General Conditions
These general terms and conditions (“General Conditions“) are entered into between Cognit BV, with registered office at Gasthuisstraat 54, 1760 Roosdaal, Belgium, VAT BE 0891.127.518 (“Cognit“), and the Customer entity specified in the Offer referencing these General Conditions (“Customer” or “Licensee”). These General Conditions shall be incorporated into such Offer by reference.
Cognit and the Customer may individually be referred to as a “Party” and collectively as the “Parties”.
1. GENERAL
1.1. These General Conditions shall apply to all offers, proposals, propositions, orders, agreements (“Offer”), and deliveries for the supply of goods, including the “Involv” software (as may be renamed by Cognit from time to time) (“Software“) licenses and/or services, including any services and support services related to the Software, by Cognit to the Customer (. By signing or otherwise accepting an Offer, the Offer shall become a binding agreement on the Customer. If the Customer requests delivery by Cognit without an Offer having been signed or an order having been issued by the Customer, the corresponding Offer shall be deemed accepted by the Customer.
Deviations from or additions to these General Conditions will only be enforceable against Cognit if Cognit has expressly agreed to them in writing, explicitly referencing the provisions of these General Conditions which Cognit agrees to modify. If such deviations or additions are agreed to in respect of a particular Offer or delivery, the Customer shall not derive any rights for future or other transactions/Offers from such agreed derogations. Except for the foregoing, additional or deviating terms and conditions (such as (without limitation) terms and conditions set out in Customer purchase orders or other Customer or third-party documents) are hereby explicitly excluded, even if Cognit does not reject them on a case by case basis.
1.2. By placing an order, by approving an Offer, by signing or otherwise accepting an agreement (including an Offer) proposed or issued by Cognit, or by allowing performance of such order, Offer or agreement without it having been signed by the Customer, the Customer unconditionally and irrevocably accepts these General Conditions, which shall be binding on it. These General Conditions, together with any Offer or other applicable agreement emanating from Cognit, shall jointly be referred to as “the Agreement”.
1.3. The Customer may not assign the Agreement in whole or in part to any third party, without the explicit written agreement of Cognit.
2. SOFTWARE/SUPPORT SERVICES SPECIFIC TERMS
2.1. To the extent that the scope of the Offer or delivery relates to Software licenses, and subject to the payment of all fees or other amounts due by the Customer in respect of such Software licenses and related services, Cognit shall grant to the Licensee such number of Software licenses as set out in the relevant Offer, each such license constituting a restricted, personal, non-exclusive and non-transferable license for the use of the Software, in accordance with its documentation (as made available by Cognit) and in object code only, and limited to the Licensee’s own business use (in any event excluding sublicensing, reselling, redistribution, or otherwise commercialising or making the Software available to third parties (whether or not at a charge)) . For the sake of clarity, the Software is licensed to the Licensee, it is not sold, and except for the limited user rights granted to the Customer as set forth herein, Cognit shall retain all rights, title and interest in and to the Software.
2.2. The Software will be installed (by the Customer) on an Office 365 tenant of the Licensee, which operates in a shared cloud infrastructure of Microsoft.
2.3. Licensee’s use of the Software shall be limited to the maximum number of Users (and such other license parameters, if any), as specified in the Offer or as otherwise authorized in writing by Cognit.
A “User” is a person who (i) has obtained a valid Office 365 license, lawfully used for the Customer’s business purposes, and (ii) has access to and makes use of the Software for the Customer’s business purposes and has been identified with a unique username with secured password. The Customer warrants that (i) only one and the same person has access to and can use the Software as a User with its personal username, and (ii) the password is secured and will not be shared with others.
The Customer shall be responsible for identifying and authenticating all authorised Users, for approving and revoking access to the Software by such authorised Users, for controlling against unauthorised access to the Software, and for maintaining the confidentiality of access credentials (e.g. username and password). The Customer accepts responsibility for the confidentiality and timely and proper termination of user records in the Customer’s local (e.g. intranet) identity infrastructure or on the Customer’s local computers and systems. The Customer will be responsible for all activities that occur under the Users’ access credentials (whether performed by a User or third party), and for implementing its own security measures in order to safeguard the access credentials and to prevent disclosure of these access credentials to any unauthorised third party.
2.4. The support services fee will be calculated based on the contractually agreed number of Users. In case the Customer needs more Users, a written request must be sent by the Customer to Cognit’s designated (email) address and an invoice for such additional requested Users will be issued to the Customer for payment. Upon payment of the corresponding fees, the licensed number of Users shall increase accordingly.
2.5. Cognit may contact Licensee from time to time to verify that the actual number of Users does not exceed the licensed number of Users and that no unlicensed use has occurred. Licensee shall respond to these requests for information without undue delay, providing an accurate and complete written count of Users and other reasonably requested usage information. In the event Licensee does not (timely or correctly) communicate such information, or if Cognit has reasonable grounds to suspect that the information provided is incorrect or incomplete:
(i) Cognit shall be entitled to (have a third party) audit the Customer’s use of the Software (including through means of onsite visits), and the Customer shall fully cooperate with such audits and provide Cognit or its third-party auditor with such access to information, systems, resources and premises as reasonably required for Cognit to obtain or verify the requested Software use Information. Audit related costs (other than the Customer’s internal costs) shall be borne by Cognit unless the audit reveals an underpayment by the Licensee, in which case the Customer – in addition to payment of additional fees (subject to retroactive late payment interest as of the date the licensed use was exceeded) to reflect the Customer’s actual use of the Software -, all audit related costs shall be borne by the Customer;
(ii) Cognit shall be entitled to additional compensation to reflect the Customer’s actual or suspected use of the Software;
(iii) Cognit may terminate the Agreement with immediate effect for the Customer’s breach;
(iv) Cognit may exercise such other rights and remedies as available to it;
the afore listed being cumulative rights and remedies.
2.6. Cognit reserves the right to install and use license manager products (such as key-based software) to control the number of and/or use by Users with the Customer. By acceptance of these General Conditions, the Customer hereby grants Cognit explicit permission to install and use such products.
2.7. In the event the Customer purchases Software support services, Cognit will remotely (except as stipulated otherwise herein, subject to payment of additional fees) supply the following support services in respect of the Software, subject to timely payment by the Customer of all Software license and support services fees:
Response Time. Cognit will use reasonable efforts to respond within two (2) business days* (target) after Cognit has received the request for assistance in accordance with such process as set out below (or as otherwise communicated by Cognit from time to time). Licensee will provide reasonable cooperation including to allow Cognit to identify, reproduce and address the issue.
(*Monday through Friday, 9am – 5pm CET/CEST, excl. Belgian public holidays)
Telephone hours. Telephone assistance will be available Monday through Friday 9am CET/CEST to 5pm CET/CEST, excluding all official holidays in Belgium.
Help desk support. Licensee’s support contact, which is the authorized individual registered with Cognit, may contact the Software Technical Support Team for reasonable assistance and advice related to Licensee’s use of the Software. Support services in respect of the full Office 365 environment are not included. Contact information may be found at https://www.involv-intranet.com/contact/
New releases. Cognit has the right from time to time to update the Software to incorporate error corrections, minor enhancements, and, in some instances, new functionality or major enhancements. As long as Licensee is eligible for support services, Cognit will make each such new release available to the Licensee by remotely updating the Software/installing such new releases, without additional charge. New releases are subject to the terms and conditions hereof.
In the event such remote installation/update is not possible or not permitted by the Licensee, Cognit will provide reasonable assistance to help Licensee install each new release manually, provided that such assistance will be subject to such supplemental charges as may be determined by Cognit from time to time (which shall include time performed and expenses incurred). Cognit is not otherwise obligated to provide non-remote maintenance or support.
Provider of support services. Cognit may provide support services, or other services hereunder, either itself or (wholly or in part) by means of a Cognit designated third party, at the sole discretion of Cognit.
Changes in support services. Cognit has the right to change the content of the support services provided that it does not materially reduce the level of service as originally contracted by the Customer, Such changes will be communicated to the Customer in due time.
3. OFFERS AND ORDERS
3.1. Offers
Offers apply to the B2B market only.
Unless expressly stated otherwise or otherwise agreed in writing by Cognit, every Offer has a validity term of 30 calendar days as of the date of the Offer and shall automatically become null and void on its expiry date.
All terms, references to technical data or other elements stated in an Offer are purely indicative and non-binding on Cognit unless and until the Offer is accepted (through signature) by the Customer within its validity term. Cognit has the right to rectify any mistakes made in an Offer, to issue a replacement Offer, or to withdraw an Offer at any point in time prior to the Customer’s acceptance (through signature) thereof.
Offers will be based on information provided by the Customer. In the event Cognit discovers that the information provided is not correct, the Customer will be informed thereof. In the event additional services need to be performed by Cognit as a result, or other changes to the original Offer are required, an additional and/or replacement Offer will be provided by Cognit. Cognit has the right to suspend the Agreement performance in the meantime until the Customer has accepted such new Offer.
Cognit shall not be responsible for any adverse impact on the Agreement performance (including cost and timeline impact) as a result of such Customer information having been incorrect or incomplete or as a result of such suspension, any such impact to be borne by the Customer.
Offers can be requested at [email protected].
3.2. Orders
By placing an order or accepting an Offer, the Customer acknowledges to be fully informed and to understand the content of the Offer. Every order will be binding on the Customer. Cognit will only be bound by an order from the Customer if Cognit has explicitly confirmed its acceptance in writing. There shall be no acceptance through passage of time. The Agreement will only become effective as of such Cognit acceptance of the order.
In case of cancellation by the Customer of an order or accepted Offer other than as expressly contractually permitted, (i) there will be no refund of any prepaid unused fees; (ii) Cognit shall be paid for any services already rendered (subject to what is stipulated in clause 6.1. e.g. minimum hours) up until and including the actual termination date; and (iii) additionally, a fixed compensation will be due by the Customer equal to 30 % of the total price for the supply of goods and/or services in scope of such order/Offer, without prejudice to any other rights and remedies available to Cognit.
4. DELIVERY OF GOODS AND SERVICES
4.1. The Customer accepts partial deliveries of goods and services.
4.2. The signing by the Customer of the delivery slip shall constitute delivery confirmation and acceptance of the delivered goods or the delivered services.
The risk relating to the goods (including as regards loss and damage) is transferred to the Customer at the time of delivery. The risk related to the services is transferred to the Customer upon delivery or, to the extent contractually agreed to be subject to acceptance, upon acceptance of the services.
To the extent goods are being purchased by the Customer (i.e. transfer of ownership; excluding Software licenses), the transfer of ownership of the goods shall take place only after payment of the total corresponding price and of any interests or other compensations as may be due to late payment.
4.3. Cognit has the right, during its performance, to make certain technical improvements or changes to ordered goods and services in accordance with applicable laws and regulations, or to reflect changes in technology, industry practices or patterns of system use without having to obtain the Customer’s consent, provided that these are either legally required to be made, or do not adversely impact the contractually agreed functionality or performance. If during the performance of the services it becomes clear that the Agreement cannot technically be executed, Cognit reserves the right to terminate such Offer, without any right to compensation or indemnification for the Customer except that, in the event such inability to perform is solely attributable to Cognit, the Customer shall obtain a refund of any prepaid unused fees.
4.4. Cognit may outsource or subcontract the performance of the Agreement in whole or in part, without the prior written consent of or notification to the Customer. Cognit shall remain responsible towards the Customer for such outsourced/subcontracted performance.
4.5. Any timelines for performance as may be set out in the Agreement shall be indicative target dates only, in respect of which Cognit shall use reasonable efforts to meet them, unless expressly stipulated to be a binding milestone. Cognit can only be held responsible for failure to meet a binding milestone to the extent such failure is attributable to it.
5. SPECIFIC CUSTOMER OBLIGATIONS
5.1. The Customer will timely provide Cognit with all information and documentation (to be accurate and complete) as necessary for Cognit’s performance of the Agreement, and shall cooperate with Cognit as required for the adequate performance of the Agreements.
The Customer warrants to have all necessary licenses for all software which it uses as relevant to the Agreement, including software of third parties. The Customer shall at all times hold Cognit harmless and indemnify Cognit for all possible claims of third parties based on a breach of this warranty. The Customer shall also make sure that its hardware meets the minimum requirements, as communicated by Cognit from time to time. Cognit shall not be responsible for failure of the Software to function in accordance with the agreed specifications to the extent such failure is not attributable to Cognit.
5.2. The Customer acknowledges and agrees that Cognit’s performance of the Agreement is dependent on the Customer’s cooperation. In addition to any other Customer dependencies as may be set out in the Agreement, the Customer agrees for Cognit representatives involved in the performance of the Agreement to access the Customer’s premises and installations (incl. hardware, software, networks) during normal working hours and in accordance with the access regulations of the Customer (to the extent timely notified to Cognit), and to timely provide for all resources which are necessary for Cognit to adequately perform the Agreement.
The Customer acknowledges and agrees that, in the event the Customer fails to meet any of its obligations under the Agreement, or should agreed assumptions prove incorrect, any resulting adverse impact on the Agreement performance (incl. as regards timelines and fees) shall be borne by the Customer.
5.3 Software specific
Except to the extent such restriction is prohibited under applicable law, the Licensee agrees not to reverse engineer, decompile, or disassemble the Software or in any way to use the Software other than as expressly permitted hereunder, including to create a similar or competing product. Licensee may not rent, lease, lend or make available the Software to third parties. Licensee agrees not to use, copy or otherwise exploit the Software except as expressly permitted by the Agreement.
6. PRICES, INVOICES AND PAYMENTS
6.1. All prices and other amounts are expressed in euro and excluding VAT and other taxes and charges which shall be borne by the Customer. If these taxes and charges increase after the conclusion of the Agreement, such increase will be passed on to the Customer. Any additional work and updates compared to the originally agreed Agreement scope will be charged at Cognit’s then applicable rates (unless otherwise agreed in an Offer).
Except as otherwise agreed in the Offer, (i) the goods will be charged at fixed prices, and (ii) the services will be charged in blocks of {x} hours (at Cognit’s then applicable rates) with each commenced block being charged in full, or at fixed prices as mentioned in the Offer. Any fixed price shall be based on the scope explicitly set out in the Agreement and there shall be no implied goods or services.
Other costs will be charged separately.
6.2. All invoices are payable by their due date and on the account number as mentioned in the invoices. Prior to the start of the Agreement performance or during the Agreement performance, Cognit may require the Customer to make advance payments without having to justify such request. These advance payments will be deducted from the final invoice.
In case of non-payment of an uncontested invoice at maturity, an interest of 10% on the total amount of the invoice will automatically be due, without notice requirement, which interest shall be compounded daily as of the due date until Cognit’s receipt of full payment. Furthermore, in case an invoice is not paid in whole or in part within thirty days following its due date, the Customer must, automatically and without legal notice, pay an additional compensation of 10% on the total invoice amount with a minimum fee of 250 euro. All legal and extrajudicial collection costs of invoices are at the Customer’s expense, with a minimum fee of 10% of the total amount of each invoice. Without limiting the foregoing, in case of total or partial non-payment of an invoice upon its due date, Cognit (i) has the right to suspend its obligations and the Customer’s rights under the Agreement and to terminate the Agreement for the Customer’s breach, and (ii) may claim immediate payment of all outstanding amounts, including those not yet due.
6.3. All payment by the Customer shall be final and non-refundable. The Customer is not entitled to set off its outstanding amounts against any payments as may be due by Cognit.
6.4. In the event the Customer disputes any portion of an invoices, in order to be valid, the Customer must notify Cognit thereof in detail (setting out the nature of the dispute and the amount involved, together with any appropriate information supporting the Customer’s position) without undue delay and in any event within the payment term, failure of which shall result in the invoice being deemed to be accepted. The undisputed portion of the invoice shall be paid as set forth herein.
The Customer may only suspend payment if the relevant invoice was contested as set out above, and on condition that the Customer can prove that Cognit has not fulfilled its contractual obligation that is the subject of the contested fees and then only if Cognit was put on notice in respect of such default. The amount of the suspended payment can only relate to that part of the goods or services that corresponds to the alleged non-performance of the contractual obligation. A full suspension of payment by the Customer is only possible if (part of) the goods or service cannot be separately identified on the invoice.
6.5. The Customer agrees that, in the event of late payment of uncontested invoices, Cognit shall be entitled to request the immediate return of the related goods to Cognit, and if the Customer fails to return the goods, shall allow access to its premises to allow Cognit to take possession of such goods. The Customer shall bear all transport costs related to such return/repossession.
7. FORCE MAJEURE
7.1. In the event that either Party is prevented from (timely) performing any of its non-monetary obligations under the Agreement due to causes beyond its reasonable control (‘Force Majeure’), including (without limitation) strikes, total or partial stagnation of transport, electricity and telecommunication disturbances, malfunctions, Force Majeure on the part of its suppliers, casualty, fire, flood, epidemic, terrorist attack, unavailability of material, and government decisions, such Party’s performance shall be excused and the time for performance shall be extended for the period of delay or inability to perform due to Force Majeure, or such longer period as reasonably required as reasonably demonstrated by the requesting Party. The Party invoking Force Majeure shall notify the other Party of the Force Majeure event and its expected impact and duration without undue delay, and the Parties shall use reasonable efforts to mitigate any adverse impact on the Agreement performance.
7.2. If the Force Majeure lasts longer than 10 consecutive working days, each Party has the right to terminate the Agreement with immediate effect on giving written notice thereof, without any termination compensation being payable. In such event, Cognit will be entitled to payment from the Customer of all delivered goods and services
8. CONFIDENTIAL INFORMATION
8.1. For the purposes of these General Conditions, ‘Confidential Information’ of a Party shall mean information that (i) is expressly designated as confidential (or a similar designation), or (ii) regardless of whether or not it is expressly designated as confidential, should reasonably be understood to be confidential, given its nature or the circumstances surrounding its disclosure. Confidential Information shall include (without limitation) software (in object and source code form), intellectual property, client information, customer lists, business contacts, business plans, policies, procedures, techniques, ideas, know-how, methods, standards, products, trade secrets, product or service specifications, manuals, economic or financial information, marketing plans, including any information, work papers, analyses, compilations, comparisons, projections, studies, documents, terms, conditions, correspondence, facts or other materials derived or produced, in whole or in part, from such Confidential Information, including any copies thereof.
8.2. The term “Confidential Information” does not include information that (i) is or becomes generally available to the public other than as a result of a disclosure by the receiving Party hereunder, or (ii) is or becomes available to the receiving Party on a non-confidential basis from a source other than the disclosing Party hereunder, provided that such source is not bound by a confidentiality agreement with the disclosing Party, (iii) was or is developed by or on behalf of the receiving Party without use of or reference to the disclosing Party’s Confidential Information, or (iv) was in the receiving Party’s possession without confidentiality obligations prior to disclosure under the Agreement.
8.3. The Parties shall treat all Confidential Information, obtained (orally or in writing, in whichever form) from the other Party hereunder in strict confidence and they shall not disclose it to third parties without the prior, express, written consent of the disclosing Party, except in the event disclosure would be required by law or by a judicial authority. In such case, the receiving Party will immediately inform the disclosing Party of such requirement, to the extent legally permitted, so that the disclosing Party may seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, the receiving Party shall furnish only that portion of the Confidential Information which is legally required and the receiving Party shall seek to obtain reasonable assurance that confidential treatment will be accorded to that Confidential Information.
8.4. The Parties may use the other Party’s Confidential Information solely for the purposes of the Agreement.
8.5. Each Party shall be entitled to disclose Confidential Information to those of its and its affiliates’ employees, contractors, officers, directors, and professional advisers (‘Representatives’) having a reasonable need to know such information for the purposes of the Agreement, provided that each of them is bound by a duty of professional secrecy or written confidentiality undertakings at least as stringent as those set forth herein prior to being granted access to such Confidential Information. The receiving Party shall be responsible for a breach of these confidentiality obligations by its Representatives.
8.6. Cognit will have the right to disclose the existence of the Agreement with the Customer for publicity and other commercial purposes (including referencing the Customer on customer lists) without having to obtain the Customer’s additional consent. When referencing the Customer’s business name, trade name or logo for such purposes, Cognit shall comply with the Customer’s reasonable guidelines regarding such use as notified to Cognit.
9. INTELLECTUAL PROPERTY RIGHTS – PERSONAL DATA
9.1. For the purposes of these General Conditions, “Intellectual Property Rights” shall mean patents, trademarks, service marks, trade secrets, copyright, design rights, know how, rights in Confidential Information, trade and business names, domain names, database rights, sui generis rights (including in software), rental rights and any other intellectual and industrial property or similar rights throughout the world, whether or not registered, including applications for and the right to apply for, maintain and enforce any of the preceding items.
Any Intellectual Property Rights in any work (results), goods, including Software, or services that are owned, used or created by or on behalf of Cognit (including by its employees, consultants or subcontractors) in the context of the performance of the Agreement (including in any software, documentation, technology, or other material), shall, as between Cognit and the Customer, remain the exclusive property of Cognit and/or its licensors, as applicable. The delivery of goods, including Software, or services by Cognit to the Customer does not imply any transfer of any such right whether to the Customer or any third party. The fees paid by the Customer shall only cover a restricted use right as set out in the Agreement.
In the event the Customer obtains a license from Cognit, the Customer may only use the licensed material in accordance with the terms and conditions of the applicable (third-party) license terms and conditions.
In the event the Customer provides material to Cognit (such as software, texts, images, documentation, information) in the framework of Cognit’s performance of the Agreement, the Customer warrants to have obtained all necessary rights and licenses to allow Cognit to use such material hereunder and that Cognit’s use thereof will not infringe any third-party Intellectual Property Rights. The Customer shall indemnify and harmless Cognit against any damages, losses, expenses and claims as may result from a breach of this warranty.
9.2. If the Parties exceptionally agree – expressly and in writing – to the transfer of Intellectual Property Rights in anything specifically developed by Cognit for the Customer (as specified in the relevant Agreement), in any event excluding Software, such transfer shall only become effective upon the Customer’s payment of the total corresponding price (including any additional costs as may be payable by the Customer (including interest and compensation due to late payment of invoices)).
9.3. Cognit shall defend and indemnify the Customer as specified herein against any claims brought by third parties to the extent such claim is based on an infringement of the Intellectual Property Rights of such third party by the goods (including Software) licensed to the Customer under the Agreement and excluding any claims to the extent resulting from (i) the unauthorized use of such goods, (ii) the modification of any of those goods other than by Cognit, (iii) failure to use the most recent version of those goods made available to the Customer, or failure to integrate or install any corrections to such goods issued by Cognit, if Cognit indicated that such update or correction was required to prevent a potential infringement, (iv) use of those goods in combination with any non-Cognit products or services, or (v) those goods having been developed to the Customer’s design or incorporating documents, materials, ideas, data or other information, provided by or on behalf of the Customer.
Such indemnity obligation shall be conditional upon the following: (i) Cognit is given prompt written notice of any such claim; (ii) Cognit is granted sole control of the defense and settlement of such a claim; (iii) upon Cognit’s request, the Customer fully cooperates with Cognit in the defense and settlement of such a claim, at Cognit’s expense; and (iv) the Customer makes no admission as to Cognit’s liability in respect of such a claim, nor does the Customer agree to any settlement in respect of such a claim without Cognit’s prior written consent. Provided these conditions are met, Cognit shall indemnify the Customer for the damages and costs incurred by the Customer as a result of such a claim, as awarded by a competent court of final instance, or as agreed to by Cognit pursuant to a settlement agreement (provided that such settlement fully releases the Customer from any (financial) liability in respect of the claim).
In the event the goods licensed to the Customer pursuant to the Agreement, in Cognit’s reasonable opinion, are likely to become or become the subject of a third-party infringement claim (as set out above), Cognit shall have the right, at its sole option and expense, to: (i) modify the ((allegedly) infringing part of the) goods so that they become non-infringing while preserving equivalent functionality; (ii) obtain for the Customer a license to continue using those goods in accordance with the Agreement; or (iii) terminate the relevant license and pay to the Customer an amount equal to any prepaid unused fees.
The foregoing states the entire liability and obligation of Cognit and the sole remedy of the Customer with respect to an infringement of any Intellectual Property Rights caused by the goods licensed to the Customer by Cognit pursuant to the Agreement.
9.4. The Parties shall process personal data (each as defined in applicable data protection legislation) only for the purposes as contractually agreed upon, in accordance with the applicable legislation. Reference is made to the provisions on personal data processing as set out in Cognit’s privacy policy as set out on its website, which are incorporated herein by reference. In the event applicable data protection law requires the Parties to enter into a data processing agreement, the Parties will enter into Cognit’s standard data processing agreement.
The Customer agrees not to provide Cognit with any personal or other sensitive data except as strictly required for Cognit’s performance of the Agreement, and the Customer undertakes to sanitise (including through anonymisation or pseudonymisation) any (personal) data submitted to Cognit pursuant to the Agreement. If the Customer fails to meet this obligation (except where Cognit expressly requested to receive such data), Cognit cannot be held to be in breach of any data protection, information security or confidentiality obligations under the Agreement by processing such data in performing the Agreement.
10. WARRANTIES
10.1. All contractual obligations of Cognit are reasonable efforts rather than result obligations. Cognit does not provide any explicit or implicit warranty regarding the goods or services or any other material made available to the Customer pursuant to the Agreement, and Cognit expressly disclaims all warranties and representations including warranties as to fitness for a particular purpose, merchantability, title or non-infringement, accuracy or completeness of information, or goods (including Software) being error-free or functioning without interruption. Except as may be expressly stipulated otherwise in the Agreement, all goods (including Software) and services provided by Cognit will be provided to the Customer “as is”.
10.2. The Customer shall be responsible for taking the necessary measures to safeguard the integrity, safety and maintenance of the software (including the Software), hardware and all other materials made available to it by Cognit pursuant to the Agreement.
10.3. All goods and services delivered (whether directly or indirectly) to the Customer by a subcontractor of Cognit, shall be subject to the applicable third-party terms and conditions, including as regards terms of warranty and liability.
Without limiting the foregoing, Cognit shall not be responsible for the (cloud) infrastructure of Microsoft (or any other third-party hosting provider) or its functioning.
10.4. Immediately upon delivery, the Customer must control the goods, including the Software, and services on their conformity and possible defects. All claims regarding non-conformity of the goods or services with the agreed specifications must be notified to Cognit by the Customer in writing, in reasonable detail, within seven (7) days after delivery of the goods and services in order to be valid.
In the event of such a defect, the Customer’s sole remedy and Cognit’s sole obligation shall be for Cognit to remedy the defect at its own expense, or, at Cognit’s option, to replace (the defect portion of) the goods or service free of charge. Cognit is entitled to replace or repair the Software through the systems of the Customer by means of an internet link. The Customer hereby agrees to provide the necessary access to Cognit to allow for such remediation. Only if such remediation or replacement is not reasonably feasible, as determined by Cognit, shall the Customer be entitled to a prorated refund (in the event fees in respect of the defected goods or services were prepaid) or an appropriate price reduction, as reasonably determined by Cognit.
11. LIABILITY
11.1. To the maximum extent permitted under applicable law, Cognit shall not be liable under the Agreement for any consequential or indirect damage or loss, or for loss of or corruption to data, data recovery, loss of profits, income, sales or other financial or commercial losses, the cost of procuring replacement goods or services, opportunity loss, loss of anticipated savings, or reputational damage. Cognit can in any event only be held liable to the extent damage suffered by the Customer is directly and exclusively attributable to Cognit’s breach of the Agreement.
11.2. To the maximum extent permitted under applicable law, Cognit’s liability to the Customer shall be limited to 1000 euro per liability event, provided that Cognit‘s aggregate liability (i.e. all claims combined) resulting from the Agreement shall not exceed 50% of the total value of the Agreement (namely fees paid and payable by the Customer pursuant to the Agreement, excl. taxes and reimbursable expenses and excluding any uncontested fees that are overdue).
12. TERM AND TERMINATION
12.1. The duration of the Agreement will be as set out in the relevant Offer or if no such period is defined, until performance of the Parties’ respective obligations under the Agreement.
12.2. Each Party shall be entitled to terminate the Agreement with immediate effect, without any termination compensation being payable, on giving written notice of such termination: (a) if the other Party is in breach of a contractual obligation under the Agreement and fails to remedy such breach within 30 days of receipt of a default notice, or (b) in the event the other Party is the subject of a voluntary or involuntary bankruptcy, liquidation, insolvency or similar proceeding or otherwise liquidates or ceases to do business. Cognit may terminate the agreement in the event of a change of control of the Customer, whereby ‘control’ means the direct or indirect power to direct the affairs of an entity through at least 50% of the shares, voting rights, participation or economic interest in such entity.
12.3. In case of early termination of the Agreement by the Customer as permitted hereunder, fees in respect of licenses and services rendered shall remain payable by the Customer up to the actual termination date and shall become payable upon such early termination. All user rights granted to the Customer shall automatically terminate upon such termination. As regards any goods purchased by (rather than licensed to) the Customer, fees shall remain payable in full and shall become payable upon such early termination (to the extent not already paid).
12.4. In case of early termination of the Agreement by Cognit as permitted hereunder, or early termination by the Customer other than as expressly permitted hereunder, fees in respect of goods and services shall remain payable by the Customer in full, for the full contracted term and scope, and shall become payable upon such early termination (to the extent not already paid). All user rights granted to the Customer shall automatically terminate upon such termination.
12.5. In case of early termination of the Agreement, all licenses will automatically end, and the Licensee must immediately discontinue all use of the licensed goods, including the Software. Cognit has the right to verify whether the Software was uninstalled and is no longer being used by the Customer or any User and to this end, the Customer shall without undue delay provide Cognit with such access to its premises and systems as reasonably required to enable Cognit to exercise its verification right.
13. NON-RECRUITMENT
13.1. During the term of the Agreement and for 12 months after its termination, neither Party shall without the other Party’s express consent directly or indirectly solicit, employ or otherwise engage (in whatever capacity, whether as an employee or consultant) any employees, consultants, representatives or subcontractors of the other Party to the extent directly involved in the performance of the Agreement.
13.2. If a Party violates this article, giving rise to actual employment/engagement of the other Party’s personnel or representatives, such Party shall upon first request pay the other Party, as sole remedy, a lump sum indemnity equal to twelve times the total gross salary/compensation each such person so hired/engaged earned with the other Party during the last full month such person worked for such Party.
14. APPLICABLE LAW AND JURISDICTION
14.1. The Agreement, including these General Conditions, shall be exclusively governed by the laws of Belgium.
14.2. Any dispute arising hereunder which cannot be amicably settled within a reasonable period from having arisen shall be submitted to the exclusive jurisdiction of the courts of Brussels.
15. MISCELLANEOUS
15.1. Relationship. Cognit will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of the Agreement. The Agreement does not create a partnership, franchise, joint venture, agency, or fiduciary relationship between the Parties.
15.2. Notices. Any notice given under the Agreement must be in writing and delivered by email to the following addresses (or alternative addresses provided in writing by each Party):
– For Cognit: [email protected] or as otherwise specified in the relevant Offer.
– For the Customer: as specified in the relevant Offer.
All notices will be deemed to have been delivered the second business day after sending by email.
15.3. Feedback. Cognit may freely use any Feedback without attribution or the need for Cognit (or any third party) to pay the Customer or any third party any royalties or other fees of any kind, whereby “Feedback” means any suggestions or recommendations for improvement of, or modifications to, the goods (including the Software) or services made by or on behalf of the Customer.
15.4. Waiver, Modification. No failure or delay by either Party in exercising any right under the Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies provided by law. The Agreement may not be modified nor any rights under it waived, in whole or in part, except in writing signed by the Parties.
15.5. Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be illegal, unenforceable, or invalid, the provision may be interpreted by the court so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining portions of the Agreement will remain in full force and effect. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted.
15.6. Independent Allocations of Risk. Each provision of the Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of the Agreement between the Parties. This allocation is reflected in the pricing offered by Cognit to Customer and is an essential element of the basis of the agreement between the Parties.
15.7. No Third-Party Beneficiaries. There are no third-party beneficiaries to the Agreement, including, without limitation, Users.
15.8. Entire Agreement. The Agreement contains the entire understanding of the Parties relating to the subject matter of the Agreement and supersedes all earlier agreements, understandings, proposals, discussions, negotiations, representations and warranties, both written and oral, regarding the subject matter. No modification or amendment of any provision of the Agreement will be effective unless in writing and signed by the Party against whom the modification or amendment is to be asserted.
15.9. Anti-Corruption and Compliance. The Customer acknowledges and agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Cognit’s employees or agents in connection with the Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If the Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Cognit of such violation. Each Party agrees to comply with applicable trade control laws and regulations.
15.10. Counterparts. The Agreement (or a component thereof) may be executed (or otherwise accepted) in counterparts, which taken together will form one legal instrument. The Parties agree that signed Transmitted Copies shall be deemed as effective as original documents. “Transmitted Copies” will mean copies that are reproduced or transmitted via photocopy, facsimile or electronic means (e.g. digital signatures, PDF) or other process of complete and accurate reproduction and transmission.