Terms and Conditions
1. General and Scope
1.1. The present general terms and conditions, together with its Annexes, are applicable to each Commercial Offer or Statement of Work executed between Sequesto and the Client and to all Licensed Materials and Services provided by Sequesto to the Client.
1.2. If you are an employee (or contractor) of the Client entering into this Agreement on behalf of the Client, you represent and warrant that (i) you have full legal authority to bind the Client to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree on behalf of the Client to this Agreement.
1.3. The Client expressly waives the application of its own general and special terms and conditions, even where it is stated therein that only those conditions may apply and even if such terms and conditions were not protested by Sequesto.
1.4. The Client expressly acknowledges and agrees that this Agreement (including any amendment hereto) may be executed and signed through electronic signature technology. To the extent that the Agreement is executed or signed electronically, the electronic signature is the legally binding equivalent to their handwritten signature. Delivery of a fully executed copy through electronic signature technology shall have the same force and effect as delivery of an original hardcopy. To the maximum extent permitted by applicable law, the Client will not, at any time in the future, repudiate the meaning of electronic signature or claim that its electronic signature is not legally binding.
2. Definitions
2.1. In these Terms and Conditions, unless otherwise specified, the following definitions will apply:
“Affiliate” means, in relation to the relevant Party, any person or entity controlling, controlled by, or under common control with such Party, whereby “control” means the power, direct or indirect, to direct or cause the direction of the management and policies of such entity whether by contract, ownership of shares, membership on the board of directors, by agreement or otherwise and, in any event and without limitation of the foregoing, any entity owning more than 50% of the voting securities of a second entity shall be deemed to control that second entity (and “controlling” and “controlled” shall have a corresponding meaning);
“Agreement” means the entire contractual relation between SEQUESTO and the Client, including these Terms and Conditions, its Annexes, any Commercial Offer and any Statement of Work (as applicable).
“Business Day” means a normal working day of SEQUESTO from 9 AM to 5 PM Belgian time from Monday to Friday, excluding Belgian public holidays.
“Client Data” means all data proprietary to or held by the Client which is inputted or uploaded by the Client (through the SaaS Users) when using the SaaS and as processed or stored by SEQUESTO as a result of the Client (through the SaaS Users) using the SaaS. Client Data shall also include output data resulting from the processing by the SaaS of the entered data by the Client (through the SaaS Users).
“Client Personal Data” means the personal data proprietary to or held by the Client, which is inputted or uploaded by the Client (through the SaaS Users) when using the SaaS and as processed or stored by SEQUESTO as a result of the Client (through the SaaS Users) using the SaaS.
“Client” means the legal entity entering into contractual relations with SEQUESTO, as identified in the Commercial Offer.
“Commercial Offer” means the written or electronic document signed by both Parties, regardless its entitlement, indicating the nature, the number of, and other specifics of the Licensed Materials and the Services subscribed to by the Client, including the specific conditions under which such offer is made, and which forms an integral part of the Agreement.
“Confidential Information” of a Party means the information of such Party, whether in written, oral, electronic or other form, and which (i) is explicitly marked as confidential or proprietary, or (ii) should reasonably be considered confidential or is traditionally recognized to be of a confidential nature, regardless of whether or not it is expressly marked as confidential, including but not limited to, all materials, papers, databases, drawings, diagrams, calculations, figures, procedures, processes, business methodologies, contracts (including this Agreement), financial, technical and legal information, budgets, sales marketing, public relations, advertising and commerce plans, ideas, strategies, projections, business plans, strategic expansion plans, products and product designs. The Confidential Information of SEQUESTO shall include, without limitation, the Licensed Materials.
“Contributor” means a physical person in the Client’s organization (i.e. an employee or a contractor) who is granted (limited) access to the SaaS by the Client, upon invitation of a Coordinator, for the Purposes of using the SaaS in accordance with this Agreement and their user role as described in the Documentation. The number of Contributors accessing the SaaS is strictly limited to the number of Contributor subscriptions purchased by the Client (as specified in the Commercial Offer).
“Coordinator” means a physical person in the Client’s organization (i.e. an employee or a contractor) who is granted access to the SaaS by the Client for the Purposes of using the SaaS in accordance with this Agreement and their user role as described in the Documentation. Coordinators shall have full access to the SaaS and may invite Contributors to use the SaaS. The number of Coordinators accessing the SaaS is strictly limited to the number of Coordinator subscriptions purchased by the Client (as specified in the Commercial Offer).
“Documentation” means the technical and functional SaaS information that SEQUESTO generally makes available from time to time to its clients at its sole discretion.
“Effective Date” means the effective date as set forth in the Commercial Offer.
“Force Majeure” means a temporary or permanent inability of a Party to fulfil it (non-monetary) obligations, resulting from unavoidable, unforeseeable and external facts and circumstances reasonably beyond the control of that Party. The following events shall in any case be considered as Force Majeure (without limitation): war or war risk, insurrection or public revolt, fire caused by an outside calamity, an import or export embargo imposed by the government, floods, explosion, weather conditions, strike or social action, pandemics and all other circumstances generally qualified as force majeure.
“Hosting Partner” means the provider of hosting services as contracted by SEQUESTO and notified to the Client from time to time.
“Incident” means a malfunctioning of the SaaS.
“Initial Term” means one ( 1 ) year or such other period the Parties may agree to in a Commercial Offer.
“Intellectual Property Rights” means (non-exhaustive list) patents, trademarks, copyrights, rights in software programs (both in object code and source code), design rights, database rights, proprietary rights in know-how, business names, trade names and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of the afore listed which may subsist anywhere in the world, and any other intellectual or industrial property rights in any country and any existing or future applications for or registrations of such rights.
“Licensed Materials” means the applicable SaaS and Documentation as identified in the Commercial Offer.
“Maintenance Services” are the maintenance and support services related to the SaaS provided by SEQUESTO to the Client as described in clause 8.
“Out of Scope Incident” means an Incident that is not caused by or related to the SaaS such as (without limitation) Incidents due to malfunctioning of interfaces, Incidents caused by nonsupported data formats and Incidents caused by problems in third party software.
“Parties” or “Party” means the Client and/or SEQUESTO (as applicable).
“Renewal Term” means one ( 1 ) year, or such other period the Parties may agree to in a Commercial Offer.
“SaaS User” means a Coordinator and/or a Contributor (as applicable).
“SaaS” means the software, computer programs, platforms, applications, including but not limited to all algorithms, (source or object) code and methodology pertaining thereto as described in the Commercial Offer.
“SEQUESTO” means SEQUESTO BV, a company organized and existing under the laws of Belgium having its registered office at Emiel Fleerackerslaan 25, 9120 Beveren (Belgium) and registered with company number BE 0751.734.261.
“Services Fee” means the services fee specified in the Commercial Offer or the Statement of Work (as applicable) in respect of the Services.
“Services” mean development services, set-up services, implementation and integration services (including, but not limited to customisations), Maintenance Services or such other services in relation to the SaaS to be delivered by SEQUESTO to the Client as may be agreed between the Parties from time to time and set out in the Commercial Offer and/or a Statement of Work.
“Statement of Work” means a written document that Parties may enter into from time to time describing the Services that SEQUESTO is to provide in connection with the Licensed Materials.
“Subscription Fee” means the amounts payable by the Client to gain access to and use the Licensed Materials and to receive Maintenance Services as specified in the Commercial Offer.
“Term” means the Initial Term together with any Renewal Term.
“Terms and Conditions” means the present general terms and conditions applicable to all Commercial Offers and Statements of Work agreed upon between SEQUESTO and the Client, unless expressly stipulated otherwise in writing.
3. License
3.1. Subject to the terms and conditions of this Agreement and timely payment of the Subscription Fees, SEQUESTO grants to the Client (and to those Affiliates as indicated in the Commercial Offer) a personal, restricted, non-exclusive, non-transferrable and non-assignable license to use the Licensed Materials through its SaaS Users in object code in accordance with this Agreement and the applicable Documentation for the Term of the Agreement.
3.2. The extent of the license granted under this Agreement is restricted to the scope expressly set forth herein, and there are no implied licenses under this Agreement. SEQUESTO reserves any right not expressly granted to the Client hereunder.
3.3. The Client shall comply with all applicable laws relating to the use of the Licensed Materials. The Client acknowledges that the Licensed Materials may include encryption and may, accordingly, be subject to export or other restrictions.
3.4. Unless to the extent permitted by this Agreement or applicable law, the Client shall not directly or indirectly (including without limitation through the actions of any of its Affiliates, SaaS Users, agents, contractors, employees, representatives, subcontractors, or in general, any third party) (i) arrange or create derivative works based on the Licensed Materials without SEQUESTO’s express written consent; (ii) assign, distribute, sub-license, hire, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Licensed Materials, or use the Licensed Materials on behalf of any third party or make them available to any third party, nor allow or permit a third party to do any of the same; (iii) copy, duplicate, reverse engineer, reverse compile, disassemble, record or otherwise reproduce the Licensed Materials or any part of them except as expressly provided in this Agreement; (iv) remove or alter any copyright or other proprietary notice on any of the Licensed Materials.
3.5. The Client is permitted to make as many copies of the Documentation as are reasonably necessary for operational security, disaster recovery or back-up purposes. Such copies shall in all respects be subject to this Agreement and shall be deemed to form part of the Licensed Materials and shall be the property of SEQUESTO. Any use of the copies made pursuant to this clause is strictly limited to internal use.
3.6. The Licensed Materials shall be delivered “as is” and shall be deemed accepted by the Client upon activation thereof.
3.7. The Client acknowledges that the Licensed Materials may contain advice and recommendations. Unless explicitly agreed otherwise, the Client bears full responsibility for the use and/or implementation of such advice and recommendations.
4. User restrictions
4.1. The SaaS may only be accessed and used by the Coordinators and Contributors in accordance with their respective user roles described in the Documentation. The number of Coordinators and Contributors that may access the SaaS is strictly limited to the number of Coordinator subscriptions and Contributor subscriptions ordered by the Client (as specified in the Commercial Offer). Contributors may only access the SaaS upon invitation of a Coordinator.
4.2. The Client acknowledges that the use of the SaaS is limited to the mutually agreed volume of documents and information (as specified in the Commercial Offer).
4.3. If the Client wishes to purchase additional Coordinator subscriptions, Contributor subscriptions or an additional volume of documents, the Parties shall sign a new Commercial Offer, based on the then-current prices. Upon request, SEQUESTO shall inform the Client of the applicable costs.
4.4. SEQUESTO at any time reserves the right to retroactively charge any amounts corresponding to any use of the SaaS in excess of the amounts or volume allowed under the relevant Commercial Offer (including but not limited to, the number of Coordinators, the number of Contributors or volume of documents). In such event, SEQUESTO shall send a correcting invoice, which shall be payable in accordance with the relevant provisions provided in this Agreement.
4.5. SEQUESTO has the right to monitor and inspect the usage of the Licensed Materials by the Client (including but not limited to monitoring the number of Coordinators, the number of Contributors and volume of documents and information) to ensure that the Subscription Fees to be paid by the Client are correct. If such inspection or monitoring shows that the Client has underpaid the amount of the Subscription Fees due to SEQUESTO, without prejudice to any other rights and remedies available to SEQUESTO, SEQUESTO shall invoice and the Client shall promptly pay the amount of such underpayment to SEQUESTO together with any applicable late payment interest.
5. Activation and Services
5.1. Unless Services relating to the activation, installation or set-up of the SaaS are requested pursuant to clause.
5.2. The Client shall be responsible for the activation, installation and/or setup of the SaaS in the Client’s systems. For the avoidance of doubt, any such activation, installation and/or set-up shall be in accordance with the Documentation or any other written instructions provided by SEQUESTO.
5.2. The Client may request SEQUESTO to perform certain Services and SEQUESTO may in its sole discretion agree to provide such Services. In such case, (i) the Commercial Offer shall specify the scope of the Services and the applicable Services Fees, or (ii) the Parties shall enter into a Statement of Work or detailing the scope of the Services and the applicable Services Fees. The Client acknowledges that the Services Fees may be on a time and material basis or on fixed price basis as determined by the Parties. Any such Services shall be provided in accordance with this Agreement, expressly including the applicable Commercial Offer or Statement of Work.
5.3. The Services shall be delivered “as is” and shall be deemed accepted by the Client upon delivery thereof by SEQUESTO.
6. Client Data
6.1. The Client acknowledges that the SaaS consists of certain algorithms and artificial intelligence and that for a proper and seamless functioning of the SaaS, the Client is responsible to feed the SaaS with sufficient Client Data. Client Data may only be inputted in accordance with the guidelines provided in the Documentation.
6.2. The Client shall solely be liable and responsible for the accuracy and correctness of Client Data. SEQUESTO shall not be liable for damages or liability resulting from incorrect Client Data inputted in the SaaS.
6.3. All Client Data shall remain property of the Client. The Client hereby grants SEQUESTO the right to use such Client Data (including any other content and information provided, transmitted or uploaded through the Licensed Materials) for the performance of its obligations under this Agreement and to improve the functioning and provision of the Licensed Materials.
6.4. The Client warrants to SEQUESTO that the Client Data shall not infringe the Intellectual Property Rights or other legal rights of any third party, and shall not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
6.5. The Client acknowledges and agrees that it shall solely be responsible for the Client Data that is distributed, accessible or generated through the SaaS. SEQUESTO shall in no event be responsible or held liable for any such Client Data. In particular, the Client represents and warrants that no Client Data is distributed through the SaaS that in any manner in SEQUESTO’s sole discretion: (i) violates any applicable, local, state, national, regional or international law, statute, ordinance or regulations; (ii) is illegal, criminal, deceptive, fraudulent or any other action that is unlawful, or invasive of others privacy; or (iii) adversely or negatively affects or reflects SEQUESTO’s name, reputation or goodwill.
6.6. The Client acknowledges and agrees that any violation by the Client of the provision of this clause 6 shall entitle SEQUESTO, at its sole option (i) to immediately terminate (or alternatively, at SEQUESTO’s option, refuse or suspend any access to and use of the SaaS) for material breach, without any formalities being required and without prejudice to any other rights or remedies available to SEQUESTO pursuant to this Agreement or under applicable law; and/or (ii) immediately remove or block the concerning Client Data.
7. Third Party Components and Hosting
7.1. The Client acknowledges and agrees that in order to use the Licensed Materials, it needs appropriate hardware, networks, operating systems, data transmittal lines with appropriate communication applications and environments.
7.2. The Client acknowledges and agrees that in order to use the Licensed Materials, it may need to obtain, at Client’s expense, the right to use any software owned by third parties by either (i) purchasing from SEQUESTO the right to use such third party software, provided and to the extent SEQUESTO has the right to license such third party software to Client and offers such opportunity to Client, or (ii) licensing or otherwise obtaining from the vendors of such third party software the right to use such third party software. If Client elects to license such third-party software from SEQUESTO, such license shall be executed and attached to the Commercial Offer. Any thirdparty software licensed thereunder or otherwise included in the Licensed Materials shall be exclusively governed by the terms of the applicable third-party software, and (without limitation) any warranties, indemnification and maintenance and support provided hereunder by SEQUESTO in respect of the Licensed Materials shall not apply in respect of such third party software (except as expressly otherwise agreed to in writing by SEQUESTO).
7.3. The SaaS will be hosted by SEQUESTO in the datacenters of the Hosting Partner. The Client acknowledges that the hosting services shall be subject to the applicable terms and conditions of the Hosting Partner that will be made available by SEQUESTO or the Hosting Provider (as applicable) to the Client. The Client acknowledges and agrees that the Hosting Partner retains the right to unilaterally change any such terms and conditions (including the hyperlink to such terms and conditions).
7.4. SEQUESTO does not give any direct, indirect, explicit or implicit, warranty whatsoever to provide un-interrupted availability of the SaaS, however, SEQUESTO shall use its best efforts to provide the availability and uptime of the SaaS.
7.5. The Client acknowledges that the hosting services and the SaaS might not be available during periods of planned maintenance by SEQUESTO or the Hosting Provider. If reasonably feasible, any planned maintenance will be performed outside of Business Days and SEQUESTO will inform the Client as soon as reasonable possible of any planned maintenance.
7.6. SEQUESTO and the Hosting Provider reserve the right to conduct any unplanned maintenance at any time if necessary for security reasons or other reasons requiring immediate maintenance. SEQUESTO shall use its best efforts to minimize the unavailability as a result of such unplanned maintenance. SEQUESTO or the Hosting Partner will not be held liable for any damages resulting from such unavailability of the SaaS.
8. Maintenance Services
8.1. As from the Effective Date and subject to the timely payment of all applicable Subscription Fees, SEQUESTO shall use its best efforts to provide third-line Maintenance Services in relation to the SaaS in the Client’s production environment in accordance with the provisions set out below.
8.2. If an Incident is encountered by the Client, the Client shall first review and assess the Incident. If such assessment shows that the Incident is not an Out of Scope Incident, the Client may notify SEQUESTO of such Incident via email to the email address indicated in the commercial offer, via phone to the phone number indicated in the Commercial Offer, or such other method of communication as communicated to the Client by SEQUESTO. The Client shall specify the details of the Incident (in the format as provided by SEQUESTO, if applciable). SEQUESTO may in its sole discretion determine whether the Incident is an Out of Scope Incident or not and SEQUESTO’s classification shall be binding and final. SEQUESTO reserves the right to charge the Client any costs that are made in respect of investigating the nature of an Incident on a time and material basis.
8.3. Maintenance Services for Out of Scope Incidents are not included in the Subscription Fees, however, SaaS Users are entitled to ask any questions regarding the Licensed Materials and SEQUESTO shall answer any SaaS User’s request in good faith, without any binding commitment whatsoever.
8.4. For Incidents that are not an Out of Scope Incident, SEQUESTO shall use its best efforts to resolve the Incident.
8.5. Incidents caused by one the following are not included in the Maintenance Services, however the Client may request SEQUESTO to provide Services regarding such incidents for which SEQUESTO may charge additional fees (non-exhaustive) (i) Out of Scope Incidents; (ii) abuse or misuse of the SaaS; (iii) modification or addition to the SaaS not performed by or with the consent of SEQUESTO; (iv) incorrect installation of a fix by a party different than SEQUESTO; (v) incorrect configuration not performed by or with the consent of SEQUESTO; (vi) the use of incorrect data or data structures; (vii) any installation other than a supported release; (viii) any other environment than the Client’s production environment.
9. Intellectual Property Rights
SEQUESTO is and remains the sole and exclusive proprietary holder or owner of all Intellectual Property Rights related to the Licensed Materials and the Services (including any new versions, updates, customizations, enhancements, modifications or improvements made to the Licensed Materials or the Services). Except for the limited license granted pursuant to clause 3, no other rights in respect of the SEQUESTO Intellectual Property Rights shall be granted or transferred to the Client in connection with this Agreement. Nothing in this Agreement shall convey any title or proprietary right or Intellectual Property Rights in or over the Licensed Materials or Services to the Client or any third party. The Client shall not in any way acquire any title, rights of ownership, copyrights, Intellectual Property Rights or other proprietary rights of whatever nature in the Licensed Materials or Services. The Client agrees not to remove, suppress or modify in any way any proprietary marking, including any trademark or copyright notice, on or in the Licensed Materials, or visible during its operation or on media. The Client shall incorporate or reproduce such proprietary markings in any permitted back-up or other copies.
10. Confidentiality
10.1. Each Party shall treat as confidential and keep secret all Confidential Information relating to the other Party and shall not disclose it to any third party, other than its employees, advisors, agents or consultants where such disclosure is necessary for the performance of this Agreement and provided that they are bound by confidentiality obligations at least as strict as those provided herein, any Confidential Information learned during the negotiation and performance of the Agreement. Confidential Information disclosed in the Agreement shall not be used by the recipient thereof for any purpose other than as required for the performance of its obligations under the Agreement.
10.2. The Parties shall take sufficient measures to maintain the confidentiality of all Confidential Information. The Parties in particular agree that they (i) shall not copy or otherwise exploit any component of the Confidential Information other than as provided herein, nor make any disclosures with reference thereto to any third party; (ii) shall ensure that all copies of the Confidential Information (made in accordance with the provisions of the Agreement) contain a permanently legible reproduction of the other Party’s copyright notice and a confidentiality notice; (iii) shall promptly notify the other Party if it becomes aware of any breach of confidence and give the other Party all reasonable assistance in connection with the same.
10.3. The provisions of this clause shall not apply to any Confidential Information which (i) is published or comes into the public domain other than by a breach of the Agreement; (ii) can be proven to have been known by the receiving Party before disclosure by the disclosing Party; (iii) is lawfully obtained from a third party that is not bound by a duty of confidentiality; or (iv) can be shown to have been created by the receiving Party independently of the disclosure and other than as part of the project.
10.4. If and to the extent required in accordance with a judicial or other governmental order, the receiving Party may disclose Confidential Information, provided that the receiving Party (i) gives the disclosing Party reasonable notice prior to seek a protective order or equivalent, unless the receiving Party is legally prohibited from doing so; (ii) reasonably cooperates with the disclosing Party in its reasonable efforts to obtain a protective order or other appropriate remedy; (iii) discloses only that portion of the Confidential Information that it is legally required to disclose; and (iv) uses reasonable efforts to obtain reliable written assurances from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection available under applicable law or regulation.
10.5. The obligations set out in this clause 10 shall enter into force as from the start of negotiations between the Parties and shall survive during three (3) years after the termination or expiration of the Agreement. These confidentiality obligations in the Agreement replace any prior nondisclosure agreement signed between the Parties.
11. Privacy and Data Protection
11.1. The Parties shall comply with all applicable legal requirements regarding privacy and data protection, more in particular with the General Data Protection Regulation of 27 April 2016 (the “GDPR”) with respect to the processing of personal data (as defined in the GDPR).
11.2. In particular, the Client represents and warrants to SEQUESTO that it has the legal right to disclose any personal data that is available to SEQUESTO under or in connection with this Agreement (including, but not limited to, any personal data that might by disclosed by the SaaS Users while using the SaaS) and that the Client has a valid legal ground to process such personal data and to disclose such personal data to SEQUESTO in accordance with applicable law. The Client undertakes to sufficiently inform all data subjects about such processing activities by the Client and/or SEQUESTO (as applicable) in accordance with applicable law.
11.3. SEQUESTO shall use Client Personal Data only for the execution of this Agreement, the improvement of the functioning and provision of the Licensed Materials and in accordance with the data processing agreement included in Annex 1 to these Terms and Conditions.
12. Third Party Claims
The Client shall indemnify, defend and hold SEQUESTO harmless from and against any damages, losses, costs and expenses (including reasonable attorney fees) suffered or incurred by SEQUESTO (including its Affiliates, agents, contractors, directors, employees or representatives) arising out of Client’s infringement of any third party’s Intellectual Property Rights or any other rights of such third party.
13. Fees and Payment Terms
13.1. The Client shall pay the Subscription Fees either (i) annually or (ii) monthly as specified in the applicable Commercial Offer.
13.2. In the event SEQUESTO has been requested to perform certain Services, the applicable Services Fees shall be invoiced separately.
13.3. Invoices shall be sent in PDF-format to the Client’s email address, specified in the Commercial Offer, or as a physical copy to the Client’s address if specifically requested by the Client in writing and the Client shall pay any amounts within thirty (30) days after the applicable invoice date. All payments under this Agreement shall be made in euro (€) (unless expressly otherwise agreed in the Commercial Offer and provided that the Customer undertakes to bear any currency exchange risk) and are exclusive costs and expenses which may be charged separately by SEQUESTO (if applicable).
13.4. All amounts payable to SEQUESTO under the Agreement shall be paid without the right to set off or counterclaim and free and clear of all deductions or withholdings whatsoever unless the same are required by law, in which case the Client undertakes to pay SEQUESTO such additional amounts as are necessary in order that the net amounts received by SEQUESTO, after all deductions and withholdings, shall not be less than such payments would have been in the absence of such deductions or withholdings.
13.5. Any amounts of undisputed invoices that have not been paid within thirty (30) days after the invoice date shall automatically and without notice be subject to a late payment interest equal to eight percent (8%) per month or the maximum extent permitted by applicable law. The interest shall be compounded daily as of the due date until receipt of full payment by SEQUESTO. In addition, the Client shall pay all costs incurred by SEQUESTO as a result of the (extra)judicial enforcement of the Client’s payment obligation under this clause. If Client fails to pay any outstanding amounts within thirty (30) days from receipt of a written default notice, SEQUESTO shall be entitled to suspend its obligations and the Client’s rights hereunder until receipt of payment of such outstanding amounts.
13.6. The Client expressly acknowledges and agrees that any upfront payments made pursuant to this Agreement are final and non-refundable. If the Agreement is terminated early, the Client shall not be entitled to a refund whatsoever.
13.7. After the Initial Term and each Renewal Term thereafter, SEQUESTO reserves the right to change the Subscription Fees in its sole discretion at any time upon thirty (30) days’ prior notice. Such price adjustment shall become effective the next Renewal Term.
14. Term & Termination
14.1. The Agreement shall commence on the Effective Date and shall continue for the Initial Term. After the Initial Term the Agreement shall automatically and tacitly renew for consecutive Renewal Terms, unless either Party notifies the other Party in writing of its intend not to renew the Agreement at least one ( 1 ) month before the end of the Initial Term or the then current Renewal Term or unless terminated earlier in accordance with this clause 14 or this Agreement.
14.2. Either Party may immediately terminate (or SEQUESTO may alternatively suspend) the whole or any portion of the Agreement without any judicial intervention, without being liable for compensation and without prejudice to its rights to damages and any other rights, remedies and/or claim to which it may be entitled by law, upon providing the other Party with written notice of termination if (i) the other Party performs a material breach to any provision of the Agreement and fails to cure such material breach within thirty (30) calendar days after receipt of written notice of the material breach, (ii) the other Party becomes insolvent, is subject to voluntary or involuntary bankruptcy, insolvency or similar proceeding or otherwise liquidates or ceases to do business, or (iii) the other Party breaches its obligations under the provisions regarding the license, Intellectual Property Rights and confidentiality.
14.3. Without prejudice to any other rights and remedies available to SEQUESTO, the Client acknowledges and agrees that SEQUESTO shall be entitled to immediately terminate the Agreement, without any formalities being required, in case the Client breaches or violates (i) the terms and conditions of the Hosting Partner or the applicable third party software; or (ii) SEQUESTO’s Intellectual Property Rights (expressly including the license grant pursuant to clause 3) or Confidential Information.
15. Consequences of Termination
Upon termination of the Agreement for whatsoever reason (i) the Client shall promptly pay to SEQUESTO all amounts due and payable under this Agreement up to and including the date of termination (including, but not limited to the fees payable pursuant to an annual commitment, if applicable); (ii) all licenses granted to the Client shall automatically terminate and the Client shall return to SEQUESTO all copies in whatever form or medium of the Licensed Materials (or alternatively destroy any such copies that cannot be returned and confirm in writing to SEQUESTO that such copies have been destroyed); (iii) except as required to comply with any applicable legal or accounting record keeping requirement, each Party shall return the other Party’s Confidential Information that are in the possession or under the control of that respective Party (or alternatively destroy any copies thereof that cannot be returned and confirm the other Party in writing that such copies have been destroyed).
16. Warranty
The Client acknowledges and agrees that the Licensed SaaS and Services are provided “as is”. Except for the foregoing warranty and to the maximum extent permitted by applicable law, SEQUESTO does not make any representations or warranties, express or implied, concerning any matter under this Agreement (including the Licensed Materials and Services) and SEQUESTO disclaims any representations or warranties, express or implied, including (without limitation) any implied warranties of accuracy or completeness of data, fitness for a particular purpose, merchantability, or non-infringement.
17. Limitation of Liability
17.1. Subject to the maximum extent permitted under applicable law, SEQUESTO’s liability under the Agreement shall, per event (or series of connected events) and in the annual aggregate per contract year, not exceed an amount equal to the Subscription Fees paid during such contract year.
17.2. Under no circumstances shall SEQUESTO be liable to the Client for any indirect, punitive, special, consequential or similar damages (including damages for loss of profit, lost revenue, loss of business, loss of corruption of data, loss of customers and contracts, loss of goodwill, the cost of procuring replacement goods or services, and reputational damage) whether arising from negligence, breach of contract or of statutory duty or otherwise howsoever.
17.3. SEQUESTO shall not be held liable in any way, neither contractually nor extra-contractually, for discontinuing an older release of the SaaS or for damages caused by the wrongful (or out of scope) use of the SaaS.
18. Miscellaneous
18.1. Entire agreement – The Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior oral or written agreements, representations or understandings between the Parties relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in the Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of the Agreement.
18.2. Severability – If any provision of the Agreement is held to be unenforceable (in whole or in part), the other provisions shall nevertheless continue in full force and effect. The provisions found to be unenforceable shall be enforceable to the fullest extent permitted by applicable law. Each Party shall use its best efforts to immediately negotiate in good faith a valid replacement provision with an equal or similar economic effect.
18.3. Waiver – The terms and conditions of the Agreement may be modified or amended only by written agreement (including through electronic signature technology) executed by a duly authorized representative of both Parties hereto. This Agreement may be waived only by a written document signed by the Party entitled to the benefits of such Terms or Conditions. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or conditions, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given and shall not constitute a continuing waiver or consent.
18.4. Survival – The provisions of the Agreement that are expressly or implicitly intended to survive termination, shall survive expiration or termination of the Agreement, including without limitation, the provisions relating to Intellectual Property Rights, Confidential Information and limitation of liability.
18.5. Assignment – SEQUESTO may assign, transfer and/or subcontract the rights and obligations under this Agreement to any third party. The Client shall not assign or otherwise transfer any of its right of obligations under the Agreement without SEQUESTO’s prior written consent.
18.6. Force Majeure – Neither Party will be responsible or liable for any failure or delay in the performance of its obligations under the Agreement arising out of or caused by Force Majeure. In the event of Force Majeure, the Party shall inform the other Party at least within reasonable time about the nature of the Force Majeure and the fact that it wants to rely on this clause. the Party must, within reasonable time, provide the other Party with evidence of the existing Force Majeure, the date when the Force Majeure comes or has come into effect, and also when it will have ceased to exist. In case of Force Majeure, the Party is obligated to mitigate damage, and must use its reasonable efforts to keep the consequences to a minimum. In the event of a failure to comply with the abovementioned procedure, the Party shall be prevented to rely on the Force Majeure event and the Force Majeure clause.
18.7. Notices – Any notice required to be served by the Agreement shall in first instance be given by electronic mail to the email addresses set out in the Commercial Offer. All notices given by electronic mail, shall only be valid in case confirmation of receipt was expressly given by electronic mail from SEQUESTO to the Client within five (5) Business Days. In case no confirmation of receipt was given by SEQUESTO within five (5) Business Days, all notices can be done in writing and served by personal delivery, registered letter, addressed to either Party at its address given in the Commercial Offer or to such other address as a Party may designate by notice hereunder. All Notices shall be deemed to have been given either (i) if by hand, at the time of actual delivery thereof to the receiving Party at such Party’s address, as provided above, (ii) if sent by overnight courier, on the next Business Day following the day such notice is delivered to the courier service, or (iii) if sent by registered or certified mail, on the fifth (5th) Business Day following the day such mailing is made.
18.8. Interpretation – In the Agreement (unless the context shall otherwise require or permit) (i) reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted; (ii) words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and incorporate; and each case vice versa; (iii) the headings or captions to the clauses are for ease of reference only and shall not affect the interpretation or construction of the Agreement.
18.9. Conflict – In case of conflict between the provisions of the contractual documents executed between the Parties, the first document shall prevail on the latter, unless expressly agreed otherwise between the Parties in writing (i) the applicable Commercial Offer or applicable Statement of Work, (ii) the Annexes, (iii) these Terms and Conditions.
18.10. Relationship of the Parties – The relationship between SEQUESTO and Client is that of independent contractors.
18.11. Publicity – SEQUESTO shall have the right to use any trademarks, logos or other marks of the Client (including the Client’s corporate name) for client references on SEQUESTO’s website, social media announcements and sales presentations.
18.12. Dispute resolution – Before initiating proceedings before the competent courts, the Parties shall exercise reasonably good faith efforts to amicably settle any disputes that might arise during the execution of this agreement.
18.13. Applicable law and jurisdiction – The Agreement shall be governed by and construed in accordance with the laws of Belgium and the Parties hereto submit to the exclusive jurisdiction of the courts of Ghent (department Dendermonde). The United Nations Convention for the International Sale of Goods shall not apply to the Agreement.
Annex 1 – Data Processing Agreement
1. About this Data Processing Agreement
1.1. This Data Processing Agreement (the “DPA”) is concluded between SEQUESTO and the Client pursuant to and subject to the Terms and Conditions.
1.2. This DPA forms an integral part of the Agreement (as defined in the Terms and Conditions) between the Parties. In the performance of the Agreement, SEQUESTO will receive and process Personal Data for the benefit and on behalf of the Client and in accordance with the instructions and purpose defined by the Client. Parties agree that SEQUESTO is the Processor and the Client is the Controller in respect of such Processing of Personal Data related to the Agreement. Parties acknowledge that specific legislation applies to the Processing of Personal Data in relation the Agreement. Such legislation includes, among others, the GDPR (including implementing laws, if applicable) and the Belgian Privacy Act.
1.3. By means of this Data Processor Agreement, Parties wish to lay down their specific agreements in respect to Processing Personal Data within the framework of the Agreement. This Data Processor Agreement supersedes and replaces all previous agreements made in respect of Processing Personal Data and data protection.
2. Definitions
2.1. Capitalized terms used in this DPA shall have the meaning as set out in this section. Terms also defined in the GDPR or any other applicable legislation shall be interpreted in accordance with the meaning given to them in the GDPR or such applicable legislation. Capitalized terms not defined in this DPA shall have the meaning given to them in the Terms and Conditions.
Belgian Privacy Act means the Belgian act of July 30th, 2018 regarding the protection of natural persons in respect of processing of personal data.
Controller or Data Controller means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data (i.e., the Client).
(Personal) Data Breach means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.
Data Processing Agreement or DPA means this document, setting out the conditions applicable to the Processing of Data in connection with the Agreement.
Data Processing Details means Appendix 1 to this DPA including information such as the purpose, object and nature of Processing and the kind of Personal Data being processed, also including the instructions given by the Controller.
Data Subject a natural person who is identified or identifiable by the Personal Data. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
GDPR Regulation (EU) 2016/679 of the European Parliament and of Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
Personal Data means any information relating to an identified or identifiable natural person. Processing means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
Processor means a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Controller (i.e., Sequesto).
Sub-processor means a third-party subcontractor that is involved in the Processing of Personal Data by the Processor.
Supervisory Authority refers to the independent government body who is responsible for monitoring the application of GDPR.
3. Object of this DPA
3.1. This DPA determines the conditions of the Processing by the Processor, on a self-employed basis, of the Personal Data communicated by or at the initiative of the Controller and in the context of the Agreement. This Processing will exclusively take place for the benefit of the Controller and for the purpose as defined by the Controller.
3.2. The nature and purpose of the Processing, a list and the type of Personal Data as well as the categories of the Data Subjects are detailed below (Data Processing Details).
3.3. The Processor will only process the Personal Data according to the documented instructions of the Controller and will not use the Personal Data for its own purpose.
3.4. If the Processor is legally obliged to proceed with any Processing of Personal Data, the Processor, unless this would violate applicable mandatory rules, will inform the Controller of such obligation.
4. Compliance with Data Protection Regulations
4.1. The Controller and the Processor shall comply with their obligations under applicable legislation and under relevant codes of conduct or standard contractual clauses (if applicable).
5. Term
5.1. This DPA is applicable to every Processing of Personal Data executed in the context of the Agreement.
5.2. This DPA applies as long as the Processor processes Personal Data made available by the Controller in the context of the Agreement. This DPA ends automatically upon termination of the Agreement. The provisions of this DPA that are either expressly or implicitly (given their nature) intended to have effect after termination of the DPA shall survive the end of the Agreement as regards the Personal Data communicated by or at the initiative of the Controller in the context of the Agreement.
6. Technical and organizational measures
6.1. The Processor and Controller offer adequate guarantees with regard to the implementation of appropriate technical and organizational measures so that the Processing complies with GDPR requirements and that the protection of the Data Subject’s rights is guaranteed. Such measures shall also include the measures referred to in article 32 GDPR to ensure an adequate level of security appropriate to the risk.
6.2. Upon request the Processor shall communicate such technical and organizational measures to the Controller. Upon signing the Agreement, the Controller acknowledges those measures to be adequate for the Processing of its Personal Data.
6.3. If the Controller requests specific technical and organizational measures to be implemented by the Processor, to the extend the Processor does not have equivalent measures in place, the Controller shall reimburse the Processor for implementing such measures according to clause 17 below.
7. Records of processing activities
7.1. Each Party and, where applicable, their representatives, shall maintain a register of the processing activities under their responsibility. Each such register shall contain at least all legally required data.
8. Storage of Personal Data
8.1. The Processor will not retain any Personal Data longer than as required for Processing of such Personal Data in the context of the Agreement. The Controller will not instruct the Processor to store any Personal Data longer than necessary. The agreed retention period can be found below (Data Processing Details).
8.2. Unless storage of the Personal Data is mandatory under Union or Member State law, the Processor shall, within a reasonable period after the end of the Processing, at the option of the Controller, either erase all Personal Data or return it to the Controller and delete existing copies.
9. Confidentiality
9.1. Only those agents of the Processor who are involved in the Processing of Personal Data may be informed about the Personal Data. The Processor ensures that persons authorized to process the Personal Data are committed to confidentiality by contract or are under an appropriate statutory obligation of confidentiality.
9.2. The Processor may only provide Personal Data to Third Parties with the prior written consent of the Controller.
10. Code of Conduct and Certification
10.1. Adherence by the Processor to an approved code of conduct as referred to in Article 40 GDPR, or an approved certification mechanism as referred to in Article 42 GDPR may be used as an element of proof of sufficient guarantees as referred to in GDPR.
11. Data Subject’s rights
11.1. Taking into account the nature of the Processing, the Processor shall use best efforts, by taking appropriate technical and organizational measures, to assist the Controller in the fulfillment of its obligation to respond to requests from Data Subjects.
11.2. For all services performed by the Processor in the context of the treatment of such requests from Data Subjects, the Controller will reimburse the Processor in accordance with clause 17 of this DPA. Such reimbursement by the Controller shall not be due in case the Data Subject is invoking its rights because of a Data Breach proven attributable to the Processor.
12. Duty to notify
12.1. Upon becoming aware of a Personal Data Breach the Processor shall notify the Controller thereof without undue delay.
12.2. At the request of the Controller, the Processor will cooperate with the investigation and elaboration of the measures necessary in case of any Data Breaches.
12.3. The Parties will keep each other informed of any new developments with regard to any Data Breach and of the measures they take to limit its consequences and to prevent the repetition of such Data Breach.
12.4. It is the responsibility of the Controller to report any Data Breach to the Supervisory Authority or the Data Subject, as required.
13. Sub-processing
13.1. The Controller expressly authorizes the Processor to engage Sub-processors for the Processing of Personal Data in the context of this Agreement. The Controller grants a general permission to the Processor to decide with which Sub-processor(s) the Processor cooperates. The Processor shall keep a list of all Sub-processors engaged, which can be consulted by the Controller upon simple request. The Processor will inform the Controller of any intended material changes concerning the addition or replacement of Sub-processors. The Controller can only refuse a Subprocessor proposed by the Processor on the basis of a well-founded justification submitted in writing.
13.2. The Processor will conclude a separate sub-processing agreement with each Sub-processor.
13.3. In such sub-processing agreement, the same data protection obligations as set out in this DPA shall be imposed on the sub-processor.
13.4. In the event the sub-processor fails to fulfil its data protection obligations, the Processor shall remain fully liable to the Controller for the performance of the obligations of that sub-processor, subject to clause 19 below.
14. Transfers of Personal Data
14.1. The Processing of Personal Data will exclusively take place within the EEA, except for Processing by Sub-processors.
14.2. The Processing or transfer of Personal Data outside the EEA can only occur with the specific prior written consent of the Controller or if other appropriate safeguards have been taken in compliance with applicable legislation. For example, the Processor can sign standard contractual clauses, codes of conduct or any other instruments adopted by the European Commission (including any future updates or revisions thereof by the European Commission), which ensures that the transfer
of Personal Data to a country outside the EEA complies with appropriate safeguards as required by the GDPR.
14.3. Such consent of the Controller is not required when the transfer of Personal Data to countries outside the EEA is mandatory under EU or Member State law provisions.
15. Data Protection Impact Assessment and Prior Consultation
15.1. When a ‘Data Protection Impact Assessment’ or a ‘Prior Consultation’ is required according to Article 35 and 36 GDPR, the Controller shall be responsible to implement such assessment. At the request of the Controller, the Processor will assist in this assessment as well as in the compliance with any required measures.
15.2. The Controller will reimburse the Processor for the Services so rendered in relation to this assessment and the compliance with any required measures in accordance with clause 17 of this DPA.
16. Audit
16.1. Each Party shall allow the other Party and its authorized auditors to perform audits regarding the compliance by a Party with its obligations under this DPA and the applicable legislation in respect of data protection.
16.2. Each Party shall notify the other party of its intention to perform an audit at least one ( 1 ) month prior to the date on which the audit will be performed by giving written notice to the other Party.
16.3. Each Party shall use its best efforts to cooperate with those audits and to make available to the other Party all information necessary to prove compliance with the obligations of such Party. A Party shall immediately inform the other Party if, in its opinion, an instruction infringes the applicable legislation.
16.4. Upon the performance of any such audit, the confidentiality obligations of the Parties with respect to third parties must be taken into account. Both the Parties and their auditors must keep the information collected in connection with an audit secret and use it exclusively to verify the compliance by the other Party with this DPA and the applicable laws and regulations in respect of data protection.
16.5. The Controller and the Processor and where applicable their representatives, shall cooperate, upon request, with the Supervisory Authority in the performance of its tasks.
16.6. The auditing Party shall reimburse the other Party for the services so rendered in relation to the audit in accordance with clause 17 below.
17. Costs
17.1. The services to be performed under this DPA for which the Processor may charge the Controller, will be charged on the basis of the hours worked and the applicable standard hourly rates of the Processor. The Processor will invoice these amounts on a monthly basis.
17.2. Payment by the Controller to the Processor for the Services under this DPA will take place in accordance with the provisions of the Agreement.
18. Notice of default
18.1. When the Processor fails to comply with its obligations under this DPA, the Controller shall first send a registered notice of default (in accordance with the relevant article of the Agreement). This notice shall clearly mention the defaults that occurred, and, if redress is possible, a proposal of remedial measures and a reasonable term for their implementation.
19. Liability
19.1. The Processor shall only be liable under this DPA if it (i) did not comply with its specific obligations under the GDPR, or (ii) acted outside or in violation of the lawful instructions of the Controller.
19.2. In any case, the limitations of liability as set out in the Agreement are applicable to this DPA and all services provided in respect of this DPA.
20. Other provisions
20.1. The provisions of the Agreement concerning (amongst others) amendments, severability, applicable law and jurisdiction are applicable to this DPA.