1. Definitions
For the purpose of this Agreement, the terms defined in this Article shall have the meanings set forth below. Where the context requires, the singular shall include the plural and vice versa. “Agreement” means, unless the context requires otherwise, these general terms and conditions, including the Commercial Proposal and all Annexes (as amended or supplemented from time to time);
“Account Administrator” means a physical person designated as such by the Client under the License and authorized to administer Client's use of the License on Client’s behalf;
“Additional License Fees” means the variable license fee that may be due and payable by the Client because its usage of the Software for a specific Product exceeds the agreed-upon usage for that specific Product, in each case as further documented in the Commercial Proposal;
“Additional Service” means the additional services in relation to a specific Product such as, without limitation, bespoke development work, training, set-up services, extended support, project management, integrations with other systems, applications or software, or any other custom software development, in each case as further documented in the Commercial Proposal;
“Affiliate” means, with respect to a Party, any person, partnership, corporation, organization or entity that directly or indirectly Controls or is directly or indirectly Controlled by or is under common Control with such Party;
“Annex” means an annex to this Agreement (as amended or supplemented from time to time) and which is entirely part thereof;
“Back-up” has the meaning as set out in Article 7.7;
“Base License Fee” means the fixed license fee in consideration of the License granted by Optioryx to the Client in relation to the Software for a specific Product, in each case as further documented in the Commercial Proposal;
“Business Day” means any day of the week, except for Saturdays, Sundays and public holidays in Belgium;
“Business Hours” means between 09.00-18.00 on Business Days;
“Commercial Proposal” means the final technical and commercial proposal made by Optioryx according to the needs of the Client. The proposal forms an integral part of this Agreement;
“Confidential Information” shall have the meaning as set out in Article 24;
“Control” means the ownership of more than half the share capital, business or assets of a Party or the power to exercise more than half the voting rights of a Party or the power to appoint more than half the members of the board of directors of a Party or sufficient authority to direct, directly or indirectly, the adoption and/or execution of the policies, management or operations of a Party by any means whatsoever;
“Client” means the person that has accepted to use the Software and receive the associated Services pursuant to the terms of the Commercial Proposal;
“Client Operations” means Client’s ordinary business activities and operations;
“Client Data” means the Data provided to Optioryx by the Client, its Representatives and/or its Users in connection with their use of the Software;
“Optioryx Data” means any Data, other than Client Data;
“Data” means any data, information or material that is used or provided in relation to the use of the Software and regardless of its form or the medium in which it is comprised, submitted, uploaded or stored;
“Documentation” means Optioryx’s manuals and technical materials (as amended from time to
time), in such medium as Optioryx elects, that are delivered by Optioryx to the Client under the
Agreement for the purpose of the set-up and/or use of the Software;
"Effective Date" means the date indicated in the Commercial Proposal as the effective date for the
provision of the Software and associated Services;
“EU Data Protection Laws” or “GDPR” means the EU General Data Protection Regulation 2016/679
and laws implementing or supplementing this regulation;
“Fees” means the Base License Fees, the Additional License Fees and the Service Fees;
“Individuals” shall have the meaning as set out in Article 15.15;
“Individuals’ Personal Data” shall have the meaning as set out in Article 15.15;
“Initial Term” means the initial period for which this Agreement is entered into as defined in Article 19.1;
“Intellectual Property Rights” means, without limitation, and in particular with regard to the Software and Products, all rights throughout the world in the nature of intellectual property rights including copyright, trademark, service marks, trade and business names, domain names, goodwill, registered designs, patents, database rights, topography rights and rights in know-how and trade secrets, whether registered or unregistered and including applications for the grant of any of the foregoing and all rights or forms of protection having equivalent or similar effect to any of the foregoing;
“Know-How” means, in particular with regard to the Software and Products, all technical and processing data, information, specifications, and knowledge of an intellectual or industrial nature, concerning products and/or services, including but not limited to specifications, manufacturing instructions, quality control procedures and other like data;
“License” means the licenses granted by Optioryx to the Client in accordance with Article 5 and Article 6 for use of the Software in relation to the relevant Products;
“License Fees” means the Base License Fees and Additional Licensee Fees that are payable by the Client to Optioryx in consideration of the License granted by Optioryx to Client;
“Optioryx” means Optioryx BV, a limited liability company incorporated under the laws of Belgium, with its registered office at Sint-Pietersnieuwstraat 11, 9000 Ghent, Belgium, and company registration number 0784.885.495;
“Parties” means Optioryx and the Client;
“Product(s)” means the optimization tool(s) developed by Optioryx in relation to warehouse and shipping operations and which are further specified in the Commercial Proposal; “Renewal Term” has the meaning as set out in Article 19.2;
“Representative” means, with respect to a Party or a Party’s Affiliate, its directors, officers,
employees, contractors, agents, advisors, counsellors, auditors, accountants or lawyers; in relation
to Client, Representative also includes its Account Administrators and its Users;
“Services” means the standard services of hosting, Documentation, support and maintenance rendered by Optioryx in relation the Software and the Additional Services, as set forth in, respectively, the Agreement and/or the Commercial Proposal;
“Service Fees” means the fees payable by the Client to Optioryx in consideration of the Additional Services, in each case as documented in the Commercial Proposal;
“Software” means Optioryx’s proprietary optimization tools covering various aspects of warehouse and shipping operations, as may be amended from time to time. The solutions include, without limitation, dimensioning, slotting, picking, packing and loading, and can be accessed, depending on the Product, through a webapp developed by Optioryx, an API made available by Optioryx or a proprietary platform;
“Third Party Claim” has the meaning given thereto in Article 22.2;
“Upgrades” means any updates, upgrades, enhancements, modifications, patches, alterations, improvements, corrections, revisions, releases, new versions or any other changes to the Software or Documentation;
“User” means a physical person designated as user of the Software by the Client, or by the Account Administrator on Client’s behalf, under the License.
2. Scope of the Agreement
2.1. The Agreement sets out the terms and conditions that apply to all services, products, documents, data and any other element provided by Optioryx or exchanged with Optioryx in relation to the Software and the associated Services.
2.2. In order to comply with regulatory or governmental provisions and/or to safeguard continuity of the Software and the associated Services, Optioryx reserves the right to modify the terms and conditions of access to the Software and the associated Services in its reasonable discretion from time to time. Such modifications shall be deemed to be accepted by the Client provided that Optioryx notifies them to the Client in accordance with Article 26.1 of the Agreement. Continued use of the Software by the Client after such notification shall constitute Customer’s acceptance of the modification.
2.3. Optioryx may amend or supplement the non-essential provisions of this Agreement at any time, subject to prior notice thereof. In the absence of a response, the amended Agreement shall be binding thirty (30) days after such notification.
2.4. Deviations from the provisions of the Agreement shall be applicable only if (i) the deviating provision expressly refers to the provision in the Agreement from which it differs and (ii) the deviating provision is confirmed in writing by authorized Representatives of both Parties.
3. General Provisions for the delivery of the Software and associated Services
3.1. Prior to the Effective Date, the Client has provided to Optioryx technical, commercial and legal information, data, documents and other materials (the “BaseInformation”) related to the envisaged Products and associated Services in order to enable Optioryx to review such Base Information and prepare its Commercial Proposal accordingly (in particular any bespoke development work that may be required to implement the Products).
This Base Information formed the foundation for the Commercial Proposal submitted by Optioryx and the contractual relationship between the Parties. For the avoidance of doubt, Optioryx will only be liable to the Client for the Product specifications set forth in the relevant Documentation or that have been specifically agreed upon in the Commercial Proposal.
3.2. If and to the extent that after the Effective Date the provided Base Information shows to be incomplete or incorrect, or the Base Information provided was (in hindsight) not sufficient to evaluate the needs of the Customer (in particular any bespoke development work that may be required to implement the Products), the Change Request Process according to Article 4 shall apply with the objective of adjusting the Commercial Proposal in development work, performance, service description and/or Fees where necessary to reflect the deficiencies in the Base Information. In case the Parties cannot agree on a corresponding adjustment within a reasonable term of not more than three (3) months after initiation of the Change Request process, Optioryx may terminate the Agreement without incurring any further liabilities or payment obligations of Optioryx (including any refund of Fees received prior hereto) and claim payment of the Fees (or parts thereof) in relation to the Software and/or Services provided prior to the termination.
3.3. The Change Request Process according to Article 4 shall also apply if the Client wishes to receive additional Products or Services (including any bespoke development work that may be required to implement the Products). To accommodate additional Products or Services, a new Commercial Proposal may be concluded or the existing one may be amended.
4. Change Request Process
4.1. Changes and additions to the content or scope of the Products and/or associated Services (including any bespoke development work that may be required to implement the Products) defined in the Commercial Proposal may be proposed by either Party in writing (hereafter
referred to as “Change Requests”). The proposal must include at least the following:
(i) A detailed description of the requested change or addition;
(ii) Reasons for the proposed change;
(iii) Anticipated consequences for prior agreed timelines and schedules.
4.2. For each Change Request, Optioryx shall submit a quote, provided however that Optioryx is entitled to refuse to carry out a Change Request proposed by the Client if it is not technically feasible, outside its standard offering, requires unreasonable effort and expense, or if no reasonable adjustment can be made to prior agreed timelines and schedules.
4.3. Following receipt of the quote provided by Optioryx, the Client shall decide whether to implement the Change Request on the basis of the quote submitted by Optioryx.
4.4. Unless and until the Client has given written consent to a change quote submitted by Optioryx, Optioryx will continue to perform the Agreement in accordance with the original terms in place before that specific Change Request. The same applies should the Client reject Optioryx’s quote. If, in its quote, Optioryx drew attention to the potential negative consequences of a refusal to implement a Change Request, those consequences shall be borne by the Client.
5. License to the Software
5.1. Optioryx hereby grants to the Client, and the Client accepts, the License, meaning a non-exclusive, restricted, personal, non-transferable and non-assignable license to use, for the purpose of Client Operations and for such purpose only, the Software in relation to the Products as outlined in the Commercial Proposal for the entire duration of the Agreement under the terms and conditions set out in this Agreement and the Commercial Proposal. The License shall also include any Upgrades to the Software and/or the Documentation.
5.2. The License is granted to the Client and its Users only and shall not be considered or construed to be granted to any subsidiary, holding company (including its Affiliates) or customers of the Client, unless otherwise agreed upon in writing by Optioryx or except to the extent expressly permitted under the Agreement. The Client is not entitled to (in whole or in part) sublicense the License unless otherwise agreed upon in writing by Optioryx or except to the extent expressly permitted under the Agreement.
5.3. The Client acknowledges and agrees (i) that its access to the Products is dependent on the License, (ii) that Optioryx may refuse, suspend, interrupt or terminate its access to the Software and the Products at all times in accordance with the Agreement and (iii) that under no circumstances it can hold Optioryx, its Affiliates or its Representatives liable for any such refusal, suspension, interruption or termination unless expressly provided under the Agreement.
6. License Restrictions
6.1. The Agreement does not grant and shall not be construed to grant to the Client any other right than the rights expressly granted by the Agreement. Any right that is not expressly granted to the Client hereunder is reserved by Optioryx.
6.2. The License is granted subject to the Client’s continuous compliance with the Agreement, including timely payment of the entire Fees, failing which Optioryx reserves the right to fully or partially refuse, suspend, interrupt or terminate the Client’s access to the Software and/or Products at all times, without detriment to Optioryx’s rights hereunder and its right to claim compensation for losses, damages and costs it suffered.
6.3. The Client commits and guarantees that he is not and shall not be a competitor of Optioryx and that, except with Optioryx's explicit prior written consent, he shall not use (any part of) the License and/or the Products for (i) any other purpose than Client Operations, (ii) any activity that is competing with Optioryx’s business or operations or (iii) in general is detrimental to Optioryx’s business interests.
6.4. The Client shall not, and guarantees that his Affiliates, his Representatives and/or its Affiliates’ Representatives shall not, (attempt to) do the following and shall not assist any third party in doing the same by any means, unless when explicitly stated otherwise in this
Agreement:
(i) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, translate, adapt, alter or distribute all or any portion of the Software in any form or media; or
(ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make available the Software to any party; or
(iii) access the Software or any part thereof for competitive purposes; or
(iv) translate, modify, adapt, alter, reverse compile or reverse engineer, decompile, disassemble or otherwise reduce to human-perceivable form all or anypart of the Software; or
(v) reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Software or disclose any of the foregoing; or
(vi) create Internet “links” to the Software or any part thereof or "frame" or "mirror" the Software or any part thereof on any server or wireless or Internet-based device; or
(vii) access or use the Software or any part thereof to provide services to third parties, tbuild a competitive product or service or a product or service using similar ideas, features, functions or graphics as the Software or any part thereof or to copy any ideas, features, functions or graphics of the Software or of any part thereof; or
(viii) take any action that would cause the Software to fall into the public domain.
7. Optioryx’s obligations in relation to the Software
7.1. Subject to the terms and conditions of this Agreement, Optioryx shall provide the Software to the Client substantially in accordance with the Documentation and with reasonable skill and care.
7.2. Optioryx shall use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that Optioryx’s obligations are fulfilled in accordance with the Agreement.
7.3. Optioryx shall perform this Agreement in compliance with all applicable laws and regulations.
7.4. Optioryx shall use commercially reasonable efforts to ensure at least 99.5% uptime of the Software.
7.5. However, notwithstanding the foregoing, the Client recognizes that Optioryx may interrupt the Software (in whole or in part) for maintenance work purposes, including both scheduled maintenance work and unscheduled work in the event of an emergency. Optioryx undertakes to have the scheduled maintenance work to be executed outside of the Business Days or during Business Days but outside Business Hours, and to notify such works at least 48 hours in advance and shall use commercially reasonable efforts to notify the Client of any unscheduled works as soon as reasonably practicable.
7.6. Optioryx shall not have the obligation to (continue to) provide the Software in case of any (suspected) (i) use of the Software by the Client (its Affiliates, his Representatives and/or its Affiliates’ Representatives) contrary to the Agreement or Optioryx's instructions, or (ii) unauthorized modification or alteration of the Software by any party other than Optioryx (or Optioryx's duly authorized contractors or agents). In addition, Optioryx shall be relieved of its obligations to perform the Agreement for the time that it is prevented from performing the Agreement as a result of any failure or delay by Client to perform its obligations under the Agreement.
7.7. Unless expressly agreed otherwise in the Commercial Proposal, Optioryx shall ensure a back-up of all Data (hereinafter a “Back-up”) at least every twenty-four (24) hours which will be kept at least until the next Back-up.
7.8. Optioryx shall ensure compatibility of the Software with at least the following browsers: Chrome, Edge, Firefox and Safari.
8. Client’s obligations in relation to the Software
8.1. Client shall provide Optioryx with all necessary co-operation and with access to all information as may be required by Optioryx for the performance of the Agreement, shall maintain all necessary consents and permissions necessary for Optioryx (and its contractors, agents or Representatives) to perform its obligations under the Agreement and shall perform its obligations under the Agreement in a timely and efficient manner, failing which Optiorymay adjust any agreed upon timetable or delivery schedule as reasonably necessary.
8.2. Client shall ensure that its network, file and web transfer protocols and message structures and any other systems, as may be used in relation to the Software, comply with the required specifications provided and amended by Optioryx from time to time.
8.3. Client shall abide by all applicable local, state, national and foreign laws, treaties and regulations with respect to its activities under the Agreement, including those related to data privacy, international communications and the transmission of technical or personal data.
8.4. Client shall not and guarantees that its Users shall not (i) interfere with or disrupt the integrity or performance of the Software or any part thereof or the data contained therein or (ii) attempt to gain unauthorized access to the Software or its related systems or networks. In such events Optioryx reserves the right, without detriment to its right to claim compensation for losses, damages and costs effectively suffered, to disable without prior notification Client's access to the Software.
8.5. Client shall be responsible and liable for all activity occurring under its Client account,
including, among others, for all actions of his Representatives.
8.6. Client shall ensure at all times that the Software is not used or accessed by persons other than his Users, and that his Users’ account is not shared or used by more than one person designated as User. Client shall not, and warrants that his Representatives shall not, provide false identity information to gain access to the Software or impersonate another person. In the event of any noticed unauthorized access or use, the Client shall promptly notify Optioryx thereof.
8.7. Client represents that his Representatives, and in particular his Users, shall at all times fully comply with the Agreement.
8.8. If Optioryx has strong indications that the Client is not meeting its obligations under this Agreement, the Client shall provide, at first request, within a reasonable time and without charge, any documents and information to suggest that it has fully complied with its obligations.
If Optioryx considers that the information provided does not establish compliance by the Client with its obligations, or if the Client does not provide it within a reasonable time, Optioryx has the right to audit (or to commission a third party bound by a duty of confidentiality to do it) all relevant documents belonging to the Client. Unless it is an exceptional and urgent situation, the audit will take place only during normal working hours and at least five (5) days working days after sending a notification. The Client will make every effort to ensure the audit can proceed as efficiently as possible and is committed to work
with Optioryx or the third party commissioned by Optioryx. If the audit shows that the Client does not meet all its contractual obligations, the latter undertakes to, immediately and at its own expense, take all necessary measures to remedy this as quickly as possible, without prejudice to the right of Optioryx to terminate the Agreement. In such a case, the Client will compensate Optioryx for the audit fees, without prejudice to any additional damages resulting from the established breach.
9. Access to the Software and Products
9.1. After the signing of the Commercial Proposal, Optioryx shall allow the Client to access the relevant Products. Depending on the Product, such access may be provided by allowing the Client and his Users to register through a webapp, by integrating the Client’s WMS systems with the Software through an API and/or by registering the Client and his Users on Optioryx’s platform.
9.2. Depending on the terms and conditions of each Product, as further detailed in the Commercial Proposal, the number and the rights of the Users and/or the usage of the Product may be limited in accordance with the pricing bundle chosen by the Client.
9.3. The Client may nominate Account Administrators who shall have access to the Client’s account management and may create Users and award rights to them. If applicable, the Account Administrators shall be Optioryx’s single point of contact with the Client and all
communications done by Optioryx to the Account Administrators shall be deemed to have been done to Client. An User shall have access to the Software in accordance with the rights awarded to him by the Account Administrators on the Client’s behalf.
9.4. If the Software does not comply with the Documentation or the agreed-upon specifications set forth in the Commercial Proposal, Client's sole and exclusive remedy shall be, at Optioryx’s discretion, the correction of the breach by Optioryx or the provision of the Client by Optioryx with an alternative means of accomplishing the desired performance, in each case within five (5) Business Days following receipt of the Client’s written compliant of non-compliance. If there is no written complaint within five (5) Business Days following receipt of the first access to the relevant Products, the Client shall be deemed to have accepted the Software and confirmed its conformity with the Documentation and the agreed-upon specifications.
10. Hosting
10.1. Optioryx is committed to host the Software, either through its own servers or through a professional third-party provider.
10.2. Optioryx’s current third-party hosting provider is listed in Annex 3 to this Agreement. Optioryx reserves the right to change the hosting provider at any time, in which case Optioryx shall promptly notify the Client of such change.
11. Documentation
11.1. Optioryx shall provide appropriate Documentation allowing the Client and its Users to understand the operation of the Software and be able to use it. Optioryx reserves the right to update the Documentation from time to time and shall notify the Client of any such changes.
11.2. The Client may use the Documentation, or any part of it, for security, test and back-up purposes.
12. Support and maintenance
12.1. In consideration of the timely payment of the entire Fees in accordance with Article 17, the Services include (i) maintenance activities required to ensure the availability of the Software in accordance with the Agreement and (ii) technical troubleshooting support services to the Client. These Services shall be Belgium-based and shall be provided on Business Days during Business Hours.
12.2. Without prejudice to Article 12.1, in relation to troubleshooting, Optioryx shall examine any incident in relation to the performance of the Software as notified to Optioryx by the Client. The Client shall provide Optioryx in writing with all information required for Optioryx to understand and assess the issue, including date and timing of the occurrence of the issue and all data required to reproduce it.
12.3. Optioryx shall have no obligation to correct the incident if it is not able to replicate the incident and/or the incident is (a) not caused by malfunctioning of the Software or (b) is caused by (i) the use of the Software contrary to the Agreement, (ii) modification of the Software without Optioryx’s prior consent, (iii) the use of incorrect data or data format, (iv) disruption or unavailability of external services (including, but not limited to, third party validation services or network disruptions), (v) disruption or unavailability of networks, internet, file transfer mechanisms, etc. or (vi) the Client’s use of the Software with any incompatible or unauthorized products or services (an “Unconfirmed Incident”).
12.4. In case of an Unconfirmed Incident, if the Client so requests, Optioryx may advise the Client on and assist the Client with resolving such incident. Any work performed by Optioryx for investigation of Unconfirmed Incidents and the advice and assistance in relation thereto shall be invoiced to the Client on a time and materials basis at Optioryx's then standard fee rates.
12.5. Without prejudice to Article 12.1, other than Unconfirmed Incidents shall be handled by Optioryx in accordance with the following priority schedule calculated from receipt of all required information pursuant to Article 12.2:
(i) Priority 1: Downtime of the entire Software in relation to a Product, security violation, loss of critical functionality having major impact on the relevant Product: support requests shall be responded to within four (4) Business Hours.
(ii) Priority 2: Loss of certain functionalities with no critical impact on the relevant Product: support requests shall be responded to within one (1) Business Days.
(iii) Priority 3: Minor impact on the relevant Product: support requests shall be responded to within three (3) Business Days.
13. Additional Services
13.1. If applicable, Optioryx undertakes to provide the Additional Services specifically included in the Commercial Proposal in accordance with the terms thereof.
13.2. For the avoidance of doubt, any provision of customized or bespoke development on behalf of the Client is excluded from this Agreement, unless agreed otherwise in writing between the Parties as an Additional Service.
14. Data, Use of Data and Data protection in general
14.1. It is understood that the (performance of the) Agreement does not result and shall not be
construed to result in any change in the ownership of Data.
14.2. The Client shall retain the ownership of Client Data and Optioryx shall retain the ownership of all Optioryx Data.
14.3. The Client shall be responsible and liable for the accuracy, quality, integrity, legality, reliability, appropriateness and compliance with any third party Intellectual Property Rights or other proprietary rights of all Client Data and warrants and represents that it shall obtain prior to the communication of Client Data to Optioryx, or the storage of Client Data on or the use of Client Data on Optioryx’s systems, any and all required third party authorizations and fulfil any and all required legal conditions and obligations (including, without being limited to, EU Data Protection Laws) and industry standards that must be obtained or fulfilled for the processing, storage, transfer and in general, any use, of Client Data under the Agreement.
14.4. Client acknowledges and agrees that: (i) Optioryx's Representatives may have access to necessary Client's Data in order to perform their obligations under the Agreement;
(ii) Optioryx may further use and disclose Client Data that Optioryx collects, obtains, retrieves or otherwise captures under the Agreement to the extent required for the execution of the Agreement as well as, on the condition that Optioryx does so in aggregate and non-Client identifiable and non-person identifiable formats, for other purposes (including, without limitation, to create aggregated statistics on the use of its Software for internal use (e.g. improving its services) or for communication purposes); (iii) the Client Data may be transferred or stored within the European Economic Area and/or outside of the European Economic Area in accordance with applicable legislation; (iv) Optioryx shall be entitled to keep records of Client Data as necessary to comply with any applicable laws and regulations and for its business records, subject to its confidentiality obligations pursuant to this Agreement.
14.5. In order to prevent Data loss, Optioryx shall maintain the back-up strategy as set out in Article 7.7 which it may amend in its sole discretion from time to time. Optioryx shall inform Client about any change in the back-up strategy or upon Client’s request.
15. Personal Data
15.1. For the purposes of this Article the terms, “Third Country”, “Member State”, “Controller”, “Processor”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR and shall be construed accordingly.
15.2. Client (being the Controller) appoints Optioryx as a Processor to process the Personal Data that is being provided to Optioryx pursuant to this Agreement and the use of the Software. Each Party shall comply with the obligations that apply to it under Applicable Data Protection Law.
15.3. Client shall ensure that Client is entitled to transfer the personal data to Optioryx and to use, store, transfer or otherwise process it on its systems, so that Optioryx may lawfully use, store, transfer and otherwise process the Personal Data in accordance with the Agreement on Client's behalf.
15.4. Annex 1 to this Agreement, as may be amended or supplemented from time to time, sets out certain information regarding Optioryx's Processing of Personal Data as required by article 28 GDPR.
15.5. The Client shall not disclose (and shall not permit any Data Subject to disclose) any special categories of Personal Data to Optioryx or any category of Personal Data that is not strictly necessary in the context of the use of the Software.
15.6. Optioryx shall process the Personal Data as a Processor as necessary to perform its obligations under this Agreement and strictly in accordance with the documented instructions of the Client (the “Permitted Purpose”), except where otherwise required by any EU (or any EU Member State) law applicable to the Client. In no event shall Optioryx process the Personal Data for its own purposes or those of any third party, except that Optioryx shall be authorized to create aggregated and anonymized statistics on the use of its Software for internal use (e.g. improving its services) or for communication purposes. These statistics shall not contain any Personal Data or company Personal Data.
15.7. Optioryx shall not transfer the Personal Data (nor permit the Personal Data to be transferred) outside of the European Economic Area (“EEA”) unless (i) it has obtained Client’s prior written consent; or (ii) it takes such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law. Such measures may include (without limitation) transferring the Personal Data to a recipient in a country that the European Commission has decided provides adequate protection for personal data, to a recipient that has achieved binding corporate rules authorization in accordance with Applicable Data Protection Law, or to a recipient that has executed standard contractual clauses adopted or approved by the European Commission.
15.8. Optioryx shall ensure that any person that it authorizes to process the Personal (including Optioryx’s staff, agents and subcontractors) (an “Authorized Person”) shall be subject to a strict duty of confidentiality (whether a contractual duty or a statutory duty), and shall not permit any person to process the Personal Data who is not under such a duty of confidentiality. Optioryx shall ensure that all Authorized Persons process the Data only as necessary for the Permitted Purpose.
15.9. Optioryx shall implement appropriate technical and organizational measures as defined in Annex 2 (which may be updated from time to time by Optioryx) to protect the Personal Data (i) from accidental or unlawful destruction, and (ii) loss, alteration, unauthorized disclosure of, or access to the Data (a “Security Incident”). Such measures shall have regard to the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.
15.10. The Client consents to Optioryx engaging third party sub-processors to process the Personal Data for the Permitted Purpose provided that: (i) Optioryx provides at least 30 days’ prior notice (the “Notice Period”) of the addition or removal of any sub-processor (including details
of the processing it performs or will perform), which may be given by posting details of such addition or removal in a word file; (ii) Optioryx imposes data protection terms on any sub-processor it appoints that require it to protect the Personal Data to the standard required by Applicable Data Protection Law; and (iii) Optioryx remains liable for any breach of this Article 15 that is caused by an act, error or omission of its sub-processor. During the Notice Period, the Client may object against Optioryx’s appointment or replacement of a sub-
processor, provided such objection is based only on serious and legitimate grounds relating directly to data protection law. In such event, Optioryx will either not appoint or replace the sub-processor or, if this is not possible, Customer may suspend or terminate this Agreement (without prejudice to any Fees incurred by the Client prior to suspension or termination). The current list of sub-processors is included in Annex 3 hereto, which may be updated from time to time by Optioryx.
15.11. Optioryx shall provide all reasonable and timely assistance to the Client to enable the Client to respond to: (i) any request from a data subject to exercise any of its rights under Applicable Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable); and (ii) any other correspondence, enquiry or complaint received from a data subject, regulator or other third party in connection with the processing of the Personal Data. In the event that any such request, correspondence, enquiry or complaint is made directly to Optioryx, Optioryx shall promptly inform the Client providing full details of the same.
15.12. If Optioryx believes or becomes aware that its processing of the Personal Data is likely to result in a high risk to the data protection rights and freedoms of data subjects, it shall promptly inform the Client and provide the Client with all such reasonable and timely assistance as the Client may require in order to conduct a data protection impact assessment and, if necessary, consult with its relevant data protection authority.
15.13. Upon becoming aware of a Security Incident, Optioryx shall inform the Client without undue delay and shall provide all such timely information and cooperation as the Client may require in order for the Client to fulfil its data breach reporting obligations under (and in accordance with the timescales required by) Applicable Data Protection Law. Optioryx shall further take all such measures and actions as are necessary to remedy or mitigate the effects of the Security Incident and shall keep the Client of all developments in connection with the Security Incident.
15.14. Upon termination or expiry of this Agreement, Optioryx shall (at the Client’s election) destroy or return to the Client all Personal Data (including all copies of the Personal Data) in its possession or control (including any Personal Data subcontracted to a third party for processing). This requirement shall not apply to the extent that Optioryx is required by any EU (or any EU Member State) law to retain some or all of the Personal Data, in which event Optioryx shall isolate and protect the Personal Data from any further processing except to the extent required by such law.
15.15. For the avoidance of any doubt, and as set out above, it is agreed between the Parties that Client acts as the Controller and Optioryx as the Processor with respect to the Processing of Personal Data that takes place through Optioryx’s systems. However, without prejudice to
the above, by accessing, subscribing to and using the Software, the Account Administrators and Users (the “Individuals”) accept to provide Optioryx with certain Personal Data relating to them, such as first and last names, email address, professional telephone number, choice of language, copy of her/his identity card or other identification document, login password, access rights and log files (the “Individuals’ Personal Data”). The Individuals acknowledge, and where necessary, agree that the Individuals’ Personal Data may be collected and processed by Optioryx as Controller for the purposes of creating, identifying, verifying and managing a Client account, setting the preferred language, controlling Client’s Account Administrators’ and Users’ access rights, contacting and answering Client’s Account Administrators’ and Users’ queries, correcting assignments of access and functions, identifying use/misuse of the Software and, more generally, for the purpose of providing the Software and associated Services. The Individuals are entitled, subject to the conditions and limitations of the EU Data Protection Laws, to access the Personal Data relating to them, as collected and processed by Optioryx as Controller, and request the rectification or deletion of the Individual’s Personal Data if it is incorrect or unnecessary for Optioryx to Process. Within the limitations set by GDPR, Individuals also have a right to data portability and to object to certain Processing of their Personal Data. The Individual may exercise these rights by sending an email to Optioryx at info@optioryx.com. A proof of identity may be requested by Optioryx in order to establish that the Individual making the said request is the concerned Data Subject. Individuals also have the right to reach out to the supervisory authority (for Belgium: the Belgian Data Protection Authority) to obtain further information or to file a complaint. Further information about the Processing of Personal Data by Optioryx as Controller is included in Optioryx’s privacy policy, which is communicated to all Account Administrators and Users through Optioryx’s systems, available upon simple request, and also permanently available on Optioryx’s website at https://www.optioryx.com/privacy.
16. Third Party Interactions
16.1. The Parties are aware that the successful implementation of the Software depends not only on the effective cooperation between themselves but also with other providers contracted by the Client to perform services outside the scope of this Agreement. Where the Client has contracted third parties to providespecific services which interface in any way with the Software provided by Optioryx, both Parties shall collaborate constructively to ensure that the agreed quality of service can be achieved, and to ensure effective interfaces between Optioryx, the Client, and the Client’s other service providers, so that any disagreements or issues relating to interfaces or the demarcation of responsibilities can be resolved in a spirit of partnership. To this end, the Client shall exert its influence on the third parties it has contracted, and secure their full and smooth cooperation with Optioryx by means of suitable agreements, arrangements, or any other means. Should coordination with third parties require additional effort beyond the scope defined in the Commercial Proposal, and such additional efforts have been duly identified up front by Optioryx and authorized by the Client, Optioryx is entitled to demand additional compensation on the basis of the prices given in the particular Commercial Proposal or Optioryx's then standard fee rates.
16.2. Optioryx does not endorse any third-party websites, services or products even if they are linked through the Software. Any such links are provided to Client only for convenience. Optioryx, its Affiliates and its Representatives shall not be liable for any content, products or other materials available through such links.
16.3. Client recognizes that both the provision and the use of the Software require the use of the internet and of means of electronic communication and may require the availability and use of certain ancillary software, hardware or services provided by third parties. Optioryx shall not be liable for any delays or failures resulting from the use of the internet and of means of electronic communication nor for the (continuous or interrupted) availability of the said software, hardware and services. Optioryx may cease, interrupt or suspend the Service (in part or in whole), without Client having any right to refund, credit or other compensation, if the third-party software, hardware or services on which the Service is dependent are no longer available, suspended, interrupted or do not present, in Optioryx’s discretion, the required level of security.
16.4. Client also recognizes that the provision of the said third party software, hardware or services may be dependent on Client’s agreement with third party’s licenses and authorizations subject to terms and conditions of that third party. Such third-party licenses and authorizations do not fall under Optioryx’s responsibility. Optioryx does not warrant that third parties shall grant such license to Client.
16.5. If required for the use of the Software, Client shall obtain such third-party licenses and authorizations and shall fully comply with them at his own cost. Client shall indemnify, defend and hold Optioryx, its Affiliates and its Representatives harmless from and against any damage, cost, claim, demand, lawsuit, cause of action or loss of any nature whatsoever, suffered or incurred by any of them, arising out of or in connection with the infringement by Client of any third-party license or authorization.
16.6. Optioryx shall use best endeavors to preserve the stability of any APIs provided by Optioryx. Client however acknowledges that external changes (including, but not limited to, regulations, standards, technology, third party software, etc.) may require Optioryx to bring modifications to the available APIs. Optioryx reserves the right to adapt the APIs at its sole discretion without being backwards compatible, and Client accepts this right.
16.7. Optioryx shall not be held liable, neither contractually nor extra-contractually, for discontinuing the maintenance of an older API version three (3) months after communicating any changes on the older version.
17. Payment of Fees
17.1. Client shall pay the License Fee to Optioryx for the granting of the License by Optioryx to Client in accordance with Article 5 and Article 6.
17.2. It is understood that any license fees published by Optioryx on its website or otherwise are non-binding.
17.3. Optioryx reserves the right to modify the License Fee at any time provided that it has a valid reason for doing so and notifies this to Client with at least thirty (30) days prior notice. For Licenses that are then current, the modified fee shall apply from the first renewal of the License after the said term of thirty (30) days.
17.4. The Parties recognize that the following non-exhaustive list of reasons are considered to be valid to justify a modification of the License Fee:
(i) an increase in the prices of Optioryx’s suppliers; (ii) a change to a legislative framework; (iii) an extension to or improvement of the Software and/or associated Services.
17.5. Unless agreed otherwise in the Commercial Proposal, the Client shall pay the agreed upon Base License Fee on a yearly basis in advance, being for the first time before the start of the Initial Term and upon renewal of the Initial Term before the start of each subsequent Renewal Term.
17.6. In relation to any License Fees that are usage-based, within twenty (20) Business Days following each payment cycle, Optioryx will provide the Client with the details of the actual usage. In case the actual usage exceeds the agreed-upon usage, the excess usage will be invoiced by Optioryx within ten (10) Business Days following the sharing of such information based on the applicable terms for such excess usage. If the excess usage is considered consistent, Optioryx may adjust the Base License Fee upon the start of each payment cycle.
17.7. Any Service Fee for an Additional Service shall be charged on an as-quoted basis and in accordance with the payment schedule agreed in the Commercial Proposal.
17.8. The Fees are due regardless of whether Client, its Account Administrators or its Users effectively use the Software. The payment obligation is non-cancellable and irrevocable and the amounts paid are in any case non-refundable.
17.9. On the anniversary date of the License, the corresponding Fee shall be updated automatically, without any notice being required, by using the following formula: Tn = To x (0.2 + 0.8 (Sn/So)) (i) “Tn” being the revised Fee, (ii) “To” being the original Fee, (iii) “Sn” being the official Belgian Consumer Price Index for the month preceding the date on which the Fee is revised and (iv) “So” being the official Belgian Consumer Price Index for the month preceding the date
on which the original Fee was agreed.
18. Billing and Payments
18.1. The Fees and other charges shall be invoiced to Client by Optioryx and shall be paid in accordance with Optioryx’s invoice in freely available funds and in Euro, without any deduction for expenses, taxes, levies, fees, duties and the like which shall be borne by Client.
18.2. Any prices specified in the Commercial Proposal are exclusive of VAT, which shall be added to the invoice where appliable.
18.3. Client must make all contestations with regard to Optioryx invoices at the latest within ten (10) days of the invoice date, failing which the invoice is deemed to be accepted and due by Client.
18.4. Payments of uncontested invoices are due within thirty (30) days of the invoice date.
18.5. Optioryx shall have no obligation to start (or to continue) the License or the Services prior to full payment by Client of the entire corresponding Fees.
18.6. If Client fails to make a timely payment of an invoice, Client shall be liable for payment, without prior notice being required, from the maturity date of the invoice and until payment in full of the invoice, to payment of default interest at a rate of twelve (12) months EURIBOR
(floored at zero) + five (5)% as well as to a compensation for administrative and debt collection expenses equal to ten (10)% of the unpaid amount, without detriment to Optioryx's right to compensation for losses, damages and costs effectively suffered as a result of Client’s late payment.
18.7. If Client fails to make payment in due time or if Optioryx has reasons to believe that a future payment shall not be made (in full or) in due time, then, without prior written notice being required, all outstanding amounts due by Client (including unmatured invoices) shall immediately become due and Optioryx shall have the right to suspend, interrupt or terminate the License or any Services, until, to Optioryx’s sole discretion, Client fully complies with its payment obligations and/or new terms of payment are agreed between Parties, without detriment to Optioryx’s rights with regard to compensation for losses, damages and costs suffered as a result of Client’s failure. Despite the suspension, interruption or termination of the License or the Services, all Fees according to this Agreement and billing modalities chosen by Client remain due. Optioryx reserves the right to charge a fee for the reinstatement of the License and/or Services.
19. Term and Termination
19.1. The Agreement enters into force on the Effective Date and shall remain in force for the period indicated in the Commercial Proposal (or, in the absence thereof, for a one-year period) (the “Initial Term”).
19.2. Upon the expiry of the Initial Term, the Agreement shall automatically renew against the Fee, as the case may be, modified in accordance to Article 17.3, for successive terms of one (1) year (hereinafter a “Renewal Term”) unless a Party terminates the Agreement by a written notice sent to the other Party in accordance with Article 26.1 at the latest three (3) months prior to the expiry date of the then current term.
19.3. Without prejudice to Optioryx’s right to compensation for losses, damages and costs suffered and without prejudice to other provisions of the Agreement, Optioryx may terminate the Agreement in its entirety and any and all License(s) granted thereunder at any time during the term thereof by a notice sent to the Client in accordance with Article 26.1 when: (i) Client fails to observe or breaches any of its material covenants, agreements or obligations under the Agreement in any material respect, provided that such breach continues for a period of fifteen (15) days after receipt by Client of notice of default specifying the nature of the breach and requesting to cure it. Without being limited thereto, the following obligations constitute such material breach: unauthorized use of the Software; breach of Client’s responsibilities in relation to use of the Software, non-payment of fees; breach of Client’s warranties; breach of Optioryx’s Intellectual Property or breach of Client’s confidentiality obligations and breach of non-enticement obligations; or
(ii) Client makes any assignment for the benefit of creditors or files a petition in bankruptcy or is adjudged bankrupt or becomes insolvent or generally unable to pay its debts when due or is placed in the hands of a receiver or if the equivalent of any such proceedings occurs; or (iii) the Force Majeure as determined in Article 26.5 of this Agreement has subsisted during at least six (6) consequential months.
19.4. Upon termination of the Agreement in its entirety for reason of discontinuity of Optioryx, Client is entitled to get access to its Client Data and the related passwords and encryption keys.
20. Consequences of termination or expiry of the Agreement
20.1. Any provision of the Agreement expressly or implicitly intended to survive its termination or expiry, whatever the cause, shall survive as provided and the termination or expiry shall not affect any obligation to pay any amount due under the Agreement whilst it was in effect.
20.2. Upon termination of this Agreement: (i) all Licenses granted under this Agreement shall immediately terminate; (ii) Client shall return to Optioryx within five (5) Business Days all latter’s Confidential Information and all copies and embodiments thereof that is in Client’s possession and Optioryx is entitled to conserve all Client Data for a period of twelve (12) months following the date of termination of the Agreement.
Upon termination of this conservation period, Optioryx will permanently delete and/or discard all Client Data, statistical and anonymized behavioral Client Data excluded, unless Optioryx is bound by a legal obligation to conserve Client Data beyond the said conservation period; (iii) Optioryx shall deliver to Client the then most recent Back-Up of Client Data in a format decided by Optioryx, provided that Client has, at that time, paid all Fees outstanding under the Agreement and/or resulting from termination or expiry (whether or not due at the date of termination or expiry) of the Agreement, and against payment by Client of all expenses incurred by Optioryx in returning the Client Data;
(iv) Optioryx shall be entitled to recover possession from Client of all copies of the Documentation and related information supplied to or provided by Client to third parties and in existence at the time of expiry or termination or require Client to destroy the same and certify on oath that it has done so.
21. Warranties
21.1. Without detriment to other warranties and representations provided under the Agreement, the Parties provide the following warranties and representations:
Client represents and warrants that: (i) it has the legal power and authority to enter into the Agreement; and (ii) its Representatives (including the Account Administrators and the Users) shall and are duly authorized to act on its behalf and under his sole responsibility and they shall at all time act in accordance with the Agreement. Optioryx represents and warrants that: (i) it has the legal power and authority to enter into the Agreement; (ii) it shall provide the Software and the associated Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (iii) to the best of its knowledge it has all the rights in relation to the Software that are necessary to grant all the rights granted hereunder, including the License, and in accordance with the terms of the Agreement.
21.2. It is understood that Optioryx's performance under this Agreement is an obligation of means and that (any part of) the Software is provided on an “as is” basis.
21.3. Except as expressly provided herein, Optioryx hereby disclaims all other conditions, representations and warranties, whether express, implied, statutory or otherwise, to the maximum extent permitted by applicable law. Without limiting the foregoing, as such and among others:
(i) any service or information provided by Optioryx under the Agreement is provided without any warranties or representations, including, without limitation, warranties of fitness for a particular purpose, performance, non- infringement, timeliness, reliability, availability, accuracy, quality or completeness of the Software, the Products or any data provided under the Agreement;
(ii) Optioryx does not warrant that the Software shall be uninterrupted, error-free or that it shall meet Client’s, its Affiliates’, its Representatives’, its Affiliates’ Representatives or any other party’s specific needs, nor that a service or information provided by Optioryx under the Agreement shall be free from viruses, harmful components, errors or defects (nor that the said shall be corrected), nor that the Software or the Products shall operate in combination with any other service, software, hardware, system or data.
22. Liability
22.1. Each Party shall indemnify and hold the other Party harmless from and against any and all claims, costs, damages, losses, liabilities and expenses arising out of or in connection with the former’s (its Affiliates’ or their Representatives’) breach of the Agreement, including its warranties thereunder. The same shall apply to direct infringement attributable to a Party of a third party Intellectual Property Rights.
22.2. In the event the Software in Optioryx’s opinion is likely to be or to become the subject of a claim by a third party (a “Third Party Claim”), Optioryx shall have the right at its discretion (i) to procure for Client the right to continue using the Software as provided in this Agreement or (ii) to use reasonable efforts to replace or modify the (alleged) infringing part of the Software or to provide a work around solution and/or service that is substantially similar to the Software so that it is no longer subject to Third Party Claim or (iii) to terminate (part of) the License.
22.3. The foregoing states the entire liability and obligation of Optioryx and the sole remedy of Client with respect to any Third Party Claim.
22.4. In the event of a Third Party Claim against Optioryx for reason of infringement of that party’s right (including the Intellectual Property Rights of such party) as a result of infringement by Client of its warranties and/or obligations under the Agreement, Client shall defend and hold Optioryx harmless against the said claim if (i) the same is not solely attributable to the Software as such, (ii) Client is given prompt notice of any such claim, (iii) Optioryx provides reasonable co-operation to Client in the defense and settlement of such claim, at Client's expense and (iv) Client is given sole authority to defend or settle the claim.
22.5. Notwithstanding any other provision of this Agreement, the total aggregate liability of Optioryx shall in any event be limited to (a) when the claim relates to the Software with respect to (a) Product(s), the License Fee paid by Client for the License in relation to the relevant Product(s) for the past 12 months or (b) when the claim relates to an Additional Service, the paid or payable fee for that Additional Service for the past 12 months.
22.6. Nothing in the Agreement excludes the liability of a Party for death or personal injury caused by that Party or for fraud or fraudulent misrepresentation attributable to it.
22.7. Each Party shall have a duty to mitigate damages for which the other Party is liable.
22.8. The Parties agree that the remedies set forth in this Article 22 shall be the sole and exclusive remedy with respect to any and all claims (whether contractual or non-contractual) relating, directly or indirectly, to this Agreement. Without limiting the generality of the foregoing, the Parties agree and undertake with each other that, to the fullest extent permitted under applicable law, neither it nor any of its Affiliates has any rights or causes of action against, and will waive and shall not make any contractual or non-contractual claim against, any Representative of the other Party or any its Affiliates. The provisions of this Article 22.8 inure to the benefit of the Representatives of the other Party or any its Affiliates (“beding ten behoeve van een derde” / “stipulation pour autrui”) and may be enforced directly by any of them as a third-party beneficiary.
23. Intellectual Property
23.1. The Agreement does not intend and shall not bring or be construed to bring any change to the propriety of or licenses to any Intellectual Property Rights of Optioryx and Client shall not, as a result of the Agreement, be entitled to any claim with regard to any Intellectual Property Rights to which, prior to the signing of the Agreement, it was not entitled.
23.2. Optioryx is and remains the exclusive owner of all Intellectual Property Rights relating to its products and services including, but not limited to, the Intellectual Property that underlies or is incorporated, included or used in the Software, the Products and the Services, including the Documentation. All rights, titles and interests in such Intellectual Property shall remain vested in Optioryx.
23.3. If the Agreement awards to Client certain rights or licenses to Optioryx’s Intellectual Property or if the purpose of the Agreement requires such use, it is understood that such rights are awarded only for the term of the License and that Client's sole right in relation to Optioryx’s Intellectual Property are at all time restricted to the use thereof to the extent that they are incorporated in the License under the terms and conditions set out herein.
23.4. Without limiting the scope of other provisions of the Agreement and of License limitations set forth herein, Client shall not, without prior written authorization of Optioryx, modify or make derivative works of the Software. In the event that, notwithstanding any prohibition thereto, Client modifies or creates derivative works of the Software, Optioryx shall own all right, title and interest, including any Intellectual Property Rights, in and to such modifications and derivatives and Client hereby assigns any such rights, title and interest in such modifications and derivatives to Optioryx at no cost to the latter. Client represents and warrants that it has the authority to assign full title to these modifications and derivative works and the Intellectual Property Rights pertaining thereto in accordance with the terms and conditions of the Agreement.
23.5. Optioryx is entitled to use Client's name or logo (or the name or logo of any other member of Client's Group or Client’s commercial name or logo) in any advertising or promotional media in the course of performance of this Agreement or thereafter.
24. Confidentiality
24.1. The Parties acknowledge that under the Agreement they shall disclose to each other information that is of highly sensitive nature and is valuable to the disclosing Party (“Disclosing Party”), that must and shall remain the Disclosing Party’s exclusive property and must at all times be kept secret and confidential by the receiving Party (“Receiving Party”).
24.2. Unless the Receiving Party obtains explicit prior written authorization from the Disclosing Party, the former shall not use the confidential information disclosed by the latter for any other purpose than strictly necessary for the due performance of the Agreement.
24.3. Notwithstanding Article 24.2, the Receiving Party shall only be permitted to disclose confidential information if and to the extent that:
(i) it subsequent to its disclosure hereunder becomes publicly available without any violation of this Framework Agreement by the Receiving Party or any of its Affiliates or Representatives; (ii) is required by the applicable law or regulation or pursuant to a court or administrative order issued by a court of competent jurisdiction or by a governmental authority that is lawfully entitled to require such disclosure, provided, however, that the Receiving Party shall prior to any disclosure notify and fully inform the Disclosing Party of such obligation to disclose and demonstrate the existence and the extent of the requirement to disclose in order to allow the Disclosing Party to assess and, as a case may be, to contest it; or (iii) to its Affiliates and Representatives, provided, however, that the Receiving Party shall do this only (x) on a need-to know basis for the performance of the Agreement and (y) if they are bound by confidentiality obligations that are at least as restrictive as those set forth in this Article 24.
24.4. The provisions of this Article 24 shall remain in force during five (5) years after the termination or expiry of the Agreement.
25. Non-enticement
For the entire duration of the Agreement and for one (1) year following termination or expiry of the Agreement, Client, its Affiliates, its Representatives’ or its Affiliates’ Representatives shall not (attempt to) hire, offer to hire or otherwise entice away any Representative of Optioryx or of its Affiliates whether directly or indirectly, provided that nothing in this Agreement shall prevent Client, its Affiliates, its Representatives’ or its Affiliates’ Representatives to hire any Representative of Optioryx or of its Affiliates who (i) approached Client, its Affiliates, its Representatives’ or its Affiliates’ Representatives on an unsolicited basis or (ii) responded through a bona fide general recruitment campaign that is not specifically aimed at Representatives of Optioryx.
26. Miscellaneous
26.1. Notices – Parties may give any notice to each other by means of email with receipt confirmation or registered letter. If to Client, the (email) address that is on record in Optioryx's account information shall be used. If to Optioryx, emails have to be sent to: bart.gadeyne@optioryx.com and gilles.vandewiele@optioryx.com. Such notice shall be deemed to have been given upon the expiration of 48 hours after sending by registered letter and of 12 hours if sent by email.
26.2. Severability – If any provision of the Agreement is invalid or unenforceable, this shall not affect the remaining provisions thereof which shall remain in effect. The invalid or unenforceable provision shall be deemed to be replaced by an alternative valid and enforceable provision that is as closely in line with the Parties’ original intent as allowed under the applicable law.
26.3. Entire Agreement – The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter including, but not limited to, any prior non-disclosure or confidentiality agreement (including, without limitation, general terms and conditions of the Client and prior drafts of the Commercial Proposal). No amendment of the Agreement is binding unless executed in writing and signed by duly authorized representatives of the Parties.
26.4. No Waiver – The election of any one or more remedies by either Party shall not constitute a waiver by such Party of the right to pursue any other available remedies. No failure by either Party to exercise and no delay by either Party in exercising (in whole or in part), any right in relation to the Agreement shall operate as a waiver of any such right.
26.5. Force Majeure – Notwithstanding any other provisions of this Agreement, if, for any reason beyond the reasonable control of a Party (including, without limitation, acts of God, wars, civil wars, natural disasters, acts of terror, epidemics, quarantine, strikes, riots, fires, orders by any government department, council or other constituted body, power outages, failure of telecommunications lines and external attacks on IT systems that cannot be prevented by reasonable technical and organizational measures based on proven, state-of-the-art methods) such Party is unable to perform in whole or in part its obligations under the Agreement, such Party shall be relieved of those obligations to the extent it is unable to perform and such inability to perform, so caused, shall not make such Party liable to the other Party on the condition that the Party who is unable to perform notified the other Party of such inability within seven (7) days of the onset of such inability.
26.6. Assignment – Client shall not assign or otherwise transfer the Agreement in whole or in part or any of its rights and obligations under the Agreement without prior written consent of Optioryx. The Agreement shall be binding on and inure to the benefit of the Parties and their respective successors and permitted assigns.
26.7. Third Party Beneficiaries – Nothing in the Agreement is intended to confer any benefits on any person other than the Parties or their respective successors or permitted assigns.
26.8. Injunctive Relief – Since a breach of any part of the Agreement by Client, in particular the provisions governing Intellectual Property Rights, may cause irreparable harm to Optioryx for which monetary damages are inadequate, Optioryx may seek immediate injunctive and/or other equitable relief should such a breach occur.
26.9. Governing Law and Dispute Resolution – The Agreement shall be governed by and construed under the laws of Belgium (without application of its choice of law provisions). All disputes in connection with the existence, validity, construction, performance, non-performance, breach or termination of the Agreement (or any terms thereof) that are not settled amicably shall be settled exclusively by the courts of Ghent, Belgium.
For the purpose of this Agreement, the terms defined in this Article shall have the meanings set forth below. Where the context requires, the singular shall include the plural and vice versa. “Agreement” means, unless the context requires otherwise, these general terms and conditions, including the Commercial Proposal and all Annexes (as amended or supplemented from time to time);
“Account Administrator” means a physical person designated as such by the Client under the License and authorized to administer Client's use of the License on Client’s behalf;
“Additional License Fees” means the variable license fee that may be due and payable by the Client because its usage of the Software for a specific Product exceeds the agreed-upon usage for that specific Product, in each case as further documented in the Commercial Proposal;
“Additional Service” means the additional services in relation to a specific Product such as, without limitation, bespoke development work, training, set-up services, extended support, project management, integrations with other systems, applications or software, or any other custom software development, in each case as further documented in the Commercial Proposal;
“Affiliate” means, with respect to a Party, any person, partnership, corporation, organization or entity that directly or indirectly Controls or is directly or indirectly Controlled by or is under common Control with such Party;
“Annex” means an annex to this Agreement (as amended or supplemented from time to time) and which is entirely part thereof;
“Back-up” has the meaning as set out in Article 7.7;
“Base License Fee” means the fixed license fee in consideration of the License granted by Optioryx to the Client in relation to the Software for a specific Product, in each case as further documented in the Commercial Proposal;
“Business Day” means any day of the week, except for Saturdays, Sundays and public holidays in Belgium;
“Business Hours” means between 09.00-18.00 on Business Days;
“Commercial Proposal” means the final technical and commercial proposal made by Optioryx according to the needs of the Client. The proposal forms an integral part of this Agreement;
“Confidential Information” shall have the meaning as set out in Article 24;
“Control” means the ownership of more than half the share capital, business or assets of a Party or the power to exercise more than half the voting rights of a Party or the power to appoint more than half the members of the board of directors of a Party or sufficient authority to direct, directly or indirectly, the adoption and/or execution of the policies, management or operations of a Party by any means whatsoever;
“Client” means the person that has accepted to use the Software and receive the associated Services pursuant to the terms of the Commercial Proposal;
“Client Operations” means Client’s ordinary business activities and operations;
“Client Data” means the Data provided to Optioryx by the Client, its Representatives and/or its Users in connection with their use of the Software;
“Optioryx Data” means any Data, other than Client Data;
“Data” means any data, information or material that is used or provided in relation to the use of the Software and regardless of its form or the medium in which it is comprised, submitted, uploaded or stored;
“Documentation” means Optioryx’s manuals and technical materials (as amended from time to
time), in such medium as Optioryx elects, that are delivered by Optioryx to the Client under the
Agreement for the purpose of the set-up and/or use of the Software;
"Effective Date" means the date indicated in the Commercial Proposal as the effective date for the
provision of the Software and associated Services;
“EU Data Protection Laws” or “GDPR” means the EU General Data Protection Regulation 2016/679
and laws implementing or supplementing this regulation;
“Fees” means the Base License Fees, the Additional License Fees and the Service Fees;
“Individuals” shall have the meaning as set out in Article 15.15;
“Individuals’ Personal Data” shall have the meaning as set out in Article 15.15;
“Initial Term” means the initial period for which this Agreement is entered into as defined in Article 19.1;
“Intellectual Property Rights” means, without limitation, and in particular with regard to the Software and Products, all rights throughout the world in the nature of intellectual property rights including copyright, trademark, service marks, trade and business names, domain names, goodwill, registered designs, patents, database rights, topography rights and rights in know-how and trade secrets, whether registered or unregistered and including applications for the grant of any of the foregoing and all rights or forms of protection having equivalent or similar effect to any of the foregoing;
“Know-How” means, in particular with regard to the Software and Products, all technical and processing data, information, specifications, and knowledge of an intellectual or industrial nature, concerning products and/or services, including but not limited to specifications, manufacturing instructions, quality control procedures and other like data;
“License” means the licenses granted by Optioryx to the Client in accordance with Article 5 and Article 6 for use of the Software in relation to the relevant Products;
“License Fees” means the Base License Fees and Additional Licensee Fees that are payable by the Client to Optioryx in consideration of the License granted by Optioryx to Client;
“Optioryx” means Optioryx BV, a limited liability company incorporated under the laws of Belgium, with its registered office at Sint-Pietersnieuwstraat 11, 9000 Ghent, Belgium, and company registration number 0784.885.495;
“Parties” means Optioryx and the Client;
“Product(s)” means the optimization tool(s) developed by Optioryx in relation to warehouse and shipping operations and which are further specified in the Commercial Proposal; “Renewal Term” has the meaning as set out in Article 19.2;
“Representative” means, with respect to a Party or a Party’s Affiliate, its directors, officers,
employees, contractors, agents, advisors, counsellors, auditors, accountants or lawyers; in relation
to Client, Representative also includes its Account Administrators and its Users;
“Services” means the standard services of hosting, Documentation, support and maintenance rendered by Optioryx in relation the Software and the Additional Services, as set forth in, respectively, the Agreement and/or the Commercial Proposal;
“Service Fees” means the fees payable by the Client to Optioryx in consideration of the Additional Services, in each case as documented in the Commercial Proposal;
“Software” means Optioryx’s proprietary optimization tools covering various aspects of warehouse and shipping operations, as may be amended from time to time. The solutions include, without limitation, dimensioning, slotting, picking, packing and loading, and can be accessed, depending on the Product, through a webapp developed by Optioryx, an API made available by Optioryx or a proprietary platform;
“Third Party Claim” has the meaning given thereto in Article 22.2;
“Upgrades” means any updates, upgrades, enhancements, modifications, patches, alterations, improvements, corrections, revisions, releases, new versions or any other changes to the Software or Documentation;
“User” means a physical person designated as user of the Software by the Client, or by the Account Administrator on Client’s behalf, under the License.
2. Scope of the Agreement
2.1. The Agreement sets out the terms and conditions that apply to all services, products, documents, data and any other element provided by Optioryx or exchanged with Optioryx in relation to the Software and the associated Services.
2.2. In order to comply with regulatory or governmental provisions and/or to safeguard continuity of the Software and the associated Services, Optioryx reserves the right to modify the terms and conditions of access to the Software and the associated Services in its reasonable discretion from time to time. Such modifications shall be deemed to be accepted by the Client provided that Optioryx notifies them to the Client in accordance with Article 26.1 of the Agreement. Continued use of the Software by the Client after such notification shall constitute Customer’s acceptance of the modification.
2.3. Optioryx may amend or supplement the non-essential provisions of this Agreement at any time, subject to prior notice thereof. In the absence of a response, the amended Agreement shall be binding thirty (30) days after such notification.
2.4. Deviations from the provisions of the Agreement shall be applicable only if (i) the deviating provision expressly refers to the provision in the Agreement from which it differs and (ii) the deviating provision is confirmed in writing by authorized Representatives of both Parties.
3. General Provisions for the delivery of the Software and associated Services
3.1. Prior to the Effective Date, the Client has provided to Optioryx technical, commercial and legal information, data, documents and other materials (the “BaseInformation”) related to the envisaged Products and associated Services in order to enable Optioryx to review such Base Information and prepare its Commercial Proposal accordingly (in particular any bespoke development work that may be required to implement the Products).
This Base Information formed the foundation for the Commercial Proposal submitted by Optioryx and the contractual relationship between the Parties. For the avoidance of doubt, Optioryx will only be liable to the Client for the Product specifications set forth in the relevant Documentation or that have been specifically agreed upon in the Commercial Proposal.
3.2. If and to the extent that after the Effective Date the provided Base Information shows to be incomplete or incorrect, or the Base Information provided was (in hindsight) not sufficient to evaluate the needs of the Customer (in particular any bespoke development work that may be required to implement the Products), the Change Request Process according to Article 4 shall apply with the objective of adjusting the Commercial Proposal in development work, performance, service description and/or Fees where necessary to reflect the deficiencies in the Base Information. In case the Parties cannot agree on a corresponding adjustment within a reasonable term of not more than three (3) months after initiation of the Change Request process, Optioryx may terminate the Agreement without incurring any further liabilities or payment obligations of Optioryx (including any refund of Fees received prior hereto) and claim payment of the Fees (or parts thereof) in relation to the Software and/or Services provided prior to the termination.
3.3. The Change Request Process according to Article 4 shall also apply if the Client wishes to receive additional Products or Services (including any bespoke development work that may be required to implement the Products). To accommodate additional Products or Services, a new Commercial Proposal may be concluded or the existing one may be amended.
4. Change Request Process
4.1. Changes and additions to the content or scope of the Products and/or associated Services (including any bespoke development work that may be required to implement the Products) defined in the Commercial Proposal may be proposed by either Party in writing (hereafter
referred to as “Change Requests”). The proposal must include at least the following:
(i) A detailed description of the requested change or addition;
(ii) Reasons for the proposed change;
(iii) Anticipated consequences for prior agreed timelines and schedules.
4.2. For each Change Request, Optioryx shall submit a quote, provided however that Optioryx is entitled to refuse to carry out a Change Request proposed by the Client if it is not technically feasible, outside its standard offering, requires unreasonable effort and expense, or if no reasonable adjustment can be made to prior agreed timelines and schedules.
4.3. Following receipt of the quote provided by Optioryx, the Client shall decide whether to implement the Change Request on the basis of the quote submitted by Optioryx.
4.4. Unless and until the Client has given written consent to a change quote submitted by Optioryx, Optioryx will continue to perform the Agreement in accordance with the original terms in place before that specific Change Request. The same applies should the Client reject Optioryx’s quote. If, in its quote, Optioryx drew attention to the potential negative consequences of a refusal to implement a Change Request, those consequences shall be borne by the Client.
5. License to the Software
5.1. Optioryx hereby grants to the Client, and the Client accepts, the License, meaning a non-exclusive, restricted, personal, non-transferable and non-assignable license to use, for the purpose of Client Operations and for such purpose only, the Software in relation to the Products as outlined in the Commercial Proposal for the entire duration of the Agreement under the terms and conditions set out in this Agreement and the Commercial Proposal. The License shall also include any Upgrades to the Software and/or the Documentation.
5.2. The License is granted to the Client and its Users only and shall not be considered or construed to be granted to any subsidiary, holding company (including its Affiliates) or customers of the Client, unless otherwise agreed upon in writing by Optioryx or except to the extent expressly permitted under the Agreement. The Client is not entitled to (in whole or in part) sublicense the License unless otherwise agreed upon in writing by Optioryx or except to the extent expressly permitted under the Agreement.
5.3. The Client acknowledges and agrees (i) that its access to the Products is dependent on the License, (ii) that Optioryx may refuse, suspend, interrupt or terminate its access to the Software and the Products at all times in accordance with the Agreement and (iii) that under no circumstances it can hold Optioryx, its Affiliates or its Representatives liable for any such refusal, suspension, interruption or termination unless expressly provided under the Agreement.
6. License Restrictions
6.1. The Agreement does not grant and shall not be construed to grant to the Client any other right than the rights expressly granted by the Agreement. Any right that is not expressly granted to the Client hereunder is reserved by Optioryx.
6.2. The License is granted subject to the Client’s continuous compliance with the Agreement, including timely payment of the entire Fees, failing which Optioryx reserves the right to fully or partially refuse, suspend, interrupt or terminate the Client’s access to the Software and/or Products at all times, without detriment to Optioryx’s rights hereunder and its right to claim compensation for losses, damages and costs it suffered.
6.3. The Client commits and guarantees that he is not and shall not be a competitor of Optioryx and that, except with Optioryx's explicit prior written consent, he shall not use (any part of) the License and/or the Products for (i) any other purpose than Client Operations, (ii) any activity that is competing with Optioryx’s business or operations or (iii) in general is detrimental to Optioryx’s business interests.
6.4. The Client shall not, and guarantees that his Affiliates, his Representatives and/or its Affiliates’ Representatives shall not, (attempt to) do the following and shall not assist any third party in doing the same by any means, unless when explicitly stated otherwise in this
Agreement:
(i) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, translate, adapt, alter or distribute all or any portion of the Software in any form or media; or
(ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make available the Software to any party; or
(iii) access the Software or any part thereof for competitive purposes; or
(iv) translate, modify, adapt, alter, reverse compile or reverse engineer, decompile, disassemble or otherwise reduce to human-perceivable form all or anypart of the Software; or
(v) reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Software or disclose any of the foregoing; or
(vi) create Internet “links” to the Software or any part thereof or "frame" or "mirror" the Software or any part thereof on any server or wireless or Internet-based device; or
(vii) access or use the Software or any part thereof to provide services to third parties, tbuild a competitive product or service or a product or service using similar ideas, features, functions or graphics as the Software or any part thereof or to copy any ideas, features, functions or graphics of the Software or of any part thereof; or
(viii) take any action that would cause the Software to fall into the public domain.
7. Optioryx’s obligations in relation to the Software
7.1. Subject to the terms and conditions of this Agreement, Optioryx shall provide the Software to the Client substantially in accordance with the Documentation and with reasonable skill and care.
7.2. Optioryx shall use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that Optioryx’s obligations are fulfilled in accordance with the Agreement.
7.3. Optioryx shall perform this Agreement in compliance with all applicable laws and regulations.
7.4. Optioryx shall use commercially reasonable efforts to ensure at least 99.5% uptime of the Software.
7.5. However, notwithstanding the foregoing, the Client recognizes that Optioryx may interrupt the Software (in whole or in part) for maintenance work purposes, including both scheduled maintenance work and unscheduled work in the event of an emergency. Optioryx undertakes to have the scheduled maintenance work to be executed outside of the Business Days or during Business Days but outside Business Hours, and to notify such works at least 48 hours in advance and shall use commercially reasonable efforts to notify the Client of any unscheduled works as soon as reasonably practicable.
7.6. Optioryx shall not have the obligation to (continue to) provide the Software in case of any (suspected) (i) use of the Software by the Client (its Affiliates, his Representatives and/or its Affiliates’ Representatives) contrary to the Agreement or Optioryx's instructions, or (ii) unauthorized modification or alteration of the Software by any party other than Optioryx (or Optioryx's duly authorized contractors or agents). In addition, Optioryx shall be relieved of its obligations to perform the Agreement for the time that it is prevented from performing the Agreement as a result of any failure or delay by Client to perform its obligations under the Agreement.
7.7. Unless expressly agreed otherwise in the Commercial Proposal, Optioryx shall ensure a back-up of all Data (hereinafter a “Back-up”) at least every twenty-four (24) hours which will be kept at least until the next Back-up.
7.8. Optioryx shall ensure compatibility of the Software with at least the following browsers: Chrome, Edge, Firefox and Safari.
8. Client’s obligations in relation to the Software
8.1. Client shall provide Optioryx with all necessary co-operation and with access to all information as may be required by Optioryx for the performance of the Agreement, shall maintain all necessary consents and permissions necessary for Optioryx (and its contractors, agents or Representatives) to perform its obligations under the Agreement and shall perform its obligations under the Agreement in a timely and efficient manner, failing which Optiorymay adjust any agreed upon timetable or delivery schedule as reasonably necessary.
8.2. Client shall ensure that its network, file and web transfer protocols and message structures and any other systems, as may be used in relation to the Software, comply with the required specifications provided and amended by Optioryx from time to time.
8.3. Client shall abide by all applicable local, state, national and foreign laws, treaties and regulations with respect to its activities under the Agreement, including those related to data privacy, international communications and the transmission of technical or personal data.
8.4. Client shall not and guarantees that its Users shall not (i) interfere with or disrupt the integrity or performance of the Software or any part thereof or the data contained therein or (ii) attempt to gain unauthorized access to the Software or its related systems or networks. In such events Optioryx reserves the right, without detriment to its right to claim compensation for losses, damages and costs effectively suffered, to disable without prior notification Client's access to the Software.
8.5. Client shall be responsible and liable for all activity occurring under its Client account,
including, among others, for all actions of his Representatives.
8.6. Client shall ensure at all times that the Software is not used or accessed by persons other than his Users, and that his Users’ account is not shared or used by more than one person designated as User. Client shall not, and warrants that his Representatives shall not, provide false identity information to gain access to the Software or impersonate another person. In the event of any noticed unauthorized access or use, the Client shall promptly notify Optioryx thereof.
8.7. Client represents that his Representatives, and in particular his Users, shall at all times fully comply with the Agreement.
8.8. If Optioryx has strong indications that the Client is not meeting its obligations under this Agreement, the Client shall provide, at first request, within a reasonable time and without charge, any documents and information to suggest that it has fully complied with its obligations.
If Optioryx considers that the information provided does not establish compliance by the Client with its obligations, or if the Client does not provide it within a reasonable time, Optioryx has the right to audit (or to commission a third party bound by a duty of confidentiality to do it) all relevant documents belonging to the Client. Unless it is an exceptional and urgent situation, the audit will take place only during normal working hours and at least five (5) days working days after sending a notification. The Client will make every effort to ensure the audit can proceed as efficiently as possible and is committed to work
with Optioryx or the third party commissioned by Optioryx. If the audit shows that the Client does not meet all its contractual obligations, the latter undertakes to, immediately and at its own expense, take all necessary measures to remedy this as quickly as possible, without prejudice to the right of Optioryx to terminate the Agreement. In such a case, the Client will compensate Optioryx for the audit fees, without prejudice to any additional damages resulting from the established breach.
9. Access to the Software and Products
9.1. After the signing of the Commercial Proposal, Optioryx shall allow the Client to access the relevant Products. Depending on the Product, such access may be provided by allowing the Client and his Users to register through a webapp, by integrating the Client’s WMS systems with the Software through an API and/or by registering the Client and his Users on Optioryx’s platform.
9.2. Depending on the terms and conditions of each Product, as further detailed in the Commercial Proposal, the number and the rights of the Users and/or the usage of the Product may be limited in accordance with the pricing bundle chosen by the Client.
9.3. The Client may nominate Account Administrators who shall have access to the Client’s account management and may create Users and award rights to them. If applicable, the Account Administrators shall be Optioryx’s single point of contact with the Client and all
communications done by Optioryx to the Account Administrators shall be deemed to have been done to Client. An User shall have access to the Software in accordance with the rights awarded to him by the Account Administrators on the Client’s behalf.
9.4. If the Software does not comply with the Documentation or the agreed-upon specifications set forth in the Commercial Proposal, Client's sole and exclusive remedy shall be, at Optioryx’s discretion, the correction of the breach by Optioryx or the provision of the Client by Optioryx with an alternative means of accomplishing the desired performance, in each case within five (5) Business Days following receipt of the Client’s written compliant of non-compliance. If there is no written complaint within five (5) Business Days following receipt of the first access to the relevant Products, the Client shall be deemed to have accepted the Software and confirmed its conformity with the Documentation and the agreed-upon specifications.
10. Hosting
10.1. Optioryx is committed to host the Software, either through its own servers or through a professional third-party provider.
10.2. Optioryx’s current third-party hosting provider is listed in Annex 3 to this Agreement. Optioryx reserves the right to change the hosting provider at any time, in which case Optioryx shall promptly notify the Client of such change.
11. Documentation
11.1. Optioryx shall provide appropriate Documentation allowing the Client and its Users to understand the operation of the Software and be able to use it. Optioryx reserves the right to update the Documentation from time to time and shall notify the Client of any such changes.
11.2. The Client may use the Documentation, or any part of it, for security, test and back-up purposes.
12. Support and maintenance
12.1. In consideration of the timely payment of the entire Fees in accordance with Article 17, the Services include (i) maintenance activities required to ensure the availability of the Software in accordance with the Agreement and (ii) technical troubleshooting support services to the Client. These Services shall be Belgium-based and shall be provided on Business Days during Business Hours.
12.2. Without prejudice to Article 12.1, in relation to troubleshooting, Optioryx shall examine any incident in relation to the performance of the Software as notified to Optioryx by the Client. The Client shall provide Optioryx in writing with all information required for Optioryx to understand and assess the issue, including date and timing of the occurrence of the issue and all data required to reproduce it.
12.3. Optioryx shall have no obligation to correct the incident if it is not able to replicate the incident and/or the incident is (a) not caused by malfunctioning of the Software or (b) is caused by (i) the use of the Software contrary to the Agreement, (ii) modification of the Software without Optioryx’s prior consent, (iii) the use of incorrect data or data format, (iv) disruption or unavailability of external services (including, but not limited to, third party validation services or network disruptions), (v) disruption or unavailability of networks, internet, file transfer mechanisms, etc. or (vi) the Client’s use of the Software with any incompatible or unauthorized products or services (an “Unconfirmed Incident”).
12.4. In case of an Unconfirmed Incident, if the Client so requests, Optioryx may advise the Client on and assist the Client with resolving such incident. Any work performed by Optioryx for investigation of Unconfirmed Incidents and the advice and assistance in relation thereto shall be invoiced to the Client on a time and materials basis at Optioryx's then standard fee rates.
12.5. Without prejudice to Article 12.1, other than Unconfirmed Incidents shall be handled by Optioryx in accordance with the following priority schedule calculated from receipt of all required information pursuant to Article 12.2:
(i) Priority 1: Downtime of the entire Software in relation to a Product, security violation, loss of critical functionality having major impact on the relevant Product: support requests shall be responded to within four (4) Business Hours.
(ii) Priority 2: Loss of certain functionalities with no critical impact on the relevant Product: support requests shall be responded to within one (1) Business Days.
(iii) Priority 3: Minor impact on the relevant Product: support requests shall be responded to within three (3) Business Days.
13. Additional Services
13.1. If applicable, Optioryx undertakes to provide the Additional Services specifically included in the Commercial Proposal in accordance with the terms thereof.
13.2. For the avoidance of doubt, any provision of customized or bespoke development on behalf of the Client is excluded from this Agreement, unless agreed otherwise in writing between the Parties as an Additional Service.
14. Data, Use of Data and Data protection in general
14.1. It is understood that the (performance of the) Agreement does not result and shall not be
construed to result in any change in the ownership of Data.
14.2. The Client shall retain the ownership of Client Data and Optioryx shall retain the ownership of all Optioryx Data.
14.3. The Client shall be responsible and liable for the accuracy, quality, integrity, legality, reliability, appropriateness and compliance with any third party Intellectual Property Rights or other proprietary rights of all Client Data and warrants and represents that it shall obtain prior to the communication of Client Data to Optioryx, or the storage of Client Data on or the use of Client Data on Optioryx’s systems, any and all required third party authorizations and fulfil any and all required legal conditions and obligations (including, without being limited to, EU Data Protection Laws) and industry standards that must be obtained or fulfilled for the processing, storage, transfer and in general, any use, of Client Data under the Agreement.
14.4. Client acknowledges and agrees that: (i) Optioryx's Representatives may have access to necessary Client's Data in order to perform their obligations under the Agreement;
(ii) Optioryx may further use and disclose Client Data that Optioryx collects, obtains, retrieves or otherwise captures under the Agreement to the extent required for the execution of the Agreement as well as, on the condition that Optioryx does so in aggregate and non-Client identifiable and non-person identifiable formats, for other purposes (including, without limitation, to create aggregated statistics on the use of its Software for internal use (e.g. improving its services) or for communication purposes); (iii) the Client Data may be transferred or stored within the European Economic Area and/or outside of the European Economic Area in accordance with applicable legislation; (iv) Optioryx shall be entitled to keep records of Client Data as necessary to comply with any applicable laws and regulations and for its business records, subject to its confidentiality obligations pursuant to this Agreement.
14.5. In order to prevent Data loss, Optioryx shall maintain the back-up strategy as set out in Article 7.7 which it may amend in its sole discretion from time to time. Optioryx shall inform Client about any change in the back-up strategy or upon Client’s request.
15. Personal Data
15.1. For the purposes of this Article the terms, “Third Country”, “Member State”, “Controller”, “Processor”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “Processing” and “Supervisory Authority” shall have the same meaning as in the GDPR and shall be construed accordingly.
15.2. Client (being the Controller) appoints Optioryx as a Processor to process the Personal Data that is being provided to Optioryx pursuant to this Agreement and the use of the Software. Each Party shall comply with the obligations that apply to it under Applicable Data Protection Law.
15.3. Client shall ensure that Client is entitled to transfer the personal data to Optioryx and to use, store, transfer or otherwise process it on its systems, so that Optioryx may lawfully use, store, transfer and otherwise process the Personal Data in accordance with the Agreement on Client's behalf.
15.4. Annex 1 to this Agreement, as may be amended or supplemented from time to time, sets out certain information regarding Optioryx's Processing of Personal Data as required by article 28 GDPR.
15.5. The Client shall not disclose (and shall not permit any Data Subject to disclose) any special categories of Personal Data to Optioryx or any category of Personal Data that is not strictly necessary in the context of the use of the Software.
15.6. Optioryx shall process the Personal Data as a Processor as necessary to perform its obligations under this Agreement and strictly in accordance with the documented instructions of the Client (the “Permitted Purpose”), except where otherwise required by any EU (or any EU Member State) law applicable to the Client. In no event shall Optioryx process the Personal Data for its own purposes or those of any third party, except that Optioryx shall be authorized to create aggregated and anonymized statistics on the use of its Software for internal use (e.g. improving its services) or for communication purposes. These statistics shall not contain any Personal Data or company Personal Data.
15.7. Optioryx shall not transfer the Personal Data (nor permit the Personal Data to be transferred) outside of the European Economic Area (“EEA”) unless (i) it has obtained Client’s prior written consent; or (ii) it takes such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law. Such measures may include (without limitation) transferring the Personal Data to a recipient in a country that the European Commission has decided provides adequate protection for personal data, to a recipient that has achieved binding corporate rules authorization in accordance with Applicable Data Protection Law, or to a recipient that has executed standard contractual clauses adopted or approved by the European Commission.
15.8. Optioryx shall ensure that any person that it authorizes to process the Personal (including Optioryx’s staff, agents and subcontractors) (an “Authorized Person”) shall be subject to a strict duty of confidentiality (whether a contractual duty or a statutory duty), and shall not permit any person to process the Personal Data who is not under such a duty of confidentiality. Optioryx shall ensure that all Authorized Persons process the Data only as necessary for the Permitted Purpose.
15.9. Optioryx shall implement appropriate technical and organizational measures as defined in Annex 2 (which may be updated from time to time by Optioryx) to protect the Personal Data (i) from accidental or unlawful destruction, and (ii) loss, alteration, unauthorized disclosure of, or access to the Data (a “Security Incident”). Such measures shall have regard to the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.
15.10. The Client consents to Optioryx engaging third party sub-processors to process the Personal Data for the Permitted Purpose provided that: (i) Optioryx provides at least 30 days’ prior notice (the “Notice Period”) of the addition or removal of any sub-processor (including details
of the processing it performs or will perform), which may be given by posting details of such addition or removal in a word file; (ii) Optioryx imposes data protection terms on any sub-processor it appoints that require it to protect the Personal Data to the standard required by Applicable Data Protection Law; and (iii) Optioryx remains liable for any breach of this Article 15 that is caused by an act, error or omission of its sub-processor. During the Notice Period, the Client may object against Optioryx’s appointment or replacement of a sub-
processor, provided such objection is based only on serious and legitimate grounds relating directly to data protection law. In such event, Optioryx will either not appoint or replace the sub-processor or, if this is not possible, Customer may suspend or terminate this Agreement (without prejudice to any Fees incurred by the Client prior to suspension or termination). The current list of sub-processors is included in Annex 3 hereto, which may be updated from time to time by Optioryx.
15.11. Optioryx shall provide all reasonable and timely assistance to the Client to enable the Client to respond to: (i) any request from a data subject to exercise any of its rights under Applicable Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable); and (ii) any other correspondence, enquiry or complaint received from a data subject, regulator or other third party in connection with the processing of the Personal Data. In the event that any such request, correspondence, enquiry or complaint is made directly to Optioryx, Optioryx shall promptly inform the Client providing full details of the same.
15.12. If Optioryx believes or becomes aware that its processing of the Personal Data is likely to result in a high risk to the data protection rights and freedoms of data subjects, it shall promptly inform the Client and provide the Client with all such reasonable and timely assistance as the Client may require in order to conduct a data protection impact assessment and, if necessary, consult with its relevant data protection authority.
15.13. Upon becoming aware of a Security Incident, Optioryx shall inform the Client without undue delay and shall provide all such timely information and cooperation as the Client may require in order for the Client to fulfil its data breach reporting obligations under (and in accordance with the timescales required by) Applicable Data Protection Law. Optioryx shall further take all such measures and actions as are necessary to remedy or mitigate the effects of the Security Incident and shall keep the Client of all developments in connection with the Security Incident.
15.14. Upon termination or expiry of this Agreement, Optioryx shall (at the Client’s election) destroy or return to the Client all Personal Data (including all copies of the Personal Data) in its possession or control (including any Personal Data subcontracted to a third party for processing). This requirement shall not apply to the extent that Optioryx is required by any EU (or any EU Member State) law to retain some or all of the Personal Data, in which event Optioryx shall isolate and protect the Personal Data from any further processing except to the extent required by such law.
15.15. For the avoidance of any doubt, and as set out above, it is agreed between the Parties that Client acts as the Controller and Optioryx as the Processor with respect to the Processing of Personal Data that takes place through Optioryx’s systems. However, without prejudice to
the above, by accessing, subscribing to and using the Software, the Account Administrators and Users (the “Individuals”) accept to provide Optioryx with certain Personal Data relating to them, such as first and last names, email address, professional telephone number, choice of language, copy of her/his identity card or other identification document, login password, access rights and log files (the “Individuals’ Personal Data”). The Individuals acknowledge, and where necessary, agree that the Individuals’ Personal Data may be collected and processed by Optioryx as Controller for the purposes of creating, identifying, verifying and managing a Client account, setting the preferred language, controlling Client’s Account Administrators’ and Users’ access rights, contacting and answering Client’s Account Administrators’ and Users’ queries, correcting assignments of access and functions, identifying use/misuse of the Software and, more generally, for the purpose of providing the Software and associated Services. The Individuals are entitled, subject to the conditions and limitations of the EU Data Protection Laws, to access the Personal Data relating to them, as collected and processed by Optioryx as Controller, and request the rectification or deletion of the Individual’s Personal Data if it is incorrect or unnecessary for Optioryx to Process. Within the limitations set by GDPR, Individuals also have a right to data portability and to object to certain Processing of their Personal Data. The Individual may exercise these rights by sending an email to Optioryx at info@optioryx.com. A proof of identity may be requested by Optioryx in order to establish that the Individual making the said request is the concerned Data Subject. Individuals also have the right to reach out to the supervisory authority (for Belgium: the Belgian Data Protection Authority) to obtain further information or to file a complaint. Further information about the Processing of Personal Data by Optioryx as Controller is included in Optioryx’s privacy policy, which is communicated to all Account Administrators and Users through Optioryx’s systems, available upon simple request, and also permanently available on Optioryx’s website at https://www.optioryx.com/privacy.
16. Third Party Interactions
16.1. The Parties are aware that the successful implementation of the Software depends not only on the effective cooperation between themselves but also with other providers contracted by the Client to perform services outside the scope of this Agreement. Where the Client has contracted third parties to providespecific services which interface in any way with the Software provided by Optioryx, both Parties shall collaborate constructively to ensure that the agreed quality of service can be achieved, and to ensure effective interfaces between Optioryx, the Client, and the Client’s other service providers, so that any disagreements or issues relating to interfaces or the demarcation of responsibilities can be resolved in a spirit of partnership. To this end, the Client shall exert its influence on the third parties it has contracted, and secure their full and smooth cooperation with Optioryx by means of suitable agreements, arrangements, or any other means. Should coordination with third parties require additional effort beyond the scope defined in the Commercial Proposal, and such additional efforts have been duly identified up front by Optioryx and authorized by the Client, Optioryx is entitled to demand additional compensation on the basis of the prices given in the particular Commercial Proposal or Optioryx's then standard fee rates.
16.2. Optioryx does not endorse any third-party websites, services or products even if they are linked through the Software. Any such links are provided to Client only for convenience. Optioryx, its Affiliates and its Representatives shall not be liable for any content, products or other materials available through such links.
16.3. Client recognizes that both the provision and the use of the Software require the use of the internet and of means of electronic communication and may require the availability and use of certain ancillary software, hardware or services provided by third parties. Optioryx shall not be liable for any delays or failures resulting from the use of the internet and of means of electronic communication nor for the (continuous or interrupted) availability of the said software, hardware and services. Optioryx may cease, interrupt or suspend the Service (in part or in whole), without Client having any right to refund, credit or other compensation, if the third-party software, hardware or services on which the Service is dependent are no longer available, suspended, interrupted or do not present, in Optioryx’s discretion, the required level of security.
16.4. Client also recognizes that the provision of the said third party software, hardware or services may be dependent on Client’s agreement with third party’s licenses and authorizations subject to terms and conditions of that third party. Such third-party licenses and authorizations do not fall under Optioryx’s responsibility. Optioryx does not warrant that third parties shall grant such license to Client.
16.5. If required for the use of the Software, Client shall obtain such third-party licenses and authorizations and shall fully comply with them at his own cost. Client shall indemnify, defend and hold Optioryx, its Affiliates and its Representatives harmless from and against any damage, cost, claim, demand, lawsuit, cause of action or loss of any nature whatsoever, suffered or incurred by any of them, arising out of or in connection with the infringement by Client of any third-party license or authorization.
16.6. Optioryx shall use best endeavors to preserve the stability of any APIs provided by Optioryx. Client however acknowledges that external changes (including, but not limited to, regulations, standards, technology, third party software, etc.) may require Optioryx to bring modifications to the available APIs. Optioryx reserves the right to adapt the APIs at its sole discretion without being backwards compatible, and Client accepts this right.
16.7. Optioryx shall not be held liable, neither contractually nor extra-contractually, for discontinuing the maintenance of an older API version three (3) months after communicating any changes on the older version.
17. Payment of Fees
17.1. Client shall pay the License Fee to Optioryx for the granting of the License by Optioryx to Client in accordance with Article 5 and Article 6.
17.2. It is understood that any license fees published by Optioryx on its website or otherwise are non-binding.
17.3. Optioryx reserves the right to modify the License Fee at any time provided that it has a valid reason for doing so and notifies this to Client with at least thirty (30) days prior notice. For Licenses that are then current, the modified fee shall apply from the first renewal of the License after the said term of thirty (30) days.
17.4. The Parties recognize that the following non-exhaustive list of reasons are considered to be valid to justify a modification of the License Fee:
(i) an increase in the prices of Optioryx’s suppliers; (ii) a change to a legislative framework; (iii) an extension to or improvement of the Software and/or associated Services.
17.5. Unless agreed otherwise in the Commercial Proposal, the Client shall pay the agreed upon Base License Fee on a yearly basis in advance, being for the first time before the start of the Initial Term and upon renewal of the Initial Term before the start of each subsequent Renewal Term.
17.6. In relation to any License Fees that are usage-based, within twenty (20) Business Days following each payment cycle, Optioryx will provide the Client with the details of the actual usage. In case the actual usage exceeds the agreed-upon usage, the excess usage will be invoiced by Optioryx within ten (10) Business Days following the sharing of such information based on the applicable terms for such excess usage. If the excess usage is considered consistent, Optioryx may adjust the Base License Fee upon the start of each payment cycle.
17.7. Any Service Fee for an Additional Service shall be charged on an as-quoted basis and in accordance with the payment schedule agreed in the Commercial Proposal.
17.8. The Fees are due regardless of whether Client, its Account Administrators or its Users effectively use the Software. The payment obligation is non-cancellable and irrevocable and the amounts paid are in any case non-refundable.
17.9. On the anniversary date of the License, the corresponding Fee shall be updated automatically, without any notice being required, by using the following formula: Tn = To x (0.2 + 0.8 (Sn/So)) (i) “Tn” being the revised Fee, (ii) “To” being the original Fee, (iii) “Sn” being the official Belgian Consumer Price Index for the month preceding the date on which the Fee is revised and (iv) “So” being the official Belgian Consumer Price Index for the month preceding the date
on which the original Fee was agreed.
18. Billing and Payments
18.1. The Fees and other charges shall be invoiced to Client by Optioryx and shall be paid in accordance with Optioryx’s invoice in freely available funds and in Euro, without any deduction for expenses, taxes, levies, fees, duties and the like which shall be borne by Client.
18.2. Any prices specified in the Commercial Proposal are exclusive of VAT, which shall be added to the invoice where appliable.
18.3. Client must make all contestations with regard to Optioryx invoices at the latest within ten (10) days of the invoice date, failing which the invoice is deemed to be accepted and due by Client.
18.4. Payments of uncontested invoices are due within thirty (30) days of the invoice date.
18.5. Optioryx shall have no obligation to start (or to continue) the License or the Services prior to full payment by Client of the entire corresponding Fees.
18.6. If Client fails to make a timely payment of an invoice, Client shall be liable for payment, without prior notice being required, from the maturity date of the invoice and until payment in full of the invoice, to payment of default interest at a rate of twelve (12) months EURIBOR
(floored at zero) + five (5)% as well as to a compensation for administrative and debt collection expenses equal to ten (10)% of the unpaid amount, without detriment to Optioryx's right to compensation for losses, damages and costs effectively suffered as a result of Client’s late payment.
18.7. If Client fails to make payment in due time or if Optioryx has reasons to believe that a future payment shall not be made (in full or) in due time, then, without prior written notice being required, all outstanding amounts due by Client (including unmatured invoices) shall immediately become due and Optioryx shall have the right to suspend, interrupt or terminate the License or any Services, until, to Optioryx’s sole discretion, Client fully complies with its payment obligations and/or new terms of payment are agreed between Parties, without detriment to Optioryx’s rights with regard to compensation for losses, damages and costs suffered as a result of Client’s failure. Despite the suspension, interruption or termination of the License or the Services, all Fees according to this Agreement and billing modalities chosen by Client remain due. Optioryx reserves the right to charge a fee for the reinstatement of the License and/or Services.
19. Term and Termination
19.1. The Agreement enters into force on the Effective Date and shall remain in force for the period indicated in the Commercial Proposal (or, in the absence thereof, for a one-year period) (the “Initial Term”).
19.2. Upon the expiry of the Initial Term, the Agreement shall automatically renew against the Fee, as the case may be, modified in accordance to Article 17.3, for successive terms of one (1) year (hereinafter a “Renewal Term”) unless a Party terminates the Agreement by a written notice sent to the other Party in accordance with Article 26.1 at the latest three (3) months prior to the expiry date of the then current term.
19.3. Without prejudice to Optioryx’s right to compensation for losses, damages and costs suffered and without prejudice to other provisions of the Agreement, Optioryx may terminate the Agreement in its entirety and any and all License(s) granted thereunder at any time during the term thereof by a notice sent to the Client in accordance with Article 26.1 when: (i) Client fails to observe or breaches any of its material covenants, agreements or obligations under the Agreement in any material respect, provided that such breach continues for a period of fifteen (15) days after receipt by Client of notice of default specifying the nature of the breach and requesting to cure it. Without being limited thereto, the following obligations constitute such material breach: unauthorized use of the Software; breach of Client’s responsibilities in relation to use of the Software, non-payment of fees; breach of Client’s warranties; breach of Optioryx’s Intellectual Property or breach of Client’s confidentiality obligations and breach of non-enticement obligations; or
(ii) Client makes any assignment for the benefit of creditors or files a petition in bankruptcy or is adjudged bankrupt or becomes insolvent or generally unable to pay its debts when due or is placed in the hands of a receiver or if the equivalent of any such proceedings occurs; or (iii) the Force Majeure as determined in Article 26.5 of this Agreement has subsisted during at least six (6) consequential months.
19.4. Upon termination of the Agreement in its entirety for reason of discontinuity of Optioryx, Client is entitled to get access to its Client Data and the related passwords and encryption keys.
20. Consequences of termination or expiry of the Agreement
20.1. Any provision of the Agreement expressly or implicitly intended to survive its termination or expiry, whatever the cause, shall survive as provided and the termination or expiry shall not affect any obligation to pay any amount due under the Agreement whilst it was in effect.
20.2. Upon termination of this Agreement: (i) all Licenses granted under this Agreement shall immediately terminate; (ii) Client shall return to Optioryx within five (5) Business Days all latter’s Confidential Information and all copies and embodiments thereof that is in Client’s possession and Optioryx is entitled to conserve all Client Data for a period of twelve (12) months following the date of termination of the Agreement.
Upon termination of this conservation period, Optioryx will permanently delete and/or discard all Client Data, statistical and anonymized behavioral Client Data excluded, unless Optioryx is bound by a legal obligation to conserve Client Data beyond the said conservation period; (iii) Optioryx shall deliver to Client the then most recent Back-Up of Client Data in a format decided by Optioryx, provided that Client has, at that time, paid all Fees outstanding under the Agreement and/or resulting from termination or expiry (whether or not due at the date of termination or expiry) of the Agreement, and against payment by Client of all expenses incurred by Optioryx in returning the Client Data;
(iv) Optioryx shall be entitled to recover possession from Client of all copies of the Documentation and related information supplied to or provided by Client to third parties and in existence at the time of expiry or termination or require Client to destroy the same and certify on oath that it has done so.
21. Warranties
21.1. Without detriment to other warranties and representations provided under the Agreement, the Parties provide the following warranties and representations:
Client represents and warrants that: (i) it has the legal power and authority to enter into the Agreement; and (ii) its Representatives (including the Account Administrators and the Users) shall and are duly authorized to act on its behalf and under his sole responsibility and they shall at all time act in accordance with the Agreement. Optioryx represents and warrants that: (i) it has the legal power and authority to enter into the Agreement; (ii) it shall provide the Software and the associated Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (iii) to the best of its knowledge it has all the rights in relation to the Software that are necessary to grant all the rights granted hereunder, including the License, and in accordance with the terms of the Agreement.
21.2. It is understood that Optioryx's performance under this Agreement is an obligation of means and that (any part of) the Software is provided on an “as is” basis.
21.3. Except as expressly provided herein, Optioryx hereby disclaims all other conditions, representations and warranties, whether express, implied, statutory or otherwise, to the maximum extent permitted by applicable law. Without limiting the foregoing, as such and among others:
(i) any service or information provided by Optioryx under the Agreement is provided without any warranties or representations, including, without limitation, warranties of fitness for a particular purpose, performance, non- infringement, timeliness, reliability, availability, accuracy, quality or completeness of the Software, the Products or any data provided under the Agreement;
(ii) Optioryx does not warrant that the Software shall be uninterrupted, error-free or that it shall meet Client’s, its Affiliates’, its Representatives’, its Affiliates’ Representatives or any other party’s specific needs, nor that a service or information provided by Optioryx under the Agreement shall be free from viruses, harmful components, errors or defects (nor that the said shall be corrected), nor that the Software or the Products shall operate in combination with any other service, software, hardware, system or data.
22. Liability
22.1. Each Party shall indemnify and hold the other Party harmless from and against any and all claims, costs, damages, losses, liabilities and expenses arising out of or in connection with the former’s (its Affiliates’ or their Representatives’) breach of the Agreement, including its warranties thereunder. The same shall apply to direct infringement attributable to a Party of a third party Intellectual Property Rights.
22.2. In the event the Software in Optioryx’s opinion is likely to be or to become the subject of a claim by a third party (a “Third Party Claim”), Optioryx shall have the right at its discretion (i) to procure for Client the right to continue using the Software as provided in this Agreement or (ii) to use reasonable efforts to replace or modify the (alleged) infringing part of the Software or to provide a work around solution and/or service that is substantially similar to the Software so that it is no longer subject to Third Party Claim or (iii) to terminate (part of) the License.
22.3. The foregoing states the entire liability and obligation of Optioryx and the sole remedy of Client with respect to any Third Party Claim.
22.4. In the event of a Third Party Claim against Optioryx for reason of infringement of that party’s right (including the Intellectual Property Rights of such party) as a result of infringement by Client of its warranties and/or obligations under the Agreement, Client shall defend and hold Optioryx harmless against the said claim if (i) the same is not solely attributable to the Software as such, (ii) Client is given prompt notice of any such claim, (iii) Optioryx provides reasonable co-operation to Client in the defense and settlement of such claim, at Client's expense and (iv) Client is given sole authority to defend or settle the claim.
22.5. Notwithstanding any other provision of this Agreement, the total aggregate liability of Optioryx shall in any event be limited to (a) when the claim relates to the Software with respect to (a) Product(s), the License Fee paid by Client for the License in relation to the relevant Product(s) for the past 12 months or (b) when the claim relates to an Additional Service, the paid or payable fee for that Additional Service for the past 12 months.
22.6. Nothing in the Agreement excludes the liability of a Party for death or personal injury caused by that Party or for fraud or fraudulent misrepresentation attributable to it.
22.7. Each Party shall have a duty to mitigate damages for which the other Party is liable.
22.8. The Parties agree that the remedies set forth in this Article 22 shall be the sole and exclusive remedy with respect to any and all claims (whether contractual or non-contractual) relating, directly or indirectly, to this Agreement. Without limiting the generality of the foregoing, the Parties agree and undertake with each other that, to the fullest extent permitted under applicable law, neither it nor any of its Affiliates has any rights or causes of action against, and will waive and shall not make any contractual or non-contractual claim against, any Representative of the other Party or any its Affiliates. The provisions of this Article 22.8 inure to the benefit of the Representatives of the other Party or any its Affiliates (“beding ten behoeve van een derde” / “stipulation pour autrui”) and may be enforced directly by any of them as a third-party beneficiary.
23. Intellectual Property
23.1. The Agreement does not intend and shall not bring or be construed to bring any change to the propriety of or licenses to any Intellectual Property Rights of Optioryx and Client shall not, as a result of the Agreement, be entitled to any claim with regard to any Intellectual Property Rights to which, prior to the signing of the Agreement, it was not entitled.
23.2. Optioryx is and remains the exclusive owner of all Intellectual Property Rights relating to its products and services including, but not limited to, the Intellectual Property that underlies or is incorporated, included or used in the Software, the Products and the Services, including the Documentation. All rights, titles and interests in such Intellectual Property shall remain vested in Optioryx.
23.3. If the Agreement awards to Client certain rights or licenses to Optioryx’s Intellectual Property or if the purpose of the Agreement requires such use, it is understood that such rights are awarded only for the term of the License and that Client's sole right in relation to Optioryx’s Intellectual Property are at all time restricted to the use thereof to the extent that they are incorporated in the License under the terms and conditions set out herein.
23.4. Without limiting the scope of other provisions of the Agreement and of License limitations set forth herein, Client shall not, without prior written authorization of Optioryx, modify or make derivative works of the Software. In the event that, notwithstanding any prohibition thereto, Client modifies or creates derivative works of the Software, Optioryx shall own all right, title and interest, including any Intellectual Property Rights, in and to such modifications and derivatives and Client hereby assigns any such rights, title and interest in such modifications and derivatives to Optioryx at no cost to the latter. Client represents and warrants that it has the authority to assign full title to these modifications and derivative works and the Intellectual Property Rights pertaining thereto in accordance with the terms and conditions of the Agreement.
23.5. Optioryx is entitled to use Client's name or logo (or the name or logo of any other member of Client's Group or Client’s commercial name or logo) in any advertising or promotional media in the course of performance of this Agreement or thereafter.
24. Confidentiality
24.1. The Parties acknowledge that under the Agreement they shall disclose to each other information that is of highly sensitive nature and is valuable to the disclosing Party (“Disclosing Party”), that must and shall remain the Disclosing Party’s exclusive property and must at all times be kept secret and confidential by the receiving Party (“Receiving Party”).
24.2. Unless the Receiving Party obtains explicit prior written authorization from the Disclosing Party, the former shall not use the confidential information disclosed by the latter for any other purpose than strictly necessary for the due performance of the Agreement.
24.3. Notwithstanding Article 24.2, the Receiving Party shall only be permitted to disclose confidential information if and to the extent that:
(i) it subsequent to its disclosure hereunder becomes publicly available without any violation of this Framework Agreement by the Receiving Party or any of its Affiliates or Representatives; (ii) is required by the applicable law or regulation or pursuant to a court or administrative order issued by a court of competent jurisdiction or by a governmental authority that is lawfully entitled to require such disclosure, provided, however, that the Receiving Party shall prior to any disclosure notify and fully inform the Disclosing Party of such obligation to disclose and demonstrate the existence and the extent of the requirement to disclose in order to allow the Disclosing Party to assess and, as a case may be, to contest it; or (iii) to its Affiliates and Representatives, provided, however, that the Receiving Party shall do this only (x) on a need-to know basis for the performance of the Agreement and (y) if they are bound by confidentiality obligations that are at least as restrictive as those set forth in this Article 24.
24.4. The provisions of this Article 24 shall remain in force during five (5) years after the termination or expiry of the Agreement.
25. Non-enticement
For the entire duration of the Agreement and for one (1) year following termination or expiry of the Agreement, Client, its Affiliates, its Representatives’ or its Affiliates’ Representatives shall not (attempt to) hire, offer to hire or otherwise entice away any Representative of Optioryx or of its Affiliates whether directly or indirectly, provided that nothing in this Agreement shall prevent Client, its Affiliates, its Representatives’ or its Affiliates’ Representatives to hire any Representative of Optioryx or of its Affiliates who (i) approached Client, its Affiliates, its Representatives’ or its Affiliates’ Representatives on an unsolicited basis or (ii) responded through a bona fide general recruitment campaign that is not specifically aimed at Representatives of Optioryx.
26. Miscellaneous
26.1. Notices – Parties may give any notice to each other by means of email with receipt confirmation or registered letter. If to Client, the (email) address that is on record in Optioryx's account information shall be used. If to Optioryx, emails have to be sent to: bart.gadeyne@optioryx.com and gilles.vandewiele@optioryx.com. Such notice shall be deemed to have been given upon the expiration of 48 hours after sending by registered letter and of 12 hours if sent by email.
26.2. Severability – If any provision of the Agreement is invalid or unenforceable, this shall not affect the remaining provisions thereof which shall remain in effect. The invalid or unenforceable provision shall be deemed to be replaced by an alternative valid and enforceable provision that is as closely in line with the Parties’ original intent as allowed under the applicable law.
26.3. Entire Agreement – The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter including, but not limited to, any prior non-disclosure or confidentiality agreement (including, without limitation, general terms and conditions of the Client and prior drafts of the Commercial Proposal). No amendment of the Agreement is binding unless executed in writing and signed by duly authorized representatives of the Parties.
26.4. No Waiver – The election of any one or more remedies by either Party shall not constitute a waiver by such Party of the right to pursue any other available remedies. No failure by either Party to exercise and no delay by either Party in exercising (in whole or in part), any right in relation to the Agreement shall operate as a waiver of any such right.
26.5. Force Majeure – Notwithstanding any other provisions of this Agreement, if, for any reason beyond the reasonable control of a Party (including, without limitation, acts of God, wars, civil wars, natural disasters, acts of terror, epidemics, quarantine, strikes, riots, fires, orders by any government department, council or other constituted body, power outages, failure of telecommunications lines and external attacks on IT systems that cannot be prevented by reasonable technical and organizational measures based on proven, state-of-the-art methods) such Party is unable to perform in whole or in part its obligations under the Agreement, such Party shall be relieved of those obligations to the extent it is unable to perform and such inability to perform, so caused, shall not make such Party liable to the other Party on the condition that the Party who is unable to perform notified the other Party of such inability within seven (7) days of the onset of such inability.
26.6. Assignment – Client shall not assign or otherwise transfer the Agreement in whole or in part or any of its rights and obligations under the Agreement without prior written consent of Optioryx. The Agreement shall be binding on and inure to the benefit of the Parties and their respective successors and permitted assigns.
26.7. Third Party Beneficiaries – Nothing in the Agreement is intended to confer any benefits on any person other than the Parties or their respective successors or permitted assigns.
26.8. Injunctive Relief – Since a breach of any part of the Agreement by Client, in particular the provisions governing Intellectual Property Rights, may cause irreparable harm to Optioryx for which monetary damages are inadequate, Optioryx may seek immediate injunctive and/or other equitable relief should such a breach occur.
26.9. Governing Law and Dispute Resolution – The Agreement shall be governed by and construed under the laws of Belgium (without application of its choice of law provisions). All disputes in connection with the existence, validity, construction, performance, non-performance, breach or termination of the Agreement (or any terms thereof) that are not settled amicably shall be settled exclusively by the courts of Ghent, Belgium.
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