“Client” means any entity that uses the Service for acquiring the Safety Passport or other e-learning programs.
“Customer” means a Client or a Contractor
“Confidential Information” means all technical, functional, technological, commercial, economical, operational, strategic, business and financial information in any form (verbal or in writing, digital or not) which directly or indirectly concerns a party or its business
"Content" means any information such as certificates, accident statistics, insurance policies, (training) videos, (personal) data of employees, texts, manuals, messages, graphics, images, Links, materials or any other data
“Contractor” means any entity that needs to take training.
“Intellectual Property Rights” means all worldwide intellectual property rights, whether registered or not, including but not limited to copyrights, rights to software, trademarks and service mark rights (including all goodwill embodied therein), rights to semi-conductor products, database rights, patent rights, domain names, design rights, knowhow, trade secrets, and all other intangible property rights and all rights related thereto, including but not limited to the rights to use, prosecute, register and enforce the Intellectual Property Rights
“Link” means any direct or indirect reference, URL or hyperlink to a website not managed by Onyx
“Onyx” means BVBA ONYX VIRTUAL ACADEMY, a private limited liability company (‘Besloten vennootschap met beperkte aansprakelijkheid’ / ‘Société privée à responsabilité limitée’) incorporated and existing under Belgian law having its registered office at 9220 Hamme, Stationsstraat 16 (Belgium) and registered with the Crossroads Bank for Enterprises (‘Kruispuntbank van Ondernemingen’ / ‘Banque-Carrefour des Entreprises’) under the number 0817.701.288
“Profile” means a User account on HSSE – The Safety Portal, created after registration, and containing User Content
"User" means an employee, work-for-hire or agent of a Customer
"User Content" means all Content that a User uploads, downloads, posts, publishes, exchanges, submits or consults via HSSE – The Safety Portal and/or his Profile
To the extent permitted by law, Onyx reserves the right to amend or modify the Terms at its own discretion.
In the event of a material modification of the Terms, Onyx shall notify its Users through a notification on the Service and/or a durable medium (such as an email).
The amendments to the Terms will take effect as of the date indicated in the notification. The User accepts the amendments by ticking off a box stating that the User has read and accepted the amendments.
This version of the Terms was last updated on September 19th, 2019.
3. OUR SERVICES
The Services constitute an online platform, HSSE – The Safety Portal.
HSSE – The Safety Portal is an online training management tool that that allows you to manage your learning journey and acquire or renew your Safety Passport. Onyx does not in any way control, verify or review the correctness, accuracy, completeness, quality, lawfulness or timeliness of the User Content available, accessible or exchanged via the Platform. You understand and agree that Onyx is not responsible for Content, for the unauthorized (or mis) use of or reliance on it, or for any transaction between a User and any other User or third party.
4. RIGHTS AND OBLIGATIONS OF ONYX
4.1. SERVICE AVAILABILITY
Onyx makes reasonable efforts to keep the Service accessible and operational in accordance with standard industry practice. Onyx provides the Service “as is” and “as available”, without express or implied warranty or condition of any kind. To the fullest extent permitted by applicable law, Onyx makes no representations and disclaims any warranties or conditions of satisfactory quality, fitness for a particular purpose or non-infringement.
The User acknowledges that the Service may be temporarily interrupted or inaccessible, in whole or in part, due to maintenance, updates, and technical reasons or any other reasons. The User also acknowledges that Onyx reserves the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Service.
In the event of a material modification of the Service which adversely affects the User, Onyx shall notify the User through a notification on the Service and/or a durable medium (such as an email).
Onyx provides a helpdesk for support assistance to the User by means of support tickets. Onyx shall take reasonable measures to respond adequately to support requests.
Onyx takes reasonable security measures according to standard industry practice to prevent and protect User Content from unauthorized access, use or disclosure. Onyx will take reasonable steps to recover and prevent further disclosure of User Content in case of unauthorized access, use or disclosure.
Onyx reserves the right at its sole discretion to remove or disable access to any User Content for any reason, including but not limited to User Content that violates these Terms.
5. RIGHTS AND OBLIGATIONS OF THE USER
5.1. USER PROFILE
In order to use the Service, a User must register to the Service and create a Profile.
The User uses the Service at its own risk and is responsible for anything that happens through its Profile.
5.2. USER CONDUCT
The User represents and warrants that it has the right, power and authority to use the Service and to submit, exchange or otherwise use or make available User Content.
The User shall not copy, redistribute, reproduce, transfer, sell, rent, license, sublicense, lease or make available to the public any part of the Service or the Content, or otherwise make use of the Service or Content which is not permitted under or contemplated by these Terms, or violates the applicable law or rights of third parties.
The User shall not engage in any activity that conflicts with the present Terms or with any applicable law.
5.3. USER CONTENT
The User is solely responsible for all User Content that it provides and for the use made of its Content.
The User represents and warrants that the User Content it provides, submits, uploads, publishes exchanges or otherwise makes available via the Platform (i) is correct, accurate, complete and lawful, (ii) is not fraudulent, false, deceptive, misleading, inaccurate or otherwise irregular and (iii) does not infringe, misappropriate or violate a third party’s intellectual property or proprietary rights or other rights such as rights of publicity, privacy or data protection, or result in a violation of any applicable law or regulation.
5.4. USER SECURITY
The User shall use appropriate security precautions. The User is solely and fully responsible for keeping its password confidential and secure. If the User believes there has been unauthorized access to its account by third parties or if any username or password is lost, it shall notify Onyx immediately and change the password as soon as possible.
The User shall not (i) impersonate or misrepresent its affiliation with any other person, entity, or User, (ii) provide malicious User Content such as malware, trojan horses, or viruses, or (iii) engage in any activity that interferes with or in any way disrupts the Services, Onyx’s computer systems, network or any of Onyx’s security components, authentication measures or any other protection measures applicable to the Service, the User Content or any part thereof.
5.5. SUSPENSION OF SERVICES
Without prejudice to article 8, Onyx is entitled to temporarily suspend the Services in whole or in part without compensation and without intervention by the courts if (i) it reasonably believes that the Services are being used in breach of the Terms, (ii) Onyx must suspend the Services according to applicable law, (iii) Onyx determines on reasonable grounds that the provision of the Services is prohibited by applicable law or has become impractical for any legal or regulatory reason, or (iv) there is another event for which Onyx believes that the suspension of the Services is necessary to protect its Users.
Onyx will use commercially reasonable efforts to give the User advance notice of such suspension, unless it determines on reasonable grounds that a suspension on shorter notice is necessary to protect Onyx or its other clients from imminent and significant operational or security risk. Onyx is entitled to terminate its Services with immediate effect if suspension of the Services by Onyx pursuant to this article exceeds a period of thirty (30) calendar days.
6. DATA PROTECTION
Onyx undertakes to handle the personal data in accordance with the provisions of the applicable data protection legislation, including but not limited to Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
If personal data of Users are processed in the performance of the Services, Onyx shall be regarded as the processor of the personal data and the Customer as the controller. This processing by Onyx on behalf of the Customer is subject to a specific data processing agreement.
7. OWNERSHIP AND INTELLECTUAL PROPERTY
The User acknowledges and agrees that the Service is protected by Onyx or its licensor’s Intellectual Property Rights. Any and all right, title and interest in and to the Intellectual Property Rights relating to the Service and documentation relating to the Service, including but not limited to rights on object code, source code, texts, pictures, drawings, manuals, databases, schemes, visual expressions, screen formats, report formats and other design features of the Service, algorithms, formulae and concepts used in developing and or incorporated in the Service and future modifications, revisions, updates, releases, refinements, improvements and enhancements of the Service, are and shall remain at all times the sole and exclusive property of Onyx and its licensors.
The User acknowledges and agrees that all Onyx trademarks, trade names, logos, domain names, and any other features of the Onyx brand are protected by Onyx or its licensor’s Intellectual Property Rights. Any and all right, title and interest in and to the Intellectual Property Rights relating to the Onyx trademarks, trade names, logos, domain names, and any other features of the Onyx brand are and shall remain at all times the sole and exclusive property of Onyx and its licensors.
In no case shall any provision of the present Terms be construed as transferring any and all right, title and interest in and to the Intellectual Property Rights relating to the Services or the Onyx trademarks, trade names, logos, domain names, and any other features of the Onyx brand of Onyx and its licensors to the User.
The User shall not infringe the Intellectual Property Rights of Onyx or its licensors to the Services or the Onyx trademarks, trade names, logos, domain names, and any other features of the Onyx brand, nor perform any other acts by which the Intellectual Property Rights of Onyx or its licensors or the value of such Intellectual Property Rights could in any way be harmed or negatively affected. This means, without being exhaustive, that the User shall not reproduce, multiply, modify, publish, translate, process, rent, or exploit, the Intellectual Property Rights of Onyx or its licensors in a way that exceeds the scope of the present Terms, or use them in any other infringing way, entirely or partially, in the original or modified form, for commercial or non-commercial purposes.
For the avoidance of doubt, all Intellectual Property Rights in and to the User Content are the property of the respective content owner and may be protected by Intellectual Property Rights.
Without prejudice to its contractual and statutory rights, Onyx may suspend the User’s access to the Service with immediate effect, without compensation, without the need for prior court intervention, if the User commits any breach of any of the provisions of these Terms.
Onyx may warn other Users of a User’s actions if it believes that a breach may cause any loss or damage to other Users. This includes, but is not limited to, the event where User Content was incorrect, inaccurate or affected by any other irregularities.
9.1. EXCLUSION OF LIABILITY FOR LINKS
Onyx makes no representation, nor does it warrant, endorse, guarantee, or assume responsibility for any service or product advertised or offered by a Customer or a third party on or through this Service or any Link, or featured in any banner or other advertising.
9.2. LIMITATION OF LIABILITY
Except in case of fraud or willful misconduct and to the fullest extent permitted by law, Onyx and its directors, officers, employees, agents, attorneys or affiliates shall not be liable to the User whether in tort (including for negligence), in contract, or otherwise, for own acts or omissions and those of other Users, subcontractors, agents or employees and notwithstanding any provision to the contrary in the present Terms, for any indirect, incidental, consequential, special, exemplary or punitive damages including but not limited to lost profits and revenue, lost data, goodwill or business opportunity, cost of personal, reputational damage, missed savings, or property damage related to or in connection with, or otherwise resulting from any use of the Service, even if the User has been advised of the possibility of such damage.
In no event, except in case of fraud or willful misconduct, shall Onyx’ and its directors’, officers’, employees’, agents’, attorneys’ or affiliates’ total liability in connection with the Service (whether in contract, tort (including negligence), breach of statutory duty, indemnity or otherwise) exceed the amount of subscription fees the Customer has paid to Onyx in the last twelve (12) months prior to the action giving rise to liability. The total aggregate liability of Onyx shall never exceed the amount covered by Onyx professional liability insurance available at the time of settlement or judgment.
The User shall defend, indemnify and hold harmless Onyx for and against any and all claims, demands, damages, losses, liabilities, judgments, penalties, costs and other expenses of any kind (including attorneys’ fees), arising out of or related to (i) the User’s breach of the present Terms; (ii) the User Content; (iii) any activity in which the User engages on or through the Service; and (iv) the User’s violation of any law or the rights of third parties.
Whenever possible, the provisions of the present Terms shall be interpreted in such a manner that they are valid and enforceable under the applicable legislation.
If any provision in the present Terms, should be illegal, invalid or non-enforceable, in whole or in part, this shall not cause in any way the illegality, invalidity or non-enforceability of the remaining provisions (or parts thereof) of the present Terms and the Terms will remain in full force and effect between Onyx and the User, with the exception of the illegal, invalid or non-enforceable provision or part thereof.
In that event, the illegal, invalid or non-enforceable provision or part thereof is automatically replaced with the legal, valid and enforceable provision that is the closest to the original provision or part thereof as regards content, bearing and intention.
12. FORCE MAJEURE
No party shall be liable to any other party for any failure to fulfil its duties under these Terms if and to the extent that such failure results from circumstances, acts or events (i) which cannot be reasonably foreseen or if it was foreseeable, could not reasonably have been and cannot reasonably be avoided or overcome by the Affected Party (as defined below) and (ii) are beyond the reasonable control of such Affected Party making it unreasonable for that Affected Party to fulfil temporarily or definitively its obligations under these Terms (“Force Majeure Event”).
In the absence of proof to the contrary, a party invoking this article shall be presumed to have established the conditions described in the paragraph above in case of the occurrence of one or more of the following impediments, but not limited to:
(a) war (whether declared or not), armed conflict or the serious threat of same (including but not limited to hostile attack, blockade, military embargo), hostilities, invasion, act of a foreign enemy, extensive military mobilisation;
(b) civil war, riot rebellion and revolution, military or usurped power, insurrection, civil, commotion or disorder, mob violence, act of civil disobedience;
(c) act of terrorism, sabotage or piracy;
(d) act of authority whether lawful or unlawful, compliance with any law or governmental order, rule, regulation or direction, curfew restriction, expropriation, compulsory acquisition, seizure of works, requisition, nationalisation
(e) act of God, plague, epidemic, natural disaster such as but not limited to violent storm, cyclone, typhoon, hurricane, tornado, blizzard, earthquake, volcanic activity, landslide, tidal wave, tsunami, flood, damage or destruction by lightning, drought
(f) explosion, fire, destruction of machines, equipment, factories and of any kind of installation, prolonged break-down of transport, telecommunication or electric current;
(g) general labour disturbance such as but not limited to boycott, strike and lock-out, go-slow, occupation of factories and premises;
(h) cyber terrorism, cyber-attacks, IT failure as a consequence of malicious third-party software.
In the case of a Force Majeure Event, the party unable to fulfil its duties pursuant to this article (the “Affected Party”) shall:
(i) give written notice to each other party as soon as reasonably practicable upon becoming aware of the Force Majeure Event, such notice to contain the following information: (a) the Force Majeure Event that has occurred; (b) the date from which the Force Majeure Event has prevented or hindered the Affected Party in the performance of its duties hereunder; (c) the duties under these Terms so affected; (d) its best estimate of the date upon which it will be able to resume performance of the affected duties under these terms;
(ii) at all times continue to take all steps reasonably within its reach to resume full performance of its obligations under these Terms; and
(iii) at all times use all reasonable endeavours to mitigate the consequences of the Force Majeure Event.
The relief from liability provided under this article shall last for the duration of the Force Majeure Event only.
Onyx may assign or transfer the present Terms, as well as the individual rights and obligations that ensue from these Terms, directly or indirectly, in whole or in part, by virtue of law (for example, within the framework of a merger or transfer of a branch of activities) or otherwise, with prior notification to or consent of the User.
14. GOVERNING LAW AND JURISDICTION
All aspects of the present Terms (including but not limited to their formation, existence, validity, interpretation, performance and non-performance or defective or late performance, enforcement, and termination) and/or the Service are governed by Belgian law, excluding Belgium’s conflict of law rules.
All possible disputes arising out of, in relation to, or in connection with the present Terms and/or the Service, shall be subject to the exclusive jurisdiction of the courts of the judicial district of Dendermonde, Belgium. Each party consents to the exclusive jurisdiction and venue of those courts for any dispute.
In relation to third parties, either party shall observe confidentiality in respect of all Confidential Information which in any form whatever have been provided by the other party.
The parties shall impose a similar obligation of confidentiality upon their officers, personnel or persons who are employed in the execution of the Services under these Terms and/or any assignment in the framework of these Terms. The parties shall only divulge Confidential Information to said personnel and/or persons if this is required in connection with the execution of said work.
This obligation of confidentiality shall continue to exist until five (5) years after any assignment in the framework of these Terms, except with regard to trade secrets, which shall remain confidential as long as such information is considered a trade secret following the Belgian act of 30 July 2018 concerning the protection of trade secrets.
Confidential Information shall not include information which: (i) shall have become publicly available lawfully and/or in a manner that does not conflict with the provisions of the Terms other than as a result of disclosure by the receiving party in breach hereof; (ii) was disclosed to the receiving party on a non-confidential basis from a source other than the disclosing party, which the receiving party believes it is not prohibited from disclosing as a result of an obligation in favor of the disclosing party; (iii) is developed by the receiving party independently of, or was known by the receiving party prior to, any disclosure of such information made by the disclosing party; (iv) is required to be disclosed by order of a court of competent jurisdiction, administrative agency or governmental body, or by any law, rule or regulation, or by subpoena, summons or any other administrative or legal process, or by applicable regulatory or professional standards; or; (v) is disclosed with the prior written consent of the disclosing party.
16. HOW TO CONTACT US
If you want to send us notices or if you have any questions, queries or complaints please contact us at:
BVBA ONYX VIRTUAL ACADEMY
9220, Hamme (Belgium)