ULTIMO ESSENTIALS TERMS OF SERVICES
For following terms are applicable to any and all of the Services regarding Ultimo Essential.
- These Terms of Services (hereinafter: ‘Terms’) govern the terms of access, use and related matters regarding Ultimo Essentials, made available as software-as-a-service via ultimo.com (hereinafter: ‘Essentials’) as well as related Documentation (as defined hereunder) and other services if and to the extent provided or otherwise made available from time to time (Essentials, Documentation and other services hereinafter collectively: ‘Services’) by Ultimo Software Solutions B.V. is a private company with limited liability under the laws of the Netherlands, having its registered office and principal place of business in Nunspeet, registered at the Dutch Chamber of Commerce under number: 08062228 (hereinafter: ‘Ultimo‘), either under any relevant agreement, engagement or otherwise (hereinafter: ‘Agreement’) between Ultimo and the customer that enters into or has entered into such Agreement (hereinafter: ‘Customer’).
- In order to be able to use the Services certain rights and obligations regarding access and use are applicable as set forth in these Terms. Therefore, if the Customer does not agree with these Terms, Customer is not entitled to use the Services. From time to time, Ultimo may revise these Terms or the Services. Ultimo therefore recommends that Customer regularly checks whether the Services or Terms have been amended. If the Customer continues to use the Services, Customer is bound by the then revised Terms.
- Essentials will be provided for an initial duration of three (3) years (‘Initial Period’). Thereafter, the Essentials subscription will be renewed automatically, each time for a period of twelve (12) months (each a ‘Renewal Period’), unless the subscription is terminated by Customer or Ultimo (hereinafter collectively ‘Parties’ and individually ‘Party’) by at least three (3) calendar months written notice before the end of the Initial Period or then current Renewal Period, as applicable. Ultimo will make available Essentials from the date of initial three-year period payment respectively subsequent annual payment of the applicable fees and VAT, whereafter Customer has the right to access and use Essentials in accordance with the Agreement, these Terms. All fees, prices and rates are in Euro (EUR), excluding VAT and other government levies and sales taxes that may be due. Ultimo is authorised to adjust the applicable Services fees, rates and prices each year within reasonable limits.
- The Customer is responsible for its own appropriate, diligent and correct access and use of the Services. Ultimo at all times has the right to update and otherwise alter the Services without further notice. Ultimo also reserves the right to revise (any part of) the Services or withdraw access to it at its discretion at any time. However, Ultimo will notify Customer via prominent notification on its website or by email about any major changes that would negatively impact Customer’s use in connection with the Services. Ultimo at all times has the right to suspend or terminate Customer’s accounts without further notice, with cause as well as without cause. If the Customer breaches the Terms or applicable law, Ultimo may take action against Customer including but not limited to terminating the Agreement. Upon termination, Customer’s right to access or use the Services immediately ceases. Customer herewith acknowledges that Ultimo has no obligation to, and will not, reimburse or refund Customer for any Services lost due to any related suspension or termination of the Agreement for cause.
- Ultimo is not responsible or liable for and does not in any way warrant the availability of, access to, or use of the Services and, that the Services will be uninterrupted, without delay, error-free, omission-free or free of viruses or other defects in the Services, if any, shall be corrected. Ultimo is also not responsible or liable for and do not in any way warrant that the Services are up-to-date, correct, accurate or fitness for a particular purpose. The Services are provided ‘as is’, without warranty of any kind, express or implied, including, but not limited to warranties of performance, merchantability and fit for a particular purpose. Any use of the Services by or on behalf of Customer and any (direct and indirect) consequences thereof are at the expense and risk of Customer.
- All rights of intellectual property of Customer are and will remain the property of Customer. Ultimo, its respective subcontractors, suppliers and its licensors are and will remain the exclusive owner(s) of all rights and titles to and of all segments of the Services, including the intellectual property rights and the functionality thereof. Customer shall acquire no rights whatsoever other than if and to the extent explicitly described in these Terms.
- Each Party will treat data and information that it receives or otherwise obtains from or on behalf of the disclosing Party with respect to the Services as well as personal, strategic, technical and financial data, knowledge or other information connected with that disclosing Party as strictly confidential. It is only allowed to deviate from the provisions in the previous sentence if (i) the prior written permission of the disclosing Party was obtained, (ii) the related information was already generally known without any breach of confidence by receiving Party or any third party before the Agreement was realized, or (iii) to the extent such confidential information is required to be disclosed by law by any governmental authority or by a court or other authority of competent jurisdiction, in which latter case the Party concerned will, to the extent it is legally permitted to do so, inform the other Party in advance.
- The Services under the Agreement with the Customer shall be exclusively for the benefit of Customer. Customer shall only use the Services in accordance with these Terms and the Agreement and all applicable laws and regulations. Customer shall be exclusively responsible for its selection, security, strong password management, backup action, application and use of the Services made available by Ultimo. Customer is not entitled to misuse or to perform any disproportionate behavior in connection with the Services. Customer herewith indemnify and hold Ultimo harmless from and against any and all claims of third parties, including any damages, losses, costs and expenses relating to or arising in whatsoever manner from any use of the Services.
- Except for breaches of the Agreement due to intent or gross negligence of the management of Ultimo, Ultimo will not be liable for any damage that Customer suffers by any acting or refraining from acting of Ultimo, except for any Direct Damage on account of an attributable shortcoming of Ultimo. In any event, Ultimo’s aggregate liability for any reason and upon any cause of action or claim shall not exceed the amount equal to the Services fees invoiced by and paid to Ultimo by Customer hereunder (excluding VAT) in the six (6) months period immediately prior to the event causing the damage. ‘Direct Damage’ means damage except indirect damage such as (amongst others) consequential damage, lost profit, missed savings, damage through business stagnation and damage on account of corrupted or lost data. If and insofar any damage is caused because Ultimo is culpably in default on account of intent or gross negligence of the management of Ultimo in its responsibilities, Ultimo will be maximally liable for an amount of EUR 100,000 (hundred thousand Euro) per event, at which a series of connected events will apply as one event. The limitations set above apply to all causes of action or claims in the aggregate, including, without limitation breach of contract, breach of warranty, indemnity, negligence, strict liability, misrepresentations, and other torts. A right of Customer to compensation will only arise if Customer has informed Ultimo accordingly in writing within thirty (30) or immediately after Customer could reasonably have discovered the issue causing the damage.
- The Agreement cannot be terminated by Customer without cause. However, Ultimo is entitled to terminate the Agreement as set forth in the previous paragraphs of these Terms or otherwise in accordance with applicable law, all this without prejudice to the other rights Ultimo is entitled to. Any term(s) or condition(s) of this Agreement, which by their nature extend beyond any termination of this Agreement shall survive and remain in effect, without prejudice to any termination of the Agreement.
- Ultimo is entitled to subcontract or otherwise assign any or all of its rights or obligations arising from the Agreement. Customer is not permitted to assign the Agreement or any of its rights or obligations in this matter without express prior written permission from Ultimo.
- These Terms are exclusively governed by the laws of the Netherlands. Any and all disputes that may arise with respect to these Terms will be referred exclusively to the competent court in Amsterdam.
Queries regarding these Terms may be submitted via the contact form on the Website or to firstname.lastname@example.org.