If you prefer a more traditional file format, you can download the Master Subscription Agreement as a PDF.
The purpose of this Agreement is to define the terms and conditions under which Dubrink provides access to and use of its Platform, as well as related Services, including subscription-based access, support, updates, and professional services. This Agreement establishes the rights and obligations of Customers in connection with the Platform and Services, ensuring compliance with applicable regulations, including CBAM Regulation.
Learn the meaning of the defined terms we use in our Master Subscription Agreement.
“Affiliate” means an entity that controls, is controlled by or shares common control with Customer, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock, by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.
“Business Hours” refers to the standard operating hours of 09:00-17:30 Central European Time (CET) / Central European Summer Time (CEST) (Amsterdam time).
“CBAM Regulation” refers to any law, regulation, or governmental mechanism that imposes a carbon price on imports based on their embedded emissions, with the objective of preventing carbon leakage and ensuring fair competition. This includes, but is not limited to, the EU’s CBAM (Regulation (EU) 2023/956), any amendments, replacements, or successor legislation, as well as similar mechanisms implemented in other jurisdictions, each with its own scope, requirements, and enforcement framework.
“Confidential Information” refers to non-public information disclosed or accessed under this Agreement, including but not limited to CBAM Data, Customer Data, Personal Data, business strategies, regulatory submissions, workflow processes, pricing terms under this Agreement, and authentication credentials for the Platform. It also includes any other information that is explicitly marked confidential or that a reasonable person would consider confidential in the context of CBAM compliance and regulatory obligations.
“CBAM Data” refers to any data, documents, records, or other information required for compliance with the CBAM Regulation, including but not limited to Import Data, Supplier Data, Emission Data, Declarations, and Certificates. This definition encompasses all data required under the CBAM Regulation, as amended, updated, or replaced from time to time, including any changes to data formats, reporting requirements, submission deadlines, and data retention periods as mandated by applicable regulatory authorities.
“Customer” means an entity that either purchases access to the Platform under an Order or is granted access and accepts this Agreement as a condition of registration. Each Customer is bound by this Agreement for its own use of the Platform.
“Customer Data” means any CBAM Data, Personal Data, or other information provided by the Customer or a Partner in connection with the use of the Platform.
“Deliverables” means all data, reports, records, documents, certificates, emission calculations, regulatory submissions, and other materials (whether in documentary, electronic, or other form) produced by, or on behalf of, Dubrink for the Customer as part of the Professional Services, provided they are identified as such in the applicable Statement of Work.
“Documentation” means the online user guides, and help and training manuals, set forth at https://www.dubrink.com/docs
“Dubrink” is a compliance management platform designed to streamline CBAM (Carbon Border Adjustment Mechanism) reporting and regulatory processes. It enables businesses to efficiently track, manage, and submit CBAM-related data while ensuring accuracy, transparency, and compliance with evolving regulations.
“Fees” means the amount to be paid for the Subscription and/or the Professional Services as detailed in the applicable Order.
“Intellectual Property” means any patents, patent rights, design rights, copyrights, database rights, trade secrets, know-how, trademarks, trade names, service marks and other intellectual property embodied in the foregoing, and all applications and rights to apply for registration or protection rights pertaining thereto, in existence at the date hereof or created in the future. Rights regarding Intellectual Property shall be referred to as “Intellectual Property Rights”.
“Order” means any purchase made by the Customer, including self-service transactions and Order Forms issued by Dubrink. The terms of this Agreement automatically apply to all Orders.
For enterprise subscriptions, Orders may include negotiated terms, but only if explicitly stated by Dubrink. Customer purchase orders do not override this Agreement or modify any Order, regardless of acknowledgment or performance.
“Partner” means a company that is authorized by a Customer to act on its behalf in connection with the use of the Platform. Partners may include, but are not limited to, customs representatives (direct or indirect), consultants, or other service providers assisting with CBAM compliance. If a Partner holds its own Subscription, the Partner is considered a Customer under this Agreement and is bound by the same terms as any other Customer.
“Personal Data” has the meaning ascribed to it under applicable data protection laws, including but not limited to any information relating to an identified or identifiable natural person.
“Professional Services” means the consulting, training, development, implementation or customization of information technology services and/or advice to be provided by Dubrink to the Customer on a time and materials or fixed price basis, as purchased in an Order and as detailed in the applicable Statement of Work. Professional Services do not include the provision of the Support and Updates included in a Subscription.
“Platform” means the online service provided by Dubrink for managing CBAM compliance, enabling the Customer and Supply Chain Actors to submit, track, and manage CBAM Data. The Platform includes all necessary features, tools, updates, and support.
“Statement of Work” means the document separately executed by the Parties or accepted by Customer in an Order that specifies the Professional Services and associated Fees and Deliverables.
“Subscription” means the joint provision of access to Dubrink’s Platform for CBAM compliance, including Platform licenses, Support, and Updates, as detailed in the applicable Order.
“Subscription Term” means the Initial Subscription Term and any Renewal Subscription Terms, as defined in Section 3.2 (“Subscription Term”).
Supply Chain Actors
“Supply Chain Actors” means any entities or individuals involved in the Customer’s CBAM compliance obligations, including but not limited to suppliers, consultants, customs representatives, logistics providers, and other relevant parties engaged in the movement, processing, or reporting of CBAM-covered goods.
“Support and Updates” means any Platform support and update services provided by Dubrink.
“Third-Party Action” means an action, demand, proceeding or lawsuit brought by a third party (including by a governmental entity) against a Party to this Agreement.
“Usage Data” means data related to the use, performance, configuration, functions, and environment of the Platform which has been anonymized to remove Personal Data.
“Users” are individuals authorized to access the Platform, either on behalf of the Customer or through a Partner, in connection with the Customer’s use of the Platform.
Each Subscription is obtained by placing or accepting an Order, whether through self-service purchase or an issued Order Form. Upon acceptance and payment of all applicable fees, Dubrink will provide the Subscription as outlined in the Order for the Subscription Term, subject to this Agreement.
Customers may purchase multiple Subscriptions by submitting additional Orders, each of which constitutes a separate contract unless explicitly stated otherwise.
If a Customer upgrades a Subscription, they will be charged the prorated difference for the remainder of the current Subscription Term. The upgraded Subscription will maintain the existing renewal date unless otherwise agreed in writing. Upon upgrade, the then-current terms of this Agreement shall replace and supersede any prior terms applicable to the Customer’s Subscription. Subscription downgrades will take effect at the start of the next Subscription Term, and no refunds or credits will be issued for unused portions of the current term.
Orders may be placed between (a) Dubrink and (b) the Customer or its Affiliates. If a Customer submits a purchase order to accept an Order, Dubrink rejects any additional or conflicting terms in that purchase order, even if acknowledged, accepted, or acted upon.
Each Subscription begins on the start date specified in the applicable Order and continues until the end date stated in the Order (the “Initial Subscription Term”).
For multi-year commitments, each year may be listed as a separate line item for administrative purposes only.
Unless otherwise stated in the Order, the Subscription will automatically renew for the same duration (each, a “Renewal Subscription Term”) with the same product configuration and quantity.
Renewal fees will be based on the amount specified in the Order. If no renewal fee is specified, Dubrink will provide notice of the renewal price at least 60 days before the current Subscription Term ends. Either party may cancel renewal by giving written notice at least 30 days before the Subscription Term ends.
Dubrink grants Customer a limited, worldwide, non-sublicensable, non-exclusive, non-transferable license to access and use the purchased Subscription during the Subscription Term, solely for Customer’s own business activities in accordance with this Agreement.
Customer may allow internal and external users, including authorized Partners, to access the Platform, but only within the scope of the Customer’s Subscription. Partners do not receive a separate license and may use the Platform solely on behalf of the Customers who have granted them access and for no other purpose.
If a Partner holds its own Subscription, the Partner is considered a Customer under this Agreement and is bound by the same terms as any other Customer.
Customer is responsible for ensuring that usage aligns with their Subscription plan. Dubrink may monitor usage and charge additional fees if Customer exceeds its Subscription limits, as specified in the applicable Order.
Dubrink retains all rights not expressly granted in this Agreement.
Unless expressly authorized under this Agreement or with Dubrink’s prior written consent, Customer may not (and shall not permit any third party to):
Circumvention of Restrictions – Use the Subscription in a manner designed to intentionally circumvent contractual usage limitations.
Unauthorized Distribution – License, sublicense, sell, resell, rent, lease, transfer, distribute, or otherwise make the Subscription available to third parties, except as expressly permitted under a valid Use Authorization.
Competitive Use – Access the Subscription for the purpose of developing, operating, or providing products or services that compete with the Subscription.
Reverse Engineering – Disassemble, decompile, reverse engineer, or otherwise attempt to derive the source code or underlying components of the Subscription.
Modification and Derivative Works – Copy, modify, create derivative works from, or otherwise alter the Subscription, except as expressly permitted in this Agreement.
Proprietary Notices – Remove, obscure, or modify any copyright, trademark, or other proprietary notices contained within the Subscription.
Unauthorized Access – Access, interfere with, or disable any Dubrink or third-party data, software, or network, except for Customer’s authorized use of the Subscription Service as permitted under this Agreement.
Customer shall not, and shall not permit any third party to, use the Platform to display, store, process, or transmit any content that:
Harmful or Harassing Conduct – Threatens, harasses, menaces, or causes harm to any person or property.
Obscene or Defamatory Material – Includes false, defamatory, harassing, obscene, or otherwise unlawful material.
Privacy Violations and Hate Speech – Violates privacy rights or promotes discrimination, bigotry, racism, hatred, or harm against any individual or group.
Malicious Code and Spam – Introduces or distributes viruses, malware, trojan horses, or other harmful code; or constitutes spam, junk mail, or chain letters.
Intellectual Property Violations – Infringes upon any third party’s intellectual property rights.
Unauthorized Promotion and Commercial Use – Uses the Platform to advertise, market, or promote any products, services, or entities without Dubrink’s prior written approval, including but not limited to unauthorized endorsements, sponsorships, or partner offerings.
Legal Violations – Violates any applicable laws, regulations, or ordinances.
Upon request and execution of an Order, Dubrink shall provide Professional Services to Customer as outlined in the applicable Statement of Work. Unless otherwise specified in the Statement of Work, all Professional Services shall be delivered remotely during normal Business Hours
If a Statement of Work specifies that Professional Services will be provided on-site, Customer shall, in addition to the Fees in the applicable Order, reimburse Dubrink for all reasonable costs and expenses incurred in connection with the services. Such expenses include, but are not limited to, travel, lodging, meals, and other necessary out-of-pocket costs (“Expenses”), as detailed in the applicable Statement of Work. Dubrink shall invoice Expenses as specified in the Order, and Customer shall pay them in accordance with the terms of this Agreement.
Any changes to the Professional Services, including scope, fees, or expenses, shall be valid only if agreed to in writing by both Parties.
Customer shall cooperate reasonably and in good faith with Dubrink in the execution of Professional Services by:
Allocating Resources – Providing sufficient resources and completing necessary tasks on time to enable Dubrink to fulfill its obligations.
Providing Required Materials – Delivering any materials or fulfilling specific obligations outlined in each Order in a timely manner.
Responding Promptly – Addressing Dubrink’s reasonable inquiries related to the Professional Services without undue delay.
Engaging in Meetings – Actively participating in relevant scheduled meetings.
Providing Accurate Information – Supplying complete, accurate, and timely information, data, and feedback in all material respects.
If a Deliverable is specified in a Statement of Work, it will be considered accepted upon delivery unless the applicable Statement of Work defines specific acceptance criteria and an acceptance testing process.
Dubrink provides products and consulting services to multiple clients, including services similar to those delivered to the Customer. Dubrink may continue using its general knowledge, skills, tools, and methods (“Residual Knowledge”), whether developed before or during this Agreement.
This Agreement does not prevent Dubrink from creating similar original works for other clients, as long as it does not use or disclose the Customer’s Confidential Information or Customer Data. Any retention of Residual Knowledge will be unintentional and without direct copying.
Customer shall pay Dubrink the Fees specified in the applicable Order without deduction. All Fees listed in an Order are exclusive of applicable taxes, duties, or similar charges imposed by law.
Customer shall be responsible for paying or reimbursing Dubrink for any applicable sales tax, value-added tax (VAT), duties, or similar assessments, except for Dubrink’s income taxes. Such amounts shall be charged at the appropriate rate and itemized separately on the invoice.
All Fees are payable to Dubrink and due within 30 days from the date of the receipt of the invoice, unless otherwise specified in the applicable Order. For online purchases, payment is due at the time of purchase in the currency specified in the Order.
Except as expressly stated in this Agreement, all payments are non-refundable once made.
Payment Disputes
If Customer has a reasonable, good faith basis for disputing any Fees due to Dubrink’s failure to fulfill its obligations under this Agreement, Customer must notify Dubrink in writing on or before the invoice due date. Customer may withhold payment only for the disputed portion of the Fees and must pay all undisputed amounts in full.
Late Payments and Fees
All undisputed amounts not paid by the due date shall accrue a late fee of 1% per month, calculated from the due date until paid in full.
Suspension of Services
Dubrink may suspend Customer’s access to services due to non-payment as follows:
Platform: Immediate suspension if payment is not received by the due date.
Professional Services: Suspension if payment is not received within 14 days of the due date.
Non-payment for Professional Services may impact Platform access, and non-payment for Platform Fees may impact Professional Services.
If any undisputed amount remains unpaid beyond thirty (30) days, Dubrink may terminate this Agreement pursuant to Section 9 (“Term and Termination”).
Understand what intellectual property rights you retain under the agreement and what intellectual property rights are retained by Dubrink.
All Intellectual Property Rights in and to the Platform and Professional Services are owned by Dubrink. Customer shall not acquire any proprietary right, title, or interest in or to any Intellectual Property Rights in the Platform or Professional Services. All rights not expressly granted by Dubrink in this Agreement or the applicable Order are reserved.
All Intellectual Property Rights in Customer Data is and shall remain the exclusive property of Customer, subject to the terms of this Agreement. Unless expressly stated otherwise in this Agreement, Dubrink does not acquire any ownership rights, title, or interest in Customer’s Intellectual Property Rights related to the Applications.
Upon full payment of all agreed Fees and Expenses, Customer shall also own all Intellectual Property Rights in the Deliverables, subject to the terms and conditions of this Agreement.
The Parties agree that Dubrink may collect and use Usage Data internally for statistical analysis, troubleshooting, product improvement, and compliance verification. Dubrink’s use of such data shall be subject to the confidentiality obligations outlined in Section 8 (“Confidential Information and Personal Data”).
Customer, its Affiliates, and their respective employees, contractors, and agents may, at their sole discretion, provide suggestions, ideas, or feedback (collectively, “Feedback”) to Dubrink regarding the Subscription.
Dubrink may use such Feedback perpetually and irrevocably to improve its products and services, without compensation or obligation to Customer, provided that the Feedback (i) does not contain Personal Data, (ii) does not include Customer’s Confidential Information; and (iii) does not identify Customer as the source.
Any Feedback is provided by Customer “as is” without warranty of any kind.
During the term of this Agreement and for three (3) years following its termination, each Party shall hold in confidence and shall not use or disclose the other Party’s Confidential Information for any purpose unrelated to this Agreement.
Disclosure is permitted only to the receiving Party’s employees, agents, or contractors who (i) have a legitimate need to know and (ii) who are subject to confidentiality obligations at least as restrictive as those in this Agreement).
Each Party agrees to take all reasonable steps to ensure that the Confidential Information is not disclosed or distributed by its employees, contractors, or agents in violation of the terms of this Agreement.
Either Party may disclose the other Party’s Confidential Information:
(i) in response to a valid order or request by a court or other governmental or regulatory body, (ii) as otherwise required by law, or (iii) as necessary to establish its rights under this Agreement. The disclosing Party shall promptly notify the other Party of such disclosure and allow the other Party to object or seek a protective order, to the extent permitted by applicable law.
The obligations under this Section 8 (Confidential Information and Personal Data) shall not apply to Confidential Information that:
is or becomes part of the public domain through no act or omission of the receiving Party
was lawfully in the receiving Party’s possession without restriction before disclosure and was not obtained directly or indirectly from the disclosing Party
is lawfully disclosed to the receiving Party by a third party without restriction on disclosure
Is independently developed by the receiving Party without access to the Confidential Information.
Except as otherwise authorized or required in furtherance of this Agreement, upon request by the disclosing Party, the receiving Party shall, at its option:
Destroy all Confidential Information and certify its destruction in writing, or
Return all Confidential Information, including all documents or media containing such information, as well as any copies or extracts thereof.
However, the receiving Party may:
Retain copies of automatically archived or backed-up records created as part of routine IT processes.
Retain a back-up copy of Confidential Information if required by law, regulation, or internal compliance policies.
Dubrink processes Personal Data in connection with this Agreement and shall do so in compliance with applicable data protection laws. All such processing shall be governed by the Data Processing Addendum (“DPA”), which is incorporated by reference into this Agreement.
The Parties agree that the DPA shall be binding and, where applicable, shall take precedence over this Agreement.
This Agreement shall be effective as of the Effective Date and shall continue until all Orders have expired or been terminated, unless earlier terminated in accordance with Section 9.2 (“Termination for Cause”) or Section 9.3 (“Termination for Insolvency”).
Each Order shall have its own subscription term, which shall automatically terminate at the end of the term unless renewed in accordance with the terms of the applicable Order. Orders are non-cancelable and remain in effect for the full subscription term unless terminated in accordance with this Agreement.
This Agreement may be terminated immediately by either Party with written notice if the other Party materially breaches any warranty, term, or covenant of this Agreement and fails to cure such breach within 30 days after receiving written notice of the breach.
The Agreement may be terminated immediately by either Party if the other Party (i) is dissolved, liquidated, or takes any corporate action for such purposes; (ii) becomes insolvent, is generally unable to pay its debts, or fails to pay its debts as they become due; (iii) files or has filed against it a petition for bankruptcy (voluntary or involuntary) or otherwise becomes subject to any proceeding under any bankruptcy or insolvency law (domestic or foreign); (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court or competent jurisdiction to take charge of or sell any material portion of its property or business.
Access Upon termination or expiration of a Subscription, the Customer’s access to the Platform and all associated services will be revoked. The Customer will no longer have access to the platform or its stored Customer Data, except as outlined in Section 9.4 (ii).
Customer Data Retrieval Customers may request to export their Customer Data by submitting a written request. Dubrink and Customer shall engage in good faith discussions to determine a reasonable process for data export, which may include settlement of any outstanding Fees under this Agreement.
Dubrink will provide instructions for retrieving Customer Data, and the parties will use best efforts to complete the export within a reasonable timeframe following termination of the Subscription. Dubrink may thereafter permanently delete any remaining Customer Data, except where retention is required by law or otherwise agreed in writing.
Fees
If Dubrink terminates this Agreement under Section 9.2 (“Termination for Cause”) or Section 9.3 (“Termination for Insolvency”), the Customer remains liable for all outstanding Fees accrued prior to termination. Dubrink will invoice any unpaid amounts, which must be paid in accordance with the Agreement’s payment terms.
If the Customer terminates this Agreement under Section 9.2 (“Termination for Cause”) or Section 9.3 (“Termination for Insolvency”), Dubrink will refund any prepaid Fees for the unused portion of the Subscription Term, calculated on a straight-line prorated basis. However, termination does not relieve the Customer of its obligation to pay any outstanding amounts due to Dubrink.
Additional Remedies
Termination or expiration does not limit either party’s right to pursue any other remedies available under this Agreement, at law, or in equity.
Dubrink represents and warrants that (i)
Dubrink has all necessary rights to grant the licenses provided in this Agreement and the applicable Order
Platform shall operate in material compliance with the Documentation
Support for the Platform will be provided in accordance with the Support Terms. In the event of a breach of the warranties under Section 10.1(i) or 10.1(ii), Dubrink shall, as its sole obligation and entire liability and Customer’s exclusive remedy, at Dubrink’s sole option and expense, modify or replace the portion of the Platform in a manner that is compliant with the applicable warranty, or, in the event Dubrink is unable to do so after using commercially reasonable efforts, terminate all or part of the applicable Order. Upon such termination, Dubrink shall refund Customer all Fees paid for the non-compliant portion of the Platform for the remainder of the Subscription Term. Claims under the warranties under Section 10.1(i) or 10.1(ii) must be submitted by Customer in writing within 30 days of first becoming aware of non-compliance with the applicable warranty. In the event of a breach of the warranty in Section 10.1(iii), the Service Credits described in the Support Terms shall be Dubrink’s sole obligation and entire liability and Customer’s exclusive remedy.
Dubrink represents that Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. In the event of a breach of the foregoing warranty, Dubrink shall, as its sole obligation and entire liability and Customer’s exclusive remedy, at Dubrink’s sole option and expense, re-perform the applicable Professional Services in a manner that is compliant with such warranty, or, in the event Dubrink is unable to do so after using commercially reasonable efforts, terminate all or part of the applicable Order. Upon such termination, Dubrink shall refund Customer all Fees paid for the non-compliant Professional Services. Claims under the foregoing warranty must be submitted by Customer in writing within 30 days of the performance of such Professional Services.
Dubrink will implement and maintain administrative, physical, and technical safeguards to protect Customer Data in accordance with its Information Security and Business Continuity policies. These safeguards are part of Dubrink’s ongoing ISO 27001 certification process, ensuring compliance with industry-recognized security standards.
Dubrink does not warrant that the Platform, Support, Professional Services, or Deliverables will be uninterrupted, error-free, or completely secure from malicious attacks by third parties. Customer acknowledges that there are risks inherent in internet connectivity that could result in the loss of customer’s privacy, Confidential Information, and/or Customer Data. Except as set forth in Section 10 (“Warranties”) and to the maximum extent permitted by applicable law, Dubrink provides the Platform, Support, Professional Services, and Deliverables “as is,” without warranty of any kind, including but not limited to, express, implied, statutory, or other warranties or conditions, including warranties of merchantability, satisfactory quality, fitness for a particular purpose, and those arising out of course of dealing, usage, or trade. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership of all Customer Data.
Dubrink shall indemnify, defend, and hold harmless Customer from and against any third-party claims, damages, liabilities, costs, and expenses (including reasonable attorney’s fees) to the extent arising from (a) an allegation that the Platform or Deliverables, as provided by Dubrink, infringe any intellectual property right of a third party; or (b) Dubrink’s gross negligence, willful misconduct, or violation of applicable law.
Dubrink shall have no obligation to indemnify Customer for claims arising from (i) Customer’s misuse of the Platform, (ii) unauthorized modifications to the Platform, (iii) Customer’s combination of the Platform with third-party products or services not provided by Dubrink, or (iv) Customer’s failure to comply with Dubrink’s documentation and guidelines.
Compliance with Customer’s instructions or specifications, including any requested modifications or integrations with third-party systems.
Unauthorized use, reproduction, or distribution of the Platform or Deliverables by Customer, its affiliates, sub-distributors, or end users.
Use of the Platform or Deliverables in combination with third-party products, equipment, software, or data not supplied or approved by Dubrink.
Use of the Platform or Deliverables in a manner not contemplated by this Agreement or not in accordance with Dubrink’s Documentation or guidelines.
Use of outdated versions of the Platform or Deliverables where Dubrink has provided an updated version to address potential infringement claims.
Modifications to the Platform or Deliverables by anyone other than Dubrink or its authorized agents.
Remedies
If the Platform or Deliverable becomes, or in Dubrink’s reasonable opinion is likely to become, the subject of an Infringement Claim or a claim arising from Dubrink’s failure to comply with applicable law, Dubrink shall, at its own expense and within a reasonable timeframe:
Obtain for Customer the right to continue using the Platform or Deliverables under the terms of this Agreement;
Modify or replace the Platform or Deliverables to be non-infringing and legally compliant, provided the modifications do not materially reduce functionality; or
If neither of the above is commercially feasible, terminate the Customer’s access to the infringing or non-compliant portion of the Platform and refund any prepaid fees for the affected portion of the Services.
Customer will defend, or at its option settle, at its own expense, any Third-Party Action against Dubrink, and pay all damages finally awarded against Dubrink by a court of competent jurisdiction or agreed to in a settlement approved by Customer in writing, to the extent that the Third-Party Action is based on a proven claim that
Customer Data infringes any valid and enforceable intellectual property rights of a third party
Customer Data being processed, stored, or transferred in violation of applicable Data Protection Laws, as outlined in the DPA
The foregoing obligations are conditioned on the indemnified party:
To the maximum extent permitted by applicable law, in no event shall either party be liable to the other for any incidental, indirect, special, punitive, or consequential damages (including, without limitation, loss of profits, goodwill, market capitalization, or the cost of procurement of replacement goods or services), or for any loss of use or loss of data that does not arise from that party’s gross negligence or willful misconduct, whether under theory of contract, tort (including negligence), or otherwise, even if a party has been advised of the possibility of such damages in advance.
The foregoing limitations shall not limit either party’s liability for breach of its confidentiality obligations, data protection obligations, or its indemnification obligations.
Dubrink maintains adequate insurance coverage appropriate to the nature of the Services provided under this Agreement.
Dubrink will not be liable for:
Service Suspension or Termination - Any inability to use the Subscription or Deliverables resulting from a valid suspension or termination, including for non-payment, as permitted under this Agreement.
Customer Data Risks - Any unauthorized access to, damage or alteration to, deletion or destruction of, or failure to store or backup, Customer Data due to Customer’s negligent acts or omissions.
General. Notwithstanding any other provision in this agreement (and excluding professional services, addressed in the section below), each party’s total aggregate liability under this agreement and the other party’s sole and exclusive remedy for any claim of any type whatsoever shall be limited to direct damages caused by the party’s negligence in an amount not to exceed the amounts due or paid to Dubrink under this agreement during the twelve (12) months immediately preceding the date of the claim.
Professional Services. Dubrink’s total aggregate liability and customer’s sole and exclusive remedy for any claim of any type whatsoever, arising out of professional services provided under this agreement, shall be limited to direct damages caused by Dubrink’s negligence in an amount not to exceed the amounts paid to Dubrink for the professional services under the applicable order.
The limitations of liability set forth in Section 12.3 will not apply to a party’s indemnification obligations or direct damages due as a result of either party’s fraud, gross negligence, or willful misconduct.
No party shall be liable for, or considered to be in breach of this agreement on account of, any failure or delay in performance of any of its obligations under this agreement if such failure or delay is due to acts of God, fires, flood, storm, explosions, earthquakes, acts of war or terrorism, riots, insurrection, pandemic, intervention of any government or authority, sophisticated, nation-state, massive infrastructure or zero-day attacks, or any other reason where the failure to perform is beyond the reasonable control of and not caused by the negligence or intentional acts or omissions of the non-performing party.
The provisions of this Section 12 allocate risks under this agreement between Customer and Dubrink. Dubrink’s fees for the subscription and/or professional services reflect this allocation of risks and limitation of liability.
Understand the other industry standard provisions which govern our relationship.
This agreement, including all addenda (if any) and all orders, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to, supplement, or modification of this agreement will be binding unless in writing and signed by duly authorized representatives of both parties, except that Dubrink reserves the right at any time to update any terms and conditions referenced in this agreement by means of a hyperlink, to reasonably reflect the forward evolution of its operating processes to remain in line with industry standards and improvements to the Platform. None of these updates will materially diminish the rights and obligations of the customer under this agreement or any hyperlinked document. The customer acknowledges and agrees that it has had the opportunity to review all the documents contained in a URL prior to executing this agreement, which it can print for its internal records. In the case of conflicts, discrepancies, errors, or omissions among the agreement, any addenda, and any order and/or statement of work, the documents and amendments to them shall take precedence and govern in the following order: (a) any order and/or statement of work (with respect to that order and/or statement of work only); (b) addenda (if any); and (c) this agreement.
The caption and the headings to clauses, sections, parts, paragraphs, and orders are inserted for convenience only and shall be ignored in interpreting this agreement.
This Agreement (including its interpretation, validity, and enforcement) and the relationship between the Parties regarding the matter hereof shall be governed by and construed in accordance with Dutch law.
In the event of a dispute or disagreement arising from this Agreement, the Parties agree to initially pursue the IT Mediation Regulations of the Stichting Geschillenoplossing Automatisering (SGOA) in The Hague.
Both Parties consent to the exclusive jurisdiction in the courts of Rotterdam.
The parties agree that, in connection with the performance of this agreement, each party shall comply with all laws applicable to such party’s respective performance under this agreement, including, without limitation, all applicable anti-corruption laws, anti-money laundering laws, antitrust laws, economic sanctions laws, export control laws, data protection and data privacy laws, and modern slavery and human trafficking laws.
Customer agrees that the use of the Platform (including related documentation) and Professional Services will comply with all applicable export control and trade sanctions laws, rules, and regulations, including the regulations promulgated by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “export laws”). Customer represents and warrants that customer is not (i) located or resident in a country or territory that is subject to comprehensive U.S. trade sanctions or other significant trade restrictions (including, without limitation, Cuba, Iran, North Korea, Syria, and the Crimea region, Donetsk People’s Republic region, and Luhansk People’s Republic region of Ukraine) (collectively, the “sanctioned countries”); or (ii) identified on any U.S. government restricted party lists (including, without limitation, the Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, and Sectoral Sanctions Identifications List, administered by OFAC, and the Denied Party List, Entity List, and Unverified List, administered by BIS) (collectively, the “restricted party lists”). Customer further certifies that customer will not, directly or indirectly, export, re-export, transfer, or otherwise use the Platform (nor any direct product thereof) and/or the professional services in violation of the export laws, or with any purpose prohibited by the same export laws, in any sanctioned country, to any person or entity on a restricted party list, or for any nuclear, chemical, missile, or biological weapons-related end uses. Customer acknowledges that the Platform and/or Professional Services, or any feature or part thereof, may not be available for use in all jurisdictions and that customer is responsible for complying with applicable export laws wherever customer uses the Platform and/or Professional Services. Notwithstanding Section 9.2 (“Termination for Cause”) above, Dubrink shall have the right to terminate this agreement, without notice and without liability, for any breach of this clause.
Any notice, consent, approval, or other communication intended to have legal effect to be given under this agreement (“notices”) must be in writing and will be delivered (as elected by the party giving such notice):
(i) if provided to Dubrink, by email to [email protected], or if provided to customer, to the email address of the customer provided in the order under the “ship to” address; (ii) by registered mail; or (iii) by overnight courier with proof of signature upon delivery. Unless otherwise provided in this agreement, all notices will be deemed effective upon receipt, or the next business day if received outside Business Hours. Notices under this agreement will be sent to the contact and addresses set forth in the signature sections of this agreement and/or in the applicable order. Either party may change the address to which notices shall be sent by giving notice to the other party in the manner provided in this Section 13.7. Notices shall be written in the English language.
The parties are independent contractors, not agents, employees, or joint ventures of one another, and do not have any authority to bind the other party, by contract or otherwise, to any obligation. Neither party will represent to the contrary, either expressly, implicitly, by appearance, or otherwise.
This agreement is not assignable or transferable by either party without the prior written consent of the other party, which shall not be unreasonably withheld, except that either party may freely assign or transfer this agreement to any company that is an affiliate or as a result of a merger or a sale of all or a substantial part of its assets or share capital. If the permitted assignment or transfer by a party is to a direct competitor of the other party, such other party may terminate this agreement upon written notice, subject to, as applicable, payment by customer of all fees due up through the effective date of such termination or refund by Dubrink of any portion of prepaid fees which relate to the period after the effective date of such termination. In the case of any permitted assignment or transfer of or under this agreement, the assigning or transferring party will provide notice to the other party promptly following such assignment or transfer, and this agreement and any existing orders and statements of work shall be binding upon and inure to the benefit of the assignees, transferees, successors, executors, heirs, representatives, and administrators of the parties to this agreement. Any permitted assignment or transfer by customer of any order which contains a subscription that is unlimited in volume in any respect will be limited to the applications which were deployed by customer in production at the time of the assignment or transfer and the volume of use of those applications in effect at that time. Any attempt by either party to assign or transfer this agreement in violation of this Section 13.9 shall be void.
If for any reason a court of competent jurisdiction finds any provision of this agreement (including all orders and addenda, if applicable), or portion thereof, to be unenforceable, that provision of the agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this agreement or of the provision will continue in full force and effect, except to the extent such invalid provision or part of the provision relates to essential aspects of the agreement. The parties agree that such provision or portion thereof shall be substituted by a provision with an equivalent legal and economic effect.
No waiver will be implied from conduct or failure to enforce or exercise rights under this agreement, nor will any waiver be effective unless in writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other form employed or provided by customer will supersede the terms and conditions of this agreement and any order executed with customer, and any such document relating to this agreement and any order shall be for administrative purposes only and shall have no legal effect other than to evidence customer’s acceptance of any order.
Customer agrees that Dubrink may use customer’s name and logo and indicate that customer is a client of Dubrink on its website, in any public filings, and through its marketing materials, including but not limited to press releases, case studies, white papers, and webinars. Any such attribution will be consistent with customer’s style guidelines or requirements as communicated to Dubrink from time to time.
Clauses and/or Sections 4.2 (“Restrictions of Use”), 7 (“Intellectual Property Rights”), 8 (“Confidential Information and Personal Data”), 9.4 (“Effect of Termination”), 10.4 (“Disclaimer of Warranties”), 11 (“Indemnification”), 12 (“Limitation of Liability”), and 13 (“General Provisions”) of this agreement shall survive termination, without prejudice to other obligations that, pursuant to the applicable law or to this agreement, shall also remain in force after the termination date.