The following terms and conditions ("Terms and Conditions") govern all use of the platform Givemefive ("Platform") and/or any other service defined in each applicable order form (together or individually “Services”) operated by Givemefive, a company incorporated and existing under the laws of Belgium, with its registered office at Forest 1190, Rue des Anciens Etangs, 55 and registered with the Crossroads Bank for Enterprises under number 0645.511.046 (hereinafter “Givemefive”).
The present Terms and Conditions together with each applicable order form ("Order Form") defined below) and any special Service agreement signed between Givemefive and you (“Customer” or "You") form the “Agreement”.
The contractual relationship between the Parties under this Agreement is governed by the following documents, set out in decreasing order of priority:
The Service Agreement, if applicable;
The Order Form;
Further detailed contract, if applicable;
The Terms and Conditions.
In the event of a discrepancy between one or more provisions contained in any of the above contractual documents, the higher-ranking document shall prevail.
Any amendment of this Agreement or Order Form shall be the subject of a written amendment signed by the Parties duly authorized for this purpose.
Givemefive and Customer are collectively referred to as the “Parties” and individually as a “Party”.
The Customer acknowledges that they read and understood the present Terms and Conditions as well as our privacy notice ("Privacy Notice"), and agrees to be bound by the Terms and Conditions. These Terms and Conditions apply to the Customer and all Authorised Users (as per defined below) who wish to access or use the Services.
From time to time, Givemefive may make changes to the Terms and Conditions. Unless otherwise stated, changes to the Terms and Conditions will be effective immediately being provided that, with at least thirty (30) days’ advance, Givemefive will inform the Customer through a notice via either e-mail or on the Platform. In the event, the Customer does not agree with the updated Terms and Conditions, they may stop using the Services and terminate the Agreement in accordance with section 10.
It is understood that no exclusivity clause is provided to any Party under the Agreement and that each Party is free to contract with any third party, subject to the confidentiality undertakings of this Agreement.
If You do not agree with any of these Terms and Conditions, please do not use our Services.
The terms appearing, with or without capital letters, shall have the following meanings in the Agreement:
The Terms and Conditions together with each applicable Order Form and any special Service agreement, if applicable, as well as any amendment thereof signed between Givemefive and Customer.
(i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC ("GDPR");
(ii) Directive 2002/58/EC on the protection of privacy in the context of electronic communications (the "ePrivacy Directive");
(iii) any and all applicable national data protection laws in EEA member states made under, pursuant to, or that apply in conjunction with any of (i) or (ii) above;
in each case as may be amended or superseded from time to time;
Customer's employees, entities, resellers and/or third-party providers which benefit from the access to and use of the Services in accordance with the provisions set forth in the Agreement under Customer's responsibility.
All information, including technical, commercial or business information and data, even if not specifically designated as confidential, directly or indirectly communicated by either Party ("Disclosing Party") or made available to the other Party ("Recipient Party"), in any form and on any medium whatsoever and which can reasonably be understood to be confidential. They include, without limitation, (i) the Agreement, (ii) the Services and any related deliverable, (iii) as well as any copies, analysis, synthesis or abstracts made of Confidential Information and/or any products, apparatus, modules, samples, prototypes or parts that may contain or reveal Confidential Information (iv) any other proprietary information specifically designated as confidential.
Any data (such as financial data) uploaded by the Customer on the Givemefive Platform or submitted to Company in the framework of the performance of the Agreement.
Date of commencement of the Agreement as referred to on the order form.
All intellectual property rights granted under the applicable laws, including but not limited to copyright, database rights, trade mark rights, patent rights, design rights, whether registered or not, including applications for such rights.
Services provided by Givemefive to the Customer in accordance with the applicable Order Form, such as, but not limited to, consultancy services or premium customer success support.
Access to and use of the Givemefive Platform accessible in SaaS mode, including support and maintenance services (including Customer Success, FAQ section, tutorial videos, e-mail, phone calls, chat).
The Services means collectively the SaaS and Professional Services selected by the Customer, as indicated on the Order Form(s).
The Workspaces means the virtual space in which the Customer uses Givemefive’s Platform and Services.
Givemefive undertakes to provide the Customer, who accepts, the Services in accordance with the applicable Order Form and/or the Agreement.
The use of the Givemefive Platform will provide the Customer with insights on its pricing with a view to improving the Customer’s profitability and growth with better pricing decisions.
More specifically, the Givemefive Platform will give access to the following modules:
the ‘back-office’ to create and modify the attributes (Attributes Library), the pricing structure and value price map (Pricing Plans Library), the offers templates (Offer Templates);
the ‘front-office’ to generate and configure the offers and follow-up the offers created and sent to the prospects (Offers Pipeline) and which can be directly connected to the CRM (the specific list of CRM that can be connected will be provided throughout the purchase order) ;
the ‘interactive offer’ which is a secured link enabling the access to a digital and interactive offer. The ‘interactive offer’ is accessible both by the Customer’s internal team and by the Customer’s prospects.
The Customer declares that it has been able to ask all necessary questions and acknowledges that they are aware of the technical characteristics of the Services and that they consider them appropriate to their needs.
Givemefive shall make the SaaS Services available in a hosted rental mode, also called “Software as a Service”. Givemefive shall provide the Services the Customer has selected, as indicated on the applicable Order Form. The Services will not be installed, stored or copied on the Customer’s premises but shall be accessible through an internet connection, which the Customer shall provide. The Customer remains responsible for subscribing to and maintaining an efficient internet connection allowing the proper use of the Services.
Givemefive shall use all commercially reasonable efforts to keep the selected Services accessible during all days of the week, 24 hours per day (exception made for scheduled maintenance and exceptional circumstances), without accepting any obligation to achieve such result and to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Givemefive's reasonable control. Givemefive shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
For the term of the Agreement and in consideration of the fees detailed in the applicable Order Form ("Fees"), the Customer shall have access to the selected Services. The Customer shall refrain from accessing, installing, commercialising or otherwise using the selected Services thereof beyond the agreed limitations.
Givemefive may at its sole discretion modify, update, upgrade or extend the Services (including, by way of example, adding features and functionality, or enhancing security or usability) and inform the Customer about these modifications by way. The essential features of the Services will remain available.
The Customer shall use the Services only for both external and internal purposes:
- Optimizing its own packaging and pricing strategy and redefining in order to drive revenue and profit growth;
- (Re)defining its offering and value proposition;
- Optimizing its sales process by sharing a secured linked to its own customers/prospects.
It shall refrain from any access, use or distribution of the Services by third parties or on behalf of third parties (including affiliated companies) without Givemefive's prior written consent and unless qualified as an Authorised User.
The Customer shall use the Services in compliance with the Agreement, all third party rights and with all applicable laws, including the laws related to the protection of personal data and intellectual property.
The Customer alone shall be responsible for designating and managing the Authorised Users and to determine their user rights in accordance with the limitations set forth in the Agreement and/or applicable Order Form.
The Authorised Users' access to the Services is strictly personal and may not be shared with third parties without Givemefive's prior written consent. The Customer undertakes to ensure that each Authorised User keeps a secure password for their use of the Services. This password is personal and may not be shared with a third party under any circumstances. Any unauthorised use of the Services exceeding the limitations set forth in the applicable Order Form may result in an adjustment of the Fees pursuant to section 7.
The Customer ensures that Authorised Users shall use the access to the Givemefive Platform in accordance with the Agreement and shall immediately notify Givemefive in case of any breach of the Agreement by an Authorised User. The Customer shall be liable for any breach of the Agreement by an Authorised User.
The Customer shall be responsible for all of the Customer’s activity in connection with the Services, including but not limited to uploading Customer Data onto the Platform. The Customer alone shall have the responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use of all Customer Data. They represent and warrant that the use of Customer Data under this Agreement will not violate or infringe the rights of any third party (such as trade secrets or other confidential information).
The Customer shall refrain from any activities that:
decompile, interfere with, modify, disrupt or otherwise reverse engineer of the SaaS Services or disable features or functionality of the SaaS Services, including without limitation any such mechanism used to restrict or control the functionality, or defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection or monitoring mechanisms of the SaaS Services;
use the Services for the benefit of a third party and neither to permit other individuals or entities to create Internet "links" to the Services or "frame" or "mirror" the Services on any other server, or wireless or Internet-based device;
sell, lease, lend, assign, sub-license and/or allow access to the Services or any part thereof or use or seek to commercially exploit any of the foregoing for the benefit of any third party other than under the terms permitted in the Agreement;
introduce a malicious program into the Givemefive Platform;
use the Services in a manner that violates any third-party intellectual property, contractual or other proprietary rights;
remove or alter any proprietary notices or labels.
Givemefive reserves the right to monitor the Customer’s use of the Services and compliance with the Agreement and, where relevant, the applicable law. In case of non-compliance, Givemefive, at its sole discretion, is entitled to request the Customer to remedy the default, pay additional Fees, suspend or terminate the Agreement without any related compensation whatsoever due to the Customer.
The Customer shall be responsible for maintaining the security of the accounts and passwords (including but not limited to administrative, guest and member passwords) of the Customer and Authorised Users, files, and for all uses of Customer’s account.
Givemefive will use commercially reasonable efforts to provide the Customer with the Professional Services agreed in the applicable Order Form such as consultancy services.
Givemefive does not accept any obligation to achieve a particular result.
If agreed and as per further detailed in the applicable Order Form, Givemefive will provide Customer with Premium Customer Success Support services which consists, but is not limited to, a personalised and thorough onboarding to the Platform and/or enhanced Platform features.
Where Givemefive provides Customer with Professional Services, and in the event Customer does not notify Givemefive of any defect, error, malfunction, dissatisfaction or reservation within fifteen (15) days following the completion or receipt of such Professional Services, Customer shall be deemed to have definitively and fully accepted the Professional Services.
Givemefive will provide the Customer with reasonable technical support services including FAQ sections, tutorials videos, emails, phone calls, chat on Givemefive Platform.
Givemefive shall provide a back-up option which will automatically safeguard Customer's Data enabling Customer to recover its Data in the event of data loss, corruption or any other unforeseen technical or operational failure.
Givemefive remains the sole owner of the IP rights related to its Services (Givemefive Platform, the content on Givemefive’s website, …), its software and material (such as, but not limited to, the source codes of computer programs, interfaces, algorithms, APIs documentation, names, logos, images, …).
In consideration of the Fees, Givemefive grants the Customer a non-exclusive licence allowing the Customer and its Authorised Users to access and use the Services worldwide within the limitations set forth in section 3 below.
All rights not expressly granted to the Customer in the Agreement remain reserved Givemefive.
The Customer is entitled to use the Services in accordance with the terms of the Agreement, without acquiring any rights to the Givemefive’s IP rights. For the avoidance of doubt, the Customer is not entitled to download or otherwise receive any copy of Givemefive's software. The Customer may have access to reports, such as analyses or recommendations, via the Givemefive Platform and they may be able to extract such reports in downloadable form (as permitted by the platform). The Customer shall have the unlimited right to copy, store, adapt, distribute or use such reports, for internal purposes.
The Customer can provide ideas, suggestions, requests, feedback, recommendations of any nature to Givemefive regarding the Services. Givemefive is free to use and incorporate such feedback without payment of royalties or other consideration to the Customer.
The Customer alone remains the holder of the IP Rights that may protect the Customer Data. Givemefive does not acquire any IP Rights to the Customer Data, other than the authorization to store, process, analyse the Customer Data for the sole purpose of providing the Services, as set out in the Agreement.
This section shall survive the termination/resolution or expiration of the Agreement for any reason whatsoever.
Either Party, insofar as it is authorised to do so, may disclose (the “Disclosing Party”) to the other (the “Receiving Party”) the Confidential Information deemed necessary for the performance of the Agreement.
The Confidential Information belonging to Givemefive shall include in particular and without limitation, methodology, questionnaires, source code, data models, algorithms, data, improvements etc.
The Confidential Information belonging to the Customer shall include, in particular, without limitation, the Customer Data.
The Receiving Party undertakes:
Givemefive will process the Customer Data in the framework of the performance of the Agreement. Such data will include data concerning the Customer’s pricing and may include data concerning third parties and the Customer’s clients. Where the Customer Data contains personal data, Givemefive shall process this data in accordance with section 7.
The Customer shall own and keep owning all right, title and interest in and to the Customer Data, including Intellectual Property Rights (where applicable).
The Customer authorizes Givemefive to use the Customer Data for the purpose of providing the Services to Customer and improving Givemefive’s models and Services (including training algorithms, building statistical models and profiles), yet subject to confidentiality obligation set forth in section 6 of these Terms and Conditions. Givemefive shall have the right to collect, analyze, derive and generate data, meta-data and other information relating to the Customer Data and use the same for the provision, use and performance of various aspects of the Services and related systems and technologies. Givemefive will be free (during and after the Term) to use such Customer Data and derivative data at its sole discretion and including for commercial purposes, to test, improve and operate the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Givemefive offerings.
Givemefive may publicly disclose information about the use of the Services for commercial purposes, without disclosing the Customer Data as such Derivative Data and Observed Data.
Givemefive will generate new data (such as reports, insights) on the basis of the Customer Data and data from other sources, which will be accessible to the Customer on the Givemefive Platform The Customer will have the right to use the Derivative Data and is entitled to transfer it to third parties, without prejudice to Givemefive’s Confidential Information. Derivative Data are considered Confidential Information of the Customer.
Givemefive will collect and generate data through observation of the use of the Givemefive Platform and the Services by the Customer and through analysis and processing of data – including Customer Data and Derivative Data, regardless of the source Givemefive alone will have the right to control the Observed Data, to analyze, commercialize and generally use these data, insights and other creations at its sole discretion, without prejudice to the Customer’s Confidential Information.
Givemefive is entitled to transfer the Observed Data to third parties, without prejudice to the Customer’s Confidential Information. Givemefive shall be under no obligation to transfer or reveal such Observed Data to the Customer, which accepts that such Observed Data is Givemefive’s Confidential Information. he Customer has no claim or right on the Observed Data and on the resulting Givemefive creations, data or insights.
The obligation of Confidentiality shall not apply with respect to any Confidential Information if the Receiving Party can prove that:
- it entered the public domain prior to or after their disclosure without being attributable to it; or
- it already had knowledge of it, which can be demonstrated by the existence of appropriate documents in these files; or
- it has been lawfully received from a third party, without restriction or breach of the provisions of this section; or
- it has been published without violating the provisions of this section; or
- it has been independently developed by either Party; or
- it has been disclosed in accordance with a written authorisation of the Disclosing Party or
- if (b) the Receiving Party must comply with an order of a competent court or administrative authority in a judicial or administrative action, provided that such Receiving Party shall use best efforts to maintain the confidentiality of the Confidential Information (e.g. by asserting in such action any applicable privileges), and shall, immediately after gaining knowledge or receiving notice of such action, notify the Disclosing Party thereof so that the latter can seek any legal remedies so as to maintain the confidentiality thereof. In each case the Receiving Party shall only disclose such limited part of the Confidential Information as is required to comply with the mandate, upon the advice of its counsel.
The Receiving Party agrees that any violation or threatened violation of this Agreement may cause irreparable injury to the Disclosing Party, entitling the latter to seek equitable relief, including restraining order, injunctive relief and/or specific performance, in addition to all legal remedies.
The Receiving Party shall promptly notify the Disclosing Party if it becomes aware of any breach of confidentiality, and shall give the Disclosing Party all reasonable assistance to seek a protective or other appropriate remedy, or in any proceedings which the Disclosing Party may institute against the breaching person.
The Receiving Party undertakes, at the first request of the Disclosing Party and at the latest on the date of termination of the contractual relationship, to immediately cease all use of the Confidential Information.
The Parties are bound by the confidentiality obligations for the Term of the Agreement and for three (3) years after its expiry or termination.
This section shall survive the termination or expiration of the Agreement for any reason whatsoever.
The performance of the Agreement entails the Processing of Personal Data by the Parties for (i) the purposes of managing their commercial relationship and (ii) the provision of the Services.
It is specified that the following terms: "Data Controller", "Data Subject", "Personal Data", "Processing", "Data Processor", shall have the meaning given to them in "GDPR".
Givemefive and the Customer declare they have complied with and undertake to comply with throughout the term of the Agreement, all their obligations arising from the applicable data protection regulation.
In consideration of the Services the Customer must pay the total fees set forth in any applicable order form, in accordance with section 7.
Givemefive and the Customer act as independent Data Controllers:
- In the context of the Processing of Personal Data for the purposes of managing their commercial relationship;
- Where Givemefive processes Personal Data about Customer's employees for the purpose of granting them access to the Givemefive Platform and for ensuring the security of said Platform.
Insofar as the Customer Data contains Personal Data, the Customer appoints Givemefive as Data Processor as necessary to perform the Services under the Agreement and in accordance with the documented instructions of Customer (the "Permitted Purpose")..
Givemefive shall immediately inform Customer if it becomes aware that Customer's processing instructions infringe Applicable Data Protection Law but without obligation to actively monitor Customer's compliance with Applicable Data Protection Law.
Givemefive shall not transfer the Personal Data (nor permit the Personal Data to be transferred) outside of the EEA unless the transfer is to a country, region or sector that has been recognized by the European Commission as providing an adequate level of protection for personal data in accordance with Applicable Data Protection Law.
The Parties agree that if the Personal Data is being transferred to, stored by, or accessed by the Givemefive in a country or region, or by a sector, outside the EEA that is not deemed adequate by the European Commission, such transfer of personal data shall be subject to the Standard Contractual Clauses, unless Givemefive demonstrates that it has put in place other appropriate safeguards in accordance with Applicable Data Protection Law.
Givemefive shall ensure that any person that it authorises to process the Personal Data (including Givemefive's staff, agents and subcontractors) (an "Authoidsed 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. Givemefive shall ensure that all Authorised Persons process the Personal Data only as necessary for the Permitted Purpose.
Givemefive shall implement and maintain appropriate technical and organisational measures to protect the Personal Data from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Data (a "Security Incdent"). 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.
Upon becoming aware of a Security Incident, Givemefive shall inform Customer without undue delay and shall provide all such timely information and cooperation as Customer may reasonably require in order for Customer to fulfil its data breach reporting obligations under (and in accordance with the timescales required by) Applicable Data Protection Law. Givemefive shall further take all such measures and actions as are necessary to remedy or mitigate the effects of the Security Incident and shall keep Customer informed of all developments in connection with the Security Incident.
Givemefive shall not subcontract any processing of the Personal Data to a third party sub processor (a "Sub-processor") without the prior written consent of Customer.
Notwithstanding this, Customer consents to Givemefive engaging Sub-processors to process the Personal Data provided that: (i) Givemefive provides at least 30 days' prior notice of the addition or removal of any sub processor (including details of the processing it performs or will perform); (ii) Givemefive imposes data protection terms on any sub processor it appoints that protect the Personal Data to the same standard provided for by this Agreement; and (iii) Givemefive remains fully liable for any breach of this Agreement that is caused by an act, error or omission of its Sub-processors.
If Customer refuses to consent to Givemefive's appointment of a Sub- processor on reasonable grounds relating to the protection of the Personal Data, then either Givemefive will not appoint the Sub- processor or Customer may elect to suspend or terminate this Agreement without penalty.
Givemefive shall provide reasonable and timely assistance to Customer to enable Customer to respond to: (i) any request from a data subject to exercise any of its rights under Applicable Data Protection Law; 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 Givemefive, Givemefive shall promptly inform Customer providing full details of the same.
Upon Customer's request, Givemefive shall provide Customer with reasonable and timely assistance in order to allow Customer to conduct a data protection impact assessment in accordance with Applicable Data Protection Law including, if necessary, to assist Customer to consult with its relevant data protection authority.
Upon termination or expiry of this Agreement, Givemefive shall (at Customer's election) destroy or return to Customer all Personal Data (including all copies of the Data) in its possession or control (including any Data subcontracted to a Sub-processor for processing).
This requirement shall not apply to the extent that Givemefive is required by any EU (or any EEA member state) law to retain some or all of the Personal Data, in which event Givemefive shall isolate and protect the Personal Data from any further processing except to the extent required by such law until deletion is possible.
Upon Customer's request, Givemefive shall make available to Customer all information necessary to demonstrate compliance with this Clause.
Givemefive shall permit Customer (or its appointed third party auditors) to audit Givemefive's compliance with this Agreement, and shall make available to Customer all information, systems and staff necessary for Customer (or its third party auditors) to conduct such audit. Givemefive acknowledges that Customer (or its third party auditors) may enter its premises for the purposes of conducting this audit, provided that Customer gives it reasonable prior notice of its intention to audit, conducts its audit during normal business hours, and takes all reasonable measures to prevent unnecessary disruption to Givemefive's operations. Customer will not exercise its audit rights more than once in any 12 calendar month period, except (i) if and when required by instruction of a competent data protection authority; or (ii) Customer believes a further audit is necessary due to a Security Incident suffered by Givemefive.
In consideration of the Services, the Customer must pay the total Fees set forth in any applicable Order Form, in accordance with section 7 of the Terms and Conditions.
Unless specified otherwise, Fees for a given month in which Services incurred ("Service Term") will be billed the first day of the next month, and the Customer agrees to pay the Fees without any right of set-off or deduction.
Invoices will only be sent via mail to an e-mail address provided by the Customer on the applicable Order Form. Full payment for invoices issued must be received by Givemefive within thirty (30) days after the mailing date of the invoice to Customer.
Givemefive reserves the right to amend the Fees or applicable charges and to institute new charges and Fees at the end of the Service Term or then current renewal term, upon thirty (30) days prior notice to the Customer sent by email. The Customer may terminate the Agreement during twenty (20) days following the receipt of the notice if the Customer does not agree with the new charges and Fees.
If the Customer exceeds its right of use of the Services beyond the limitations set forth in the applicable Order Form and/or Agreement, Givemefive may apply additional Fees, calculated on the basis of the price into force as of the date of such unauthorised use.
All undisputed invoices or undisputed portions of invoices will be paid at the latest thirty (30) calendar days following the reception of the invoice. Any dispute relating to all or part of an invoice must be sent to Givemefive by registered mail with acknowledgement of receipt within fifteen (15) calendar days of the receipt date of the invoice in which the error or problem appeared. After this period, the Customer is irrevocably deemed to have accepted the amount invoiced.
If the Customer does not pay any amount due to Givemefive under or in connection with the applicable Order Form and/or this Agreement, Givemefive may charge the Customer interest on the overdue amount at the rate of twelve (12) % per year from time to time (which interest will accrue daily and be compounded quarterly).
The Customer shall be responsible for all taxes associated with the Services other than Belgian taxes based onGivemefive’s net income.
The Services are provided « as is ». Givemefive does not offer any warranty, express or implied, and expressly disclaims any warranty of merchantability or fitness for a particular purpose.
The Customer acknowledges and accepts that Services are never wholly free from defects, errors and bugs and Givemefive gives no warranty concerning the Givemefive Platform to this effect.
The quality of the Services is dependent on the Customer Data, which are not under Givemefive’s control. The Customer acknowledges that the Derivative Data (including analysis and reports) are the result of a best effort obligation, without any warranty of any kind (in particular accuracy or fitness for a particular purpose).
Givemefive does not warrant that the Customer will be able to download the results of all the analysis performed through the Services available to the Customer.
Givemefive commits to an obligation to use all commercially reasonable efforts to provide the Services in accordance with the Agreement. It can however not accept any obligation to achieve a particular result.
Notwithstanding anything to the contrary, Givemefive shall not be responsible or liable for:
any indirect damages including but not limited to damages for loss of revenue, profits, goodwill, use, data or other intangible loss, loss of profits, damage to reputation, resulting from the use or inability to use the Services
for error or interruption of use,
for any bugs, viruses, trojan horses or the like (regardless of the source of origination) and/or
for any matter beyond Givemefive’s reasonable control.
In addition, the Customer acknowledges that Givemefive is not liable for the functioning of the Services in combination with third party services at the request of or done by the Customer or any Third Party.
In any case, Givemefive’s global, cumulative liability shall be limited to an amount equal to the Fees paid by the Customer under this Agreement during the period of twelve (12) months preceding the event giving rise to the liability claim.
The limitations or exclusions of liability are not applicable to Givemefive’s liability for fraud, willful misconduct or bodily injury of a person caused by Givemefive’s negligence or any other loss for which Givemefive cannot lawfully exclude its liability.
The Customer agrees to indemnify and hold harmless Givemefive against any damages, losses, liabilities, settlements and expenses (including costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the Agreement or otherwise from Customer’s use of Services.
This section shall survive the termination or expiration of the Agreement for any reason whatsoever.
Subject to earlier termination as provided below, this Agreement shall commence on the starting date, as agreed in the applicable Order Form and for the duration set forth in such Order Form.
The Services will be performed for the duration of the initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the initial Service Term, unless either Party requests not to extend the order form at least thirty (30) days prior to the end of the then-current term.
Either Party may terminate this Agreement, without prior court order, if the other Party materially breaches any of the terms of this Agreement and if the other Party fails to resolve the breach within thirty (30) days’ written notice.
Material breaches shall include:
Givemefive may suspend access to the Services if any amounts due to be paid by the Customer to Givemefive are overdue by more than thirty (30) calendar days. In the case of a suspension of the services, the Customer remains fully obligated to pay the Fees and is not entitled to claim any refunds or damages based on such suspension.
The Customer is entitled to immediately terminate the Agreement, without compensation or indemnity, if the proposed changes to the Services or the terms of the Agreement are materially affecting the Services to the Customer insofar the Services cannot function properly with regards to the purpose intended.
The Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, the rights granted to the Customer hereunder and under any and all associated Order Form(s) shall terminate.
At the termination of the Agreement, Givemefive will not transfer the Customer Data to the Customer. All Customer Data uploaded on the Givemefive Platform will be available to the Customer for electronic retrieval on the Givemefive Platform for a period of thirty (30) days following termination. The Customer shall have the responsibility to extract and keep a copy of the Derivative Data, as enabled by the Givemefive Platform.
After termination of the Agreement, Givemefive will keep copies of Customer’s Data, Derivative Data and Workspaces for a period of twelve (12) months. This information may contain the Customer’s Confidential Information. After this period, the Customer Data, Derivative Data and Workspaces will be deleted, unless agreed otherwise by the Parties in writing.Regarding Customer's Personal Data, those will be deleted by Givemefive shortly after the termination of the Agreement. However, those Personal Data may be retained for a duration up to ten (10) years for legal defence purposes.
Failure to exercise or delay in exercising a right or remedy under the Agreement shall not constitute a waiver of such right or remedy.
If any provision of this Agreement is found to be unenforceable, illegal or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and in effect and enforceable.
This Agreement is not assignable, transferable or sublicensable by the Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without further consent.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties. It supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications of any rights, powers or remedies must be in writing signed by both parties, except as otherwise provided herein, which in any case cannot be a consequence of any failure or delay by any Party in exercising any right, power or remedy under this Agreement.
Company’s relationship with the Customer is that of an independent provider. No agency, partnership, joint venture, or employment is created as a result of this Agreement and the Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees. Either Party is not authorized to make any representation, contract or commitment on behalf of the other Party.
Unless executed otherwise by Company, all invoices and notices under this Agreement will by default be communicated via e-mail.
The Company may use the Customer’s name and logo to promote the Customer as a Company’s client to the public and any third party.
The Services are controlled by Company from its offices in Belgium. Company does not make any representation that the Services is appropriate for use in other jurisdictions. The Customer’s use of or access to the Services will not be construed as Company’s purposefully benefiting from doing business in any other jurisdiction other than Belgium.
This Agreement shall be governed by the laws of the country of Belgium without regard to its conflict of law’s provisions.
The Parties shall endeavour to settle all disputes relating to the performance of the Agreement amicably. Should they fail to reach an agreement, the Parties will first consider to settle the dispute under an extra-judicial mediation procedure or under the CEPANI rules of Arbitration, the mediation shall be conducted in French, the place of the mediation shall be Brussels, Belgian Law will apply.
In case no consent or solution can be found between the Parties or in the event of litigation concerning the validity, performance, interpretation, execution or termination of the Agreement and/or the Services shall be under the exclusive jurisdiction of the French-speaking courts of Brussels (Belgium).