VirGeo® Terms of Use

The VirGeo® geo-data platform ("VirGeo® Platform" or “VirGeo®”) is provided by Fugro as a data management platform for organisation of project data and information.

These general terms and conditions apply to any and all Subscriptions and the use and access of the VirGeo® Platform by the User. By clicking the “I Agree” button or by proceeding with access to the VirGeo® Platform, the User (through its Authorised person) enter into a legally binding agreement with Fugro Technology B.V. a private limited liability company, having its registered office at Prismastraat 3, 2631 RT Nootdorp, the Netherlands (Chamber of Commerce registration number 14614376) (“Fugro”). The terms and conditions of the User are explicitly rejected by Fugro.

1. Definitions

“Authorised Person” means any natural person employed by, appointed by or authorised by the User to access and use the Service for and on behalf of the User. The number of Authorised persons shall be included on the Subscription.

“Confidential information” means any non-public information or information of proprietary nature (either or both), regardless in which form, from a party, such as (without limitation) business, financial or technical information, data, information, samples, documents related to products, technologies, know- how, trade secrets, marketing activities, business relations, business and product development, etc., which may be disclosed prior to and during the term of the Service to the other party. Information that (i) is lawfully known to the party prior to the time of disclosure by the other party; (ii) becomes public, through no fault of the party who received the Confidential information; (iii) is received lawfully from a third party, who has not obtained the Confidential information directly or indirectly from the disclosing party; or (iv) is developed by the party who received the information wholly independently as a result of its own efforts, is not considered to be Confidential information.

“Force majeure” means an event outside the reasonable control of a party, which could not reasonably be foreseen on entering into the Subscription or could not reasonably be provided for by the party affected by the Force majeure event. A Force majeure event includes (without limitation) extreme weather conditions, natural disasters, epidemics, pandemics, war, government measures, sabotage, terrorism, non-availability or late availability of licenses, import and export restrictions, labour disturbances, lock down, electricity failures, network and/or internet failures, cyber-attack, failure to perform or delay on the part of Fugro's supplier(s), late or insufficient availability of materials, transport or labour (or any or all of them), vandalism (including cyber vandalism), theft, incompatibility of the Service with the hardware and/or software systems of the User, etc.

“Intellectual property rights” mean any inventions, technical information, know-how, trade secrets, drawings, models, calculations, specifications, testing procedures and results, software, copyright, trademarks, designs and the like, whether registered or unregistered and regardless of form (visual, oral, machine readable, etc.) and including the right to file any applications for registered rights and any license granted by any third party to use such rights.

“Primary Agreement” shall mean any main agreement between the User and any Fugro entity for the provision of certain services, wherein VirGeo® has been offered as a data management platform.

“Service” means the use of the VirGeo® geo-data management platform, related to the VirGeo® product(s) and the user interface features as provided from time to time on the platform.

“Subscription” refers to the access granted to authorised Users to use the Service for Subscription Term. This access is provided by any Fugro entity offering the VirGeo® Service as a data management solution to the User, under a Primary Agreement, during the tenure of the Primary Agreement, or through a direct agreement between Fugro and the User for the Service. In the event of a conflict between these terms and conditions and the Subscription, the terms of the Subscription shall prevail.

“Subscription Term” means the period during which the Service may be used, as included in the Subscription.

“User” means the entity entering a Subscription for the Service and responsible for payment for the Service. The User is typically a company or organisation that subscribes to the VirGeo® geo-data management platform.

“User data” means any data that is collected, uploaded, owned by, or that the User has the legal right to use, including data generated by the User through interactions with the Service

2. User right

• On entering into a Subscription for the Service, Fugro grants to the User a non-exclusive, non-transferable and non-sublicensable right to permit the Authorised Person(s) to use the Service, solely for the User’s internal business operations, during the Subscription Term. The right of use is subject to the condition precedent that (i) User has fully paid the Subscription fee, as applicable, in accordance with article 4 and (ii) User complies with these terms and conditions and the Subscription.

• The User shall provide Fugro with the e-mail addresses of the Authorised Persons, with the purpose of establishing access to the Service for those Authorised persons. Fugro may verify the identity of the Authorised Persons through User, if it appears that the Authorised Persons are not part of User’s organisation or not authorised by the User.

• Fugro shall reasonably endeavour to keep the Service available to the User, except in case of scheduled or unscheduled maintenance of the Service, or if a Force majeure event occurs.

• Fugro provides the Service on an “as is” basis, and not based on User’s requirements, and does not warrant that the use of the Service is uninterrupted, secure, without error or fit for any particular purpose. Fugro may provide access to third-party links, data and information provided that Fugro does not warrant the full functionality of such links, or the accuracy, completeness, or reliability of the information provided by third parties. User acknowledges and agrees that any reliance on third-party links and information is at their own risk. Fugro shall not be liable for any damages or losses arising from the use of or reliance on third-party links and information. Any warranty or representation regarding the Service, express or implied, is excluded. User acknowledges that Fugro may modify the features and functionality of the Service during the Subscription term.

• Wherever the User is based, Fugro shall provide the User with customer support services from Monday to Friday, between 9:00h-17:00h CET, except on national holidays in the Netherlands.

• The User shall:

  • Only make use of the Service in accordance with the hardware and network requirements as included in the data sheet and/or user manual provided by Fugro and in accordance with all the applicable laws and regulations.

  • Be exclusively responsible for the availability, suitability, interoperability and security of its hardware, software and network used to access the Service.

  • Provide all information in a timely manner to Fugro, which Fugro reasonably requires to execute the Service or to ensure that User complies with its obligations in connection to the Service.

  • Pay all Subscription fees and charges due under the Subscription, including any charges payable as a result of exceeding the maximum number of Authorised Persons indicated on the Subscription and any additional charges payable for use of the Service by unauthorised users.

    Ensure that individuals, who are not employed by or contracted to User or are otherwise not authorised to use the Service, are not granted access to the Service, unless with prior written consent from Fugro.

  • Ensure that each Authorised Person keeps a secure password for its use of the Service, keeps its password confidential and complies with the User’s obligations in relation to the Service.

  • Take all reasonable precautions to avoid that the Service, or the Fugro or VirGeo® products connected to the Service, become infected by any programmed code which may adversely affect the Service or product(s) or any other hardware, software, network, data in whole or part or otherwise.

  • Not attempt to copy, modify, frame, mirror, create derivative works from or display any portion of the Service in any form or by any means, or attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Service.

  • Shall not use, export, re-export, sell, or transfer, and shall not permit others to use, export, re-export, sell, or transfer any products or services provided under this Agreement in violation of any laws, regulations, sanctions imposed, or rules of any governmental authority, including but not limited to those of the United States, the European Union (including national and regional authorities), the United Nations, and the United Kingdom, as well as any applicable local laws.

• If the User violates its obligations under these terms and conditions or the Subscription, Fugro may immediately suspend the Service until the User has rectified the breach, or terminate the Service with immediate effect, without any liability towards the User.

• During the Subscription Term, the Service, as included in the Subscription, may not be amended by the User, unless Fugro allows otherwise.

3. User data

• The User shall be the owner of the User data and is exclusively responsible for the reliability and accuracy of the User data.

• Fugro shall provide a back-up of all raw User data during the Subscription until one (1) year after the Subscription expired or has been terminated. Fugro shall not be obligated to keep any processed User data, which has been provided to User during the Subscription term.

• The User hereby grants an irrevocable right of use to Fugro to use the User data, as anonymised data, (i) for own research & development and innovation purposes, (ii) to improve its products and services, (iii) for statistics, benchmarks, etc. in a database.

• User data does not include personal data. If personal data is to be processed as part of the Service, parties shall jointly determine if an additional agreement must be concluded to allow parties to comply with the applicable privacy legislation.

4. Subscription fee

• If a User subscribes to the Service as part of a Primary Agreement, the Service shall be provided free of charge for the duration of the Primary Agreement and for one (1) month after the expiry or termination of the Primary Agreement. Thereafter, if the User wishes to continue using the Service, the User shall be required to purchase a Subscription to the Service, which will follow the provisions outlined in this article 4.

• The User shall pay the Subscription fee as included in the Subscription prior to gaining access to the Service to the bank account indicated by Fugro. The Subscription fee is in Euro, fixed for the duration of the Subscription term and exclusive of taxes. If Fugro is obligated to pay taxes to tax authority in relation to the Services on behalf of the User, Fugro shall charge the User for such taxes.

• The Subscription fee includes access to the Service and regular customer support only, the latter at the sole discretion of Fugro. If Fugro incurs additional expenses in performing the Service, these expenses shall be charged in addition to the Subscription fee.

• On renewal of a Subscription term, Fugro may amend the Subscription fee, which shall be charged to the User accordingly. Fugro shall inform the User timely of any change in the Subscription fee.

• Fugro shall provide the User with an invoice on entering into the Subscription. If Fugro allowed for payment after the User has been granted access to the Service, payment by the User of any invoice from Fugro shall be made no later than thirty (30) calendar days after the date on the invoice and User waives any right it may have to set-off or to suspend payment. If the payment term has been exceeded, the User shall be in default with immediate effect and without further notice of default being required, and Fugro shall charge the commercial interest in accordance with Dutch law and may suspend the Service.

5. Intellectual property

• Any and all Intellectual property rights related to the Service including changes, modifications and improvements thereof are Fugro's exclusive property or Fugro supplier's property, as the case may be.

• The User does not acquire any Intellectual property rights in relation to the Service, but only receives User rights and User data ownership, as expressly granted by Fugro by these terms and conditions.

• If a competent court in a specific jurisdiction irrevocably establishes in legal proceedings against Fugro® that the Service infringes an intellectual property right of a third party, Fugro shall, at its discretion, replace or amend the Service in said specific jurisdiction in such way that does not infringe the right in question, or terminate the Service and refund the Subscription fee for the Subscription term where User was not able to exercise its User right.

• With respect to any infringement of third-party intellectual property rights, Fugro bears no obligation other than the obligation to replace or amend the Service, acquire User rights or to terminate and refund as referred to in the third paragraph of this article.

6. Liability

• The Service is provided exclusively as a data management platform and shall not be held liable for any delivery timelines or milestones stipulated in any Primary Agreement or otherwise. Any liabilities or obligations arising from the Primary Agreement shall not be transferred to or assumed by Fugro through the use of the Service.

• The User assumes the exclusive responsibility for the User data and results obtained from the use of the Service and for the further use of the User data and results. Fugro shall have no liability for any damage in this regard, except in respect where exclusion of damage is prohibited by applicable law.

• In no event, (except the that an exclusion is prohibited by law), shall Fugro be liable towards User for consequential damage, such as and without limitation, loss of profit, loss of production, loss of contract, loss of business opportunity, pure economic loss, loss of property, loss or corruption of data or information, disclosure of User data, loss due to fines, penalties, reputational damage or any other consequential damage however arising under the Subscription or otherwise.

• Fugro shall not be liable for any breach of the Subscription, unless User provides Fugro with a notice of default, including a detailed description of the default and a period for remedy not less than thirty (30) calendar days, and Fugro fails to remedy the default during the period of remedy. This paragraph does not apply if remedy is impossible or if this paragraph is not permitted by applicable law.

• If Fugro would be liable towards User in relation to the Service, such liability is limited to direct damage and to a maximum amount equal to the Subscription fee paid by User during the twelve (12) months immediately preceding the date on which the liability event occurred, to the extent permitted by applicable law.

• The User indemnifies Fugro for any claims, actions or otherwise from third parties in connection to the Service.

• User waives any liability claims towards Fugro one (1) year after the liability event. The limitation period for any claim under or in connection with this agreement however arising is one (1) year.

7. Force majeure

• In the event of Force majeure, the obligations of the non-performing party are suspended until the event is ended and that party has been reasonably be able to resume its obligations. The party affected by Force majeure shall inform the other party without undue delay of the Force majeure event. The party affected by Force majeure shall not be liable for any losses resulting from the Force majeure event incurred by the other party.

• If the Force majeure event continues for an uninterrupted period of one (1) month, either party may terminate the Service by written notice and with immediate effect. In that case, Fugro shall refund the Subscription fee for the part of the Service paid, but not yet performed.

8. Subscription term and termination

• Fugro shall provide the Service during the Subscription term as included in the Subscription, after which Service shall be renewed automatically for the same term. User will be notified of the renewal of Subscription thirty (30) days prior to the expiry of Subscription. Either party may terminate the Service prior to renewal by sending a notice of termination to the other party, taking into account a termination period of not less than one (1) month. If the terminating party fails to provide the notice of termination on time, the Subscription term shall be renewed automatically.

• The Subscription shall not be terminated without cause. Each party may terminate the Subscription in whole or part, and with immediate effect if the other party (i) is in material breach of its obligations ii) applies for suspension of payments, (iii) has been declared bankrupt (iv) ceases its business activities, or (v) any or all of them. A material breach shall only apply with regard to Fugro if Fugro fails to meet its obligations under article 6.3.

• In the event of termination or expiry of the Service, the User right in article 2 shall be revoked automatically and Fugro shall cease to provide the Service. Fugro is not obligated towards User to provide any User data in such event.

• On termination of the Service during the Subscription term, Fugro shall refund any Subscription fee already paid by the User covering the remaining Subscription term, unless the termination was caused by the User; or, if the Subscription fee has not been paid, User shall pay in full the pro rata Subscription fee which becomes due on the termination date.

• Any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages shall not be affected or prejudiced.

• Fugro shall keep the raw User data available to the for export or download for one (1) year after the effective date of termination or expiration of the Service. The User data may be deleted by Fugro after this period.

9. Confidentiality

• Each party shall protect the other’s party’s Confidential information from unauthorised use, access or disclosure in the same manner as each party protects its own Confidential information, but with no less than reasonable care. Each party may use the other party’s Confidential information solely for the purpose of the Service or to the extent allowed under these terms and conditions.

• If a party is required by law to disclose any of the Confidential information of the other party, the first party may disclose the Confidential information to the extent necessary, provided that it shall promptly notify the other party to allow that last party to take any legal measures to protect its interests.

• Fugro may use the User’s name and/or logo for use in connection with Fugro’s Service and to identify the User as a user of VirGeo®, for marketing, promoting, and advertising the Service, for use in customer references and for use in other activities related to Fugro’s VirGeo® business.

10. Applicable law

• The use of VirGeo® and any disputes arising out of or in connection with this Agreement or the use of VirGeo® (including non-contractual claims) are governed exclusively by Dutch law. The U.N. Convention on Contracts for the International Sale of Goods (also known as the CISG) does not apply in this regard.

• All disputes – including those regarded as such by only one of the parties – regarding the Subscriptions shall in the first instance be settled exclusively by the competent court of Amsterdam, the Netherlands.

11. Miscellaneous

• If any provision of these terms and conditions is invalid or declared null and void, the other provisions of these general terms and conditions shall remain in full force, and Fugro and the User shall consult in order to agree on new provisions to replace the invalid or annulled provisions, in which respect the purpose and purport of the invalid or annulled provision shall be taken into account in so far as possible.

• The User undertakes to comply with Fugro’s Code of Conduct, including any updated versions thereof. The Code of Conduct is available at: https://www.fugro.com/about-us/governance/code-of-conduct. If the User materially breaches the Code of Conduct, Fugro may immediately terminate the Subscription.

• Amendments of these general terms and conditions shall not take effect, unless they are agreed between the parties in writing and included in the Subscription.

• Fugro may engage third parties at its discretion for the execution of the Service or assign any rights and obligations connected to the Service to any third party.

• The User permits Fugro or its designated auditor to audit the User’s compliance with the Subscription and its terms. The User shall make all applicable records available for such audit. Any such audit shall be at Fugro’s expense, unless the audit shows that the User breached the Subscription and its terms in which case the User shall reimburse Fugro for reasonable expenses incurred during the audit.

• The parties are independent, and the Subscription does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Neither party is allowed to represent the other party in any matter.

• No failure or delay by a party to exercise any right or remedy provided under the Subscription or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

• Fugro may transfer or transfer the Subscription, in whole or in part, to any third party and User priorly consents with such transfer. User may not assign or transfer a Subscription, in whole or in part, to any third party without prior written consent from VirGeo®.