Terms of Use

TIM Saas Agreement – GENERAL TERMS

1  INTERPRETATION

1.1      Definitions

In the Agreement, the following terms have the stated meaning:

Term Meaning
TIM Software the software owned by the Supplier (and its licensors) that is used to provide the SaaS Service.
Agreement this SaaS Agreement, including Section A (Agreement and Key Details, including the cover page and signature clauses) and Section B (General Terms).
Confidential Information the content of the Agreement and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the Agreement.  Intellectual Property owned by the Supplier (or its licensors), including the TIM Software, is the Supplier’s Confidential Information.  The Data is the Client’s Confidential Information.
Data all data, content, and information (including Personal Information) owned, held, used or created by or on behalf of the Client that is stored using, or inputted into, the Services.
End Date the end date set out in the Key Details.
Fees the fixed fees and volume fees set out in the Key Details, as updated from time to time in accordance with clause 5.4.  and described in Annex A “TIM pricelist”
Force Majeure an event that is beyond the reasonable control of a party, excluding:

·       an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or

·       a lack of funds for any reason.

Intellectual Property Rights Includes without limitation, any and all patents, trademarks, service marks, logos, trade names, internet domain names, copyright or copyright applications (including rights in computer software and circuit layouts) and moral rights, database rights, semi-conductor topography rights, utility models, rights in designs, in inventions, in know-how or in confidential information and all other intellectual property rights or rights resulting from intellectual activity, in each case whether registered or unregistered, whether registrable or unregistrable and all rights or forms of protection having equivalent or similar effect anywhere in the world. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
Key Details the Agreement specific details set out in Section A of the Agreement.
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, or unlawful in any way.
Payment Terms the payment terms set out in the Key Details (if any).
Personal Information has the meaning given in the EU GDPR regulations.
SaaS Service the service having the core functionality described in the Key Details.
Services the SaaS Service and any Related Service as set out in the Key Details.
Start Date the start date set out in the Key Details.
Underlying Systems the TIM Software, IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third-party solutions, systems and networks.
Website the Internet site at the domain set out in the Key Details, or such other site notified to the Client by the Supplier.
Year a 12-month period starting on the Start Date or the anniversary of that date.

1.2           Interpretation

In the Agreement:

  • clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
  • words in the singular include the plural and vice versa, unless the context requires otherwise;
  • a reference to:
    • a party to the Agreement includes that party’s permitted assigns;
    • personnel includes officers, employees, contractors and agents, but a reference to the Client’s personnel does not include the Supplier;
    • a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
    • including and similar words do not imply any limit; and
    • a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them; and
  • no term of the Agreement is to be construed against a party because the term was first proposed or drafted by that party.

2      SERVICES

2.1           General

The Supplier must use best efforts to provide the Services:

  1. in accordance with the Agreement and Belgian law;
  2. exercising reasonable care, skill and diligence; and
  3. using suitably skilled, experienced and qualified personnel.

2.2           Non-exclusive

Unless otherwise provided in Section A, the Supplier’s provision of the Services to the Client is non-exclusive, and nothing in the Agreement prevents the Supplier from providing the Services to any other person.

2.3           Availability

The Supplier will use reasonable efforts to ensure the SaaS Service is available /on a 24/7 basis in EU countries.  However, it is possible that on occasion the SaaS Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure.  The Supplier will inform the Client of any possible planned unavailability at least 15 days in advance. Planned system unavailability’s will to the best of Supplier’s ability not exceed 6 hours, and occur not more than once every 3 months.

2.4           Underlying Systems

The Supplier is responsible for procuring all Underlying Systems reasonably required for it to provide the SaaS Service in accordance with the Agreement.

2.5           Additional Related Services

 

  1. The Supplier may, from time to time, make available additional services to supplement the SaaS Service subject to a separate price offer and the acceptance of this price offer by the Client.
  2. At the request of the Client and subject to the Client paying the applicable Fees, the Supplier may agree to provide to the Client an additional Related Service on the terms of the Agreement.

3      CLIENT OBLIGATIONS

3.1           General use

The Client and its personnel must:

  1. use the Services in accordance with the Agreement solely for:
    1. the Client’s own business purposes; and
    2. lawful purposes; and
  2. not resell or make available the Services to any third party, or otherwise commercially exploit the Services.

3.2           Access conditions

When accessing the SaaS Service, the Client and its personnel must:

  1. not impersonate another person or misrepresent authorisation to act on behalf of others or the Supplier;
  2. correctly identify the sender of all electronic transmissions;
  3. not attempt to undermine the security or integrity of the Underlying Systems;
  4. not use, or misuse, the SaaS Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the SaaS Service;
  5. not attempt to view, access or copy any material or data other than that to which the Client is authorised to access; and
  6. neither use the SaaS Service in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.

3.3           Authorizations

The Supplier is responsible for procuring all licences, authorisations and consents required for the Client and its personnel to use the Services.

4      DATA

4.1           Supplier access to Data

  1. The Client acknowledges that:
    1. the Supplier may require access to the Data to exercise its rights and perform its obligations under the Agreement; and
    2. to the extent that this is necessary but subject to clause 7, the Supplier may authorise a member or members of its personnel to access the Data for this purpose.
  2. The Client must arrange all consents and approvals that are necessary for the Supplier to access the Data as described in clause 1a.

4.2           Backups of Data

The Client agrees to keep a separate back-up copy of all Data uploaded by it onto the SaaS Service.

 

5      FEES

5.1           Fees

The Client must pay to the Supplier the Fees being the Fixed monthly Fee and Volume fee if any as set forth in Exhibit A – “TIM pricelist”

5.2           Invoicing and payment

  1. The Supplier will provide the Client with valid invoices on the dates set out in the Payment Terms, or if there are none, monthly in arrears for the Fees due in the previous month.
  2. The Fees exclude VAT, which the Client must pay on taxable supplies under the Agreement.
  3. The Client must pay the Fees:
    1. on the dates set out in the Payment Terms, or if there are none, by the 30th of the month following the date of invoice; and
    2. electronically in cleared funds without any set off or deduction.

5.3           Overdue amounts

The Supplier may charge interest on overdue amounts, automatically and without prior written notice of breach.  Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to 10%

5.4           Increases

By  at least 30 days’ notice, the Supplier may increase the Fees once each Year (but not the first two Years) by the percentage change in the Belgian Consumer Price Index over the 12 months preceding the last quarterly publication of that index.  Fees updated under this clause are deemed to be the Fees listed in the Key Details.

6      INTELLECTUAL PROPERTY

6.1           Ownership

  1. Subject to clause b, title to, and all Intellectual Property Rights in, the Services, the Website, and all Underlying Systems is and remains the property of the Supplier (and its licensors).

 

  1. Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains the property of the Client. The Client grants the Supplier a European, non-exclusive, fully paid up, transferable, irrevocable licence to use the Data for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with the Agreement and for the duration of the Agreement.

6.2           Feedback

If the Client provides the Supplier with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):

  1. all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned by the Supplier; and
  2. the Supplier may use or disclose the feedback for any purpose.

6.3           Third party sites and material

The Client acknowledges that the SaaS Service may link to third party websites or feeds (for example weather services)  that are connected or relevant to the SaaS Service.  Any link from the SaaS Service does not imply any Supplier endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators.  To the maximum extent permitted by law, the Supplier excludes all responsibility or liability for those websites or feeds.

 

6.4       Third party Intellectual Property Rights indemnity

  1. The Supplier indemnifies the Client against any claim or proceeding brought against the Client to the extent that claim or proceeding alleges that the Client’s use of the SaaS Service in accordance with the Agreement constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim). The indemnity is subject to the Client:
    1. promptly notifying the Supplier in writing of the IP Claim;
    2. making no admission of liability and not otherwise prejudicing or settling the IP Claim, without the Supplier’s prior written consent; and
  • giving the Supplier complete authority and information required for the Supplier to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for the Supplier’s account.
  1. The indemnity in clause a does not apply to the extent that an IP Claim arises from or in connection with:
  2. the Client’s breach of the Agreement;
  3. use of the SaaS Service in a manner or for a purpose not reasonably contemplated by the Agreement or otherwise not authorised in writing by the Supplier; or
  • any third-party data or any Data.
  1. If at any time an IP Claim is made, or in the Supplier’s reasonable opinion is likely to be made, then in defence or settlement of the IP Claim, the Supplier may (at the Supplier’s option and costs):
  2. obtain for the Client the right to continue using the items which are the subject of the IP Claim; or
  3. modify, re-perform or replace the items which are the subject of the IP Claim so they become non-infringing.

7      CONFIDENTIALITY

7.1           Security

Each party must, unless it has the prior written consent of the other party:

  1. keep confidential at all times the Confidential Information of the other party;
  2. effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
  3. disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of clauses a and b.

7.2           Permitted disclosure

The obligation of confidentiality in clause a does not apply to any disclosure or use of Confidential Information:

  1. for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;
  2. required by law (including under the rules of any stock exchange) or by judicial or arbitral order (including any stock exchange authority);
  3. for disclosure to the court in the event of a dispute between the parties;
  4. which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
  5. which was rightfully received by a party to the Agreement from a third party without restriction and without breach of any obligation of confidentiality; or
  6. by the Supplier if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that the Supplier enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 7.

7.3           Duration

the confidentiality obligations set out in this clause 7, shall survive termination or expiry of the Agreement for whatever reason and shall remain in force for a period of 5 years from the date of termination or expiry of the Agreement.

7.4           Sanction

In the case of a breach of any of the covenants set out in Clause 7, the breaching party shall compensate the other party, automatically and without prior written notice of breach, a fixed amount of ____ euros (€____) for each breach, without prejudice to the right of the other party to claim recuperation for any additional amount if its damages exceed the fixed amount and without prejudice to that party’s right to claim other remedies under the applicable laws.

8      WARRANTIES

8.1           Mutual warranties

Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute binding obligations on the warranting party.

9      LIABILITY

9.1           Maximum liability

The maximum aggregate liability of the Supplier under or in connection with the Agreement or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the Fees paid by the Client under the Agreement in the previous Year (which in the first Year is deemed to be the total Fees paid by the Client from the Start Date to the date of the first event giving rise to liability).

9.2           Unrecoverable loss

Neither party is liable to the other under or in connection with the Agreement or the Services for any:

  1. loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
  2. consequential, indirect, incidental or special damage or loss of any kind.

9.3           Unlimited liability

  1. Clauses 1 and 9.2 do not apply to limit the Supplier’s liability:
    1. under the indemnity in clause a; or
    2. under or in connection with the Agreement for:
      • personal injury or death;
      • fraud or wilful misconduct; or
      • a breach of clause 7.
    3. Clause 2 does not apply to limit the Client’s liability:
      1. to pay the Fees;
      2. for those matters stated in clause a.ii.

9.4           No liability for other’s failure

Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.

9.5           Mitigation

Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.

9.6           Indemnification

Without prejudice to the other provisions of this Agreement, the Client shall immediately and fully indemnify the Supplier and hold the Supplier harmless (on a euro for euro basis) against any and all claims or proceedings brought against the Supplier by any third party or any damage incurred by the Supplier which arises from or in connection with:

  1. the Client’s breach of the Agreement;
  2. use of the SaaS Service in a manner or for a purpose not reasonably contemplated by the Agreement or otherwise not authorised in writing by the Supplier; or
  • any third-party data or any Data.

10 TERM, TERMINATION AND SUSPENSION

10.1         Duration

Unless terminated under this clause 10, the Agreement:

  1. starts on the Start Date and ends on the End Date; but
  2. where no End Date is set out in the Key Details, continues for successive terms of 36 months from the Start Date unless a party gives 30-days’ notice that the Agreement will terminate on the expiry of the then current term.

10.2                  No fault termination

  “Unless otherwise agreed in the Key Details, either party may terminate the Agreement after the first anniversary of the Start Date, by giving a 3 months’ prior written notice to the other party, sent by registered letter.”

10.3                  Termination rights

  1. Without prejudice to any other remedy or right under this Agreement or the applicable law, either party may, by written notice to the other party, with immediate effect and without prior recourse to a court, terminate the Agreement if the other party:
  2. breaches any material provision of the Agreement and the breach is not:
    • remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or
    • capable of being remedied;
  3. becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue its business for any reason; or
  • is unable to perform a material obligation under the Agreement for 60 days or more due to Force Majeure.
  1. If the remedies in clause c are exhausted without remedying or settling the IP Claim, the Supplier may, by notice to the Client, immediately and without prior recourse to a court terminate the Agreement, without prejudice to any other remedy or right of the Supplier under this Agreement or the applicable law.

10.4                  Consequences of termination or expiry

  1. Termination or expiry of the Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry.
  2. On termination or expiry of the Agreement, the Client must continue to pay all Fees for Services provided prior to that termination or expiry.
  3. Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination or expiry of the Agreement, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
  4. At any time prior to one month after the date of termination or expiry, the Client may request:
  5. a copy of any Data stored using the SaaS Service, provided that the Client pays the Supplier’s reasonable costs of providing that copy. On receipt of that request, the Supplier must provide a copy of the Data in a common electronic form.  The Supplier does not warrant that the format of the Data will be compatible with any software; and/or
  6. deletion of the Data stored using the SaaS Service, in which case the Supplier must use reasonable efforts to promptly delete that Data.

To avoid doubt, the Supplier is not required to comply with clause i to the extent that the Client previously requested deletion of the Data.

10.5                  Obligations continuing

Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 6, 7, 9, 10.4, 10.5 and 11, continue in force.

10.6                  Suspending access

Without limiting any other right or remedy available to the Supplier, the Supplier may restrict the Client’s access to the SaaS Service where the Client (including any of its personnel):

  1. undermines, or attempts to undermine, the security or integrity of the SaaS Service or any Underlying Systems;
  2. uses, or attempts to use, the SaaS Service:
  3. for improper purposes; or
  4. in a manner, other than for normal operational purposes, that materially reduces the operational performance of the SaaS Service; or
  5. fails to pay any amount payable under the Agreement (including without limitation the Fees) within 15 after notification of Supplier.

10.7                  Notice

The Supplier must notify the Client where it restricts or suspends the Client’s access under clause 10.6.

11 DISPUTES

11.1                  Good faith negotiations

Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.

11.2                  Right to seek relief

This clause 11 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.

12 GENERAL

12.1                  Force Majeure

Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party:

  1. immediately notifies the other party and provides full information about the Force Majeure;
  2. uses best efforts to overcome the Force Majeure; and
  3. continues to perform its obligations to the extent practicable.

12.2                  Rights of third parties

No person other than the Supplier and the Client has any right to a benefit under, or to enforce, the Agreement.

12.3                  Waiver

To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party. No failure or delay by a Party in exercising any rights, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise preclude any other or further exercise of any right, power or privilege under this Agreement.

12.4                  Independent contractor

the Supplier is an independent contractor of the Client, and no other relationship (e.g. joint venture, agency, employment, trust or partnership) exists under the Agreement.

12.5                  Notices

A notice given by a party under the Agreement must be delivered to the other party via email using the email address set out in the Key Details or otherwise notified by the other party for this purpose.  If the notice is a notice of termination, a copy of that email must be immediately delivered (by hand or courier) to the Chief Executive or equivalent officer of the other party at the other party’s last known physical address.

12.6                  Severability

Any illegality, unenforceability or invalidity of a provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement. If any provision of this Agreement is found to be invalid or unenforceable, such provision shall be replaced with another provision consistent with the purpose and intent of this Agreement.

12.7                  Variation

Any variation to the Agreement must be in writing and signed by both parties.

12.8                  Entire agreement

The Agreement sets out everything agreed by the parties relating to the Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date.  The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Start Date.

12.9                  Subcontracting and assignment:

Unless otherwise provided under Section A, the Client may not assign, novate, subcontract or transfer any right or obligation under the Agreement without the prior written consent of the Supplier, that consent not to be unreasonably withheld.  The Client remains jointly and severally liable for its obligations under the Agreement despite any approved assignment, subcontracting or transfer.  Any assignment, novation, subcontracting or transfer must be in writing.

12.10             Governing Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with the Belgian law and each of the Parties irrevocably agrees that the Dutch speaking courts of Brussels have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Agreement.

12.11             Counterparts

The Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement.  A party may enter the Agreement by signing and emailing a counterpart copy to the other party.

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