Terms of use

Article 1. Definitions

The terms in the vPlan Agreement and the vPlan Terms of Use have the following meaning:

Additional Order: the purchase of subscriptions; modules; add-ons; modification of (the number of) bundles and packages and the like after the vPlan Agreement has become effective;
Customer: the natural person or legal entity who enters into a vPlan Agreement with vPlan or is negotiating with vPlan;
Customer Data: any data that Customer enters into the Web Application or that is entered into the Web Application on Customer's behalf;
Consultancy Services: the consultancy service provided by vPlan to the Customer in the framework of the vPlan Agreement;
Third-Party Components: a piece of software (component), collection of components, or an API interface to a library (for example, a .dll interface), developed by a third party and used by vPlan in its software for the Web Application;
Third-Party Services: a service developed by a third party and enabled by a connection between the Web Application and a third party's website;
User: the Customer and/or Employee of a Customer who uses the web application;
Employee: an employee of the Customer or vPlan and/or another Person who is authorised to work for or under the responsibility of the Customer or vPlan;
Privacy Policy: the privacy policy of vPlan, made separately available on the Website, which applies to vPlan’s processing of the Customer’s personal data and is in accordance with the applicable laws and regulations;
System Requirements: the minimum requirements that vPlan sets for the Customer’s hardware and software to be able to use the vPlan Services;
Confidential Information: confidential information about the Customer or vPlan, including (a) information, marked as ‘confidential’ in writing, (b) information not generally known to the public, (c) information not generally disclosed by the party to whom it relates and/or from whom it originates, and (d) information whose confidential nature is reasonably known;

vPlan: vPlan, the trading name of Most Wanted Software B.V., acting as a provider of services under the vPlan Agreement;
vPlan Agreement: any agreement concluded between vPlan and the Customer in respect of one or more vPlan Services, a consultancy agreement and any Additional Orders, including these terms and conditions;
vPlan Service(s): the services to be provided by vPlan, as further described in the vPlan Agreement;
vPlan Terms of Use: these vPlan Terms of Use;
Web Application: the software described in the vPlan Agreement, to which vPlan grants the Customer access by means of the vPlan Services for use in accordance with the provisions of the vPlan Agreement;
Website: the website of vPlan.

Article 2. General

2.1. These terms and conditions apply to every vPlan Agreement.

2.2. Stipulations that deviate from these terms and conditions will be binding only if they have been agreed in writing and will apply only to the case in question.

2.3. vPlan expressly rejects the applicability of the Customer’s purchasing or general terms and conditions.

2.4. In these terms and conditions, the terms ‘in writing’ or ‘written’ also mean by e-mail.

2.5. If vPlan does not require strict compliance with these terms and conditions in a particular case, it does not forfeit the right to require strict compliance in future cases, similar or otherwise.

2.6. vPlan is entitled to revise these terms and conditions from time to time. The amended terms and conditions enter into effect on the date mentioned in the message in which vPlan announces the amendments. The amended terms and conditions will apply to vPlan Agreements that are concluded after the aforementioned amendment. The amended terms and conditions also apply to current vPlan Agreements, unless the Customer, within 14 days after the announcement of the proposed amendment of the terms and conditions, has informed vPlan in writing that it wishes to terminate the relevant vPlan Agreement or Agreements with due observance of a notice period of 1 month, which possibility of termination only exists if the amendments are substantially or unreasonably onerous. In the absence of a timely and lawful termination, the Customer is deemed to have accepted the amended terms and conditions. Termination does not entitle the Customer to repayment of fees that have already been paid or that are due.

2.7 The Customer can place an order or additional order for vPlan Services in the manner indicated by vPlan. Each order is subject to vPlan’s acceptance. vPlan may accept or refuse an order or additional order at its own discretion. The vPlan Agreement shall become effective on the date vPlan sends Customer a confirmation of the order or Additional Order (the "Effective Date").

2.8 All delivery times are determined by vPlan to the best of its knowledge and will be respected as much as possible. To the maximum extent permitted by applicable law for the parties to determine in the vPlan Terms of Use, the Customer will not be entitled to any compensation, reimbursement or discount as a result of late delivery.

2.9. The Customer accepts responsibility for choosing the vPlan Service to achieve its intended results and acknowledges that the vPlan Service is not designed to meet the individual requirements of the Customer.

2.10. These vPlan terms and conditions have been drawn up in different languages. If there is a difference of opinion about the content or purport of these terms and conditions, the Dutch text will be binding.

Article 3. Right of use

3.1. The vPlan Service is offered to the Customer for automation purposes within the Customer's company by means of the tools offered via vPlan, including the Web Application. The way in which the Customer deploys the tools and for which specific purposes is at the Customer's discretion.

3.2. In order to use vPlan Services, the Customer must first register on the Web Application. After the Customer completes his registration, the Customer may immediately log into his account and use the vPlan Service.

3.3. The Customer may not relicense or sublicense vPlan, or use vPlan for third-party training, commercial (part-time) use, rental or service bureau use.

3.4. The Customer may not assign its rights and obligations under these terms and conditions to any third party. The Customer may not sell and/or lease vPlan to other parties without the prior written consent of vPlan.

3.5. The Customer must protect access to its account from unauthorized persons by means of a user name and password. In particular, the Customer shall keep the password strictly confidential. vPlan may assume that everything that is done from the Customer's account is done after logging in with his user name and password.

3.6. To the extent not contrary to any mandatory provision of law, vPlan may, at its sole discretion, make modifications to the Web Application. vPlan will notify the Customer in a timely manner of updates and/or upgrades to the extent that they are relevant to the use of the Web Application.

Article 4. Prices and payment

4.1. All prices and rates applied by vPlan exclude VAT and any other taxes, levies and surcharges of any nature imposed now or in the future by the government or any other competent authority.

4.2. As of the starting Date, the Customer will owe vPlan a fee for the vPlan Services, regardless of whether the Customer actually uses these services. This is separate from any applicable fees for Consulting Services, which will be invoiced separately. Additional Orders placed by the Customer during the term of the vPlan Agreement will be invoiced on a pro-rata basis from the moment of actual confirmation and processing of the Additional Order.

4.3. Where possible, vPlan will inform the Customer of any adjustment of rates 1 month prior to the effective date of the rate change via the Website and/or Web Application. If such rate change results in higher rates and the Customer does not agree to the proposed adjustment, the Customer may terminate the vPlan Agreement in accordance with Article 5.2, failing which the Customer will be deemed to have accepted the adjusted rates.

4.4. Fees for the vPlan Services will be paid exclusively in advance unless otherwise agreed.

4.5. Unless otherwise agreed, the Customer will pay by direct debit and the Customer will provide vPlan with the appropriate authorization. The Customer must have a bank account with an (international) bank registered with the local central bank. Direct Debits will take place monthly or annually. If a direct debit is not possible, the invoiced amount must be paid within 10 days of the invoice date.

4.6. vPlan may (at its own discretion) offer Customer various payment methods (such as credit card, SEPA Direct Debit or iDEAL). Some payment methods are facilitated by third parties (e.g. credit card companies). Customer acknowledges and agrees that where vPlan uses the services of a third party to offer a payment method, third party terms and conditions may apply to Customer in connection with Customer's use of that payment method. The Customer is advised to carefully review and agree to those additional terms and conditions of vPlan and/or a third party before using a particular payment method. The Customer may consult additional third-party terms and conditions here.

4.7. The Customer shall provide vPlan with all information and cooperation, including full name, current address and payment details, and shall immediately notify vPlan of any change in such details via the Web Application.

4.8. If the Customer fails to fulfil its payment obligations or fails to fulfil them in time, withdraws the direct debit mandate without a valid reason, or if the payment cannot be processed for reasons not attributable to vPlan, vPlan will inform the Customer accordingly and reserves its right to limit the functionality of the Web Application or block the Customer’s access to the vPlan Web Application Service without incurring any liability towards the Customer. At the request of the Customer, vPlan may lift such restriction or block access to the Web Application when outstanding amounts, plus any additional fee pursuant to clause 4.10, have been paid in full.

4.9. If the Customer fails to meet its payment obligations under this article 4 or fails to do so on time, it will be in default without further notice of default, and the Customer will then owe interest of 1.5% per month (or part of the month).

4.10. The Customer will be liable for all costs, expenses and (financial) damages, including but not limited to attorney fees and collection costs, incurred by vPlan as a result of the Customer's failure to meet its payment obligations. The (collection) costs incurred by vPlan are set at a minimum of 15% of the principal amount of the claim.

4.11. vPlan is entitled to demand immediate advance payment from the Customer until the end of the intended term of the vPlan Agreement. Such total payment is due immediately.

Article 5. Duration and termination of the Agreement

5.1. The vPlan Agreement commences on the Effective Date (see Article 2.7) and is entered into for a period of one (1) month unless vPlan and the Customer have expressly agreed otherwise. Upon expiration of such initial term, the Agreement will be tacitly renewed for successive periods of one (1) month each time ("Prolongation Date").

5.2. The vPlan Agreement may be terminated by the parties as provided in the vPlan Agreement and via the Web Application upon one (1) month's notice from the applicable Renewal Date.

5.3. Without prejudice to its other rights and defences, vPlan may, without liability, suspend its obligations under the Agreement and/or block the Customer's access to the vPlan Services with immediate effect, in the event that the Customer fails to (properly) fulfil its obligations under the vPlan Agreement.

5.4. vPlan is entitled to partially or fully terminate the vPlan Agreement at any time with immediate effect and without judicial intervention by means of (electronic) communication to the Customer, if the Customer: (a) fails to perform or properly perform any of its obligations under the vPlan Agreement and, after written notice by vPlan, fails to cure such failure or default within a reasonable time after such notice or (b) files for bankruptcy or insolvency proceedings against it, which filing is not withdrawn within 30 days, a receiver is appointed, notifies vPlan that it is no longer able to meet its payment obligations or if vPlan should conclude from the circumstances that the Customer will no longer be able to meet its payment obligations, is dissolved, granted a suspension of payments, liquidated or ceases its activities as an ongoing company.

5.5. Termination of the vPlan Agreement does not release the Customer from any pre-existing obligation to pay fees or other amounts owed to vPlan, nor does it entitle the Customer to any refund of fees or other amounts paid on account thereof. vPlan will in no event be liable to pay any compensation as a result of the termination.

5.6. vPlan may terminate the vPlan Agreement if the Customer has not logged on to the Web Application for a period of eighteen (18) months. vPlan will first send the Customer a reminder by e-mail to the e-mail address linked to the Customer's account.

5.7. For up to three (3) months following the termination of the vPlan Agreement, the Customer may request vPlan to reactivate the vPlan Agreement. vPlan is not required to comply with such a request, and any reactivation will only be effective once payment of the reactivation fee has been received by vPlan. Upon reactivation, Customer will again have access to its Customer Data as stored in the Web Application prior to the termination by Customer, if and when such Customer Data is still readily available from vPlan and can be provided to Customer. Customer hereby authorizes vPlan to (i) retain Customer Data for the period of three (3) months following termination of the vPlan Agreement, and (ii) destroy Customer Data upon expiration of such three (3) month period, no later than twelve (12) months following termination of the vPlan Agreement.

5.8. Upon request and for an additional fee, vPlan may provide the Customer with a copy of the stored data. Upon the Customer's request, vPlan will provide the Customer with information on the possibilities and costs thereof.

5.9. If the Customer takes out an annual subscription for vPlan, the following deviations will apply: a) unless explicitly indicated otherwise, any reference to 'per month' or 'monthly' will be understood to mean 'per year' or 'annually'; b) in deviation from Articles 5.1 and 5.2 of the vPlan Terms and Conditions, the vPlan Agreement is: (i) entered into for a period of one (1) year; (ii) tacitly renewed for successive periods of one (1) year each; (iii) terminated via the vPlan Service by the end of a current period subject to one (1) month's notice; c) in deviation from Article 4. 3. of the vPlan Terms of Use, the Customer is entitled to terminate the agreement via the vPlan Service as of the date on which the change takes effect, following any adjustment.

Article 6. gebruiksregels

6.1. Customer warrants that Users will use the Web Application in accordance with the vPlan Agreement, the vPlan Terms of Use and applicable laws and regulations and will not use the vPlan Services for any act(s) and/or conduct that would expose vPlan to negative publicity. Customer is ultimately responsible for all information that Users add or modify in the Web Application.

6.2. The Customer is not allowed to: a) use or attempt to use the vPlan Services for any illegal or unlawful purpose and/or to publish or otherwise distributing materials that are offensive, defamatory or in conflict with intellectual property rights of third parties; b) use or attempt to use the vPlan Service in any manner that would interfere with any third party's provision of the vPlan Service; (c) access or attempt to access any part of the vPlan Service that the Customer is not authorized to access (d) access or attempt to access any part of the vPlan Service by any automated means (for example, by "scrape", "crawl" or "spider"); (e) store, distribute, upload or transmit any virus, Trojan horse, worm or any other electronic infected or device (f) use any form of automated integration other than automated integration through the application programming interface (API) provided by vPlan; (g) reverse engineer, decompile, copy, distribute, disseminate, sublicense, modify, translate, scan, adapt or otherwise alter and/or reproduce any software or other code or script that is part of or accessible through the vPlan Service or Website and/or (h) interfere or attempt to interfere, directly or indirectly, with the proper working of any infrastructure ofPlan or third parties or any part thereof or interconnections therebetween.

6.3. Notwithstanding the above, the Customer must refrain from using the vPlan Services to spread or facilitate spam (including having SMTP relays and/or proxies open, hosting or enabling the hosting of websites that advertise through unsolicited messages and providing DNS services for such websites). The burden of proof to show that the addressee’s prior consent was given if bulk communications are transmitted by or on behalf of the Customer lies with the Customer. The Customer is liable for damage caused by distributing spam. Damage includes in any case, but is not limited to, compensation for the time spent by vPlan on removing its IP addresses and those of its other Customers of vPlan that have been added because of the spam from spam filter blacklists, and the costs related to handling complaints about the spam distributed by the Customer.

6.4. vPlan provides the vPlan Services based on its fair use policy. This means that vPlan generally imposes no restrictions on the nature and size of the Customer’s use of the vPlan Services, other than as intended in these terms and conditions. vPlan offers the vPlan Services for a quantity of information that it stores and the volume of data transport it realises, as can be expected on average in an enterprise of comparable size. This is on the understanding that vPlan reserves the right to take measures if excessive use occurs, namely use that significantly exceeds an average Customer’s use. The Customer must take measures to end the aforementioned excessive use immediately after vPlan has first reported this. vPlan may suspend the Services if a persistently excessive load occurs. vPlan can charge the Customer for the costs of this excessive load at the rates that are applicable at vPlan at that time. Excessive load also includes excessively high use of processing, memory, network, disk and storage capacity, as well as excessive use of management services and support services.

6.5. f the Customer and vPlan have agreed in the vPlan Agreement on a limitation with regard to the number and size of transactions, mutations or (financial) entries registered by the Customer, whether or not for a certain period, vPlan may, in case of exceeding such number, charge the costs of exceeded numbers to the Customer at the agreed rate per exceeded quantity and/or size. The Customer hereby agrees that vPlan may access Customer's records to report the number and size of the transactions, mutations and (financial) data registered by the Customer, solely for the purpose of determining whether the quantity and/or size agreed upon by the parties has been exceeded. ThePlan's records will be decisive evidence in this respect, in the absence of proof to the contrary. Should the Customer at any time discover that it can enter vPlan's network layers, it will immediately notify vPlan thereof.

6.6. The Customer is responsible for the functioning of its hardware and software configuration, peripherals and Internet connections required for the use of the vPlan Services. The Customer warrants that the hardware and software used for the use of the vPlan Services meet the System Requirements. The Customer is responsible for taking the necessary measures to protect its hardware, software, login data and telecommunications and Internet connections against viruses, computer criminality and unauthorized use by third parties.

6.7. If vPlan believes, in its sole discretion, the undisturbed operation of its infrastructure and/or the provision of services to its Customers is at risk for reasons including but not limited to virus infections, denial of service attacks, port scans, hacking, spam from or on behalf of the Customer or otherwise, it may issue instructions that must be immediately followed by the Customer, and v may suspend all or part of its services for as long as the relevant risk exists. If the Customer does not immediately follow the instructions, it will be in default without further notice of default.

6.8. For any (suspected) abuse or other improper use of the Web Application or other violation of the terms of the Plan Agreement, vPlan may, in its sole discretion and with immediate effect: (a) order Customer to temporarily or permanently remove all offending data from Customer's equipment, systems and/or (in the case of hosting) from Customer's servers; and/or (b) temporarily or permanently restrict or block Customer's access to the Web Application or use of the Web Application; (c) discontinue or suspend all or part of its services; (d) terminate the vPlan Agreement; all without prejudice to Customer's obligation to pay the remaining fees and without any obligation on the part of vPlan to pay any damages or other compensation to Customer.

Article 7. Availability and maintenance

7.1. vPlan will use its best efforts to make the vPlan Service available but does not guarantee uninterrupted availability. The application of any service level agreement must be explicitly agreed upon.

7.2. Notwithstanding article 7.1 vPlan may, without prior notice, permanently or temporarily block or disable access to the Web Application or restrict their use to the extent this is reasonably necessary from time to time: (a) to perform preventive or regular maintenance or upgrade work; (b) in the event of a (suspected) security breach; and/or (c) in the event of any other emergency; all this without the Customer being entitled to claim any compensation from Plan. vPlan will use its best efforts to limit these measures to a minimum and, as far as this is commercially feasible, to inform the Customer in a timely manner.

Article 8. Support

8.1. For the duration of the Agreement, the Customer is entitled to support for the use and functionality of the vPlan Service. Only a User may request support, which includes the right to consult documentation and to submit questions via Website or by e-mail. The Customer agrees that in the context of providing support, vPlan is entitled to access the Customer's data.

8.2. Support does not include: (a) services with regard to system configurations, hardware and networks; (b) structural work such as defining import definitions and links to third-party software; (c) on-site support; (d) extending the functionality of the Web Application at the Customer's request; (e) converting files and/or importing back-up files; (f) services with regard to external databases of producers other than those of vPlan; (g) configuration, training or other services not expressly defined in the vPlan Agreement; h) support for operating and other software of producers other than vPlan, including third-party software that can be launched from the Web Application or third-party connections to third-party websites; i) file repairs, where the cause cannot be attributed to the vPlan Service; j) provision of newly available products; k) support for the Internet connection; l) support in an environment that is not supported according to the System Requirements.

8.3. The Customer may request vPlan to carry out work in connection with the subjects referred to in 8.2 a) to l), for example by means of Consulting Services as referred to in Article 9. All work performed by vPlan will be charged at vPlan's then-current prices..

Article 9. Consultancy Services

9.1. The Customer may request Consultancy Services from vPlan. In consultation with the Customer, vPlan will schedule the provision of the Consultancy Services, taking into account, to the extent reasonably possible, the Customer's preferred planning. vPlan will make commercially reasonable efforts to perform the Consultancy Services in accordance with the agreed planning.

9.2. Customer may cancel an order for Consultancy Services up to 3 (three) business days prior to the agreed commencement date of the Consultancy Services, or request vPlan to set a new commencement date. If Customer cancels or postpones the Consultancy Services after such date, vPlan shall be entitled to charge Customer the fee for the scheduled Consultancy Services.

9.3. Consultancy Services are performed on weekdays from 08.30 to 17.30 and are charged to the Customer in advance unless otherwise agreed.

9.4. If, at the commencement of the Consultancy Services, the Customer's computer systems do not meet the System Requirements, vPlan is entitled (at its own discretion) to charge the Customer for any unused working days resulting therefrom and/or to charge the Customer for any costs incurred by vPlan in bringing the Customer's computer system into compliance with the System Requirements.

9.5. The Customer is responsible for a safe working environment and healthy working conditions if Consultancy Services are performed on the Customer's premises. The Customer shall indemnify vPlan against all claims from employees of vPlan and/or third parties arising from a lack thereof.

Article 10. Customer data

10.1. The Customer will at all times remain the owner of the Customer Data and is solely responsible and liable for the content and accuracy of the Customer Data. Compliance by the Customer with all applicable laws and regulations relating to the creation, retention and disposition of (computer-generated) data in each jurisdiction in which the Customer uses the Web Application or transmits Customer Data by means of the Web Application is the sole responsibility of the Customer. vPlan is not subject to any statutory retention period for data entered by the Customer within the Web Application.

10.2. vPlan warrants that, to the extent commercially and reasonably practicable, Customer Data will be protected against loss, damage or destruction; however, vPlan cannot guarantee that no loss, damage or destruction of data will occur. vPlan makes backup copies of Customer Data on an ongoing basis for data recovery purposes only. vPlan may not provide such back-up directly to Customer.

Article 11. Personal data and privacy

11.1. The Customer agrees that the Privacy Policy published on the Website [link to vPlan's Privacy Policy] shall apply to the processing of the Customer's personal data by vPlan if any. The Customer hereby expressly consents to the Privacy Policy. vPlan has the right to change the Privacy Policy from time to time and vPlan will communicate any such changes. It is Customer's responsibility to review the Privacy Policy and become familiar with any changes. Continued use by the Customer of the vPlan Service(s) following such changes will constitute acceptance by the Customer of the revised Privacy Policy.

11.2. With respect to data entered by the Customer via the Web Application, the Customer will: (a) guarantee that it will process, store and use its personal data in accordance with all applicable laws, regulations and codes of conduct; (b) comply with all its obligations as the data controller and/or as a processor of that data under applicable data protection and privacy laws, including but not limited to guaranteeing that all necessary information is provided to all data subjects whose data was part of the input data with respect to the proposed use and disclosure of their data as a result of the Customer's use of the vPlan Service; (c) ensure that it has obtained all necessary consents and authorizations required to process and store its personal data through the Web Application, and vPlan shall not be responsible or liable to the Customer for obtaining any necessary consents or authorizations on its behalf; and (d) handle all requests from data subjects and/or other regulatory authorities relating to Customer data.

11.3. The Customer shall indemnify vPlan against any and all claims and demands from third parties, however, named and on whatever grounds, including but not limited to claims for payment of damages, costs and fines, relating to the processing and/or storage and/or use of personal data in the context of the vPlan Agreement.

11.4. vPlan will take appropriate technical and organizational measures against the unauthorized or unlawful processing of data that the Customer has entered via the Web Application and against accidental loss, destruction or damage.

11.5. Except as otherwise expressly provided in the vPlan Agreement or in the Privacy Policy, and/or as may reasonably be necessary to enable vPlan to fulfil its obligations under the vPlan Agreement, vPlan will not access any data that the Customer has submitted to vPlan via the Web Application, and will not make any data available to third parties unless vPlan is required to do so by law, court order or by a public authority. vPlan has the right to access, aggregate and use non-personally identifiable Customer data; such data will not in any way identify Customer or any other person. vPlan may use this data to: a) help vPlan better understand how its customers use the vPlan Services; b) provide its customers with more information regarding the use and benefits of the vPlan Services; and c) otherwise improve vPlan Services.

Article 12. Confidentiality

12.1. Neither of the Parties will disclose Confidential Information received from the other Party or use it for any purpose other than for which the Confidential Information was disclosed and/or as may be reasonably necessary to enable that party to perform its obligations and exercise its rights. This includes that vPlan may disclose Customer's Confidential Information to Customer's directors, employees, agents, subcontractors and consultants.

12.2 vPlan will adopt appropriate technical and organisational measures against the unauthorised or unlawful processing of data that the Customer has entered through certain vPlan Services and against incidental loss, destruction or damage.

12.3. The confidentiality obligations in this Article do not apply if the Confidential Information (a) was already in the lawful possession of the Receiving Party before it was obtained from the Disclosing Party; (b) had been independently developed by the Receiving Party without the use of information or data from the Disclosing Party; (c) is or will become generally known or accessible, other than by an act or omission of the Receiving Party (d) are disclosed to the Receiving Party by a third party without breaching an obligation of confidentiality to the Disclosing Party; or (e) is required to be disclosed by law, regulation or court order, or by order of governmental authority, provided that the Receiving Party makes every effort to limit the scope of such required disclosure.

Article 13. Intellectual Property

13.1 All copyright (whether registered or unregistered), patent rights, trade name rights, trademark rights, database rights, design rights, rights in respect of confidential information and trade secrets and other intellectual and industrial property rights, whether registered or unregistered and all similar rights protecting (information relating to) the Website, Web Application, is the exclusive property of vPlan or its licensor(s). Nothing contained in the vPlan Agreement or the vPlan Terms of Use shall be construed as conferring any or all such rights on the Customer.

13.2. The Customer is not permitted to modify, remove or render unrecognisable any part of vPlan's intellectual property rights. The Customer may not use or register any trademark, design, logo or domain name of vPlan, or any similar name or symbol, in any jurisdiction anywhere in the world. Any use of vPlan's trademarks and other intellectual property, and any goodwill resulting from such use, is for the benefit of vPlan.

13.3. vPlan shall defend the Customer against any action brought against the Customer based on a claim that the Web Application used in compliance with the vPlan Agreement, the vPlan Terms of Use infringes a patent, copyright or trade secret of a third party that is valid and enforceable in the jurisdiction applicable to the vPlan Agreement entered into between vPlan and the Customer. vPlan shall indemnify the Customer against any liability finally awarded by a court for costs or damages arising from any such claim or resulting from the settlement thereof, provided that the Customer: (a) immediately notify vPlan in writing of any such claim (and all prior claims in connection with such claim) when known to it; (b) the claim concerns the rights of a third party in a country party to the Berne Convention; (c) fully cooperate with vPlan in any reasonable manner at vPlan's expense to facilitate the defence and settlement of such claim; (d) permit vPlan, in its sole discretion, to defend and negotiate the relevant claim.

13.4. If the Customer is subject to a court order prohibiting its use of the Web Application for an infringing act as referred to in clause 13.3 or, in vPlan's sole discretion, there is a likelihood that the Web Application will be the subject of a successful infringement action, then vPlan has the right at its sole discretion and expense (a) obtain for Customer the right to continue to use the Web Application as provided in the vPlan Terms of Use; (b) replace or modify the Web Application so that it is no longer infringing, provided that its functionality remains substantially unchanged; or if the foregoing options (a) and (b) are not reasonably practicable - in vPlan's sole discretion -, (c) terminate the vPlan Agreement, as well as the rights granted in the vPlan Agreement for the infringing Web Application.

13.5. Without prejudice to the provisions in article 13.3, vPlan will not be liable to the Customer to the extent that any claim is based on: a) use of the Web Application in conjunction with data, equipment or software not supplied by vPlan, whereby the Web Application would not in itself be infringing or otherwise be the subject of the claim; b) improper or unauthorised use of the Web Application c) use of the Web Application by or on behalf of the Customer in breach of the vPlan Agreement, the vPlan Terms of Use; d) any modification of the Web Application made by any person or legal entity other than vPlan; or e) the compliance by vPlan with any express instructions of the Customer. The Customer shall indemnify, defend and hold vPlan harmless against any claim brought directly against vPlan as described in clause 13.5(a) to (e).

13.6. The Customer accepts that vPlan's full and exclusive liability for infringement of patents, copyrights, trademarks or other intellectual property rights is as outlined in Articles 13 and 15. vPlan has the right to introduce and maintain technical measures to protect the (intellectual property rights on the) Website and Web Application. The Customer may not circumvent or remove any such technical measures.

13.7. If the Customer makes use of the vPlan Service, the Customer grants vPlan the right to use the Customer's logo and name for commercial purposes.

Article 14. Software components and Third Party Services

14.1. The Customer acknowledges that the Web Application may contain Third Party Components and that in connection with the Customer's use of such Third Party Components, the additional terms and conditions will apply to the Customer's use of the Web Application, which can be viewed here: [link to: vPlan - 3rd party software license terms], and that it has read and understood these terms. These terms and conditions may be changed from time to time and it is the responsibility of the Customer to regularly familiarize itself with any changes. Continued use by the Customer of the Web Application and such Third Party Components following any such changes shall be deemed to constitute acceptance by the Customer of the revised terms and conditions, save as otherwise provided in these vPlan Terms and Conditions.

14.2. Any Third Party Components embedded in the Web Application or sublicensed to the Customer are licensed to the Customer by vPlan in their current state ("as is"). Except for warranties given expressly and directly to Customer by the third-party licensor according to such third-party's terms and conditions (if any), vPlan makes no other warranties in respect of such Third Party Components and assumes no liability for any damages whatsoever arising from Customer's use of such Third Party Components.

Article 15. Liability

15.1. It is not the intention of vPlan to limit or exclude its liability for death or personal injury caused by negligence in any way, or for any other matter, claim or matter for which liability cannot be legally limited or excluded.

15.2. With due observance of Article 15.1, the total liability of vPlan on account of attributable breach of contract or any legal ground whatsoever, including any failure to fulfil a guarantee obligation agreed upon with the Customer, is explicitly limited to compensation of direct damage (as defined in Section 6:96 of the Dutch Civil Code) up to an amount of 50% of all invoiced amounts in the six (6) months preceding the event giving rise to the damage. However, vPlan's total liability for direct damage, on any legal ground whatsoever, will never exceed EUR 5,000 (five thousand euros). In all cases, a series of connected events shall be deemed a single event for these limitations.

15.3. With due observance of article 15. 1, vPlan will never be liable for loss of profits, lost savings, reduced goodwill, damage due to business interruption, damage resulting from claims from the Customer's clients, mutilation or loss of data or the use thereof, costs of reproducing damaged, corrupted or lost data, damage relating to the use of third-party goods, materials or software prescribed by the Customer to vPlan damage in relation to the use of suppliers prescribed by the Customer to vPlan, or any other form of indirect, incidental or consequential damage, irrespective of the nature of the act (breach of contract, tort or otherwise), even if vPlan has been advised of the possibility of such damage occurring or was aware of the possibility of such damage occurring.

15.4. vPlan will never be liable for any damage of any kind suffered by the Customer: (a) relating to the temporary unavailability, incorrect availability or incompleteness of the vPlan Service; (b) in connection with the functioning or non-functioning of any software of the Customer or of third parties (including Third Party Components and Third Party Services), the hardware of the Customer, vPlan or third parties or the Internet connections of the Customer, vPlan or third parties; and/or (c) in connection with the incorrect, incomplete or untimely sending or receipt of Customer Data or other data placed with vPlan via the Web Application. The Customer acknowledges and accepts that the Web Application can never be perfect or 100% free of imperfections and that not all imperfections can or will be corrected.

15.5. Except as provided in Article 13, it is not intended that the Customer's clients, prospective clients, employees, representatives, agents and (sub-)contractors be deemed third-party beneficiaries under this vPlan Agreement and that they become parties to the vPlan Agreement; to the extent necessary, the parties agree that section 6:254(1) of the Dutch Civil Code does not apply. The Customer agrees to fully indemnify vPlan, its employees, representatives and/or (sub-)contractors and agents engaged in the performance of vPlan's obligations against claims from third parties.

15.6. In all cases, vPlan's liability only arises after the Customer has immediately and properly served notice of default to vPlan by electronic means, whereby the Customer is to give vPlan a reasonable term (of at least 30 days) to remedy the attributable breach, and performance is also delayed within that term. The notice of default must contain a description of the breach that is as complete and detailed as possible, enabling vPlan to respond adequately.

15.7. In the event that vPlan fails to fulfil its obligations, the Customer's rights to compensation, if any, will lapse if the Customer fails to take measures: a) to limit the damage immediately after it occurred; b) to prevent (other or additional) damage occurring, or c) if the Customer fails to inform vPlan of the damage as soon as reasonably possible and to provide it with all relevant information.

15.8. The provisions of this article and all other limitations of liability of vPlan also apply in favour of all (legal) persons engaged by vPlan in the execution of the vPlan Agreement.

15.9. The Customer acknowledges that the information made available by or on behalf of vPlan via the Web Application and/or the Website is provided without guarantees and without the Customer or third parties being able to derive any rights therefrom.

15.10. vPlan makes no warranties, representations or conditions regarding the vPlan Services other than those expressly set out in the vPlan Agreement. vPlan hereby disclaims all other warranties, representations or conditions, whether express, implied or statutory (including without limitation warranties or conditions as to merchantability, fitness for a particular purpose, non-infringement) concerning the vPlan Services.)

Article 16. Force majeure

16.1. In the vPlan Terms of Use, force majeure ("non-attributable non-performance") shall mean any circumstance that is beyond the control of vPlan in the subjective sense and which renders it impossible or impracticable for vPlan to perform or continue to perform all or part of its obligations.

16.2. If force majeure, vPlan shall be entitled to suspend performance of all or part of its obligations and the Customer shall not be entitled to claim any performance or compensation. If the period of force majeure lasts longer than three (3) months, either party is entitled to dissolve the vPlan Agreement, in whole or in part, without being obliged to pay any compensation, on the understanding that vPlan will always be entitled to a proportionate part of the compensation if it has partially fulfilled its obligations before or after the force majeure occurred.

Article 17. Miscellaneous

17.1. vPlan may sublicense, transfer, renew, assign or subcontract the performance of its rights and/or obligations under the vPlan Agreement.

17.2. If any provision of the vPlan Agreement or these vPlan Terms of Use is, in whole or in part, void, void or illegal, the vPlan Agreement or the vPlan Terms of Use shall remain in full force and effect and such provision shall be construed in a manner consistent with the intentions of the parties.

17.3. Any delay or failure by vPlan in enforcing any right against the Customer under the Agreement or the vPlan Conditions will not constitute a waiver of rights.

17.4. The vPlan Agreement contains the entire understanding between the parties and supersedes all prior and/or contemporaneous written and oral negotiations, understandings and agreements between the parties with respect to the subject matter hereof, including any specific advertising or sales material of vPlan.

17.5. Any communication between vPlan and the Customer may be made electronically. The version of the communication in question as retained by vPlan is deemed to be proof thereof unless the Customer proves otherwise. Electronic communications are deemed to have been received on the day of transmission unless the contrary is proven by the recipient. If the communication has not been received due to delivery and/or accessibility problems, this is at the Customer's risk, even if the e-mail box is housed by a third party.

17.6. In addition to the provisions of Articles 2.6 and 4.3, the vPlan Agreement may only be amended by an explicit agreement between the Customer and vPlan.

Article 18. Applicable law and disputes

18.1. The legal relationship between the parties is governed by Dutch law. The Vienna Sales Convention is excluded.

18.2. Except where otherwise provided by law, all disputes arising in connection with the vPlan Agreement and/or the vPlan Terms of Use shall in the first instance be submitted to the exclusive jurisdiction of the District Court of Almelo, without prejudice to vPlan's right to submit any such dispute to any other competent court.

18.3. The costs related to legal proceedings, including but not limited to the actual costs of lawyers, bailiffs and translators incurred by vPlan, will be entirely at the expense of the Customer if the latter is wholly or predominantly unsuccessful.