Terms & Conditions Agreement
By accessing and using the Platform, the Customer unconditionally agrees to be bound by the following Terms & Conditions Agreement and its two appendices (hereafter “the Agreement”):
- “Country of Delivery” means the country in which the Customer has its registered office as indicated in the Test Agreement.
- “Documentation”: all information provided with the Software whether digital or on paper, to explain features of the Software, technical restrictions, and recommendations for its use.
- “Intellectual Property Rights” means all intellectual, industrial and other property rights (irrespective of whether these are registered or not), including but not limited to copyrights, related rights, marks, trade names, logos, drawings, models or applications for registration as a drawing or model, rights in inventions, patents, patent applications, domain names, know-how, as well as rights to databases, computer programs and semi-conductors.
- “IP Claim”: any claim or action brought against the Customer alleging infringement by the software of any Third Party IP in the Country of Delivery.
- “Software” means the information integration software developed by ONTOFORCE and marketed under the brand name ‘DISQOVER’. This software is powered by semantic technology and hence establishes smarter links between various sources of information;
- “Third Party IP”: Intellectual Property Rights vested with a person, company or organization that is not a party to this Agreement.
1. Right to use the Platform
1.1. The Customer shall be granted a non-exclusive and non-transferable right to use the Platform and therefore, indirectly, the DISQOVER Software.
1.2. The Platform is made of (I) the Software (hereafter ‘DISQOVER’) used to deliver the service, (II) the support delivered by ONTOFORCE personnel and (III) the hosting of the DISQOVER in the ONTOFORCE datacentre. The platform is delivered to the Customer as a Software as a Service Model. The Customer shall use the Platform solely for its internal purposes.
1.3. The right granted to the Customer is personal to the Customer and the Customer may not assign, sub-license, or otherwise transfer his rights or obligations under this Agreement.
2.1. The restrictions on use enlisted here, apply with respect to the Platform and any part thereof.
2.2. Unless such restriction is prohibited by applicable law, the Customer shall not:
- reverse engineer, decompile, disassemble, translate, modify, alter or change the Platform.
- have any right to market, distribute, sell, sublicense, deliver or otherwise transfer the Platform for any other purposes than purposes internal to the Customer,
- create derivative works based on DISQOVER,
- copy DISQOVER
- obtain, access, use or copy or try to or allow others to obtain, access, use or copy the source code of DISQOVER.
2.3. The restrictions under 2.2 may be lifted by the licensing terms governing the use of any open-sourced component included in the Platform, in which case the restrictions will be lifted with respect to that component only.
3. Intellectual Proprietary Rights
3.1. The Customer recognizes that all Intellectual Property Rights in the Platform are vested with ONTOFORCE or third parties whom ONTOFORCE has entered into an agreement with.
3.2. The Customer shall not acquire any title, copyright or other proprietary rights in the Platform, or any copies thereof.
3.3. The Customer agrees not to remove, suppress or modify in any way any proprietary marking including any trademark or copyright notice, on or in the Platform.
3.4. The Customer shall notify ONTOFORCE immediately if the Customer becomes aware of any unauthorised access to, use or copying of the Platform by any person.
3.5. The Customer agrees that ONTOFORCE and/or its associated companies may directly enforce against the Customer its intellectual property rights in the Platform and/or any terms of the license designed to protect such rights, in particular by limiting the rights granted to the Customer.
3.6. If any Customer breaches the Agreement, the Customer shall at its own expense use all reasonable endeavours to procure that the breach is remedied. In the event of a breach by the Customer, ONTOFORCE may terminate the Customer Agreement in accordance with its terms or procure that it is put out of use.
3.6. If the Customer provides any suggestions to help ONTOFORCE improve or modify the Software, the Platform and/or the Services (“Feedback”), any improvement or modification implemented by ONTOFORCE based on the Feedback shall be proprietary to ONTOFORCE, and all Intellectual Property Rights in such improvements and modifications shall belong to ONTOFORCE.
4. Customer’s Obligations
4.1. ONTOFORCE’s standard practice towards end users using the Platform on behalf of the customer, consists of requiring these end users to accept the User Terms prior to the start of this use. The Parties agree to deviate from this standard practice and ONTOFORCE agrees not to require individual consent of the User Terms by the Users using the Platform on behalf of the Customer, given the representation of the Customer that:
- The Customer will train its Users and such training will include the provisions of the User Terms, and in particular (but not limited to) all restrictions on use included therein, and
- Its Users will comply with the User Terms. The Customer agrees to defend, indemnify and hold Ontoforce harmless against all damages that Ontoforce may incur as a consequence of the Customer’s Users not complying with the User Terms.
4.2. The Customer agrees to defend any claim by a Customer User, indemnify and hold ONTOFORCE harmless against all claims of its Users directed against ONTOFORCE in relation to the User’s use of the Platform under this Agreement and pay any damages awarded and due to such User on behalf of ONTOFORCE. The provisions of this Article 4.2 however shall not preclude the Customer from seeking recovery of any damages paid on behalf of ONTOFORCE to a User, if and to the extent that such damages is a result of ONTOFORCE’s breach and a claim is available under the Agreement subject to the liability limits of ONTOFORCE under Article 15 and 16 of this Agreement.
4.3. Reference to ONTOFORCE in the Articles 10.1 b and 10.2 is deemed to include ONTOFORCE as well as its employees, officers, agents and subcontractors.
4.4. The Customer undertakes:
- To ensure that any other software with which the Platform will be used is either the property of the Customer or is legally licensed to the Customer;
- To ensure that the Platform source code will not be obtained by any third party without the prior written consent of ONTOFORCE;
4.5. The Customer will indemnify and hold ONTOFORCE harmless from and against all damages, liabilities, costs and fees (court costs and reasonable attorney fees included) incurred by ONTOFORCE, or claims directed against ONTOFORCE, due to the alleged non-compliance of any of these obligations by the Customer, its Users, employees, officers, agents or subcontractors.
5. Third Party Materials
5.1. The Platform may enable access to third party services and content (hereafter “Third Party Materials”). The Third Party Materials may contain content that is protected by Intellectual Property Rights and other laws. Use of these may require acceptance of additional terms of service issued by these Third Parties. The Agreement does not grant to the Customer or the Licensee any rights to use such Third Party Materials.
5.2. When accessing these Third Party Materials via the Platform, the Customer acknowledges and agrees that ONTOFORCE is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials. To the extent the Customer chooses to access such Third Party Materials, it is done so at the Customer’s own initiative and risk, and the Customer is responsible for compliance with any applicable laws. The Customer is a professional user of the content, data and information that may be found in the Third Party Materials. It is for the Customer to analyse and assess the reliability of the source of this information and the accuracy, completeness and other features of the Third Party Materials.
5.3. ONTOFORCE reserves the right to change, suspend, remove, impose limitations on or disable access to any Third Party Materials at any time without notice. In no event will ONTOFORCE be liable for the removal or disabling of access to any such Third Party Materials.
6. Limited Warranty
6.1. ONTOFORCE has accepted to provide a limited warranty in the agreement with the Customer. Apart from the limited warranty towards the Customer, the Platform is to the maximum extent permitted by applicable law, provided “as-is” and “as-available”, “with all faults” and without warranty of any kind, whether express, implied, statutory or otherwise, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, satisfactory quality, accuracy, quiet enjoyment and non-infringement of Third Party IP.
7. Limitation of Liability – General
7.1. ONTOFORCE cannot be held liable for any fault (even a serious fault) on the part of ONTOFORCE or an employee or appointee in the performance of this Agreement, except in case of fraud.
7.2. All obligations of ONTOFORCE under this Agreement are obligations of means, unless explicitly provided otherwise under the service levels defined in the Service Appendix.
7.3. Except in a case of willful misconduct, or neglect, ONTOFORCE is not liable for personal injury, nor, except in a case of breach of confidentiality, for consequential damages such as loss of expected profit, reduced sales, increased operating expenses, loss of clientele, damage to reputation or equipment or loss of data that the Customer or third parties might suffer arising out of or related to the use or inability to use the Platform or Services, and this, even if ONTOFORCE has been advised of the possibility of such damages.
7.4. ONTOFORCE is not liable for defects attributable to inadequate or incorrect input from the Customer. ONTOFORCE does not accept any liability for damages resulting Customer, incorrect actions or non-compliance with legislation or with the instructions given by ONTOFORCE.
7.5. The liability of ONTOFORCE shall in no event exceed:
- the total Price effectively paid for the Services by the Customer which specific Services gave rise to the damages, or
- 25.000 EUR
whichever amount is lesser.
8. Limitation of Liability – Platform
8.1. ONTOFORCE will make reasonable efforts in order to prevent that the Platform would contain faults, bugs, computer viruses and/or malware. ONTOFORCE cannot be held liable for faults, bugs, computer viruses and/or malware, which the Platform would contain despite its efforts.
8.2. ONTOFORCE can in no way be held liable for malfunctioning or temporary or permanent unavailability of the Platform or for any damages resulting thereof. The Customer is familiar with and accepts the inherent vulnerability of the Platform as a software product and an Internet-based application.
8.3. ONTOFORCE is not liable for defects in the Platform attributable to inadequate use or incorrect input from the Customer or third parties.
8.4. ONTOFORCE does not accept any liability for damages resulting from:
- the use of software or hardware by the Customer that is not supplied by ONTOFORCE,
- incorrect actions or non-compliance with legislation or with the instructions given by ONTOFORCE,
- services not supplied by ONTOFORCE,
- a lack of (i) assistance or (ii) the provision of resources by the Customer that is required to allow ONTOFORCE to perform its obligations under the Agreement,
- Third Party Materials accessible via the Platform, or
- claims directed by third parties against the Customer.
8.5. In the event of a breach of warranty, the remedies provided in the Service Appendix are the sole remedies.
9.1. For the use of certain modules of the Platform, the Customer will be asked to provide personal data. In that case, ONTOFORCE acts as a data controller.
9.2. Personal data will be used only to provide and optimize ONTOFORCE’s services through the Platform. Personal data may also be used for direct marketing purposes.
9.4. The Customer has a right of access to and correction of his personal data. The Customer has the right to oppose the further processing of his personal data for direct marketing purposes.
9.5. The personal data will not be communicated to third parties, unless to Licensee or to processors of ONTOFORCE for the above purposes. If personal data would be transferred from the European Union to a country outside of the European Union, ONTOFORCE will take appropriate contractual measures to protect such data.
9.6. The personal data are protected by applying all necessary safety measures using authentication, separate date servers and anonymizing whenever possible. However, the Customer is responsible for implementing sufficient safety measures (such as passwords) on the device with which he accesses the Platform to protect his personal data.
10. Prices and Payment
10.1. Platform pricing (“Prices”) are specified in the Test agreement
10.2. Payments which are not received within fifteen (15) days of their due date will be considered overdue. This will automatically and by operation of law, give rise to an administrative fee of 250 EUR. The amount due shall automatically and without notification bear an interest of 1% per month from the date payable until full payment is received.
10.3. At the start of each calendar year, all License Fees and Prices will be adjusted, in proportion to the consumer price index applicable in Belgium according to the following formula:
P = PO*S/SO
• P = New price for the calendar year (Y);
• PO = Previous price (preceding calendar year, Y-1) as applicable before the cost of living adjustment described here;
• S = Belgian consumer price index (as published by the Belgian Federal Government) for the month of December (Y-1) preceding the month of adjustment of the Price;
• SO = Belgian consumer price index (as published by the Belgian Federal Government) for the month of December of the year preceding the year used for the consumer price index determined as S in the formula above (Y-2).
11.1. On termination of the Agreement between ONTOFORCE and the Customer, for whatever reason, the Customer’s authorization to use the Platform shall automatically cease.
11.2. Either Party may terminate this Agreement immediately by written notice upon the occurrence of a Serious Default. Each of the following occurrences will constitute a Serious Default under this Agreement:
- The Customer fails to pay ONTOFORCE any amount due under this Agreement and such failure has not been remedied by the Customer within 30 days of receipt of a default letter sent by ONTOFORCE to the Customer requiring such default to be remedied;
- The Customer infringes the Intellectual Property Rights of ONTOFORCE in the Platform;
- Any bankruptcy, formal protection against creditors or liquidation proceedings started against or voluntarily entered into by either Party, the appointment of an administrator or a receiver for the Party over any of its assets, the assignment of the Party’s assets for the benefit of its creditors, or in case of dissolution or discontinuation of the Party’s business or any other event which would have a similar effect;
- Either party fails to observe any material obligation under this Agreement other than the Customer’s payment obligations, and such failure, when capable of being remedied, is not remedied within 30 days of receipt of a default letter sent to the Party in breach, by the other Party.
- In the absence of provision, one month prior to expiry, of notice of termination by either Ontoforce or the CUSTOMER, by means of registered letter with acknowledgment of receipt, the contract will be automatically renewed by tacit consent for successive periods of one year.
11.3. The following sections of this Agreement shall survive the termination of this Agreement: the articles on Definitions, Intellectual Property Rights, Termination, Liability, Confidential Information, Governing law and jurisdiction.
12. Confidential Information
12.1. All information disclosed by one Party to the other, whether in written, oral or any other form including but not limited to business plans, technology, ideas, proposals, ways of working, specifications, prices, and customers’ and suppliers’ details in connection with this Agreement, the Platform or the Services, provided that such information is marked as confidential if it concerns written information, and is confirmed to be confidential in writing within thirty (30) days after communication if it concerns orally communicated information, will be considered “Confidential Information” that must be kept strictly confidential by the Party receiving it (hereafter the “Recipient”).
Unless otherwise agreed to by Customer in writing, ONTOFORCE agrees that it will not disclose to Customer any non-public information regarding its approaches to data representation and integration of heterogeneous and complex data, schema, ontologies and information networks utilized to represent data relationships, algorithm utilized to find paths, patterns, and latent relationships between data entities, and ONTOFORCE shall use best efforts to ensure that its employees, agents, affiliates, and directors comply with the foregoing. ONTOFORCE acknowledges that Customer has an interest in technologies related to complement inhibition and mRNA techniques and that Customer may have in its possession or may acquire in the future confidential information of its own or belonging to third parties relating to such technologies. Nothing herein shall be construed as prohibiting Customer from using such confidential information of its own or from third parties for any purpose.
The Recipient shall not publish or disclose to any third party or use the Confidential Information for any purposes other than:
- the performance of this Agreement or
- the improvement of the Platform or the Services,
without the express prior written consent of the other Party, hereafter the “Disclosing Party”.
12.2. The Recipient shall make Confidential Information available only to those of its employees or appointees who strictly need to know the Confidential Information for the performance of the Agreement.
The Recipient shall inform any such employees or appointees of the terms and conditions of this Agreement and shall ensure that such employees or appointees are bound by confidentiality and non-use obligations no less stringent than those included herein.
12.3. Will not amount to Confidential Information, information which,
- is in the public domain at the time of disclosure;
- becomes part of the public domain after disclosure otherwise than through an act or omission of, or breach of this Agreement by the Recipient;
- was in the possession of the Recipient in written or another documentary form already at the time of disclosure without any restriction on disclosure and was not acquired directly or indirectly from Disclosing party;
- is disclosed to the Recipient from a third party who has the right to make such disclosure; or
- is independently developed by Recipient without any use of information provided by the Disclosing party;
The Recipient shall have the burden of proof as to any claimed exception to the obligations of confidentiality and non-use provided herein.
The information shall not be deemed to be in the public domain or in the Recipient’s possession merely because it may be embraced in a more general disclosure, or be derived from non-evident combinations of disclosures generally available to the public or in the Recipient’s possession.
12.4. The Confidential Information shall be returned to the Disclosing party (along with all copies thereof) within thirty (30) days of receipt by the Recipient of a written request from the Disclosing Party setting forth the Confidential Information to be returned, provided that the Receiving Party may keep one (1) copy of the Confidential Information in its Legal Division for record keeping purposes only.
12.5. In the event that any Party is required to disclose Confidential Information pursuant to a court order, both Parties will notify each other of the required disclosure with sufficient time for each Party to seek relief, will cooperate in taking appropriate protective measures, and will make such disclosure in a fashion that maximizes protection of the Confidential Information from further disclosure.
13. IP Claims
13.1. To the best of ONTOFORCE’s knowledge at the Effective Date, the software does not infringe any Third Party IP in the Country of Delivery. ONTOFORCE will promptly notify Customer if the Software infringes any Third Party IP in the Country of Delivery at any time during the term of this Agreement.
13.2. If notified promptly of an IP Claim, ONTOFORCE will defend or cause to be defended such action at its expense and will pay:
- any damages directly linked to the infringement in the Country of Delivery and awarded in a final judgment against the Customer in such action, with the exclusion of any punitive damages, as well as
- the Customer’s reasonable attorney costs,
provided that ONTOFORCE shall have sole control of the defense and all negotiations for settlement. The Customer will, however, provide ONTOFORCE with all relevant information and assistance at no cost to help ONTOFORCE defending or settling the claim.
13.3. In the event that pursuant to an IP Claim, a final injunction shall be obtained against the Customer’s use of the Platform by reason of such Platform infringing Third Party IP in the Country of Delivery, ONTOFORCE will at its own option and at its own expense, either:
- procure for the Customer the right to continue using the Platform or the affected parts thereof, or
- replace or modify the Platform or any part thereof for it to become non-infringing, or
- return the Platform against a refund of the License Fees effectively paid in the preceding 12-month period.
13.4. The remedies in articles 11.2 and 11.3 are the entire remedies of the Customer in the event of an IP Claim.
13.5. ONTOFORCE shall have no liability under this article 11, for:
- Any infringement arising from the modification of the Platform by the Customer or upon the Customer’s request, or the combination of the Platform by the Customer or upon the Customer’s request, with other software products, where no infringement would have occurred without such modification or combination;
- Any costs or expenses incurred by the Customer without ONTOFORCE’s written authorization.
14. Export and Legal Compliance
14.1. The Customer acknowledges and agrees to be solely responsible for compliance with any applicable export control restrictions, laws and regulations as may be modified from time to time. The Customer shall not attempt to, or knowingly export or re-export the Platform covered under this Agreement to any country or national thereof prohibited from obtaining such Platform, either directly or indirectly.
14.2. The Customer represents that:
- it is not located in a country that is subject to a United States Government or EU embargo, or that has been designated by the United States Government or EU as a “terrorist supporting” country, and
- the Customer or any of its employees, agents, officers or subcontractors are not listed on any United States Government or EU list of prohibited or restricted parties.
- it will not use the Platform for any purposes prohibited by applicable law.
15.1. With prior written consent, ONTOFORCE may publicly refer to the identity of the Customer as being a customer of ONTOFORCE for the Platform, without however using any logo of the Customer. For any use of the Customer’s logo, ONTOFORCE will request the Customer’s prior and written consent, which consent will however not be unreasonably withheld.
16.1. The validity, interpretation, performance and termination of this Agreement shall be governed by Belgian law. No effect shall be given to any choice-of-law or conflict-of-laws rules or provisions, that would cause the laws of any other jurisdiction to be applicable.
16.2. ONTOFORCE and Customer agree to submit to the exclusive jurisdiction of the Brussels Courts.
17.1. This Agreement replaces and annuls any prior written or oral understanding, agreement, offer, correspondence or proposal regarding the subject stated above.
17.2. Should any provision of this Agreement, or the implementation thereof, be void or unenforceable, the other provisions will not be affected by this and remain in full force and effect. In this case, the parties, within the limits of the applicable law, will draft a new stipulation that meets the objectives intended by the void or unenforceable stipulation and include this in an appendix to these general conditions.
18. Force Majeure
18.1. Neither Party shall be liable for non-performance or delay in performance of any obligation under this Agreement if such non-performance or delay is caused by an event of Force Majeure or any other event above that Party’s reasonable control that materially impairs the ability of that Party to perform its obligations under this Agreement. On the occurrence of an event of Force Majeure or such other event, the affected Party shall immediately inform the other Party of the event, and the reasons why it is not able to perform any or all of its obligations under the Agreement. If within a period of forty-five (45) days, the event continues and the Parties are unable to identify a workable alternative, either Party may terminate this Agreement.
19.1. Any notice given under this contract by either Party to the other must be in writing, and be effected by personal delivery or registered post and in the case of registered post will be deemed to have been given three (3) working days after the date of posting. Notices sent by registered post shall be sent to the addresses of the parties set out herein or to any other address notified in writing by one Party to the other for the purpose of receiving notices after the date of execution of this Agreement.
Notwithstanding the foregoing, ONTOFORCE may give notice of changes in Prices, Product descriptions, order procedures, delivery procedures and other routine events and procedures by way of email, printed materials or other. In the same way, Order Forms specifying the exact orders of the Customer will be sent to the Customer in electronic format and will be approved and considered approved by electronic means.