CONDITIONS OF ELECTRONIC USE OF THE FLEXTRACK SYSTEM
These Conditions of Use apply to every electronic and other use of the System. Please read these Conditions carefully before using the System. By using the
System, you accept the provisions of these Conditions. If you do not accept these Conditions, you may not use the System.
Article 1 Definitions
1.1 MSI-ACI Europe BV ( ACI ): the supplier referred to in these Conditions or a business affiliated with it
1.2 User: a Customer or Respondent of the Customer designated by the Customer to have access to the System
1.3 Customer: any natural person or legal entity with which ACI has concluded an agreement
1.4 Respondent: the Customer s respondents who can enter Data into the System;
1.5 System: the remotely accessible FlexTrack web-based portal, community or databank (including the information in the databank)
available at http://dashboard.flextrack.msi-aci.com as well as all underlying webpages, by means of
which the User can access Data or Applications.
1.6 Data: the files (including customer files) provided by the User, the surveys generated by the User by means of the System and/or the
data (including Respondent data) collected by the User on the basis of the communities or completed survey questionnaires
Article 2 Right to use the System
2.1 ACI hereby grants the User a personal, non-transferable, non-exclusive right to use the System. This right to use is limited to remote use of the
System by means of electronic access via the Internet. The User may not reproduce, publicise, reuse or retrieve the System, unless insofar as necessary for
the intended use and/or as prescribed by mandatory provisions of law.
2.2 ACI may take technical measures to protect the System. The User may not remove or circumvent such technical measures.
2.3 The User may not let, lend, lease, sublicense or grant any other restricted rights in respect of the rights of use obtained. The User furthermore may
not give any third party remote or other access to the System.
2.4 The use of the System is for the User s own account and risk. The use of electronic communication facilities in order to gain access to the System is
also for the User s own account and risk. ACI will in no event be liable for any damage, loss or costs, including loss of Data, or any inability of the
User to use the System as a result of a shortcoming, defect or other malfunction of the aforesaid electronic communication facilities.
Article 3 Data
3.1 When the User enters Data into the System, the User warrants that the Data are correct and complete. The User also warrants that it is entitled to
disclose all the data, including personal data, provided to ACI. Insofar as necessary, the User hereby gives ACI permission to process the personal data.
3.2 The risk of loss or theft of or damage to Data, information, software, files and/or other data of the User and/or made available to the User will at
all times be borne by the User.
3.3 In as far as the Data is protected by Intellectual Property Rights, these rights are vested in the Customer. In these cases, the Customer grants
MSI-ACI a royalty-free, worldwide, transferrable and sub-licensable right to collect, analyse, combine, process in as far as necessary for the provision of
the Services and/or, after anonymizing it, otherwise (re)use the Data.
Article 4 User s obligations
4.1 The User warrants the correct and proper use of the System, with due observance of these Conditions. The User may not use the System for any acts
and/or conduct contrary to the law, public order or public decency. The User s acts and/or conduct must be in accordance with what may in all respects be
expected of a responsible and diligent User.
4.2 The access, identification or other codes made available to the User are personal. The User must handle those codes confidentially and with due care.
ACI will in no event be liable for any loss or costs resulting from any abuse made of such codes.
Article 5 Intellectual property rights
5.1 All intellectual or industrial property rights in respect of the System will vest exclusively in ACI.
5.2 The User may not change, render illegible or remove any trademark or recognition signs affixed to the System and/or any references to copyrights, trade
names or other intellectual property rights, including references to its confidential nature and confidentiality, and may not modify or copy the System or
any part thereof.
Article 6 Functioning of the System
6.1 The User acknowledges and accepts that:(a) the System will not and cannot meet all the User s expectations;(b) the System will not be free of errors
and will not function without interruption; and (c) not all the errors in the System will be repaired.
Article 7 ACI's liability
7.1 ACI accepts statutory obligations to pay damages only to the extent apparent from this Article.
7.2 ACI's total liability on the grounds of attributable failure to fulfil its obligations and/or on the grounds of a wrongful act will be limited to
compensation of any damage to property (zaakschade) (not including Data, software and/or other information) up to a maximum amount of EUR 5,000
(five thousand euros) per event, in which respect a series of related events will be regarded as one event.
7.3 ACI's liability for (pure) financial loss (zuivere vermogensschade ), including indirect loss, consequential loss, loss of profit, loss of
savings, loss of goodwill, loss resulting from interruption of operations, loss as a result of claims from customers of the User, and loss of or damage to
Data and/or other information is excluded.
7.4 ACI's total liability for loss resulting from death or physical injury will in no event exceed EUR 50,000 (fifty thousand euros) per event, in which
respect a series of related events will be regarded as one event.
7.5 ACI's liability on the ground of attributable failure to fulfill its obligations will arise only if the User gives ACI immediate and proper written
notice of default, setting a reasonable period in which to remedy the failure, and ACI is still in breach of its obligations at the end of that period. The
notice of default must include as detailed a description of the failure as possible, to enable ACI to respond adequately.
7.6 The purpose of this Article is not to limit ACI's liability in the event of intent and/or gross negligence on the part of ACI's direct managers and/or
Board of Directors.
Article 8 Duration of use of the System
8.1 The User may use the System for as long as the Customer or ACI give it the right to do so.
8.2 ACI may deny the User access to the System with immediate effect, whether or not temporarily, if the User fails to fulfill any obligation under these
Conditions or under the law. ACI may furthermore deny the User access to the System if the agreement between ACI and the Customer ends for any reason
Article 9 Other provisions
9.1 These Conditions and every Agreement are governed by Dutch law. The applicability of the 1980 Vienna Sales Convention (CISG) is excluded. Any disputes
arising in connection with the Agreement or these Conditions, except insofar as otherwise provided by law, will be settled by the competent court of
Amsterdam, the Netherlands, on the understanding that MSI-ACI will have the right to file claims against the Customer, whether or not simultaneously,
before other courts of justice that are competent to hear and decide on such claims.
9.2 ACI may amend these Conditions. Any such amendments must be reported to the User beforehand. If the User does not accept the amendments, it will have
the right to end the use of the System within ten workdays after ACI has communicated the amendments to the User.
9.3 The User undertakes to observe confidentiality with regard to all information concerning ACI and/or the System that comes to its knowledge in the
context of the use of the System. This obligation in any event relates to technical, financial, operational and business information of ACI, and to any
other information that the User knows or should know is confidential. The burden of proof that certain information of ACI is not confidential is on the