Tivtav – General Terms and Conditions

The purpose of these General Terms and Conditions (GTCs) is to set out the terms and conditions under which Tivtav BV, a private limited liability company incorporated under the laws of Belgium, with its registered office at Potestraat 24/A, 3020 Herent, and registered with the Kruispuntbank voor Ondernemingen under company number BE1041.094.169 (Company) provides the client (Client) (separately, a Party and together, the Parties) with the software and related services described in the order form, as set forth by Company and accepted by the Client (the Order), (together with the GTCs and other documents referenced therein referred to as the Agreement).

During the Term of the Agreement, and subject to the timely payment of Fees and compliance with use restrictions (all defined below), Company grants the Client and the Client’s employees and service providers (the Authorized Users) access and use rights to (i) the Company’s Tivtav software platform as subscribed to via the Order and as accessible via the URL communicated to the Client (SaaS Solution) and (ii) the documentation related to the SaaS Solution provided by Company to the Client (Documentation). Additionally, offered separately from the SaaS Solution, Company may provide services that relate to the SaaS Solution, such as implementation, integration, training and support services (Services).

Each Order is governed by and incorporates the following documents, in descending order of precedence: (i) Order, (ii) Data Processing Agreement agreed upon between the Parties, and (iii) the GTCs. Unless otherwise provided in the Order, the validity period of an Order is fourteen (14) calendar days. Company may withdraw a non-accepted Order at any time. Within five (5) days following the date an Order is agreed between Parties, Company has the right to revoke the Order by providing notice thereof to Client via email.

Parties explicitly exclude the application of any other terms and conditions, including purchase terms of the Client, even if Company has not expressly protested them. In the event the exclusion of such terms is not valid, these GTCs prevail over any other terms and conditions of the Client or any third party.

Access and use

Subject to the payment of the Fees, Client’s Authorized Users receive a personal, restricted, non-exclusive, non-transferable, non-sublicensable right to access and use the SaaS Solution, during the Term of the Agreement. The Client may only use the SaaS Solution as subscribed to via the Order (which may be limited) for Client's internal business purposes and may not exceed use restrictions.

Company may update the SaaS Solution from time-to-time in its sole discretion, but shall not remove a primary function of the SaaS Solution without providing prior notice to the Client.

The SaaS Solution is intended to provide the Client with financial and operational transparency to systematically optimize its locations. The Client acknowledges and agrees that the SaaS Solution is offered in the context of a growing product, is not a final product, and may be updated or modified based on the Client’s feedback and input. The SaaS Solution is provided “as is” and without any warranty, express or implied, including but not limited to warranties of uninterrupted availability, security, suitability, absence of viruses, or reliability.

All data, information and material submitted by Client and/or its Authorized Users to Company during the Term of the Agreement (Client Data) remains the sole and exclusive property of the Client and/or its Authorized Users, respectively. The Client grants, and shall procure that its Authorized Users grant, Company a non-exclusive, royalty-free, sublicensable license to use the Client Data as required to provide the SaaS Solution.

Solely the Client shall be responsible for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Client Data.

To the extent Company anonymizes the data, Company may collect, use, and disclose quantitative data derived from the use of the SaaS Solution for industry analysis, benchmarking, analytics, marketing, and other business purposes. All data collected, used, and disclosed will be in aggregate (i.e. anonymized) form only and will not identify the Client, its Authorized Users, nor Client Data.

Company undertakes best efforts to regularly perform maintenance on the SaaS Solution and inform the Client thereof in due time. Maintenance may include remedy of defects, provision of updates and support helpdesk. Maintenance shall be carried out regularly outside normal business hours (Monday to Friday from 8:00 a.m. to 6:00 p.m., excluding public holidays in Belgium), unless due to compelling reasons maintenance must be carried out at a different time.

Any use of the SaaS Solution outside the scope of the access and usage rights granted under the Agreement shall entitle Company to suspend the rights granted hereunder and/or terminate the Agreement for material breach by the Client. In such an event, all Fees under the Agreement shall immediately become due and payable to Company.

Restrictions on use

The Client shall comply with all laws, rules and regulations applicable to its use of the SaaS Solution. The Client shall not (directly or indirectly):

• copy, adapt, alter, translate, modify or make derivative works based on the SaaS Solution and any other intellectual property of Company, without the express prior written consent of Company;
• exceed the subscribed quantities, locations or other entitlement measures of the SaaS Solution as set forth in the applicable Order;
• assign, sell, resell, sublicense, rent, lease, time-share, distribute or otherwise transfer the rights granted to the Client under the Agreement to any third party;
• modify, decompile, reverse engineer, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or any underlying ideas, algorithms, structure or organization) of the SaaS Solution, except and only to the extent that such activity is expressly permitted by applicable law;
• use the SaaS Solution to generate unsolicited e-mails, advertisements or spam;
• use the SaaS Solution to contact (legal) persons outside standard practices or not acting in good faith;
• interfere with or disrupt the integrity or performance of the SaaS Solution;
• attempt to gain unauthorized access to the SaaS Solution or its related systems or networks, or perform unauthorized penetrating testing on the SaaS Solution;
• use the SaaS Solution in a manner that infringes on the intellectual property rights, publicity rights, or privacy rights of any third party, or to store or transfer defamatory, trade libelous or otherwise unlawful data;
• use any high volume automatic, electronic or manual process to access, search or harvest information from the SaaS Solution (including without limitation robots, spiders or scripts); or
• alter, remove, or obscure any copyright notice, digital watermarks, proprietary legends or other notice included in the SaaS Solution.

All intellectual property rights belonging to a Party prior to the Agreement or created or developed independent from the Agreement will remain with that Party. The SaaS Solution, including without limitation any underlying data, software, source code, object code, platforms, algorithms, technology, application and website design, any information, services, texts, feedback, files, sound, music, videos, various applications, social graphs, organization, structure, specifications, features and any modifications, enhancements and derivatives thereof and all intellectual property rights related thereto are the property of Company and/or its respective affiliates which retains all right, title and interest in connection therewith. For purposes of clarity, Company makes no claim with respect to Client Data or any data, content, photographs, videos or other materials uploaded to the SaaS Solution by the Client or any of its Authorized Users.

Company retains the right in any event to use any suggestions, ideas, enhancements, requests, feedback, recommendations or other know-how used or developed in the course of the Agreement, to the extent it does not include Client Data, including to improve or develop the SaaS Solution.

To the extent the Client acquires any right, title, or interest in any Company’s intellectual property, the Client will assign all of its right, title, and interest in such intellectual property to Company upon the creation of such rights.

All information disclosed by a Party (the Disclosing Party) to the other Party (the Receiving Party), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure (the Confidential Information), in particular any information related to the business, affairs, products, services, developments, trade secrets, know-how, personnel, customers and suppliers of either Party should be treated as confidential. The Confidential Information of the other Party shall only be used to the extent necessary for the performance of the Agreement and shall not be disclosed to third parties.

For all Confidential Information received during the Term of the Agreement, the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own similar Confidential Information, and in any case not less than reasonable care.

The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure, to the extent permitted by law.

The confidentiality obligations under the Agreement shall apply during the Term of the Agreement and for a period of five (5) years thereafter, provided that each Party shall keep secret information that is considered a trade secret of the other Party under applicable law for as long as it is protected by such law. Upon termination of the Agreement, each Party shall return or destroy the Confidential Information of the other Party at the sole discretion of the other Party.

Company reserves the right to charge additional fees in the event usage limitations are exceeded.

Company may increase the Fees in or after January of each year by an amount equal to the increase of costs for the Company (including labor costs and external costs, such as energy costs and third-party license costs), based on the Agoria Digital index or representative of added value subscriptions might have occurred during that time periode.

Any undisputed payment not received from the Client by the due date may, at Company’s sole discretion, accrue late charges at the maximum rate permitted by law. Disputed amounts will only be raised in good faith and the Client will notify Company of such as soon as reasonably practicable and at least within eight (8) calendar days after receipt of an invoice. The Client shall pay all reasonable costs of collection, including attorneys’ and collection agencies’ fees. Company will be authorized to suspend any provision of the SaaS Solution without prior warning in the event of late payment by the Client.

During the Term, Company represents and warrants that the SaaS Solution will perform in substantial conformity with the Documentation and the specifications of the SaaS Solution set forth in the Agreement, if any. This warranty is void if the failure of the SaaS Solution has resulted from negligence, error, or misuse of the SaaS Solution (including use not in accordance with the Documentation or Order) by the Client, the Authorized User or by anyone other than Company.

The Client shall be required to report any breach of warranty to Company within a period of fifteen (15) calendar days of the date on which the incident giving rise to the claim occurred. Company’s sole and exclusive liability, and the Client’s sole and exclusive remedy, for breach of warranty will be for Company, at its expense, to use reasonable commercial efforts to correct such non-conformity within thirty (30) days of the date that notice of the breach was provided. If Company would fail to correct the breach within such remedy period, the Client may terminate the affected Order and, in such event, Company shall provide the Client with a pro-rata refund of any unused prepaid Fees paid for the period following termination for the affected SaaS Solution.

Except as expressly set forth in this Article 6 and to the maximum extent permitted by applicable law, the SaaS Solution is provided “as is.” The obligations of Company under the Agreement constitute obligations of means. The express warranties set forth in this Article 6 are the only warranties made by Company with respect to the SaaS Solution, or any materials or services provided by Company in connection with the Agreement. Company makes no (and hereby disclaims all) other warranties, covenants or representations or conditions, either written, oral, express or implied, including without limitation any implied warranties of merchantability, suitability and fitness for a particular purpose or use with respect to the use, misuse or inability to use the SaaS Solution provided by Company. Client acknowledges that information included in the SaaS Solution may not always be accurate and up to date.

The Client warrants that it shall comply with all laws, rules and regulations and obtain all necessary permits and approvals, applicable to its use of the SaaS Solution.

Company will defend and indemnify the Client against any third party well-founded claims that state that the SaaS Solution provided under the Agreement infringes the intellectual property rights of that third party, provided that the Client shall (i) inform Company without undue delay of any such third party claims, (ii) grant Company all necessary powers of attorney and authority to defend the claims, (iii) Company full cooperation in the execution of said defence or settlement, at Company’s expense, and (iv) make no admissions as to the liability of Company in respect of such claims, nor enter into a settlement with respect to said claim without the express prior written consent of Company.

The above Company’s obligations to defend and indemnify will not apply if a claim arises from or relates to: (i) unauthorized use of the SaaS Solution by the Client or an Authorized User, (ii) the Client’s, Authorized User’s or any third party’s modification, alteration or conversion of the SaaS Solution not previously approved in writing by Company, (iii) the Client’s or Authorized User’s use of the SaaS Solution in combination with any non-Company’s products or services that are not previously approved in writing or are not indicated in the Documentation or Order, or (iv) Company’s compliance with specifications, requirements or requests of the Client.

If the SaaS Solution becomes, or Company reasonably determines that the SaaS Solution is likely to become, the subject of a third party infringement claim (as per Article 7.1), Company is entitled, at its own discretion, to: (i) modify the ((allegedly) infringing part of the) SaaS Solution so that it becomes non-infringing while preserving equivalent functionality; (ii) obtain for the Client a license to continue using the SaaS Solution in accordance with the Agreement; or (iii) terminate the relevant license and provide to the Client a pro-rata refund of any unused Fees paid to Company hereunder for that portion of the SaaS Solution which is the subject of such infringement.

The foregoing states the entire liability and obligation of Company and the sole remedy of the Client with respect to any third party infringement claim.

In no event will a Party be liable for any special, incidental, punitive, indirect, exemplary, or consequential damages (including but not limited to lost revenue, lost profits, replacement goods, loss of technology, rights or services, loss of data, or interruption or loss of use of service or equipment) even if advised of the possibility of such damages, whether arising under theory of contract, tort (including negligence), strict liability or otherwise.

Company’s cumulative, total liability for any reason in connection with the Agreement shall in no event exceed the amount paid by the Client to Company in the twelve (12) month period prior to the event giving rise to liability.

The Client agrees that Company can only be held liable as per the terms of this Article 8 to the extent damages suffered by the Client are directly and solely attributable to Company. The limitations as provided for in this Article shall also apply to Company’s indemnification and remedies obligations provided for in Article 7. However, nothing in the Agreement shall limit a Party’s liability for (i) gross negligence, (ii) willful misconduct or (iii) fraud.

The Agreement enters into force on the starting date as indicated in the relevant Order, or the date of acceptance of an Order by both Parties if no date is included, and shall remain in effect for one (1) year (the Initial Term). The Agreement will automatically renew for one (1) year periods (each a Renewal Term), unless terminated at least three (3) months before the expiry of the then-current term by written notice to the other Party. The Initial Term and Renewal Terms together constitute the Term.

In the event that either Party fails to fulfill any of its obligations under the Agreement, and, to the extent the breach is remediable, if such breach has not been remedied within thirty (30) calendar days from the written notice of such breach to the breaching Party, the Agreement and/or any applicable Order may be terminated immediately by the non-breaching Party.

Each Party may terminate the Agreement, without prior notice and without compensation, in the event the other Party: (i) becomes insolvent, (ii) makes a general assignment for the benefit of its creditors; (iii) suffers or permits the appointment of a receiver or a manager for its business or assets; or (iv) avails itself or becomes subject to any proceeding under bankruptcy laws or any other statute or laws relating to the insolvency or protection of the right of creditors.

Upon termination of the Agreement (i) the Client shall promptly pay Company all Fees and other amounts payable hereunder for the full Term specified in Article 9.1, except in the event of a termination by the Client for cause in which case the Client must promptly pay Company all Fees and other amounts payable hereunder up to the actual termination date, (ii) the Client will cease the use of and will not have further rights to access or use the SaaS Solution, and (iii) each Party shall return or destroy the Confidential Information of the other Party within its possession or control promptly upon receiving written request thereof from the other Party.

Up to thirty (30) days after the termination of the Agreement takes effect, the Client may contact Company to receive the export of its Client Data processed with the SaaS Solution, in CSV by e-mail.

The provisions of the Agreement that are expressly or implicitly intended to survive termination shall survive the termination of the Agreement.

Both Parties will comply with relevant data protection legislation, including but not limited to the General Data Protection Regulation (EU) 2016/679 and any implementation thereof in national legislation (GDPR), for the processing of personal data in the context of the Agreement. The Client represents and warrants that it obtains all necessary consents from the relevant individuals to collect and process their personal data.

The Parties shall enter into a separate data processing agreement, as set forth in Annex 1, which outlines the specific terms and conditions governing the processing of personal data, ensuring compliance with applicable data protection laws and safeguarding the rights and privacy of the data subjects.

Force Majeure – Neither Party shall be liable to the other Party for the delay in any performance or failure to render any performance under the Agreement when such failure or delay finds its cause in a case of force majeure, including without limitation acts of government, flood, fire, earthquake, civil unrest, acts of terror, strikes or labor problems, computer-, internet-, or telecommunications failures, delays or network intrusions, denial of service attacks, cyberattacks or any other cause or causes beyond the reasonable control of such Party as long as such cause(s) exist. The Parties agree that a payment obligation is not subject to force majeure.

Publicity – Company reserves the right to list the Client among its references, unless otherwise set forth in the Order. The Client authorizes Company to use the Client’s name and logo in reference materials and marketing communications, including Company’s commercial brochures, website, and any other medium or event for the purpose of presenting or promoting the Company’s products and services.

Entire Agreement – This Agreement constitutes the entire understanding between the Parties and supersedes all prior communications, understandings, promises, representations, warranties, and agreements, whether written or oral, relating to its subject matter.

Notices – All notices, requests, consents, demands and other communications hereunder shall be in writing, addressed to the receiving Party's e-mail address set out in the Order or otherwise notified by the receiving Party in accordance with the Agreement (For company: invoicing@tivtav.com). Company may provide notices to the Client via an e-mail address used for the SaaS Solution.

Amendments – The terms and provisions of the Agreement may be modified or amended only by written agreement executed by a duly authorized representative of both Parties, provided that Company may, acting reasonably, unilaterally amend these GTCs immediately upon notice to the Client in order to comply with any applicable law.

Severability – In the event a provision of the Agreement is null, invalid or unenforceable, this will not affect the validity or enforceability of other provisions of the Agreement, and Parties will enter into good faith negotiations to substitute provisions which approach the null, invalid or unenforceable provision as to its content and substance as closely as possible, taking into account the intent of the Parties.

No Waiver – No delay in exercising or non-exercise by any Party of any of its rights, powers or remedies under or in connection with the Agreement shall be construed as a waiver of that right, power or remedy, unless the waiver is in writing and signed by an authorized representative of the waiving Party. The waiver or release shall only operate as the waiver or release of a particular breach and not of further breaches of the same or any other type, unless expressly stated otherwise.

Assignment – Neither Party may assign any of its rights or obligations under the Agreement without the other Party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, Company may assign the Agreement to any of its affiliates or a successor in interest in connection with a merger or sale of all or substantially all of its assets, such assignment to be effective upon written notice to the Client.

Applicable Law and Jurisdiction – The Agreement and all Client’s orders will be subject to Belgian law. Any dispute arising out of or in connection with the Agreement or any Order will be subject to the exclusive jurisdiction of the courts of the place where Company has its registered office.