Terms & Conditions
Version 1.0 | February 2024
This document contains the general terms and conditions of Pandora Intelligence B.V., a company with its principal office located at Arthur van Schendelstraat 650 in 3511 MJ, Utrecht, the Netherlands and registered with the Dutch Chamber of Commerce under registration no. 62668447 (hereinafter: “Pandora”).
These general terms and conditions (hereinafter: “Terms”) apply to any and all agreements between Pandora and any client of services offered by Pandora (hereinafter: “Client”).
Pandora or Client may individually be referred to as a "Party" or collectively as the "Parties".
These Terms are divided into separate ‘Modules’. Module A shall apply to all offers, proposals and agreements between the Parties relating to the provision of services by Pandora, regardless of the type(s) of services provided. Module B shall apply in the event Pandora provides cloud-based software services, Module C shall apply in the event Pandora provides on-premises software services and Module D shall apply in the event Pandora provides development services, professional services, or other explicitly agreed additional work under the agreement. Insofar as the service provided involve processing of personal data as meant under the General Data Protection Regulation, the provisions of Module E shall apply.
Article A.2. Applicability and order of precedence. 4
Article A.3. Formation of the Agreement. 4
Article A.4. Performance of the Agreement. 5
Article A.5. Term and termination. 5
Article A.6. License grant and License Scope. 6
Article A.7. Accounts, Implementation and Integration and minimum requirements. 7
Article A.8. Trial and proof of value. 8
Article A.10. Intellectual Property Rights. 9
Article A.11. Additional work. 10
Article A.14. Client Data, privacy and data protection. 11
Article A.17. Confidentiality. 12
Article A.19. Force majeure. 14
Article A.21. Miscellaneous. 14
Module B: Cloud-based Software. 16
Article B.1. Applicability. 16
Article B.2. Hosted materials. 16
Article B.3. Maintenance and availability. 16
Article B.4. Client Data and back-ups 17
Module C: On-Premises Software. 18
Article C.1. Applicability. 18
Article C.4. Client Data and back-ups 18
Module D: Professional Services. 19
Article D.1. Applicability. 19
Article D.2. Professional Services. 19
Article D.3. Pricing and payment. 19
Article D.4. Development of Deliverables. 19
Article D.7. Intellectual Property Rights and license grant 21
Module E: Data Processing Agreement. 22
Article E.1. Applicability. 22
Article E.2. Processing of personal data. 22
Article E.3. Obligations of the Parties. 22
Article E.4. Transfer of personal data. 22
Article E.5. Sub-Processors. 22
Article E.6. Confidentiality and security. 23
Article E.7. Data breaches. 23
Article E.8. Rights of data subjects. 23
Article E.10. Return or destruction. 24
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General
Article A.1. Definitions
The capitalized words in these Terms have the meaning set out below, unless a (different) meaning is assigned elsewhere in these Terms or in the Agreement.
A.1.1. Account: Client’s and/or its End User's personal account, which is required to access full functionality of the Software.
A.1.2. Agreement: the entire agreement between Pandora and Client, which in any case includes, without limitation, Pandora's proposal or offer, these Terms and the Service Level Agreement (if applicable) entered into between the Parties.
A.1.3. Client Data: any data stored by Client or individual End Users of Client by way of the Services, or otherwise made available to Pandora by Client in the context of the Agreement.
A.1.4. Deliverables: all websites, web applications, software, data, documentation, concepts, texts, images, opinions, reports and other works, functionalities or products of the mind, in the broadest sense of the word created by Pandora under the Agreement including any results of Professional Services and other additional work.
A.1.5. Documentation: all accompanying materials (whether in hard copy or in electronic format) supplied in connection with the Software and/or Deliverables, including any and all manuals, instruction guides, online documentation, any written materials accompanying the Software and/or Deliverables or other materials provided to Client by Pandora which describe the functionality and/or specifications of the Software and/or Deliverables.
A.1.6. End User: each end user, being a natural person, to which Client provides access to the Software licensed to it by Pandora under Client’s risk and responsibility, in accordance with the Agreement.
A.1.7. Implementation and Integration: the integration, modifications and adjustments, and any installation and configuration required to make full use of the Software (either cloud-based Software or on-premises Software).
A.1.8. Intellectual Property Rights: all intellectual property rights and related rights, including but not limited to copyrights, database rights, domain name rights, trademark rights, brand rights, model rights, neighboring rights, patent rights and rights to know-how.
A.1.9. Office Hours: 09.00 AM – 17.00 PM on Monday through Friday, excluding any bank holidays observed in the Netherlands, holidays observed and announced by Pandora, and other days of which Pandora has indicated in advance that its offices will be closed.
A.1.10. Price List: Pandora’s price list, specifying the going rates and costs associated with Services provided by Pandora, as updated and amended by Pandora from time to time – which Pandora will provide on request. References to the "Price List", without further specification of version or current state, signify the most recent price list provided by Pandora at the moment the Agreement was finalized, subject to potential amendments as outlined in Article A.15. Mentions of the “current Price List” or “then-current Price List” are to be understood to refer to the most recent price list as maintained by Pandora.
A.1.11. Professional Services: services relating to the development of Deliverables, consultancy services, as well as other professional services not explicitly covered in these Terms.
A.1.12. Service Level Agreement: the separate service level agreement which Parties may opt to conclude and which, if concluded, forms an inextricable part of the Agreement.
A.1.13. Services: services provided by Pandora – including, without limitation – the provision of Software, Implementation and Integration, training, Professional Services and other additional work.
A.1.14. Software: the ‘Pandora Intelligence platform’ software solution and other standard software solutions provided by Pandora under the Agreement, including any (customized) adjustments, regardless of the form in which the software is made available to Client. Software may be provided as either (i) a cloud-based solution or (ii) an on-premises solution.
A.1.15. Training: trainings, workshops and/or seminars provided by Pandora and/or partners of Pandora.
Article A.2. Applicability and order of precedence
A.2.1. The provisions of these Terms shall apply to any and all offers, proposals and Agreements between the Parties, regardless of the Services provided, even if – in the event of a future offer, proposal or quotation – these Terms are not made available to Client again.
A.2.2. These Terms consist of this general Module A and a number of supplementary Modules. The provisions of this Module A apply to any Agreement that Pandora enters into with Client. Depending on the Services purchased, one or more supplementary Modules may apply in addition to this Module A. In the event of inconsistencies between Module A and another specific Module, the arrangements in the supplementary Module will prevail.
A.2.3. The Agreement between the Parties may comprise several documents. In principle, these documents apply supplementary to each other. In the event of inconsistencies, the below ranking order will apply, in which a document listed first prevails over a document listed further down:
a. the data processing agreement (if applicable)
b. Pandora’s proposal or offer;
c. the Service Level Agreement (if applicable)
d. these Terms.
A.2.4. The applicability of any terms or other conditions of Client is expressly excluded.
Article A.3. Formation of the Agreement
A.3.1. Agreements are concluded with Client’s acceptance of a proposal or offer. All Pandora's proposals and offers are free of obligation and are valid for thirty (30) days after the date stated in the proposal or offer. Pandora is not obliged to accept an indication of acceptance after the expiry of this period, but if Pandora does so, the proposal or offer will be deemed to have been accepted.
A.3.2. Pandora’s proposal or offer – in particular the scope/volume(s) required for Client’s expected use of the Services – will be based on an assessment made by Pandora of information provided by (prospective) Client. If Pandora bases a proposal or offer on data or information from Client that prove to be incomplete or otherwise incorrect, Pandora will be entitled to adjust the proposal, the offer or the Agreement already entered into accordingly or terminate or dissolve the Agreement.
A.3.3. Pandora will not be bound by an acceptance by Client that deviates from the proposal or offer, including where the deviation only relates to minor aspects as referred to in Section 6:225(2) of the Dutch Civil Code (“Burgerlijk Wetboek”). Any (additional) terms and conditions provided by Client are expressly not applicable.
Article A.4. Performance of the Agreement
A.4.1. After Client has accepted the proposal or offer, Pandora will endeavor to provide the Services as soon as possible, in accordance with the Agreement. Any deadlines stated by Pandora are always indicative and are not to be considered as strict deadlines (“fatale termijn”).
A.4.2. Pandora will always provide Client the Services on a ‘best efforts’ basis, unless Pandora has expressly committed to providing a specific result or a specific guarantee in the Agreement.
A.4.3. Pandora will be authorized to perform the Agreement in several stages and to invoice the various stages to Client separately.
A.4.4. Pandora is entitled to engage third parties in the performance of the Agreement. Any costs associated with this will only be at Client's expense if this has been agreed in advance.
A.4.5. In the performance of the Agreement, Pandora will take account of reasonable requests of Client, or state its reasons for not doing so. If, despite those reasons, Client insists that the request be complied with, Pandora may (insofar as the request can reasonably be carried out) perform the work at Client's risk, after receiving prior written confirmation of this from Client.
A.4.6. Client shall:
a. provide all necessary co-operation in connection with the Agreement in a timely and efficient manner. In the event of any delays in Client’s provision of such assistance as agreed by the Parties, Pandora may adjust any agreed timetable or delivery schedule as reasonably necessary;
b. provide all necessary access to such information as may be required by Pandora in order to provide the Services, including but not limited to Client Data, security access information and configuration services, and guarantees the accuracy, completeness and consistency of this information;
c. comply with all applicable laws and regulations with respect to its activities under the Agreement;
d. obtain and shall maintain all necessary licenses, consents, and permissions necessary for Pandora to perform its obligations under the Agreement; and
e. ensure that its network and systems comply with the relevant specifications provided by Pandora from time to time.
A.4.7. Client represents and warrants that the information and materials provided to Pandora are correct and complete. Pandora is entitled but not obliged to check these for correctness and completeness. If the information or materials are found to contain inaccuracies or is incomplete, Pandora will be entitled to suspend the Services until Client has remedied the shortcomings.
A.4.8. When using the Services, Client is obliged to comply with any reasonable advice and instructions provided by Pandora.
Article A.5. Term and termination
A.5.1. The term of the Agreement shall commence from the date stated in Pandora’s proposal or offer and for the period defined therein (“Initial Term”). If the Initial Term is not specified in the Agreement, the Initial Term shall be deemed to have a duration of thirty-six (36) calendar months – unless the Agreement pertains to the completion of a strictly defined project, in which case the Agreement will automatically terminate upon the completion of that project. The Agreement cannot be terminated, dissolved or rescinded, except as provided for therein.
A.5.2. Upon expiration of the Initial Term, the term of the Agreement shall automatically renew for additional successive terms of the same duration as the Initial Term (“Renewal Term”), unless either Party gives the other Party written notice of non-renewal at least sixty (60) calendar days prior to the beginning of the Renewal Term. Such Renewal Terms shall be under the terms and conditions of the Agreement of the Initial Term, unless Pandora has provided written notice to Client of any amended terms and conditions of the Agreement and/or a pricing increase at least ninety (90) calendar days prior to the beginning of the Renewal Term. In such event, the amended terms and conditions and/or the pricing increase shall apply to the Renewal Term.
A.5.3. Pandora may immediately terminate the Agreement by written notice to Client, without the requirement for notice of default or judicial intervention:
a. if Client has been granted suspension of payments, whether provisionally or not;
b. if Client is declared bankrupt; or
c. if Client’s company is dissolved or terminated.
A.5.4. In the event of bankruptcy of Pandora, Client may only terminate the Agreement if such bankruptcy has the effect that Client can no longer access and use the Software, with the exception of temporary disruptions in accessing and using the Software.
A.5.5. In the event Client does not comply with its obligations under the Agreement, Pandora shall, without prejudice to its other rights and remedies, in any event be entitled to suspend the execution of the Agreement, or to wholly or partially dissolve the Agreement. The foregoing shall also apply in the event of late payment by Client.
A.5.6. The provisions of the Agreement which, by their nature and content, are intended, expressly or impliedly, to continue to have effect notwithstanding the completion, rescission, termination or expiration of the Agreement shall survive and continue to bind the Parties, and shall in any event include Article A.16, Article A.17, Article A.18, Article A.19 and Article A.21.
A.5.7. The applicability of Article 6:271 et seq. of the Dutch Civil Code is expressly excluded. As such, termination, dissolution, or end of the Agreement by different means, shall under no circumstance lead to obligations or commitments to undo parts of the Agreement already performed at the time of termination (“ongedaanmakingsverbintenissen”).
Article A.6. License grant and License Scope
A.6.1. In consideration of the fees as specified in the Agreement and if and insofar agreed between the Parties in the Agreement, Pandora grants Client a non-exclusive, non-transferable license for the use of the Software for the duration of the Agreement for its internal business purposes and in accordance with the usage volumes (e.g. amount of specified usage ‘credits’ and/or number of analyses performed with the Software) and/or other limitations specified in the Agreement (“License Scope”). The license shall, unless agreed otherwise, become effective from the effective date of the Agreement.
A.6.2. Notwithstanding anything stated to the contrary in the Agreement, Client is expressly not permitted:
a. to reverse-engineer the source code of the Software or to decompile the Software, - unless such is allowed pursuant to a mandatory legal provision which may not be lawfully derogated from, in which case Client will immediately inform Pandora;
b. to make changes to or modify the Software, unless such is allowed pursuant to a mandatory legal provision which may not be lawfully derogated from or with prior written approval of Pandora;
c. to remove or render illegible indications of Pandora and/or its licensors as Party entitled to the Software or parts thereof; or
d. access all or any part of the Software and Documentation in order to build a product or service which competes with the Software.
A.6.3. Client authorizes Pandora to publicly disclose that Client is using the Services and Pandora may use Client’s name and logo in any promotional materials, including but not limited to its website and in press releases.
A.6.4. At least thirty (30) days before the end of each period for which payment is owed for use of the Software in accordance with the Agreement and/or the Price List, Pandora and Client will review Client’s usage of the Software in relation to the agreed upon License Scope. In the event Pandora determines that Client has exceeded or can reasonably be determined to likely soon exceed the License Scope by twenty-five percent (25%) or more, Pandora is entitled to adjust the License Scope in accordance with the Price List and charge Client the fees corresponding to the adjusted License Scope for the subsequent year. Similarly, if it is determined that Client has used seventy-five percent (75%) or less of the agreed upon License Scope, Parties may agree to decrease the License Scope in accordance with the Price List and charge Client the corresponding fees for the subsequent year. Client shall never be entitled to a refund with respect to unused usage volumes of an agreed upon License Scope.
A.6.5. In addition to the yearly review specified in the previous paragraph, Pandora reserves the right to regularly review Client’s usage of the Software in relation to the agreed upon License Scope at its sole discretion as reported through its systems. Pandora is entitled to charge Client the corresponding fees for any use beyond the agreed upon License Scope in accordance with the Price List – which fees will be added to the monthly payable fees – in the event client exceeds the License Scope by:
a. twenty-five percent (25%) or more, for three (3) consecutive months; and/or
b. fifty percent (50%) or more, calculated as the average over five (5) consecutive months.
A.6.6. The rights provided under this Article A.6 are granted to Client only, and shall not be considered granted to any subsidiary or holding company of Client, unless expressly agreed otherwise.
Article A.7. Accounts, Implementation and Integration and minimum requirements
A.7.1. Regardless of whether Client uses the Software as a cloud-based solution or as an on-premises solution, each End User of the Software shall require (i) an Account and (ii) if specified in the Agreement, a certain amount of Implementation and Integration to make full use of the Software.
A.7.2. In the course of providing access to the Software and Implementation and Integration in accordance with the Agreement, Pandora shall either (i) provide Client with an Account for each of its End Users, (ii) provide Client with an administrator Account, which it can use to create additional Accounts for its End Users or (iii) otherwise ensure Client and its End Users receive access to the Software through (an) Account(s), for example by integrating Client’s existing authentication mechanisms.
A.7.3. Unless agreed otherwise, Pandora shall provide Client with the necessary Implementation and Integration required to make full use of the Software as soon as possible after the effective date of the Agreement.
A.7.4. Unless otherwise agreed, Pandora is not obliged to load, convert or migrate any Client Data in the course of Implementation and Integration. Pandora may charge Client separately, against its Professional Services rates, as indicated in the then-current Price List, for support in this context.
A.7.5. Client itself is responsible for setting up and maintaining a suitable and adequate ICT infrastructure (including hardware and software), taking into account the intended use of the Software – which is particularly relevant in the event of on-premises Software. At Client's request, Pandora may submit minimum system specifications. Client understands that these specifications can be adjusted over time, due to continually developing technology.
A.7.6. Certain functionalities of the Software are intended to be used with services provided separately to Client by third parties (hereinafter: “Third-Party Services”), examples of which are provided in the Agreement and/or the Software service descriptions. It is Client’s responsibility to ensure it has access to Third-Party Services. Client acknowledges that if it does not have aforementioned access, all or part of the functionalities of the Software may not work as intended. Pandora is under no circumstance responsible or liable for the (non-)availability or functioning of Third-Party Services. Functionalities relating to Third-Party Services provided by Pandora are always subject to change, depending on the availability of providers of such Third-Party Services and/or at the sole discretion of Pandora. Pandora will communicate any such changes in writing to Client as soon as reasonably possible.
A.7.7. An Account and the login data are strictly personal and may not be shared with any other person. Client and its End User must ensure all such login data is kept secret.
A.7.8. The use of Accounts by Client or its End Users is the responsibility and at the risk of Client. Pandora may assume that all actions performed by way of the Accounts are performed under Client's direction and supervision.
A.7.9. If login details of an Account are lost or leaked, Client shall immediately take all measures reasonably necessary and desirable to prevent misuse of the Account. These measures may include, for example, changing the password or blocking or removing the Account. In such events, Client will also immediately notify Pandora so that Pandora may take additional measures to prevent misuse of the Account.
A.7.10. If and to the extent agreed between the Parties, the provisions of Article D.6 shall apply, mutatis mutandis, to the delivery of Implementation and Integration by Pandora. In the absence of the Statement of Work in such an event, the Parties will agree to specific acceptance criteria by way of the Agreement.
Article A.8. Trial and proof of value
A.8.1. If explicitly specified in the Agreement, Client may make use of the trial and proof of value arrangement for Software, as set forth in this Article A.8.
A.8.2. After performance of Implementation and Integration of the Software (in the event this is performed by Pandora), or upon the effective date of the Agreement (in the event such is performed by Client itself), Client will enter a trial period for the duration specified in Pandora’s proposal or offer (hereinafter: “Trial Period”). If the Agreement prescribes the applicability of this trial and proof of value arrangement but does not specify a Trial Period, the Trial Period shall be one (1) month.
A.8.3. Up until five (5) days before the end of the Trial Period, Client may notify Pandora in writing that it does not wish to continue its use of the Software. In such an event, the Agreement (or, if other, non-ancillary Services are provided under the Agreement – the part of it that covers the provision of Software) shall be terminated at the end of the Trial Period.
A.8.4. After termination in accordance with Article A.8.3, Client shall not owe payment in relation to the Software for any subsequent license periods, but any amounts relating to Implementation and Integration Services performed by Pandora, as well as proportional licensing fees relating to use of the Software during the Trial Period shall still be owed, and become immediately due and payable upon termination.
A.8.5. If Client does not give notice as meant in Article A.8.3, the Agreement shall continue in accordance with the provisions thereof. With the exception that Pandora shall waive (and thus Client shall no longer owe):
a. an amount equal to the agreed Software licensing fees that would have been owed for a duration equal to the Trial Period; and
b. fees relating to any Implementation and Integration performed by Pandora.
A.8.6. In the event the Agreement specifies applicability of the trial and proof of value arrangement set forth in this Article A.8, Pandora’s right to send the first invoice – by way of derogation from Article A.16 – shall be delayed until the moment of notification by Client as meant in Article A.8.3, after which, the invoicing schedule (including the right to invoice in advance) shall continue in regular accordance with the Agreement.
Article A.9. Rules of use
A.9.1. Client shall not use the Services or any material or Deliverable provided to it in the course of its use of the Services for any purpose that:
a. is libelous, defamatory, insulting, racist or discriminating, or incites hate;
b. infringes third-party rights, in any case including but not limited to Intellectual Property Rights;
c. violates the privacy of third parties, in any case including but not limited to distributing third-party personal data without permission or necessity, or repeatedly harassing third parties by providing them with unsolicited communications;
d. involves hyperlinks, torrents or similar information of which Client is aware or should be aware that it refers to material that infringes third-party rights;
e. is otherwise illegal or causes damage or injury to any person or property.
A.9.2. Client will refrain from obstructing other clients or Internet users or inflicting damage to the Services. Client is prohibited from starting up processes or programs via the Services or otherwise of which Client is aware or can reasonably assume that these will obstruct or inflict damage on Pandora, other clients or Internet users.
A.9.3. Client will be responsible for the activities of anyone who Client allows to use the Software. Client is also responsible for ensuring that its End Users comply with the Agreement with respect to the use of the Software. Client shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Software and, in the event of any such unauthorized access or use, promptly notify Pandora.
A.9.4. Client bears responsibility for its End Users. Any damage or loss caused by an End User will be recovered from Client.
A.9.5. Pandora reserves the right (but has no obligation thereto), without liability or prejudice to its other rights to Client, to disable Client’s and/or the End Users’ access to the Software if Client breaches the provisions of this Article A.9.
Article A.10. Intellectual Property Rights
A.10.1. Client acknowledges and agrees that Pandora and/or its licensors own all Intellectual Property Rights in and to the Services, Software, Deliverables, Documentation and other materials provided, unless and to the extent expressly agreed otherwise by means of signed instrument. Client is not permitted to remove or alter any statement concerning copyright, trademarks, trade names or other Intellectual Property Rights from the Services, the Software, the Deliverables and/or the Documentation. Client is not permitted to use or request domain names identical to or that confusingly correspond to any object that is subject to any Intellectual Property Right belonging to Pandora and/or its licensors.
A.10.2. Client and End Users are not entitled to make changes to the Services, the Software, the Deliverable(s) and any other materials provided by Pandora and are not entitled to a copy of the source code, except as permitted by mandatory law or otherwise agreed. Client and End Users are not permitted to retrieve the source code by means such as reverse engineering or decompilation.
A.10.3. Pandora may take (technical) measures to protect the Services, Software, Deliverable(s) and any other materials. Where Pandora has taken such security measures, Client and End Users are not permitted to circumvent or remove such security.
A.10.4. Pandora represents and warrants that the Services Software, and Deliverables as provided by Pandora do not infringe on the Intellectual Property Rights of third parties.
A.10.5. In providing the Services, Pandora has the right to use third-party software and components, including open-source software.
A.10.6. If – in the course of rendering (i) Professional Services or (ii) Additional Work as meant in Article A.11 – Pandora creates and delivers to Client any Deliverables or other materials, Pandora and its suppliers retain ownership of and all Intellectual Property Rights thereto, unless the Agreement expressly specifies that such Intellectual Property Rights are to be transferred to Client by means of a signed instrument, which instrument shall only apply to the Deliverables referred to in that relevant part of the Agreement. Pandora grants Client the non-exclusive, non-transferable right to use the Deliverables on the same terms and conditions under which Pandora grants Client the right to use the Software under Article A.6. Pandora may provide similar services or Deliverables to other clients as long as Pandora does not infringe Client’s Intellectual Property Rights.
Article A.11. Additional work
A.11.1. In the event of Pandora performing other services at Client’s request, which go beyond the scope of the agreed upon Services (hereinafter: “Additional Work”), Client shall pay for such Services retroactively on a time and materials basis at Pandora’ Professional Services rates, as indicated in the then-current Price List. However, Pandora will under no circumstances be obliged to comply with such a request and can require that a separate Agreement is entered into for that purpose. Prior approval from Client is not required for Additional Work as meant herein if Pandora can demonstrate that such Additional Work (i) is reasonably necessary for the performance of the Agreement or (ii) reasonably follows from instructions of Client. If no separate Agreement is entered into and unless agreed otherwise by the Parties, Additional Work shall, without prejudice to the foregoing, occur in accordance with the provisions of Module D of these Terms.
A.11.2. Client accepts that the Services as referred to in Article A.11.1 can affect the agreed or anticipated time of completion of the Services, as well as the Parties’ mutual responsibilities under the Agreement. Pandora may adjust any agreed timetable or delivery schedule as reasonably necessary. The need for or occurrence of Additional Work during the performance of the Agreement never constitutes a reason for Client to give notice of termination or to (partially) dissolve the Agreement. To the extent a fixed price is agreed for the provision of the Services, Pandora will, upon request, inform Client in writing of the financial consequences of the Additional Work.
A.11.3. Upon termination of the Agreement, any Additional Work not yet invoiced will be immediately charged to Client.
Article A.12. Support
A.12.1. Pandora may provide Documentation relating to the Services, intended for troubleshooting and general usage support. If Pandora decides to provide Documentation, it may do so through the Platform and/or by other means on request of Client.
A.12.2. Pandora will provide a reasonable level of remote support with regard to the Services during Office Hours – unless a more extensive level of support was agreed by way of a Service Level Agreement. Such support will be offered via a helpdesk. Pandora may assume that Client and its End Users will first consult any Documentation before contacting the helpdesk. Pandora may refer Client and its End Users back to the Documentation if it is of the opinion that the question or request can be solved by means thereof.
A.12.3. Pandora will apply commercially reasonable efforts to respond to any question or request submitted through the helpdesk as quickly as possible, but cannot give any guarantees in this respect – unless agreed by way of a Service Level Agreement. The time required for the processing of support requests depends on the nature and complexity of the matter at hand.
Article A.13. Training
A.13.1. The provisions of this clause shall only apply in the event Pandora provides Training.
A.13.2. Pandora will provide the Training to the best of its ability exercising reasonable skill and care. Pandora will be entirely free to determine the contents of the Training and the course materials it provides to Client. Pandora is entitled to change the location of the Training and will timely inform Client of any changes.
A.13.3. Client agrees to act in a responsible manner and shall abide by the rules and regulations that govern the location where the Training are provided. If indicated by Pandora, Client must bring its own electronic devices required for the Training, e.g. laptop and mouse.
A.13.4. The fees for the Training are specified in the Agreement. All other costs and expenses, such as expenses for accommodation, transportation, and meals, are not included.
A.13.5. Pandora is authorized to exclude Client from participation in the Training if the outstanding amounts are not received by Pandora before the start of the Training.
A.13.6. Client is entitled to cancel or reschedule the Training up to fourteen (14) calendar days before the (first) day of the Training. In the event of cancellation up to fourteen (14) calendar days before the (first) day of the Training, Pandora will refund the fees.
A.13.7. Client acknowledges that the Documentation and other course materials that are used and/or presented during the Training constitute the Intellectual Property Rights of Pandora and/or its licensors and Client agrees to respect those Intellectual Property Rights. In particular, Client is not authorized to: (i) copy, modify, sub-license, sell, decompile, reverse engineer or distribute the course materials; (ii) record the Training on video or audio tape or by other means; or (iii) remove any copyright or other notice of Pandora and/or its licensors from the course materials.
Article A.14. Client Data, privacy and data protection
A.14.1. Client shall own all right, title and interest in and to all Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Client Data. Pandora receives a limited license to Client Data for the purpose of providing the Services, including any and all future aspects thereof.
A.14.2. To the extent that Client Data contains personal data within the meaning of the EU General Data Protection Regulation (“GDPR”) and such personal data is processed by Pandora under the Agreement (e.g. within the context of provision of cloud-based Software), Pandora acts as processor and Client as controller within the meaning of the GDPR. In this case, the Parties agree that the data processing agreement as set forth in Module E will apply. In the event Client is a processor, Pandora shall be deemed a sub-processor.
A.14.3. Pandora shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by Client or any third party (except those third parties sub-contracted by Pandora).
A.14.4. If the Agreement is terminated, regardless of the reason for such termination, Pandora will destroy or delete Client Data as soon as reasonably possible.
Article A.15. Pricing
A.15.1. In exchange for the Services, Client will be required to pay fees in accordance with the prices stated in the Agreement and/or, unless agreed otherwise the Price List. Unless expressly indicated otherwise, all prices stated by Pandora are in euros and exclusive of value added tax (VAT) and other governmental levies.
A.15.2. Any amendments by Pandora of the Price List outside the scope of this Article A.15 shall not apply to Agreements that are already in force. For the avoidance of doubt: adjustments of the License Scope for Software as meant in Article A.6.4 do not constitute amendments of the Price List.
A.15.3. Pandora is authorized to adjust its rates and pricing for ongoing Agreements on an annual basis on (i) the basis of the CBS (“Centraal Bureau voor de Statistiek”) consumer price index (all households) or (ii) five percent (5%). In such cases, Client is not entitled to terminate the Agreement.
A.15.4. Any pricing increase that falls outside the scope of Article A.15.3 shall, mutatis mutandis, be governed by the rules regarding amendment of these Terms, as meant in Article A.20.
Article A.16. Payment
A.16.1. Unless agreed otherwise in relation to a specific Service, Pandora will be entitled to invoice the Services electronically and in advance – taking into account Article A.8 (if applicable).
A.16.2. The due date for invoices sent by Pandora is thirty (30) days after the invoice date.
A.16.3. If Client disagrees with the contents of an invoice, it will be entitled to suspend payment of the disputed (though not any other) part of the invoice, by informing Pandora of its dispute in writing within the payment term. After being informed as such, Pandora will assess whether or not the dispute is justified as soon as reasonably possible. If the assessment concludes that dispute is unjustified, Client must pay the amount outstanding within fourteen (14) days of being informed of such assessment by Pandora.
A.16.4. Excepting situations as meant in Article A.16.3, Client shall be legally in default of payment from the due date of the invoice, without prior notice of default being required. Pandora shall then be entitled to charge Client the entire amount due, as well as the interest accrued on the amount due from the due date at one percent (1%) per month or, if higher, the statutory commercial interest.
A.16.5. Without prejudice to the above, all costs related to the collection of outstanding claims – both judicial and extrajudicial (including the costs for lawyers, bailiffs and collection agencies) – shall be at the expense of Client.
A.16.6. Client is not entitled to set off any payment obligation owed to Client against any claim against Pandora for whatever reason.
A.16.7. Pandora is entitled to set off Client's claims on Pandora against Pandora's claims, on whatever ground, on Client.
Article A.17. Confidentiality
A.17.1. A Party receiving confidential information from the other Party shall treat this as strictly confidential and use this solely in connection with its rights and obligations under the Agreement.
A.17.2. Confidential information includes all information of which it can be assumed from the context that the disclosing Party would deem this to be confidential or of which the receiving Party should reasonably have recognized its confidential nature from the content of the information. Confidential information also includes all information and data concerning or pertaining to the Agreement, the Services, pricing, service levels, Client Data, and more generally data concerning business operations, marketing, research, development, inventions, know-how, samples, product and service specifications, software, business relations, irrespective of the form in which this has been recorded or is provided.
A.17.3. The obligation to treat certain information as confidential no longer applies if the receiving Party can prove that this information:
a. is or becomes publicly available through no act or omission of the receiving Party;
b. was already in possession of the receiving Party prior to the date on which it was issued by the disclosing Party;
c. is available from a third party without this party being in default towards the disclosing Party arising from a confidentiality clause by distributing the information to the receiving Party; or
d. was developed by the receiving Party independently and without the use of the information of the disclosing Party.
A.17.4. Should a competent court or other government authority demand access to confidential information, the receiving Party is entitled to grant such access. However, to the extent permitted by applicable law, the receiving Party shall contact the disclosing Party prior to doing so, to enable the disclosing Party to take legal action against such access (e.g. an interim measure with a competent court). However, the receiving Party shall never be liable for granting access if legally obligated.
A.17.5. The provisions of this Article A.17 shall continue to be effective after the expiration or termination of the Agreement, for as long as the disclosing Party can reasonably assert the confidential nature of the relevant information.
Article A.18. Liability
A.18.1. Pandora’ liability for loss and/or damages resulting from a failure in the performance of the Agreement, an unlawful act or otherwise, is limited to the amount that Client has paid under the Agreement for the provision of Software during the three (3) months immediately preceding the breach or the act giving rise to liability (exclusive of VAT) but shall in any event not exceed the amount of EUR 25.000 on an annual basis.
A.18.2. Pandora is only liable for direct loss and/or damage arising from an attributable failure in the performance of the Agreement. Direct loss and/or damage is solely understood to mean any and all loss and/or damage consisting of:
a. the damage caused directly to tangible objects (“property damage”);
b. reasonable and demonstrable costs Client has had to incur in demanding that Pandora properly performs the Agreement, unless the defective performance is not attributable to Pandora;
c. reasonable costs to determine the cause and the extent of the direct loss and/or damage; and
d. reasonable and demonstrable costs incurred by Client to prevent or limit the direct loss and/or damage, insofar as Client can demonstrate that such costs have resulted in limitation of the direct loss and/or damage.
A.18.3. Any limitation or exclusion of liability stipulated in these Terms shall not apply in the event that the loss and/or damage is attributable to (1) willful misconduct or deliberate recklessness of Pandora’ management, (2) death or bodily injury, or (3) any other matter for which it is unlawful to limit or exclude liability.
A.18.4. Unless performance by Pandora is permanently impossible, Pandora shall only be liable due to an attributable failure in the performance of a contract if Client declares Pandora to be in default in writing without delay and grants Pandora a reasonable term to remedy the breach, and Pandora culpably fails to fulfil its obligations also after this term has passed. The notice of default must describe the breach as comprehensively and in as much detail as possible in order to give Pandora the opportunity to respond adequately.
A.18.5. Any right to claim compensation is at all times subject to the condition that Client notifies Pandora of the loss and/or damage in writing within no more than thirty (30) days of its discovery.
A.18.6. Client shall indemnify, defend and hold harmless Pandora and its officers, agents and employees, from and against any and all claims, damages, liabilities, losses and/or expenses (including attorneys’ fees and costs) incurred by Pandora and arising out of or in connection with Client’s use of the Software, the Services, the Deliverables, the Documentation and/or Client’s breach of the terms and conditions of the Agreement.
A.18.7. Client shall only use the information, intelligence, narratives, recommendations, reports, advice, analyses and other Deliverables performed and generated by the Software or provided by Pandora at its own risk and own responsibility. Without prejudice to any explicit warranties or assurances to the contrary, Pandora cannot be held responsible or liable for the contents of the foregoing, nor the decisions made based on thereon.
Article A.19. Force majeure
A.19.1. Neither Party will be bound to comply with any obligation if the Party is prevented from doing so as a result of force majeure. Force majeure includes in particular but is not limited to domestic disturbances, mobilization, war, transportation blocks, strikes, epidemics, pandemics, network attacks such as SYN (synchronous) floods or (distributed) denial of service attacks, business interruptions, supply stagnation, fires, floods, import and export obstructions, internet failures and in the event Pandora’ suppliers prevent Pandora from complying with its obligations under the Agreement.
A.19.2. In case of force majeure, the affected Party will use its best efforts to find a suitable remedy or alternative source to overcome said force majeure.
A.19.3. Each Party has the right to suspend compliance with its obligations under the Agreement during the period of force majeure. If this period exceeds sixty (60) days, each Party will have the right to terminate the Agreement without being obliged to pay compensation to the other Party.
Article A.20. Amendments
A.20.1. Pandora is authorized to amend these Terms and will announce any such amendments to Client at least thirty (30) days in advance. Amendments also apply to Agreements already entered into.
A.20.2. If Client does not wish to accept a change, Client can lodge a written objection within fourteen (14) days after the announcement. If Pandora decides to proceed with the amendments despite Client's objection, Client can terminate the Agreement, in writing, with effect from and no later than the date on which the amendments take effect.
A.20.3. The procedure described in the preceding paragraph does not apply to (i) amendments of minor significance, (ii) amendments that benefit Client, or (iii) amendments necessary because of mandatory legislation. Pandora may implement such changes unilaterally and with immediate effect. Client will be informed of such changes as soon as possible.
Article A.21. Miscellaneous
A.21.1. The Agreement is subject to the laws of the Netherlands. To the extent that rules of mandatory law do not prescribe otherwise, any dispute between Parties in connection with the Agreement will be submitted to the competent court in the Netherlands in the district where Pandora has its registered office.
A.21.2. Where the Agreement refers to “written” or “in writing”, this also includes e-mail communication provided the identity of the sender and the integrity of the content can be adequately established.
A.21.3. The version of any communication or information as recorded by Pandora will be deemed to be authentic and conclusive, unless Client provides proof to the contrary.
A.21.4. If any provision, or part of a provision, of the Agreement is found by any court or authority of competent jurisdiction to be illegal, invalid or otherwise unenforceable, that provision or part-provision shall be deemed not to form part of the Agreement, and the legality, validity or enforceability of the remainder of the provisions of the Agreement shall not be affected, unless otherwise required by operation of applicable law. The Parties shall use all reasonable endeavors to agree within a reasonable time upon any lawful and reasonable variations to the Agreement which may be necessary in order to achieve, to the greatest extent possible, the same commercial effect as would have been achieved by the provision, or part-provision, in question.
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Cloud-based Software
Article B.1. Applicability
B.1.1. If and insofar as the Agreement pertains to the supply of Software that is installed on Pandora's ICT infrastructure or that of a supplier engaged by it (or Software offered in the form of a cloud-based solution), the provisions of this Module B will apply.
Article B.2. Hosted materials
B.2.1. If Pandora is informed by a third party of unlawful information on its servers, Pandora is entitled to remove the material or render it inaccessible.
B.2.2. Pandora is authorized at all times to report any criminal acts that are discovered and will cooperate with duly authorized orders and commands. In addition, Pandora is authorized to provide the name, address, IP address and other data identifying Client and/or an End User to a third party who has complained that Client and/or an End User has violated its rights or the provisions of the Agreement, provided that:
a. it is sufficiently plausible that the information, on its own, is unlawful and harmful with regard to the third party;
b. the third party has a genuine interest in obtaining the data;
c. it is plausible that, in the specific case, there is no less far-reaching measure to obtain the data; and
d. examining the interests involved entails that the third party’s interest should prevail.
B.2.3. In the event the information concerns information that constitutes a criminal offence, Pandora is entitled to report this information to the police. Pandora may in this case submit all information on Client and the information concerned to the competent authorities and perform all other acts that these authorities request Pandora to perform as part of the criminal investigation.
B.2.4. Client indemnifies Pandora against all legal claims with respect to data, information, websites, materials, etc. that have been stored by Client or its End Users. In this regard, Pandora is not liable for any damage or loss suffered by Client caused by any action taken by Pandora following a report from a third party, even if the report turns out to be incorrect and the information is not breaching applicable law.
B.2.5. Pandora has a fair use policy in relation to accessing and using the cloud-based Software. For the purpose of this fair use policy, Client may not vary from the average in a disproportionate manner, having regard to the amount of processing power, data storage and data traffic used by Client. Exceedance of the fair use policy will be considered to have occurred if Client’s use of processing power, data storage and data traffic exceeds fifteen percent (15%) of the average by other Clients of Pandora. In such event, Pandora is entitled to temporarily limit or restrict access to the Services and/or require Client to purchase additional Services, such as extra storage capacity.
B.2.6. Client hereby grants Pandora an unlimited license to distribute, store, forward or copy all materials supplied by Client on Pandora’ systems, in a manner deemed appropriate by Pandora, but solely to the extent this is reasonably required for the purpose of Pandora’ fulfilment of the Agreement.
Article B.3. Maintenance and availability
B.3.1. Pandora will use reasonable endeavors to realize the uninterrupted availability of its systems, network and Software, but offers no guarantees in this regard unless otherwise agreed by means of a Service Level Agreement. Pandora also makes no promises or guarantees as to security, availability and integrity of data transfers while making use of the Software, unless it explicitly states otherwise.
B.3.2. Pandora regularly carries out maintenance, adjustments or improvements of its systems, software, networks of parts thereof which could lead to unavailability of the Software. Should maintenance, adjustments or improvements require a reduced or total unavailability of the Software, then Pandora will attempt to carry out such maintenance as much as possible outside of Office Hours and will endeavor to notify Client in advance of the scheduled maintenance. However, Pandora is in no case liable to compensate any damage arising in connection with such maintenance, unless otherwise agreed by means of a Service Level Agreement. If Pandora considers that there is a danger to the functioning of its systems, network or Software, Pandora will have the right to implement all measures it considers reasonably necessary to avert or prevent this danger. Since the Software is provided over the public internet, Client is itself responsible for acquiring appropriate internet access and suitable anti-virus protection and the like. Pandora accepts no liability in this regard.
B.3.3. Pandora may release updates to the Software that address bugs or add new features. Pandora shall make such updates available to Client as soon as practicable.
Article B.4. Client Data and back-ups
B.4.1. Pandora will make a back-up of Client Data every day. However, unless otherwise agreed, such back-ups and restorations thereof are not part of the Services provided by Pandora to Client. Back-ups made are primarily intended for the event of catastrophic failures on the side of Pandora. At the request of Client, Pandora may still choose to use its back-ups to restore Client Data, but it is not obliged to do so. If Pandora opts to grant Client’s request, it may charge Client for the work performed in accordance with its Professional Services rates, as indicated in the then-current Price List. The time at which the back-up will be created will be determined by Pandora, unless expressly indicated to the contrary in the Agreement.
B.4.2. Insofar as it concerns Software, Client will at all times be able to manually extract and download the relevant Client Data. However, in the event of any loss or damage to Client Data, Client’s sole and exclusive remedy vis-à-vis Pandora, shall be for it to request Pandora to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by Pandora in accordance with Article B.4.1.
B.4.3.
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On-Premises Software
Article C.1. Applicability
C.1.1. If and insofar as the Agreement pertains to the supply of Software that is installed within Client's own ICT infrastructure (or Software offered in the form of an on-premises solution), the provisions of this Module C will apply.
Article C.2. Maintenance
C.2.1. Pandora and its suppliers can release updates and upgrades to resolve errors in the Software or improve its performance. This may result in changes in functionality.
C.2.2. Client itself is responsible for the installation and deployment of updates or upgrades to the Software provided by Pandora. Pandora cannot accept any liability for loss or damages resulting from errors, issues or non-conformities that have been resolved in updates or upgrades of the Software that have not been installed by Client.
Article C.3. Support
C.3.1. Client acknowledges that support provided by Pandora with regard to on-premises Software is subject to limitations and depends for a large part on the knowledge and expertise of the person(s) requesting such support.
C.3.2. If Client requests local technical and/or practical support in the course of which Pandora must either travel to Client’s location or gain remote access to Client’s ICT infrastructure:
a. Client acknowledges that such support may only be properly provided if Client provides Pandora with reasonably required access to all systems, networks, other ICT infrastructure and physical locations, as well as all other reasonable cooperation relevant to the requested support activity;
b. any associated travel costs will be at Client’s expense;
c. if Client does not provide the access and cooperation specified in Article C.3.2.a, Pandora may charge Client for delays that occur, against its Professional Services rates, as indicated in the then-current Price List; and
d. Pandora may, after prior written confirmation by Client, charge additional costs for such support in accordance with the then-current Price List.
C.3.3. Pandora shall at all times be entitled to refuse a request as meant in C.3.2.
C.3.4. Pandora is entitled to refuse to provide support with regard to issues that have been resolved in a new version until Client has switched to the latest version as meant in Article C.2.
Article C.4. Client Data and back-ups
C.4.1. Pandora is not able to make back-ups of the Software or Client Data stored using the Software (or restore such back-ups) when such are installed and stored within Client’s own ICT infrastructure. As such, and regardless of any advice Pandora may offer in this context, the responsibility for back-ups and data integrity rests entirely with Client.
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Professional Services
Article D.1. Applicability
D.1.1. If and insofar as the Agreement pertains to the provision of Services by Pandora pertaining to custom software development of Deliverables or other Professional Services, the provisions of this Module D shall apply.
Article D.2. Professional Services
D.2.1. In the context of Professional Services, the Parties will agree to a statement of work specifying the work to provided (hereinafter: “Statement of Work”). Pandora shall endeavor to perform the work described in the Statement of Work, including the development of any described Deliverables, with care and in accordance with the requirements of good workmanship. The active and continuous participation and cooperation of Client is a prerequisite for the successful performance and delivery of Services.
D.2.2. In performing the Professional Services, Pandora shall observe all reasonable safety requirements in prescribed by Client. If Customer's requirements in this regard in any way impede or delay the proper and timely performance of the relevant Services by Pandora, Pandora shall, without prejudice to other rights and remedies under applicable law, be entitled to compensation for all resulting costs and a reasonable extension of time for completion of the work.
Article D.3. Pricing and payment
D.3.1. Unless specifically stated otherwise in the relevant Statement of Work, all Professional Services shall be performed on a "time and material" basis at the rates set forth in the then-current Price List and shall be billed at the beginning of the following calendar month (e.g., Services performed in January shall be billed at the beginning of February). Client acknowledges that the hours communicated to Client in the Statement of Work or otherwise are estimates only and that the actual number of hours may differ from the estimates. Pandora shall not, however, exceed the number of hours without notifying Client in advance.
Article D.4. Development of Deliverables
D.4.1. Parties will specify the specifications and/or functional requirements of any Deliverables to be developed under the Agreement, as well as details surrounding the working method and method of cooperation between the Parties during development, in the Statement of Work.
D.4.2. After the Agreement has been concluded, the development of the Deliverable, if agreed between the Parties, will be carried out as soon as reasonably possible, unless agreed otherwise. Pandora will develop the Deliverable with due care on the basis of the Statement of Work, data and source materials to be provided by Client. Pandora will apply commercially reasonable efforts to carry out the Statement of Work and develop a version of the Deliverable that complies with the Statement of Work, and deliver such within the time period(s) specified therein. Unless explicitly stated in the Statement of Work or otherwise explicitly agreed, Pandora cannot guarantee or ensure the inclusion of specifications or functionalities in the Deliverable, or compliance of the Deliverable with any sort of certification standards.
D.4.3. Pandora is independent in the performance of development tasks under the Agreement. However, Client will be free to provide Pandora with instructions as referred to in article 7:402 of the Dutch Civil Code.
D.4.4. If agreed, Pandora will update Client regarding the progress of the development of the Deliverable with the frequency indicated in the Statement of Work. In doing so, Pandora will indicate whether the Deliverable is expected to be completed within the time periods specified in the Statement of Work.
D.4.5. In developing Deliverables, Pandora has the right to third-party software and components, including open source software, provided that the applicable licenses and method of development (and linking of components) does not prescribe that the Deliverable is distributed under the same license. If Pandora decides to include such, it will provide Client with the applicable terms (if any). Client is responsible for ensuring proper compliance with the relevant third-party licenses when using the Deliverables.
D.4.6. Pandora shall only provide Documentation relating to Deliverables if this is explicitly specified in the relevant Statement of Work.
Article D.5. Delivery
D.5.1. Pandora will deliver the Deliverable if, in its professional opinion, it complies with the Statement of Work and is suitable for use.
D.5.2. Parties will specify the method in which the Deliverable will be made available to Client in the Statement of Work.
D.5.3. If the Statement of Work does not provide a method of delivery or making available, Pandora will deliver the Deliverable by making it available via a secure software development repository to which Client has access via the internet.
D.5.4. The source code of the Deliverable will only be made available to Client if this has been explicitly agreed to by both Parties in writing. Such making available of the source code will occur in the same manner as the making available of the Deliverable as described in this Article D.5.
D.5.5. In the event any issues occur with the provision of source code as arranged above, Pandora will provide Client, at Client's first request, with a copy of the source code in a manner to be agreed upon between the parties.
Article D.6. Acceptance
D.6.1. The provisions of this Article D.6 only apply if Agreement specifies that Pandora will perform Professional Services consisting of software development, and only to the extent that acceptance testing has been explicitly agreed. If acceptance testing has not been agreed, Client shall accept the Deliverable in the state that it is in when delivered (on an “as is” and “as available” basis), therefore including all visible and invisible errors and defects.
D.6.2. Unless provided otherwise in the Statement of Work, Client will evaluate the delivered Deliverable within fourteen (14) days after delivery and accept or reject it in accordance with the acceptance criteria specified in the Statement of Work. If Client does not reject the delivered Deliverable within this time period, it will be deemed to have been accepted and deemed to conform to the Statement of Work.
D.6.3. Acceptance of the delivered Deliverable will be deemed to have taken place if Client:
a. approves the delivered Work (in writing);
b. uses the delivered Deliverable for production purposes, including but not limited to the transfer of the Deliverable to a production environment; or
c. does not reject the Deliverables within the aforementioned period.
D.6.4. If the Deliverable is delivered in stages, Client will, after completion of each stage, provide its acceptance or rejection of the part of the Deliverable of that stage in the manner as stipulated above. Client may not base a rejection in a later phase on aspects approved in an earlier phase.
D.6.5. If Client rejects the delivered Deliverables in whole or in part, Pandora will apply all commercially reasonable efforts to remove the reason for rejection as soon as possible. Pandora may do this by revising the Deliverable, free of additional charge, or by stating the reasons why the rejection is unjustified. Client will then have seven (7) days to approve or reject the revision or motivation.
D.6.6. Client may only reject the Deliverable on the grounds of substantial deviation from the Statement of Work. If objections with regard to the Deliverable concern only minor aspects, the Deliverable will be deemed to have been accepted subject to the proviso that these objections will still be lifted within a reasonable period of time (it being understood as aspects that do not reasonably prevent the operational use of the Deliverable). Additionally, the Deliverable may not be rejected because of aspects that can only be assessed subjectively, including but not limited to aesthetic aspects of interfaces.
D.6.7. Deviations from the Statement of Work that were requested by Client will never constitute grounds for rejection of the Deliverable.
D.6.8. If Client continues to reject all or part of the Deliverable delivered after two (2) rounds of revision or motivation, Pandora is entitled to charge reasonable additional costs for all subsequent revisions, at Pandora’ Professional Services rates, as indicated in the then-current Price List.
D.6.9. If, after at least two rounds of revision or motivation, a Party indicates that it does not consider further revisions to be useful, both parties are entitled to terminate the Agreement (or the part of it relating to the relevant Deliverable(s)). In that case, Client will only be obliged to reimburse the costs incurred by Pandora and the work already carried out, but Client will not be entitled to use or continue to use the Deliverable.
Article D.7. Intellectual Property Rights and license grant
D.7.1. For the duration of the acceptance procedure described in Article D.6, Client shall acquire a limited license to use the Deliverable for the (test) purposes described therein.
D.7.2. After acceptance as referred to in Article D.6 (if applicable) or after delivery as referred to in Article D.5 (if the acceptance procedure does not apply), and on condition of payment by Client for the Professional Services that resulted in the Deliverable, Pandora shall – if expressly agreed between the Parties – transfer the related Intellectual Property Rights to Client in accordance with Article A.10.6. If transfer has not been expressly agreed, Client shall instead acquire a license with respect to the Deliverable under the same conditions, mutatis mutandis, as the license for Software described in Article A.6.
D.7.3. Pandora ensures that it has full authority to enter into an Agreement for the development provision of Deliverables and has all necessary rights, including Intellectual Property Rights, to do so.
D.7.4. Pandora represents and warrants that there are no claims by third parties regarding infringement of Intellectual Property Rights or other rights of such third parties with respect to the Deliverable(s). Pandora shall indemnify Client and hold Client harmless against all possible claims that third parties may bring against Client in this regard.
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Data Processing Agreement
Article E.1. Applicability
E.1.1. If and insofar as the Services involve the processing of personal data, as meant in the GDPR, by Pandora on Client’s instructions, the provisions of this Module E shall apply. Unless otherwise agreed, in such case this Module E serves as a (sub-)data processing agreement, in the context of which Pandora must be considered a (sub-)processor.
Article E.2. Processing of personal data
E.2.1. Pandora will only process the personal data for the benefit of the performance of the Agreement, and for those purposes that are reasonably associated with this or are determined in further consultation with Client.
E.2.2. The purposes of the processing, as well as the categories of data subjects and the types of personal data that are processed in the provision of the Services are described in further detail in the Agreement.
E.2.3. Pandora has no independent control of the purpose and the means of processing the personal data. Pandora will take no independent decisions concerning the receipt and use of the personal data, provision of the data to third parties and the term for which personal data will be stored.
Article E.3. Obligations of the Parties
E.3.1. Each Party will assume responsibility for its own obligations under the GDPR and other applicable privacy laws and regulations.
E.3.2. At its express request, Pandora will inform Client within a reasonable period of time of the measures it has taken with regard to the obligations referred to in the preceding paragraph.
E.3.3. Client represents and warrants that the content, the use and the instructions for the processing of personal data are not unlawful and do not infringe any third-party rights, and indemnifies Pandora against any third-party claims within this framework.
E.3.4. Pandora will support Client in carrying out a Data Protection Impact Assessment (‘DPIA’) or – insofar as this is required by law – prior consultation of the supervisory authority. The costs associated with this will be at Client's expense.
E.3.5. Pandora will inform Client if, in Pandora's opinion, an instruction from Client is contrary to the GDPR or other applicable privacy laws and regulations.
Article E.4. Transfer of personal data
E.4.1. Pandora may process personal data in countries within the European Economic Area (“EEA”). Transfer to countries outside of the EEA is also permitted, provided that the provisions of the GDPR are complied with.
E.4.2. At Client's express request, Pandora will inform Client of the countries in which the personal data are processed within a reasonable term.
Article E.5. Sub-Processors
E.5.1. Client hereby grants Pandora general permission to engage third parties (“Sub-Processors”) in the processing of personal data, provided that Pandora complies with the GDPR and other applicable laws and regulations. An up-to-date list of Sub-processors engaged by Pandora can be requested via support@pandoraintelligence.com.
E.5.2. Pandora will contractually require all Sub-processors to comply with the same or equivalent obligations as agreed between Client and Pandora regarding the processing of personal data. In the event of errors made by sub-processors, Pandora will be liable towards Client as if it had made the errors itself.
Article E.6. Confidentiality and security
E.6.1. The personal data processed by Pandora must always be considered as confidential information. This information will therefore be subject to the confidentiality obligations as laid down in Article A.17.
E.6.2. Pandora will take appropriate technical and organizational measures in connection with the processing of personal data to be performed in order to protect such data against loss or any form of unlawful processing (such as unauthorized disclosure, interference, alteration or provision of personal data). Though Pandora will make every effort to prevent loss or unlawful processing of personal data, Pandora cannot guarantee that the security measures taken will suffice under all circumstances.
E.6.3. Pandora has various certifications within the framework of the security of the Services, including ISO 27001. Further information about security and these certifications can be requested by e-mail at support@pandoraintelligence.com.
Article E.7. Data breaches
E.7.1. Client is itself responsible for reporting a personal data breach to the relevant supervisory authority and the data subjects to which the personal data relate. In order to enable Client to comply with this legal obligation, Pandora will inform Client of any personal data breach without undue delay.
E.7.2. Pandora's duty to report towards Client will in any case include reporting the fact that there has been a personal data breach, as well as – insofar as this is known to Pandora – the information referred to in Article 33, paragraph 3 of the GDPR. If Pandora does not have all the information referred to in that article, it will gather this information as soon as possible and make it available to Client.
E.7.3. Where required by law and/or regulations, Pandora will cooperate in informing the relevant supervisory authorities and/or the data subjects whose personal data have been leaked. The costs associated with this will be at Client's expense.
Article E.8. Rights of data subjects
E.8.1. If a data subject wishes to exercise one of his or her statutory rights and submits a request to that end to Pandora, Pandora will forward that request to Client. Client will subsequently ensure that the request is handled. Pandora may inform the data subject of the fact that the request has been forwarded.
E.8.2. In the event that a data subject submits a request concerning the exercise of one of his or her statutory rights to Client, Pandora will – if Client so desires – cooperate in the handling thereof if Client is unable to handle the request itself. The costs associated with this will be at Client's expense.
Article E.9. Audit
E.9.1. Client is authorized to have periodic audits performed by an independent expert who is bound to confidentiality, in order to verify Pandora’s compliance with the obligations that arise from this Module E. The associated costs, including the reasonable costs Pandora incurred in the audit, will be at Client's expense.
E.9.2. The audit referred to above will only take place if and in so far as Client has requested, assessed and put forward reasonable arguments regarding any audit reports or other reports already present – which arguments justify another audit initiated by Client. An audit is justified if and insofar as the existing reports that Pandora has available provide an insufficient or inconclusive answer with regard to Pandora's compliance with this Module E.
E.9.3. Pandora will cooperate in the audit and will make available any information and employees that may reasonably be relevant to the audit – including supporting information such as system logs – as soon as possible and in any case within a reasonable term. In the performance of the audit, Client ensures efforts will be made to limit the impact on Pandora's operations as much as possible.
E.9.4. An audit initiated by Client will take place no earlier than two (2) weeks after Client's announcement thereof. The Parties will determine the exact date and time of the audit in mutual consultation.
E.9.5. Client will perform a maximum of one audit of Pandora a year, unless there is a concrete and demonstrable suspicion that Pandora is not complying with the arrangements of this Module E.
E.9.6. The Parties will jointly assess the findings of the audit that has been performed and will determine on that basis whether or not those findings will require measures to be implemented by one of the Parties or by the Parties jointly.
Article E.10. Return or destruction
E.10.1. If the Agreement is terminated, Pandora will – at Client's discretion – either return all personal data it has processed on Client's instructions under the Agreement to Client within a reasonable period of time, or delete or destroy such personal data. The reasonable costs associated with this will be at Client's expense.
E.10.2. The above applies only to personal data that Pandora processes on Client's instruction in the role of (sub-)processor. The provisions above therefore do not apply to the personal data that Pandora itself processes in the capacity of controller.