Sellable’s Privacy Statement. 

7.7 The Parties will, if applicable, negotiate in good faith regarding any additional transition activities and/or exit assistance by Sellable following termination (for whatever reason), which may include additional payments to Sellable for providing such activities. Sellable shall never be held to undo any received payments (including any prepaid payments) as a consequence of the termination. 

Article 8.          Limitation of Liability and Indemnification

8.1. Customer is solely responsible and liable for all content, Data and activities conducted through or via the Service, or any part of feature thereof, by or on behalf of Customer, even if such activities were to occur without Customer’s permission. Customer hereby indemnifies and agrees to hold harmless Sellable, Sellable’s officers, directors, employees, and agents, from and against any and all claims, demands, and actions, and any liabilities, damages, or expenses resulting there from, including court costs and reasonable attorney fees, arising out of or relating to (i) the use of the Services, (ii) any breach of the obligations and/or warranties made by Customer under this Agreement , (iii) Customer’s negligence or willful misconduct. 

8.2 Except as expressly provided in this Agreement, Sellable does not make any warranty, express or implied, with respect to the Service rendered by its personnel or the results obtained from their work, including, without limitation, any implied warranty of merchantability or fitness for a particular purpose. In no event (including breach of any warranty) shall Sellable be liable for damages other than direct (as defined below), including but not limited to consequential, incidental, special, punitive, lost revenues, or indirect damages (including damage to and/or loss of software and/or data) regardless of whether it has been advised of the possibility of such damages.

8.3 If Sellable is found to be liable to Customer for any reason (including breach of any warranty), the aggregate cumulative and total liability of Sellable is at all times limited to direct damages only (and direct damages is solely to be understood property damages). In addition, this aggregate, cumulative and total liability of Sellable for such direct damages shall per year never exceed the total amount of fees actually paid to Sellable by Customer in that year pursuant to the Subscription. The limitations shall apply whether or not Sellable, its employees, licensors or its affiliates have been advised of the possibility of such losses or damages arising. 

8.4 The limitations mentioned in the preceding paragraphs shall not apply if and insofar as the damage is the result of willful intent or gross negligence by Sellable.

8.5 The Customer acknowledges and accepts that Sellable will operate only as a facilitator and is merely and only responsible for rendering the Service and Support subject to the terms of the Agreement. The use of the Service, Third Party Platforms and/or the processing of Data through the Service is for the Customer’s own account and risk. The Customer acknowledges and accepts that Sellable is not responsible for (i) loss, damage, alteration or destruction of Data and/or (ii) the Third Party Platforms. The Customer shall indemnify, defend, and hold harmless Sellable from any claim, proceeding, loss or damages resulting from and/or related to the use of the Service. 

Article 9.         Force majeure

9.1. Neither party shall be bound to meet any obligation if prevented from doing so as a consequence of force majeure. ‘Force Majeure’ shall in any event include any failure of any suppliers of Sellable not due to their fault or not for their risk, any ddos attack (attempt), any viruses in the Service and/or Sellable Platform, any hacking (attempts) of the Service and/or Sellable Platform and/or fire.

9.2 If a situation of force majeure has lasted for more than 120 working days, the Parties shall be entitled to terminate the Agreement by terminating it in writing. In that case any performance which has already taken place pursuant to the Agreement shall be settled proportionately without either Party being thereafter indebted to the other in any other amount.

Article 10.       General provisions

10.1 Neither Party shall divulge or disclose any proprietary information obtained from the other as a result of its performance under this Agreement to any third party during the term of this Agreement or thereafter. The Sellable Platform and the Data are at all times considered confidential information.

10.2 Neither Party shall (a) assign or transfer this Agreement to, a third party without the prior written consent of the other Party; such consent shall not be unreasonably withheld or delayed.  Notwithstanding the foregoing, this Agreement shall be binding upon the heirs and successors of the Parties to this Agreement, and no such prior written consent shall be required to assign or transfer this Agreement to any entity that (i) controls, is controlled by, is under common control with the assigning party, or (ii) to an entity that is acquiring all or substantially all of the assigning party’s assets.

10.3 This Agreement shall be governed by the laws of the Netherlands. Any disputes arising under, or related to, this Agreement must be brought in the courts located in Amsterdam, the Netherlands. The Parties hereto irrevocably consent to the exclusive subject matter jurisdiction and venue of such courts.  The Parties further agree and consent to the personal jurisdiction of such courts. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these terms and conditions.

10.4 The Parties are and shall be independent contractors to one another, and nothing herein shall be deemed to cause this Agreement to create an agency, partnership, or joint venture between the Parties. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Sellable and either Customer or any employee or agent of Customer.

10.5 The Agreement may be modified only in writing and shall be enforceable in accordance with its terms when signed by the party sought to be bound. The Agreement, these Terms, and any agreement with Customer, are for Customer’s sole benefit, and except as otherwise contemplated therein, nothing therein expressed or implied shall give or be construed to give any person, other than Customer, any legal or equitable rights thereunder. Customer understands and agrees that each member of the Sellable group of companies shall be third party beneficiaries to the Agreement and that such other companies shall be entitled to directly enforce, and rely upon, any provision of the Agreement which confers a benefit on (or rights in favor of) them. 

10.6 All remedies available to either Party for one or more breaches by the other Party are and shall be deemed cumulative and may be exercised separately or concurrently without waiver of any other remedies. The failure of either Party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches, unless such waiver shall be in writing and signed by the Party against whom enforcement is sought.