Terms of Service

Last update: 2019-4-18

Article 1. Applicability, changes

1.1. Unless otherwise agreed in writing, these general terms and conditions (“Terms”) will apply to any and all offers, quotations, orders, order confirmations, agreements, use of services or software, sale or delivery of products, as marketed and/or supplied (“Products”) by Electude International B.V. with registered offices at Nuenen, The Netherlands, registered with the Chamber of Commerce at Eindhoven under number 17236172, as well any of its affiliates or subsidiaries (hereinafter jointly referred to as “Electude”).

1.2. In these Terms “Customer” means any person or entity that applies for or receives any offer, quotation, order or order confirmation from Electude or otherwise actually or potentially enters into any agreement with Electude regarding any Products. In these Terms “User” means (i) any person or entity that actually uses any Products of Electude, irrespective of whether or not that person or entity is also a Customer of Electude, and (ii) Customer. In these Terms “Controller” means any person or entity which alone or jointly with others, determines the purposes and means of the processing of personal data by Electude as a processor on behalf of such person or entity.

1.3. Unless otherwise agreed in writing, any and all general terms and conditions of any Customer do not apply to any of the Products or any other contractual relationship between Electude and a Customer.

1.4. Electude expressly reserves the right to modify the Terms from time to time.

1.5. Any use of Products requires the prior acceptance of the Terms by the User and any use of Products without such acceptance is not permitted.

1.6. Acceptance of the Terms is done (i) by clicking to accept or agree to the Terms where this option is made available by Electude in any user interface for any Product, (ii) by acceptance in writing, or (iii) by actually using any Product.

1.7. A User is not entitled to assign or otherwise transfer any right, obligation or agreement without Electude’s prior written consent. Electude is entitled to assign or otherwise transfer any right, obligation or agreement at its sole discretion.

1.8. The English language version is the authentic version of these Terms and any translation thereof in any other language is for convenience purposes only. In case of a conflict or discrepancy between the English language version and a translation of these Terms, the English language version shall prevail.

Article 2. Offers / quotations and prices

2.1. Any and all offers and quotations submitted by Electude are without engagement to Electude and may at all times be revoked by Electude, unless expressly stated otherwise.

2.2. All prices offered or quoted by Electude are net cash, without reduction and exclusive of any taxes, duties, costs and charges owed at the time of delivery. If an order is placed and no definite price has been agreed in advance, the order will be subject to the prices which are valid at the time of the execution of the order, irrespective of any offer made before or any price charged before.

2.3. All prices and/or tariffs are exclusive of V.A.T., in Euro, unless specifically stated otherwise. If a Customer is based in the United States, then all prices and/or tariffs are exclusive of sales tax in US dollars where applicable, unless specifically stated otherwise.

Article 3. Acceptance of an offer

3.1. Any reply to an offer or quotation which contains additions, limitations or other modifications, such as modifications regarding price, payment, quality and quantity of the products or services, place and time of delivery, will be deemed to be a rejection of the offer or quotation and to constitute a counter offer.

3.2. Any obligation or agreement only becomes binding upon Electude if and when the Customer’s acceptance of an offer or any other request or proposal from a User is acknowledged and confirmed by Electude.

Article 4. Use of the Products

4.1. User agrees to use any Products and all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which may be accessed to as part of, or through use of, the Products (such information hereinafter referred to as “Content”) only for purposes that are (a) permitted by these Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions.

4.2. User agrees that any registration information given to Electude will always be accurate, correct and up to date.

4.3. User shall not access (or attempt to access) any of the Products or Content by any means other than through an interface that is provided by Electude.

4.4. User shall not engage in any activity that interferes with or disrupts the Products or the Content (or the servers and networks which are connected to the Products or Content).

4.5. Unless otherwise agreed in writing with Electude, User shall not reproduce, duplicate, copy, sell, trade or resell the Products or the Content for any purpose.

4.6. The User is responsible (a) for maintaining the confidentiality of passwords associated with any account used to access the Products or the Content and (b) for all activities that occur under its account(s).

4.7. User shall immediately notify Electude if User becomes aware of any unauthorized use of any of its passwords or accounts.

Article 5. Online Purchase

5.1. When the Customer or User purchases the Products online, access to the Content will be provided as soon as payment is received and processed. The purchase is final and non-refundable, except as required by applicable law.

5.2. If the Customer or User resides in a country that is part of the European Union and has purchased the Products online, Customer or User has the right to change their mind and request a full refund within 14 days of purchase. To cancel the purchase, Customer or User must inform Electude of this decision by email. Electude will reimburse Customer or User no later than 14 days from the day on which the cancellation notice was received, using the same means of payment as used for the online purchase. Customer or User cannot cancel the purchase if the provided Content has been accessed or used in any manner.

Article 6. Performance

6.1. Any use of (any part of) the Product or Content is at the User’s sole risk and the Products and the Content are provided “as is” and “as available”.

6.2. Any performance specifications given by Electude only refer to the average performance of (the relevant part of) the Products, unless otherwise agreed.

6.3. Any complaints by User concerning non-performance of any part of the Products or Content shall be in writing and specify (a) the Products or Content concerned, (b) the related agreement and (c) the nature of the problem with as much detail as reasonable required for Electude to properly evaluate the complaint.

6.4. In the event that Electude deems a complaint justified, it shall at its sole discretion, (a) adjust the Products in question free of charge, (b) provide the Products again, (c) give a price reduction or (d) send a credit invoice.

Article 7. Exclusion of warranties

7.1. Electude and its licensors do not represent or warrant that: (a) User’s use of the Products will meet User’s requirements, (b) User’s use of the Products will be uninterrupted, timely, secure or free from error, (c) any information obtained by User as a result of User’s use of the Products will be accurate or reliable, and (d) that defects in the operation or functionality of any software provided as part of the Products will be corrected.

7.2. Any material downloaded or otherwise obtained through the use of the Products is done at User’s own discretion and risk and User will be solely responsible for any damage to its computer systems or other devices or loss of data that results from the download of any such material.

7.3. Unless otherwise agreed, no advice or information obtained by User from Electude, including through the Products, shall create any warranty.

7.4. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OMISSIONS, COMPLETENESS, CURRENTNESS AND DELAYS OF SERVICE, ARE EXPRESSLY DISCLAIMED.

Article 8. Intellectual Property

8.1. Electude and its Electude’s licensors own all legal right, title and interest in and to the Products and the Content. This right, title and interest includes any and all intellectual property rights which subsist in the Products or the Content, irrespective of whether these rights are registered or not and wherever in the world these right exist (“Intellectual Property Rights”) .

8.2. User is not entitled to use or exploit any part of the Products, the Content or any of the Intellectual property Rights other than as expressly provided for in these Terms or as otherwise agreed in writing with Electude.

8.3. User shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Products or the Content.

Article 9. License from Electude

9.1. Provided that a User has been provided access to the Content and/or uses the Products in compliance with these Terms and any applicable agreement with Electude, a User has a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the Products and the Content for the sole purpose of enabling the User to use and enjoy the benefit of the Products and the Content as provided by Electude and in the manner permitted by these Terms and any applicable agreement with Electude..

9.2. User shall not (and shall not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Products or the Content or any part thereof, unless this is expressly permitted or required by law.

9.3. User may not assign (or grant a sub-license of) its rights to use the Products and the Content, grant a security interest in or over its rights to use the Products or the Content, or otherwise transfer any part of its rights to use the Products and the Content.

Article 10. License from User-User Content

10.1. User retains any copyright and any other Intellectual Property Rights it already holds in any Content which User may submit, post or display on or through, the Products (“User Content”).

10.2. By submitting, posting or displaying User Content, the User grants Electude a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute such User Content on or through the Products or the Content. In addition, this license includes the right to make such User Content available to other companies, organizations or individuals with whom Electude has relationships for the provision of syndicated services, and to use such User Content in connection with the provision of those Products, unless otherwise agreed in writing between the parties.

10.3. User confirms and warrants to Electude that User has all the rights, power and authority necessary to grant the above license to Electude.

Article 11. Confidentiality

11.1. Electude agrees not to divulge to any third party and not to use, except for the purpose of rendering the Products, any information of a confidential nature with regard to a User or any of its the end-users, including students.

11.2. Electude agrees not to sell User data to any third parties.

Article 12. Reservation of Title

12.1. Title in and to any products delivered, will remain with Electude until all Electude invoices that are outstanding at that time – whether for the relevant products or any Products – have been fully paid by User.

Article 13. Prices and Payment

13.1. All prices as quoted will remain subject to any general Electude-wide price increases and any such general Electude-wide price increases will apply (i) upon renewal or extension for any existing agreements or purchase offers and (ii) with immediate effect for any new Customers.

13.2. Subject to any other specific written agreement, invoices of Electude will be due 30 days from the date of the invoice. The User shall not be entitled to suspend payment at any time or to set of any amount due to Electude, irrespective of any complaints by User with regard to (any part of) the Products or Content.

13.3. Payments must be made at the bank account indicated by Electude on the respective invoice.

13.4. The User shall be in default by the mere expiry of the payment term without any notice of default being required. If the User does not pay the invoice price due in time, it will owe Electude an interest of 1% of the invoice price for every month or part of the month by which the term of payment has been exceeded.

13.5. Electude reserves the right to suspend performance of any Products until full payment has been received.

Article 14. Suspension of Products – Termination

14.1. Electude shall be authorized to suspend or terminate any Products in whole or in part, with immediate effect, without notice, notwithstanding any other rights or remedies to which Electude is entitled, where (a) the User breaches any provision of a specific agreement between the parties or these Terms; (b) suspension of payment or bankruptcy is requested or granted with regard to the User; (c) the business of the User is shut down or liquidated.

14.2. In the cases described in 14.1 above, any invoices and other claims of Electude shall be immediately payable by the User.

Article 15. Processing of personal data

15.1. With regard to any information relating to an identified or identifiable natural person (“personal data”), the following provisions shall apply, if and when Electude processes such personal data on behalf of any person or entity which alone or jointly with others, determines the purposes and means of the processing of such personal data.

15.2. Electude:

1. shall process the personal data only on documented instructions from the Controller, including with regard to transfers of personal data to a third country or an international organization, unless required to do so by applicable law to which Electude is subject; in such a case, Electude shall inform the Controller of that legal requirement before processing the personal data, unless that law prohibits such information on important grounds of public interest;
2. ensures that persons authorized to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
3. takes all measures required to ensure a level of security appropriate to the risk of processing the personal data pursuant to applicable data protection laws and regulations;
4. assists the Controller, taking into account the nature of the processing, by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Controller's obligation to respond to requests for exercising the identified or identifiable natural persons’ rights;
5. assists the Controller in ensuring compliance with the applicable data protection laws and regulations taking into account the nature of processing and the information available to Electude;
6. returns or deletes, at the choice of the Controller all the personal data after the end of the provision of services relating to processing the personal data, and deletes existing copies unless applicable data protection laws and regulations require storage of the personal data. Specifics of the retention of personal data are set out in Annex 1, which may be amended by Electude from time to time;
7. makes available to the Controller all information necessary to demonstrate compliance with the obligations laid down in the applicable data protection laws and regulations and allow for and contribute to audits, including inspections, conducted by the Controller or another auditor mandated by the Controller. The costs of the audit at the Controller’s request are at the Controller’s expense, unless the findings of the audit show that Electude has failed to comply with the applicable data protection laws and regulations.

15.3. Electude and any person acting under authority of the Controller or Electude, who has access to personal data, shall not process data except on instructions from the Controller, unless required to do so by applicable data protection laws and regulations.

15.4. The Controller shall comply with applicable data protection laws and regulations. Electude shall immediately inform the Controller if, in the opinion of Electude, an instruction from the Controller infringes applicable data protection laws and regulations.

15.5. Electude shall maintain a record of all categories of processing activities carried out on behalf of the Controller, containing:

1. the name and contact details of each Controller on behalf of which Electude is acting, and, where applicable, of the Controller's or Electude's representative, and the data protection officer;
2. the categories of processing of personal data carried out on behalf of each Controller;
3. where applicable, transfers of personal data to a third country or an international organization, including the identification of that third country or international organization and, in case it is necessary, the documentation of suitable safeguards;
4. where possible, a general description of the technical and organizational security measures.

15.6. A description of the processing activities and the purposes for processing is set out in Annex 1, which may be amended by Electude from time to time.

15.7. Electude may engage another party for carrying out specific processing activities on behalf of the Controller (hereinafter “Sub-processor”) provided that prior general written authorization is given by the Controller. Any engaged Sub-processor is set out in Annex 1, which may be amended by Electude from time to time.

15.8. Electude shall impose the same data protection obligations as set out in these Terms on the Sub-processor.

15.9. The Controller and Electude shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons. In assessing the appropriate level of security account shall be taken in particular of the risks that are presented by processing of personal data, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data transmitted, stored or otherwise processed. A description of the technical and organizational measures is set out in Annex 2, which may be amended by Electude from time to time.

15.10. Adherence to an approved code of conduct or an approved certification mechanism as referred to in applicable data protection laws and regulations may be used as an element by which to demonstrate compliance with the requirements as set out in the applicable data protection laws and regulations.

15.11. Electude shall notify the Controller without undue delay after becoming aware of a personal data breach.

15.12. Electude shall be entitled to transfer personal data freely within the European Union or the European Economic Area in order to render its Products. Unless otherwise agreed in writing, Electude is also entitled to transfer personal data outside the European Union or the European Economic Area in compliance with the applicable data protection laws and regulations. The Controller is entitled to receive information from Electude at any time on the location where personal data is processed.

15.13. If personal data is processed outside the European Union or the European Economic Area, all parties involved with the processing of personal data shall ensure for its part that the processing of personal data complies with the applicable data protection laws.

Article 16. Liability

16.1.To the extend permitted by applicable law, Electude, its licensors, agents, distributors, employees or associates shall not be liable for (a) any direct, indirect, special, consequential or exemplary damages, however caused and under any theory of liability, including but not limited to any loss of profit, any loss of goodwill or business reputation, any loss of data suffered, cost of procurement of substitute Products or any other intangible loss; (b) any loss or damage by User, including but not limited to loss or damage as a result of (i) any changes which Electude may from time to time make in the Products of or any temporary or permanent cessation in the provisions of (any part of) the Products, (ii) the deletion, corruption or failure to store any Content or communication data maintained or transmitted as part of the use by User of the Products, (iii) User’s failure to provide Electude with accurate account information or (iv) User’s failure to keep any passwords and account details secure and confidential.

16.2. The limitations of liability shall apply irrespective of whether Electude, its licensors, agents, distributors, employees or associates have been advised or should have been aware of the possibility of any such loss or damage.

16.3. The fulfillment of the obligations provided for in Article 6 shall be the sole and final remedy with regard to such claims of User. Any other claims or liabilities, for any reason whatsoever, are expressly excluded.

16.4. The User shall indemnify Electude and hold Electude harmless against any claims of third parties with regard to any damages or losses resulting from any use of (any part of) the Products or Content, where and in so far as such damages or losses are caused by negligence of the User, including any of its agents, employees, associates or other party that obtain access to or otherwise benefit from any use of the Products or the Content by or through the User.

16.5. Any liability, in particular for any inaccuracy, omission, lack of correctness or any delay of any part of the Products or any Content, including any hyperlinks and other sites or sources referred to, is expressly excluded.

16.6. Nothing in these terms shall exclude or limit Electude’s warranty or any liability for damages or losses which may not be lawfully excluded or limited by applicable law, in which case the relevant liability will be limited to the maximum extent permitted by such applicable law.

Article 17. Law and jurisdiction

17.1. Any and all claims and liabilities arising out of or related to any use of the Products or in connection with any agreement governed by these Terms shall be solely governed by the law of the Netherlands, without regard to its conflict of laws provisions.

17.2. The competent court at Den Bosch, The Netherlands, will have exclusive jurisdiction over any claims and disputes arising out of or related to any use of the Products or in connection with any agreement governed by these Terms.

17.3. However if the User is domiciled in a jurisdiction that is not subject to a treaty providing for the direct execution of judgements by a Dutch court, Electude may, at its sole discretion, have the dispute finally settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute, in which case (a) the arbitral tribunal shall be composed of one arbitrator, (b) the place of arbitration shall be Eindhoven, The Netherlands and (c) the arbitral procedure shall be conducted in the English language.

Annex 1: Specification of the Processing of Personal Data in Electude LMS

Last update: 2020-07-07

1. Description of the Processing

Electude LMS is Software as a Service (SaaS) that allows individuals to get education and teach using a web browser. In this service personal data is processed. For example the responses given by students when they interact with the e-learning content are stored in the service. Teachers can use this to monitor student progress and results.

2. Purposes of the Processing

Electude processes personal data for these purposes:

1. Identification, authentication and access control to the service;
2. Delivery of the service in accordance with the license agreement between Controller and Electude;
3. To get education:
   • to record progress;
   • storage of learning and test results.
4. To teach:
   • enrolment of students in groups;
   • assignment of leaning content;
   • grading of learning and test results.
5. Security and prevention of abuse;
6. Ensuring continuity and integrity;
7. Product support;
8. Generation of anonymized statistical overviews to improve the service;
9. Exchange of learning and test results with administrative systems of the Controller.

3. Categories of Data Subjects

Electude processes personal data of the users of the service:

1. Students
2. Teachers

4. Categories of Personal Data

Electude processes these categories of personal data:

1. Username and password
2. Contact details: name and email address.
   Optional additional fields: address, postal code, city, region, country and (mobile) phone.
   The Controller must explicitly allow each field before it is available to users.
3. Optional date and place of birth
   The Controller must explicitly allow each field before it is available to users.
4. Learning results:
   • collected from the student by using the service: responses, progress, scores and time spent
   • grades, certificates and feedback added by the teacher
5. Organization: group membership, assigned learning content and license information
6. Log file information IP address, request time, browser type and version, referrer URL.

No special categories of personal data (with sensitive data) are processed.

5. Retention of Personal Data

Personal data are stored until an authorized teacher or the Controller deletes the data from the service. Student responses to the e-learning are automatically deleted after 1 year. All personal data are deleted after the end of the provision of service. After deletion of any personal data, back ups are maintained for up to 2 months.

Log files are automatically deleted after 1 year.

6. Sub Processors

The Controller gives general authorization for the appointment of sub processors. Currently these sub processors are appointed:

Sub processor	Registered office	Type of processing	Country of processing
LeaseWeb Netherlands B.V.	Amsterdam, Netherlands	Hosting services (web and database server)	Netherlands
LeaseWeb Deutschland GmbH	Frankfurt am Main, Germany	Hosting services (web and database server)	Germany
TransIP B.V.	Leiden, Netherlands	Hosting services (email)	Netherlands
Cloudflare Inc.	San Francisco, United States	Internet security services, content delivery network	Depends on user location

Annex 2: Technical and Organisational Security Measures in Electude LMS

Last update: 2018-05-25

1. Access to personal data

Electude implements suitable measures to prevent their data processing systems from being used by unauthorised persons. The Electude uses access authorizations for employees and third parties such as agents, distributors and other sub processors. Persons are only able to access the data within the scope of their position.

The positions that have access to certain Personal Data, followed by the type of processing they may perform with regard to the Personal Data are:

• 1st and 2nd line support
  Support employees (1st and 2nd line) act as point of contact. They can view license information. With regard to a specific question and with permission from the Controller they can access the Personal Data involved in the specific problem, including test and learning results.
  Processing:
  • support of the user;
  • analysis of the specific problem.
• 3rd line support
  3rd line support employees are experts and / or developers of the application. They provide support in analyzing incidents (with user data), solving the issue and report back to 2nd line support.
  Processing:
  • analysis of the specific problem.
• Content developers
  Content developers can access anonymized sets of results of using the service and any problems or errors in usage.
  Processing:
  • research to improve and further develop learning content;
• System and database administrators
  System and database administrators have access to the databases.
  Processing:
  • maintenance activities aimed at continuity and optimisation of the service.

2. Security measures

Organisation

• Electude has a security officer to identify risks with regard to the processing of Personal Data, raise security awareness, monitor resources and take measures to ensure compliance with the information security policy.
• Information security incidents are documented and are used for optimisation of the information security policy.
• Electude has set up a process for communication about information security incidents.

Employees

• Employees have signed non-disclosure agreement agreements and and an information security policy is established.
• Electude stimulates awareness, education and training of information security.
• Employees do not have access to more Personal Data than is strictly necessary for their position.

Physical security and continuity

• Personal Data are only processed in a closed, physically secure environment with protection against threats from outside.
• Personal Data are only processed on equipment where measures have been taken to physically secure the equipment and ensure continuity of service.
• A backup is periodically made for the benefit of the continuity of service. This backup is be treated confidentially and kept in a closed environment.
• The locations where data are processed are periodically tested, maintained and periodically assessed for safety risks.
• Electude has business continuity plans in which redundant locations are included.
• Personal Data are only stored in a ISO27001 and/or PCI DSS certified environment.

Network, server and application security and maintenance

• The systems in which Personal Data are processed are protected by proxies and firewalls. Measures against abuse and attacks have been implemented.
• The systems in which Personal Data are processed are monitored.
• The service within which Personal Data is processed is based on system planning, security control and acceptance. Changes in applications are tested for vulnerabilities before they are taken into production.
• Appropriate security patches will be applied to systems in a timely manner.
• Personal Data processed within applications are classified according to risks.
• Penetration tests and vulnerability assessments are performed periodically.
• Information that is no longer used will be deleted.
• Passwords are only stored in encrypted form.
• Data are only transmitted in encrypted form.
• Emails are sent using SPF, DKIM and DMARC to prevent sender fraud.

3. Personal Data Breaches

Monitoring and detection

Electude continuously monitors the service and has taken the measures described in this annex to prevent and detect unauthorised or unlawful access to the Personal Data. In the systems actions and errors are logged and incidents are reported immediately via an intrusion detection system. Incidents are analysed to determine if the incident constitutes a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed (hereinafter 'Personal Data Breach').

Notification

Electude shall notify the Controller without undue delay after becoming aware of a Personal Data Breach insofar as it affects the Controller, via e-mail. The notification shall at least:

• describe the nature of the personal data breach including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;
• communicate the name and contact details of the contact point where more information can be obtained;
• describe the likely consequences of the personal data breach;
• describe the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.

Where, and in so far as, it is not possible to provide the information at the same time, the information may be provided in phases without undue further delay.

4. Reporting

Electude continually updates this information and informs users about changes to the measures taken to protect Personal Data against abuse via the privacy statement.

In case of a (suspected) security incident and / or Personal Data Breach, Controller can contact:

support@electude.com
Electude International BV
Collseweg 30
5674TR Nuenen
+31-40-8200030