Terms and Conditions — Break-Glass Access / Noodtoegang

Article 1 — Definitions

In these terms and conditions (the "Terms") the following terms have the meaning set out below, in the singular and the plural:

1. Provider / we / us / our: KVWB B.V., registered with the Netherlands Chamber of Commerce (KvK) under number XXXXXXXX, having its registered office at XXXXXXXXXXXX, XXXX XX Groningen, the Netherlands, trading under the names Break-Glass Access and Noodtoegang, part of the KVWB (Keurmerk Verantwoord Webbeheer) brand.
2. Plugin: the WordPress plugin offered under the name Break-Glass Access (international version) and Noodtoegang (Dutch language version), in all its versions, including the Free version and the Pro version.
3. Free version: the no-cost edition of the Plugin, distributed among other channels via WordPress.org, under the GPL licence.
4. Pro version / Pro: the paid edition of the Plugin with additional features, sold through our sales partner (including Freemius).
5. Service: the online facilities offered by or on behalf of us that the Plugin may use, including the mail fallback (delivery of an emergency code) and — where available — SMS delivery.
6. Website(s): our websites, including breakglassaccess.com and noodtoegang.nl, and the associated portal.
7. User / you / your: any natural person or legal entity that downloads, installs, activates or uses the Plugin, and/or uses the Service or the Websites, and/or purchases a Pro licence.
8. WordPress website: the User's WordPress website on which the Plugin is installed.
9. Backup: a copy (of files and/or database) that may be created using the Plugin together with third-party backup software (including UpdraftPlus).
10. Emergency user: the WordPress account designated by the administrator to create a Backup in emergency situations.
11. Content: all data, files, texts and other content of the User or of the User's WordPress website.

↑ Back to contents

Article 2 — Applicability and acceptance

1. These Terms apply to all use of the Plugin (Free and Pro), the Service and the Websites, and to every agreement between you and us relating to them.
2. You accept these Terms by downloading, installing, activating or using the Plugin, and/or by using the Service or the Websites, and/or by purchasing a Pro licence. If you do not agree to these Terms, do not use the Plugin, the Service or the Websites, and remove the Plugin.
3. These Terms also apply to the Free version. The Free version is additionally subject to the GPL licence; see Article 6. These Terms do not restrict the rights that the GPL grants you in the source code, but they do govern — to the extent permitted — the exclusion of warranty and liability and the use of the Service and the Websites.
4. The applicability of any purchasing or other terms of the User is expressly rejected.
5. We may amend these Terms. The current version is always available on the Websites. If you continue to use the Plugin, the Service or the Websites after an amendment, you accept the amended Terms. For an existing paid agreement, an amendment takes effect from the next renewal, unless the law or security reasons require it to take effect earlier.
6. If any provision of these Terms is void or voidable, the remaining provisions remain in full force. The invalid provision will be replaced by a valid provision that reflects its purpose and intent as closely as possible.

↑ Back to contents

Article 3 — Nature of the product: what the Plugin is and is not

1. The Plugin is a tool that allows a designated user, in an emergency, to attempt to create a Backup of their own WordPress website themselves. To do so, the Plugin triggers third-party backup software (including UpdraftPlus) on the server side of the WordPress website.
2. The Plugin expressly does not guarantee a successful, complete or restorable Backup. Whether a Backup succeeds depends entirely on the state, configuration, security, capacity and environment of the WordPress website and on third-party software and services. Those matters are beyond our control.
3. The Plugin is not a security product, a firewall, a malware scanner or an antivirus. The Plugin does not prevent, detect or remove hacks, malware, spam injections or other attacks, and does not claim to.
4. The Plugin is not a replacement for the User's own independent and regular backup and security regime. The Plugin is an additional emergency tool, not a complete backup or management system.
5. We are not the web manager, hosting party or maintenance party of your WordPress website. Using the Plugin does not create any management, maintenance, storage or duty-of-care agreement with us.
6. Descriptions on the Websites, in the plugin texts, in readme files, in marketing and in documentation are general in nature and do not constitute any guarantee, commitment or guaranteed result.

↑ Back to contents

Article 4 — Responsibilities and obligations of the User

1. Use of the Plugin and the Service is entirely at the User's own expense and risk.
2. The User is solely responsible for a sound, secure and up-to-date WordPress website. As a minimum, the User ensures that:
   1. the WordPress core, all themes and all plugins are kept up to date in a timely manner to a current, supported version;
   2. the server meets the requirements set by us and by the backup software used (including a current, supported PHP version, sufficient memory and execution time, a working database, and correct server and cron settings);
   3. there is sufficient free disk space to create and store a Backup;
   4. the website is reachable over HTTPS and has a valid TLS certificate;
   5. outgoing e-mail works (for example via a reliable SMTP facility), so that an emergency code can be delivered;
   6. the website is adequately secured (strong passwords, two-factor authentication where possible, software kept up to date, appropriate access rights);
   7. the Emergency user's account is strongly secured (a unique, strong password and preferably two-factor authentication), because whoever creates a Backup gains access to a full copy of the website;
   8. the User independently creates and retains regular backups, separate from the Plugin, and tests that they work.
3. Before relying on the Plugin in an emergency, the User themselves tests whether the Plugin works properly in their environment.
4. The User handles created Backups carefully and securely. A Backup contains the entire website and database; whoever holds a Backup can access a restored website with it. Securely storing, encrypting, transmitting and deleting Backups is the User's responsibility.
5. The User uses the Plugin, the Service and the Websites lawfully only, and not in breach of any law or regulation or of any third-party rights.
6. If the User fails to comply with the above, the consequences are entirely at the User's expense and risk and we are not liable. Even where the User does comply with the above, the exclusion and limitation of liability in Article 8 applies in full.

↑ Back to contents

Article 5 — Licence and right of use

1. Free version. The Free version is provided under the GNU General Public License (GPL). The rights and obligations of the GPL apply to it. The GPL contains an express exclusion of warranty and liability; that applies in addition to these Terms.
2. Pro version. For the Pro version, the User receives a non-exclusive, non-transferable right of use for the term and the number of websites (seats) of the licence taken out. The licence is managed through our sales and licensing partner (including Freemius).
3. We may change, extend, limit or discontinue the Plugin, the Service, features, system requirements and prices. We use reasonable efforts to keep the life-saving core function (the ability to create an emergency backup) available, but we do not guarantee this.
4. On expiry or termination of a Pro licence, Pro features may cease to work. The Free core functionality remains available where technically possible. No rights can be derived from this.
5. The User may not use the Plugin in a way that harms, overloads or misuses the Service, the Websites or third-party systems.

↑ Back to contents

Article 6 — No warranties ("as is" / "as available")

1. The Plugin, the Service and the Websites are provided "as is" and "as available", without any warranty of any kind, to the extent permitted by law.
2. In particular, we give no warranty whatsoever that:
   1. a Backup will be created, will succeed, or will be complete, correct, timely or restorable;
   2. the Plugin, the Service or the Websites will operate uninterrupted, error-free, secure or free of vulnerabilities;
   3. the Plugin is suitable for a particular purpose or for the User's specific environment or situation;
   4. an emergency code, e-mail or SMS is actually, timely or intact delivered or received;
   5. the Plugin will prevent, detect or reverse hacks, malware, spam injections, misuse or data loss;
   6. the Plugin works with, or continues to work with, any version of WordPress, PHP, any theme, any other plugin, or any third-party software or service.
3. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PLUGIN, THE SERVICE AND THE WEBSITES ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
4. Oral or written information or advice given by us or on our behalf does not create any warranty not expressly given here.

↑ Back to contents

Article 7 — Force majeure

1. We are not liable and are not obliged to perform any obligation where a failure is the result of force majeure.
2. Force majeure means any circumstance that prevents or affects performance or the proper operation of the Plugin, the Service or the Websites and that is not attributable to our fault, including in any event — but not limited to:
   1. hacks, intrusion, malware, ransomware, viruses, spam injections, phishing, DDoS attacks and other misuse by third parties;
   2. failures, outages, errors, changes or discontinuation of third-party software, systems or services (including WordPress, UpdraftPlus, PHP, the server, the hosting, the database, DNS, Freemius, the e-mail and SMS delivery services and the payment service);
   3. an incorrect, outdated, insufficiently secured or insufficiently maintained configuration or environment of the WordPress website;
   4. insufficient disk space, memory, processing time or other server limitations;
   5. failures in internet, network, power or telecom facilities and in e-mail or SMS delivery (deliverability, spam filters, blocks);
   6. data breaches, loss or corruption of data beyond our direct control;
   7. government measures, changes in law or policy, sanctions, pandemic, natural disasters, fire, war and other external events.
3. If a force majeure situation continues, we may suspend or terminate the relevant function or Service without being liable for any compensation.

↑ Back to contents

Article 8 — Exclusion and limitation of liability

1. We are not liable for any damage arising from or in connection with the use of (or inability to use) the Plugin, the Service or the Websites, or from a Backup not being created in whole or in part, failing, being incomplete or being unrestorable, for any cause whatsoever, to the extent permitted by law.
2. In particular — but not limited to — we are not liable for:
   1. a Backup not being created, not being complete, not being timely or not being restorable;
   2. loss, corruption, inaccessibility or theft of data, Content, websites or Backups;
   3. hacks, malware, spam injections, misuse or security incidents, including where these occurred in any way through, during or despite (the use of) the Plugin;
   4. the leaking, interception or misuse of an emergency code or of a Backup;
   5. indirect damage, consequential damage, business loss, lost profits, lost savings, loss of turnover, reputational damage, non-material damage, the costs of recovery, reconstruction or rebuilding of data or websites, and damage due to downtime;
   6. damage caused by third-party software, services or acts (including the parties mentioned in Article 7);
   7. damage resulting from the User's failure to fully comply with Article 4.
3. To the extent that we were nonetheless liable, our total liability — on any ground, per event and per year in aggregate — is limited to the amount that the User actually paid to us or our sales partner for the Pro licence in the twelve (12) months before the event causing the damage, with an absolute maximum of € 500 (five hundred euros). For the Free version, the Service and the Websites, for which no payment was made, our liability is limited to zero, or to the lowest amount permitted by law.
4. The exclusions and limitations in this Article do not apply to damage resulting from intent or deliberate recklessness on the part of us or our management, or to liability that cannot be excluded or limited under mandatory law (including certain liability towards consumers and certain liability for personal injury). In that case our liability applies only up to the maximum permitted by the mandatory law.
5. A consumer retains the rights granted to them by mandatory consumer law. To the extent that an exclusion or limitation in these Terms is not permitted towards a consumer, it applies up to the maximum that is permitted, and the remaining provisions remain in force.
6. Any legal claim or demand against us in any event lapses twelve (12) months after the User discovered or could reasonably have discovered the damage or the ground for the claim, to the extent no longer mandatory period applies.
7. Any claim also lapses if the User has not submitted a written and reasoned complaint to us within thirty (30) days of discovery, giving us the opportunity to investigate the complaint.

↑ Back to contents

Article 9 — Indemnification

1. The User fully indemnifies us against all third-party claims — including from visitors of the WordPress website, customers, data subjects within the meaning of the GDPR and supervisory authorities — that relate to or arise from the User's use of the Plugin, the Service or the Websites, from the User's WordPress website, from the Content, or from the User's failure to comply with these Terms or with any law or regulation.
2. This indemnification includes reasonable costs of legal assistance and defence.
3. This indemnification does not apply to the extent that the claim results solely from intent or deliberate recklessness on our part.

↑ Back to contents

Article 10 — Third-party services and software

1. The Plugin uses and works with third-party software, services and platforms, including WordPress, UpdraftPlus, Freemius, the e-mail delivery service (including Mailgun), the SMS service and the User's hosting party.
2. We have no control over those third parties and are not liable for their availability, operation, changes, errors, prices or conduct. Their own terms and privacy statements may apply to the use of their products.
3. The purchase and payment of a Pro licence is handled through our sales partner (including Freemius), which may act as the seller (merchant of record). The terms of that partner also apply to that purchase.

↑ Back to contents

Article 11 — Availability of the Service

1. The Service (including the mail fallback and, where available, SMS delivery) is provided on a best-effort basis, without guaranteed availability, without a service level (SLA) and without guaranteed delivery.
2. We may change, suspend, limit or terminate the Service at any time, including without prior notice, without being liable for any compensation.
3. The life-saving core function (creating an emergency backup) does not depend entirely on the Service; however, no guarantees or rights can be derived from this.

↑ Back to contents

Article 12 — Payment, renewal, cancellation and withdrawal (Pro)

1. Prices for the Pro version are stated on the Websites or with the sales partner and are in euros, unless stated otherwise. We may change prices; for an existing subscription a change takes effect from the next renewal.
2. Unless stated otherwise, a Pro subscription renews automatically through a recurring authorisation (for example a SEPA mandate or other payment method), until the User cancels.
3. Cancellation is possible via the account/management environment of the sales partner, observing the notice period stated there. After cancellation, the right of use continues until the end of the paid period.
4. Amounts paid are not refunded, except where mandatory law requires or where we or the sales partner expressly offer otherwise.
5. Right of withdrawal (consumer, digital content): if you purchase a digital product as a consumer, you agree upon purchase that delivery starts immediately and you thereby acknowledge that your statutory right of withdrawal lapses once delivery has begun, to the extent the law permits.

↑ Back to contents

Article 13 — Intellectual property

1. All intellectual property rights in the Plugin (except for the parts covered by the GPL), the Service, the Websites, the trademarks Break-Glass Access, Noodtoegang and KVWB, logos, texts, design and documentation belong to us or our licensors.
2. Except for the rights expressly granted by the GPL (Free version) or the Pro licence, the User receives no rights. The User may not use our trademarks or logos without our prior written consent.

↑ Back to contents

Article 14 — Privacy and personal data

1. When using the Plugin, the Service and the Websites, personal data may be processed. How we do this is described in our Privacy Statement on the Websites.
2. The User is responsible for the lawful processing of personal data on and through their own WordPress website, and for informing and obtaining consent from their own data subjects.

↑ Back to contents

Article 15 — Governing law, competent court and language

1. These Terms and all use of the Plugin, the Service and the Websites are governed by the laws of the Netherlands.
2. Disputes are submitted exclusively to the competent court of the District Court of the Northern Netherlands (Rechtbank Noord-Nederland), location Groningen, unless mandatory law designates another court. A consumer retains the right to bring the dispute before the court that has jurisdiction by law and to invoke the mandatory consumer protection of the country where they reside.
3. International use. The User uses the Plugin, the Service and the Websites on their own initiative and is responsible for complying with local law. To the extent that mandatory local law applicable to a User outside the Netherlands entails broader liability, our liability is limited to the minimum that such mandatory law permits. All exclusions and limitations in these Terms apply in each case "to the extent permitted by applicable law".
4. These Terms were drawn up in Dutch and translated into English. In case of any discrepancy between the language versions, the Dutch text prevails, unless mandatory law in the User's country provides otherwise.

↑ Back to contents

Article 16 — Final provisions

1. We may transfer our rights and obligations under these Terms to a third party. The User may do so only with our prior written consent.
2. Not (immediately) enforcing a provision does not constitute a waiver of the right to do so later.
3. These Terms, together with the Privacy Statement and — for Pro — the licence and sales terms, constitute the entire agreement on the subject.

↑ Back to contents