END-USER SOFTWARE AS A SERVICE LICENSE AGREEMENT
GENERAL TERMS AND CONDITIONS
1.Who is Valpeo?
VALPEO CVBA (incorporated under the laws of Belgium with registered offices at B-1020 Brussels, Esplanade 1, box 78, with enterprise number 0669 916 444 and hereinafter referred to as “Valpeo”) is the developer and owner of an array of services for online collaboration and management including certain software to give organizations a fully integrated insight into, among others, the level at which value is created, the extent to which strategy, culture and organizational structure support that value creation process, the current capability and performance of current and new employees to add value, the cultural fit of employees with the organization, the future potential of people to add value, the way value is rewarded in a fair, competitive, equitable way and the dynamics of the board to support that value creation process. More information about Valpeo can be found on www.valpeo.com.
Such services are offered among others through a Valpeo proprietary cloud-based hosted secured web browser portal and interface which provides with scientifically based analyses and reports.
2.Nature of this document
This document represents the general terms and conditions of Valpeo with regard to all services rendered by it and supersede all discussions, agreements and understandings of any nature with Valpeo with regard to Valpeo’s services. By accepting this document, you unconditionally accept this document as binding upon you regardless any stipulations to the contrary in any document issued by you or any third party. In case of conflict between this document and any terms and conditions issued by you or any third party, the former shall prevail, notwithstanding any stipulation to the contrary in the latter.
Please note that your acceptance of this document is a necessary condition for provision by Valpeo of any services to you.
3.Collection of data, data privacy and data protection
Valpeo highlights that for the provision of its services it requires certain data, including personal data, which will have necessarily to be provided by you or on your behalf and that for this reason this document also contains a set of rules regarding data privacy and data protection.
Please refer to the text below and in particular sections 4, 12 and 13 for more information and please take note that by accepting this document you accept that data collected by Valpeo in connection with its services will be treated as set out in this document.
For the purposes of the Agreement, the terms defined in this Section shall have the meanings set forth below. Where the context requires, the singular shall include the plural and vice versa.
“Accepted Order” means a Customer order as submitted by the Order Form, accepted by Valpeo In Writing;
“Account” means the account activated by Valpeo and secured by personalized Account Administrator and User log-ins and passwords that Customer must create with Valpeo to be able to use the Services;
"Account Administrator" means a physical person designated as such by Customer in the Platform and authorized to administer Customer's use of the Service and Customer's Account on Customer’s behalf;
“Additional Service” means the additional services, not included in the Service Package, offered by Valpeo, such as training;
“Affiliate” means, with respect to a Party, any person, partnership, corporation, organization or entity that directly or indirectly Controls or is directly or indirectly Controlled by or is under common Control with such Party;
"Agreement" means the agreement reached between the Parties in relation to the Service under the terms and conditions set out herein and supplemented by other terms and conditions that may be agreed between the Parties or accepted by Customer, among which the terms and conditions agreed in the Accepted Order;
“Business Day” means any day of the week, except for Saturdays, Sundays and public holidays in Belgium;
“Certified Partner” means a person recognized by Valpeo as such and authorized by it to resell the Services, as identified by a personal Valpeo number;
“Change of Control" means any occurrence having as a result that any person other than the person or persons having Control on the date of signing of the Agreement, acquire the Control, whether alone or acting in concert with other parties;
“Confidential Information” shall have the meaning as given in Section 23;
"Consideration" means the amount(s) payable to Valpeo by Customer for the Services;
“Control” means the ownership of more than half the capital, business or assets of a Party or the power to exercise more than half the voting rights of a Party or the power to appoint more than half the members of the board of directors of a Party or sufficient authority to direct, directly or indirectly, the adoption and/or execution of the policies, management or operations of a Party by any means whatsoever;
“Customer” means you, a legal of physical person, wishing to use the Service or entering in contact with Valpeo in the framework of privision of Services by Valpeo to its customer;
“Customer Operations” means Customers’ usual activities related to the management of its own business, including corporate and personnel matters;
"Customer Data" means the Data submitted, uploaded or stored by Customer in the Platform or otherwise provided by Customer to Valpeo under the Agreement for the purpose of the Service;
“Data” means any data, information or material regardless of its form or the medium in which it is comprised;
“Documentation” means Valpeo’s then-current manuals and technical materials, in such medium as Valpeo elects that are delivered by Valpeo to Customer under the Agreement for the purpose of using the Service;
"Effective Date" means the date on which the Parties conclude the Agreement In Writing;
“EU Data Protection Laws” means EU Directive 95/46/EC as amended, replaced, or superseded from time to time, including by the EU General Data Protection Regulation 2016/679 and laws implementing or supplementing this regulation;
“GDPR” means EU General Data Protection Regulation 2016/679.
“Intellectual Property Rights” means, without limitation, and in particular with regard to the Platform and Valpeo’s products and services, all rights throughout the world in the nature of intellectual property rights including copyright, trademark, service marks, trade and business names, domain names, goodwill, registered designs, patents, database rights, topography rights and rights in know-how and trade secrets, whether registered or unregistered and including applications for the grant of any of the foregoing and all rights or forms of protection having equivalent or similar effect to any of the foregoing; Intellectual Property Rights shall also include the Know-How;
“In Writing” means executed by hand or in any other physical or electronical form reasonably allowing to confirm a Party’s agreement;
“Know-How” means, in particular with regard to the Platform, the Website, the Service or the Service Results and, in general, all Valpeo’s products and services, all technical and processing Data, information, specifications, and knowledge of an intellectual or industrial nature, concerning products and/or services, including but not limited to specifications, manufacturing instructions, quality control procedures and other like Data;
“License” means the licenses granted by Valpeo to Customer under the Agreement as defined in Section 4.1;
"Order Form" means a form or process, whether on or off-line made available by Valpeo to Customer which Customer must fill out, complete or provide to Valpeo (or have the Certified Partner filled out, completed or provided on Customer’s behalf) evidencing the purchase by Customer of a specific Service and specifying at least the nature of the requested Service;
“Party” and “Parties” means individually Valpeo or Customer, respectively, collectively Valpeo and Customer;
“Platform” means Valpeo’s proprietary online cloud-based platform through which the Services is provided via the Website;
“Representative” means, with respect to a Party, its Affiliate and that Party’s and that Party’s Affiliates’ directors, officers, employees, agents, advisors, counsellors, auditors, accountants or lawyers; in relation to Customer, Representative shall include Account Manager(s) and User(s);
"Service" means the service provided by Valpeo pursuant to the Agreement via the Platform and the Website as restricted to the License and performed by Valpeo in accordance with the Agreement as related to a specific Service; Service includes services provided under the agreed Service Package, the Service Results, the Additional Service and the delivery to Customer of the Documentation;
"Service Package" means one of the Service packages as may be offered by Valpeo to Customers from time to time, defining the scope of the License, the set of rights awarded to Customer under the License and the Service Results that may be obtained through the Service;
“Service Result” means any Data generated by, on behalf of or for Customer through the Platform or otherwise provided by Valpeo to Customer as a result of the Service;
"Software" means the software (in both source and object code form) and the software programs and any associated user interfaces and related technology that Valpeo makes available under the License through the Website and the Platform and which relates to the Services; Software shall include without limitation all modules, applications, routines and sub routines thereof and all source and other preparatory materials relating thereto, including but not limited to user requirements, functional specifications and programming specifications, ideas, principles, algorithms, flow charts, logic, logic diagrams, orthographic representations, file structures, coding sheets, coding and including any relevant manuals or other documentation and computer generated works and any other written, pictorial or graphic materials;
“Third Party” means a person who is not a Party to the Agreement;
“Third Party Claim” means a claim made against a Party by a Third Party;
"User" means a physical person designated as such by Customer in the Platform;
“Valpeo Data” means any Data, other than Customer Data;
"Valpeo Technology" means all of Valpeo's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) used by Valpeo in relation to the Services;
“Website” means the website developed, operated and maintained by Valpeo, available at www.valpeo.com.
5.Scope of the Agreement
- These General Terms and Conditions govern all contractual relationships between Valpeo and Customer regarding the Service.
They set out the terms and conditions that apply to use of the Service, the Platform and the Website and to offers and orders exchanged between or entered into by the Parties in relation to the Service and applies, in general, to any service, product, document, data and any other element provided by Valpeo or exchanged with Valpeo in relation to the Service.
The acceptance of these General Terms and Conditions by Customer and its continuous compliance herewith is a necessary precondition to place any order with Valpeo and a necessary condition for the performance of the Agreement by Valpeo.
- By entering into the Agreement In Writing Customer is deemed to have unconditionally accepted these General Terms and Conditions.
These General Terms and Conditions shall be binding upon Customer regardless of any stipulations to the contrary in a document issued by Customer. In case of conflict of these General Terms and Conditions with the Accepted Order, Customer’s terms and conditions, or any other document passed between the Parties in relation to the Service, these General Terms and Conditions shall prevail, unless expressly and specifically agreed to the contrary by Valpeo In Writing.
- Valpeo reserves the right to modify these General Terms and Conditions in its reasonable discretion from time to time. Such modifications shall be deemed to be accepted by Customer provided that Valpeo notifies them to Customer in accordance with Section 25. Continued use of the Service by Customer after such notification shall constitute Customer’s acceptance of the modification.
- Customer shall provide to Valpeo a fully and truthfully completed Order Form.
- A Customer order shall not be binding upon Valpeo and shall not be deemed or construed to be part of the Agreement unless the order in made by means of the Order Form and unless it is accepted by Valpeo In Writing. Valpeo reserves the right to refuse any and all Customer order at its discretion, whether or not such order is submitted by means of the Order Form.
- Each order shall be governed by these General Terms and Condition.
- By the Agreement Valpeo grants to Customer under these General Terms and Conditions, and Customer accepts, the following License:
- a non-exclusive, restricted, personal, non-transferable and a non-assignable license to use the Service in accordance with the Agreement and
- a perpetual, exclusive, restricted, personal, non-transferable and a non-assignable license to use the Service Results delivered in accordance with the Agreement
for the purpose of Customer Operations and for this purpose only.
- It is understood that the Agreement shall not prevent Valpeo from entering into similar agreements with third parties or from developing, using, selling or licensing documentation, products and / or services which are similar to those provided under this Agreement.
- The License may be granted and (any part of the) the Service, including any technical support, may be provided only by Valpeo. No rights are granted to Customer in respect of error correction, support or maintenance of the Service, the Platform or the Website.
The License is granted to Customer only and shall not be considered or construed to be granted to any subsidiary or holding company of Customer (including its Affiliates), unless otherwise agreed upon In Writing by Valpeo or except to the extent expressly permitted under the Agreement. Customer shall not sublicense the License to any person, except for the Account Administrator(s) and the User(s) within the limitations set out in the Agreement, and shall procure that the Account Administrator(s) and User(s) shall understand, acknowledge and agree (i) that their access to the Service is dependent on the License, (ii) that Valpeo may refuse, suspend, interrupt or terminate the access to the Service in accordance with the Agreement and (iii) that under no circumstance they can hold Valpeo, its Affiliates or their Representatives liable for any damage resulting from or related to the Agreement.
- The Agreement does not grant and shall not be construed to grant to Customer any other right than the rights expressly granted by the Agreement. Any right that is not expressly granted to Customer hereunder is reserved by Valpeo.
- The License is granted subject to Customer’s continuous compliance with the Agreement, including timely payment of the Consideration, failing which Valpeo reserves the right to fully or partially terminate, deny or limit Customer’s access to the Service and/or to refuse, suspend, interrupt or terminate the License granted to Customer at all times, without detriment to Valpeo’s rights hereunder and its right to claim compensation for losses, damages and costs it incurred.
- By the Agreement Customer commits and guarantees that he is not and shall not be a competitor of Valpeo and that, except with Valpeo's explicit prior written consent, he shall not use (any part of) the Service, (of) the Service Results, (of) the Website or (of) the Platform for any other purpose than Customer Operations, among others not for any activity that is competing with Valpeo’s services or products, and that he shall not use the same in a way that is detrimental to Valpeo’s interests.
- With respect to the Service, the Platform and the Website Customer shall not and guarantees that his Affiliates and Customer’s or its Affiliates’ Representatives shall not, (attempt to) do the following and shall not assist any third party in doing the same by any means:
- copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, translate, adapt, alter or distribute all or any portion of the Service in any form or media; or
- license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make available the Service to any party, or
- access the Service or any part thereof for purposes of monitoring the availability, the performance or the functionality of the Service, nor for any benchmarking or competitive purposes; or
- translate, modify, adapt, alter, reverse compile or reverse engineer, decompile, disassemble or otherwise reduce to human-perceivable form all or any part of the Service; or
- reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Service or disclose any of the foregoing; or
- create internet “links” to the Service or any part thereof or "frame" or "mirror" the Service or any part thereof on any server or wireless or Internet-based device; or
- access or use the Service or any part thereof to build a competitive product or service or a product or service using similar ideas, features, functions or graphics as the Service or any part thereof or to copy any ideas, features, functions or graphics of the Service or of any part thereof; or
- take any action that would cause the Service to fall in the public domain.
With respect to the Service Results, Customer shall not and guarantees that his Affiliates and Customer’s or its Affiliates’ Representatives shall not, (attempt to) do the following and shall not assist any third party in doing the same by any means:
- copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, translate, adapt, alter or distribute all or any portion of the Service Results in any form or media except for the purpose of Customer Operations; or
- sell, resell, rent, lease, distribute, display, disclose or otherwise commercially exploit or otherwise make available the Service Results to any party except for the purpose of Customer Operations, or
- use the Service Results or any part thereof to provide services to third parties, to build a competitive product or service or a product or service using similar ideas, features, functions or graphics as the Service or any part thereof or to copy any ideas, features, functions or graphics of the Service Results or of any part thereof.
It is understood that Customer may use the Documentation, or any part of it, for security, test and backup purposes.
9.Valpeo’s Obligations in Relation to the Service
- Subject to the terms and conditions of the Agreement, Valpeo shall provide the Service to Customer with reasonable skill and care and substantially in accordance with the Agreement (including the Accepted Order and the Documentation) and shall make available the Documentation to Customer.
- Valpeo shall use commercially reasonable efforts to ensure that the Service is available 24 hours a day, 7 days a week.
However, Customer recognizes that Valpeo may interrupt the Service (in whole or in part) for maintenance work purposes, including both scheduled maintenance work and unscheduled work in the event of an emergency. Valpeo undertakes to have the scheduled maintenance work to be executed outside of the Business Days and to notify such works at least 48 hours in advance and shall use commercially reasonable efforts to notify Customer of any unscheduled works as soon as reasonably practicable.
- Valpeo shall not have the obligation to (continue to) perform the Service in case of any (suspected) use of the Service by Customer (its Affiliates or their Representatives) contrary to the Agreement or Valpeo's instructions, of modification or alteration of the Services by any party other than Valpeo (or Valpeo's duly authorized contractors or agents) and shall be relieved of its obligations to perform the Agreement for the time that it is prevented from performing the Agreement as a result of any failure or delay by Customer to perform its obligations under the Agreement.
If the Service does not comply with the Agreement, Customer's sole and exclusive remedy shall be, at Valpeo’s discretion, the correction of the breach by Valpeo or the provision of Customer by Valpeo with an alternative means of accomplishing the desired performance.
10.Customer’s obligation in relation to the Service
- Customer shall provide Valpeo with all necessary co-operation and with access to all information as may be required by Valpeo for the performance of the Agreement, shall maintain all necessary consents and permissions necessary for Valpeo (and its contractors, agents or Representatives) to perform their obligations under the Agreement and shall perform its obligations under the Agreement in a timely and efficient manner, failing which Valpeo may adjust any agreed timetable or delivery schedule as reasonably necessary.
- Customer shall ensure that its network, file and web transfer protocols and message structures and any other systems, as may be used in relation to the Service, comply with the required specifications as they may be provided by Valpeo from time to time and shall be solely responsible for procuring and maintaining the network and telecommunications connections between its IT-environment and the Platform and for all loss or damage due to events such as delays and delivery failures related to the said connections.
- Customer shall abide by all applicable local, state, national and foreign laws, treaties and regulations with respect to its activities under the Agreement, including those related to data privacy, international communications and the transmission of technical or personal data.
- Customer shall not (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws or facilitate any illegal activity, (ii) send or store unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, racially, discriminatory or ethnically offensive, infringing, threatening, libelous, sexually explicit or otherwise unlawful or tortious material, including material that is harmful to children or that violates third party privacy rights; (iii) access, store, distribute or transmit material containing software viruses, worms, Trojan horses or other harmful computer codes, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of (any part of) the Service, the Platform and/or the Website or of the Data contained therein and (v) attempt to gain unauthorized access to the Service, the Platform and/or the Website or its related systems or networks.
In such events Valpeo reserves the right, without detriment to its right to claim compensation for losses, damages and costs effectively suffered, to disable without prior notification all Customer's access to the Service, the Platform and/or the Website.
- Customer shall be responsible and liable for all activity occurring under the Account, including, among others, for all actions of his Representatives who shall be deemed to act at all time under the authority of and on behalf of Customer.
Customer shall ensure at all time that the License is not used and the Service are not accessed by incompetent persons, in particular persons other than the Account Administrator or the User, and that the Account, the Account Administrator’s account and/or the User’s account is not shared or used by more than one person designated in the Platform as Account Administrator, respectively, User. Customer shall in particular ensure that the Account Administrator and the User passwords and log-in details giving access to the Account and the Service are kept secret and are known only to the person to whom they are allocated. Customer shall not, and warrants that his Affiliates and his and his Affiliates’ Representatives shall not, provide false identity information to gain access to the Service and/or the Account or impersonate another person.
- Customer represents that his Representatives, and in particular his Account Administrator and Users, shall at all time fully comply with the Agreement and shall indemnify, defend and hold Valpeo, its Affiliates and its Representatives harmless from and against any damage, cost, claim, demand, lawsuit, cause of action or loss of any nature whatsoever, suffered or incurred by any of them, arising out of or in connection with the infringement of this representation.
Customer shall prevent any unauthorized access to or use of the Service, the Service Results, the Account, the password or log-in details and shall promptly notify Valpeo of such use as well as of any other breach of security known to or suspected by Customer or its Representatives, including illegitimate copying or distribution of Data, and shall use all reasonable efforts to immediately stop the same.
11.Service Packages and Additional Service
Valpeo offers various types of Service Packages and Additional Service. The modalities of the Service provided and the rights awarded to Customer under the License pursuant to the Service Package or Additional Service, such as the scope of the Service, (the type of Data of) the Service Results provided to Customer and the Consideration, are dependent on the Accepted Order.
12.Access to Valpeo Platform and the Service Set-up
- After the acceptance of these General Terms and Conditions Customer shall set-up and configure the Account in the Platform and shall assign one or multiple Account Administrator(s) and, if Customer so wishes, one ore multiple User(s).
The number and the rights of the Account Administrators and the Users are limited in accordance with, as the case may be, the Accepted Order (and the Service Package).
- Only the Account Administrator shall have access to the Account management and may create Users and award rights to them. The Account Administrator shall be Valpeo’s single point of contact with Customer and all communications made by Valpeo to the Account Administrator shall be deemed to have been made to Customer. A User shall have access to the Service in accordance with the rights awarded to him by the Account Administrator on Customer’s behalf.
13.Maintenance and Troubleshooting
- The Service includes Valpeo’s maintenance activities required to ensure the availability of the Service in accordance with the Agreement and technical troubleshooting support services to Customer. These services shall be Belgium based and shall be provided on Business Days during Business Hours.
- In relation to troubleshooting, Valpeo shall examine any incident in relation to the performance of the Service as notified to Valpeo by the Account Administrator.
Valpeo shall have no obligation to correct the incident if it is not able to replicate it and/or it is not satisfied, at its sole discretion, that the incident is (a) caused by malfunctioning of the Service and (b) is not caused by (i) the use of the Service contrary to the Agreement, (ii) modification of the Service without Valpeo’s prior consent, (iii) the use of incorrect Data or Data format, (iv) disruption or unavailability of external services (including but not limited to third party validation services or network disruptions), (v) disruption or unavailability of networks, internet, file transfer mechanisms, etc. or (v) Customer’s use of the Service with any incompatible products or services or products or services unauthorized by Valpeo (“Unconfirmed Incident”).
In case of Unconfirmed Incident, if Customer so requests, Valpeo may advise Customer on and assist Customer with resolving such incident. Any work performed by Valpeo for investigation of Unconfirmed Incidents and the advice and assistance in relation thereto shall be invoiced to Customer on a time and materials basis at Valpeo's then standard fee rates.
- Other than Unconfirmed Incidents shall be handled by Valpeo in accordance with the following priority schedule, subject to Valpeo’s confirmation of the presumable resolution time following full investigation of the escalated issue:
Priority 1: The Service down, security violation, critical loss of functionality having major impact on the Service: support requests shall be responded to within four (4) business hours.
Priority 2: Loss of certain functionalities with no critical impact: support requests shall be responded to within two (2) Business Days.
Priority 3: Minor impact on Customer: support requests shall be responded to within five (5) Business Days
The handling time shall be calculated from the moment of which Customer provides Valpeo with all information required for Valpeo to understand and assess the issue, including date and timing of the occurrence of the issue and all data required to reproduce it.
14.Delivery of Service Result
- Valpeo shall deliver the Service Results to Customer in the form agreed by the Parties, as the case may be, in the Accepted Order. Unless expressly otherwise agreed upon In Writing, no information provided by Valpeo with regard to dates and deadlines shall be binding on Valpeo.
- If a delivery term or a date is agreed in the Accepted Order, the Service Result shall be delivered within such a term or on such a date. No delivery term shall however commence before all data required for Valpeo for the performance of the Agreement is provided by Customer.
- The delivery time and any deadline against Valpeo is extended in following circumstances with the time that such circumstances are in effect:
- the Data required for the performance of the Service that must be provided by Customer is not provided or changed by Customer;
- Customer or a third party for which Valpeo is not liable fails to fulfill its obligations within the agreed time-frame;
- a force majeure event, acts of god and other circumstance independent of Valpeo’s will and which Valpeo cannot prevent using normal required care, regardless of whether it affects Valpeo or Customer; such events shall include, but will not be limited to, natural catastrophes, epidemics, mobilization, war, social unrest, breakdown of the Website or the Platform or of the connection to the Website or the Platform and actions or omissions by state authorities or public bodies.
- Customer shall not be entitled to any compensation for delay in supply whatsoever unless that delay is attributable to Valpeo and on the condition that Customer establishes the loss that it has incurred as a result of such delay.
- Defect in the Service Results shall mean such defect attributable to Valpeo that consists of non-conformity of the Service Result with the Agreement
In case of a Defect claim by Customer and on condition that Customer gives Valpeo the reasonable opportunity to verify the claim and to become fully convinced of the existence of a Defect attributable to its fault, Customers remedy shall be limited to, at Valpeo’s discretion, the remedy of the Defect within a reasonable time or the supply of substituting Service Result by Valpeo at its expense.
- Customer shall inspect the Service Results and shall notify Valpeo in writing specifying and identifying any Defect at the latest within eight (8) days after the delivery, failing which the Service Results shall be deemed to be in conformity with the Agreement.
15.Data, Use of Data and Data Protection in General
- It is understood that the (performance of the) Agreement does result and shall not be construed to result in any change in the ownership of Data.
Except for the rights obtained under the License, Customer shall not obtain as a result of the Agreement any claim of ownership or any proprietary rights in the Valpeo Data it collected, obtained, retrieved or otherwise captured as a result of the Service. Valpeo shall not obtain as a result of the Agreement any claim of ownership or any proprietary rights in the Customer Data it collected, obtained, retrieved or otherwise captured in relation to the Service, except for the rights granted to Valpeo under the Agreement. Customer shall retain the ownership of Customer Data that qualifies as Confidential Information and Valpeo shall retain the ownership of all Valpeo Data.
- Customer shall be responsible and liable for the accuracy, quality, integrity, legality, reliability, accuracy, appropriateness and compliance with any third party rights (including Intellectual Property Rights) of all Customer Data and warrants and represents that it shall obtain, prior to the communication of Customer Data to Valpeo or any other submission of the data to Valpeo, any and all required third party authorizations and fulfil any and all required legal conditions and obligations and industry standards that must be obtained or fulfilled for the processing, storage, transfer and in general, any use, of Customer Data under the Agreement.
- Customer acknowledges and agrees that:
- Valpeo's employees or contractors have access to Customer Data in order to provide the Services under the Agreement;
- Valpeo may further use and disclose Customer Data that Valpeo collects, obtains, retrieves or otherwise captures under the Agreement to the extent required for the execution of the Agreement as well as, on the condition that Valpeo does so in aggregate and non-Customer identifiable and non-person identifiable formats, for other purposes;
- the Customer Data may be transferred or stored in the European Economic Area, and/or in and outside of the European Economic Area in accordance with applicable legislation and rules to carry out Valpeo's obligations under this Agreement;
- Valpeo shall be entitled to keep records of Customer Data as necessary to comply with any applicable laws and regulations and for its business records, subject to its confidentiality obligations hereunder
Valpeo acknowledges that Customer may use and disclose Valpeo Data provided to Customer under the Agreement and collected, obtained, retrieved or otherwise captured by him as a result of the Service on the condition that this is done only for the purpose of the Customer Operations, not unintendedly or improperly, in accordance with the Agreement and in compliance with the applicable laws.
To prevent Data loss, Valpeo shall maintain a back-up strategy as it may be amended by Valpeo in its sole discretion from time to time. Valpeo shall inform Customer about the back-up strategy if Customer so requests.
In the event of any loss or damage to Data, Customer's sole and exclusive remedy shall be to use reasonable commercial efforts to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained in the Platform in accordance with the said back-up strategy. Valpeo’s liability for loss, destruction, alteration, unauthorized access or disclosure of Data not attributable to Valpeo (or to persons acting on its behalf) and/or attributable to Customer is excluded.
- For the purposes of this Section the terms, “Third Country”, “Member State”, "Controller", "Data Subject", "Personal Data", "Personal Data Breach", "Processing" and "Supervisory Authority" shall have the same meaning as in the GDPR and shall be construed accordingly.
- For the purpose of the Agreement Customer expressly authorizes and instructs Valpeo to process any Customer Data that is Personal Data, including any Personal Data related to Customer itself, its Representatives or their shareholders, directors and personnel, whether publicly available or not, to the extent that such processing is done and required for the purpose of the Service under the Agreement and in particular for providing Customer with Service Results.
The Customer will provide the information to the Data Subjects concerning, amongst others, the processing of their Personal Data by Valpeo and obtain their explicit consent with the Processing prior to transmission of such data to Valpeo.
With regard to any such processed Personal Data Valpeo shall be deemed to act as a Processor on behalf of Customer who shall be deemed to act as Controller and each Party shall bear the respective rights, obligations and liabilities. Customer shall ensure that Customer is entitled to use, store, transfer to Valpeo and otherwise process the Personal Data so that Valpeo may lawfully use, store, transfer and otherwise process the Personal Data in accordance with the Agreement and the applicable law on Customer's behalf.
Schedule 1 to the Agreement, as may only be amended by means of written agreement between the Parties, sets out certain information regarding Valpeo's Processing of Personal Data on behalf and upon the instruction of Customer as required by article 28(3) of the GDPR (and, possibly, equivalent requirements of other EU Data Protection Laws).
Customer acknowledges that he is the sole responsible for the information set out in Schedule 1 and for the legal obligations it entails. Customer agrees to immediately notify Valpeo in accordance with Section 25 of any envisaged change of the information set out in Schedule 1 in writing. Customer hereby warrants that the information set out in Schedule 1 is correct and exhaustive for the Agreement and that under no circumstances Valpeo shall be responsible or liable for Personal Data Processed under the Agreement or the use thereof by Customer, its Affiliates, its Representatives and/or its Affiliates’ Representatives, Customer having the obligation to indemnify and hold harmless Valpeo in that regard.
- Customer warrants that it shall in the performance of the Agreement fully comply with the applicable EU Data Protection Laws and guarantees that all Customer Data that is Personal Data are lawfully collected, used, stored, transferred to Valpeo and otherwise processed and that this Agreement and any instructions to Valpeo in relation to the Agreement are not contrary to the EU Data Protection Laws or to the legal rights of Data Subjects.
Valpeo shall refrain from processing Personal Data other than on Customer’s documented instructions (the Agreement and/or provision of such Data to Valpeo by Customer being deemed to constitute such instruction), shall not use the Personal Data for any other purpose than for the performance of the Agreement, and shall, beyond what is required for the performance of the Agreement, not transfer Personal Data to a Third Country or an international organization, unless required to do so by Union or Member State Law to which Valpeo is subject and provided Valpeo informs Customer upfront of that legal requirement, unless that law prohibits such information on important grounds of public interest.
- Valpeo shall make best efforts to verify that persons authorized by it to process the Personal Data perform such processing activities in accordance with the Agreement and have committed themselves to confidentiality or are under a statutory obligation of confidentiality.
- Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Valpeo shall in relation to Personal Data implement technical and organizational measures to ensure a level of security reasonably appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR.
Valpeo shall implement appropriate security measures (technical, logical and organizational), and confirms that, to its best knowledge, these measures provide an appropriate security level, considering the state of the art and the security threats that are known or should reasonably be known by Valpeo.
Customer and Valpeo acknowledge that Customer Data that is Personal Data are not intended for use outside the scope of the Agreement or as authorized herein and that Valpeo makes no warranty and shall have no liability in connection with any use of such data in such situations.
- Customer hereby gives a general authorization to Valpeo to engage (or disclose any Personal Data to) any other (sub-)Processor, insofar as Valpeo deems this necessary or useful to fulfill its Processing obligations, being understood that Valpeo shall remain liable towards Customer for the performance by that (sub-)Processor.
Valpeo shall ensure that each sub-Processor performs all the obligations under the Agreement, as they apply to Processing of Personal Data carried out by that sub-Processor, as they apply to Valpeo.
- Considering the nature of the Processing, Valpeo shall assist Customer by implementing appropriate technical and organizational measures, insofar as this is reasonably possible, for the fulfilment of Customer's obligations to respond to requests to exercise Data Subject rights under EU Data Protection Laws (including right of access to its personal data and a right to request corrections).
- Valpeo shall notify Customer without undue delay upon becoming aware of a Personal Data Breach affecting Customer Data that is Personal Data.
Valpeo shall make best efforts to co-operate with Customer and assist in the investigation, mitigation and remediation of such breach, considering the information and technical means available to Valpeo. Customer will reimburse Valpeo for any expenses incurred in that regard.
- Valpeo shall provide reasonable assistance to Customer with any data protection impact assessments and prior consultations with Supervisory Authorities or other competent data privacy authorities, which Customer reasonably considers to be required by Article 35 or 36 of the GDPR, in each case solely in relation to Processing of Customer Data that is Personal Data by, and considering the nature of the Processing and information available to Valpeo. Customer will reimburse Valpeo for any expenses incurred in that regard.
- Valpeo shall, at the request of Customer delete and procure the deletion of all copies of Customer Data that is Personal Data. Any reasonable costs relating hereto shall be reimbursed by Customer. Valpeo may however retain certain data to the extent required by EU or Member State law and for such period as required by EU or Member State law. Customer acknowledges that deletion of Personal Data may result in Valpeo’s impossibility to perform its obligations under the Agreement.
- Valpeo shall not retain Customer Data that is Personal Data for a term that is longer than what is required for the performance of the Agreement and shall delete such data, taking into account the requirement to keep the data for follow-up tasks, at the latest within 10 (ten) years after the completion of the performance of the Agreement or, as the case may be, the expiry of the term for which Customer requested Valpeo to store such data. However, prior to the deletion of such data Valpeo shall inform Customer of the forthcoming deletion and the Customer may request Valpeo to continue the retention of the said data for the term indicated or agreed to by Customer.
- Valpeo shall make available to Customer on request all information reasonably necessary to demonstrate compliance with Article 28 of the GDPR and shall allow for and contribute to audits, including inspections, by Customer or an auditor mandated by Customer in relation to the Processing of Customer Data that is Personal Data by Valpeo. The cost of any such audits or inspections and any expenses incurred in that regard shall be borne by Customer.
- Valpeo will provide the name of the data protection officer to Customer.
- Valpeo will maintain a record of the processing activities in accordance with article 30 of the GDPR. This record will mention all categories of processing activities carried out on behalf of Customer containing (i) the name and contact details of the data protection officer, of Valpeo, of Customer(s) and, where applicable, of Valpeo's or Customer's representative (ii) the categories of processing carried out on behalf of Customer (iii) if applicable, transfers of Personal Data to a countries outside of EEA or to an international organisation, including the identification of that country and/or international organisation and the documentation of suitable safeguards and (iv) where possible, a general description of the technical and organizational security measures. The record will be made available to the supervisory authority on request.
At the moment of creation of Customer account, Customer shall be asked whether or not he wishes to receive marketing and other non-critical Service-related communications from Valpeo from time to time. Customer may opt in on receiving such communications at that time or, should he wish to change his position, opt-in or opt-out at any subsequent time by changing his preference.
Customer however recognizes and accepts that, because the Service is a hosted, cloud-based application, even if he opted out or did not opt-in, Valpeo shall occasionally need to notify him of important information regarding the Service.
18.Third Party Interactions
- Valpeo does not endorse any third-party websites, services or products even if they are linked through the Service. Any such links are provided to Customer only for convenience. Valpeo, its Affiliates and their Representatives shall not be liable for any content, products or other materials available through such links.
While using the Service, Customer may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third parties, such as advertisers or sponsors, showing their goods and/or services through the Service. Any such activity and any terms, conditions, warranties or representations associated with such activity, are solely between Customer and the said third-party and Valpeo, its Affiliates and their Representatives shall have no liability, obligation or responsibility for any such activity.
- Customer recognizes that both the provision and the use of the Service require the use of the internet and of means of electronic communication and may require the availability and use of certain ancillary software, hardware or services provided by third parties. Valpeo shall not be liable for any delays or failures resulting from the use of the internet and of means of electronic communication nor for the (continuous or interrupted) availability of the said software, hardware and services. Valpeo may cease, interrupt or suspend the Service, without Customer having any right to refund, credit or other compensation, if the third-party software, hardware or services on which the Service is dependent are no longer available, suspended, interrupted or do not present, in Valpeo’s discretion, the required level of security.
Customer also recognizes that the provision of the said third party software, hardware or services may be dependent on Customer’s agreement with third party’s licenses and authorizations subject to terms and conditions of that third party. Such third-party licenses and authorizations do not fall under Valpeo’s responsibility. Valpeo does not warrant that third parties shall grant such license to Customer.
If required for the use of the Service, Customer shall obtain such third-party licenses and authorizations and shall fully comply with them at his own cost. Customer shall indemnify, defend and hold Valpeo, its Affiliates and its Representatives harmless from and against any damage, cost, claim, demand, lawsuit, cause of action or loss of any nature whatsoever, suffered or incurred by any of them, arising out of or in connection with the infringement by Customer of any third-party license or authorization.
- Valpeo shall use best endeavors to preserve the stability of the Service APIs. Customer however acknowledges that external changes (including but not limited to: regulations, standards, technology, third party software …) may require Valpeo to bring modifications to the available APIs. Valpeo reserves the right to adapt the Service APIs at its sole discretion, and Customer accepts this right.
Customer accepts and agrees to adapt the integration within three (3) months after being required to do so. Valpeo shall not be held liable, neither contractually nor extra-contractually, for discontinuing the maintenance of an older API version, three months after communicating any changes on the older version.
- Customer shall pay to Valpeo in compensation of the Service the agreed Consideration.
It is understood that any price lists published by Valpeo on the Website or elsewhere are non-binding. Valpeo reserves the right to modify its prices and to introduce additional prices at any time prior to the acceptance by Valpeo of a Customer order.
- Customer shall pay the Consideration for the Services effectively used based on a system of credit, each type of Service being remunerated on the basis of a certain number of credits and each credit being equal to a certain amount in euro. Once Valpeo commenced the performance of a Service, the Consideration is due regardless of whether Customer fully uses the Service or terminates the Agreement before the delivery of the Service Result. The payment obligation is non-cancellable and irrevocable, and the amounts paid are non-refundable.
20.Billing and Payments
- Customer shall provide Valpeo with complete, correct and accurate billing and contact information, including Customer’s legal company name, address, e-mail address, enterprise number, valid credit card number and name and telephone number of Customer’s authorized billing administrator and Account Administrator and shall update this information at the latest within thirty (30) days of any change to it, failing which Valpeo reserves the right to cease, suspend or interrupt the Service, without prejudice to its right to compensation for losses, damages and costs suffered.
- The Consideration and charges (if any) shall be invoiced to Customer by Valpeo and shall be paid in accordance with Valpeo’s invoice in freely available funds and in Euro, without any deduction for expenses, taxes, levies, fees, duties and the like. If agreed, the fees and charges shall be credited from Customer’s (credit card) account.
Customer must make all contestations regarding Valpeo invoices at the latest within fifteen (15) days of the invoice date, failing which the invoice is deemed to be accepted and due by Customer.
- Valpeo may subject the (continuation of the) performance of the Service to prior to full payment by Customer of the corresponding Consideration.
If Customer fails to make a timely payment of the Consideration, Customer shall be liable for payment, without prior notice being required, from the maturity date of the invoice and until payment in full of the invoice, to payment of default interest at a rate of twelve (12) months EURIBOR + five (5) % as well as to a compensation for administrative and debt collection expenses equal to ten (10) % of the unpaid amount, without detriment to Valpeo's right to compensation for losses, damages and costs effectively suffered as a result of Customer’s late payment.
If Customer fails to make payment in due time or if Valpeo has reasons to believe that a future payment shall not be made (in full or) in due time, then, without prior written notice being required, all outstanding amounts due by Customer (including unmatured invoices) shall immediately become due and Valpeo shall have the right to suspend, interrupt or terminate the Service under any License granted to Customer, until, to Valpeo’s sole discretion, Customer fully complies with its payment obligations and/or new terms of payment are agreed between Parties, without detriment to Valpeo’s rights with regard to compensation for losses, damages and costs suffered as a result of Customer’s failure. Despite the suspension, interruption or termination of the Service or of a License, all Considerations due according to the License and billing modalities chosen by Customer remain due. Valpeo reserves the right to charge a fee for the reinstatement of the Service or the License.
- All national, state, local, or other taxes and assessments of any jurisdiction, including without limitation, sales, use, property, value added or other taxes, withholding taxes as required by international tax treaties or otherwise, customs or other import or export duties, excise, levy and other taxes related to Customer’s activities shall be borne by Customer and Customer shall reimburse to Valpeo all costs and expenses incurred by it in relation thereto.
21.Entry into Force, Expiry and Termination
- The Agreement enters into force on the Effective Date and shall expire upon delivery by Valpeo to Customer of the Service Result. No Party can terminate the Agreement for convenience.
- If Valpeo grant a free trial to Customer, Valpeo may terminate a free trial at any time in its sole discretion. Free trials are not renewable.
- Without prejudice to Valpeo’s right to compensation for losses, damages and costs suffered and without prejudice to other provisions of the Agreement, Valpeo may terminate the Agreement at any time without any compensation being due to Customer by a notice sent to Customer in accordance with Section 25 if Customer:
- fails to observe or breaches any of its material covenants, agreements or obligations under the Agreement in any material respect, provided that such breach continues for a period of thirty (30) days after receipt by Customer of notice of default specifying the nature of the breach and requesting to cure it; or
- makes any assignment for the benefit of creditors or files a petition in bankruptcy or is adjudged bankrupt or becomes insolvent or generally unable to pay its debts when due or is placed in the hands of a receiver or if the equivalent of any such proceedings occurs, provided that such termination is not contrary to legal provisions of public order applicable to Customer;
- fails to maintain any authorization, license or permit of any nature that is required under the Agreement or by law to execute the Agreement as a result of which Customer is no longer authorized to receive the Service or execute the whole or a part of its obligations under the Agreement; or
- commits a serious breach of the Agreement, the breaches to the following obligations constituting such breach: unauthorized use of the Service, the Platform or the Website, breach of Customer’s obligations in relation to use of the Service Results, Data or Account; non-payment of Consideration; breach of Customer warranties, breach of Valpeo’s Intellectual Property Rights or of Customer’s confidentiality obligations and breach of non-enticement obligations; or
- undergoes or intends to undergo a Change of Control.
22.Consequences of Termination and Expiry of the Agreement
- Any provision of the Agreement expressly or implicitly intended to survive its termination or expiry, whatever the cause, shall survive as provided and the termination or expiry shall not affect any obligation to pay any amount due under the Agreement whilst it was in effect.
- Upon termination or expiry of the Agreement:
- the License provided by Section 4.1(a) as granted under the Agreement shall immediately terminate, with the exclusion of Customer’s access to the Platform for the purpose of obtaining a copy of the Service Results that had been delivered to Customer prior to the termination of the expiry;
- Customer shall return to Valpeo within five (5) Business Days all latter’s Confidential Information and all copies and embodiments thereof that are in Customer’s possession and Valpeo shall conserve all Customer Data for a period of twelve (12) months following the date of termination or expiry of the Agreement and upon expiry of this conservation period, shall permanently delete and/or discard all Customer Data, statistical and anonymized Data and Customer behavioral Data excluded, unless Valpeo is bound by a legal obligation to conserve Customer Data beyond the said conservation period;
- Valpeo shall no longer have the obligation to maintain, forward or return to Customer any Customer Data that is not Personal Data, with the exception of the return of the then most recent backup of Customer Data, provided that Valpeo receives, no later than 10 (ten) Business Days after the date of the termination or expiry of the Agreement, a written request for the return of the Customer Data and provided that Customer has, at that time, paid all amounts due to Valpeo, including amounts resulting from termination or expiry (whether or not due at the date of termination or expiry), against payment by Customer of expenses incurred by Valpeo in returning of the Customer Data;
- each Party shall promptly return and make no further use of any equipment and tokens (and all copies of them) belonging to the other Party;
- Valpeo shall be entitled to recover possession from Customer of all copies of the Documentation and related information supplied to or provided by it under the Agreement (including Documentation provided by Customer to third parties) and in existence at the time of expiry or termination or require Customer to destroy the same and certify that it has done so.
- Upon termination of the Agreement, whatever the cause, Customer shall not be entitled to any indemnity whatsoever.
- Without detriment to other warranties and representations under the Agreement, the Parties provide the following warranties and representations:
Customer represents and warrants that:
- he has the legal power and authority to enter into the Agreement; and
- his Representatives (including the Account Administrators and the Users) shall and are duly authorized to act on Customer’s behalf and under his sole responsibility and that they at all time shall act in accordance with the Agreement; and
- prior to the transfer of the Customer Data to Valpeo, he will have obtained all Third-Party permissions and licenses that are required under the applicable law to perform the Agreement, including to allow the use of the Customer Data as contemplated by the Agreement and in particular for the submission of such data to Valpeo, for the use of such data for the provision of the Service and for the use by Customer of the Service Results.
Valpeo represents and warrants that:
- it has the legal power and authority to enter into the Agreement; and
- it shall provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; and
- that the Service shall perform substantially in accordance with the Agreement under normal use and circumstances; and
- to the best of its knowledge it has all the rights in relation to the Platform, the Website, the Service and the Valpeo Data that are necessary to grant to Customer all the rights granted hereunder, including the License.
- It is understood that Valpeo's performance of the Service is an obligation of means and that (any part of) the Service, including any information which might be provided via the Service, is provided on an “as is” basis.
Customer acknowledges and agrees that the Service and the Service Results shall not constitute and shall not be construed to constitute as legal, commercial or managerial advice or any other type of advice by Valpeo to Customer.
Customer shall use and interpret the Service and the Service Results at its own risk and responsibility, may draw any conclusions from the Service Results in its discretion and acknowledges and agrees that (i) he must not rely on the information provided via the Service and Service Results as an alternative to legal, commercial or managerial advice or any other type of advice from other professional legal services providers, (ii) he should never delay seeking such advice, disregard such advice, or commence or discontinue any (legal) action because of information provided via the Service and the Service Results.
Except as expressly provided herein, Valpeo hereby disclaims all conditions, representations and warranties, whether express, implied, statutory or otherwise, to the maximum extent permitted by applicable law. Without limiting the foregoing, as such and among others:
- the Service and the Service Result, and in general any service, good or information are provided by Valpeo without any warranties or representations, express or implied, including, without limitation, warranties of merchantability or fitness for a particular purpose, performance, non-infringement, timeliness, reliability, availability, accuracy, quality or completeness of the Service, of the Platform or of the Website or of any Data provided under the Agreement;
- Valpeo does not warrant that the Service shall be uninterrupted, error-free or that it shall meet Customer’s, its Affiliates’, their Representatives’ or any other party’s specific needs, nor that a service, good or information provided by Valpeo under the Agreement shall be free from viruses, harmful components, errors or defects (nor that the said shall be corrected), nor that the Service, the Platform or the Website shall operate in combination with any other service, software, hardware, system or Data.
- Valpeo shall have no liability for the (in)correctness of any Data provided to it, used by it or provided by it under the Agreement and shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Data.
- Each Party shall indemnify and hold the other Party harmless from and against any and all claims, costs, damages, losses, liabilities and expenses arising out of or in connection with the former’s (its Affiliates’ or their Representatives’) breach of the Agreement, including its warranties thereunder, of the applicable law or of third party rights.
- Without limiting the foregoing, Customer shall indemnify and hold Valpeo, its Affiliates and their Representatives harmless from and against any and all claims, costs, damages, losses, liabilities and expenses arising out of or in connection with (i) any use by Customer, its Affiliates or their Representatives of (any part of) the Service or the Service Results, including unintended, improper or illegal use or use contrary to the Agreement, (ii) any claim brought by a third party against Valpeo as a result of the use of Customer Data, (iii) any consequences of the use by Customer, its Affiliates or their Representatives of any hardware or software not provided by Valpeo.
- If a Third Party Claim is brought against Customer for reason of infringement of that party’s right (including the Intellectual Property Rights of such party) as a result of infringement by Valpeo of its warranties and/or obligations under the Agreement, Valpeo shall defend and hold Customer (with the exclusion of any other party) harmless against the said claim if (i) Customer notified the claim in writing to Valpeo not later than thirty (30) days after the receipt thereof setting forth in detail the circumstances of the claim and accompanied by a copy of all the received documents and (ii) has not taken and does not take unilateral steps in relation to such claim without Valpeo's prior written consent. Valpeo shall have the exclusive right to defend or settle such Third Party Claims and Customer shall provide Valpeo with reasonable assistance, at Valpeo's expense.
In the event that in Valpeo’s opinion the Service or the Service Result is likely to be or to become the subject of a Third Party Claim, Valpeo shall have the right at its discretion (i) to procure for Customer the right to continue using the Service as provided in this Agreement or (ii) to use reasonable efforts to replace or modify the (alleged) infringing part of the Service or to provide a workaround solution and/or service that is substantially similar to the Service so that it is no longer subject to the Third Party Claim or (iii) to terminate (part of) the Service or the Agreement.
The foregoing states the entire liability and obligation of Valpeo and the sole remedy of Customer with respect to a Third Party Claim.
- If a Third Party Claim is brought against Valpeo for reason of infringement of that party’s right (including the Intellectual Property Rights of such party) as a result of infringement by Customer of its warranties and/or obligations under the Agreement, Customer shall defend and hold Valpeo harmless against such claim if (i) the same is not solely attributable to the Service as such, (ii) Customer is given notice of any such claim; (iii) Valpeo provides reasonable co-operation to Customer in the defense and settlement of such claim, at Customer's expense and (iv) Customer is given sole authority to defend or settle the claim.
- Valpeo, its Affiliates or their Representatives shall not be liable towards Customer (its Affiliates or their Representatives) for any damage or a Third Party Claim to the extent that the alleged infringement of a third party right is the result of Customer’s breach of the Agreement, including but not limited to, (i) modification of the Service by anyone other than Valpeo, (ii) Customer’s (or its Affiliates’ or their Representatives’’) use of the Service contrary to the Agreement or the instructions given by Valpeo, (ii) after Customer was informed that the Service infringes (or may infringe) a third party right, (iv) Customer’s failure to integrate any update or corrections to the Service as indicated by Valpeo or (v) Customer’s (or its Affiliates’ or their Representatives’’) use of the Service in combination with any incompatible or unauthorized products or services.
- To the extent permitted under the applicable law, Valpeo shall in no event be liable for any incidental, special, punitive or consequential damages (including loss of profit and loss of business) incurred by Customer, his Affiliates or their Representatives or by any other party in connection with the Agreement.
Without prejudice to other limitations of liability contained herein, the total aggregate liability of Valpeo shall in any event be limited to the lower of the following amounts: the Consideration paid or payable by Customer under the Agreement to which the claim relates and, (if applicable) to the amount recovered by Valpeo from its insurer.
- Nothing in the Agreement excludes the liability of a Party for death or personal injury caused by that Party’s fraud or fraudulent misrepresentation.
- Each Party shall have a duty to mitigate damages for which the other Party is liable.
- In case of breach by Customer of its obligations under Sections 22, 23 or 24, Valpeo shall be entitled to a lump-sum compensation of fifty thousand euro [EUR 50.000,00], without prejudice to its right to claim compensation for losses, damages and costs effectively suffered.
- Except as explicitly provided herein, the Agreement does not intend and shall not bring or be construed to bring any change to the propriety of or licenses to any Intellectual Property Rights of Valpeo and Customer shall not, as a result of the Agreement, be entitled to any claim with regard to any Intellectual Property Rights to which, prior to the signing of the Agreement, it was not entitled.
Valpeo is and remains the exclusive owner of all Intellectual Property Rights relating to its products and services including, but not limited to, the Intellectual Property that underlies or is incorporated, included or used in the Valpeo Technology, the Website, the Platform or the Service, including Documentation and the Service Results. All rights, titles and interests in such Intellectual Property shall remain vested in Valpeo.
- Whenever the Agreement awards to Customer certain rights or licenses to Valpeo’s Intellectual Property or if the purpose of the Agreement requires such rights or licenses, it is understood that they are awarded to Customer under the License limitations and that Customer's rights in relation to Valpeo’s Intellectual Property are at all time restricted to the extent that they are incorporated in the Service or the Service Results under the terms and conditions set forth herein.
- Without limiting the scope of the other provisions of the Agreement and without prejudice to Customer’s right to use the Service Results under the License as set forth herein for Customer Operations, Customer shall not, without prior written authorization of Valpeo, copy, modify, make derivative works based on, disassemble, decompile, reverse engineer or translate anything that is protected by Valpeo's Intellectual Property Rights nor remove, modify or obliterate any trademark, logo, name, notice, identifying number or coding applied to the Service provided by Valpeo, its Affiliates or their Representatives under the Agreement.
In the event that, notwithstanding any prohibition thereto, Customer modifies or creates derivative works of the Service or the Service Results, Valpeo shall own all right, title and interest, including any Intellectual Property Rights, in and to such modifications and derivatives and Customer hereby assigns any such rights, title and interest in such modifications and derivatives to Valpeo at no cost to the latter. Customer represents and warrants that it has the authority to assign full title to these modifications and derivative works and the Intellectual Property Rights pertaining thereto in accordance with the terms and conditions of the Agreement.
- Valpeo may use Customer's name or logo (or the name or logo of any other member of Customer's Group) in any advertising or promotional media as a customer or client of Valpeo or otherwise in the course of performance of this Agreement or thereafter.
- Each Party acknowledges that under the Agreement it, is Affiliates, it’s Representatives or its Affiliates’ Representatives (“Receiving Party”) shall receive from the other Party, is Affiliates, it’s Representatives or its Affiliates’ Representatives (“Disclosing Party”) information that is of highly sensitive nature and is valuable to the Disclosing Party, that must and shall remain the Disclosing Party’s exclusive property and that must at all times be kept secret and confidential by the Receiving Party.
- For the purposes of the Agreement "Confidential Information" shall mean without limitation, all information that is obtained directly or indirectly by the Receiving Party from the Disclosing Party in connection with the Agreement or the Disclosing Party’s business. Confidential Information shall also include, but not be limited to, Valpeo Technology, Customer Data and Valpeo Data, any information related to the Website, the Platform and any of Valpeo’s products or services and any Intellectual Property Rights related thereto, as well as any valuations, analyses, compilations, studies of the same and any documents or other materials independently of the form in which and the medium by which the information is provided (among others oral and written transfer as well as transfer by means of a software or any electronic or audio-visual form and whether in draft or final form) related thereto.
Confidential Information shall not include any information that:
- is in the public domain at the time it is disclosed or becomes part of the public domain after disclosure without the Receiving Party’s breach of any obligation under the Agreement;
- is already known to the Receiving Party at the time of disclosure and is not subject to restriction;
- becomes known to the Receiving from a source other than the Disclosing Party without breach of an obligation of confidentiality owed to Disclosing Party;
- is developed by the Receiving Party without access to any of the other Party’s Confidential Information;
- is released for publication or disclosed pursuant to judicial order, a requirement of a governmental agency or by operation of law by the Disclosing Party.
- Unless the Receiving Party obtains explicit prior written authorization from the Disclosing Party, the former shall not to use the Confidential Information disclosed by the latter for any other purpose than for the due performance of the Agreement. The Receiving Party shall keep the Confidential Information confidential at all times, shall not disclose it to any third party and shall take at least those measures as the Receiving Party takes to protect its own similar confidential information (but in no event less than a reasonable degree of care).
The Receiving Party shall only be permitted to disclose (and shall not be required to destroy) Confidential Information if and to the extent that:
- is required by the applicable law or regulation or pursuant to a court or administrative order issued by a court of competent jurisdiction or by a governmental authority that is lawfully entitled to require such disclosure, provided, however, that the Receiving Party shall (i) prior to any disclosure notify and fully inform the Disclosing Party of such obligation to disclose and demonstrate the existence and the extent of the requirement to disclose in order to allow the Disclosing Party to assess and, as a case may be, to contest it, (ii) cooperate with the Disclosing Party if the Disclosing Party seeks a protective order or other remedy in respect of any such disclosure and (iii) abide by the Disclosing Party’s reasonable instructions in order to limit the disclosure; or
- to its Affiliates and Representatives however, that the Receiving Party shall do this (i) only the on need-to-know basis for the performance of the Agreement and (ii) if they are bound by confidentiality obligations that are at least as restrictive as those set forth in this Section 23.
Without prejudice to other provisions of the Agreement and, among others to Section 19, the Receiving Party shall immediately return to the Disclosing Party all Confidential Information (and any copies thereof) in its possession or destroy the same upon the Disclosing Party’s request and in any case after the termination or expiry of the Agreement, whatever the reason.
- The Receiving Party shall promptly notify the Disclosing Party of any unauthorized access, use, copying or disclosure of Confidential Information of which the former becomes aware, shall use its best endeavors to terminate such access, use, copying or disclosure and shall provide all reasonable assistance requested by the Disclosing Party.
- The provisions of this Section shall remain in force during 5 (five) years after the termination or expiry of the Agreement.
For the duration of the term of any License and for one (1) year following the end of the said term, Customer, its Affiliates and their Representatives shall not (attempt to) hire, offer to hire or otherwise entice away any Representative of Valpeo or of its Affiliate whether directly or indirectly.
- Notices Valpeo may give any notice to Customer by means of a general notice through the Platform, by notice to the Account Administrator or by e-mail or registered mail to Customer’s (e-mail) address that is on record in Valpeo's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after sending if made though the Valpeo platform or by registered mail and of 12 hours if sent by email.
Customer may give notice to Valpeo (such notice shall be deemed given when received by Valpeo) by registered letter sent through nationally recognized overnight delivery service.
- Severability If any provision of the Agreement is invalid or unenforceable, this shall not affect the remaining provisions thereof which shall remain in effect. The invalid or unenforceable provision shall be deemed to be replaced by an alternative valid and enforceable provision that is as closely in line with the Parties’ original intent as allowed under the applicable law.
- Entire Agreement The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter including, but not limited to, any prior non-disclosure or confidentiality agreement. No amendment of the Agreement is binding unless executed In Writing and signed by duly authorized representatives of the Parties.
- Non-agency At all times during the term of the Agreement, Customer shall act as an independent party and neither the execution of the Agreement nor the performance thereof shall be construed to constitute, for any purpose, an agency relationship between the Parties, nor a relation of legal representation in the name of or on behalf of either Party nor a joint venture or a partnership. NO Party shall have the right to act in the name or on behalf of the other Party, without latter’s prior written consent.
- No Waiver The election of any one or more remedies by either Party shall not constitute a waiver by such Party of the right to pursue any other available remedies. No failure by either Party to exercise and no delay by either Party in exercising (in whole or in part), any right in relation to the Agreement shall operate as a waiver of any such right.
- Force Majeure If, for any reason beyond the reasonable control of a Party, including, without limitation, acts of God, earthquakes, floods and other natural disasters, wars, insurrections, strikes, riots, or fires, such Party is unable to perform in whole or in part its obligations under the Agreement, such Party shall be relieved of those obligations to the extent it is unable to perform and such inability to perform, so caused, shall not make such Party liable to the other Party on the condition that the Party who is unable to perform notified the other Party of such inability within seven (7) days of the onset of such inability.
- Assignment Customer shall not assign or otherwise transfer the Agreement in whole or in part or any of its rights and obligations under the Agreement without prior written consent of Valpeo. The Agreement shall be binding on and inure to the benefit of the Parties and their respective successors and permitted assigns.
- Third Party Beneficiaries Nothing in the Agreement is intended to confer any benefits on any person other than the Parties or their respective successors or permitted assigns.
- Government Approvals The Agreement, and the obligations and rights of the Parties hereunder, are subject to any review, registration, approval, or other requirement of any governmental authority that is mandated by applicable law including, without limitation, export controls. Customer shall obtain and maintain all permits, licenses, and government registrations necessary or appropriate to receive the Service.
- Injunctive Relief Since a breach of any part of the Agreement by Customer, in particular the provisions governing intellectual property rights, may cause irreparable harm to Valpeo for which monetary damages are inadequate, Valpeo may seek immediate injunctive and/or other equitable relief should such a breach occur.
- Governing Law and Dispute Resolution The Agreement shall be governed by and construed under the laws of Belgium. All disputes in connection with the existence, validity, construction, performance, non-performance, breach or termination of the Agreement (or any terms thereof) that are not settled amicably shall be settled exclusively by the courts of Brussels, Belgium.