Terms of service
CLOUD BASED ACCELERATOR LICENCE AGREEMENT
BETWEEN:
“Service Provider”
AND
« Client »
Service Provider and Client referredto individually as the “Party” and jointly as the “Parties”
ARTICLE 1 – SCOPE ANDE APPLICABILITY
1.1 This document contains the terms and conditions that govern the relationship between THEVALUECHAIN and the Customer in relation to the use of Products offered by THEVALUECHAIN. Thus, these terms and conditions apply as well to all offers made by us relating to a Product as to the Agreements that we enter into with any specific Customer.
1.2 The Cloud License Contract Terms contained in this document, together with the Specific Terms, form the full Agreement with a Customer relating to a specific Product.
1.3 The applicability of a Customer’s purchase terms, general terms and/or other terms and/or conditions is hereby explicitly rejected, unless the applicability of a specific term or condition is explicitly accepted by THEVALUECHAIN in the Specific Terms.
ARTICLE 2 – DEFINITIONS
In this document, the hereinafter mentioned terms shall have the meaning as set out in this Article.
- Agreement: the full set of reciprocal commitments between THEVALUECHAIN and a Customer relating to a specific subject and consisting of (a) these present Cloud Licence Contract Terms, as they may be amended from time to time and (b) the Specific Terms.
- Applicable Data Protection Legislation: (a) Regulation (EU) 2016/679 of the European Parliament 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 ‘GDPR’), (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.
- Article: a clause of these Cloud Licence Contract Terms.
- Availability: The ratio, expressed in a percentage, of the period of time during a period, except for the time reserved for maintenance and updates, during which a Product shall be accessible in accordance with the Specifications, set off against the total amount of time during this same period.
- Contract Term: the period of the duration of an Agreement, which is – save in case for other provisions in the Specific Terms – one (1) year.
- Cloud Licence Contract Terms: the general contractual terms relating to the use of a cloud based application offered by THEVALUECHAIN as set forth in this document, including the amendments hereof that may come into force from time to time.
- Customer: a natural person acting in the exercise of a profession or a business or a legal entity that entered into an Agreement with THE VALUECHAIN.
- Customer Domain: a distinct area on the platform by means of which the Product is offered by THEVALUECHAIN where the data that are entered by a Customer are stored, which area is not accessible for other Customers.
- Effective Date: the date on which an Agreement enters into force as defined in Article 3.3.
- Fault: Failure of a Product to comply, save in case of force majeure, in full or in part with the Specifications which is demonstrable and reproducible.
- Force Majeure: an event that has not been reasonably foreseen by the affected Party, is outside of its reasonable control and makes the execution of an obligation or commitment under the Agreement either impossible or unreasonably hard, including but not limited to: earthquakes, floods, fires, epidemics, riots, strikes, terrorist actions, absence or delay in transport or communication. It is understood that this contractual definition of Force Majeure also implies situations of hardship or imprevision.
- 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. Parties hereby agree that for the execution and/or interpretation of their Agreement or any right, commitment or obligation thereunder, creations, signs, methods or objects that comply with the material requirements for qualifying as an intellectual property right but lacking the fulfilment of any administrative
requirements of (renewal of) application, registration, filing or the like, shall be deemed to be Intellectual Property Rights. - Parties/Party: THEVALUECHAIN and the Customer jointly (in plural) or separately (in singular).
- Partner: a legal entity that is authorized by THEVALUECHAIN to promote and offer one or more Products to potential Customers, notwithstanding the fact that each and every Agreement can only be entered into directly by THEVALUECHAIN, whereby it is to be understood that no Partner is authorised to commit or represent THEVALUECHAIN.
- Personal Data: the data defined in article 4, sub 1 of Regulation (EU) 2016/679 of the European Parliament 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
- Platform: the digital environment used by THEVALUECHAIN to host and offer the concerned Product and with is accessible, inter alia, via the Website.
- Product: any cloud based standardised application that is independently developed and offered by THEVALUECHAIN for use by the Customers under the conditions of the Cloud Licence Contract Terms.
- Services: the services, including Support, offered by THEVALUECHAIN relating to (the use) of a Product.
- Specifications: the technical description of the Availability, functionalities, (user) requirements, operation and quality level of a Product.
- Specific Terms: the specific provisions indicating (i) the Product that is the subject of an Agreement; (ii) the extent to which the Product is used, expressed in in the applicable Subscription Plan and the number of Users and, if applicable, the selected options or functionalities; (iii) the price corresponding with the use of the Product described in (i) in the extent described in (ii); and (iv) any further specific agreements between the Parties, relating to (i), (ii) and/or (iii), possibly deviating from or additional to the Cloud Licence Contract Terms, that are agreed at the moment of conclusion of the Agreement or at any later moment in accordance with the stipulations of the Agreement.
- Subscription Plan: the specific packages that are offered by THEVALUECHAIN and that determine the extent to which, save for the number of Users that can be determined separately in the Specific Terms, a Customer can make use of a Product.
- Support: The provision of information and advice concerning the use of a Product as offered by the THEVALUECHAIN.
- THEVALUECHAIN (may also be referred to as “we”, “us” or the “Company”): The company established according to Belgian law THEVALUECHAIN NV, with registered office in Belgium, at 2550 Kontich, Satenrozen 10, with company number 0838.023.085 and VAT number BE0838.023.085, with telephone number + 32 3 84.42.605, with e- mail address info@thevaluechain.eu and url https://thevaluechain.eu.
- User: anyone logging into a Product, anyone actually using a Product of processing data therein, whether or not this is done in the framework of an agreement concluded between the User and THEVALUECHAIN.
- Website: the website of THEVALUECHAIN accessible via URL www.thevaluechain.eu.
- Working Hours: Monday to Friday, from 08:00 to 17:00 CET, thus excluding Saturdays and Sundays and with the exception of Belgian public holidays, during which Working Hours also don’t apply.
ARTICLE 3 – OFFER AND AGREEMENT
3.1 Offers or price quotes relating to a Product, either published or communicated by THEVALUECHAIN or a Partner, are non-binding and revocable by THEVALUECHAIN and should be regarded merely as an invitation to place an order.
3.2 THEVALUECHAIN is entitled to not accept a (potential) Customer and/or not accept order(s) placed by a Customer.
3.3 An Agreement shall only be concluded and come into effect in case THEVALUECHAIN has confirmed an order of a (potential) Customer either by means of the designated pages or fields of the Platform or otherwise in writing and, cumulative, the Customer has executed the required first payment according to the Specific Terms.
3.4 The Customer, upon entering into an Agreement, acknowledges that the nature of the Agreement, that is to grant the Customer a right of access to a centrally hosted Product that is simultaneously accessible for different Customers, implies that the Product may be subject to updates, upgrades or other changes that can change (the use of) the concerned Product and therefore cannot require the provision, by THEVALUECHAIN, of an absolute and unaltered product throughout the contracting period.
3.5 THEVALUECHAIN shall be entitled to amend the Cloud Licence Contract Terms without prior consulting the Customers. THEVALUECHAIN however shall inform the Customers about the planned amendments at least two (2) months before their implementation. Within the timeframe of the first month following the communication of the amended Cloud Licence Contract Terms, the Customer shall have the right to notify to THEVALUECHAIN, either by means of the designated pages or fields of the Platform or otherwise in writing, its decision to terminate the Agreement. In such case, no Party shall be liable towards the other for the payment of any damages or other amounts. If the Customer does not submit a decision of termination within a month after receiving the notification regarding the amendments, the Customer shall be deemed to have agreed with the amendments.
ARTICLE 4 – PRICES AND PAYMENT
4.1 All prices published, offered or communicated by THEVALUECHAIN are exclusive of VAT and do not include possible other taxes, levies or duties that may be due. VAT or other taxes, levies or duties may be added by THEVALUECHAIN to the prices as offered or communicated. Any existing or future taxes of any nature whatsoever and pertaining to the use of a Product and/or concerned Services shall be borne by the Customer.
4.2 Prices cannot be changed during the Contract Term, save in case of mutual agreement between the Parties, which agreement can be derived from the absence of protest by the Customer.
4.3 Unless explicitly agreed otherwise in writing, all prices for the use of a Product and the included related Services shall be invoiced annually, prior to the beginning of the Contract Term, and are immediately due. Upon agreement between the Parties, the prices for the use of a Product may be due on a monthly basis, each time prior to the month the payment relates to, in which case payment shall have to be effectuated through (SEPA or accepted credit card) direct debit.
4.4 Extra requests, such as additional functionalities, Services, modules, licenses or server capacity, that are not within the scope of the Agreement, can be made by the Customer according to availability of such possibility by means of the Platform. Licences or server capacity subsequently added to the Agreement, in the course of the Contract Term, are invoiced on a pro rata basis.
4.5 If the direct debit cannot be executed because of a reason not attributable to THEVALUECHAIN, THEVALUECHAIN reserves the right to refuse access to the concerned Product without prior notification until full payment is made.
4.6 In case of late payment THEVALUECHAIN is entitled to a late payment interest of 10% annually and to an additional extrajudicial recovery fee at the rate of 10% of the outstanding amount due by the Customer without prior notification. If the Customer – after written notice of default – still not complies with its payment obligations, THEVALUECHAIN shall have the right to , in whole or in part, suspend further performance of the Services and access to the Product until the Customer has fully complied with its payment obligations.
ARTICLE 5 – LICENCE
5.1 Upon full payment of the applicable consideration according to the Specific Terms, THEVALUECHAIN shall grant to the Customer a non-transferable, non-exclusive and non-sublicensable right to use the concerned Product, as mentioned in the Specific Terms, to the extent as equally mentioned in the Specific Terms. Under the terms of
said license, all usage shall be exclusively online and accessible with a personal account on the Platform, for the Customer’s internal use only and must comply with the intended use of concerned Product as described in Article 6.
5.2 The Client acknowledges that in line with the stipulations of Articles 3.4 and 8.2, the Product will be continuously improved and modified by the THEVALUECHAIN. The Customer only has access – as well as a right of use – to the latest version of the Product. Every new version or update of the Product replaces the original or previous version, while the updated version is subjected to all rights and obligations stipulated in the Agreement without such replacement creating any kind of novation of the Agreement in place at that moment. During updates the Product may be temporarily unavailable to the Customer.
5.3 Customer acknowledges that THEVALUECHAIN reserves the right to make future features and functionalities subject to additional payment.
ARTICLE 6 – GENERAL TERMS OF USE
6.1 The Customer shall not use the Product, or have the Product used, in violation with the legal provisions of the terms of this Agreement.
6.2 The Customer shall not, and guarantees that no User that is part of its organisation, has obtained login data from or through the Customer or uses the infrastructure of the Customer shall not
6.2.1 process any content (i) which is 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.
6.2.2 use or deploy any resources, software or routines that could prejudice the Product, third parties, access, security or correct operation of the Product or which could put a disproportionate load on the Platform.
6.2.3 use the Product 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, The Product or third parties
6.2.4 grant access to the Product to any individuals who are not rightful Users.
6.3 While using the Product, the Customer shall not, and guarantees that no User that is part of its organisation, has obtained login data from or through the Customer or uses the infrastructure of the Customer shall
6.3.1 exercise due care while using the Product and accessing the Platform.
6.3.2 exercise the necessary attention and care regarding possible harmful and unlawful data. The Customer shall, notwithstanding the possibility for THEVALUECHAIN to address any User directly on the basis of tort or extracontractual law, be contractually responsible for the content and accuracy of the data which the is entered by a User that is part of its organisation, has obtained login data from or through the Customer or uses the infrastructure of the Customer, even if the data originates from third parties. The Customer shall, notwithstanding the possibility for THEVALUECHAIN to address any User directly on the basis of tort or extracontractual law, indemnify THEVALUECHAIN against any third-party claims that are based on the input or harmful and/or unlawful data.
6.3.3 restrict the use for the intended purposes only.
6.3.4 refrain from actions outside the Customer Domain.
6.3.5 keep confidential the usernames and passwords assigned to or created by the User for access to the Product or the Platform. THE VALUECHAIN shall not be held liable for misuse or loss of usernames and passwords by any User.
6.4 THEVALUECHAIN reserves the right to inspect the content of the processed documents and data files for irregularities through sample checks and will immediately remove unauthorized files from the Platform.
6.5 The Customer shall install and maintain the necessary policies allowing it’s Users who notice or suspect any abuse of account information, unauthorized access or use, to immediately change its passwords and inform the THEVALUECHAIN.
6.6 In the event of violation or suspected violation of the provisions of this Article 6, THEVALUECHAIN shall be explicitly entitled to temporarily or permanently block one or more User’s registration and/or access to Platform, and/or suspend the licenses granted to the Customer without the Customer being entitled to any reimbursement or compensation.
ARTICLE 7 – THIRD PARTY COMPONENTS AND HOSTING
7.1 The Customer acknowledges that in order to use the Product, it needs appropriate hardware, networks, operating systems, data transmittal lines with appropriate communication applications and environments that correspond with the Specifications, depending on the selected Product. THEVALUECHAIN shall never be responsible and/or liable for the (correct) functioning of the Customer’s infrastructure including software and/or third party software used by the Customer.
7.2 The Customer acknowledges that a Product can be dependent on third party applications (for example but not limited to SAP Business Technology Platform). The Customer acknowledges and accepts that THEVALUECHAIN has no control over third party software, services and/or integrations and that these can be suspended or discontinued at any time, for any reason whatsoever, without THEVALUECHAIN becoming liable to pay compensation for damages to the Customer. However, THEVALUECHAIN will endeavour to provide advance notice as soon as reasonable possible.
7.3 The Customer is responsible for timely selecting and obtaining high speed broadband internet connection for the purpose of being able to use the Products, and for the costs of said telecommunication service.
ARTICLE 8 – GENERAL PRODUCT AND SERVICE COMMITMENTS
8.1 THEVALUECHAIN shall perform its Services, including the granting of the access and right to use the concerned Product, on a best-effort obligation. THEVALUECHAIN guarantees in this regard that its Services are provided by experienced, qualified, and trained personnel with the appropriate expertise and commitment.
8.2 THEVALUECHAIN states that the Product has been developed professionally. THEVALUECHAIN will continue to improve the Product.
8.3 THEVALUECHAIN endeavours to achieve an Availability of at least 99,5% for each calendar year, excluding unavailability due to Force Majeure.
8.4 THEVALUECHAIN shall notify the Customer, simultaneously with the deployment of a modified version of a Product, about the concerned modifications if these modifications lead to modifications in functionality.
8.5 THEVALUECHAIN does not guarantee that a Product is free of ‘bugs’ or errors, but shall make every reasonable effort to solve possible ‘bugs’ or errors in a Product without any guarantee that all errors will be fixed.
8.6 THEVALUECHAIN provides the Product ‘as is’. The Customer accepts responsibility for selecting Product options, the use of the Product and the results obtained herewith. No fitness for any specific use or purpose is guaranteed by THEVALUECHAIN. THEVALUECHAIN does not guarantee that the Product functionality complies with the Customer’s performance requirements and expectations, except as defined in the Specific Terms.
8.7 THEVALUECHAIN shall take all appropriate safety, protective and maintenance measures with regard to the Product, the Platform and the data stored on the Platform. THEVALUECHAIN shall take all reasonable measures to prevent data loss and data corruption, it being understood that the primary obligation to maintain sufficient data backup for Customer data resides, and shall remain at all times, with the Customer. THEVALUECHAIN undertakes to cooperate with supervision by or on behalf of the Customer regarding the maintenance, security, and use of said data.
8.8 THEVALUECHAIN is permitted to apply application throttling at its own discretion at any point in time when the traffic generated by the Customer overloads THEVALUECHAIN ACCELERATOR’S system to such an extent that the performance for other Customers and Users is degraded or impaired.
8.9 THEVALUECHAIN shall take the appropriate measures in the event of Faults. If the time that it takes to resolve the Fault is of such a nature that the Availability of the Product is affected, THEVALUECHAIN will endeavour to provide a temporary solution to allow the Customer to make use, in as for as reasonably possible, of the basic
features and functions. To this purpose, THEVALUECHAIN is entitled to apply bypasses or restrictions to avoid problems. This does not include Faults caused solely by incompetent use by a User nor work done by the Customer with equipment and/or programming which does not comply with the Specifications, the results of which are solely for the risk and account of the Customer.
ARTICLE 9 – DATA AND CONTENT COMMITMENTS
9.1 The Customer shall be the sole responsible Party for the content and accuracy of the data it submits or enters onto the Platform, even if that data come from third parties. The Customer shall also be responsible for ensuring that the data is lawful and does not infringe third-party rights. THEVALUECHAIN is not obliged to check the accuracy, completeness, readability and scan quality of the data and other contents. THEVALUECHAIN accepts no liability for content and/or data files stored, processed and/or exchanged using the Product, nor for the consequences of the use of (incorrect or incomplete) data submitted or entered by the Customer. The Customer indemnifies THEVALUECHAIN for third-party claims which are based on the assertion that the documents and/or data files stored, processed and/or exchanged by the Customer using the Product or the Platform are unlawful.
9.2 The Customer shall remain the rights holder of its data that are stored, edited,
processed or otherwise entered in the Product or the Platform.
9.3 THEVALUECHAIN shall create a total backup every night. Back-ups are retained during a period of fourteen (14) days. Restoring individual backups is not included in THEVALUECHAIN’s standard service and can only be performed at an extra fee.
9.4 The Customer itself shall be responsible for ensuring adequate compliance with applicable legal retention periods with regard to the used or entered data.
9.5 In case a Product stores Customer data, THEVALUECHAIN shall keep these data for a period of 14 days after termination of the Agreement, during which period THEVALUECHAIN can make the data available again at the request of the Customer and at a fee to be agreed upon, in order to transfer or store the data on a different storage device or in a different domain. All data shall be permanently erased after the expiry of this 14 days period.
9.6 With regard to the processing of Personal Data, each Party commits in general to always comply with the applicable obligations under all Applicable Data Protection Legislation.
9.7 In relation to Personal Data entered into the Product or Platform by the Customer or processed by means of Product or Platform by the Customer, THEVALUECHAIN acts merely as a processor in the sense of article 4, sub 8 GDPR, in view of which these Cloud Licence Contract Terms shall also operate as a processor agreement between the Customer and THEVALUECHAIN as referred to in Article 28.3 of the GDPR, unless the Parties enter into or have entered into a processor agreement separately which, in that case, shall operate as such. In view of this capacity as a processor, THEVALUECHAIN shall:
9.7.1 not use (or cause to be used) the personal data made available by the Customer in any way other than for the implementation of the Agreement as intended in the current Cloud Licence Contract Terms, unless otherwise required by law. The use that is in line with this clause shall be deemed to be the
9.7.2 taking into consideration the state of technology and implementation costs, as well as the differing degrees of the likelihood and severity of breach risks, take appropriate technical and organizational measures to secure and keep secure the personal data that are processed in and via the Product and Platform.
9.7.3 be entitled to engage third parties c.q. sub-processors in the framework of the implementation of the Agreement and thus – when and if applicable – for the processing of personal data. THEVALUECHAIN shall be responsible for the sub-processors it engages and shall impose similar terms, obligations and responsibilities as those applicable to THEVALUECHAIN pursuant to this processor agreement.
9.7.4 assist in complying with the Customer’s duties when data subjects exercise their privacy rights (such as the right of inspection and correction, the right to be forgotten, and data portability). THEVALUECHAIN shall be entitled charge reasonable costs for said assistance.
9.7.5 assist in complying with the obligations regarding the requirement to report data leaks. This means that THEVALUECHAIN shall notify the Customer of data leaks without unreasonable delay and shall assist , at equitable remuneration, in the investigation and analysis.
9.7.6 collaborate with audits by the Customer or a third-party engaged by the latter. THEVALUECHAIN shall make available all relevant information to check whether THEVALUECHAIN adheres to the obligations included in the Agreement.
9.8 Customer acknowledges that THE VALUECHAIN outsources its platform hosting to a professional hosting provider. The personal data in THEVALUECHAIN ACCELERATOR platform environment that end up with this provider shall be stored in a database managed by that third party. The hosting provider and other third parties involved are listed on [insert website with link].
9.9 For further modalities related to the processing of personal data, THEVALUECHAIN refers to its privacy policy available at https://thevaluechain.eu/en/privacy-policy.
9.10 The Customer indemnifies THEVALUECHAIN against all third-party claims related to the implementation of the Agreement between Parties and/or related to the personal data processed in THEVALUECHAIN ACCELERATOR platform, brought against THEVALUECHAIN due to a violation of Data Protection Legislation.
9.11 With respect to any liability of THEVALUECHAIN regarding the processing of personal data, the stipulations of Article 13.4 of these Cloud Licence Contract Terms shall also be applicable.
ARTICLE 10 – SERVICES AND SUPPORT
10.1 All Services by THEVALUECHAIN are carried out as best effort commitments. Specific service levels can only apply in case these service levels are noted or referred to in the Specific Terms.
10.2 The Customer shall provide all information and documents that THEVALUECHAIN deems necessary for the correct implementation of the Services, in a timely manner and in the desired form and manner.
10.3 Upon commencement of the Agreement and/or during the Contract Term, the Customer may request support from THEVALUECHAIN with respect to migrating data to the Product. THEVALUECHAIN will use its best efforts in providing such support. The support will be invoiced based on at that time published fees and costs.
ARTICLE 11 – INTELLECTUAL PROPERTY RIGHTS
11.1 All Intellectual Property Rights to the Product, the Platform or any other asset provided by THEVALUECHAIN and the included software, as well as any derivatives, modifications, improvements, updates or versions provided by the THEVALUECHAIN or its suppliers, as well as all Intellectual Property Rights to any accompanying material, such as drawings, texts, documentation, know-how, and all adaptations and modifications thereto, belong exclusively to the THEVALUECHAIN and its suppliers respectively. No rights are granted to the Client or Users, except for the right to use the Product as set out in Article 5. The Customer is prohibited from allocating sub-licenses or any other rights to third parties in connection with the Product and/or the Platform or any other Intellectual Property Right mentioned in this Article. None of the provisions may be construed in such a way that leads to a full or partial transfer of rights to a User or a Contracting Party.
11.2 It is not permitted to modify or remove any designation of THEVALUECHAIN’s Intellectual Property Rights or render it unrecognizable. Neither shall it be permitted to use or register any of THEVALUECHAIN’S trademarks, trade names, designs, domain names or corresponding names or signs (anywhere in the world).
11.3 If Intellectual Property Rights are vested in THEVALUECHAIN’S licensors, then the licensing policies and terms of these third parties will have to be accepted by the Customer in order to use (all functions) of the Product and related Services. The User confirms that it shall comply with such policies and terms.
11.4 Any possible Intellectual Property Right relating to the data and metadata which the Client and Users process through the Product and/or Platform shall remain property of the Customer. THEVALUECHAIN shall receive a personal license to use these rights in as far as necessary to execute the Agreement and/or render any Services. The Client
ARTICLE 12 – DISCRETION
12.1 THEVALUECHAIN acknowledges that the information transferred by the Customer in connection with the Agreement as well as the data which the Customer and Users use via the Product and/or the Platform may contain confidential information and THEVALUECHAIN shall therefore maintain appropriate discretion towards such information. Discretion is not required with regard to: (i) information which is or becomes generally known without disclosure by THEVALUECHAIN; (ii) information which was already known to THEVALUECHAIN prior to the disclosure thereof; (iii) or information which was independently developed by THEVALUECHAIN.
12.2 THEVALUECHAIN will not publicly divulge information that is subject to the obligation of discretion as mentioned in Article 12.1 except where forced to divulge it due to legal requirements or by court In such cases, THEVALUECHAIN shall give prior notification to the Customer, which will provide assistance.
12.3 The Customer shall not disclose information relating to THEVALUECHAIN, the Product or the Platform obtained in the framework of the execution of the Agreement, nor to use it for any purpose other than the correct execution of the Agreement and the agreed purposes.
ARTICLE 13 – LIABILITY
13.1 The Customer accepts full and unconditional liability for the operations performed via the Product or on the Platform. The Customer is liable for the confidentiality of its accounts, usernames, and passwords, for access to its computer system and for actions and negligence by any party that uses the Customer’s account to the Product and/or the Platform.
13.2 The Customer indemnifies THEVALUECHAIN 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 Agreement; and (ii) claims of any nature whatsoever by a third party suffering any damage whatsoever that is directly the result of the Customer’s activities with respect to a violation of the use of the Product or Platform by the Customer
13.3 The Customer accepts and guarantees not to bring any civil claim that is directly or indirectly linked to the negotiation, conclusion or execution of any Agreement against the shareholders, directors, managers, employees, agents, distributors, boardmembers, parent companies or subsidiaries of THEVALUECHAIN and accepts THEVALUECHAIN as sole addressable party.
13.4 Except in the case of wilful intent or gross negligence, THEVALUECHAIN shall only be liable for damages as described in the following paragraphs of this clause:
13.4.1 Every liability of THEVALUECHAIN, expressly including an attributable shortcoming in the fulfilment of the Agreement, a breach of a warranty obligation, an indemnification agreed with Customer or an unlawful act by THEVALUECHAIN, shall be limited to the amount owed by the Customer to THEVALUECHAIN over the Contract Term of twelve (12) months in which the damaging event occurred
13.4.2 THEVALUECHAIN shall not be liable for any indirect damage, including loss of profit, missed savings, damage as a result of claims from the Customer’s, corruption/damage or loss of data, damage related to the use of materials or software of third parties prescribed by the Customer to THEVALUECHAIN, damage related to the involvement of suppliers engaged or prescribed by the Customer, reputational damage or other indirect or consequential damage, regardless of the nature of the action (breach of contract, tort) and regardless of whether THEVALUECHAIN has been informed of the likelihood of the occurrence of that damage.
13.4.3 THEVALUECHAIN shall not be liable for any damages of any kind suffered by the Customer related to the temporary unavailability, temporary incorrect or temporary incomplete availability of the Product or the Platform.
13.4.4 THEVALUECHAIN shall not be liable for any links or services provided by websites of third parties that are available via the Product or the Platform or any other connection or interaction with third-party materials or functionalities
13.5 THEVALUECHAIN undertakes to take an appropriate insurance for its liability under this Contract with an insurance company certified in Belgium.
13.6 The Customer shall indemnify THEVALUECHAIN for third-party claims or demands arising from or connected with the Agreement unless the Customer could enforce these claims against THEVALUECHAIN with due observance of the provisions in this article in case the Customer had suffered the damages itself.
13.7 The Customer expressly agrees to refrain, towards the shareholders, directors, managers, employees, agents, distributors, board members, parent companies, subsidiaries or suppliers from THEVALUECHAIN, from initiating or pursuing any claim that is based upon the existence or execution of the Agreement.
ARTICLE 14 – DURATION AND TERMINATION
14.1 The Agreement starts at the Effective Date and is concluded for the definite period of the Contract Term.
14.2 An Agreement is not tacitly renewed after expiration of the Contract Term. In case of continued collaboration after the Contract Term, this leads to novation in which case the new Agreement shall be governed by the at that moment existing Cloud Licence Contract Terms and shall be concluded against the prices offered, published or otherwise communicated at that moment by THEVALUECHAIN.
14.3 If a Party becomes aware of any action or negligence by the other Party which constitutes a violation of the Agreement, which could directly or indirectly prejudice a third party, or which could be objectionable in any way whatsoever, this 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.
14.4 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 Agreement without notice and without any prior judicial intervention.
14.5 In addition to THEVALUECHAIN’S right under this Agreement and applicable law to terminate the Agreement, THEVALUECHAIN is also entitled to, in whole or in part, suspend the rendering of Services and the use of the Product and/or the Platform with immediate effect and without any obligation to compensation of damages, if:
- the Product or the Platform is demonstrably used by the Customer in a manner that is contrary to the Agreement, including any use by a User that (i) is part of Customer’s organisation, (ii) has obtained login data from or through the Customer or (iii) uses the infrastructure of the Customer.
- the use of the Product or the Platform by the Customer is demonstrably contrary to applicable law or infringes the legitimate rights of a third party.
- the prices according to the Specific Terms are not paid in accordance with the stipulations of said Specific Terms and Article 4. In case THEVALUECHAIN proceeds to the suspension of the use of the Product and/or the Platform, this shall in no way adversely affect the possibility of THEVALUECHAIN to proceed in a later stage to the dissolution of the Agreement.
ARTICLE 15 – FORCE MAJEURE
Neither of the parties will be in default or otherwise liable for any delay or failing in the performance of the Agreement if such delay or failing is the result of a Force Majeure circumstance.
ARTICLE 16 – TRANSFER AND SUBCONTRACTING
16.1 The Customer is not entitled to transfer the rights and obligations under the Agreement to a third party without the prior written permission of THEVALUECHAIN.
16.2 THEVALUECHAIN is entitled, in connection with the performance of the Agreement, to make use of third-party services, in which case THEVALUECHAIN shall have a contract signed with that third party reflecting the stipulations of this Contract with the Customer. This does not affect the responsibility and liability of THEVALUECHAIN for complying with its obligations under the Agreement.
ARTICLE 17 – GENERAL PROVISIONS
17.1 If one or more provisions of the these Cloud Licence Contract Terms or, more in general, of the Agreement 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 shall remain in force.
17.2 The mere fact that a Party does not insist upon strict compliance with a provision of these Cloud Licence Contract Terms or, more in general, of the Agreement or does not enforce it cannot be interpreted as a relinquishment or abandonment of the rights of that party unless such is confirmed in writing.
17.3 The rights and remedies granted to the Parties under the Agreement are complementary and in no way limit other rights or remedies legally granted to the parties, save in case such legally granted rights would be in contradiction with a stipulation in these Cloud Licence Contract Terms or, more in general, of the Agreement. All such rights and remedies are cumulative and can be exercised separately or together
17.4 Obligations which, by their very nature, are intended to continue applying even after the termination of an Agreement shall continue to exist after the termination of such Agreement, including but not limited to those pertaining to confidentiality, liability and Intellectual Property Rights.
17.5 All correspondence between THEVALUECHAIN and the Customer will be in writing and in English and will be deemed to have been sent to the other Party in caser it is sent to the contact details mentioned in the onboarding and identification page on the Platform.
ARTICLE 18 – APPLICABLE LAW AND JURISDICTION
The Agreement is subject to and interpreted in accordance with Belgian law. In the event of a dispute with respect to the Agreement, the enterprise court of ANTWERP – ANTWERP Division, shall have exclusive jurisdiction.