THE FOLLOWING HAS BEEN AGREED:
ARTICLE 1 – DEFINITIONS
Applicable Data Protection Legislation:
(a) Regulation (EU) 2016/679 of the EuropeanParliament and of the Council of
27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC(‘General Data Protection Regulation’ or AVG for short), (b) the Belgian law of 30 July 2018 on the protection of natural persons with regard to the processing of personal data, (c) any other applicable data protection and privacy laws and regulations applicable to the processing of personal data under the Contract and (d) any amendments or replacements to the aforementioned laws, if any
The period, except for the time reserved for maintenance and updates, during which THEVALUECHAIN ACCELERATOR must be available in a user-friendly and high-quality manner in accordance with the Specifications.
The remote provision, via electronic means, of the functions and options of the Service Provider’s software in accordance with the Specifications.
Failure of THEVALUECHAIN ACCELERATOR to comply in full or in part with the Specifications.
Any person who is authorised by the Client to use THEVALUECHAIN ACCELERATOR and who has access to the Client’s THEVALUECHAIN ACCELERATOR account via a username and password.
Intellectual Property Rights:
All intellectual rights, including but not limited to patents, drawings, models, copyright, rights to software and databases, trademarks, know-how, domain names and trade names.
The provision of information and advice by the ServiceProvider by telephone, by e-mail or via a website or helpdesk concerning the use of THEVALUECHAIN ACCELERATOR up to 8 hours per year, as stipulated in the Specifications. Support may include training if so stipulated in the Specifications.
This licensing and services contract for THEVALUECHAIN ACCELERATOR concluded between the Service Provider and the Client, including any annexes thereto.
Specifications: Description of the functionality, server capacity, operation and quality level of THEVALUECHAIN ACCELERATOR, as well as any client-specific modules to be developed, as ordered by the Client as further described in exhibit 1.
Working Hours: Monday to Friday, from 08:00 to 17:00, except for Saturdays, Sundays and public holidays.
ARTICLE 2 – SUBJECT OF THE CONTRACT
The Client wishes to use THEVALUECHAIN ACCELERATOR and accompanying Support. The Service Provider is prepared to provide the Client with THEVALUECHAIN ACCELERATOR and Support and to provide access to the THEVALUECHAIN ACCELERATOR platform under the conditions stipulated in the Contract.
ARTICLE 3 – LICENCE
- Upon payment of the applicable compensation, the Service Provider shall grant to the Client a non-transferable and non-exclusive licence for use of THEVALUECHAIN ACCELERATOR by the number of Users stipulated in the Specifications. Under the terms of said licence, all usage shall be exclusively online, for the Client’s internal use only and must comply with the intended use of THEVALUECHAIN ACCELERATOR as described in Article 6.
- The Client acknowledges that THEVALUECHAIN ACCELERATOR will be continuously improved and modified by the Service Provider. The Client only has access to the latest version of THEVALUECHAIN ACCELERATOR. Every new version or update of THEVALUECHAIN ACCELERATOR replaces the original or previous version as the updated version is subjected to all rights and obligations stipulated in the Contract. During updates THEVALUECHAIN ACCELERATOR may be temporarily unavailable to the Client.
- The Client may order additional licences at any time. For additional licenses, the applicable compensation is that which is applicable at the time the order is placed. Additional orders are only binding after confirmation by the Service Provider.
ARTICLE 4 – THIRD PARTY COMPONENTS AND HOSTING
- The Customer acknowledges that in order to use the THEVALUECHAIN ACCELERATOR, it needs appropriate hardware, networks, operating systems, data transmittal lines with appropriate communication applications and environments that corresponds with the provided specifications, depending on the selected THEVALUECHAIN ACCELERATOR
- THEVALUECHAIN ACCELERATOR can be dependent on third party applications (for example but not limited to SAP Business Technology Platform).
ARTICLE 5 – THEVALUECHAIN ACCELERATOR GUARANTEES
- The Service Provider states that THEVALUECHAIN ACCELERATOR has been developed professionally in accordance with generally accepted industrial standards and applicable legislation and regulations. The Service Provider will continue to improve THEVALUECHAIN ACCELERATOR and guarantees that THEVALUECHAIN ACCELERATOR will comply with the aforementioned standards at all times. The Service Provider determines the version policy independently and ensures that the most recent THEVALUECHAIN ACCELERATOR version is available to the Client at all times, if and whenever possible.
- The Service Provider does not guarantee that THEVALUECHAIN ACCELERATOR is fully free of small ‘bugs’ or small errors, but only that such small bugs and small errors are not detrimental to the use of THEVALUECHAIN ACCELERATOR. The Service Provider provides THEVALUECHAIN ACCELERATOR ‘as is’. The Client accepts responsibility for selecting THEVALUECHAIN ACCELERATOR, its use and the results obtained herewith. Fitness for a specific use or purpose is excluded. The Service Provider does not guarantee that the THEVALUECHAIN ACCELERATOR functionality complies with the Client’s performance requirements and expectations, except as defined in the Specifications.
- The Service Provider shall take all appropriate safety, protective and maintenance measures regarding content, data and applications which the Client uses via THEVALUECHAIN ACCELERATOR. The Service Provider shall take all reasonable measures to prevent data loss and data corruption. The Service Provider undertakes to cooperate with supervision by or on behalf of the Client regarding the maintenance, security and use of said data.
- The Service Provider guarantees that THEVALUECHAIN ACCELERATOR and Support are provided by experienced, qualified and trained personnel with the appropriate expertise and commitment.
ARTICLE 6 – USE OF THEVALUECHAIN ACCELERATOR
- The Client is responsible for timely selecting and obtaining high speed broadband internet connection for the purpose of being able to use THEVALUECHAIN ACCELERATOR, and for the costs of said telecommunication service.
- The Client shall comply with (i) all applicable international, national, regional and local laws and regulations, and (ii) all internet regulations, policies and procedures of the Service Provider.
- The Client undertakes not to use THEVALUECHAIN ACCELERATOR for illegal purposes or for conduct that is objectionable in any other way, nor in any way that is illegal, deceptive or harmful to THEVALUECHAIN ACCELERATOR, the Service Provider or third parties. The Client may not process any content (i) which is in any way illegal, cruel, slanderous, unlawful, threatening or prejudicial or which is objectionable in any way whatsoever; (ii) which may not be processed by law or pursuant to contractual or fiduciary relationships; (iii) which violates the rights of a third party, including, but not limited to, Intellectual Property Rights and business secrecy. The Client undertakes not to use or deploy any resources, software or routines that could prejudice the Service Provider, third parties, access, security or correct operation of THEVALUECHAIN ACCELERATOR or which could put a disproportionate load on the THEVALUECHAIN ACCELERATOR platform. The Client may not grant access to THEVALUECHAIN ACCELERATOR to any individuals who are not THEVALUECHAIN ACCELERATOR Users and shall ensure that Users comply with this Article 6.
- The Service Provider will not supervise the use that the Client and Users make of THEVALUECHAIN ACCELERATOR, nor will it supervise the data and files processed by the Client and/or Users via THEVALUECHAIN ACCELERATOR. The Client is solely responsible for this. If the Client notices or suspects any abuse of its account information, unauthorized access or use, the Client must immediately change its passwords and inform the Service Provider. In the event of violation or suspected violation of Article 6, the Service Provider is entitled, subject to notifying the Client in advance, to take any measures, block or delete content, and/or suspend the licenses granted to the Client without the Client being entitled to any reimbursement or compensation.
- The use of THEVALUECHAIN ACCELERATOR is also subject to the conditions of any third party applications used by THEVALUECHAIN ACCELERATOR, depending on the selected the THEVALUECHAIN ACCELERATOR. The Client confirms that it has read said conditions and shall comply with them.
ARTICLE 7 – QUALITY OF THEVALUECHAIN ACCELERATOR
- The Service Provider endeavors to achieve an Availability of at least 99,5% for each calendar year as stipulated in the Specifications. Availability does not include unavailability notified beforehand due to yearly maintenance and necessary updates, as well as unavailability due to force majeure as stipulated in Article 16.
- The Service Provider shall undertake all relevant Support activities within a reasonable period. The Service Provider may set conditions on the qualifications and number of Client contact persons who may make use of Support.
- The Service Provider shall take the appropriate measures in the event of Faults. Faults shall only be addressed if the Fault is demonstrable for reproducible. If the time that it takes to resolve the Fault is of such a nature that the Availability of THEVALUECHAIN ACCELERATOR is affected, the Service Provider will provide a temporary, sufficient solution. To this purpose, the Service Provider is entitled to apply bypasses or restrictions to avoid problems. This does not include Faults caused solely by incompetent use by the User(s), demonstrable or reproducible, or work done by the Client with equipment and/or programming which does not comply with the Specifications. Such Faults will only be remedied at the request of the Client and at the then applicable rates.
ARTICLE 8 – LIABILITY OF THE CLIENT
- The Client accepts full and unconditional liability for the operations performed via the THEVALUECHAIN ACCELERATOR accounts of Users. The Client is liable for the confidentiality of its THEVALUECHAIN ACCELERATOR accounts, usernames and passwords, for access to its computer system and for actions and negligence by any party that uses the Client’s THEVALUECHAIN ACCELERATOR account. In no event shall the Client or its shareholders, directors, managers, officers, employees or agents be liable to the Service Provider for any indirect, incidental, consequential, exemplary or punitive damages, or for lost profits, lost data or loss of use damages. The liability of the Client is in all cases limited to the maximum amount paid for THEVALUECHAIN ACCELERATOR during the year preceding the occurrence of damage.
- The Client indemnifies, within the limits of provision 8.1, the Service Provider and its shareholders, directors, managers, employees, agents, distributors, board members, parent companies, subsidiaries, against and in connection with all claims, damage, loss, costs, expenditure, obligations, liabilities and legal proceedings, including but not limited to interest and penalties, reasonable lawyers’ fees and costs and all amounts that are paid with a view to settling a demand, claim or legal proceedings arising from or resulting from: (i) non-compliance with or violation of any obligation stipulated in the Contract; and (ii) claims of any nature whatsoever by a third party suffering any damage whatsoever that is directly the result of the Client’s activities with respect to a violation of the use of THEVALUECHAIN ACCELERATOR by the Client.
ARTICLE 9 – LIABILITY OF THE SERVICE PROVIDER
- The Service Provider will not be liable for any links or services provided by websites of third parties that are available via THEVALUECHAIN ACCELERATOR or any other connection or interaction with third-party materials or functionalities.
- In the event of loss or corruption of Client data, the total liability of the Service Provider is in all cases limited to [maximum the amount paid for THEVALUECHAIN ACCELERATOR during the year preceding the occurrence of damage].
- The Service Provider shall indemnify, keep indemnified, hold harmless and defend the Client against any damages, suits, actions, losses, costs, expenses and claims of third parties as a consequence of any violations, breaches and/or incorrect and/or inadequate fulfilling of the Service Provider its obligations under this Contract.
ARTICLE 10 – PRICE AND PAYMENT TERMS
- Prices are determined on the THEVALUECHAIN ACCELERATOR orderpage or in a quote issued by the Service Provider. Any other offer, as well as information, draft versions, presentations, calculations, etc. issued by the Service Provider is for information purposes only and is not binding upon the Service Provider under any circumstances. All prices indicated are net prices, excluding VAT. Any existing or future taxes of any nature whatsoever and pertaining to the ordered services shall be borne by the Client. The price for THEVALUECHAIN ACCELERATOR and Support shall be invoiced annually and in advance. Licences or server capacity subsequently added to the Contract in the course of the year are invoiced on a pro rata basis up to the next invoice date.
Agreed prices apply to, and can only be within the initial contract period only. The Service Provider reserves the right to communicate and implement indexation at renew.
- Invoices are payable no later than 30 days after the invoice date. If the invoice has not been paid by the due date, the Service Provider may, as of the day following, demand an interest rate equal to the interest rate stipulated in article 5 of the law of 2 August 2002. In the event of late payment of 30 days or longer the Service Provider is entitled to suspend the use of THEVALUECHAIN ACCELERATOR without prior notification until full payment is made.
ARTICLE 11 – PROTECTION OF PERSONAL DATA
11.1 Each Party must at all times comply with its respective obligations under all Applicable Data Protection Legislation in respect of all personaldata processed under the Contract. To the extent that the Service Provider and potential subproviders, in its capacity as processor, would process personal data on behalf of the Client, the Client, in its capacity as controller, shall remain responsible for determining the purpose and manner of processing and the Service Provider shall comply with all instructions reasonably provided by the Client in this regard.
With respect to use by the Client of THEVALUECHAIN ACCELERATOR and the ServiceProvider’s server, the Service Provider shall only act as the processor of the personal data. The Client acknowledges that it acts as the controller and that it is responsible for the personal data at all times.
- The Service Provider will take all appropriate technical measures to protect personal data from unauthorised release or use. In connection with THEVALUECHAIN ACCELERATOR and Support, the Service Provider will only deploy a subcontractor, parent company or subsidiary which complies with similar rules regarding the protection of personal data.
ARTICLE 12 – INTELLECTUAL PROPERTY RIGHTS
- All Intellectual Property Rights to THEVALUECHAIN ACCELERATOR, the THEVALUECHAIN ACCELERATOR platform and the included software, as well as any derivatives, modifications, improvements, updates or versions provided by the Service Provider or its suppliers, as well as all Intellectual Property Rights to any accompanying material, such as images, logos, drawings, texts, documentation, know-how, and all adaptations and modifications thereto, belong exclusively to the Service Provider and its suppliers respectively. No rights are granted to the Client or Users, except for the right to use THEVALUECHAIN ACCELERATOR in accordance with the Contract. The Service Provider safeguards the Client from any claim by a third party on the grounds of a violation of the Intellectual PropertyRights of that third party when using THEVALUECHAIN ACCELERATOR, provided that the Client immediately informs the Service Provider of the claim.
- Intellectual Property Rights arising in connection with THEVALUECHAIN ACCELERATOR, including the rights to specific developments by the Service Provider in the framework of the implementation or customization of THEVALUECHAIN ACCELERATOR for the Client, shall be the property of the Service Provider only. The Client will receive a non-exclusive and non-transferable licence for that purpose insofar as necessary for using THEVALUECHAIN ACCELERATOR.
Notwithstanding the above, the Intellectual Property Rights to specific developments by the Client in connection with the implementation and configuration of THEVALUECHAIN ACCELERATOR shall belong to the Client. Likewise, the Intellectual PropertyRights to customer-specific modules developed by the Service Provider at the request of and on behalf of the Client, such as functional modules, add-ons, plug-ins or other developments for Users, shall belong to the Client.
- The pre-existing property rights to the data and metadata which the Client and Users process through THEVALUECHAIN ACCELERATOR shall remain unchanged. The data shall remain the sole property of the Client. The Service Provider shall receive a licence for these data in sofaras necessary for providing THEVALUECHAIN ACCELERATOR. The Client is prohibited from allocating sub-licences or any other rights to third parties in connection with THEVALUECHAIN ACCELERATOR.
- The Service Provider acknowledges and accepts that a smooth transition is an essential condition for the Client for entering into the Contract.
ARTICLE 13 – CONFIDENTIALITY
- The Service Provider acknowledges that the information transferred by the Client in connection with this Contract as well as the data which the Client and Users use via THEVALUECHAIN ACCELERATOR (“Confidential Information”) are confidential.
The following information is not considered Confidential Information: (i) information which is or becomes generally known without disclosure by the Service Provider; (ii) information which was already known to the Service Provider prior to the disclosure thereof; (iii) or information which was independently developed by the Service Provider.
- The Service Provider will not publicly divulge Confidential Information except where forced to divulge it due to legal requirements or by court order. In such cases, the Service Provider shall give prior notification to the Client, which will provide assistance.
- The Service Provider undertakes (i) not to change the Confidential Information or to use it for any purpose other than the agreed purpose; (ii) to have THEVALUECHAIN ACCELERATOR operated exclusively by individuals whom the Service Provider can reasonably assert to be reliable; (iii) to only give access to Confidential Information to individuals who are specifically assigned to operate THEVALUECHAIN ACCELERATOR and the Support for the Client; (iv) to completely and permanently delete Confidential Information from the THEVALUECHAIN ACCELERATOR platform, at the request of the Client as well as 90 days after the termination of the Contract.
ARTICLE 14 – DURATIONAND TERMINATION
- The Contract shall take effect on the signature date for a period of 3 year. The Contract shall automatically renew unless either party gives a written notice of non-renewal and this 1 month in advance of the initial contract period renewal date.
- The licences awarded shall take effect on the date that the Service Provider sends the access data to the Client, regardless of the time at which the Client began making use of the services, and shall continue to be applicable until the end of the initial term. Subsequently, the licences will be renewed automatically unless the Client or the ServiceProvider informs the other party in writingthat it will not be extending the licence at least one month prior to the end of the relevant calendar year, or unless the Contract is terminated pursuant to Article 14.3 or Article 14.6.
- If one party becomes aware of any action or negligence by the other party which constitutes a violation of the Contract, which could directly or indirectly prejudice a third party, or which could be objectionable in any way whatsoever, the said party shall notify the other party as quickly as possible and in any case within 14 days with a view to remedying the violation or prejudice within 14 days.
If said other party fails to remedy the violation and/or prejudice within the specified time period, then the notifying party shall be entitled to immediately terminate the Contract without notice and without any legal intervention.
- If the Client is notified and the violation is not remedied within 14 days pursuant to Article 14.3., the Service Provider shall also be entitled to block or delete all content and/or terminate or suspend the licenses granted to the Client, without any reimbursement of license fees or any other compensation of the Client and with the Service Provider remaining entitled to full compensation.14.5.
If the ServiceProvider is notified and the violation is not remedied within 14 days pursuant to Article 14.3., the fees already paid will be reimbursed to the Client with respect to the remaining duration of the licenses.
ARTICLE 15 – DATA TRANSFER AND SUPPORT
- Upon commencement of the Contract and/or during the term thereof, the Client may request support from the Service Provider with respect to migrating data to THEVALUECHAIN ACCELERATOR. The Service Provider will use its best efforts in providing such support.
ARTICLE 16 – FORCEMAJEURE
Neither of the parties will be in default or otherwise liable for any delay or failing in the performance of the Contract if such delay or failing is the result of a cause that is unforeseeable and outside of its reasonable control, including but not limited to: earthquakes, floods, fires, epidemics, riots, terrorist actions, absence or delay in transport or communication.
ARTICLE 17 – TRANSFER AND SUBCONTRACTING
The Client is not entitled to transfer the rights and obligations under the Contract to a third party without the prior permission of the Service Provider. The Service Provider is entitled, in connection with the performance of the Contract, to make use of third-party services, in which case the Service Provider shall have a contract signed with that third party reflecting the stipulations of this Contract with the Client. This does not affect the responsibility and liability of the Service Provider for complying with its obligations under the Contract.
ARTICLE 18 – WARRANTY
The Customer acknowledges and agrees that the THEVALUECHAIN ACCELERATOR is provided “as is”. Except for the foregoing warranty and to the maximum extent permitted by applicable law, the Service Provider does not make any representations or warranties, express or implied, concerning any matter under this Contract (including the THEVALUECHAIN ACCELERATOR and services) and the Service Provider disclaims any representations or warranties, express or implied, including (without limitation) any implied warranties of accuracy.
ARTICLE 19 – GDPR
All data of the Client shall be and remain property of the Client. Parties acknowledge that the processing of personal data will occur in accordance with the attached data processing agreement (exhibit 3). The Service Provider shall be considered as the data processor and the Client as the data controller. Both parties shall comply with their obligations under applicable data protection laws, including with the General Data Protection Regulation 2016/679.
ARTICLE 20 LICENSE USE RIGHTS
The Client is granted a personal, restricted, non-exclusive, non-transferrable and non- assignable license to use the licensed products through its Users, in object code for the duration of the Contract.
The Client’s usage right is limited to the limits included in the applicable subscription plan.
ARTICLE 21 – GENERAL PROVISIONS
- This Contract contains the entire agreement between the Parties and is applicable to each use the Client makes of THEVALUECHAIN ACCELERATOR. Unless otherwise agreed, the conditions of the Client and/or of a third party are not applicable.
- If one or more provisions of the Contract are declared null or impracticable, the parties shall replace said provision(s) by a valid and feasible provision which, in so far as possible, will achieve the economic, commercial or other intended purpose of the aforementioned null or impracticable provision. The remaining provisions of the Contract shall remain in force.
- The mere fact that a party does not insist upon strict compliance with a provision of the Contractor does not enforce it cannot be interpreted as a relinquishment or abandonment of the rights of that party unless such is confirmed in writing.
- The rights and remedies granted to the parties under the Contract are complementary and in no way limit other rights or remedies legally granted to the parties. All such rights and remedies are cumulative and can be exercised separately or together.
- Obligations which, by their very nature, are intended to continue applying even after the termination of the Contract shall continue to exist after the termination of the Contract, including but not limited to those pertaining to confidentiality, liability and Intellectual Property Rights.
- All correspondence between the Service Provider and the Client will be in writing and in English and will be deemed to have been sent (i) to the Client if it has been sent by e-mail to the e-mail address for correspondence registered via the THEVALUECHAIN ACCELERATOR order page and (ii) to the Service Provider. Correspondence by e-mail is considered to have been effected on the first working day following the sending of the e-mail.
- The Service Provider undertakes to take an appropriate insurance for its liability under this Contract with an insurance company certified in Belgium and to provide any reasonable proof of such insurance at the first request of the Client.
ARTICLE 22 – APPLICABLE LAW AND JURISDICTION
The Contract is subject to and interpreted in accordance with Belgian law. In the event of a dispute with respect to the Contract, the tribunals and courts of ANTWERP [ANTWERP District/Arondissement ANTWERPEN – ANTWERP Division / Afdeling ANTWERPEN] shall have exclusive jurisdiction.
Done in KONTICH on DD/MM/YYY in two originals, of which each Party acknowledges having received one.