Healthy Workers – Platform Service Terms
Version: February 2023
1. Purpose
1.1 The Platform is offered through Healthy Workers’ website. The Platform is only available to Customer and Customer Users. These Platform Service Terms (“Service Terms”) describe the terms and conditions applicable to the relationship between Healthy Workers and Customer and apply to the Platform and Additional Services identified in the Order Form and, if applicable, any additional Order Forms and Annexes.
2. Definitions
2.1 Account: Online personal environment which End-User access by entering username and password and to which the End User License Agreement applies, and which is an account under the name of Customer in relation to the Platform.
2.2 Additional Services: any additional services to the Platform, as described in the Order Form provided by Healthy Workers to Customer which contribute to Customer’s aim to track and improve the performance of their Assets, including building(s) for health, comfort, sustainability and cost-saving purposes, as further described in the Order Form and the applicable Annexes.
2.3 Affiliate: an entity that directly or indirectly Controls, is Controlled by or is under common Control of Customer and that is specified in the Order Form(s).
2.4 Agreement: the Platform Services Agreement, consisting of the (signed) Order Form(s), these Service Terms and all Annexes attached thereto, which compromise the Platform Services Agreement between Healthy Workers and Customer.
2.5 Asset: means property owned, leased, or managed by the Customer that is directly involved in or affected by the Services provided by Healthy Workers.
2.6 Authorized User: an End-User using the Platform through a User Account.
2.7 Billing Cycle: the frequency of which Healthy Workers invoices Recurring Fees for the Platform and Additional Services as specified in the Order Form(s) to the Customer.
2.8 Change of Ownership of an Asset: means the situation where an Asset related to Customer, which is provided with Services from Healthy Workers, will be no longer be related to Customer, because a change of ownership of the Asset.
2.9 Contract Term: the entire term of the Agreement comprised of the Initial Contract Term and the Renewal Terms jointly.
2.10 Control: ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the entity in question. The term "Controlled" shall be construed accordingly.
2.11 Consultancy Services: means the segment of services provided by Healthy Workers, focused on offering advice, guidance, and strategic recommendations to the Customer. These services are characterized by their advisory nature, encompassing activities such as analysis, assessment, planning, and providing tailored recommendations based on Healthy Workers' expertise.
2.12 Customer Data: data and information provided by Customer to Healthy Workers for the provision of Services by Healthy Workers or data generated by Customer through the use of the Service,
2.13 DCC: the Dutch Civil Code (Burgerlijk Wetboek).
2.14 End-User: a user, affiliated to Customer, who is permitted to use the Platform on Customer’s instruction. 2.15 Effective Date: has the definition as described in the Order Form.
2.16 End User License Agreement: the end user license terms, conditions and restrictions applicable to End-Users access to and use of the Platform.
2.17 Force Majeure Event: circumstances that are not attributable to a Party (overmacht) including, without limitation, (i) circumstances beyond the control of Healthy Workers or any of Healthy Workers’ suppliers, (ii) the failure by Healthy Workers to properly meet obligations that were contracted by Healthy Workers on Customer’s instructions, (iii) defects in goods, Hardware, software or materials of third parties that Healthy Workers uses on Customer’s instructions, (iv) measures by public authorities, (v) power failures, (vi) failures of the internet, data network or telecommunication facilities, (vii) (cyber) crime, (cyber) vandalism, war or terrorism, and/or (viii) general transport problems.
2.18 Go-Live Date: the official starting date on which the Platform is made available to the Customer, as indicated in the Order Form(s).
2.19 Hardware: means the external and internal devices and/or equipment that is provided during the Contract Term in connection with the operation of the Platform as described in the SOW(s) and/or Order Form.
2.20 Initial Contract Term: has the definition as described in the Order Form.
2.21 Order Form: the signed order form between Healthy Workers and Customer for the provisions of Services to Customer. In the absence of a formal Order Form, the Parties may mutually agree that a signed Proposal shall function as the Order Form within the meaning of this Agreement.
2.22 Partner Services: services of third parties used by Healthy Workers to deliver the Services to Customer. 2.23 Party or Parties: Either Healthy Workers or Customer, or both.
2.24 Platform: Healthy Workers’ cloud-based platform which enables Customer and End-Users to track and improve the performance of their buildings for health, comfort, sustainability and cost-saving purposes.
2.25 Proposal: a quotation proposal prepared for the Customer by Healthy Workers describing the Services to be provided to Customer.
2.26 Recurring Fees: has the definition as described in the Order Form(s).
2.27 Renewal Term: a renewal contract term for an Order Form succeeding the Initial Contract Term or another Renewal Term as specified in the Agreement.
2.28 Reseller: refers to any entity that has entered into a formal written agreement with Healthy Workers as Customer for the purpose of reselling and distributing the Platform, and Services to Reseller End-Customers. The Reseller either has already established or intends to establish a Resell Agreement with the Reseller End-Customer.
2.29 Resell Agreement: the contract between the Reseller and a Reseller End-Customer for the resale and distribution of the Platform, and Services.
2.30 Reseller End-Customer: an entity that purchases the Services and licenses for the Platform, and Services from a Reseller under a Resell Agreement. This explicitly excludes any direct contractual relationships with Healthy Workers.
2.31 Services: any and all services rendered by Healthy Workers to Customer under any Order Form, including but not limited to additional features to the Platform, Set-Up Services, Additional Services, customer support, implementation, training and additional customer support as further specified in the Order Form(s).
2.32 Set-Up Services: services provided by Healthy Workers to implement the Platform for Customer, including, among other things, providing assistance in uploading Data to the Platform, personalizing the Platform interface, or designating Accounts.
2.33 Third Party: a party other than Healthy Workers or Customer.
2.34 Third Party Software: the works and/or materials (software) comprised in the Platform, the intellectual property rights in which are owned by a third party, and which can be specified by Healthy Workers upon request by Customer.
2.35 VAT: value added tax and any other tax of a similar nature.
Other definitions – recognizable by use of a capital letter at the beginning - may also be explained in the text below.
3. Concluding the Agreement
3.1 In order to conclude this Agreement and to obtain the right to use the Platform, Customer is required to complete and sign the Order Form and return it to Healthy Workers.
3.2 The Order Form, together with these Service Terms and Annexes thereto, set forth the terms and conditions under which Healthy Workers provides to Customer the Platform. In addition to the Platform, Healthy Workers offers additional services to the Platform, including different types of Hardware, and Additional Services, as further described and defined in the Platform Service Terms, any Annexes thereto, and the Order Form.
3.3 Parties explicitly agree that any terms and conditions of the Customer, whether previously declared applicable or not, are expressly rejected and shall be of no effect between Parties.
3.4 In the event of any conflict or inconsistency between the terms of the Order Form and the Service Terms, the terms of the Order Form shall prevail. In all other respects, the Service Terms shall remain in full force and effect.
4. Set-Up
4.1 After the Effective Date, Healthy Workers shall perform the Set-Up Services in order to make the Platform ready for use for the Customer, provided that the Customer has requested such Set-Up Services to be performed and Customer. If the Customer has not requested Set-Up Services, Customer remains responsible for designing, configuring, parameterizing and tuning the Platform, converting and uploading possible Data and, where required, for modifying the Hardware and user environment used.
5. Offers and Quotations
5.1 Healthy Workers’ offers and quotations are non-binding and only apply to the Platform as specified therein, unless expressly agreed otherwise. The offers and quotations of Healthy Workers are valid for fourteen (14) days after receipt.
5.2 Healthy Workers may assume that all information provided by the Customer in the course of the preparation of such an offer or quotation is correct. The offer or quotation may be adjusted if the information provided by Customer is incorrect, or other or additional information is provided to Healthy Workers.
6. Customer Obligations
6.1 The Customer is required to inform all Third Parties associated with its Asset(s) about its engagement of the Services provided by Healthy Workers. It is the Customer's responsibility to ensure that these Third Parties are made aware of Healthy Workers' services and understand their relevance to the management and operation of the Asset(s). Furthermore, the Customer must ensure the attendance of these Third Parties at the initial kick-off meeting conducted by Healthy Workers. This meeting serves as a critical platform for introducing Healthy Workers' Services, discussing the scope of work, and establishing the expectations and responsibilities of all parties involved. The purpose of this requirement is to guarantee that all Third Parties connected to the Customer's Asset(s) are fully informed about, and can actively contribute to, the effective implementation and utilization of Healthy Workers' Services.
6.2 Customer shall make sure it has all the relevant licenses in place for managing its Asset(s), to enable Healthy Workers to integrate its Services to the best of its ability.
6.3 The Customer shall bear all expenses incurred by Third Parties in relation to the Customer's Assets for providing Healthy Worker with access to their systems. This includes any fees or charges by such Third Parties as a condition for granting Healthy Worker the necessary system access to perform its services.
6.4 Customer shall give Healthy Workers access to all systems necessary for providing the Healthy Workers Services.
6.5 Customer shall ensure that its End-Users shall comply with the End User License Agreement as available via the Healthy Workers website and is fully liable for any action of its End-Users as further specified in these Service Terms.
6.6 All other practical roles and responsibilities will be communicated by Healthy Workers during within a reasonable timeframe after signing of the Order Form.
7. Fees and Payment
7.1 Customer shall pay Healthy Workers the fees as specified on the Order Form(s) and the applicable Annex(es), including any updates thereof, for the use of the Platform and Additional Services (the “Fees”).
7.2 Healthy Workers will invoice the Fees in accordance with the Order Form(s).
7.3 Healthy Workers may invoice any agreed one-off service Fees immediately following the Effective Date. 7.4 Customer consents to electronic invoicing of the Fees.
7.5 All amounts are in Euros and exclusive VAT and other levies imposed by relevant authorities, unless specified otherwise.
7.6 Customer shall pay invoiced Fees within thirty (30) days after the invoice date.
7.7 If Customer does not pay invoiced Fees on time:
7.7.1 Statutory commercial interest within the meaning of Section 6:119a DCC shall be due in respect of the outstanding invoice without requiring further notice of default; and
7.7.2 Customer is obliged to fully compensate both the judicial and extrajudicial collection costs, including (i) reasonable lawyer's fees, (ii) bailiff's fees, (iii) and the costs of collection agencies, in addition to the amount that is owed and the interest due in respect thereof.
7.8 In the event of non-payment or untimely payment by the Customer, Healthy Workers may limit the use of the Platform and Additional Services for Customer after written notice thereof to the Customer. After a second written notice to the Customer, Healthy Workers may suspend the use of the Platform and Additional Services by Customer and its End-Users until the Fees, including accrued interest and costs, are paid in full.
7.9 A claim for payment becomes immediately due and payable in the event Customer (i) is declared bankrupt, (ii) applies for a suspension of payment, (iii) a substantial part of its assets is attached, or (iv) is liquidated and/or dissolved.
7.10 During the Initial Contract Term, Healthy Workers shall only change the Fees and request additional Fees in case Customer requests (access to) an Additional Service or increase the number of Assets. The pricing details of all Additional Services or increase in Assets are described in the Pricing Annex of this Agreement.
7.11 During the Contract Term, Healthy Workers reserves the right, annually on the 1st of July, to:
7.11.1 unilaterally adjust the applicable prices and rates, upon written notice to the Customer and with due observance of a notice period of three (3) months. Healthy Workers shall take into account an index or any other criterion included in the Order Form(s), or these Service Terms (if applicable). If the price adjustment exceeds the index or criterion agreed upon in the Order Form or specified in these Service Terms, Customer is entitled to terminate the Agreement by serving written notice of termination within thirty (30) calendar days following the notification of the adjustment. Such termination becomes effective from the date on which the new prices and/or rates would have taken effect; and/or
7.11.2 may adjust the content or scope of the Platform and Additional Services. In principle, the costs of implementing the adjustments in the Customer’s procedures are at Customer’s expense, unless otherwise agreed in writing.
7.12 During the Contract Term, Healthy Workers reserves the right to index the applicable Fees annually on the 1st of July using the Services Producer Price index (SPPI) from Statistics Netherlands (CBS) (https://www.cbs.nl), with index 2015=100. The adjustment shall be calculated by comparing the SPPI for the current year with the SPPI for the previous year. In addition to the SPPI-based indexation, Healthy Workers reserves the right to increase the Fees up to an additional 5% each year. The cumulative increase (SPPI indexation, plus the additional increase)
will be communicated to the Customer in writing at least 30 days before the effective date of the adjustments. Healthy Workers shall provide written notice of any fee adjustments as described in this clause 7.12 at least 30 days prior to the effective date of the adjustments. For the avoidance of doubt, the Customer's right to terminate the Agreement as specified in clause 7.11.1 does not apply to the annual fee indexation based on this clause 7.12, unless the total increase (including both SPPI indexation and the additional increase up to 5%) exceeds the limits set by the agreed-upon criterion in the Order Form or these Service Terms.
8. Registration and Account Obligations
8.1 Customer is fully responsible that all information provided by Customer or its End-Users to Healthy Workers and to the Platform is accurate, complete, and up-to-date during the registration process and thereafter. Healthy Workers may fully rely on any information provided by Customer or End-Users.
8.2 Customer itself is responsible for the hardware, infrastructure and auxiliary software and ensures that the (auxiliary) software for its own hardware is installed, organized, parameterized, and tuned. Customer shall take appropriate measures to ensure that any equipment that is used by Customer or End-Users to access the Platform, such as PC’s, laptops, tablets, or smartphones, is secure and free from viruses and other malicious software.
8.3 Customer bears the risk of selecting the Platform and Additional Services to be provided by Healthy Workers.
8.4 Customer shall ensure that all employees and/or auxiliary persons that it deploys in the performance of the Agreement shall the knowledge and experience required to use the Platform.
8.5 Customer is responsible for the management, monitoring, checks of the settings, (manner of) implementation, and use of the Platform provided by Healthy Workers. Customer shall appropriately instruct End-Users. Customer remains responsible for the use of the platform by its End-Users.
8.6 Healthy Workers provides the Platform on Customer’s instruction. Customer may solely use the Platform for its own organisation, and only insofar as required for the use intended by Healthy Workers as described in this Agreement and the End User License Agreement.
8.7 Customer ensures that the End-Users do not use the Platform in a manner that violates these Service Terms, the End User License Agreement, or applicable law. Healthy Workers may implement all measures it reasonably considers necessary to prevent abuse of the Platform by Customer or End-Users.
8.8 Healthy Workers may continue to provide the Platform using a new or modified version of the underlying software. Healthy Workers is not obliged to maintain, modify, or add particular features or functionalities of the Platform specifically for Customer.
9. Registration of End-Users
9.1 Customer may be required to provide information about each End-User in order to register End-Users that will use Platform. Customer agrees that any such information shall be accurate, complete and up-to-date.
9.2 End-User will receive a One Time Autorisation Code (OTAC). Customer is entirely responsible for maintaining the security of its End-Users’ usernames and passwords and agrees not to disclose such to any third party. All actions taken from the End-User Account are done under the supervision and with the approval of Customer. Customer is obliged to notify Healthy Workers immediately if it suspects abuse of the End-User Accounts or login details of its End-Users.
9.3 Customer may allow its End-Users to use the Platform solely for Customer’s internal business purposes, provided that (i) Customer ensures its End-Users comply with the terms of this Agreement (where applicable) and the End User License Agreement and (ii) Customer shall be liable towards Healthy Workers as if End-User acts and omissions would have been Customer’s own.
10. Additional Work
10.1 In case Customer requires more Services than the initial purchased Services or Additional Services, Customer must request, in writing, Additional Services from Healthy Workers in line with the Fees for such Services for the remainder of the Contract Term. Healthy Workers may, at its discretion, grant such additional Services.
10.2 Additional follow up Order Forms may be entered into by the Parties to add additional Assets, Services, Customer Users, or add new functionalities to the Platform. Unless designated as replacing a specific outstanding Order Form, a new Follow Up Order Form will be considered as an addition to the initial Order Form. Parties agree that changes in the scope of Services provided to Customer such will be agreed upon in a Follow Up Order Form as provided as Annex to this Agreement.
10.3 Customer may at any time request in writing products or activities outside the scope of originally agreed in the Order Form. However, Healthy Workers is not obliged to honour Customer’s request and may require that a separate Order Form should be entered into in writing prior to providing such additional work.
10.4 If Healthy Workers has performed activities or has delivered services that are outside the scope of the agreed Services at Customer’s request or after Customer’s prior written consent, Healthy Workers may charge Customer for these Additional Services on the basis of agreed rates or, if no rates have been agreed on by the Parties, on the basis Healthy Workers’ applicable rates.
10.5 Customer acknowledges that adjustments and additional work may result in terms being prolonged and delivery periods and/or dates and delivery dates being postponed. Any new terms and delivery periods and/or delivery dates indicated and communicated by Healthy Workers shall replace the previous terms and delivery periods and/or dates and delivery dates.
10.6 Insofar a fixed price has been agreed on for the relevant Additional Services, Healthy Workers shall inform Customer, at Customer’s request, in reasonable detail, and in writing, about the financial consequences of the extra work or additional Additional Services referred to in this clause.
11. Intellectual Property
11.1 Healthy Workers (or its licensor or supplier, as applicable) is the exclusive owner of all intellectual property rights vesting in and relating to and vesting in the Platform, and any Costumer specific adaptations to the Platform, and underlying source- and object code. These intellectual property rights include but are not limited to patents, patent applications, trademarks, trademark applications, database rights, service marks, trade names, copyrights, trade secrets, licenses, domain names, know-how, property rights and processes (“Intellectual Property Rights”). Nothing in this Agreement shall be construed to assign or confer to Customer any Intellectual Property Rights pertaining to the Platform.
11.2 Healthy Workers grants Customer the non-transferable, non-sublicensable and non-exclusive right to use Platform for the Contract Term as specified in the Order Form(s).
11.3 After prior written approval from Healthy Workers, Customer may use the Platform and related logos to promote the Platform, provided this does not create confusion about its status as customer of Healthy Workers. Healthy Workers has the right to issue reasonable instructions concerning the correct use for promotions, which Customer must strictly follow.
11.4 Customer will not reproduce, resell, or distribute the Platform or data generated by the Platform for any purpose, unless Customer has been specifically permitted to do so under a separate agreement with Healthy Workers.
11.5 Customer hereby grants Healthy Workers a non-transferable and non-exclusive license to display Customer’s trademarks and/or logos on the Healthy Workers website and use it for purposes of reference and acknowledgement.
11.6 Customer guarantees that no rights of third parties preclude making Customer Data, Asset related data, software, and/or other materials, designs and/or other works available to Healthy Workers for the purpose of use, maintenance, processing, installation or integration; this guarantee also pertains to Customer’s having the relevant licenses. Customer indemnifies Healthy Workers against any claim of a third party based on the allegation that making any of this available and/or the use, maintenance, processing, installation or integration infringes a right of that third party.
12. Connectivity
12.1 Customer shall ensure that all necessary licenses are in place for connecting installations such as Building Management Systems (BMS) or Thermal Energy Storage systems (TES) at the location (in Dutch:
Gebouwbeheersysteem (GBS), respectively Warmte Koude Opslag (WKO)). If the required licenses are not available, the Customer must acquire them before Healthy Workers can proceed with the installations.
12.2 If necessary, new data linkages and add-ons may be developed when data providers make such data available through a ‘REST API’. This process requires additional development time and may incur costs, which will only be undertaken upon the Customer's express approval.
12.3 In the event that third parties do not make the necessary data available in any form, Healthy Workers will be unable to display this specific data component automatically on the dashboard and Healthy Workers shall not be liable for the inability to display these components.
12.4 The decision on which party will place and manage any necessary hardware shall be made in cooperation with the ‘day-to-day’ Asset installer, who is typically responsible for such tasks.
12.5 The Customer is responsible for ensuring access to the site on the agreed date, providing the appropriate contacts, a functioning internet connection, power points at the BMS, and access to the BMS.
12.6 In some cases, a data collector may be necessary for connecting the BMS. The costs for this are borne by the Customer, and installation may be performed by the house installer with remote support from Healthy Workers.
12.7 Any fees that installers or building management systems charge to provide Healthy Workers with access to the data shall be borne by the Customer.
12.8 The Customer is responsible for all costs related to connectivity imposed by third parties for data linkages, such as smart sub-meters, unless otherwise agreed by Parties in writing.
12.9 Should new data points from the BMS need to be linked to the Healthy Workers Platform after the implementation phase, development hours will be charged in accordance with the (then) applicable rates.
12.10 The timeliness of delivery depends on the cooperation of all involved parties, and are always indicative (geen fatale termijn).
13. Duration and Termination
13.1 The duration of the Contract Term is specified on the Order Form(s).
13.2 The Agreement and all Order Forms will terminate with immediate effect and without notice of default being required (i) if the other Party is granted a suspension of payments, whether or not provisional, (ii) if a petition for bankruptcy is filed by or against the other Party, or (iii) if the other Party is liquidated or dissolved other than for restructuring purposes or for a legal (de-)merger of companies. Healthy Workers may also terminate the Agreement in writing, in whole or in part, if a direct or indirect change occurs in the corporate control of the Customer. Healthy Workers is never obliged to repay any sum of money already received or pay any sum of money in compensation because of termination as referred to in this paragraph. If Customer is irrevocably bankrupted, its right to use the Platform ends, without Healthy Workers being required to cancel or terminate these rights.
13.3 Upon termination of the Agreement, Customer must cease immediately, and shall ensure that Customer Users cease immediately, any further use of the Platform and – if applicable – destroy any copies of associated software within its possession and control. Customer shall not destroy or attempt to harm any Platform or associated software on Healthy Workers servers or Healthy Workers network.
14. Availability and Maintenance; Disclaimer Warranties
14.1 Healthy Workers shall take reasonable efforts to make the Platform available as much as possible. Any specified level of availability may only be guaranteed via an SLA, incorporated as Annex to this Agreement if applicable.
14.2 Healthy Workers shall make commercially reasonable efforts to improve the functionality of the Platform, including through updates and to correct faults/errors. If any maintenance or modification could lead to limitations of availability, Healthy Workers shall make reasonable efforts to perform such maintenance during periods in which relatively limited use is made of the Platform by the Customers. Healthy Workers will make reasonable efforts to consult with Customer concerning such modifications, but the final decision is up to Healthy Workers.
14.3 The Customer acknowledges that Healthy Workers may be dependent on its supplier(s) when implementing modifications. Healthy Workers reserves the right not to install certain corrections or updates of a supplier if it considers that this does not benefit the correct operation of the Platform. Healthy Workers does not guarantee that errors in the Platform that were not developed by Healthy Workers itself are repaired. Healthy Workers is entitled to install temporary solutions, program bypasses or problem-avoiding restrictions in the Platform.
14.4 If the Platform, or part of it, has been developed on Customer’s instructions, Healthy Workers may charge Customer for the costs incurred by repairing the error(s) at Healthy Workers’ applicable rates.
14.5 Healthy Workers does not guarantee that the Platform is timely adapted to any amendments in the relevant laws and regulations.
14.6 The Platform is provided "as is" and "as available" without warranty of any kind, meaning that Healthy Workers does not guarantee that the Platform is free of errors and functions without any interruptions. In addition, Healthy Workers rejects all implied warranties that the Platform and the use thereof comply with Customer’s expectations thereof.
14.7 If any arrangements have been made about a service level, the availability of software, systems and related services is always measured in such a way that unavailability due to preventive, corrective or adaptive maintenance service or other forms of service that Healthy Workers has notified Customer of in advance and circumstances beyond Healthy Workers’ control are not taken into account. Subject to proof to the contrary offered by Customer, the availability measured by Healthy Workers is considered conclusive.
15. Support and Service Levels
15.1 Possible Service Level Agreement arrangements are exclusively agreed on in writing as Annex to this Agreement. Customer promptly informs Healthy Workers about any circumstances that may affect the service level or its availability.
15.2 If any arrangements have been made about a service level, the availability of the Platform and related Services is always measured in such a way that unavailability due to preventive, corrective or adaptive maintenance service or other forms of service that Healthy Workers has notified Customer of in advance and Force Majeure Events are not taken into account.
15.3 Customer is responsible for supporting Customer User(s) of the Platform. Customer Users may ask Healthy Workers questions and ask for support regarding the Platform, if this is agreed upon in the SLA. Otherwise, only the designated contact person at Customer can ask questions and ask for support on behalf of the Customer Users.
16. Backups
16.1 Healthy Workers will use commercially reasonable efforts to maintain regular Data backups of the Platform, provided however, that Healthy Workers accepts no liability for loss, alteration, destruction, damage or recovery of Customer’s Data.
17. Third Party Software
17.1 The Platform may contain Third Party Software which requires notices and/or additional terms and conditions. Such required Third Party Software notices and/or additional terms and conditions are made known to the Customer where necessary (e.g. on the Healthy Workers website). By accepting the Agreement, Customer is also accepting the additional terms and conditions, if any, set forth therein, for which the following shall apply:
17.1.1 the conditions of the Third Party Software are as stated by the provider of the Third Party Software, and the Third Party Software is provided in accordance with the relevant licensor's licensing terms, whereby the Customer acknowledges, where applicable, that these terms may be open source or Creative Commons licensing terms;
17.1.2 the Third Party Software may have limitations, both known and unknown (including defects, and (unknown) limitations in functionality); and
17.1.3 Healthy Workers provides no warranty specifically related to any Third Party Software or any applicable licensing terms.
17.2 Healthy Workers indemnifies Customer against any claim or proceeding brought against Customer to the extent that such claim or proceeding alleges that Customer’s use of the Platform in accordance with this Agreement constitutes an infringement of a third party’s Intellectual Property Rights (“IP Claim”). The indemnity is subject to Customer: (i) promptly notifying Healthy Workers in writing of any IP Claim; (ii) making no admission of liability and not otherwise prejudicing or settling the IP Claim, without Healthy Workers’ prior written consent; and (iii) giving Healthy Workers complete authority and information required for Healthy Workers to conduct and/or settle the negotiations and proceedings relating to the IP Claim.
18. Privacy
18.1 When an End-User makes use of our Platform, Healthy Workers will collect certain Personal Data of this Authorized User– whereby Healthy Workers acts as Data Controller within the meaning of the General Data Protection Regulation (Algemene Verordening Gegevensbescherming) (the “GDPR”). The use of this Personal Data is further described in the Privacy Notice. Through the Privacy Notice Healthy Workers informs End-Users which Personal Data is collected and for what purposes. The Privacy Statement can be found here: https://healthyworkers.com/privacy-statement.
18.2 Customer will ensure, and direct its End-Users accordingly, not to disclose any (sensitive) personal data while using the Platform. Should these incidental processing activities occur, Customer will act as the Data Controller and Healthy Workers as Third Party within the meaning of the GDPR. Healthy Workers shall handle such personal data in accordance with confidentiality arrangements specified in clause 24.
18.3 Customer indemnifies Healthy Workers against any claims by persons whose personal data are or have been processed and for which processing Customer is responsible pursuant to the law, unless Customer proves that the facts on which a claim is based are attributable to Healthy Workers.
19. Use of Data
19.1 Customer agrees that Healthy Workers may use Customer Data to maintain, evaluate, develop, and improve its products and services, including the Software and Services provided to Customer. To the extent necessary Customer hereby grants Healthy Workers a non-exclusive, non-transferable, royalty-free, perpetual license to use Customer Data for the purpose providing the Services to Customer and for Healthy Workers’ internal business purposes, including but not limited to analysis, improvement of the Services, and the development of new services and/or products and other rights as permitted under the Agreement. This license includes the right to sublicence and transfer the Customer Data to third parties as necessary for the provision of services, without requiring additional consent from Customer, in alignment with the stipulations of this Agreement and applicable law.
20. Subcontracting
20.1 Subject to any express restrictions elsewhere in this Agreement, Healthy Workers may subcontract any of its obligations under this Agreement, providing that Healthy Workers, upon a written request of Customer, must give to Customer a written notice specifying the subcontracted obligations and identifying the subcontractors.
21. Security
21.1 Healthy Workers maintains a security program, including a set of written security policies and security procedures which may be amended by Healthy Workers from time to time, to continue to offer an appropriate security level (“Security Policy”). Upon written request of Customer, Healthy Workers will send a copy of the most recent Security Policy to Customer.
21.2 Customer may request Healthy Workers to implement further security measures and to adjust the Security Policy. Healthy Workers is not obliged to implement any adjustments in its security measures following such request. Healthy Workers may charge Customer for the costs involved in implementing the adjustments requested by
Customer. Healthy Workers is not obliged to actually implement these adjusted security measures before the security measures requested by Customer have been agreed on in writing.
22. Training
22.1 If Healthy Workers provides Additional Services in the field of education, courses, workshops, trainings, seminars and the like, Customer accepts that Healthy Workers determines the content and the scope of the training course.
22.2 Registration for a training course by Customer must take place in writing and is binding following its confirmation by Healthy Workers.
22.3 Healthy Workers may require that Customer should pay the sums due prior to the start of the training course as a One-off Service Fee.
23. Exit
23.1 Upon termination of the Agreement, Healthy Workers undertakes to provide Customer with all reasonable assistance necessary for data retrieval upon termination or expiration of this Agreement. All provided data will be in a machine-readable format suitable for transition to another service provider or for archival purposes. Reasonable assistance includes basic data retrieval efforts that require up to two hours of labor. Any assistance exceeding this threshold, or requests for further explanation or adaptation of the provided data, will be considered Additional Work and will be charged according to the rates specified in clause 10.
24. Confidentiality
24.1 The Parties will treat as confidential the information they provide to each other before, during or after the performance of the Agreement if this information has been marked as confidential or if the receiving Party knows or should reasonably assume that this information was intended to be confidential. The Parties shall not use any information for any purpose other than is necessary for the performance or use of the Platform and Additional Services. The Parties shall impose these confidential obligations on their employees and other third Parties engaged by them, including End-Users.
24.2 Healthy Workers and Customer are not obliged to a compensation payment or indemnification, if they are legally obliged to disclose the confidential information.
24.3 These provisions continue to apply after the Agreement ends for any reason whatsoever and for as long as the providing Party has the right to invoke the confidential nature of the information.
25. Warranties
25.1 Customer represents and warrants that:
25.1.1 It has the full right to enter into this Agreement and the obligations thereunder; and
25.1.2 Customer and its End-Users shall not use the Platform in violation of this Agreement, the End User License Agreement and any applicable laws or regulations or the legal rights of third parties.
25.2 Customer shall indemnify and hold harmless Healthy Workers from and against all claims, damages or losses resulting from Customer’s breach of the warranties under the Agreement.
26. Limitation of Liability
26.1 If Healthy Workers is liable, for any reason, the total aggregate liability of Healthy Workers to the Customer shall not exceed 50% of the total amount of Fees paid by Customer in the calendar year in which the liability causing event(s) occurred.
26.2 Liability for indirect damage, including consequential loss, loss of profits, lost savings, reduced goodwill, loss due to business interruption, loss as a result of claims of Customer’s customers, damage and/or claims of third parties, damage to Customer’s or third parties’ assets or other materials, regulatory fines, corruption or loss of
Customer Data, items, or software of third parties, is explicitly excluded. Liability for corruption, destruction or loss of data and Customer Data is also excluded.
26.3 Unless performance by Healthy Workers is permanently impossible, Healthy Workers is exclusively liable for an imputable failure in the performance of Services if Customer promptly serves Healthy Workers with a written notice of default, granting Healthy Workers a reasonable period of time to remedy the breach, and Healthy Workers should still imputably fail to meet its obligations after that reasonable term has passed. The notice of default must describe Healthy Workers’ failure as comprehensively and in as much detail as possible so that Healthy Workers has the opportunity to respond adequately.
26.4 Nothing in this Agreement will exclude or limit the liability of Healthy Workers if this cannot be excluded or limited under the applicable law, such as in the case of willful intent or gross negligence by Healthy Workers.
26.5 The right to compensation of damages exclusively arises if Customer reports the damage to Healthy Workers in writing as soon as possible after the damage has occurred. Any claim for compensation of damages filed against Healthy Workers lapses (vervalt) by the mere expiry of a period of twelve (12) months following the inception of the claim unless Customer has instituted a legal action for damages prior to the expiry of this term.
27. Force Majeure
27.1 If a Force Majeure Event gives rise to a failure or delay in either Party performing any obligation under this Agreement other than any obligation to make a payment, that obligation will be suspended for the duration of the Force Majeure Event.
27.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must (i) promptly notify the other, and (ii) inform the other of the period for which it is estimated that such failure or delay will continue.
27.3 lf a Force Majeure Event situation lasts for more than sixty days, Healthy Workers has the right to terminate the Agreement. In such event, all that has already been performed under the Agreement must be paid for on a proportional basis, without anything else being due by Customer to Healthy Workers.
28. Hardware
28.1 Upon the Customer's request, as specified in the Order Form or otherwise agreed in writing, Healthy Workers may provide and sell hardware to the Customer. All hardware provided to the Customer by Healthy Workers is governed exclusively by the terms and conditions of the respective hardware supplier. The Customer, by purchasing this hardware, acknowledges and agrees to comply with these terms and conditions. Healthy Workers disclaims all liability for any conflicts or issues that arise from the hardware supplier’s terms.
29. Miscellaneous
29.1 Failure by Healthy Workers to exercise any of its rights under, or to enforce any provision of, the Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision.
29.2 If any provision of the Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of the Agreement will remain in full force and effect.
29.3 The Agreement embodies the entire understanding and agreement between the Parties respecting the subject matter of the Agreement and supersedes any and all prior understandings and agreements between the Parties respecting such subject matter. The Agreement may only be amended by a written agreement between the Parties.
29.4 Healthy Workers reserves the right to change these Service Terms. Healthy Workers will announce any material changes and additions to these Service Terms at least thirty days ahead to Customer. If Customer does not agree with the changes or additions, Customer has the right to terminate the Agreement until the date such change or additions enters into effect. Continued use after the effective date applies as acceptance of the amended Service Terms.
29.5 All notices or other correspondence between Healthy Workers and Customer will be provided to the contact information as specified on the Order Form(s). If any changes to the contact information arise, the relevant Party shall notify, in writing, the other Party thereof as soon as practicable. As long as no notice to this regard is received by the other Party, the other Party may rely on the contact information known to it.
29.6 Healthy Workers has the right to transfer its rights and obligations under the Agreement to a third party that takes over the Platform or the relevant business activity from it.
29.7 Healthy Workers is entitled to sell, transfer or pledge (verpanden) any claims it has to payment of any sums due to a third Party.
29.8 Customer is not entitled to sell, transfer or pledge (verpanden) its rights and obligations under an agreement to a third Party.
30. Applicable Law and Jurisdiction
30.1 The Agreement, and any (non-)contractual claims in connection with the Agreement, shall be governed by and construed in accordance with the laws of the Netherlands.
30.2 All disputes, contractual or otherwise, resulting from or arising in connection with this Agreement shall be exclusively submitted to the Amsterdam District Court (Rechtbank Amsterdam), the Netherlands.
Healthy Workers – Reseller Terms
31. Reselling Conditions
31.1 This Reselling chapter to the Service Terms only applies to Resellers reselling the Platform, and Services, to Reseller End-Customers without direct involvement of Healthy Workers in relation with the Reseller End-Customer. This Chapter sets forth some deviations from the other provisions of these General Terms which only apply to Resellers.
31.2 Healthy Workers (i) will not be a contracting party to the Reselling Agreement, (ii) will not be a counterparty of Reseller End-Customer, and (iii) will not engage with Reseller End-Customers unless explicitly agreed in writing. The Service Terms remain in full force and effect in all direct interactions between Healthy Workers and its Customers.
31.3 Resellers are obliged to bind the Reseller End-Customers to terms and conditions similar to those set out in these Service Terms, including the End User License Agreement, and the Privacy Statement.
32. Reseller Appointments and Responsibilities
32.1 The Reseller is granted a non-exclusive, non-transferable right to market and distribute the Platform under a whitelabel arrangement during the Contract Term, as defined in the Order Form, which forms an integral part of these Service Terms.
32.2 Resellers must obtain written approval from Healthy Workers before finalizing any Resell Agreement with potential Reseller End-Customers. Healthy Workers reserves the right to withhold or delay consent if the standards or contractual integrity of the Platform could be compromised.
32.3 Healthy Workers will deliver the Platform and agreed Services to the Reseller. Upon Healthy Workers’s delivery of the Platform to the Reseller, the Reseller shall be responsible for the subsequent distribution of the Platform to the Reseller End-Customers. Additionally, the Reseller commits to ensuring the seamless deployment and installation of the Platform, its functionalities, and Services for the Reseller End-Customers. This obligation includes providing necessary support and technical assistance towards Reseller End-Customers.
33. Intellectual Property
33.1 All Intellectual Property Rights related to the Platform and Services remain with Healthy Workers. The Reseller is prohibited from creating derivative works or engaging in activities that compete with Healthy Workers’s offerings during and up to 12 months post the termination of this Agreement.
33.2 Regular software updates will be conducted by Healthy Workers to ensure the functionality and security of the Platform.
34. Financial and Operational terms
34.1 The fee structure and payment mechanisms (including payment terms, price adjustments, and indexation) specified between Reseller and Healthy Workers in the Service Terms shall be similarly applicable in all cases. The specific costs and payment terms for initiating and maintaining the Reseller operations, including startup, development, and maintenance fees, will be detailed in the Order Form.
34.2 The Platform will be provided on a Whitelabel basis, with branding customization available per the terms agreed in the Order Form. The Reseller is entitled to feedback and revision as per the agreement before final implementation.
35. Approval and Compliance
35.1 Healthy Workers requires written approval before the Reseller can conclude a Resell Agreement with each potential Reseller End-Customer. Healthy Workers shall not unreasonably withhold or delay its consent for the Resell Agreements.
35.2 Upon Healthy Workers’s request, the Reseller must provide Healthy Workers with evidence that the terms and conditions similar to Healthy Workers’s Service Terms have been agreed upon between the Reseller and the Reseller End-Customer.
35.3 Healthy Workers reserves the right to decline the provision of the Platform and Services to protect its standards and contractual integrity. Furthermore, Healthy Workers may, at its sole discretion, terminate its agreement with a Reseller by providing written notice if legal or regulatory requirements impede Healthy Workers’s ability to fulfill its obligations under the agreement.
36. Term and Termination
36.1 The terms and termination clauses of this Agreement are applicable to the reseller arrangements between Healthy Workers and Reseller, and can be terminated in accordance with the conditions stated in the Service Terms.
36.2 Upon termination, Healthy Workers reserves the right to directly engage with and possibly transition Reseller End-Customers to direct management to ensure continuity of service, without additional costs.
37. Additional Provisions
37.1 In deviation of the Service Terms, Healthy Workers shall bear no liability towards Reseller End-Customers in instances where said Reseller End-Customers enter into a Resell Agreement with the Reseller. For the avoidance of doubt: the liability clause in the Service Terms shall govern the relationship between Healthy Workers and Reseller.
37.2 Support and Training are not standard parts of the agreement and will be provided based on specific, written agreements between Reseller and Healthy Workers.
37.3 Healthy Workers’s involvement may be concealed where possible within the Platform interface; however, certain legal and regulatory disclosures will remain visible as required.