These are the Terms and Conditions of Dynavision bv, Vijfstraten 18, 9100 Sint-Niklaas and with company number 0777.838.347 (hereafter: “Dynavision”).
These Terms and Conditions are applicable to the Dynavision proprietary app(s) which (are) for sale in the Microsoft marketplace AppSource and are plugins to Microsoft Dynamics 365. (hereafter: “Dynavision Product”)
In case of a conflict or inconsistency between these Terms and Conditions and the general terms and conditions of any Party, the terms of these Terms and Conditions shall take precedence.
“Customer”: means a company who has subscribed to the Dynavision Product based on the Subscription Agreement.
“Subscription Agreement”: the Reseller Order Form signed by the Customer.
“Effective Date”: the date as specified in the Reseller Order Form.
“Force Majeure”: shall at least be understood to encompass any reasonably unforeseeable event that has occurred and prevents, hinders or delays any of a Party’s obligations under these Terms and Conditions by fire, flood, earthquake, natural disasters or other phenomena, acts of war, terrorism, riots, strikes and labour disputes, illness or death of administrators or employees, government measures, technical failures, telecom disruptions, civil disorder, rebellions or revolutions, non-performance of a Party’s subcontractor as far as this non-performance is caused by a Force Majeure event, or any other cause beyond the reasonable control of such Party.
“Good Industry Practice”: the exercise of such degree of skill, care, diligence, prudence, foresight, efficiency, timeliness and judgement which would be expected – taking into consideration the relevant state of the art – of a suitably skilled, trained and experienced person engaged in the same type of undertaking under the relevant circumstances on behalf of a service provider with internationally recognised experience and reputation.
Intellectual Property Rights: all brands, logos, trademarks, internet domain names, models and designs, patents, copyrights (including all rights relating to software) and moral rights, rights relating to databases, semiconductor topographies, knowhow, and other rights, as well as all other industrial and intellectual rights, in any case independent from whether or not they have been registered and with the inclusion of registration applications as well as all equivalent rights or means of protection leading to a similar result anywhere in the world.
Partner: a reseller of the Dynavision Product who has concluded a Reseller Agreement with Dynavision.
Subject to these Terms and Conditions and upon payment of the License Fee, the Customer receives during the Term a non-exclusive, non-transferable, non-sublicensable, worldwide right to access and use the Dynavision Product as made available to Customer for its own internal business purposes.
Dynavision may subcontract to third parties any part of the Dynavision Product. In particular, Dynavision may utilize third-party service providers to provide amongst others, but not limited to connectivity, data centre services, database services and security services.
The Customer shall not use, print, copy, adapt, modify, translate or alter the Dynavision Product in whole or in part except as expressly provided in these Terms and Conditions, in a separate written agreement or as permitted by compelling law. Customer shall not remove any identification, proprietary, copyright or other notices in the Dynavision Product or documentation. In addition, Customer has no permission to reverse the Dynavision into source code, to decompile, disassemble, or analyze the Dynavision Product by “reverse engineering”, to create derivative works of the Dynavision Product, to merge the Dynavision Product with other software, to sublicense, sell, lease or otherwise encumber its rights granted by Dynavision (unless expressly authorized by Dynavision) and each attempt thereto shall constitute an infringement, unless such act is expressly permitted by compelling law.
In case of infringement, Dynavision reserves all its rights to prove and obtain compensation for its full damages incurred by such infringement. This article does not prevent Dynavision from obtaining an equitable relief in summary or other proceedings.
The Customer must not use the Dynavision Product in any way that causes, or may cause, damage to the Dynavision Product or impairment of the availability or accessibility of the related services.
The Customer must not use the Dynavision Product in any way that is unlawful, illegal, fraudulent or harmful; or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
Dynavision will use its best efforts to deliver the Dynavision Product “as is” and according to Good Industry Practice. The Customer recognises that Dynavision cannot guarantee a flawless operation of the Dynavision Product. Dynavision will, however, ensure that:
The Customer will work together to the best of his abilities and in good faith with Dynavision and the Partner in ensuring the efficient initialisation and successful delivery of the Dynavision Product to the Customer. The Customer warrants that all his obligations and responsibilities will be kept in accordance with the terms of these Terms and Conditions.
The Customer will ensure full compliance with any security guidelines issued by Dynavision in the frame of the Dynavision Product and will avoid to the best of his abilities unauthorised or fraudulent access to or use of the Dynavision Product.
The Customer will notify Dynavision in advance of any operation on or adaptation to his systems which may directly or indirectly affect the proper delivery of the Dynavision Product to the Customer. The Customer accepts and acknowledges that any such operation or adaptation which was not notified in advance may seriously influence or obstruct the proper delivery of the Dynavision Product.
The Customer understands and accepts that the Dynavision Product is a plugin to the Microsoft Dynamics 365 license of the Customer and that a valid Microsoft Dynamics 365 license for the duration of the Subscription Agreement is necessary for the proper functioning of the Dynavision Product.
The Customer will treat all information he receives from Dynavision with regard to the operational and functional aspects of the Dynavision Product as trade secret.
The yearly license fee and one- time set-up fee (if applicable) will be billed by the Partner on the Effective Date and on the date of each renewal unless otherwise agreed in writing.
Should the Customer request distinct services outside the normal scope of the Dynavision Product, Dynavision and/or the Partner has the right to invoice the charges for these services separately. Unless expressly provided otherwise, all charges are VAT excluded as well as excluded all other levies, which will be added separately at the prevailing rate.
Unless the Partner explicitly deviates in his commercial terms, the following payment term is applicable:
In the event that the Customer does not fulfil his obligations, Dynavision retains the right to suspend the delivery of the Dynavision Product without formal notice of default nor notification or compensation, subject to all rights.
6.1. Dynavision Product – Except as expressly set forth in these Terms and Conditions, Dynavision will own and retain all right, title and interest in and to the Dynavision Product, including all software, improvements, enhancements or modifications thereto. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.
All rights in and to the Dynavision Product not expressly granted to Customer in these Terms and Conditions are reserved by Dynavision. No license is granted to the Customer except as to use the Dynavision Product as expressly stated herein.
6.2. Customer Data – Customer retains all of its Intellectual Property Rights, title and interest in and to the Customer Data and Customer Confidential Information. No ownership interest in the Customer Data or Customer Confidential Information is transferred or conveyed to Dynavision and/or the Partner by virtue of these Terms and Conditions.
Customer grants to Dynavision and to the Partner a non-exclusive, royalty-free, worldwide, sublicensable, transferable license to use, copy, store, transmit and display the Customer Data to the extent necessary to perform its obligations under this Agreement, in particular to provide and maintain the Dynavision Product, and for no other purposes.
The Customer warrants to Dynavision that the Customer data, and their use by Dynavision in accordance with the terms of these Terms and Conditions, will not, in each case in any jurisdiction and under any applicable law:
6.3. Reservation of Rights – These Terms and Conditions do not grant Dynavision any rights to Customer’s data or the Intellectual Property Rights embodied in that data except for the limited rights expressly set forth in these Terms and Conditions.
This Agreement does not grant Customer (i) any rights to the Intellectual Property Rights in the Dynavision Product or (ii) any rights to use the Dynavision trademarks, logos, domain names, or other brand features.
6.4. Limited Permissions – Dynavision will have the right to view, analyze and store Customer data and other information relating to the provision, use and performance of various aspects of the Dynavision Product and related systems and technologies (including, without limitation, information concerning Customer’s data and data derived therefrom) for smart analytics purposes in order to enhance the functionalities of the Dynavision Product (“the Purpose”).
Dynavision warrants that the use of the Customer Data by Dynavision is strictly limited to the Purpose and that such use shall be subject to appropriate security and privacy precautions.
Dynavision will be free (during and after the term hereof) to, without any obligation to Customer, (i) use such information and data to improve and enhance the Dynavision Product and for other development, diagnostic and corrective purposes in connection with the Dynavision Product and other Dynavision offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
6.5. Suggestions – While we appreciate it when users send us feedback, comments or suggestions about the Dynavision Product (“Feedback”), Customer irrevocably agrees that Dynavision may, at its discretion and for any purpose, use, modify, and incorporate into its products and services, license and sublicense, any such Feedback without any obligation to Customer.
7.1. The duration of the license is 1 year as from the Effective Date and will automatically renew for additional periods of the same duration as such term, unless a Party requests termination in writing at least thirty (30) days prior to the end of the then current Term. A termination request will be given via registered letter or via a proven received e-mail to the Partner as mentioned on the Reseller Order Form.
7.2. This Agreement can be terminated by a Party with immediate effect without prior registered written notice and without intervention of the court, without any compensation being payable as a result of this termination and without prejudice to any liability, if the other Party:
– Becomes insolvent or unable to pay its debts, proposes a voluntary arrangement;
– Is subject to bankruptcy or dissolution;
– Shall otherwise enter into any composition or arrangement with its creditors;
– Ceases to carry on business
7.3. No pro rata reimbursement will be accepted if the Customer terminates the Subscription Agreement during the term.
8.1. Neither Party shall be exempt from liability on the basis of these Terms and Conditions in case of fraud, wilful misconduct or fraudulent misrepresentation on the part of such Party or its personnel or in case of personal injury or death caused by negligence of such Party or its personnel.
8.2. Dynavision can never be held liable for errors in the delivery of the Dynavision Product or damages stemming from such errors if these errors are caused by misinformation (either insufficient, incorrect or both), negligence or non-compliance with both the law and the provision of this Agreement on the part of the Customer.
8.3. Dynavision can only be held liable for fraud, serious fault and/or gross negligence in the execution of her commitments under this Agreement where it causes direct harm to the Customer, and this to the maximum amount equal to the total of the amounts paid by the Customer for services rendered during 12 months preceding the discovery of the damages, and in any case limited to the available insurance coverage.
8.4. Dynavision can never be held liable, not even in case of serious fault, for indirect damages, including consequential damages, financial or commercial damages, loss of profit or income, lost opportunities, lost savings, damage due to business discontinuity, reputational damage, damage from legal proceedings initiated by third parties against the Customer, as well as any other damage not covered by the restrictive interpretation of direct damages within the framework of these Terms and Conditions.
8.5. Dynavision cannot be held to compensate the Customer for the unavailability of the Dynavision Product caused by maintenance or update activities of which the Customer was duly notified.
8.6. Neither Party can be held liable for the partial, temporary or permanent delay or any impediment in the execution of its obligations under this Agreement if such is caused by Force Majeure. The Party confronted with circumstances constituting Force Majeure shall be relieved from the performance of its obligations for as long as these circumstances hinder or prevent the fulfilment of its obligations. The Party confronted with said circumstances shall inform the other Party without delay regarding the modalities and expected impact of these circumstances. The Party confronted by circumstances of Force Majeure will take all reasonable measure to limit the adverse effects of these circumstances on its obligations under this Agreement and will resume its obligations as soon as the Force Majeure has lifted.
Dynavision will be entitled to rely at her own discretion on subcontractors for the fulfilment of her obligations under these Terms and Conditions. The Agreement with respect to Dynavision cannot be construed as being of a strictly personal nature. All rights and obligations with respect to Dynavision in the frame of these Terms and Conditions can be transferred in whole or in part to a third party without the Customers consent.
These Terms & Conditions by no means entails a curtailment of any rights of Dynavision under
statutory law.
The Subscription Agreement is the only agreement between the Parties with regard to the delivery of the Dynavision Product and related services, and supersedes any other related requests, verbal or in writing, to submit an offer, offers, proposal, proposition, guarantee, warrant, agreement, communication or commitment. The Customer declares that he has not concluded this Agreement based on a communication, presentation, commitment, warrant or guarantee which has not been expressly stated in the Subscription Agreement.
These Terms & conditions are governed by Belgian law. In case of disputes or claims with respect thereto, the Courts of Ghent (Belgium) shall have sole jurisdiction.