General terms & conditions
Last updated: 4 September 2020 (rewritten text)
These terms and conditions contain important information on the EY Finance Navigator.
Article 1. Definitions
In these terms and conditions the following terms, provided that they start with a capital letter, are defined as:
“Agreement”: the arrangements between the Supplier and the Client to which these Terms and Conditions apply.
“Client”: the natural person or legal entity, authorized by the Supplier to use EY Finance Navigator.
“End user”: a natural person authorized by the Client to use, on its behalf, EY Finance Navigator.
“EY Finance Navigator”: the financial planning software module provided by the Supplier to the Client via a web-portal.
“IPR”: any and all (future) intellectual property rights and trade secrets in any country or jurisdiction including, but not limited to any patents, copyrights and neighbouring rights, trademarks, trade names and domain names, goodwill, design rights, rights related to software, database rights, knowhow, all renewals or extensions of such rights and all similar or equivalent forms of protection which are developed, either registered, deposited, filed or not and including any and all applications for such rights that can in anyway be related to EY Finance Navigator.
“Personal Data”: any information relating to an identified or an identifiable natural person.
“Parties”: the Supplier and the Client
“Reports”: the reports, including financial overviews and insights, that are automatically generated by EY Finance Navigator based on information provided by the Client.
“Supplier”: EY Advisory Netherlands LLP, in this matter trading under the name ‘EY Finance Navigator’.
“Terms & Conditions”: these Terms and Conditions.
Article 2. Applicability
2.1. Every use of and/or access to EY Finance Navigator is subject to these Terms and Conditions.
2.2. The Client accepts the applicability of these Terms and Conditions.
2.3 The Supplier reserves the right to amend these Terms and Conditions at any moment. The latest version of these Terms and Conditions is accessible through Terms and conditions at all times.
Article 3. EY Finance Navigator
3.1. EY Finance Navigator is a web-based portal containing financial planning software for start-ups. EY Finance Navigator helps the Client to build a financial plan. Based on the forecast of the Client, an algorithm will provide the Client with explanations of important metrics, will challenge the Client on its numbers and will provide the Client with benchmarking data of its industry to help the Client improve and understand its financial plan.
3.2. EY Finance Navigator includes the functionalities as described on the product page that can be found on Features.
3.3 EY Finance Navigator is a fully automated system. Reports and generated remarks, if any, are automatically generated based on information provided by the Client to EY Finance Navigator. The automatically generated remarks are of a general nature and serve as non-binding information with which the Client can improve the quality of the information provided by the Client to EY Finance Navigator.
Article 4. Reports and automatically generated remarks
4.1. The Client is responsible for the use of EY Finance Navigator and all decisions based on the use of EY Finance Navigator.
4.2. Reports and automatically generated remarks do not serve as investment advice, consultancy advice or any other professional advice and/or service by the Supplier in any way, shape or form.
4.3. By making EY Finance Navigator available to the Client, the Supplier does not provide assurance (audit services) under any accounting or similar standards in any way, shape or form.
4.4. The Supplier does not warrant the realization of any scenario or prospect the Client may have as a consequence of the use of EY Finance Navigator.
4.5. To the extent permitted by applicable law and regulations, the Client indemnifies the Supplier against any claims from third parties (including but not limited to entities related to the Client and the Client’s professional advisors) and the resulting liabilities, damages, compensations, charges, and expenses (including reasonable external and internal legal costs) arising from the use of and/or the reliance on a Report by a third party after the Report has been made public to the third party by or on behalf of the Client or at the Client’s request.
4.6 In accordance with article 13 of these Terms and Conditions, the liability of the Supplier due to the scrambling, destruction or loss of data or documents related to EY Finance Navigator shall be excluded.
4.7 The Supplier is not obligated to check the accuracy and completeness of the information used as input into EY Finance Navigator by the Client and is therefore not liable for the consequences of the use of inaccurate and/or incomplete information used as input into EY Finance Navigator by the Client.
Article 5. Availability and adjustment
The Supplier will make commercially reasonable efforts in order to ensure a suitable functioning of EY Finance Navigator and will make commercially reasonable efforts to maintain the highest possible availability, quality and safety of EY Finance Navigator. However, the Supplier does not warrant or guarantee that EY Finance Navigator will be available at all times or will function without any flaws, failures and/or disruptions.
5.2. The Supplier reserves the right to modify (the technical and/or functional characteristics of) EY Finance Navigator at any time in order to improve the functionality and/or to correct any possible errors or to comply with the applicable law and regulations.
5.3. The Supplier will make commercially reasonable efforts to track and correct any possible errors in EY Finance Navigator. However, the Supplier does not warrant or guarantee that all errors can be corrected.
5.4. In case any of the modifications, as mentioned in clause 5.2 and 5.3, lead to a material deviation of the functioning of EY Finance Navigator, the Supplier will inform the Client via EY Finance Navigator (https://thefinancenavigator.ey.com/login) website and/or by sending the Client an email before the modification becomes available.
5.5. The Supplier reserves the right to temporarily disable the (availability of) EY Finance Navigator for the purpose of maintenance, modification and/or improvement. The Supplier will schedule such a temporary unavailability, where possible, outside of regular office hours in the Netherlands and will inform the Client via EY Finance Navigator https://thefinancenavigator.ey.com/login website and/or by sending the Client an email about the scheduled unavailability of EY Finance Navigator in a timely manner. A temporary unavailability of EY Finance Navigator in accordance with this clause 5.5 can never be considered as a failure in the performance of the Supplier’s obligations towards the Client.
5.6 The Supplier is not bound to have a fall-back location or other fall-back facilities related to the availability of EY Finance Navigator.
5.7 The Supplier is not bound to create back-up copies of the saved information created by the Client through the use of EY Finance Navigator.
Article 6. Obligations of the Client and End User
6.1. Without prior written consent of the Supplier, the Client is not entitled to reverse engineer, decompile, disassemble and/or work around technical limitations of EY Finance Navigator.
6.2 The Client is responsible for the use of EY Finance Navigator by the End Users in accordance with these Terms and Conditions. The Client is obligated to impose all obligations under these Terms and Conditions on the End Users.
6.3 The Client guarantees that it and the End Users adhere to the following rules when making use of EY Finance Navigator:
a. the Client shall not introduce or spread any (computer) viruses or any other files that can damage the functioning and/or availability of EY Finance Navigator;
b. the Client shall not perform any actions that can cause failures to EY Finance Navigator and/or to networks or infrastructures (of other Clients) or that can cause any disturbance, limited use, or unforeseen use of EY Finance Navigator (for other Clients);
c. the Client shall not send large, unsolicited amounts of messages with identical or comparable contents (‘spam’);
d. the Client shall not misuse the provided username and password or (attempt to) EY Finance Navigator’s security;
e. the Client shall not perform or refrain from any activities of which the Client know or reasonably should have known to cause use of EY Finance Navigator that is illegal or wrongful to the Supplier and/or to third parties;
f. the Client shall not publish or spread any wrongful, racist or discriminating material and/or (child) pornography. This includes publishing or spreading the material via the infrastructure of EY Finance Navigator. The Supplier reserves the right to remove and delete such material from EY Finance Navigator.
g. the Client shall not infringe upon any IPR; and
h. the Client shall not publish, reproduce, or in any other way employ information and data provided by the Supplier to the Client, other than for the Client’s internal business purposes, without explicit written consent of the Supplier.
6.4 In case the Client acts in violation with this article 6, the Client is obligated to follow the reasonable instructions given by the Supplier to the Client and the Client shall ensure that the instructions are followed up by the End Users.
Article 7. Access to EY Finance Navigator
7.1 The provided username and password that allows access to EY Finance Navigator are not transmittable, strictly personal and exclusively for use within the Client’s organization. The Supplier reserves the right to change the provided username and password and will inform the Client thereof in a timely manner.
7.2 The Client is obligated to take all technical and organizational measures which are necessary to prevent the use of and/or access to EY Finance Navigator which is not authorized by the Supplier.
7.3 The Client shall immediately notify the Supplier of any (suspected) unauthorized use of EY Finance Navigator.
7.4 The Client can request the Supplier to block its username and password that allows access to EY Finance Navigator.
7.5 In case the Client fails to meet any of its obligations under the Terms and Conditions and/or the Agreement, the Supplier has the right to partially or completely deny the Client access to EY Finance Navigator seven days after a preceding warning notice (in Dutch: ‘aanmaning’) or notice of default (in Dutch: ‘ingebrekestelling’) to the Client. The Supplier is not liable for any damages to the Client and/or third parties resulting from such unavailability of EY Finance Navigator. The Client is still obligated to make the agreed payments during unavailability of EY Finance Navigator in accordance with this article 7.5.
Article 8. Fees and payment
8.1 The different fees for use of EY Finance Navigator can be found on the pricing overview page at Pricing and shall depend on the selected duration. The fees are depicted in euros and are inclusive of value added tax.
8.2 The Client is obliged to pay the relevant fees before the Supplier grants the Client access to EY Finance Navigator. In case the fees are not (correctly) received by the Supplier, the Supplier reserves the right to deny the Client access to EY Finance Navigator.
8.3 After the selected duration, the Client is required to select and pay additional fees in order to be able to keep access to EY Finance Navigator.
8.4 In order to facilitate the payment process the Supplier uses the services of a payment provider.
Article 9. Refunds
Given the digital nature of EY Finance Navigator, we do not offer refunds.
Article 10. License and IPR
10.1 Upon acceptance of these Terms and Conditions, the Client is granted a non-excusive, non-transferrable right to use EY Finance Navigator ("License"). The scope of this License is limited to [(i) the selected duration based on the access fee selected and (ii) the organization of the Client. The Client hereby accepts this License.
10.2 The Supplier exclusively owns the IPR. These Terms and Conditions do not in any way constitute a transfer of ownership of the IPR.
10.3 The Client shall not apply for, register and/or seek to obtain any IPR and/or intellectual property
rights and/or any other right in relation to EY Finance Navigator.
10.4 The Client shall promptly inform the Supplier about any attack on the validity or any infringement of any IPR which comes to its attention.
10.5 The Client shall not take any steps or make any admissions regarding any infringement of any IPR,
but shall provide, at reasonable request of the Supplier all assistance in taking any steps against any infringement of, or other proceedings instituted against, any of the IPR.
10.6 The defense and enforcement of the IPR shall be conducted by the Supplier including but not limited to the exclusive right to initiate proceedings against third parties or competent IP agencies, to conduct the defense against actions by third parties or competent IP agencies and/or to enter into settlements
Article 11. Confidentiality
The Supplier and the Client undertake that they will not at any time disclose or use for any purpose detrimental or potentially detrimental to the Supplier or the Client any (i) information concerning EY Finance Navigator or (ii) any other information concerning the business and affairs of the Supplier or the Client, except (a) to the extent required by law or any competent authority, (b) to their professional advisers subject to a duty of confidentiality and only to the extent necessary for any lawful purpose, and (c) to the extent that at the date hereof or hereafter such information is or shall become public knowledge otherwise than through improper disclosure by any person.
Article 12. Privacy
12.1 To these Terms and Conditions the following privacy laws and regulations apply:
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 relating to the protection of natural persons in connection with the processing of persons data and on the free transfer of such data (hereinafter “Regulation“) and the Dutch implementing law with regard to the Regulation. In the Terms and Conditions the terms ‘Personal Data’, ‘Controller’, ‘Processor’, ‘Processing’, ‘Special Categories of Personal Data’, ‘Supervisory Authority’ and ‘Data Breach’ shall have the same meaning as defined in the Regulation.
12.2 As a consequence of the use of EY Finance Navigator, the Supplier will process Personal Data on behalf of the Client. In this processing of Personal Data, the Client will be considered as the Controller and the Supplier as the Processor. For certain internal processes (such as compliance with laws and regulations, conducting conflict checks, ensuring the independence of the EY organization, quality and risk management and EY’s own internal financial, administrative, IT and other administrative processes), the Supplier will be considered as a Controller. These processing activities for which EY acts independently as a Controller fall outside the terms of application.
12.3 The Supplier and the Client will comply with applicable laws and regulations regarding privacy. Before providing the Personal Data to the Processor and/or providing the Supplier with processing instructions, the Client determines as Controller that those processing activities are permitted in accordance with Article 7 of the Directive or Article 6 of the Regulation.
12.4 The subject, nature and purpose of the processing activities (including the categories of personal data) are described in more detail in the privacy statement as published on Privacy Statement.
12.5 The Supplier shall keep the Personal Data it processes on behalf of the Client secret and shall also oblige any person and/or legal entity acting under its authority to keep the Personal Data secret, except when obligated to notify based on a statutory obligation or professional regulation. The Supplier shall process the Personal Data only on behalf of the Client, subject to deviating legal obligations, and shall follow the written instructions of the Client. This also applies to the transfer of Personal Data to countries outside the European Economic Area (EEA), unless specific processing is required under applicable laws and regulations. In that case, the Supplier will notify the Controller before proceeding to this Processing of Personal Data unless such notice is permitted.
12.6 The Supplier informs the Client if, in its opinion, any instruction of the Client provides an infringement of applicable privacy laws and regulations.
12.7 The Supplier will take appropriate technical and organizational measures to protect the Personal Data against loss or against any form of unlawful processing. These measures, taking into account the state of the art and the cost of implementation, ensure an appropriate level of security in view of the risks involved in the processing activities and the nature of the Personal Data. The measures should also be aimed at avoiding unnecessary collection and further processing of Personal Data. The Supplier will periodically evaluate and strengthen the measures taken by it, as appropriate, to the extent that the requirements or (technological) developments give rise to this.
12.8 The Supplier allows the Client to periodically review (up to 1 time a year) its compliance with this article 12 and the relevant statutory obligations with regard to the protection of Personal Data. This periodically review can be performed on behalf of the Client by an (external) independent auditor in so far as this auditor is not a direct competitor of the Supplier. This periodically review shall consist of, and is limited to, questions asked by the Supplier to the Client with regard to compliance with data protection laws and regulations and, if necessary, an interview with IT suppliers of the Supplier. Considering the Suppliers confidentiality obligations with respect to other clients, the Client acknowledges and accepts that the Supplier will not grant the Client or an independent auditor appointed by the Client access to its IT systems and/or its IT infrastructure.
12.9 The Supplier shall notify the Client of:
a. a Data Breach to be reported in accordance with article 34a of the Dutch Data Protection Act and/or articles 33 and 34 of the Regulation. In case of a Data Breach the Supplier will notify the Controller without undue delay after discovery of the Data Breach.
b. a complaint of a data subject.
c. a request of a data subject with regard to the data subject’s rights.
d. an investigation of a Supervisory Authority or other authority, to the extent permitted by applicable laws and regulations.
12.10 If requested by the Client, the Supplier will assist the Client with regard to a request or investigation by a Supervisory Authority or other authority and/or with a request of a data subject with regard to the data subject’s rights. The Supplier will also reasonably cooperate with the Client in order to enable the Client perform an privacy impact assessment with which compliance should be demonstrated to a Supervisory Authority or other authority.
12.11 The Supplier will not outsource the processing of Personal Data to any subcontractor without the prior written consent of the Client. The Client has the right to refuse this permission without notice of any reason or to add further terms to this permission. The subcontractor of the Supplier must comply at least with contractual provisions that are equivalent to the provisions of this article 12 and the Agreement. If the subcontractor fails to comply with his/her obligations regarding privacy under this article 12 and the Agreement, the Supplier is fully liable to the Client for compliance with the subcontractor’s obligations under the outsourcing agreement. By accepting these Terms and Conditions, the Client grants the Supplier permission to enable other EY firms and EY employees for the processing of Personal Data.
12.12 The Supplier may transfer Personal Data to non-EEA countries provided that the Supplier complies with Chapter 5 of the Regulation (“transfers of Personal Data to third countries or international organizations”).
12.13 The duration of the processing activities is included in the Agreement. Upon completion of the processing services, the Supplier will, upon the Clients request, delete or return and delete all copies of the Personal Data, unless the Supplier has a legal or professional obligation to retain the Personal Data. The Parties acknowledge that this obligation does not apply to data (including Personal Data) held by the Supplier for backup purposes, provided that the terms of the security and confidentiality as contained in these Terms and Conditions apply to it. Without prejudice to the above, the Supplier will remove all the Client’s data within 12 months from the expiry of the Agreement. Supplier will anonymize the data and can use the anonymous data for benchmarking purposes. The anonymized data will be stored for 10 years.
Article 13. Liability and identification
13.1 The total liability of the Supplier due to an attributable failure in the performance of these Terms and Conditions and/or Agreement or on any legal basis whatsoever shall be limited to compensation for direct loss up to a maximum of the fees paid by the Client to the Supplier in the twelve months prior to the failure (excluding VAT).
13.2 The total liability of the Supplier for indirect loss, consequential loss, loss of profits, lost savings, reduced goodwill, loss due to business interruption, loss as a result of claims of the Client’s customers is excluded.
13.3 The exclusions and limitations referred to in clause 12.1 and 12.2 shall cease to apply if and insofar as the loss is the result of deliberate intent or recklessness on the part of the Supplier.
13.4 Unless performance by the Supplier is permanently impossible, the Supplier shall only be liable due to an attributable failure in the performance of these Terms and Conditions and/or Agreement if the Client declares the Supplier to be in default in writing without delay and grants the Supplier a reasonable term to remedy the breach, and the Supplier culpably fails to fulfil its obligations also after this term has passed. Any claim expires past the course of 24 months after the damage has originated.
13.5 The Client indemnifies the Supplier against any and all claims of third parties relating to the use by the Client and the End Users of EY Finance Navigator.
Article 14. Force Majeure
None of the Parties shall be obligated to fulfil any obligation if it is prevented from doing so by force majeure. Force majeure on the part of the Supplier means, among other things: (i) force majeure on the part of the suppliers of the Supplier, (ii) defects in items, equipment, software or materials of third parties, (iii) government measures, (iv) power failures, (v) internet, data network or telecommunication facilities failures, (vi) war and (vii) general transport problems.
Article 15. Duration and termination
15.1 The Agreement starts at the moment the Client has accepted these Terms and Conditions. The duration of the Agreement is equal to the selected duration indicated at registration. Upon expiration of the selected duration the Agreement is automatically terminated. After the selected duration, the Client is required to select and pay additional fees in order to be able to keep access to EY Finance Navigator. The Client is not entitled to terminate the Agreement before the Agreement expires.
15.2 Notwithstanding article 15.1 of these Terms and Conditions, the Supplier or the Client may terminate the Agreement at any time with immediate effect, upon written notice to the Client or the Supplier and without incurring any liability to the other in any of the following circumstances:
(i) in the event of filing a petition in bankruptcy or the suspension of payments of the Client or the Supplier, liquidation or composition with creditors of the other party, and in case of attachment maintained for at least one (1) month in respect of substantial debts and/or assets of the Client or the Supplier;
(ii) in the event the Client or the Supplier becomes insolvent or unable to pay its debts as they mature or ceases to pay its debts as they mature in the ordinary course of business or makes an assignment for the benefit of its creditors; and
(iii) in the event the Client or the Suppliers fails to perform any material obligation under the Agreement after having received notice of such default and not having cured the default within three (3) months thereafter.
15.3 In addition, the Supplier may terminate this Agreement, immediately upon written notice to the Client if the Supplier reasonably determines that the Supplier can no longer execute this Agreement either in accordance with applicable law or regulatory or professional obligations or for independence reasons, unless the Supplier has been able to properly amend the Agreement with the Client. The aforementioned also includes situations where the Client is targeted by sanctions measures, including (but not limited to) those administered and enforced by the U.S. Treasury Department, U.S. Commerce Department, U.S. State Department, European Union, competent European Union Member State authorities or United Nations.
15.4 Upon termination of the Agreement the Client is no longer entitled to use EY Finance Navigator.
Article 16. Consequence of termination
The Client is responsible for exporting or copying the information provided to the Supplier and/or automatically generated by EY Finance Navigator before termination of the Agreement. The Supplier is not held to a certain (legal) retention period for the information provided to the Supplier and/or automatically generated by EY Finance Navigator. In case the Client does not immediately, after the termination of the Agreement, inform the Supplier of the before mentioned desired support in handover of the information, the Supplier holds the right to, immediately and without preceding notification, delete and destroy this information that is stored, edited, processed or in any other way entered into EY Finance Navigator.
Article 17. Disputes and applicable law
17.1 All legal relations between the Parties will be governed by Dutch law.
17.2 All disputes relating to legal relation between the Parties will be settled by the competent court in Rotterdam.
Article 18. Miscellaneous
18.1 In case any provision of the Agreement and/or these Terms and Conditions should be found to be invalid or be nullified, the other provisions will remain in force to the extent possible, with the invalid or nullified provision being replaced, in consultation between the Parties, by an provision that approximates the purport of the original provision to the extent possible.
18.2 In case the Supplier is required, at the request of or ordered by authorized public authorities or in connection with statutory obligations, to perform activities with respect to the information of the Client, its employees, or the End Users, the associated costs will be billed to the Client unless cause of the investigations lies with the Supplier. The Supplier will inform the Client of such an event as soon as possible and to the extent permitted by applicable law.
18.3 The Client and the Supplier shall inform each other within a reasonable time frame of any changes in name, address, e-mail address, telephone number and if asked bank- or giro account number.
18.4 Neither the Supplier nor the Client is entitled to transfer any of the rights and obligations in the Agreement and/or these Terms and Conditions to a third party without prior written consent of the other party. The non-transferring party will not deny this permission without reasonable ground.
Address
EY Advisory Netherlands LLP
Boompjes 258
3011 XZ Rotterdam
Chamber of Commerce number: 73624926
