TenWise General Terms and Conditions
GENERAL TERMS & CONDITIONS TenWise B.V. (September 2020)
TenWise B.V. (TenWise) provides services in the field of biomedical data analysis and text mining. In these general terms & conditions, an assignment means an agreement between TenWise and a (legal) person including these applicable general terms & conditions (“Assignment”). In these general terms & conditions a client means a (legal) person that TenWise provides services to as part of the Assignment (“Client”).
An Assignment is constituted by either the written acceptance of a written engagement letter or agreement or the actual commencement of the work under an Assignment. An Assignment can also include Licenses and Subscriptions. A License is defined as obtaining direct access to TenWise databases such as (but not limited to) KMAP REST-API. A Subscription is defined as obtaining access to TenWise databases such as (but not limited to) KMAP through a User Interface (UI) provided by TenWise such as (but not limited to) KMINE Literature Explorer. These general terms and conditions apply to all Assignments.
The Client, unless specifically agreed otherwise, exclusively appoints TenWise to perform a specific Assignment. TenWise decides, notwithstanding the provisions of article 7:404 Dutch Civil Code (“Art. 7:404 BW”)1, which person or persons (“Consultant”), employed by TenWise, will be involved in the execution of an Assignment. TenWise may not use third parties to perform services in connection with an Assignment, without Client’s consent. In case a third party, after Client’s consent, is engaged by TenWise to perform any part of services under the Assignment, TenWise undertakes, nonetheless, to be solely responsible for such engagement and the actions/non actions of such third party.
The Consultant(s) will execute an Assignment in accordance with his/their best professional opinion and capabilities and will use reasonable efforts to complete the assigned tasks for the benefit of the Client.
TenWise warrants that the Consultant(s) will execute an Assignment in accordance with i) all applicable laws, rules and regulations and ii) generally accepted and applicable professional standards for subject services
The Client will timely provide the Consultant(s) with complete and accurate information reasonably necessary to correctly complete an Assignment and to inform the Consultant(s) about any facts or circumstances that are relevant for a proper execution of an Assignment.
TenWise is only liable for shortcomings in the execution of an Assignment to the extent this is due to any material breach of a term of the Assignment, gross negligence or intent in relation to the execution of an Assignment. TenWise will never be liable for any damage resulting from the failure of the Client to timely provide complete and accurate information.
The liability for any shortcomings in the execution of an Assignment will be limited to the amount of the fee that TenWise has received in relation to an Assignment. Any claims of the Client in this respect shall be filed within one (1) year following the occurrence of the shortcoming failing of which will lead to expiration of any such claims. In no event will TenWise be liable for consequential damages.
TenWise acknowledges that information disclosed by the Client may constitute IP or trade secrets that should be kept confidential. TenWise undertakes to keep any confidential information disclosed by the Client in connection with an Assignment secret and to secure that its employees, partners and associates are also bound by this obligation.
Any intellectual property resulting from an Assignment is the property of TenWise, unless the nature of the Assignment reasonably requires that any intellectual property generated by the Consultant(s) is assigned to the Client. In case the intellectual property generated under an Assignment will be assigned to the Client, TenWise and the Client will have made appropriate written arrangements therefore prior to commencement of the Assignment.
TenWise and Client are independent contractors under this Assignment. Neither party will have any express or implied power to enter into any contracts or commitments or to incur any liabilities in the name of or on behalf of the other party or to bind the other party in any respect.
TenWise shall defend, indemnify and hold the Client harmless from and against any and all claims by third parties relating to the services of TenWise in the execution of an Assignment.
The Client shall defend, indemnify and hold TenWise harmless from and against any and all claims by third parties relating to the Client’s and/or its subsidiaries use of the results of the services of TenWise in breach of any term of an Assignment.
In case of Licenses and/or Subscriptions the following duration and termination rules apply:
10.1 The License and/or Subscription is valid for 12 months after the date of a written engagement letter or agreement or the actual commencement of the work under an Assignment, whichever comes first.
10.2 Both Parties agree on automatic renewal of the term of this Agreement with another 12 months after each term of 12 months has expired. Each renewal is regarded as a new Assignment under these General Terms & Conditions.
10.3 If Client decides to terminate the License and/or Subscription a written notification should be sent to TenWise at least one month before the renewal date.
10.4 If TenWise decides to discontinue the services under this License and/or Subscription for a reason other than the breach of use by Client as stated in Article 12, TenWise will notify Client at least 2 months prior to termination of the services. TenWise will refund the fee for this period proportional to the yearly fee.
10.5 TenWise can provide these services as long as MEDLINE abstracts and publicly domain vocabularies are provided by their suppliers under the current terms. In case these terms change, TenWise has the right to pass thru limiting terms or changing required fees based on a written substantiation provided by TenWise.
10.6 Changes under 10.5 must be communicated to Client before they affect an ongoing Assignment and Client may terminate an affected Assignment if it does not wish to accept the changes. In case of termination Client shall be refunded in proportion to the time remaining under the current Assignment.
11.1 Client is free to use and share the results of the applications of TenWise software or Clients’ software with third parties, including but not limited to: Excel files, PowerPoint files, dedicated html pages and analysis reports, provided that a reference to TenWise and its Technology is made in such communication with third parties.
11.2 Client may not redistribute underlying TenWise codes, KMAP database and underlying TenWise ontologies (both proprietary and non-proprietary) or parts of databases to third parties without prior written consent of TenWise.
The validity, construction and performance of these general conditions, any other agreement relating to an Assignment or the relationship between TenWise and the Client shall be governed by and construed in accordance with the laws of the Netherlands. Any dispute relating thereto shall be finally and exclusively settled by the competent courts in The Netherlands.