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The following Terms and Conditions govern all use of the Platform Givemefive 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” or “Company”).
The present Terms and Conditions together with each applicable order form (defined below) and any special Service Agreement signed between the Company and you (“Customer”) form the “Agreement”.
Company and Customer are collectively referred to as the “Parties” and individually as a “Party”.
The Customer acknowledge that they read and understood the present Terms and Conditions, and agree to be bound by them. These Terms and Conditions apply to the Customer and all Authorised Users who wish to access or use the Services.
The Terms and Conditions together with each applicable order form and any special Service Agreement signed between the Company and Customer.
Any technical, commercial or business information and data which (i) are not, as a body or in the precise configuration and assembly of its components, generally known or readily accessible to the public, (ii) can be communicated in any form or way (orally, visually or in writing, in tangible or intangible form) and (iii) are explicitly marked as confidential or which can reasonably be understood to be confidential. Confidential Information shall include the terms and conditions of this Agreement as well as any copies, analysis, synthesis or abstracts made of Confidential Information as well as any products, apparatus, modules, samples, prototypes or parts that may contain or reveal Confidential Information.
The following information shall not be “Confidential Information”, information that :
at the time of disclosure, is already in the public domain;
after disclosure, becomes a part of the public domain through no violation or breach of this Agreement or any other agreement between the Parties;
is proven, on the basis of documents, to be known or to be independently developed by the Recipient without any use of the Discloser’s Confidential Information;
was obtained from a third party, who is lawfully in possession of such information and is not in violation or breach of any contractual or legal obligation of confidentiality with respect to such information;
is disclosed further to the prior written approval of the Discloser or its representatives.
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.
The Services selected by the Customer, as indicated on the order forms. The Services may cover, among other things, access to:
Services performed by Company for the Customer such as but not limited to: workforce training, coaching, data crunching, market studies or other consultancy services in connection with Services.
A software platform which comprises several modules and is accessible through commonly used browsers. The Givemefive Platform can give access to one or several modules and tools.
Givemefive undertakes to provide the Customer, who accepts, the Services in accordance with the Agreement.
Givemefive will grant the Customer access to certain modules of the Givemefive Platform, as agreed by the Parties in the order form. 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.
The Customer acknowledges that they are aware of the technical characteristics of the Services and that they consider them appropriate to their needs.
The Customer acknowledges that they are aware of the technical characteristics of the Services and that they consider them appropriate to their needs.
The Company shall make the Services available “as a service” (software as a service). The Company shall provide the Services the Customer has selected, as indicted on the 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 Company 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. The Company shall use reasonable efforts 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 the Company’s reasonable control. The Company 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, 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.
The Customer shall use the Services only for internal purposes, i.e. optimising its own pricing strategy. 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 the Company’s prior written consent.
The Customer shall use the Services in compliance with the Agreement, with 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 persons who are authorised to use the Givemefive Platform on behalf of the Customer (the “Authorised User”) and to determine their user rights.
The Customer ensures that Authorised User shall use the access to the Givemefive Platform in accordance with the Agreement and shall 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 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.
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 Service. 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:
interfere with, modify, disrupt or disable features or functionality of the 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 Services;
use the Services or Software 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;
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;
The Company 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, the Company is entitled to request the Customer to remedy the default, pay additional fees, suspend or terminate the Agreement.
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.
In addition to any other remedies it may have, the Company reserves the right to immediately and temporarily suspend access to the Services if the Customer materially breaches the terms of this Agreement, such as Customer’s responsibilities (Section 2), until such breach is cured.
The Company will use commercially reasonable efforts to provide the Customer with the Services. The Company does not accept any obligation to achieve a particular result.
The Company will provide the Customer with reasonable technical support services including FAQ sections,Tutorials videos, emails, phone calls, chat on Givemefive Platform.
The Company 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. The essential features of the Services will remain available.
The Parties may agree to have Company perform certain Consultancy Services for the Customer, agreed in an order form.
The Company 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, …).
Givemefive retains ownership of the intellectual property rights.
Givemefive does not grant any licence to the Customer on the above mentioned rights.
The Customer is entitled to use the Services in accordance with the terms of the Agreement, without acquiring any rightsto the Company’s IP rights. For the avoidance of doubt, the Customer is not entitled to download or otherwise receive any copy of Company’s software or any other confidential information of Company. 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 and Authorised Users will not, directly or indirectly (nor permit or induce) do any of the following:
reverse engineer, decompile, disassemble, translate or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how, proprietary information or algorithms relevant to the Services or the Givemefive Platform, except to the extent that such restriction is prohibited by applicable law and to the extent that the Customer accepts to respect the Company’s Confidential Information;
access the Services in order to build a similar or competitive product or service to the Company’s Services;
use the Services in a manner that violates any third party intellectual property, contractual or other proprietary rights; (iv) remove or alter any proprietary notices or labels.
The Customer can provide ideas, suggestions, requests, feedback, recommendations of any nature to the Company regarding the Services. The Company 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. The Company 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.
Either Party may disclose (the “Discloser”) Confidential Information to the other (the “Recipient”). The Confidential Information belonging to Givemefive shall include in particular (without limitation): methodology, questionnaires, source code, data models, algorithms, data, improvements…
The Confidential Information belonging to the Customer shall include in particular (without limitation): Customer Data. The Discloser warrants that it has the right to disclose the Confidential Information.
The Recipient undertakes:
The Recipient is entitled to use the Discloser’s Confidential Information for the purpose of the performance of the Agreement. Any insights, knowhow, models derived from the Parties’ Confidential Information in the course of the Project may be used by the Party that produces the same, provided that no Confidential Information belonging to the Disclosing Party is disclosed. Hereinafter referred to as the “Obligation of Confidentiality”
The Company 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 party and the Customer’s clients.
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 Company to use the Customer Data for the purpose of providing the Services to Customer and improving Company’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. The Company 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. The Company 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 Company offerings. The Company 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 (“Derivative Data”). The Customer will have the right to use the Derivative Data and is entitled to transfer it to third parties, without prejudice to the Company’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 (“Observed Data”). The Company 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.
The Company is entitled to transfer the Observed Data to third parties, without prejudice to the Customer’s Confidential Information. Company shall be under no obligation to transfer or reveal such Observed Data to the Customer, which accepts that such Observed Data are the Company’s Confidential Information. The 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 if (a) the Recipient discloses the Confidential Information in accordance with a written authorisation of Discloser or if (b) the Recipient must comply with an order of a competent court or administrative authority in a judicial or administrative action, provided that such Recipient 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 Discloser thereof so that the Discloser can seek any legal remedies so as to maintain the confidentiality thereof. In each case the Recipient 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 Recipient agrees that any violation or threatened violation of this Agreement may cause irreparable injury to the Discloser, entitling the Discloser to seek equitable relief, including restraining order, injunctive relief and/or specific performance, in addition to all legal remedies.
The Recipient shall promptly notify the Discloser if it becomes aware of any breach of confidentiality, and shall give Discloser all reasonable assistance to seek a protective or other appropriate remedy, or in any proceedings which Discloser may institute against the breaching person.
The Recipient undertakes, at the first request of the Discloser 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.
In consideration of the Services the Customer must pay the total fees set forth in any applicable order form, in accordance with section 7.
Unless specified otherwise, fees for a given month in which Services incurred 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. Full payment for invoices issued must be received by the Company thirty (30) days after the mailing date of the invoice.
The Company 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.
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 the Company 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 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 on Company’s net income.
The Services are provided « as is ». The Company does not offer any warranty, express or implied, and expressly disclaims any warranty of merchantability or fitness for a particular purpose. The Company 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, the Company shall not be responsible or liable for any indirect, incidental, special, consequential or exemplary 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.
In any case, the Company’s global, cumulative liability shall be limited to an amount equal to the fees paid under this Agreement during the period of twelve (12) months preceding the event giving rise to the liability claim.
The Company shall not be responsible or liable with respect to any subject matter of this Agreement or terms related thereto: (i) For error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business or profits; (ii) For any bugs, viruses, trojan horses or the like (regardless of the source of origination); or (iii) For any matter beyond Company’s reasonable control.
The limitations or exclusions of liability are not applicable to the Company’s liability for fraud, willful misconduct or bodily injury of a person caused by the Company’s negligence or any other loss for which the Company cannot lawfully exclude its liability.
The Customer agrees to indemnify and hold harmless the Company 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.
The Customer acknowledges that :
The Services are provided without any warranty of any kind, either expressed or implied, including, without limitation, warranties of merchantability or fitness for a particular purpose.
The Services are never wholly free from defects, errors and bugs and Company 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 Company’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).
The Company 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.
The Customer acknowledges and agrees that Company is not responsible for
The accuracy, reliability, timeliness or completeness of Customer Data;
The results that may be obtained from use of the Services or
The functioning of the Services in combination with third party services at the request of or done by the Customer or any Third Party.
Subject to earlier termination as provided below, this Agreement shall commence on the starting data, as agreed in the order form.
The Services will be performed for the duration of the initial term as specified in the order form, and shall be automatically renewed for additional periods of the same duration as the initial 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 breaches 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.
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 forms shall terminate.
All sections of this Agreement which by their nature should survive termination will survive termination in full force and effect, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. Effect of Termination on Data and Confidential Information.
At the termination of the Agreement, the Company 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.
No breach of any provision of the Agreement will be waived except with the express written consent of the Party not in breach.
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 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.
In case of any conflict between the terms and any order form, the applicable order form shall control and prevail.
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.
Any litigation concerning the validity, performance, interpretation, execution or termination of the Contract and/or the Services shall be under the exclusive jurisdiction of the French-speaking courts of Brussels (Belgium).
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, the disputes arising out of or in connection with the Agreement will be brought before the French-speaking courts of Brussels.