Customer Agreement

Version: December 31, 2022

By creating the Account, you conclude an Agreement with Pluvo B.V. under the conditions as set out below:

  • Pluvo B.V. has developed a software platform that makes it possible to create, manage and make available training programs and operates it under the name PLUVO;
  • Customer wishes to make use of the Service via PLUVO;
  • Pluvo B.V. and Customer have reached agreement on the use of PLUVO and set out the agreements and conditions in this Agreement;

Agree as follows:

Article 1 Definitions

1.1 In this Agreement, the following terms, both singular and plural and always capitalized, have the following meanings:

Account

the personal environment of the Participant or Trainer that is accessed through the use of Login Details;

Appendix

an appendix to this Agreement and thus an integral part of the Agreement;

Contents

all information in any form, such as data, documents and materials, that is made available or exchanged by the Customer in any way via the Service, including but not limited to: videos, slideshares, feedback, test questions, audio, presentations and personal data;

Participant

natural person selected by the Customer to participate in one or more training and/or tests;

Service  

the service that Pluvo B.V. provides to the Customer via PLUVO and mainly consists of creating, managing, making available and following training programs;

Login details

the login name and password, which provide access to the Customer Account or Account in order to use the Service;

Intellectual Property Rights

all intellectual property rights and related rights, such as copyrights, trademark rights, database rights and related rights, as well as related rights such as rights to know-how and so-called single-line performance;

Customer

the natural or legal person who concludes this Agreement with Pluvo B.V.;

Customer account  

the Customer's administrative account that is accessed by using the Login Credentials that allow the use of the Service and Accounts to be managed;

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;

Privacy Policy

Pluvo B.V.'s privacy policy, which can be found at www.pluvo.nl/privacy;

Trainer: the natural person selected by the Customer who develops, provides and/or supervises the training, assesses the tests and provides feedback to Participants.

Article 2 General

2.1 This Agreement includes the agreements and conditions for providing the Service by Pluvo B.V. and the use of the Service and PLUVO by Customer, Trainer and Participant.

2.2 The applicability of the Customer's purchase or other terms and conditions is expressly rejected.

2.3 The Agreement is concluded when it is signed by both Parties or when the Customer has accepted the Agreement by confirming by ticking an acceptance box. Signing can be done both physically and electronically. Whether and how electronic signature will take place is determined by Pluvo B.V.

2.4 The Customer obtains access to the Service if the signed Agreement has been received by Pluvo B.V. Within 2 days of receipt of the signed Agreement, Pluvo B.V. will provide the Customer with a link that will provide access to the Customer Account after creating a password.

Article 3 The Service

3.1 The provision of Service by Pluvo B.V. mainly consists of offering the possibility to create, manage, make available and follow blended training programs by making PLUVO available and available remotely.

3.2 Pluvo B.V. will make every effort to provide the Service with care. Unless otherwise expressly agreed in writing, the Service is performed by Pluvo B.V. on the basis of an obligation to do its best.

3.3 The Customer can use the Service through the Customer Account. The customer is responsible for setting a password at the first login in accordance with its internal password policy.

3.4 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 options and restrictions of the Account. The Participant and Trainer access the Account by clicking the link in the email they will receive and setting a password in accordance with the Customer's password policy.

3.5 The Customer guarantees that the Trainer and Participant will at all times act in accordance with the provisions of this Agreement and will at least impose the same obligations on them for the use of the Service as set out in this Agreement.

3.6 The Customer is responsible and liable for the choice of the Login Details by Participant and Trainer and any use made of the Account by the Participant and/or Trainer. As soon as the Customer knows or suspects that the Login Details are no longer secret or that the Customer Account or Account has been misused, Customer must inform Pluvo B.V. immediately and take the necessary measures to prevent unauthorized access. In this case, Pluvo B.V. is entitled to (temporarily) block the Customer Account or Account.

3.7 Without being liable in any way, Pluvo B.V. is entitled to:

a. To make procedural and/or technical adjustments and/or improvements to the Service and/or PLUVO;

b. Temporarily decommission or restrict PLUVO and/or the Customer Account and/or Account if, in the opinion of Pluvo B.V., this is necessary, for example for preventive, corrective or adaptive maintenance. Pluvo B.V. shall inform the Customer of the temporary decommissioning and/or temporary restricted use of PLUVO as soon as possible;

3.8 Unless otherwise agreed, Pluvo B.V. does not guarantee that the Service and/or PLUVO are free from defects and will operate without interruptions. Furthermore, Pluvo B.V. does not guarantee that the use of the Service will result in certain results and that the information provided is accurate and complete.

3.9 The use of the Service is at the Customer's own risk and responsibility at all times. The Customer indemnifies Pluvo B.V. against all third-party claims based on the claim that the use of the Service by the Customer and/or Trainer and/or Participant is in any way unlawful and all third-party claims as a result of the Customer and/or Trainer and/or Participant's non-compliance with the Agreement.

Article 4 Customer Responsibilities

4.1 The Customer is obliged to do whatever is reasonably necessary and desirable to enable the timely and correct execution of the Service, including but not limited to the purchase and/or adequate functioning of the Customer's infrastructure and the timely provision of necessary data and documents. If the Customer does not comply with what is stated in the previous sentence, Pluvo B.V. has the right to fully or partially suspend the execution of the Agreement and to charge the resulting costs at Pluvo B.V.'s usual rates, all this without prejudice to Pluvo B.V.'s right to exercise any other legal and/or agreed right.

4.2 The Customer is responsible for the use of the Service by the Customer, Trainers and Participants. The Customer himself is responsible for the commissioning of the Service, the correct settings of the Service and the correct choice of computer, data or telecommunications facilities, including the Internet, and for their timely and full availability.

4.3 The Customer is responsible for monitoring and assessing the accuracy and completeness of the results of the Service and the training courses, analyses, scores, tests and test results generated by using the Service.

Article 5 Content

5.1 The Service makes it possible to develop training programs and Content as well as to add existing Content to the training program. The Content is used by the Trainers and Participants and can be stored in the PLUVO archive. The Customer, and insofar as permission has been granted by the Customer, the Trainer and/or Participant, only have access to the Customer's own environment in the PLUVO archive and have no access to the environment in the archives of other customers.

5.2 The Customer is responsible and liable for posting the Content. You are not allowed to post Content:

a. which, in the opinion of Pluvo B.V., is discriminatory or otherwise found offensive or inappropriate;

b. that calls for violence or harassment of another or others;

c. that leads to or is the result of the exploitation or abuse of another person or others;

d. who, in the opinion of Pluvo B.V., is contrary to good morality or taste, is violent or inappropriate, sexist and/or contains a hyperlink to pornographic material;

e. where the personal information of minors is requested or made available and/or where personal information of others is made available without permission;

f. which promotes the commission of illegal activities;

g. that is based on untruths and/or is misleading;

h. that contains viruses, Trojan horses, worms, bots or other software that can damage, make it unusable or inaccessible, erase or appropriate an automated work or that are intended to circumvent technical protection measures taken by PLUVO and/or Pluvo B.V.'s computer systems;

i. that imposes an unreasonable or disproportionate burden on PLUVO's infrastructure or hampers PLUVO's functionalities;

j. which consists of assuming a false identity and/or falsely suggesting that you are involved with Pluvo B.V.;

k. involving chain letters, junk mail or spamming and/or requesting passwords or other personally identifiable information for commercial purposes;

l. which, in the opinion of Pluvo B.V., is otherwise found to be indiscreet or incorrect, including but not limited to petitions, raffles, competitions, pyramid games or photos, videos, comments, statistics or images of others without his or her consent;

m. that violates this Agreement, the Privacy Policy and/or other applicable laws and regulations;

n. that infringes the rights of Pluvo B.V. and/or third parties;

o. that is unlawful in any other way; or

p. that may damage Pluvo B.V.'s interests and/or good name.

5.3 Pluvo B.V. is not liable for any damage that occurs in connection with the (unlawful) use of the Service, including the posting and use of Content as mentioned in article 5.2. Pluvo B.V. is only obliged, whether or not after receiving a report, to remove undeniably unlawful Content or to stop unmistakable unlawful activity. To this end, Pluvo B.V. will first consult with the Customer before blocking Content or stopping an activity.

5.4 Pluvo B.V. reserves the right not to comply with a request to block Content or stop an activity if it has good reason to doubt the accuracy of the report or the legality of the evidence provided, or if it is required to do so by weighing interests. In that context, Pluvo B.V. may, for example, request a court ruling from a competent court in the Netherlands, which ruling shows that the material or activity in question is clearly unlawful.

5.5 The foregoing applies equally to Content that is made available or exchanged via the chat function in PLUVO.

Article 6 Reimbursement

6.1 Use of the Service for one (1) learning path up to a maximum of five (5) Participants is free.

6.2 For the use of the Service other than mentioned in paragraph 1 of this article, the Customer owes a fee. This fee consists of a monthly fee on a subscription basis. The amount of the fee depends on the features of the chosen subscription and the number of Participants. An overview of the subscription forms and the associated prices can be found on the PLUVO website.

6.3 The fee is always due monthly in advance and is collected by direct debit. If the balance in the specified (credit card) checking account is insufficient, the Customer Account and Accounts will be blocked. An invoice is sent each month and all payments can be viewed in the Account.

6.4 Pluvo B.V. is entitled to change the prices used at any time. Pluvo B.V. will inform the Customer of this at least 30 days in advance. If the Customer does not agree with the increase in the price, he may terminate the Agreement within 14 days of the announcement of the price increase as of the date on which the price increase would apply, subject to article 11.

6.5 Without prejudice to the provisions of the previous paragraph, Pluvo B.V. is entitled to increase the prices charged annually by a maximum of 5%, without giving the Customer the right to terminate the Agreement.

6.6 In the event of non-payment (timely or full), the Customer is immediately in default, without prior demand and notice of default being required. From the moment of default, the Customer owes interest equal to the statutory commercial interest.

6.7 If, after a reminder or notice of default, the Customer continues to fail to pay the claim, Pluvo B.V. can hand over the claim. In that case, all costs incurred by Pluvo B.V., such as court costs and extrajudicial and judicial costs, including the costs of legal assistance, bailiffs and collection agencies, incurred in connection with late payments, will be borne by the Customer.

6.8 Complaints regarding the Service or PLUVO do not suspend the payment obligation. Pluvo B.V. is entitled to suspend compliance with its obligations under this Agreement until the Customer has fulfilled the payment obligations.

Article 7 Privacy

7.1 In the context of the execution of the Agreement, Pluvo B.V. will process personal data for the Customer within the meaning of the General Data Protection Regulation (AVG). The parties agree that, insofar as Pluvo B.V. processes personal data on behalf of the Customer, Pluvo B.V. is considered a processor within the meaning of the AVG and the Customer as controller. Pluvo B.V. and the Customer will conclude a processing agreement with regard to the processing of personal data by Pluvo B.V. on behalf of the Customer, in accordance with the model attached to this Agreement.

7.2 Insofar as Pluvo B.V. is considered a controller within the meaning of the GDPR in the context of offering the Service and executing this Agreement, the Privacy Policy describes how Pluvo B.V. processes personal data.

Article 8 Intellectual Property Rights

8.1 All Intellectual Property Rights with respect to the Service and PLUVO, including but not limited to, the software including preparatory materials such as manuals, the website or other information and materials that Pluvo B.V. makes available to the Customer and/or the Trainer and/or Participant, are owned exclusively by Pluvo B.V. or its licensors.

8.2 Provided that the Customer complies with its obligations under the Agreement, including in any case its payment obligations, Pluvo B.V. grants 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.

8.3 Customer can sublicense the right of use as referred to in the previous paragraph to Trainers and Participants by creating Accounts and adding Trainers and Participants, whether or not via a group.

8.4 Except as permitted by mandatory law, the Customer may not modify, reproduce or decompile the software underlying PLUVO, or reverse engineer the software. Nor is the Customer allowed to take any action for the purpose or purpose of finding out or obtaining the source code of the software as well as to engage or assist third parties in such actions or to remove or change any Intellectual Property Rights notice, including any indications regarding the confidentiality and secrecy of works.

8.5 Pluvo B.V. is allowed to take technical measures to protect its Intellectual Property Rights. If Pluvo B.V. has secured the works by means of technical protection, the Customer is not allowed to remove or evade this protection.

8.6 All the Customer's Intellectual Property Rights, 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 B.V. 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 the provision of the Service. Customer guarantees that he is entitled to grant this license to Pluvo B.V..

Article 9 Liability

9.1 Pluvo B.V.'s liability for an attributable shortcoming in the execution of the Agreement, an unlawful act or any other act or omission by Pluvo B.V., its employees or third parties engaged by Pluvo B.V., including any shortcoming in the fulfillment of a warranty obligation agreed with the Customer, is limited to compensation for direct damage. Pluvo B.V.'s total liability for direct damage does not exceed the total amount that Customer paid Pluvo B.V. under the Agreement in the six (6) calendar months prior to that event (ex. BTW). However, Pluvo B.V.'s total liability does not exceed €2,000 (ex. BTW).

9.2 “Direct damage” means only:

a. property damage;

b. reasonably incurred expenses that the Customer should incur to ensure that Pluvo B.V.'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 of the Dutch Civil Code);

c. expenses reasonably incurred by the Customer to determine the cause and extent of the damage, insofar as the determination is related to direct damage within the meaning of this Agreement;

d. reasonably incurred expenses to prevent or limit damage, insofar as Customer can demonstrate that these expenses have led to a limitation of direct damage within the meaning of this Agreement;

9.3 Pluvo B.V. is not liable for damages other than direct damages as described in art. 9.2, including consequential damages arising out of or in connection with the Agreement, including, without limitation, loss of profit, loss of turnover, loss of expected savings and other similar financial losses such as loss of goodwill or good name or other incidental, indirect damage, or punitive or exemplary damages of any kind, regardless of whether Pluvo B.V. is asked or liable for damages. Vo B.V. has notified such possible damage, compensation or loss.

9.4 Pluvo B.V. is never liable for services provided by suppliers of Pluvo B.V..

9.5 Pluvo B.V. is never liable for damage resulting from Force Majeure, see article 10.

9.6 The restrictions set out in the previous paragraphs of this article do not apply if and insofar as the damage is caused by intent or gross negligence on the part of Pluvo B.V. or its directors.

9.7 Pluvo B.V.'s liability for an attributable shortcoming in the fulfillment of the Agreement only arises if the Client gives Pluvo B.V. a proper written notice of default immediately, setting a reasonable period of time to remedy the shortcoming, and Pluvo B.V. continues to imputably fail to fulfil its obligations even after that period. The notice of default must contain as detailed a description as possible of the shortcoming, so that Pluvo B.V. is able to respond appropriately.

9.8 The condition for any right to compensation is always that the Customer reports the damage to Pluvo B.V. in writing within 30 days of its occurrence. The Customer's right to claim compensation under this Agreement, tort or otherwise expires in any event one (1) year after the event causing the claim or proceeding.

Article 10 Force majeure

10.1 Pluvo B.V. is not obliged to fulfil any obligation towards the Customer if it is prevented from doing so as a result of a circumstance that is not due to fault, and is not at its expense under the law, a legal act or generally accepted beliefs (“Force majeure”).

10.2 Force majeure includes, in addition to what is understood in the law and case law, all external causes, foreseen or unforeseen, over which Pluvo B.V. cannot influence, but which prevent Pluvo B.V. from fulfilling its obligations. In particular, force majeure includes; domestic riots, synflood, network attack, Denial-of-Service or Distributed Denial of Service attacks, mobilization, war, traffic congestion, strike, exclusion, business disorders, supply stagnation, fire, flood, import and export barriers and in the event that Pluvo B.V. is unable to deliver by its own suppliers, regardless of the reason, as a result of which, compliance with the Agreement cannot reasonably be required of Pluvo B.V..

10.3 Pluvo B.V. can suspend the obligations under the Agreement during the period that the Force Majeure continues. If this period lasts longer than 60 days, each of the Parties is entitled to terminate the Agreement without being obliged to pay compensation to the other Party.

10.4 Insofar as Pluvo B.V. has already partially fulfilled or will be able to fulfil its obligations under the Agreement at the time of the occurrence of Force Majeure, and the part fulfilled or to be fulfilled has independent value, Pluvo B.V. is entitled to separately charge the part already fulfilled or to be fulfilled. The customer is obliged to pay the bill.

Article 11 Duration and termination

11.1 The Agreement is entered into for an indefinite period and is each time tacitly renewed for a period equal to the initial term of the Agreement. Parties can terminate the Agreement in writing at any time by the end of the month.

11.2 If the Agreement is terminated due to a shortcoming on the part of one of the Parties, the performance that the Customer has already received at the time of termination as a result of the Agreement and the associated payment obligation will not be the subject of cancellation. Amounts that Pluvo B.V. invoiced before the dissolution remain due and become immediately due and payable at the time of termination.

11.3 Pluvo B.V. has the authority to terminate in whole or in part, without notice of default being required, if the Customer is granted a suspension of payment - whether or not temporarily - if the Customer's bankruptcy is filed, 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.

11.4 Due to cancellation, dissolution or other means of termination of the Agreement, Pluvo B.V. will never be obliged to refund funds already received or to pay any compensation.

11.5 The right of the Customer, Trainers and Participants to use and access the Service expires by operation of law in the event of cancellation, dissolution or other means of termination of the Agreement.

11.6 If the Customer does not, not fully or not timely fulfill its obligations under the Agreement, Pluvo B.V. is entitled, without any reminder or notice of default being required, to suspend or terminate the execution of the Agreement in whole or in part. This provision is without prejudice to Pluvo B.V.'s right to exercise any other legal and/or agreed right.

11.7 Upon termination of the Agreement, for whatever reason, Pluvo B.V. will delete the Customer Account, Accounts and Content. Pluvo B.V. is not obliged to provide any Content or information or convert or export such information. The license referred to in section 8.6 with respect to the Content shall remain in full force and effect after termination of the Agreement.

11.8 The provisions that are intended to remain applicable after cancellation, dissolution or other means of termination of the Agreement will survive the cancellation, dissolution or other method of termination of the Agreement.

Article 12 Confidentiality

12.1 Parties will treat all information they provide to each other before, during or after the execution of the Agreement confidentially if this information is marked as confidential or when the receiving Party knows or should reasonably suspect that the information was intended to be confidential. Parties also impose this obligation on their employees as well as on third parties engaged by them to implement the Agreement.

Article 13 Final provisions

13.1 Information and announcements on the PLUVO website and within the Service are subject to programming and typing errors. In the event of any inconsistency between the website and the Agreement, the Agreement prevails.

13.2 Where this Agreement refers to “in writing”, this also includes an email.

13.3 Customer declares that he is authorized to conclude this Agreement.

13.4 The Customer agrees that Pluvo B.V. can transfer its rights and obligations under the Agreement to a third party without the Customer's consent. If the Customer wishes to transfer its rights and obligations under the Agreement to a third party, written consent from Pluvo B.V. is required.

13.5 This Agreement and the use of the Service and PLUVO are governed by Dutch law.

13.6 All disputes that may arise between Pluvo B.V. and the Customer as a result of or in connection with this Agreement will be submitted to the exclusive competent court in Amsterdam.