By creating the Account, you enter into an Agreement with Pluvo B.V. under the terms as stated below:
- Pluvo B.V. has developed a software platform that enables the creation, management, and availability of training programs, and operates it under the name PLUVO;
- Customer wishes to use the Service through PLUVO;
- Pluvo B.V. and Customer have reached agreement on the use of PLUVO and lay down the agreements and conditions in this Agreement;
Agree as follows:
In this Agreement, the following terms, both in singular and plural, and always written with a capital letter, have the following meanings:
Account: the personal environment of the Participant or Trainer that is accessed using Login Credentials;
Annex: an appendix to this Agreement and an integral part of the Agreement;
Content: all information in any form, such as data, documents, and materials, provided or exchanged by the Customer via the Service, including but not limited to: videos, slideshares, feedback, test questions, audio, presentations, and personal data;
Participant: a natural person selected by the Customer to participate in one or more learning programs;
Service: the service that Pluvo provides to the Customer via PLUVO, consisting mainly of access to the online academy and creating, managing, making available, and tracking learning programs;
Login Credentials: the login name and password used to access the Customer Account or Account to use the Service;
Intellectual Property Rights: all intellectual property rights and related rights, such as copyrights, trademark rights, database rights, neighbouring rights, as well as related rights such as know-how and so-called one-line performances;
Customer: the natural or legal person who enters into this Agreement with Pluvo;
Customer Account: the administrative account of the Customer accessed using the Login Credentials to manage the use of the Service and Accounts;
Agreement: this Agreement;
PLUVO: the software as a service platform and the underlying software and documentation, including (mobile) application and website, through which the Service is provided;
Trainer: the natural person selected by the Customer who develops, provides, and/or guides the learning program, as well as evaluates the tests and provides feedback to the Participants.
- This Agreement encompasses the agreements and conditions for the provision of the Service by Pluvo and the use of the Service and PLUVO by the Client, Trainer, and Participant.
- The applicability of purchasing or other conditions of the Client is explicitly rejected.
- The Agreement is concluded at the moment it has been signed by both Parties or at the moment the Client has accepted the Agreement by checking an acceptance box. Signing can be done physically or electronically. Whether and in what way electronic signing will take place is determined by Pluvo.
- The Client will gain access to the Service once the signed Agreement has been received by Pluvo. PLUVO will automatically provide the Client with a link, which, after creating a password, will grant access to the Client account.
3. The Service
- The provision of the Service by Pluvo mainly consists of providing access to the online academy of the Customer and offering the possibility to create, manage, make available, and track learning paths. Pluvo does this by remotely making PLUVO available and keeping it available.
- Pluvo will make every effort to provide the Service with care. Unless expressly agreed otherwise in writing, the Service is provided by Pluvo on a best-effort basis. Specific agreements regarding the availability of the Service are only possible when concluding a service level agreement (SLA).
- The Customer can use the Service through the Customer Account. The Customer is responsible for setting a password in accordance with its internal password policy when logging in for the first time.
- Once the Customer has access to the Customer Account, the Customer can create an Account for each Participant and Trainer. The Customer can set the possibilities and limitations of the Account. The Participant and Trainer will access the Account by clicking on the link in the email they will receive and setting a password in accordance with the Customer's password policy.
- The Customer warrants that the Trainer and Participant will at all times act in accordance with what is stipulated in this Agreement and will impose on them at least the same obligations for the use of the Service as set forth in this Agreement.
- The Customer is responsible and liable for the choice of Login details by the Participant and Trainer and for any use of the Account by the Participant and/or Trainer. Once the Customer knows or suspects that the Login details are no longer confidential or that there is abuse of the Customer Account or an Account, the Customer must notify Pluvo immediately and take the necessary measures to prevent unauthorized access. In this case, Pluvo is entitled to block the Customer Account or the Account (temporarily).
- Pluvo is entitled to make procedural and/or technical adjustments and/or improvements to the Service and/or PLUVO without incurring any liability in any way.
- Unless otherwise agreed in the SLA, Pluvo does not guarantee that the Service and/or PLUVO is free from defects. Pluvo also does not guarantee that the use of the Service will result in certain outcomes and that the information provided is correct and complete.
- As stated in 3.2, Pluvo aims to keep the SERVICE constantly available and operational. Our infrastructure is designed in such a way that releases are always validated and executed through a standard procedure and usually take place without downtime.
- The use of the Service is always at the Customer's own risk and responsibility. The Customer indemnifies Pluvo against all claims by third parties based on the assertion that the use of the Service by the Customer and/or Trainer and/or Participant is in any way unlawful and against all claims by third parties resulting from the Customer and/or Trainer and/or Participant's failure to comply with the Agreement.
4 Customer Responsibilities
- The Customer is required to do and refrain from doing everything that is reasonably necessary and desirable to enable timely and correct execution of the Service, including but not limited to purchasing and/or ensuring adequate functioning of the Customer's infrastructure and timely provision of necessary data and documents. If the Customer fails to comply with the aforementioned, Pluvo has the right to fully or partially suspend execution of the Agreement and charge the resulting costs according to Pluvo's usual rates, without prejudice to Pluvo's right to exercise any other legal and/or agreed upon rights.
- The Customer is responsible for the use of the Service by the Customer, Trainers, and Participants. The Customer is responsible for the implementation of the Service, proper configuration of the Service, and proper selection of computer, data, or telecommunications facilities, including internet, and for their timely and complete availability.
- The Customer is responsible for verifying and evaluating the accuracy and completeness of the results of the Service and the learning paths, analyses, scores, tests, and test results generated by using the Service.
- The Service enables the development of learning paths and Content, as well as the addition of existing Content to the learning paths. Trainers and Participants use the Content, which can be saved in PLUVO's archive. The Customer, and to the extent permitted by the Customer, the Trainer and/or Participant, have access only to their own environment in PLUVO's archive and do not have access to the environment in the archive of other customers.
- The Customer is responsible and liable for placing the Content. It is not allowed to place Content that:
- Pluvo is not liable for any damage arising in connection with the (unlawful) use of the Service, including the placement and use of Content as mentioned in article 5.2. Pluvo is only obliged to remove unmistakably unlawful Content or cease unmistakably unlawful activity, whether or not after receiving a notification. To this end, Pluvo will first consult with the Customer before proceeding with the blocking of Content or cessation of an activity.
- Pluvo reserves the right to refuse a request from a Trainer or Participant to block Content or cease an activity if it has reasonable grounds to doubt the accuracy of the notification or the legality of the evidence provided, or if a balancing of interests requires it. In this context, for example, Pluvo may require a judicial ruling from a competent court in the Netherlands, which demonstrates that the relevant material or activity is unmistakably unlawful.
- The above applies equally to Content that is made available or exchanged via the chat function in PLUVO.
- The use of the Service for one (1) learning path with a maximum of five (5) Participants is free of charge.
- For the use of the Service other than mentioned in section 1 of this article, the Customer is obliged to pay a fee. This fee consists of a monthly subscription fee. The amount of the fee depends on the features of the chosen subscription and the number of Participants. An overview of the subscription plans and their prices can be found on the PLUVO website.
- The fee is due monthly in advance and will be collected via direct debit. If the balance on the designated (credit card) payment account is insufficient, the Customer account and the Accounts will be blocked. An invoice will be sent every month and all payments can be viewed in the Account
- Notwithstanding the foregoing, PLUVO is entitled to increase the prices annually by a maximum of 3%.
- In case of non-payment (in a timely and complete manner), the Customer is immediately in default, without prior notice or demand being required. From the moment of default, the Customer is obliged to pay interest equal to the statutory commercial interest rate.
- If, after reminder or demand, the Customer fails to settle the claim, PLUVO may assign the claim to a third party. In that case, all costs incurred by PLUVO, such as legal fees and extra-judicial and judicial costs, including the costs for legal assistance, bailiffs, and collection agencies, made in connection with late payments, shall be borne by the Customer.
- Complaints relating to the Service or PLUVO do not suspend the payment obligation. PLUVO is entitled to suspend the performance of its obligations under this Agreement until the Customer has fulfilled its payment obligations.
- In the context of the execution of the Agreement, Pluvo will process personal data within the meaning of the General Data Protection Regulation (GDPR) on behalf of the Client. The Parties agree that, to the extent that Pluvo processes personal data on behalf of the Client, Pluvo will be deemed a processor within the meaning of the GDPR and the Client as the data controller. Pluvo and the Client will conclude a data processing agreement with regard to the processing of personal data by Pluvo on behalf of the Client, in accordance with the model annexed to this Agreement as Appendix.
8. Intellectual Property Rights
- All Intellectual Property Rights with regard to the Service and PLUVO, including but not limited to, the software including preparatory material such as manuals, the website or other information and materials made available by Pluvo to the Customer and/or the Trainer and/or the Participant, are solely owned by Pluvo or its licensors.
- Provided that the Customer complies with its obligations under the Agreement, including its payment obligations, Pluvo grants to the Customer a limited, personal, revocable, non-exclusive and non-transferable right to remotely access and use the Service and PLUVO in accordance with the Agreement.
- The Customer may sublicense the right of use referred to in the previous paragraph to Trainers and Participants by creating Accounts and adding Trainers and Participants, with or without using a group.
- Unless permitted by mandatory law, the Customer may not modify, reproduce or decompile the software underlying PLUVO, or apply reverse engineering to the software. Nor may the Customer take any action with the aim or effect of identifying or obtaining the source code of the software, or engage or assist third parties in such actions, or remove or modify any indication of Intellectual Property Rights, including any indication of the confidential nature and secrecy of works.
- Pluvo is allowed to take technical measures to protect its Intellectual Property Rights. If Pluvo has secured the works through technical protection, the Customer is not allowed to remove or circumvent such protection.
- All Intellectual Property Rights of the Customer, including the intellectual property rights to the Content and those related to personalizing the training including the brand, logos, images, the look and feel of training and images, remain the property of the Customer or its licensors. By using the Service, the Customer automatically grants Pluvo a free, worldwide, perpetual, irrevocable, sub-licensable and transferable license to use and reproduce the Intellectual Property Rights to the extent necessary in connection with providing the Service. The Customer warrants that it is authorized to grant this license to Pluvo.
- The liability of Pluvo for an attributable failure in the performance of the Agreement, an unlawful act, or any other act or omission by Pluvo, its employees, or its appointed third parties, including any failure to comply with a warranty obligation agreed with the Customer, is limited to the compensation of direct damages. The total liability of Pluvo for direct damages shall not exceed the total amount paid by the Customer to Pluvo under the Agreement in the twelve (12) calendar months preceding the event giving rise to the liability (excluding VAT). However, the total liability of Pluvo shall in no event exceed €2,000 (excluding VAT), unless otherwise agreed in a separate Service Level Agreement (SLA).
- "Direct damages" means exclusively:
material damage; reasonable expenses that the Customer would have to make to ensure that Pluvo's performance is in accordance with the Agreement; however, this alternative damage will not be reimbursed if the Agreement is terminated by the Customer (including termination by the competent court on behalf of the Customer) (Article 6:265 Dutch Civil Code);Reasonable expenses incurred by the Customer to establish the cause and extent of the damage, to the extent that the determination relates to direct damages within the meaning of this Agreement; reasonable expenses incurred by the Customer to prevent or limit damage, to the extent that the Customer can demonstrate that these expenses have led to a limitation of direct damages within the meaning of this Agreement.
- Pluvo is not liable for any damages other than direct damages as described in article 9.2, including consequential damages arising from or in connection with the Agreement, including without limitation loss of profit, loss of revenue, loss of expected savings, and other similar financial losses such as loss of goodwill or reputation, or any incidental, indirect damages or damages by way of penalty or exemplary damages of any nature whatsoever, whether or not the Customer has notified Pluvo of such possible damages, compensation or loss.
- Pluvo is never liable for services provided by Pluvo's suppliers.
- Pluvo is never liable for damages resulting from force majeure, see article 10.
- The limitations mentioned in the previous paragraphs of this article do not apply in case of intent or gross negligence on the part of Pluvo or its directors.
- The liability of Pluvo for attributable failure in the performance of the Agreement arises only if the Customer promptly and properly notifies Pluvo in writing of the default, setting a reasonable period for remedying the default, and Pluvo continues to fail in the performance of its obligations after that period. The notice of default must contain a detailed description of the default, so that Pluvo is able to respond adequately.
- A condition for the Customer to be entitled to any compensation for damages is that the Customer reports the damage in writing to Pluvo within 30 days after its occurrence. The right of the Customer to claim compensation under this Agreement, on the basis of an unlawful act or otherwise, will in any event expire one (1) year after the event that gave rise to the claim or legal proceedings.
10. Force Majeure
- Pluvo is not obliged to fulfil any obligation towards the Customer if hindered by circumstances not attributable to its fault, and not for which it is responsible under the law, a legal act, or commonly accepted practices ("Force Majeure").
- Force Majeure also includes, in addition to what is understood by this term in the law and jurisprudence, all external causes, foreseen or unforeseen, over which Pluvo has no control, but which prevent Pluvo from fulfilling its obligations. In particular, Force Majeure means domestic unrest, syn floods, network attacks, Denial-of-Service or Distributed Denial of Service attacks, mobilization, war, transportation disruption, strike, lockout, business disruption, stagnation in supply, fire, flood, import and export restrictions, and in case Pluvo is not able to deliver due to its own suppliers, regardless of the reason, which makes it unreasonable to expect Pluvo to comply with the Agreement.
- During the period that Force Majeure lasts, Pluvo can suspend the obligations under the Agreement. If this period lasts longer than 60 days, either Party is entitled to terminate the Agreement, without any obligation to compensate the other Party for damages.
- To the extent that Pluvo has partially fulfilled its obligations under the Agreement at the time Force Majeure occurred or will be able to fulfil them, and this fulfilled or to be fulfilled part has independent value, Pluvo is entitled to separately charge the already fulfilled or to be fulfilled part. The Customer is obliged to pay this bill.
11. Duration and termination
- The Agreement is entered into for an indefinite period and is silently extended each time for a period equal to the initial term of the Agreement. Either Party may terminate the Agreement at any time by giving written notice at the end of the month.
- If the Agreement is dissolved due to a breach of contract by one of the Parties, the performance that the Customer has received at the time of the dissolution for the execution of the Agreement and the related payment obligation will not be subject to reversal. Amounts invoiced by Pluvo before dissolution due to Customer's breach of contract remain fully owed and are immediately payable at the time of dissolution.
- Pluvo has the right to terminate the Agreement in whole or in part, without any notice of default being required, if the Customer is granted a suspension of payment, if the Customer's bankruptcy is requested, if the Customer's business is liquidated or terminated, other than for the purpose of reconstructing or merging companies, or if the decisive control over the Customer's business changes.
- In case of termination, dissolution, or other form of termination of the Agreement, Pluvo will never be obliged to refund any funds received or pay any damages.
- The right of the Customer, Trainers, and Participants to use and access the Service shall expire automatically in case of termination, dissolution, or other form of termination of the Agreement.
- If the Customer does not, not fully or not timely, fulfil its obligations under the Agreement, Pluvo is entitled to suspend or terminate the execution of the Agreement in whole or in part without any notice of default or formal demand. This provision does not prejudice Pluvo's right to exercise any other legal and/or agreed right.
- At termination of the Agreement, for any reason whatsoever, Pluvo shall remove the Customer Account, the Accounts, and the Content. Pluvo is not obligated to provide any Content or information or convert or export such information unless otherwise agreed upon in a separate Service Level Agreement (SLA). The licence referred to in Article 8.6 with respect to the Content shall remain in full force and effect after termination of the Agreement.
- The provisions intended to remain in effect after termination, dissolution or other form of termination of the Agreement shall survive termination, dissolution or other form of termination of the Agreement.
- The Parties shall treat as confidential all information they provide to each other before, during or after the performance of the Agreement, when such information is marked confidential or when the receiving Party knows or reasonably should suspect that the information was intended to be confidential. The Parties shall also impose this obligation on their employees and on third parties engaged by them to perform the Agreement.
13 Final provisions
- Information and communications on Pluvo's website and within the Service are subject to programming and typographical errors. In case of any inconsistency between the website and the Agreement, the Agreement shall prevail.
- Where this Agreement refers to 'in writing', this shall also include email.
- The Customer declares to be authorized to enter into this Agreement.
- The Customer agrees that Pluvo may transfer the rights and obligations granted to it under the Agreement to a third party without the Customer's consent in order to ensure continuation of the Service.
- If the Customer wishes to transfer the rights and obligations granted to it under the Agreement to a third party, written consent from Pluvo is required.
- This Agreement and the use of the Service and Pluvo shall be governed by Dutch law.
- Any disputes arising between Pluvo and the Customer in connection with or arising out of this Agreement shall be submitted to the exclusive jurisdiction of the court in Amsterdam.