2. 1. Subject to the terms and conditions of this Agreement and timely payment of the Fees, Clarico grants to Customer a renewable, personal, restricted, non-exclusive, non-transferable, license, without the right to sub-license, for the Term to access and use the Service, for Customer's business purposes.
2.2. In accordance with the conditions set forth in this Agreement and timely payment of the Fees by Customer, Clarico hereby grants to the End Customers’ Authorised Users a restricted, personal, non-exclusive, non-transferable, non-assignable license, without the right to sub-license, for the Term to have restricted access to the Service.
2.3. The aforementioned licenses are granted as of the Effective Date.
2.4. Clarico reserves the right to make, in its sole discretion, changes and updates to the functionality and/or documentation of the Service from time to time without prior notification to the Customer.
2.5. Customer shall not have the right to (i) use the Service in whole or part for any other purpose, other than as provided herein or to make services available to Third Parties utilizing the Service (ii) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Service by any means whatsoever, or disclose any of the foregoing, or (iii) use the Service in any way that is unlawful, illegal, fraudulent or harmful; or (iv) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
2.6. Clarico and its suppliers retain all intellectual property rights, title and interest in and to the Service and Clarico Content. All rights in and to the Service and Clarico Content not expressly granted to Customer in this Agreement are reserved by Clarico. No license is granted to Customer except as to use of the Service as expressly stated herein. The Clarico name, the Clarico logo, and the product names associated with the Service are trademarks of Clarico or Third Parties, and they may not be used without Clarico's prior written consent.
2.7. Number of Files. Customer is initially authorized to permit use by the number of Files listed as proposed in the accepted proposal. Any overrun of the initial number of Files will be invoiced as ‘Overage’.
2.8. Content. Customer may procure (additional) Content through the Service or by entering into purchase orders under this Agreement setting out the commercial details. The Customer and its End Customer are granted a personal, non-exclusive, non-transferable, sub-licensable right on such Content for the Term solely for use of the Content through the Platform in accordance with the purchase order.
2.9. In relation to the Authorised Users, the Customer undertakes that: (i) it will not allow or suffer any user accounts to be used by more than one individual Authorised User, (ii) that each Authorised User shall keep a secure password for his use of the Service and (iii) that each Authorised User shall keep his password confidential. The Customer is responsible for all acts by its Authorized Users in breach of this Agreement.
3.1. Customer agrees to pay the fees as set forth the proposal and any and all additional Integration and Content fee’s and Overage as per the pricing schedule included in the proposal.
3.2. All payment obligations are non-cancellable and all amounts paid are non-refundable. All invoices for any charges under this Agreement are due and payable within 15 (fifteen) days of invoice date. Amounts due are exclusive of all applicable taxes, levies, or duties, and Customer will be solely responsible for payment of all such amounts. All amounts are payable in Euro. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month
4.1. All Customer Data submitted by Customer to Clarico will remain the sole property of Customer or its End Customers.
4.2. Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Customer Data. Clarico will not use the Customer Data for any purpose other than to provide the Service to Customer and for the reporting of user statistics. Upon termination of the Agreement, the Customer shall receive a copy of the Customer Data in a common file format to be determined by the Clarico in its sole discretion which enables the Customer to process the Customer Data in Third Party’s software.
4.3. Customer will comply with all applicable laws regarding Customer Data, use of the Service and the Clarico Content, including but not limited to laws involving data protection law. Clarico reserves the right to terminate this Agreement for cause in case the Customer materially breaches the provisions of this Section 4.
4.4. Subject to the terms and conditions of this Agreement, Customer grants to Clarico a non-exclusive license to use, copy, store, transmit and display Customer Data to the extent reasonably necessary to provide and maintain the Service.
5.1 If Clarico processes any personal data on the Customer's behalf when performing its obligations under this Agreement, the Parties record their intention that the Customer shall be the data controller and the Clarico shall be a data processor and in any such case: the Customer acknowledges and agrees that the personal data may be transferred or stored in any country of the European Union, in order to carry out Clarico’s obligations under this Agreement; the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Clarico so that the Clarico may lawfully use, process, store and transfer the personal data in accordance with this Agreement on the Customer's behalf; the Customer shall ensure that the relevant Third Parties have been informed of, and have signed the appropriate legal mechanisms to, such use, processing, storage and transfer as compliant with applicable data protection legislation and industry standards; Clarico shall process the personal data in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Customer from time to time; the Customer acknowledges and agrees that Customer’s data shall be shared with Clarico’s employees, representatives, officers, directors, agents, advisors, affiliates and consultants who have a need to know such data for the purpose of providing technical support; and are bound by a confidentiality obligation prior to such disclosure; Clarico will use reasonable efforts to comply with each reasonable request from Customer to cooperate, provide assistance and provide information to enable Customer to comply with its obligations under the GDPR; each Party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction or damage.
5.2. Unless otherwise agreed, the processing of personal data on Customer’s behalf will be subject to the Clarico Data Processor addendum between the Parties available from 24 May 2018 and which is incorporated by reference into this Agreement.
6.1. Customer agrees to defend, indemnify, and hold harmless Clarico (and its officers, directors, employees and agents) from and against any Third Party claims, actions or demands (including, without limitation, costs, damages and reasonable legal and accounting fees) which result from any Customer Data infringing the rights of any Third Party (including infringement of intellectual property).
6.2. Clarico will defend, indemnify, and hold Customer (and its officers, directors, employees and agents) harmless from and against all costs, liabilities, losses, and expenses arising from any founded and well-substantiated Third Party claim, suit, action, or proceeding arising from the infringement of any European intellectual property rights by the Service or Clarico Content (other than that due to Customer Data). In case of such a claim, Clarico may, in its sole discretion, (i) procure a license that will protect Customer against such claim without cost to Customer, or (ii) replace the Service with a non-infringing Service, or (iii) if it deems such remedies not practicable, Clarico may terminate the Service and this Agreement without fault, provided that in case of such a termination, Customer will receive a pro-rata refund of the license fees prepaid for use of the Service not yet furnished as of the termination date. THIS SECTION STATES CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.
7.1. To the best of Clarico’s knowledge, the Service and/or Clarico Content do not, upon delivery to the Customer, contain any Virus, and Clarico shall not knowingly program into any of the Service and/or Clarico Content any Virus or other software routine designed to permit unauthorized access to any Customer computer system or to disable, erase or otherwise cause damage to software, hardware or data or any back door, time bomb, software lockout key or device, drop dead device, or other software routine designed to disable a computer, either automatically or with the passage of time or under the control of any person, unless any such software routine is expressly requested in writing by the Customer. It being understood that Clarico will perform the necessary checks and scans to ascertain this representation.
7.2. Disclaimer. Except as expressly set forth in article 8.1, Clarico makes no representations or warranties, express or implied, regarding the use or performance of the Service, including without limitation any implied warranties of merchantability, or fitness for a particular purpose. Clarico does not warrant or represent that the Service will be compatible with any application, program or platform not specifically identified as compatible in the service. Other than as provided for in this Agreement, Customer accepts the Service "as is".
7.3. Types of damages. To the extent legally permitted under applicable law, Parties shall not be liable to each other, for any special, indirect, exemplary, punitive, incidental or consequential damages of any nature including, but not limited to damages or costs due to loss of profits, data, revenue, goodwill, production or use, business interruption, procurement of substitute services, or personal or property damage arising out of or in connection with this Agreement, including but not limited to any miscalculations, or the use, misuse, or inability to use the Service, regardless of the cause of action or the theory of liability, whether in tort, contract, or otherwise, even if Parties have been notified of the likelihood of such damages. 8.4. Without prejudice to Article 8.2 and 8.3 of the Agreement, in the event that liability is imposed on a Party its liability arising out of or in connection with this Agreement, regardless of the cause of action or the theory of liability, whether in tort, contract, or otherwise, shall not exceed the fees paid by Customer under this Agreement during the 12 (twelve) months prior the event that gives rise to a Party’s liability.
7.5. Clarico Content. Clarico Content will be provided on an ‘AS IS’-basis without any additional warranty.
7.7. Third Party Content. Through the Service, Third Party Content may be offered to the Customer. Clarico does not supply and is not responsible for any Third Party Content. All such Third Party Content will be provided on an ‘AS IS’-basis without any additional warranty.
8.1. “Confidential Information” means non-public information, technical data or know-how of a Party and/or its affiliates, which is furnished to the other Party in written or tangible form in connection with this Agreement. Oral disclosure will also be deemed Confidential Information if it would reasonably be considered to be of a confidential nature or if it is confirmed at the time of disclosure to be confidential.
8.2. Notwithstanding the foregoing, Confidential Information does not include information which is: (i) already in the possession of the receiving Party and not subject to a confidentiality obligation to the providing Party; (ii) independently developed by the receiving Party; (iii) publicly disclosed through no fault of the receiving Party; (iv) rightfully received by the receiving Party from a Third Party that is not under any obligation to keep such information confidential; (v) approved for release by written agreement with the disclosing Party; or (vi) disclosed pursuant to the requirements of law, regulation, or court order, provided that the receiving Party will promptly inform the providing Party of any such requirement and cooperate with any attempt to procure a protective order or similar treatment.
8.3. Neither Party will use the other Party’s Confidential Information except as reasonably required for the performance of this Agreement. Each Party will hold in confidence the other Party’s Confidential Information by means that are no less restrictive than those used for its own confidential materials. Each Party agrees not to disclose the other Party’s Confidential Information to anyone other than its employees or subcontractors who are bound by confidentiality obligations and who need to know the same to perform such Party’s obligations hereunder. The confidentiality obligations set forth in this Section will survive for one year after the termination or expiration of this Agreement.
8.4. Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement, each Party will, upon the request of the disclosing Party, either: (i) return all of such Confidential Information of the disclosing Party and all copies thereof in the receiving Party’s possession or control to the disclosing Party; or (ii) destroy all Confidential Information and all copies thereof in the receiving Party’s possession or control. The receiving Party will then, at the request of the disclosing Party, certify in writing that no copies have been retained by the receiving Party, its employees or agents.
8.5. In case a Party receives legal process that demands or requires disclosure of the disclosing Party’s Confidential Information, such Party will give prompt notice to the disclosing Party, if legally permissible, to enable the disclosing Party to challenge such demand.
9.1. The initial term of this Agreement (“Initial Term”) will begin on the Effective Date and will end one year later. This Agreement will automatically renew for successive one-year periods (each a “Renewal Term”) beginning at the end of the Initial Term, unless either Party provides notice of termination three (3) months before the end of the Initial Term or current Renewal Term, as applicable.
9.2. Either Party may terminate the Agreement on giving at least three (3) months notice prior to the end of the Initial Term or the then current Renewal Term, or unless otherwise terminated early in accordance with the provisions of this Agreement.
9.4. Either Party may terminate this Agreement by written notice to the other Party if the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days from receipt of a default notice.
9.5. Either Party may terminate this Agreement by written notice to the other Party, effective as of the date of delivery of such notice, if the other Party becomes the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding or otherwise liquidates or ceases to do business.
9.6. Upon termination of this Agreement for whatever reason (i) the Customer shall promptly pay Clarico all Fees and other amounts earned by or due to Clarico pursuant to this Agreement, up to and including the date of termination, (ii) all user rights granted to the Customer pursuant to this Agreement, including the rights to use the Service as per Section 2 shall terminate and (iii) Clarico shall, upon first request of the Customer provide all Customer Data in a commonly accepted file format. Termination of this Agreement on whatever ground shall be without prejudice to any right or remedy that has accrued prior to the actual termination.
9.7. The provisions of this Agreement that are expressly or implicitly intended to survive termination shall survive any expiration or termination of this Agreement.
10.1. Applicable law and Jurisdiction. This Agreement will be interpreted fairly in accordance with its terms, without any strict construction in favor of or against either Party and in accordance with Belgium law, without giving effect to any laws of conflict. The courts of Ghent (section Ghent) will have exclusive jurisdiction over any dispute or controversy arising from or relating to this Agreement or its subject matter.
10.2. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
10.3. No Agency. No joint venture, partnership, employment, or agency relationship exists between Customer and Clarico as a result of this Agreement or use of the Service.
10.4. No Waiver. The failure of a Party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by that Party in writing.
10.5. Force Majeure. Except for the payment by Customer, if the performance of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of such Party, that Party will be excused from such to the extent that it is prevented, hindered or delayed by such causes.
10.6. Assignment. This Agreement may not be assigned by Customer without the prior written approval of Clarico but may be assigned by Clarico to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of Clarico’s assets involved in the operations relevant to this Agreement, or (iii) a successor by merger or other combination. Any purported assignment in violation of this Section will be void. This agreement may be enforced by and is binding on permitted successors and assigns.
10.7. Notice. Each Party must deliver all notices or other communications required or permitted under this Agreement in writing to the other Party at the address listed on the first page of the Agreement by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each Party may change its address for receipt of notice by giving notice of such change to the other Party.
10.8. Entire Agreement. This Agreement, together with any applicable Schedule(s), comprises the entire agreement between Customer and Clarico and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding the subject matter contained herein. No amendment to or modification of this Agreement will be binding unless in writing and signed by an authorized representative of each Party.
”Authorized Users” means users who are authorized to access the Service through a user account created by Clarico or the Customer;
“Content” means Clarico Content and, as the case may be, Third Party Content;
“Customer” means the legal entity that enters into a contractual relationship with Clarico by accepting the proposal;
“Customer Data” means all data, information or content provided or submitted by Customer to Clarico in the course of utilizing the Service;
“Effective Date” means, unless stated otherwise in the proposal, the date of the proposal;
“End Customer” means the end customers of Customer and their affiliates, advisors, representatives, officers, directors, employees, agents and consultants which may be serviced or processed through the Service by the Customer;
“File” means each End Customer file of the Customer;
“Service” means Clarico’s online service “Clarico” including the integrations, features and modules as set out in the accepted proposal;
“Term” means the term of this Agreement as specified in Section 10;
“Third Party” means any legal or natural person that is not an End Customer, the Customer or Clarico;
“Third Party Content” means content, templates and materials provided to the Customer through the Service and developed (and if applicable maintained) by a Third Party;
“Clarico Content” means Clarico-supplied content, templates, materials and other information and data made available by means of the Service or on Clarico’s web site;
“Virus” means a virus, cancelbot, worm, logic bomb, Trojan horse or other harmful component of software or data.
Version: May 24, 2018