Terms and Conditions

section 1 definitions the following definitions (including those in the schedules) will apply “ agreement ” means this agreement, together with all its schedules; “ annex(es) ”means an attachment to this agreement, which will be an integral part of this agreement; “ authorized users ” mean users who are authorized to access the intelliprove solution via licensee’s platform through a user account created by the licensee; “ change of control ” means a liquidation, dissolution, winding up, merger, acquisition, sale, exclusive license or other disposal of substantially all of the assets or a majority of the shares or a sale of the majority of the shares held by the founders or any other transaction resulting in a change of control; “ confidential information ”means any information disclosed by the disclosing party to the receiving party whether orally, in writing or in electronic or other form, or otherwise obtained by the receiving party through observation or investigation of the disclosing party's activities whether or not the confidential information is marked or identified, it contains all information that may reasonably be considered confidential, including, but not limited to, prices, terms and conditions, attachments, appendices, and all information related to the intelliprove solution associated with this agreement confidential information of intelliprove will be deemed to include the intelliprove solution and all general tools, programs, algorithms and benchmarks built or developed by intelliprove based on data collected from licensee (whether such data is licensee data or licensee confidential information) licensee confidential information will be deemed to include licensee data; "data processing agreement" means the data processing agreement, entered into between intelliprove and licensee and attached to this agreement as annex 3 data processing agreement; “ data protection legislation ” means the eu regulation 2016/679 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (general data protection regulation), together with the codes of practice, codes of conduct, regulatory guidelines and standard clauses and other related legislation arising from such directive or regulation, as updated from time to time; “ deliverables ” means deliverables developed by intelliprove in the scope of the professional services; “ disclosing party ”means the party disclosing confidential information under this agreement; “ documentation ”means any documentation provided by intelliprove regarding the use of the intelliprove solution; “ effective date ” means the date of signature of this agreement; “ fee(s) ” means the fee paid by licensee in consideration for the intelliprove solution as set forth in the applicable quotation; “ feedback ” has the meaning set forth in section 4 8 of this agreement; “ initial term ” has the meaning set forth in section 4 15 of this agreement; “ intellectual property rights ”means all (a) rights now known or hereafter existing in relation to works of authorship, including copyrights, design rights and moral rights; (b) rights to trademarks or service marks; (c) rights to trade secrets, know how; (d) patents, patent rights, and industrial property rights (e) layout design rights, design rights, (f) trade and business names, domain names, database rights and any other industrial or intellectual property or similar rights (whether registered or unregistered) (g) all registrations, applications for registration, renewals, extensions, divisions, improvements or reissues relating to any of these rights and the right to apply for, maintain and enforce any of the foregoing items, in each case in any jurisdiction throughout the world; “ intelliprove sdk ” means the intelliprove software development kit and any associated documentation, software code, other materials made available by intelliprove; “ intelliprove api ” means intelliprove’s api solution and any associated documentation, software code, other materials made available by intelliprove to connect the licensee’s platform with the intelliprove solution; " intelliprove solution ” means the proprietary software solution developed and managed by intelliprove for facial analysis, including and available to licensee through the intelliprove sdk or intelliprove api; “ licensee data ” means data, information or material provided or submitted by licensee or its authorized users to the intelliprove solution whether through the intelliprove sdk or intelliprove api, or otherwise; “ licensee’s platform ” means the (wellbeing) software platform or application developed by the licensee; “ personal data ”means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by an identifier such as a name, an identification number, location data, an online identifier or by one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; “ professional services” mean the implementation and professional services to be delivered by intelliprove, upon licensee’s explicit written request, pursuant to one or more sow’s; “ professional services fee(s) ” means the fee paid by licensee in consideration of the professional services as set forth in the applicable sow; “ quotation ” means any form or quotation or other written agreement submitted by intelliprove to licensee that incorporates or is deemed to incorporate the terms of this agreement; “ receiving party ”means the party receiving confidential information pursuant to this agreement; “ renewal term ”has the meaning set forth in section 4 14 of this agreement; “ schedule(s) ”means an attachment to an annex of this agreement, which will be an integral part of this agreement; “ sow ”means a duly executed statement of work setting out, at a minimum, the scope, assumptions and fees of professional services to be delivered by intelliprove to licensee pursuant to this agreement “ term ”means each of the initial terms and the renewal terms, as applicable; “ terms and conditions ” means the terms and conditions set forth in section 4 of this agreement; “ terms of use ”means the conditions under which an authorized user may use the intelliprove solution these terms of use are attached to this agreement as annex 2 ; “ third party ” means any legal entity or natural person that is not a party or an authorized user, and “ virus ”means a virus, cancelbot, worm, logic bomb, trojan horse or other harmful component of software or data section 2 intelliprove solution license terms and conditions (“terms and conditions”) following terms and conditions constitute an integral part of the intelliprove license agreement 2 1 license subject to all terms hereof, intelliprove hereby grants licensee (i) a non exclusive, non transferable, revocable license to install and use the intelliprove sdk and/or intelliprove api in object code solely for the purposes of connecting and/or integrating the intelliprove solution with/into licensee’s platform and to distribute the intelliprove solution as part of licensee’s platform and have such licensee platform used by authorized users, and (ii) a non exclusive, non transferable, revocable right to access through a web interface the intelliprove solution that makes available information on authorized user routine behavior based on device data provided through the intelliprove api integrated in the licensee platform 2 2 restrictions on licensee licensee is not permitted to use the intelliprove solution (including sdk or api) or any part thereof in any manner not permitted by intelliprove within the limits of applicable law and unless otherwise agreed, licensee may not (i) make the intelliprove solution available or sell or rent the intelliprove solution to any third party; (ii) adapt, modify, translate or alter the intelliprove solution in any way; (iii) sublicense, lease, rent, loan, distribute or otherwise transfer the intelliprove solution to any third party; (iv) decompile, reverse engineer, disassemble or otherwise derive or attempt to derive or determine the source code (or underlying ideas, algorithms, structure or organization) of the intelliprove solution, except and only to the extent that such activity is expressly permitted by applicable law, notwithstanding this limitation; (v) modify, remove or render illegible any copyright notices, digital watermarks, proprietary legends or other notices contained in the intelliprove solution; (vi) intentionally distribute viruses or other items of a destructive or misleading nature or use and intelliprove solution for any unlawful, invasive, infringing, defamatory or fraudulent purpose; or (vii) remove or in any way circumvent any technical or other protective measures contained in the intelliprove solution 2 3 restrictions on intelliprove intelliprove will not modify, adapt, merge or create derivative works of the licensee platform nor electronically transfer into another computer language, translate, reverse engineer or reengineer the licensee platform intelliprove will not (i) attempt to access any systems, programs or licensee data to which no access is granted hereunder or that are not required for intelliprove’s activities in connection with this agreement; or (ii) use any device or software to interfere or attempt to interfere with the proper operation of the licensee platform intelliprove will notify licensee immediately if it learns of any unauthorized use of the licensee platform or unauthorized acquisition of licensee data intelliprove will not decompile, disassemble, analyze or examine the licensee platform or otherwise attempt to learn the source code, structure, algorithms or ideas underlying the licensee platform for the purpose of reverse engineering, re engineering or rebuilding a program or application with the same or similar functionalities 2 4 fees unless stipulated otherwise, the fee is a net amount exclusive any applicable taxes (including local taxes), charges (including local charges), import duties, or sums payable on account of any currency control restrictions based on the amount of calls to the intelliprove solution the maximum amount of calls is set out in the applicable quotation and/or sow and if licensee exceeds this maximum amount intelliprove is entitled to charge the additional costs if licensee is legally obliged to withhold aforementioned sums from his payment to intelliprove, he will pay intelliprove, in addition to the price, sufficient funds to cover the payment by intelliprove of such sums that are excluded under this article any complaint about invoiced amounts must be lodged with intelliprove by registered letter within eight (8) days after receipt of the invoice if licensee disputes only part of the invoice, he will not be entitled to suspend payment of the undisputed amounts intelliprove reserves the right to adapt the fees on an annual basis in the beginning of the year based on the formula fn = fo (0,2 + 0,8 (sn/so)) (where fn = new fee; fo = old fee; sn = reference wage costs (national average – wages and social charges) as last published by the technology industry federation agoria preceding the adaptation of the fee; so = reference wage costs (national average – wages and social charges) published by agoria, valid for the month preceding the entering into force of the agreement) 2 5 payment as consideration for the provision of professional services by intelliprove to licensee pursuant to the sow and/or quotation, the licensee agrees to pay to intelliprove the professional services fees as set out in the relevant quotation and/or sow all invoices for any charges for the provision of professional services are due and payable within fifteen (15) calendar days of the invoice date, unless specified otherwise in the applicable quotation or sow after the completion of such implementation as part of the professional services and, in any event, no more than two (2) months after the effective date, the licensee agrees to pay the fee as set forth in the quotation as a consideration for the license set out in section 2 1 hereof (“ start payment date ”) intelliprove will send an invoice on a monthly basis, commencing thirty (30) calendar days before the start payment date the fee will be payable upfront on a monthly basis, on the start payment date and each subsequent anniversary thereof all invoices for any charges for the provision of the license set out in section 2 1 are due and payable within fifteen (15) calendar days of the invoice date, unless specified otherwise in the applicable sow or quotation intelliprove has the right to send its invoice electronically licensee will provide (and update if necessary) a correctly functioning e mail address to which the electronic invoice can be sent an electronic invoice will be considered correctly received by licensee on the same day it is sent to this e mail address all payment obligations are non cancellable, and all amounts paid are non refundable all amounts are payable in euro all amounts not paid by the licensee on the due date mentioned in the invoice will bear interest in accordance with the law of 2 august 2002 on combating late payments in commercial transactions, as of the due date, as well as a lump sum indemnity equal to 10% of the invoiced amount moreover, intelliprove reserves its right to suspend further delivery of the intelliprove solution, professional services and deliverables 2 6 intellectual property rights licensee acknowledges and agrees that these terms and conditions are not a sale of the intelliprove solution or any rights therein, and that intelliprove and/or its licensors will at all times retain all intellectual property rights in and to the intelliprove solution all rights in and to the intelliprove solution not expressly granted to the licensee in these terms and conditions are reserved by intelliprove no license is granted to the licensee except as to use of the intelliprove solution as expressly stated herein intelliprove’s name, intelliprove’s logo, and the product names associated with the intelliprove solution are trademarks of intelliprove or third parties, and they may not be used without intelliprove’s prior written consent licensee acknowledges and agrees in particular that the source code from the intelliprove solution is and remains confidential information and proprietary trade secret of intelliprove 2 7 licensee data licensee (or its licensors if applicable) will be the sole and exclusive owner of all (rights relating to the) licensee data including (i) any modification of such licensee data or (ii) any materials resulting from the processing of the licensee data, except, for the avoidance of doubt, any generalized tools, programs, algorithms and benchmarks built or developed by intelliprove, based on data collected from the licensee (whether or not such data is confidential information of the licensee), which will be the sole and exclusive property of intelliprove the licensee grants intelliprove, for the term, a non exclusive, royalty free, transferable, assignable, sublicensable license to use, copy, store, transmit and display the licensee data to the extent necessary to perform its obligations under this agreement, in particular to provide and maintain the intelliprove solution, and for no other purposes intelliprove may copy, execute and backup such licensee data, as necessary, to perform its duties under this agreement the licensee also grants intelliprove, for the term, a non exclusive, royalty free, transferable, assignable, sublicensable license to compile, use and market licensee data, strictly in order to (i) research, develop, improve or support the intelliprove solution provided by intelliprove and (ii) sell, distribute or otherwise commercialize such sets of licensee data, provided that such data is used in an anonymous or aggregated form where no such information could directly identify or will reasonably be used to identify the licensee, authorized users or other data subjects contained therein upon licensee’s written request, intelliprove can provide more information about its anonymization and aggregation processes unless expressly agreed otherwise in writing by the licensee, intelliprove will not have any right, title or interest in relation to such licensee data other than as set forth in these terms and conditions 2 8 feedback intelliprove is free (but in no way obligated) to use and incorporate any ideas, suggestions or recommendations provided by the licensee or its authorized users (“ feedback ”) in the intelliprove solution, without payment of royalties or other consideration to the licensee, provided however, the foregoing will not be construed as granting intelliprove any right or license to licensee’s patents, copyrights or trademark rights or other intellectual property rights in the feedback 2 9 confidentiality the receiving party undertakes to keep confidential all information disclosed pursuant to or in connection with this agreement (whether or not such information is expressly stated to be confidential or designated as such) and therefore not to disclose such confidential information to others or use it for purposes other than the execution of this agreement with intelliprove without prejudice to the above, the parties agree that if a confidentiality agreement is concluded between them, the provisions thereof will prevail if there is a conflict with the provisions of this article the receiving party’s obligations with regard to the confidential information will remain in force for a period of five (5) years after the termination of these terms and conditions, unless a confidentiality agreement between the parties stipulates otherwise upon termination of these terms and conditions, for whatever reason, the receiving party will return all confidential information of the disclosing party and all copies thereof to the disclosing party or, at the disclosing party's option, erase or destroy all confidential information 2 10 licensee warranties licensee warrants that (i) it will abide by all applicable laws, regulations and industry guidelines, including data protection and privacy laws and all laws, rules and regulations applicable to the licensee platform integrated with the intelliprove solution and to (the use of) all data processed by intelliprove on behalf of or provided to licensee, (ii) it will bind each authorized user through an explicit consent for the processing purposes as set out under this agreement (iii) the licensee platform does not infringe upon third party rights and is not vulgar, profane, pornographic or obscene, and (iv) it will maintain appropriate administrative, technical and physical security safeguards with respect to its credentials licensee will not make any representations or warranties to any authorized user that are inconsistent with the warranties and representations contained herein 2 11 intelliprove warranties except as expressly provided in this agreement and to the extent permitted under applicable law, intelliprove expressly disclaims all warranties, express or implied, including but not limited to warranties of merchantability, non infringement, satisfactory quality and fitness for a particular purpose of the intelliprove solution in particular, intelliprove does not warrant that the intelliprove solution will be error free or that the use and/or operation of the intelliprove solution will be secure or uninterrupted, that intelliprove will detect any or all defects in licensee's systems, or that any or all problems related to the intelliprove solution can be resolved, and hereby disclaims any liability therefore the intelliprove solution will be provided by intelliprove under this agreement on an "as is" and "as available" basis 2 12 no medical advice licensee acknowledges that the intelliprove solution is not intended for medical purposes the intelliprove solution does not offer any kind of medical advice, diagnosis or treatment and is not intended for any medical use or purposes the intended use is general wellness only the estimative measurements (“ measurements ”) provided to authorized users of physiological and psychological states should not be treated as medical advice the measurements intelliprove provides to authorized users are not intended to be utilized for any medical purposes or to diagnose, treat, cure or prevent any disease, ailment, or injury to the maximum extent permitted by applicable law, licensee expressly agrees that intelliprove is not providing any medical advice via the intelliprove solution 2 13 liability to the maximum extent permitted under applicable law, the maximum liability of each party to the other party arising out of these terms and conditions will not in any event exceed the fees paid or payable by the licensee to intelliprove during the preceding twelve (12) month period, the aforesaid restrictions do not apply to a party’s liability resulting from (i) fraud or deceit, and/or (ii) willful misconduct 2 14 indemnification intelliprove will defend, indemnify and hold harmless the licensee from each and every founded and well substantiated demand, claim, loss, liability, or damage of any kind whatsoever, including reasonable attorney’s fees, whether in tort or in contract, incurred by reason of, or arising out of, against any claim brought by third parties to the extent such claim is based on an infringement of the intellectual property rights of such third party by the intelliprove solution and excluding any claims resulting from (i) any unauthorized use of the intelliprove solution by the licensee or any authorized user or any use not in accordance with these terms and conditions, the documentation and/or the terms of use, (ii) the licensee’s or any third party’s modification of any of the intelliprove solution, (iii) the licensee’s failure to use the most recent version of the intelliprove solution made available to it, or (iv) the licensee' use of the intelliprove solution in combination with any third party products or services such indemnification obligation will be conditional upon the following (i) intelliprove is given prompt written notice of any such claim; (ii) intelliprove is granted sole control of the defense and settlement of such a claim; (iii) upon intelliprove’s request, the licensee fully cooperates with intelliprove in the defense and settlement of such a claim, at intelliprove’s expense; and (iv) the licensee makes no admission as to intelliprove’s liability in respect of such a claim, nor does the licensee agree to any settlement in respect of such a claim without intelliprove’s prior written consent provided these conditions are met, intelliprove will indemnify the licensee for all direct damages and costs incurred by the licensee as a result of such a claim, as awarded by a competent court of final instance, or as agreed to by intelliprove pursuant to a settlement agreement in the event the intelliprove solution or any part thereof, in intelliprove’s reasonable opinion, is likely to or become the subject of a third party infringement claim, intelliprove will have the right, at its sole option and expense, to (i) modify the ((allegedly) infringing part of the intelliprove solution so that it becomes non infringing while preserving equivalent functionality; (ii) obtain for the licensee a license to continue using the intelliprove solution in accordance with this agreement; or (iii) terminate the agreement and pay to the licensee an amount equal to a pro rata portion of the fees for the remaining part of the term the foregoing states the entire liability and obligation of intelliprove and the sole remedy of the licensee with respect to any infringement or alleged infringement of any intellectual property rights caused by the intelliprove solution or any part thereof 2 15 term this agreement will enter into force and be effective as of the effective date and will remain in effect for a period of two (2) years unless otherwise specified in the quotation (the " initial term ") the agreement will automatically renew for successive one year periods (each a " renewal term ") beginning at the end of the initial term (or the then current renewal term), unless a party files a notice of termination three (3) months prior to the end of the initial term or the then current renewal term, as applicable 2 16 termination intelliprove may immediately terminate this agreement (or alternatively, in its sole discretion, suspend the access to the intelliprove solution) (i) due to material breach on giving written notice in the event the licensee breaches the restrictions on the intelliprove solution as set out in article 4 2 or infringes intelliprove’s intellectual property rights, (ii) if licensee does any act or thing which adversely affects the reputation of intelliprove, (iii) if licensee breaches the data protection legislation or any obligations under the data processing agreement between the parties, (iv) if licensee breaches article 4 9 of these terms and conditions, (v) if licensee is found to be guilty of any breach of confidence, dishonesty, fraud, serious misconduct, serious neglect of duty or criminal conduct during the term and (v) if there is a change of control at licensee intelliprove may also suspend the access to the intelliprove solution if the licensee fails to pay to intelliprove any amount due hereunder and fails to cure such failure to pay within thirty (30) calendar days from the date of a written payment default notice from intelliprove 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 sixty (60) calendar days from receipt of a default notice 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 upon termination of this agreement for whatever reason (i) the licensee will promptly pay intelliprove all fees and other amounts earned by or due to intelliprove pursuant to this agreement, up to and including the date of termination, (ii) all user rights granted to the licensee and the authorized users pursuant to this agreement, including the rights to use the intelliprove solution as per article 3, will automatically terminate termination of this agreement on whatever ground will be without prejudice to any right or remedy that has accrued prior to the actual termination the provisions of these terms and conditions that are expressly or implicitly intended to survive termination will survive any expiration or termination of this agreement 2 17 severability if any provision of this agreement is declared invalid or unenforceable by a court of competent jurisdiction, such provision(s) will be construed, to the fullest extent possible, in accordance with the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect 2 18 no partnership no joint venture, partnership, employment or agency relationship exists between licensee and intelliprove as a result of this agreement or use of the intelliprove solution 2 19 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 in writing by that party 2 20 references the licensee hereby authorises intelliprove to publicly refer to the licensee as the licensee of intelliprove and to use the licensee's name and logo on its website solely for this purpose (for the avoidance of doubt, without in any way disclosing confidential information) 2 21 force majeure except for the payment of the fee or any other charge due from licensee, if the performance of this agreement by either party is prevented, hindered, delayed or otherwise made impossible by any circumstance beyond the control of the parties that could not be foreseen and could not be avoided by means of reasonable efforts, including, but not limited to flood, riot, fire, judicial or governmental action, labour disputes, , power outages, cybercrime, unauthorized access to intelliprove's information technology systems by third parties, or any other cause beyond such party's control, such party will be excused to the extent it is prevented, hindered or delayed by such causes 2 22 non assignment this agreement may not be assigned by a party to a third party or authorized user without the prior written consent of the other party however, a party may assign this agreement to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of the assets involved in activities relevant to this agreement, or (iii) a successor by merger or other combination any purported transfer in violation of this article will be null and void this agreement will be enforceable by and binding upon permitted successors and assigns 2 23 notification each party will give all notices or other communications required or permitted to be given under this agreement to the other party by electronic mail to the following email addresses for intelliprove contact maxime mattelin email address 2 24 applicable law and jurisdiction this agreement will be construed in accordance with its provisions, without any strict interpretation in favour of or against one of the parties and in accordance with belgian law, without application of any conflict of laws all disputes or controversies arising out of or in connection with this agreement or its subject matter that cannot be resolved by amicable settlement within a term of thirty (30) days from the date that the dispute is referred from one party to the other, will be subject to the exclusive jurisdiction of the courts of ghent, section ghent 2 25 counterparties this agreement may be executed in any number of counterparts, each of which will constitute an original and all of which together will constitute a single agreement conflicting signature pages to this agreement sent by electronic mail in portable document format (" pdf"), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original signature 2 26 independent advice each party hereby acknowledges that it has, to the extent desired, obtained independent advice for the purpose of the negotiation and drafting of, and the entering into this agreement, that it is not relying on any advice or any duty to advice from any other party and that it is fully aware of the scope and consequences of its rights and obligations under this agreement the parties and their professional advisors, as applicable, have participated jointly in the negotiation and drafting of this agreement hence, each party acknowledges that this agreement and any actual or potential imbalances between the parties herein are the desired and deliberate outcome of the negotiations between them