Conditions/License Agreement for end users of GUARDEY B.V., with its registered office and principal place of business in (3077 AG) Rotterdam at Kreeksehaven 61, registered in the trade register of the Chamber of Commerce under number 76634876 (Guardey).
Version September 03, 2022.
In this End User License Agreement (hereinafter: these Terms) the following terms are understood to mean:
Guardey: the private company with limited liability Guardey B.V., with its registered office and principal place of business in (3077 AG) Rotterdam at 61 Kreeksehaven, registered in the trade register of the Chamber of Commerce under number 76634876.
Appendix: an appendix to these Conditions.
Services: all activities that Guardey performs, including the delivery/making available of the Software to the Customer.
Customer/you: the party with whom Guardey negotiates the conclusion of an Agreement, with whom Guadey enters into an Agreement and/or the party that uses the Software and/or Services.
Agreement: any agreement between Guardey and the Customer (including the associated annexes);
Performance: the performance to be performed by Guardey under the Agreement, consisting of: the delivery of the Software and/or other work and related activities.
Software: the software solutions supplied/made available to the Customer by Guardey, which must in any case be understood to mean “Guardey Basis”, “Guardey Co-managed” or “Guardey Custom”, which software relates to setting up a secure connection, providing insight into activities on company networks, warning of dangers (such as for viruses and malware) and/or also training people through gamification in the safe use of computers.
Terms: This End User License Agreement.
2.1 These Terms and Conditions apply to all legal relationships, including but not limited to any quotation, assignment, trial period and Agreement, between Guardey and the Customer, the associated upgrades, patches and updates as well as related services.
2.2 Deviations from and changes from and/or additions to these Terms and Conditions only apply insofar as they have been expressly accepted by Guardey in writing.
2.3 The applicability of any deviating general delivery or purchase conditions of the Customer, under whatever name, is excluded.
2.4 If at any time one or more provisions in these Terms and Conditions should be wholly or partially invalid or annulled, the other provisions will remain fully applicable. In that case, new provisions will take the place of the void or annulled provisions, whereby the purpose and intent of the original provisions will be taken into account as much as possible.
2.5 If Guardey does not always require strict compliance with these Terms, this does not mean that the provisions thereof do not apply, or that Guardey would to any extent lose the right to demand strict compliance with the provisions of these Terms.
2.6 Once these Terms and Conditions apply to an Agreement with the Customer, the Customer is deemed to implicitly agree to the applicability of these Terms and Conditions to other Agreements entered into and to be concluded with Guardey, including supplementary agreements and follow-up agreements. Any deviations and changes and/or additions to these Terms and Conditions agreed in accordance with Article 2.2 only apply to the Agreement for which those deviations, changes and/or additions have been agreed.
3.1 Any Offer made by Guardey is without obligation unless otherwise stated in writing. Non-binding offers can also be revoked by Guardey after acceptance by the Customer. However, the Customer is always bound by the acceptance of an Offer from Guardey.
3.2 An Agreement is only concluded by written confirmation by Guardey to the Customer, or by Guardey starting the execution of an Agreement.
3.3 Offers, promises and agreements with Guardey employees are only binding on Guardey if and insofar as they have been confirmed in writing and authorized by Guardey.
4.1 An Agreement is entered into for a definite or indefinite period of time. If no term is included in the Agreement, the Agreement has a term for a definite period, after which it will be automatically extended for the same duration/term as originally agreed, unless Guardey and/or the Customer terminate the Agreement in writing, with subject to a notice period of one (1) months before the end of the aforementioned period.
4.2 Customer can choose another subscription at any time (Guardey Basic, Guardey Co-managed or Guardey Custom). Both broadening and limiting are possible. No money will be refunded when switching to a more limited (cheaper) subscription.
4.3 The Customer may cancel the Agreement without giving any reason within the first fourteen (14) days of the trial period/trial of the Guardey Basic package. In all other cases, the Customer may terminate the Agreement entered into for the term of one (1) year towards the end of the term, subject to a notice period of two (2) months. Agreements entered into for the duration of one (1) month (continuous monthly subscriptions), can be terminated subject to a notice period of one (1) month, which notice must be received by Guardey on the last day of the month at the latest.
4.4 Guardey has the right to terminate the Agreement and/or License at any time with immediate effect for any reason. Termination by Guardey will be effective from a) notice to Customer, b) termination of your account (as applicable), or c) at any time when Guardey decides to no longer provide and/or support the Software. The Agreement, License and Terms will automatically terminate if you fail to comply with any of the provisions of the Agreement and these Terms. Upon termination for any reason, you must immediately uninstall the Software and destroy all copies of the Software in your possession.
5.1 Guardey will charge a fee for the use of the Software/Services according to the Agreement and/or rates published on Guardey’s website.
5.2 All rates stated on the website are exclusive of VAT and any other government levies or taxes.
5.3 Collection of the compensation will take place via the payment method included in the Agreement.
5.4 If the User has opted for payment by direct debit, the direct debit will take place prior to the delivery of the Services/Software.
5.5 For the determination of the amount of the collection, it is assumed that the user continues his choice of package unless the Customer has indicated otherwise.
5.6 Guardey will announce the date on which the direct debit will take place in advance via electronic notification or possible invoice.
5.7 If the direct debit cannot take place, the Client is in default without further notice of default being required. Guardey will send the Customer a payment reminder, giving the Customer the opportunity to pay within 14 days.
5.8 With effect from the day on which the Customer’s default has occurred, the Customer will owe a monthly interest of 2% on the total amount owed to Guardey. The collection costs and the interest owed for previous months are added to the amount owed (interest on interest) until the day of full payment, whereby the last period of non-payment of less than one month is regarded as a whole month.
5.9 All collection costs (both judicial and extrajudicial) are for the account of the Customer. The extrajudicial costs amount to at least 15% of the amount to be claimed with a minimum of EUR 2,000.
5.10 The Customer expressly waives his right to set-off. The Customer also expressly waives the right to suspend its payment obligations.
5.11 If at any time Guardey has doubts about the creditworthiness of the user, Guardey has the right to demand certain guarantees, such as a deposit or bank guarantee.
5.12 Objections to the amount of the collection must be made known by the Customer within 30 days. After this term, you are deemed to have agreed to the amount of the collection.
6.1 Guardey (or its licensors) grants you/Customer a non-exclusive, non-transferable, non-commercial and personal license, without the right to sublicense (hereinafter referred to as: License) to use the Software (in whole or in part). ) to install and/or use during the time until the Agreement has come to an end. Under no circumstances may Customer and you may not allow others to use the Software or this License for commercial purposes without obtaining a license to do so from Guardey. Updates, upgrades, patches and changes may be necessary to continue using the Software on some hardware.
6.2 The Client may only use the Software within its own organization, but never in such a way that this use leads or can lead to any form of – commercial or non-commercial – exploitation of the Software or any part thereof by the Client or any third party.
6.3 Customer may not, directly or indirectly i) commercially sell, rent, lease, license, distribute, trade or exploit any part thereof, ii) reverse engineer the Software in whole or in part, decompile the Software disassemble, modify, reproduce or create derivative works thereof, iii) “auto”, “trainer”, “script” or “macro” computer programs or any other “cheat” or “hack” programs or software applications for the Software create, use and/or distribute, iv) remove, alter, reverse or circumvent any indications of copyright or trademark or other authorship and original information, notices or labels on or within the Software and v ) subject the Software or any copy or modification thereof to export or re-export in violation of any applicable laws and regulations.
6.4 The License is granted for the duration and under the conditions as stipulated in the Agreement and/or in these Conditions.
6.5 When using the Software, Customer will comply with all applicable laws, rules and regulations.
7.1 Any title, all proprietary rights and intellectual property rights in and to the Software (including, without limitation, any text, source code, graphics, music or sound, any messages or information, names, themes, objects, effects, slogans, diagrams, concept videos, audiovisual effects, domain names and all other elements contained in the Software, individually or in combination) and all copies thereof are the property of Guardey or its licensors. The Software is protected by national and international laws, copyright treaties and conventions and other laws. The Software may contain certain licensed materials and Guardey’s licensors may, in such event, protect their rights in the event of any violation of these Terms. Any reproduction or representation of these Licensed Materials by any means and for any reason is prohibited without the prior consent of Gueardey and, if applicable, that of Guardey’s licensors and agents. Except as expressly set forth in these Terms, all rights not granted to Customer under this Agreement are expressly reserved by Guardey.
7.2 The License does not confer any title or title to the Software and shall not be construed as a sale of any rights to the Software.
8.1 Guardey’s total liability due to attributable shortcomings in the performance of the Agreement, the Services provided or on any legal ground whatsoever, expressly including any failure to comply with a warranty or indemnification obligation agreed with the Customer, is limited to compensation for damage as detailed in this article.
8.2 Direct damage is limited to a maximum of the amount of the price stipulated for that Agreement (excl. VAT). If the Agreement is mainly a continuing performance agreement (such as a license agreement) with a term of more than one year, the price stipulated for that agreement is set at the total of the fees (excl. VAT) stipulated for one year. In no event shall Guardey’s total liability for direct damages, on whatever legal basis, exceed €10,000.
8.3 Indirect damage, consequential damage, lost profit, lost savings, reduced goodwill, damage due to business interruption, damage as a result of claims from customers of the Customer, damage related to the use of goods, materials or software from third parties prescribed by the Customer to Guardey and damage related to the engagement of suppliers prescribed by the Customer to Guardey is excluded. Also excluded is Guardey’s liability in connection with mutilation, destruction or loss of data or documents as well as damage to property.
8.4 If the Agreement is a continuing performance contract, with a duration of more than 1 (one) year and Guardey’s liability arises from this continuing performance contract, the stipulated price is set at the total of the fees (excluding VAT) actually paid by the Customer to Guardey on the basis of the continuing performance contract for 1 (one) year (being the year in which the damage occurred) with an absolute maximum of € 10,000.
8.5 Guardey’s liability only arises if the Customer provides Guardey with immediate and proper notice of default in writing, setting a reasonable term to remedy the shortcoming and Guardey imputably continues to fail to fulfill its obligations after that term. The notice of default must contain as detailed a description as possible of the shortcoming, so that Guardey is able to respond adequately.
8.6 A condition for the existence of any right to compensation is always that the Customer informs Guardey of this in writing by registered letter within 30 (thirty) days after the occurrence of the damage, taking measures to limit the damage as much as possible.
8.7 The Customer indemnifies Guardey against all third-party claims for liability as a result of a defect in Software, Service(s), system or service delivered or delivered by the Customer to a third party and which Software, Service or system also existed from what has been delivered by Guardey.
8.8 Guardey does not accept any liability for damage of any nature whatsoever, caused by services and products supplied by/from third parties (including software), which Guardey has passed on/delivered to the Customer (including the services as described in Article 10 of these Terms). If possible, Guardey will transfer to the Customer its rights to claim damages from the supplier of the third party product in question.
8.9 Guardey is not liable for damage of any kind resulting from the late provision of Software, Services, support and/or maintenance.
8.10 Guardey is not liable for damage of any kind caused by its subcontractors in the context of any work related to support/helpdesk.
8.11 Customer is solely responsible for any damages caused to Guardey, its licensors, channel partners and affiliated service providers and subcontractors, other users of the Software and any other natural or legal person as a result of the breach of the Agreement and/or these Terms.
9.1 Guardey reserves the right, in its sole discretion, to revise, update, change, modify, add or remove any terms contained in these Terms (and any Appendices) for security reasons , best practices, and for legal or regulatory reasons. These changes will be effective with or without notice to you, as the case may be. You can review the most current version of these Terms by clicking the “Terms” link at [https://www.guardey.com/terms-and-conditions/]. You are responsible for periodically checking these Terms for changes. If any future changes to these Terms are unacceptable to you or cause you to no longer agree or comply with these Terms, you may terminate the Agreement in accordance with Section 4 of these Terms and immediately uninstall the Software. install and destroy all copies of the Software. Your continued use of the Software after any revision of these Terms constitutes your full and irrevocable acceptance of all such changes.
9.2 Guardey may change the Software at any time and in its sole discretion, for any reason or without any specific reason, in particular for technical reasons such as updates, maintenance and/or resets in order to improve and/or optimize the Software. Customer accepts that the changes can be installed or downloaded automatically. Customer acknowledges that Guardey may discontinue support for previous versions of the Software upon the availability of an updated version. Guardey’s resellers, channel partners and affiliated service providers have no obligation to provide any maintenance or customer support related to the Software.
9.3 Update of the Software will take place outside office hours (09:00-17:00).
10.1 If the Customer uses Guardey Co-managed or Custom, the applicable performance indicators / service levels and associated obligations which are included in Appendix 1 apply.
10.2 Guardey uses IT partners to resolve security alerts. If work has to be performed as a result of the security notification, this will be done at the (hourly) rate as stated in the Agreement. Guardey will send a separate invoice to Customer for this.
Guardey makes no guarantees on bandwidth. In addition, there may be “Traffic Shaping” when using the Software. Traffic shaping (also referred to as packet shaping) is a bandwidth management technique in which the (data) flow of certain types of network packets is slowed down to ensure network performance for higher priority applications (the Software).
12.1 If the Customer has expressly agreed with Guardey in writing that, in addition to the Software, it will also purchase the “site-to-site VPN” application, the provisions of this Article 12 shall apply.
12.2 It is at Guardey’s sole discretion to determine whether Customer (and his/her hardware) is eligible for the site-to-site VPN application.
12.3 Customers of the site-to-site VPN receive a Dedicated IP address per site to site. A site-to-site VPN does this by establishing an encrypted connection between VPN gateways located at each of these sites. A site-to-site VPN tunnel encrypts the traffic on one side and sends it to the other site over the public internet, where it is decrypted and forwarded to the destination.
13.1 If the Customer has expressly agreed with Guardey in writing that, in addition to the Software, it will also purchase the “Dedicated IP address” application, the provisions of this Article 13 shall apply.
13.2 Customers of the Dedicated IP address application will receive a Dedicated IP address on the terms and conditions as agreed in writing. A Dedicated IP address is an address that only the Customer can use via a Virtual Private Network (VPN). All persons assigned to this IP address will have secure access to the network – anywhere in the world. There is a maximum of one hundred (100) users per Dedicated IP address.
13.3 Customer is fully responsible for the use of the Dedicated IP addresses in line with applicable laws and regulations. If a Dedicated IP address assigned by Guardey to the Customer is blacklisted, in connection with its misuse, the Customer will be liable to Guardey without a reminder or other prior statement, a non-settable fine of €500 (in words: five hundred euros) due.
If and insofar as personal data for or originating from the Customer are processed in the context of the execution of the Agreement, Guardey will handle this personal data in a proper and careful manner and in accordance with the GDPR. For more information about how Guardey handles personal data, Guardey refers you to its Privacy Statement at [https://www.guardey.com/privacy-statement/].
Force majeure means circumstances that impede the performance of Guardey’s obligations under these Terms and the Agreement to which they apply, over which Guardey has no reasonable control, including late and/or delayed deliveries and incomplete deliveries by Guardey and temporary or partial unavailability of Software, your Account, Services, services caused by circumstances beyond Guardey’s reasonable control. In the event of force majeure, all Guardey’s obligations will be suspended. Should the period during which Guardey is unable to fulfill its obligations due to force majeure exceed ninety (90) calendar days, either party shall have the right to terminate the Agreement in writing, and Guardey shall have the right to terminate the Agreement for the Software and Services or otherwise. without any obligation to pay any compensation whatsoever arising out of or in connection with such dissolution.
If any provision of these Terms or the Agreement is determined by any competent court to be invalid or unenforceable, such invalidity or unenforceability shall not affect the remaining provisions of the Agreement or these Terms which are valid, binding and enforceable as well as in full. shall remain in effect and the invalid or unenforceable provisions shall be construed in a manner that most closely reflects the validity and enforceability of the parties as set forth in the agreement and these Terms.
No failure or delay by Guardey (or its licensors) to exercise any right or remedy as provided under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it interfere with the further exercise of exclude or limit that or any other right or remedy. No exercise or partial exercise of the foregoing right or remedy shall preclude or limit the further exercise of that or any other right or remedy. A waiver of any right or remedy may only be made upon a written statement to that effect signed by Guardey.
This Agreement and any agreements entered into pursuant to or in connection with this Agreement shall be governed by and construed in accordance with Dutch law.
All disputes in connection with this Agreement or the agreements concluded in implementation of or in connection with this Agreement will be submitted exclusively to the competent court of the District Court of The Hague.
For questions regarding these Terms, please contact Guardey at the following address: [email protected].