Version 4.1 | November 2020
Here you will find the general terms and conditions that apply to the services of Procademy B.V. We provide a platform via software-as-a-service. You can find us in Hilversum at Hoge Naarderweg 7 G (1217 AB). We are registered at the Chamber of Commerce under number 76590186.
In the attachment you will also find the processor agreement. The specification of personal data and data subjects is available on request. The agreements in these appendices apply when personal data are processed in the context of your agreement with Procademy B.V.
Capitalised terms used in the General Terms and Conditions have the following meanings (both in the singular and plural languages):
1.1.Account: the personal account of the Customer (or of his personnel) or of his End Users, with which he or they gain access to the Service.
1.2.Customer: the natural or legal person acting in the course of a profession or business, with whom Procademy concludes the Agreement.
1.3.General terms and conditions: these terms and conditions, including appendices.
1.4.Service(s): the services in the field of E-learning and delivery of software-as-a-service and Training content, as described in the Agreement.
1.5.End users: the natural persons, being staff members of the Customer or Customer's customers, who make use of the E-learning modules and/or Training Courses through their Account.
1.6.Intellectual Property Rights: rights of intellectual property including but not limited to copyrights, database rights, domain names, trade name rights, trademark rights, design rights, neighbouring rights, patent rights and rights to know-how.
1.7.Office hours: the time from 9.00 to 18.00 (Dutch time) on working days (Monday through Friday), with the exception of official Dutch holidays and days on which Procademy has indicated in advance to be closed.
1.8.Materials: all Training Content, websites, (web) applications, house styles, logos, (vacancy) texts, folders, brochures, leaflets, lettering, advertisements, marketing and/or communication plans, concepts, images, audio, video, texts, sketches, documentation, advice, reports and (other) creations of the mind, as well as preparatory materials thereof and the data carriers on which these materials are stored.
1.9.Offer: a written offer from Procademy, on the basis of which the Agreement can be realised.
1.10. Training content: the training content included in the Service and made available by Procademy , or developed by the Customer by means of the Service, such as (parts of) E-learning modules and/or training courses, including all lesson material, assignments, tests, exams, presentations and other relevant Materials included therein.
1.11. Agreement: agreement between Procademy and the Customer on the basis of which Procademy shall provide the Service, or have it provided, to the Customer and of which the General Terms and Conditions form an integral part.
1.12. Party/parties: Procademy and the Customer, together or separately.
1.13. Platform: the software (-as-a-service) deployed for the provision of the Service, as described in the Agreement.
1.14. Procademy: Procademy B.V., established at Hoge Naarderweg 7 G (1217 AB) in Hilversum and registered with the Chamber of Commerce under file number 76590186
1.15. Written: in these General Terms and Conditions, written also includes communication by e-mail or via the Account of the Customer, provided that the identity of the sender and the integrity of the content have been sufficiently established.
1.16. Confidential Information: non-public information marked as confidential, which a Party indicates is confidential, or which, according to the nature of the information or under the circumstances of its disclosure, should be treated as confidential.
1.17. Website: the website of Procademy, accessible via the domain www.procademy.nl, as well as its subdomains.
These General Conditions apply to every Offer, all Orders confirmed by Procademy , all activities by Procademy and all agreements between the Buyer and Procademy.
2.2. Deviations from and additions to the General Conditions are only valid if they have been agreed in writing by the Parties. Any conditions set by the Customer are only binding if and insofar as they have been explicitly accepted in writing by Procademy .
2.3. The applicability of any purchase or other conditions of the Buyer is explicitly rejected.
2.4. If any provision of the Agreement is null and void or is destroyed, the other provisions of the Agreement will remain fully in force. Parties will replace the void or annulled provisions by new provisions, whereby the purpose and the meaning of the void or annulled provision will be taken into account as much as possible.
2.5. The administration of Procademy is leading, subject to evidence to the contrary from the customer.
2.6. In the event of any conflict between different documents and parts, the following order of priority applies:
a. additional written and signed agreements;
b. approved Quotation;
c. the processing agreement;
d. any service level agreement;
e. these General Terms and Conditions of Procademy.
3.1. All offers made by Procademy are valid until the date stated on the offer. As far as no date is mentioned, the offer is valid 30 days after receipt. Procademy is not obliged to accept an acceptance after this period has expired, but if Procademy proceeds to do so, the offer is still considered accepted. The Agreement is realised at the moment that the Offer is accepted within the previous period, or the acceptance is confirmed by Procademy after this period and/or Procademy starts the activities for the Customer.
3.2.Procademy is only bound to a by a potential Customer made (whether or not on subordinate points) deviating acceptance of an offer of Procademy, if Procademy explicitly accepts the deviating acceptance in writing and the Agreement is also realised in this way.
3.3. If the Customer does not explicitly indicate that it agrees with the Offer, but nevertheless agrees, or creates the impression, that Procademy performs work or supplies products that fall within the description of the Offer or the quotation, the Offer or the quotation is regarded as accepted and the Agreement is also concluded in this way. This also applies when the Customer requests Procademy to perform certain activities or deliver products without waiting for an Offer.
3.4. The customer is responsible for the correctness and completeness of the data provided to Procademy .
3.5. The application of sections 227b (1) and 227c of Book 6 of the Dutch Civil Code is excluded.
After the Agreement has been concluded, Procademy will make every effort to start as soon as possible with the execution of the Agreement and the delivery of the Service. Any (delivery) times announced by Procademy are however indicative and do not count as deadlines.
4.2. The customer will offer to Procademy all support that is necessary and desirable to make a correct and timely delivery of the Services possible. In any event, the Customer shall provide Procademy with all data and other information which Procademy indicates are necessary, or which the Customer should reasonably understand are necessary for the execution of the Agreement, as well as provide access to all places, services and accounts under its control if and insofar as this is necessary for the execution of the Agreement.
4.3.Procademy has the right to involve third parties, such as subcontractors and subprocessors, in the execution of the Agreement.
4.4. If the Customer requests additional activities or services that fall outside the scope of the Agreement, or requests additional work, the Parties shall discuss this and Procademy may make an offer. Procademy will only carry out the additional work after acceptance of the offer by the Customer. Procademy is never obliged to perform additional work if the Customer so requests.
5.1.Procademy grants the Customer a non-transferable, non-sublicensable and non-exclusive right to use the Services for the duration of the Agreement and under the conditions of the Agreement.
5.2. The right of use in the previous paragraph also includes all future updates of the Platform.
5.3.Procademy will provide the Customer with documentation concerning the use of the Platform upon request after the conclusion of the Agreement.
6.1. To be able to use the Service, the Buyer needs an Account. Procademy will in that case make log-in details for an administrator Account available to the Buyer, with which the Buyer can create Accounts for End Users itself. The password can be adjusted. It is the responsibility of Customer to always choose a strong password. Additional use can be made of 'two-factor authentication'.
6.2. An Account and the login data are strictly personal and may not be shared with another person. The Customer and/or End Users must keep the login details secret.
6.3. The use of Accounts is the responsibility and risk of the Customer. Procademy may assume that everything that happens from the Accounts takes place under the leadership and supervision of the Customer.
6.4. If login data for an Account are lost or leaked, the Customer will immediately take all measures that are reasonably necessary and desirable to prevent abuse of the Account. These measures may include changing the password. The Customer will also notify Procademy immediately, so that additional measures can be taken to prevent abuse of the Account.
The Customer warrants that the Service will not be used for any activity that is contrary to any applicable law or regulation. In addition, you are expressly prohibited (whether lawful or unlawful) from offering, storing or distributing through the Service any Materials that:
a. contain malicious content (such as malware or other harmful software);
b. infringe third party rights (such as Intellectual Property Rights), or in the opinion of Procademy are libelous, defamatory, offensive, discriminatory or hateful;
c. infringe the privacy of third parties, including but not limited to the dissemination of personal data of third parties without consent or necessity; or
d. contain hyperlinks, torrents or references to (sources of) Materials that infringe copyrights or other Intellectual Property Rights.
7.2. The Customer shall refrain from hindering other customers or causing damage to systems or networks of Procademy or (other) customers of Procademy. The Customer is forbidden to start up processes or programmes, whether or not via the systems of Procademy, of which the Customer knows or can reasonably suspect that this hampers or causes damage to Procademy or its customers.
7.3. If the customer does not comply with the rules of use as described in paragraph 1 and paragraph 2 of this article, Procademy has the right to terminate the Agreement immediately, subject to its right to additional damages. The customer is never entitled to compensation for damage as a result of this termination of the Agreement by Procademy.
7.4. If in the opinion of Procademy any hindrance, damage or other danger occurs to the functioning of the computer systems or the network of Procademy or third parties and/or the provision of services via the Internet, in particular by excessive sending of e-mail or other data, (distributed) denial-of-service attacks, badly secured systems or activities of viruses, Trojans and comparable software, Procademy is entitled to take all measures which it reasonably considers necessary to avert or prevent this danger. Procademy may recover the costs that are reasonably necessary in connection with these measures from the Customer.
7.5. If Procademy is of the opinion that by using the Services unlawful Materials are stored or distributed, or by using the Services otherwise unlawful or in conflict with the Agreement, Procademy may block the Account of the Customer and/or remove the Materials concerned, without having to make a back-up. Procademy will make every effort not to affect other Materials and will inform the Customer as soon as possible of the measures taken.
7.6.Procademy is entitled to give the name, address and other identifying details of the Customer to a third party who complains that the Customer is infringing his rights, provided that:
a. it is sufficiently plausible that the Materials, viewed in isolation, are unlawful and harmful towards the third party;
b. the third party has a genuine interest in obtaining the data;
c. it is plausible that in the specific case there is no less intrusive way of retrieving the data; and
d. the balancing of the interests involved means that the interest of the third party should prevail.
7.7. In the event of potentially punishable Materials, Procademy is entitled to report this. Procademy may submit the data and all relevant information about the Customer and third parties (including customers of the Customer) to the competent authorities and perform all other actions which these authorities Procademy request to be performed in the context of the investigation.
7.8.Procademy will never be liable for damage of any nature whatsoever suffered by the Customer as a result of the disconnection of the Service or as a result of the removal of the data or the provision of personal data.
7.9. The customer indemnifies and will keep Procademy indemnified against any form of claim, accusation or lawsuit from a third party in connection with (the content of) the data traffic or the data that is placed on or distributed via the Service by the customer, the customers of the customer and/or other third parties.
7.10. The Customer is fully responsible and liable vis-à-vis Procademy for the behaviour of his End Users and shall agree with the End Users on the use rules and provisions from the Agreement that are relevant for the End Users.
8.1.Procademy will make every effort to achieve uninterrupted availability of its systems and networks, but offers no guarantees in this respect unless Parties have agreed otherwise in a service level agreement.
8.2. The Customer accepts that the Services only contain the functionality and other characteristics as found by the Customer at the moment of delivery ("as is"), therefore with all visible and invisible errors and defects.
8.3.Procademy will make every effort to solve problems/defects in the Platform. However, Procademy gives no guarantees in this respect.
8.4. Customer must itself check the content of Training Materials. Procademy does not guarantee that the Training Materials are error-free at all times.
8.5.Procademy has the right to put its Platform or parts of it temporarily out of use for the purpose of maintenance, adaptation or improvement. Procademy will make every effort to ensure that such taking out of service takes place as far as possible outside office hours, and to inform the Customer in good time of the planned taking out of service.
8.6. In the event that Procademy is of the opinion that the taking out of use of the Platform - whether or not during Business Hours - is necessary for the proper functioning of the Platform, it is entitled to take the Platform out of use immediately without prior notification to the Customer. Procademy is never obliged to pay any compensation for damages in connection with such decommissioning.
8.7.Procademy may modify the functionality of the Platform from time to time. The Customer's feedback and suggestions are welcome, but Procademy has the right not to carry out the adjustments.
8.8.Procademy strives, but is not obliged, to give at least seven (7) working days' notice of updates with functional changes. Customer can in no case continue to use the old version of the Platform, or claim an announced update that has not been carried out due to circumstances, unless Procademy indicates that the old version can continue to be used.
8.9. It is possible to make custom adjustments to the Platform (such as functional and/or other adjustments specifically configured, developed or added for the Customer). However, Procademy reserves the right to refuse such customizations, to incorporate them into its standard Services, and/or to provide them to other customers.
All Intellectual Property Rights which rest on the (parts of the) Service, including the Platform and the Training Content provided by Procademy and included in the Service and all Materials, are and will remain vested in Procademy or its licensors.
9.2. The Customer is not entitled to make changes to the Service, unless Procademy has explicitly granted permission to do so or the Service is by its nature intended for the Customer to make changes (such as certain Training Content).
9.3. The Customer has no right to a copy of any source files of the Platform, except in cases where this is permitted by mandatory law.
9.4.Procademy can take (technical) measures to protect the Services. If Procademy has taken such security measures, it is not allowed for the Customer to circumvent this security or to remove it or have it removed.
9.5. The Customer is not allowed to remove or adapt any indication of Intellectual Property Rights from the Services. It is also not permitted to remove any indications regarding the confidential nature from the Services. Training content developed by the Customer
9.6. The Customer has the possibility to develop and/or upload Training Content itself via the Service. The Customer indemnifies Procademy against any claims by third parties on the grounds of infringement of an (Intellectual Property) right on account of this Training Content as originating from the Customer. The Intellectual Property Rights to the Training Content, Materials and data developed and uploaded by the Customer shall at all times remain vested in the Customer (or its licensees), unless the Parties expressly agree otherwise together.
9.7. Parties may agree that Procademy may make the Training Content developed by Customer available to third parties, possibly for a fee. Customer grants Procademy an exclusive, worldwide, transferable and sub-licensable right to make this Training Content available to third parties via the Service and to adapt, improve or supplement it as it sees fit. The parties may jointly agree on further conditions. The foregoing right of use may only be revoked or terminated by the Customer with due observance of a notice period of 12 calendar months, even if the Agreement between the Parties has already been terminated.Training content developed by order of Procademy
9.8. Only if the Parties explicitly so agree and/or the Customer develops the Training Content by order of Procademy will the Training Content be transferred to Procademy and all Intellectual Property Rights vested in the Training Content shall in that case accrue to Procademy. In that case, the Customer agrees in advance to transfer all Intellectual Property Rights that rest on the Training Content provided by the Customer to Procademy at the first request of Procademy and to cooperate fully in the actions necessary for this transfer, such as signing a deed of transfer.
9.9. Insofar as a transfer of the Intellectual Property Rights to the Training Content, as referred to in the previous paragraph, is not possible or has not yet taken place, Customer grants to Procademy the worldwide, unlimited, irrevocable, transferable and perpetual right to use, disclose, exploit, adapt or otherwise use the Training Content as it sees fit.
9.10. If Parties agree on the transfer of the Intellectual Property Rights to the Training Content to Procademy , Customer also transfers all its personality rights (also called moral rights) regarding the Training Content provided by Customer to Procademy, to the extent these rights are transferable. To the extent that transfer is not possible, Customer waives these moral rights for the benefit of Procademy , to the extent permitted by law. In so far as transfer or relinquishment of these rights is not possible, the Customer hereby exclusively authorises Procademy to take action in his name against any infringement of these rights. Procademy may act as it sees fit. Customer will not act independently against a violation of these rights.Other
9.11. Procademy is permitted to use the (company) name, the logo and a general description of Customer for its own promotion, promotion of the Training Content and/or publicity.
9.12. The provisions of this article 9 (Intellectual Property Rights and Training Content) shall remain in full force even after the end of the Agreement.
10.1. Procademy will provide a reasonable level of support to Customer's contacts designated in the Agreement regarding questions about the Service. Support will take place during Office Hours.
10.2. The support as described in the previous provision is offered via a helpdesk that can be reached during Office Hours by e-mail (email@example.com) and via the website (support.procademy.nl) for support to the Customer's regular contact persons as agreed between the Parties. The Customer must provide its own support to its End Users. Procademy may attach conditions to the technical knowledge of the Customer's permanent contact person.
10.3. Procademy strives to handle helpdesk requests within a reasonable term. The time required for responding to reports and resolving reports may vary.
10.4. If the Customer reports a defect in the Service to Procademy, this will only be dealt with if the defect can be demonstrated.
11.1. Agreements about the processing and security of personal data by Procademy are regulated in the processor's agreement as included in Appendix 1 of these General Terms and Conditions.
12.1. The Agreement and the prices and price lists used by Procademy are in any case Confidential Information.
12.2. Both parties will keep Confidential Information strictly confidential and only use it as far as necessary for the execution of the Agreement.
12.3. The receiving Party shall ensure that Confidential Information is given the same level of protection against unauthorised access or use as its own confidential information, but at least a reasonable level of protection.
12.4. Parties shall also impose the obligations described in the previous 2 paragraphs on employees and any engaged third parties to whom the Confidential Information is provided.
12.5. The obligation to maintain confidentiality will also continue after termination of the Agreement for whatever reason, and for as long as the Party providing the information can reasonably claim the confidential nature of the information.
12.6. The obligation of confidentiality does not apply to information that:
I. is publicly available or becomes publicly available without the receiving Party breaching its obligation of confidentiality;
II. is lawfully made available to the receiving Party by a third party without an obligation of confidentiality;
III. has been designated in writing by the other Party as non-confidential; or
IV. the receiving Party shares the information with a third party pursuant to a legal obligation or court order, provided that the receiving Party informs the providing Party of the legal obligation or court order and allows the providing Party the opportunity to object, appeal or seek other remedies against the disclosure of the information in question.
13.1. As long as the Agreement continues, as well as one year after it has expired, the Customer is not allowed to employ employees of Procademy or to have them work for him in any other way, directly or indirectly, without prior Written permission of Procademy.
Procademy Procademy 13.2. In this context, employees of Procademy means persons who are employed by Procademy or any of its affiliates or who have been employed by Procademy or any of its affiliates not more than one year ago.
13.3. Procademy is free to deliver to third parties as well as to the Customer, even if these are competitors of the Customer. Procademy will never share Customer's Confidential Information with other potential customers of the Services.
14.1.Procademy is only liable towards the Customer for direct damage as a result of an attributable failure in the performance of this Agreement. Direct damage is exclusively understood as all damage consisting of:
a. damage directly caused to material goods ("property damage");
b. reasonable and demonstrable costs which the Customer has had to incur to get Procademy to (again) properly comply with the Agreement;
c. reasonable costs for determining the cause and scope of the damage, insofar as this reasonable costs to establish the cause and the volume of the damage, in so far as these relate to direct damage as referred to in this article;
d. reasonable and demonstrable costs incurred by the Customer to prevent or limit the direct damage as referred to in this article;
e. reasonable and demonstrable costs incurred by the Customer to have the performance still comply with the Agreement.
14.2. The total liability of Procademy towards the Customer, due to an attributable failure in the performance of an Agreement or otherwise, is limited per event (whereby a series of related events counts as one event) to what the Customer has paid under the Agreement to Procademy in the six months preceding the month in which the loss-causing event occurred. In no event shall the total compensation for any damage amount to more than EUR. 1,000,000 on an annual basis.
14.3. The liability of Procademy on account of attributable failure in the fulfilment of the Agreement shall arise only if the Customer gives proper notice of default in writing to Procademy as soon as possible, and in any event within 30 days of discovery, stating a reasonable period in which to remedy the failure and if Procademy continues to fail attributably in the fulfilment of its obligations even after that period. The notice of default must contain as detailed as possible a description of the shortcoming, so that Procademy is able to respond adequately.
14.4. Each limitation of liability in the Agreement lapses if and as far as the damage is the result of deliberate or conscious recklessness of the management of Procademy or damage by death or physical injury.
14.5. The application of article 6:271 et seq. of the Civil Code is excluded.
Procademy 14.6. The Purchaser indemnifies Procademy against all claims by third parties (including the Purchaser's customers) in respect of compensation for damage, costs or interest in connection with this Agreement and the Training Content provided by the Purchaser.
14.7. If the Purchaser violates the provisions of 13 (personnel and competition), it will owe an immediately payable penalty of € 25,000 (twenty-five thousand euros) for each case of violation, without any summons or notice of default being required. This penalty provision is without prejudice to Procademy 's right to full compensation from the Customer.
14.8.Procademy cannot be held to fulfil any obligation under the Agreement if fulfilment is prevented as a result of force majeure. Procademy cannot be held liable for any damage resulting from this.
14.9. Force majeure shall in any case apply to power failures, internet failures, failures in the telecommunications infrastructure, network attacks (including (d)dos attacks), attributable shortcomings of suppliers, attacks by malware or other malicious software, civil commotion, mobilisation, war, terror, strikes, import and export obstructions, stagnation in supply, unavailability of staff, fire and floods.
14.10. If a situation of force majeure has lasted longer than 90 (ninety) days, both Parties will be entitled to terminate the Agreement in writing with immediate effect.
15.1. The Customer pays Procademy a fee for the Service as stated in the Agreement. Certain fees for components of the Service (such as Training Content made available) may be further specified in the Platform.
15.2. Unless explicitly stated otherwise, all prices mentioned by Procademy are exclusive of turnover tax and other levies imposed by the government.
15.3. Procademy may increase the prices annually, during the month of January, in accordance with the Services Price Index (DPI 6202 Computer Consultancy), without the possibility for the Customer to cancel the Agreement.
15.4. Prices may also be increased at any time by Procademy in the interim if the rates of its suppliers increase.
15.5. In principle, Procademy will invoice the customer in advance for the amounts owed by the customer.
15.6. Procademy may issue electronic invoices to the e-mail address of the customer known at Procademy . Customer agrees with this way of invoicing.
15.7. The payment term is 30 (thirty) days after the invoice date, unless agreed otherwise in writing.
15.8. Parties may agree that Customer will receive a discount, fee or credit, such at Procademy's discretion, for selling or delivering Training Content or Materials. Procademy is entitled to set off any amounts owed to Customer against the next invoice to Customer.
15.9. In the event of non-payment, the Customer shall be in default by operation of law from the due date of the invoice, without prior notice of default being required. Procademy shall then be entitled to charge the customer the entire amount due, as well as the statutory commercial interest calculated as from the due date over the amount due.
15.10. Without prejudice to the above, all costs related to the collection of outstanding claims - both judicial and extrajudicial (including the costs of lawyers, bailiffs and collection agencies) - shall be at the expense of the customer.
15.11. The customer is not entitled to set off any payment obligation on the customer with any claim on Procademy for whatever reason or to suspend obligations, irrespective of the ground. Procademy is entitled to settle the claims of the customer on Procademy with the claims, for whatever reason, of Procademy on the customer.
16.1. Procademy reserves the right to amend or supplement the General Terms and Conditions unilaterally, including with regard to existing Agreements. Contractual changes apply to already concluded Agreements with observance of a period of 30 (thirty) days after the change has been announced via the Platform or by e-mail to the Customer.
16.2. If the aforementioned change(s) negatively affect (the application of) the Services or the Customer's position, the Customer can terminate the Agreement, provided that the notification to that effect is received by Procademy before the date on which the change takes effect.
16.3. Changes of minor importance, changes by law and changes in favour of the Customer can be made at any time.
17.1. The duration of the Agreement will be laid down in the Agreement. If no term is stated, a long-term agreement is entered into for a term of one year and is tacitly extended each time by the same term, and can be terminated in writing with due observance of a notice period of at least three months before the end of this term.
17.2. An Agreement for a one-off order will continue until the completion of the Agreement. Either Party may suspend or terminate the Agreement in writing at any time and with immediate effect, without notice of default being required, if:
a. the other Party is declared bankrupt;
b. the other Party is granted a suspension of payments;
c. the other Party's business is wound up or liquidated;
d. the other Party's assets or part thereof are attached.
17.3. If the Customer is in default with respect to an essential obligation towards Procademy, then Procademy is entitled to suspend the Agreement or to cancel it with immediate effect, without the Customer being able to claim any damages as a result.
17.4. The customer explicitly waives his right to dissolve the agreement in whole or in part.
17.5. The provisions included in the Agreement which, by their nature, are intended to survive termination of the Agreement, shall remain in full force and effect even after termination.
18.1. Dutch law applies to the Agreement.
18.2. Insofar as the rules of mandatory law do not dictate otherwise, all disputes arising from or related to this Agreement shall be submitted to the competent court in the district in which Procademy is located, on the understanding that Procademy is also entitled to submit the dispute to the court that is competent on other grounds.
18.3. All legal claims by the Customer by virtue of the Agreement shall - except for provisions of mandatory law - lapse after one year, calculated from the day on which fulfilment of the obligations arising from the Agreement existing between the Parties became due and payable. This article is without prejudice to the regular period of limitation for claims by Procademy .
18.4. The customer gives Procademy the right in advance, without needing the explicit permission of the customer, to transfer the agreement concluded between the parties entirely, or parts thereof, to parent companies, sister companies and/or subsidiaries or a third party in the event of a merger or takeover. Procademy will notify the Customer if such a transfer has taken place.
1.1 In the performance of the Agreement, Procademy may process personal data on behalf of the Customer. Unless otherwise agreed, this appendix shall in such a case serve as the processor's agreement. If a separate processing agreement is concluded between Parties, it will replace this appendix.
1.2 If, during the performance of the Agreement, personal data are processed, the Customer must be regarded as the processor if it determines the purpose and the means of the processing. Procademy must be regarded as processor, as it processes personal data on behalf of the Customer.
1.3 All terms in this Annex that are defined in the General Data Protection Regulation (hereinafter: "AVG"), have the meaning assigned to them in the AVG.
2.1Procademy shall process the personal data exclusively for the performance of the Agreement, plus those purposes which are reasonably related to it or which are determined with the Customer's further consent. Procademy is allowed to use the data in anonymised form for analysis and quality purposes.
2.2. The purposes of the processing, as well as the categories of data subjects and the types of personal data processed in the provision of the Services, are described in more detail in Appendix 2.
2.3Procademy has no independent control over the purposes and means of processing personal data. Procademy does not make independent decisions about the receipt and use of personal data, the disclosure to third parties and the duration of storage of personal data.
3.1 Each of the parties shall ensure compliance with the applicable laws and regulations in the area of personal data protection, including in any case the AVG.
3.2Procademy shall inform the Customer, at the latter's express request, of the measures it has taken to comply with the obligations in this Annex.
3.3 The obligations of Procademy that arise from this Annex also apply to persons who process personal data under the authority of Procademy, including employees in the broadest sense of the word.
3.4 The customer guarantees that the content, the use and the instruction to process the personal data are not unlawful and do not infringe any rights of third parties, and indemnifies Procademy against all claims of third parties that are related to this.
3.5Procademy will support Customer in carrying out a Data Protection Impact Assessment ("DPIA") or prior regulatory consultation, should this be required by law. The costs associated with this will be borne by the Customer.
3.6Procademy will inform the Customer without delay if, in the opinion of Procademy , an instruction from the Customer is in breach of the AVG.
4.1Procademy may process personal data in countries within the European Economic Area ("EEA"). Transfer to countries outside the EEA is also permitted, provided the requirements of the AVG are observed.
4.2Procademy will inform the Customer, at the Customer's express request, of the country or countries in which personal data are processed.
5.1 Customer authorizes Procademy to use third parties (hereinafter "sub-processors") when processing personal data, subject to the AVG and other applicable laws and regulations. A current list of subprocessors can be found in Appendix 3.
5.2 If Procademy intends to engage a new subprocessor, it will inform the Customer in writing. Customer has the right to object in writing against the engagement of new subprocessor(s) within two (2) weeks after notification. If the Customer does not object within this period, it will be deemed to consent to the engagement of the new sub-processor(s).
5.3 If the Customer objects to the engagement of a subprocessor, Procademy may not be able to (continue to) provide the Services in full. Parties will in such a case enter into consultation to find a suitable solution. If Parties cannot find a solution, Procademy has the right to still engage the sub-processor and the Customer has the right to terminate the Agreement by and no later than the date on which the new sub-processor is engaged.
5.4Procademy ensures that engaged sub-processors take on the same or comparable obligations as agreed between the Customer and Procademy in this appendix. In the event of non-compliance with these obligations, Procademy itself shall be liable to the Customer as if it had committed the errors itself.
6.1 Procademy shall take appropriate technical and organisational measures with respect to the processing of personal data to be carried out in order to protect them against loss or against any form of unlawful processing (such as unauthorised access, impairment, amendment or provision of personal data).
6.2 The Customer shall only make personal data available to Procademy if it has ascertained that appropriate security measures have been taken.
6.3 Although Procademy makes every effort to prevent the loss or unlawful processing of personal data, Procademy cannot guarantee that the security measures taken are effective in all circumstances
6.4 It is known to Processor that the Services of Processor are not intended to process the national identification number pursuant to Article 87 of the AVG, nor to process personal data that are classified as particularly sensitive pursuant to Articles 9 and 10. Accordingly, Processor shall not provide Processor with such data, or instruct Processor to process such data.
7.1 The Customer is responsible for reporting a personal data breach (also referred to as a "data leak") to the relevant supervisory authority and the parties concerned whose personal data has been leaked. To enable the Customer to comply with this statutory obligation, Procademy shall notify the Customer without unreasonable delay in the event of a data leak.
7.2 The notification obligation of Procademy to the Customer includes in any case the notification of the fact that there has been a data leak as well as, as far as known at Procademy, the information as meant in article 33 paragraph 3 AVG. If Procademy does not have all the information referred to in this article, it will collect this as soon as possible and make it available to the Customer.
7.3 If required by law and regulations, Procademy will cooperate in informing the relevant supervisory bodies and the parties concerned whose personal data has been leaked.
8.1 In the event that a data subject wishes to exercise one of his or her statutory rights and makes a request to that effect to Procademy, Procademy will forward this request to the Customer. The customer will then take care of the handling of the request. Procademy may inform the person concerned of the forwarding of the request.
8.2 In the event that a data subject addresses a request to exercise one of his or her statutory rights to the Customer, Procademy shall, if the Customer so desires, provide reasonable cooperation if the Customer is unable to handle the request independently. Any costs associated with this will be borne by the Customer.
9.1 All personal data which Procademy receives from the Customer or which Procademy collects itself in the context of the Agreement, are subject to an obligation of confidentiality vis-à-vis third parties.
9.2 The duty of confidentiality referred to in the previous paragraph does not apply insofar as the Customer has given express permission to provide the personal data to third parties, if providing the personal data to third parties is necessary in the context of executing the Agreement, or if there is a legal obligation to provide the personal data to a third party.
10.1 The Customer has the right to have audits carried out by an independent expert third party who is bound to secrecy in order to check compliance with the obligations of Procademy arising from this Annex. The costs for this, including the reasonable costs incurred by Procademy for the audit, shall be borne by the Customer.
10.2 The audit referred to in the previous paragraph shall only be performed if the Customer has requested and evaluated any similar audit reports already available at Procademy , and has provided reasonable arguments to justify an audit initiated by the Customer. An audit is justified if the reports present at Procademy provide no or insufficient information on compliance with this appendix by Procademy.
10.3Procademy will cooperate in the audit and make all information reasonably relevant for the audit, including supporting data such as system logs, and employees available as soon as possible and in any event within a reasonable period.
10.4 The audit initiated by Customer will take place no earlier than 4 weeks after Customer's announcement. The parties will determine the exact date and time of the audit in consultation.
10.5 The Customer will perform an audit at Procademy no more than once a year, unless there is a concrete and demonstrable suspicion of non-compliance with the agreements in this appendix by Procademy.
10.6 The findings of the audit will be assessed by the Parties in mutual consultation and, as a result, may or may not be implemented by one of the Parties or jointly by the Parties.
11.1 In the event of termination of the Agreement, Procademy shall, without unreasonable delay, at the request and expense of the Customer, unless any statutory obligation to the contrary prevents it, either (i) return to the Customer the personal data of the Customer which are stored on the systems of Procademy , or (ii) erase them as soon as possible.
Inspection on request
Inspection on request