1. Introduction
These Terms of Service (“Terms”) shall apply to the provision of Software and/or Services by TenForce NV (“TenForce”) or its Affiliate(s) or distributors to the Customer. By using the TenForce Software, Customer (including its affiliates and users) confirm that they have read and agree to these Terms of Service. Where Software is supplied to Customer, the terms of this document shall govern access to and use of the said Software. Please therefore read the Terms carefully.
2. Definitions
“Affiliate(s)” shall mean any entity, corporation, partnership or company which is controlling, controlled by or under the same control, directly or indirectly, as TenForce. For the purposes of this definition control means more than fifty percent (50%) of the controlling votes of the entity.
“Agreement” shall mean (i) either the written agreement entered into by and between TenForce or its Affiliates or distributor and Customer, or (ii) the offer and subsequent agreement of purchase made between TenForce, its Affiliates or distributors and the Customer, for the purposes of purchasing a TenForce Software License and/or related Services (as defined below); to which these Terms of Service shall form part of.
“Authorized Recipients” means the following persons who need access to Confidential Information (as defined under article 9) for the purposes of rendering the Services: (a) the directors, officers, employees and advisers of TenForce and its Affiliates (b) Affiliates of TenForce.
“Consulting Services” shall have the meaning as set out in article 7.
“Customer Specific Configurations” means configurations (workspaces, lists, forms, workflow, authorizations, …) in the Software or the development of scripts in the Software; specific to a Customer.
“Documentation” means any and all operator and user manuals, training materials and guides for use in conjunction with the Software.
“License Agreement” means the Agreement for the purchasing of a Software License and Maintenance and Support Services.
“Licensee” means the Customer who is a party to a License Agreement with TenForce.
“Maintenance and Support Services” shall have the meaning as set out in article 6.
“Services” means Maintenance and Support Services and/or Consulting Services.
“Software” means the executable code of the commercially released version of the TenForce software program modules. “Software” also includes any Updates as may be regularly provided by TenForce to Licensee as part of any Maintenance and Support Services purchased by Licensee.
“Software License” means the right to use the Software and associated technical data and documentation, granted herein to Customer, in accordance with these Terms and the terms and conditions set forth in the Agreement.
“Updates” means any enhancements, revisions, bug fixes, updates for the Software provided by TenForce generally to its customers that have purchased Maintenance Services for the Software, excluding new products or separate functionalities and updates to Customer Specific Configurations.
3. Execution by Affiliates
A Licensee Affiliate may sign an addendum referencing the License Agreement in its own name and such Affiliate contract will be a separate, but associated, contract incorporating the terms of the License Agreement with respect to that addendum. If the Software or Services are being used by the Licensee Affiliates, Licensee will arrange to have their respective Affiliates comply with the License Agreement, regardless of whether an Affiliate has signed an addendum.
4. Rendering of Services
TenForce agrees to execute its obligations under the License Agreement and/or these Terms of Service and to render the Services with reasonable skill and care.
TenForce only executes Customer Specific Configurations upon explicit request and requirements of Customer.
5.Software License
5.1 GRANT OF LICENSE
Subject to the terms of the License Agreement and these Terms of Service, TenForce grants the Licensee, a non-exclusive, limited license to use the Software in conformance with the Documentation. When using the Software, Licensee is responsible for the security of its own network. Licensee shall be directly responsible to TenForce for the use of the Software by its employees, independent contractors and authorized third parties accessing the Software through Licensee, in compliance with the License Agreement and these Terms of Service.
5.2 OWNERSHIP OF SOFTWARE AND DOCUMENTATION
Licensee acknowledges and agrees that all right, title, and interest to, and all copyrights, patents, trade secrets and/or any other intellectual property rights in, the Software and Documentation are and will remain solely the property of TenForce and/or TenForce’s licensors if applicable. Except for the license rights expressly provided herein, no rights to the Software or Documentation are granted to Licensee or any other third party.
5.3 RESTRICTIONS
Licensee shall not, and shall not permit any third party to, (i) reverse engineer, disassemble, reverse translate, decompile, or in any other manner decode the Software in order to derive the source code or for any other reason, except if permitted by any applicable law (e.g. for the purposes of achieving interoperability with other products); or (ii) copy, modify, enhance, adapt, or translate the Software, except for a reasonable number of copies for its own internal testing, disaster recovery and backup purposes or if permitted by any applicable law.
5.4 RECORD KEEPING
Licensee shall keep true and accurate records with regard to compliance with the Agreement and these Terms of Service. TenForce shall have the right to audit Licensee’s records and systems relating to Licensee’s use of the Software or compliance with these Terms of Service or any applicable Agreement at any reasonable time, upon written notice to Licensee, no more than once a year. Licensee shall pay any additional license fees due to Software use in excess of the use permitted under the Software licenses granted, within 60 days of the conclusion of the audit making such determination. If the aggregate amount of additional license fees due as a result of the audit is greater than five percent (5%) of the amount owed under existing Software licenses, then Licensee shall also reimburse TenForce for the reasonable, direct costs of the audit.
6. Software Maintenance & Support Services
TenForce shall, during the term of the License Agreement, render adequate and prompt Maintenance and Support Services for the Software either by telephone, e-mail, or in person, in accordance with the terms of the License Agreement and the TenForce Maintenance and Support Services Policy as described below in this clause 6, as in effect at the time Maintenance and Support Services are ordered or renewed.
TenForce will exercise such reasonable skill, care and diligence as expected of an experienced provider of maintenance and support services.
6.1 TENFORCE MAINTENANCE AND SUPPORT SERVICES POLICY
Scope of Product Maintenance and Support Services
TenForce’s Product Maintenance and Support Services shall consist of the following: (i) undertaking reasonable efforts to resolve problems or bugs in the Software which cause the Software not to function in material conformity with the Documentation (referred to herein as a “Error”), such efforts to be in accordance with TenForce’s service levels as defined below, based on the impact of the Error on Licensee’s use of the standard Software; (ii) providing new Software Updates (as defined in the Agreement); (iii) providing access to TenForce for reporting Software problems and tracking resolution; (iv) answering technical questions regarding Software functionality and operation; and (v) providing service-related bulletins.
Scope of Custom Maintenance and Support Services
TenForce’s Custom Maintenance and Support Services (on top of Product Maintenance and Support Services) shall consist of the following: (i) undertaking reasonable efforts to resolve problems or bugs in Customer Specific Configurations which cause the Software not to function in material conformity with the Documentation (referred to herein as a “Error”), such efforts to be in accordance with TenForce’s service levels as defined below, based on the impact of the Error on Licensee’s use of the Software and Customer Specific Configurations; (ii) providing new Software Updates or configurations (as defined in the Agreement); (iii) providing access to TenForce for reporting Software problems and tracking resolution; (iv) answering technical questions regarding configuration functionality and operation; and (v) providing service-related bulletins.
Licensee Obligations
During the term of the Agreement, Licensee shall (i) promptly notify TenForce of any material non-conformities in the Software in accordance with established reporting procedures; (ii) maintain the Software at the then-current or immediately preceding Software release level; and (iii) undertake remedial corrective actions as instructed or provided by TenForce.
Exclusions and Limitations
Maintenance and Support Services shall not include (i) issues determined by TenForce to have been caused by the failure or malfunction of any non-standard software, tools, equipment, or facilities not provided by TenForce; (ii) installation, repair, relocation, addition, alteration, modification or enhancement of the Software, performed by parties other than TenForce; (iii) use of the Software in combination with non-standard products not provided by TenForce, resulting in the defect or non-conformance; (iv) failure to follow applicable operation or maintenance requirements in accordance with the Documentation or technical support instructions provided by TenForce; (v) introduction of data, through any method other than through the Software, into any database accessed by the Software; or (vi) abuse, mishandling, misuse or damage to the Software other than by TenForce.
Error Correction and Service Levels
TenForce will use reasonable efforts to respond to and correct any Error reported by Licensee in accordance with the Response Times and Resolution Times for each Priority Level as specified below. The Priority Level for an Error will be determined by TenForce based on the impact of the Error on Licensee’s use of the Software in accordance with the Priority Levels specified below.
As used herein, the terms listed below shall have the following meaning:
“Response Time” shall mean the time within which TenForce will respond to Licensee to report on steps taken to resolve an Error reported by Licensee and provide a plan for final resolution of such Error.
“Resolution Time” shall mean the time within which TenForce will provide relief from an Error reported by Licensee
Priority Level: A – Urgent
Impact on the Software System: Critical Impact
Description: The Licensee cannot use the Software, resulting in a critical impact on operations of the system, requiring an immediate solution
Response Time: 4 business hours
Resolution Time: 1 business day
Priority Level: B – High
Impact on the Software System: Significant Impact
Description: The Software is usable, but its functionality is severely limited.
Response Time: 6 business hours
Resolution Time: 3 business days
Priority Level: C – Medium
Impact on the Software System: Moderate Impact
Description: The issue causes little impact on operations of the system or a reasonable workaround to the issue is available
Response Time: 1 business day
Resolution Time: 5 business days
Priority Level: D – Low
Impact on the Software System: Minimal Impact
Description: The issue causes no impact on the operation of the system
Response Time: 1 business day
Resolution Time: 10 business days
“Business hours” are defined from 8h30 – 17h30 GMT+1 (for Europe); or 8:30AM – 5:30PM CDT (for North and South America).
“Business days” are defined as all weekdays from Monday till Friday, excluding Saturdays, Sundays and Belgian public holidays.
“Extended business hours”: support coverage period can be extended from 6:00 to 23:00 for an additional support and maintenance fee.
“24/7 support”: 7 days a week, 24 hours a day: for an additional support and maintenance fee.
Support engineers shall work diligently to provide a technical follow-up for Errors. A technical follow-up consists of a workaround or procedure to address the issue. Issues that require a change in the Software may be resolved in a future release of the Software.
If the Licensee reports an incident and requests a problem determination and the issue is mutually found not to be an Error in the Software, Licensee will pay TenForce, at TenForce’s then-current standard consulting rates, for all direct work performed in connection with such determination and any reasonable related expenses incurred therewith.
In those instances where TenForce is unable to resolve an Error within the target maximum Resolution Time, TenForce will confer with Licensee to develop a plan for final resolution.
Policy Changes
TenForce reserves the right to modify this Maintenance and Support Services Policy with a timely prior written notice to Licensee, which changes shall take effect at the time of the next renewal of Licensee’s Maintenance and Support Services Agreement.
6.2 SUSPENSION OR LAPSE OF MAINTENANCE AND SUPPORT SERVICES
TenForce may suspend or cancel Maintenance and Support Services if Licensee fails to pay Maintenance Services fees in a timely manner in accordance with the terms of the Agreement, or otherwise materially breaches the provisions of the Agreement, these Terms of Service or this Maintenance and Support Services Policy, provided however that TenForce shall notify Licensee of impending suspension or cancellation and provide Licensee ten (10) Business Days to pay overdue Maintenance and Support Services fees or cure such other breach of the Agreement or Terms of Service, as applicable. In the event that Licensee terminates Maintenance and Support Services, Licensee may later reinstate Maintenance and Support Services provided the Software licensed by Licensee is upgraded to the then-current Software release. The fee charged for such Maintenance and Support Services reinstatement will be equal to the cumulative standard Maintenance Services charges applicable for the Maintenance and Support Services terms during which Maintenance and Support Services lapsed, plus Maintenance Services and Support fees for the then-current Maintenance and Support Services term.
7. Consulting Services
During the term of the License Agreement, TenForce may also render services in relation to the implementation of the Software, training, or other consulting services (“Consulting Services”) that are not included in the scope of Software License or Maintenance and Support Services. Such Consulting Services are subject to a separate fee and agreement between the Parties on the scope of such Consulting Services.
8. Compensation, Expenses & Payment
Licensee shall pay the specified fee for the Software license, the Services rendered and, if applicable, additional features which have been ordered by Licensee, in accordance with the Agreement.
9. Confidentiality
Each Party shall maintain as strictly confidential the proprietary and Confidential Information of the other Party.
“Confidential Information” includes, without limitation, all information that a Party may learn during the performance of its obligations in relation to the License Agreement, including, but not limited to, the scope of the License Agreement, these Terms of Service, diagnostics, software, documentation, specifications, technical information, operational plans and programs, information relating to the business affairs of a Party, market studies, corporate strategies, new products, HR data, customers, sales, patents, trademarks, copyrights, trade secrets, know-how, methodologies, data, pricing, financial, marketing and other business information which such Party marks or otherwise identifies as confidential at the time of disclosure.
Confidential Information excludes information to the extent such information (i) was rightfully in the receiving Party’s possession without restriction on disclosure or use before it is received from the disclosing Party under the License Agreement; (ii) is or becomes a matter of public knowledge through no fault of the receiving Party; (iii) is rightfully furnished to the receiving Party by a third party without restriction on disclosure or use; or (iv) is independently developed by the receiving Party without use of the other Party’s Confidential Information.
The receiving Party agrees to use the Confidential Information of the disclosing Party only for the purpose and in the manner expressly authorized by the disclosing Party, and to disclose Confidential Information of the disclosing Party only as authorized hereunder to the receiving Party’s and/or its Authorized Recipients and then only on a need-to-know basis. The receiving Party agrees to maintain adequate internal procedures, including appropriate agreements with employees and contractors, to protect the confidentiality of the Proprietary Information of the disclosing Party. The disclosing Party is entitled to appropriate injunctive relief in the event of any unauthorized disclosure or use of its Confidential Information by the receiving Party.
The confidentiality obligations shall, however, not restrict the receiving Party from providing or disclosing any Confidential Information pursuant to a law, statute or other regulation or order of an authority or a court order (hereinafter jointly “Order of an Authority”) to the extent the receiving Party is obliged to provide or disclose the Confidential Information as a result of such Order of an Authority. The receiving Party may in such case provide or disclose Confidential Information only provided that the receiving Party notifies promptly the disclosing Party of the matter unless the Order of an Authority in question prohibits such notice.
10. Data Protection and Privacy
10.1 PROCESSING OR PERSONAL DATA
TenForce may process Personal Data for the purposes or providing the Software and/or Services. TenForce shall process Personal Data in accordance with the applicable legislation and, when relevant, in accordance with the written instructions provided by the Customer to TenForce. If the Customer gives other written instructions to TenForce, TenForce shall have a right to invoice the Customer for reasonable costs and expenses for any additional work and measures conducted due to these other written instructions.
TenForce may, as required for the provision of Software and Services and in accordance the Data Protection Legislation, transfer Personal Data outside the EU/EEA, if the transfer is made with adequate data transfer mechanisms for example with the European Commission’s standard contractual clauses or in compliance with other data transfer mechanisms in force at the time, such as transferring the Personal Data to third countries recognized by the European Commission to have an adequate level of data protection or on the basis of binding company rules.
If the transfer is concluded with European Commission’s standard contractual clauses TenForce shall ensure that the transfer is concluded in accordance with applicable Data Protection Legislation. If the used data transfer mechanism ceases to exist, TenForce and Customer shall ensure the adoption of an alternative data transfer mechanism in cooperation.
TenForce shall notify the Customer of any significant personal data breaches without undue delay after becoming aware of such breach.
Customer shall remain fully responsible for compliance with applicable data protection laws and regulations, including without limitation the consent of users, with regards any personal data stored or processed by the Software as a result of Customer Specific Configurations.
If TenForce shall process Personal Data on behalf of the Customer (Customer acting as data controller), the processing shall, unless otherwise expressly agreed by the Parties in writing, be governed by and detailed in the TenForce Data Processing Addendum, attached as Appendix A to these Terms of Service.
10.2 DATA SECURITY
TenForce shall take appropriate technical and organizational measures as required by Data Protection Legislation to protect personal data from any accidental, unauthorized and unlawful processing.
TenForce has integrated appropriate technical safeguards such as encryption and pseudonymization to ensure a high level of security. Standard security measures are also employed such as firewalls, intrusion detection, virus detection and Layer 7 protection. Both technical and organizational measures have are in place in the TenForce hosting environment to protect the databases where personal data is stored against factors such as unauthorized access, unauthorized use, theft or loss. Personal data is contained behind secured networks and is only accessible by a limited number of persons who have special access rights to such systems and databases, and they are required to keep the information confidential. All sensitive information is encrypted via Transport Layer Security (TLS) technology, which is the standard security technology for creating an encrypted link between a web server and a browser.
11. Third Party claims
TenForce shall defend the Licensee against a third-party claim alleging that the Software infringes that third party’s registered patent or trademark in EU or the U.S. and indemnify the Customer for the damages finally awarded to the third party under a binding judgement or settlement, provided that the Customer has notified TenForce of such claim or proceedings immediately in writing and authorizes TenForce to act on behalf of the Customer and gives TenForce all the necessary information and assistance related to the claim. Should the Software be determined to infringe, or in the opinion of TenForce, is likely to infringe, any third party intellectual property rights, then TenForce may, at TenForce’s option and expense, either procure for Licensee the right to continue using such Software or replace or modify the Software so that it becomes non-infringing.
Notwithstanding the above, TenForce shall have no liability to Licensee in respect of any claim to the extent it relates to or results from: (i) Licensee’s failure to install or have installed changes, revisions or updates as instructed by TenForce to the extent consistent with Licensee’s obligations pursuant to the Maintenance and Support Services; (ii) unauthorized use of the Software; (iii) Customer Specific Configurations to the extent they are based on Customer’s designs or other materials provided by Customer, or (iv) use of the Software in combination with any non-standard software, hardware or device not provided by TenForce.
This Section 11 states Tenforce’s sole liability to, and the Customer’s exclusive remedy with respect to a third party claim of intellectual property infringement arising out of the conduct of business under the Agreement.
Licensee shall defend, indemnify and hold harmless TenForce against any third-party claim i) that arises from Customer’s violations of the Agreement or these Terms of Service, or ii) alleging that the Customer designs, materials or information used in the context of the License Agreement infringes that third party’s intellectual property rights.
12. Limitations of Liability
TenForce’s maximum liability for any damages occurred to Licensee or any other party arising out of or relating to the Agreement shall not in any event exceed an amount equivalent to the fees paid by the Customer to TenForce during a period of twelve (12) months prior to the breach or 50.000 euro, whichever is lower.
In no event will TenForce, its affiliates or licensors be liable for any (i) special, indirect, incidental, consequential or punitive damages arising out of or relating to the License Agreement, regardless of the legal or equitable basis of any claim, including without limitation, loss of use, or loss of revenues or profits resulting from the improper use of the software, even if informed of such damages, or ii) destruction, loss, alteration or delay of the Customer’s data or data files, nor for any damages and expenses incurred as a result, including expenses involved in the reconstruction of data files, unless otherwise expressly agreed in writing. Notwithstanding anything contrary, in case the Software is hosted by Customer, the Customer is solely responsible and liable for the functioning of the hosting infrastructure.
Notwithstanding the foregoing, neither party excludes or limits its liability to the other for i) damages caused by willful misconduct or gross negligence, ii) breach of confidentiality obligations under Section 9 of these Terms of Service, iii) death or personal injury arising as a result of its negligence, or iv) damages that cannot be excluded under applicable law.
13. Term
The term or the Software License and the License Agreement shall be defined in the License Agreement. For License Agreements subject to perpetual licenses, the Software License shall be valid for an undefined duration and the Maintenance and Support Services for the duration of the agreed contracted period. Perpetual Software Licenses duly bought and paid by the Licensee before termination of Services shall remain fully valid even after the termination of the Services subject to the License terms under article 5 of this Agreement. For License Agreements subject to subscription licenses, the License Agreement is valid for the initial contracted period as determined in the License Agreement, and its subsequent renewals.
Unless otherwise agreed, the subscription License Agreement and/or Maintenance and Support Services shall be automatically renewed after the initial contract period for a subsequent renewal period as determined in the License Agreement. Licensee may terminate the License Agreement and/or Maintenance and Support Services, for any reason whatsoever, by giving TenForce 30 days written notice before the expiry of the current subscription period. TenForce may terminate the License Agreement and/or Maintenance and Support Services, for any reason whatsoever, by giving Licensee 60 days written notice before the expiry of the current subscription period.
Consulting Services may be terminated by the Licensee, by giving TenForce 30 days written notice, and by TenForce by giving the Licensee a 60 day’s written notice.
Notwithstanding the above, either Party may terminate the License Agreement with effect as from the day such Party gives the other Party written notice of termination, if (i) the other Party is in breach of any of its obligations under the License Agreement and fails to remedy the breach (if capable of remedy) within thirty (30) calendar days of a written notice so to do, (ii) the other Party fails to provide the standard of performance of Services that substantially meets reasonable expectations of Licensee, or (iii) bankruptcy or liquidation of the other Party. In case of termination of the Agreement pursuant to this article 12, article 9 “Proprietary Rights and Information”, article 10 “Claims of Infringement” and article 13 “Publicity” shall stay in force entirely.
In case of a perpetual license and in case that the TenForce hosted environment would be transferred to the Licensee’s infrastructure in accordance with article 5, Licensee may continue to use the Software pursuant to and in accordance with the License granted hereunder but will not be entitled to receive the Services and Updates from TenForce for the Software.
Unless specifically agreed otherwise by the Parties, TenForce may remove Customer’s personal data within thirty (30) days of the termination of the Agreement. TenForce shall have the right to keep copies of Personal Data as required by law or official decree.
14. Subcontracting
TenForce may use subcontractors for the purposes of fulfilling part or all of its obligations under the License Agreement. TenForce shall be liable for the work of such subcontractors as for its own work.
15. Publicity
Each Party shall have no permission to issue one or more press releases or other publications, including using the other Party as a Reference, disclosing the nature of the relationship entered into hereby, unless the other Party has granted prior written approval.
16. Compliance with laws
In connection to the License Agreement, the Parties shall comply with all applicable laws, including without limitation i) the applicable sanctions and export control laws and regulations, such as those adopted by the United Nations, the United States, the European Union, and the United Kingdom, ii) the applicable data protection laws, such as the General Data Protection Regulation (EU 679/2016), and iii) applicable anti-bribery and corruption laws and regulations, such as the UK Bribery Act 2010 or the US Foreign Corrupt Practices Act.
The Customer acknowledges that the Software and any related Documentation and technical information relating to the Software may be subject to export and import controls or restrictions under laws and regulations adopted by the United Nations, the United States, the European Union, and the United Kingdom, as well as any other sanctions and export control laws and regulations which may be applicable to either Party. The Customer shall not export, re-export, supply, or transfer the Software to any third party or to a third country, or allow any third party to use or access the Software, without first obtaining necessary licenses and authorizations that may be required under applicable laws.
TenForce may terminate the License Agreement with immediate effect, without any liabilities for damages, if the Customer fails to comply with this clause or if TenForce would not be able to perform its obligations under the License Agreement without violating applicable export control or sanctions laws.
The Customer and/or Licensee confirms that it is not (i) listed as subject to asset freezes, export restrictions, or similar measures under any applicable sanctions or export control laws or regulation, including without limitation being included in the Consolidated list of persons, groups and entities subject to EU financial sanctions, the US Specially Designated Nationals List (SDN List), and the HMT Consolidation List of Financial Sanctions Targets in the UK, or any list of sanctioned parties maintained by the United Nations Security Council or its subsidiary organs; or (ii) directly or indirectly at least 50% owned, or controlled by, or acting on behalf of, one or more persons or entities described in section (i) (“Sanctioned Person”). The Customer shall immediately notify TenForce if the Customer and/or Licensee is or has become a Sanctioned Person. TenForce may terminate the License Agreement and/or suspend all Services with immediate effect, without any liabilities for damages, if the Customer and/or Licensee is or becomes a Sanctioned Person.
17. Escrow Agreement
Upon Customer’s request, Customer has the option to become a beneficiary to an escrow agreement giving it rights to obtain the source code for the Products pursuant to the terms set forth in the escrow agreement. The costs associated with establishing Customer’s rights as a beneficiary under the escrow agreement and for obtaining access to the source code will be payable by Customer.
18. Invalid Provision
In the event that a provision or a part of a provision of the License Agreement or these Terms of Service is null and void or unenforceable (either in whole or in part), the remainder of the License Agreement and these Terms of Service shall continue to be effective to the extent that, in view of the License Agreement’s substance and purpose, such remainder is not inextricably related to and therefore inseverable from the null and void or unenforceable provision or part of a provision. The Parties shall make every effort to reach agreement on a new clause which differs as little as possible from the null and void or unenforceable provision or part of a provision, taking into account the substance and purpose of the License Agreement.
19. Assignment
Neither party may assign or transfer the License Agreement, wholly or in part, to any third party without a prior written consent of the other Party. Notwithstanding the foregoing, TenForce shall have the right to freely assign or otherwise transfer, wholly or in part, the License Agreement and the rights and obligations thereof to its Affiliate, or in connection of a transfer of business organization, merger or other reorganization of its operations. TenForce may also assign its receivables under the Agreement to a third party.
20. Governing Law
These Terms of Service and the relationship between TenForce and the Licensee shall be governed by Belgian law excluding the choice of law provisions. Any dispute between TenForce and the Licensee arising in connection with the interpretation, validity, performance and/or termination of Services or the License Agreement shall be exclusively submitted to the Courts of Brussels.
21. Order of precedence
Unless otherwise expressly agreed by both Parties in writing, the Customer’s general terms and conditions for purchase do not apply. Notwithstanding anything contrary in the Agreement, including the Customer terms and conditions when applicable, the Parties agree that these Terms of Service prevail over the Customer terms and conditions.
22. Notices and Contact Information
All written notices shall be personally delivered or sent by registered certified mail, return receipt requested, and shall be deemed to be given for purposes of the License Agreement on the day that such writing is received by the intended recipient.
Notices to Licensee will be sent to the registered contact person.
Notices to TenForce can only be sent to:
TenForce NV
Attn.: Chief Executive Officer
Diestsevest 25,
3000 Leuven
Tel.: +32 (0) 16/31 48 60
E-mail: jan(at)tenforce(dot)com
Website: www.tenforce.com
These Terms of Service may be amended in the future and we recommend that you consult it regularly to learn about any changes. Currently valid version of these Terms of Service are available at https://www.tenforce.com/terms-of-service/.
APPENDIX 1 – DATA PROCESSING ADDENDUM
This Data Processing Addendum (“DPA”) sets out the terms and conditions with regards to the Processing of Personal Data by TenForce or TenForce’s Sub-Processors on behalf of the Customer.
In the course of providing the Software and/or Services to Customer pursuant to the Agreement, TenForce may process Personal Data of Customer and may therefore be considered a processor within the meaning of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”).
Unless otherwise expressly agreed, this Data Protection Addendum concerns all Services provided by TenForce to Customer as a whole. In the event of any discrepancies between this Data Protection Addendum and the Agreement, the terms of this Data Protection Addendum shall prevail.
1. DEFINITIONS
“Customer’s Personal Data” means Personal Data, for which the data controller is Customer and data processor is TenForce.
“Personal Data” means all data related to an identified or identifiable natural person. Identifiable person refers to a natural person who can be directly or indirectly identified especially on the basis of an identifier such as name, social security number, location data, an online identifier, or one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Agreement” means the agreement for the provision of TenForce’s Software and/or Services entered into between the parties.
“Data Protection Legislation” means the General Data Protection Regulation of the European Parliament and of the Council (EU) 679/2016 as well as any other applicable data protection legislation and other legislation concerning the processing of personal data under applicable laws.
“Data Protection Addendum” means this addendum and agreement concerning data protection.
Unless otherwise expressly defined herein, the terms defined in the Agreement shall have the same meanings whenever used in this Data Protection Addendum.
2. GENERAL PRINCIPLES OF DATA SECURITY AND DATA PROTECTION
Both Parties shall, on their part, comply with Data Protection Legislation and carry out their respective responsibilities relating to data security and data protection as set out in this Data Processing Addendum or the Agreement.
Each Party shall ensure that the part of the deliverables for which it is responsible for under the Agreement and the Party’s own environment, such as equipment, service production facilities and business premises, are protected against data security threats in accordance with the adequate data security procedures followed by that Party, and that measures relating to data security and backup(s) are complied with.
The Customer shall be responsible for the adequate protection of its data networks, equipment, systems, software and other requirements for the use of the Software and/or Services, which the Customer is responsible for, by using appropriate data security measures and practices as well as other protection measures.
3. GENERAL PRINCIPLES OF PROCESSING PERSONAL DATA
The provision of Services may include processing of Personal Data for which the Customer is deemed to be the data controller (Customer’s Personal Data). In this case, TenForce acts as the data processor and the Customer as the data controller to such Customer’s Personal Data.
If the Customer discloses, transfers or by other means provides TenForce with Personal Da-ta, the Customer shall be responsible for ensuring that it has the right to provide such Personal Data to TenForce for the purpose set out in this Data Protection Agreement and in the Agreement.
As a data controller, the Customer is fully liable for all collection, saving and other processing of Customer’s Personal Data it carries out using these Services and for the lawfulness there-of. Customer shall be responsible to third parties for the processing of Personal Data it carries out as the data controller using the Software and/or Services.
4. Data Controller’s Instructions
When acting as a data processor, TenForce processes the Customer’s Personal Data in accordance with the applicable legislation and written instructions provided by the Customer to TenForce. The terms agreed in the Agreement, including the service descriptions and this Addendum, shall be deemed to be the Customer’s written instructions.
The nature and purpose of the processing, the object and the duration of the processing, the types of Customer’s Personal Data, the categories of data subjects and other instructions given by the data controller are defined in more detail in the Agreement and/or this Addendum.
If the Customer gives other written instructions to TenForce, TenForce shall have a right to invoice the Customer for reasonable costs and expenses for any additional work and measures conducted due to these other written instructions. TenForce gives the Customer in advance a cost estimation for the work and/or for the required measures. The Customer may on the basis of the cost estimation decide whether to carry out the work and/or the required measures.
TenForce may refuse to fulfil an obligation under the Customer’s instructions if it justifiably finds the instructions to be in violation of legislation, regulation and/or stipulation set forth by a regulatory authority, court decision or other regulation binding TenForce. TenForce shall notify the Customer of not observing such instructions or part thereof and of the grounds thereof, unless legislation prohibits such information on important grounds of public interest.
5. Assisting the Data Controller
TenForce shall assist the Customer in fulfilling the obligations set out in the Data Protection Legislation directly for the Customer:
- TenForce shall notify the Customer within a reasonable time of all inquiries it has received from the data subjects or from the authorities. TenForce shall upon request assist the Customer in responding to such inquiries;
- Where possible, TenForce shall provide the Customer with all information required by the Data Protection Legislation which are necessary for carrying out the rights of the data subjects or for responding to the inquiries from the authorities;
- TenForce shall make available to the Customer all information necessary for demonstrating compliance with obligations set out in this Data Protection Agreement; and
- Upon request and on the Customer’s reasonable expense TenForce shall participate in data protection impact assessments and/or in prior consultations of the supervisory authority.
Carrying out these obligations and measures typically require additional work from TenForce. TenForce shall have right to invoice all reasonable costs and expenses from the Customer for all the work and measures conducted due to these obligations. TenForce shall give a cost estimation to the Customer in advance for carrying out the obligations and measures. The Customer may on the basis of the cost estimation decide whether to carry out the tasks and/or the measures.
6. Confidentiality
TenForce ensures that persons authorized to process the Customer’s Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
7. Technical and organisational measures
TenForce shall take appropriate technical and organisational measures as required by the Da-ta Protection Legislation to protect Customer’s Personal Data from any accidental, unauthor-ised and unlawful processing. These measures may include for example:
- Encryption and pseudonymisation
- Firewalls, intrusion detection, virus detection and Layer 7 protection.
- Protecting personal data against unauthorized access, unauthorized use, theft or loss by for example keeping the personal data behind secured networks and only accessible by a limited number of persons who have special access rights to such systems
- All sensitive information is encrypted via Transport Layer Security (TLS) technology, which is the standard security technology for creating an encrypted link between a web server and a browser.
8. SUBCONTRACTORS
TenForce may use subcontractors for the processing of the Customer’s Personal Data. Ten-Force shall be liable for the work of such subcontractors as for its own work and will comply with the principles set out in the Data Protection Legislation.
The Customer may upon request receive more information about the subcontractors used by TenForce at the time for the processing of Customer’s Personal Data.
TenForce notifies the Customer of changes concerning the addition or replacement of sub-contractors processing the Customer’s Personal Data. The Customer will be notified of such changes without undue delay prior to the change taking effect, thereby enabling the Customer to object to such changes for a justified reason.
Both Parties shall have the right to terminate the part(s) of the Agreement with respect to the Service for which TenForce’s change of subcontractor relates to, in case the Customer, based on a justified reason, objects to the addition or replacement of a subcontractor processing the Customer’s Personal Data, and if the Parties have not reached a common under-standing in a reasonable time. The notice of termination shall be given without undue delay and the Parties shall promptly agree on a time period after which the termination will take effect.
9. PROCESSING IN THIRD COUNTRIES
TenForce may, as required by the Services and in accordance the Data Protection Legislation transfer Customer’s Personal Data outside the EU/EEA, if the transfer is made with adequate data transfer mechanisms for example with the European Commission’s standard contractual clauses or in compliance with other data transfer mechanisms in force at the time, such as transferring the Customer’s Personal Data to third countries recognized by the European Commission to have an adequate level of data protection or on the basis of binding company rules.
If the transfer is concluded with European Commission’s standard contractual clauses TenForce shall ensure that the transfer is concluded in accordance with applicable Data Protection Legislation. If the used data transfer mechanism ceases to exist, TenForce and Customer shall ensure the adoption of an alternative data transfer mechanism in cooperation.
TenForce shall upon request provide the Customer with copies of the European Commission’s standard contractual clauses concerning the Service and concluded by TenForce. The Customer may upon request also receive information about the subcontractors used for processing Customer’s Personal Data and about the countries, if Customer’s Personal Data is processed outside the EU/EEA.
10. DATA BREACH NOTIFICATIONS
TenForce shall notify the Customer in accordance with Data Protection Legislation of breaches concerning the Customer’s Personal Data. The notification shall be made in accordance with Data Protection Legislation without undue delay after TenForce has become aware of such breach.
TenForce provides the Customer with all information required by the Data Protection Legisla-tion relating to the breach of Customer’s Personal Data. TenForce shall also cooperate with the Customer so that the Customer is able to perform its notification obligations in accordance with the Data Protection Legislation. Where possible, TenForce shall take appropriate measures to safeguard the Customer’s Personal Data and to limit and mitigate any adverse effects that may arise for data subjects.
11. NOTIFICATIONS
Notifications that are related to this Data Protection Addendum shall be made to the contact persons named or otherwise appointed in the Agreement.
12. AUDITING
The Customer may at its expense audit TenForce’s compliance with this Data Protection Ad-dendum regarding the processing of the Customer’s Personal Data in accordance with the terms separately agreed together by the Parties with respect to each audit. Such audits may be concluded once (1) every twelve (12) months. Legislation and the data protection and data security requirements of TenForce’s other customers may affect the extent of the auditing right. The audit shall always be carried out in a manner which does not compromise the business secrets of TenForce and/or its Affiliates, or of TenForces other Customers or Licensees, or TenForces’s undertakings towards its other Customers or Licensees. TenForce has the right to require the auditor to sign a separate confidentiality undertaking in order to duly protect TenForce’s Confidential Information.
A notice of the audit must be given at least thirty (30) days before the audit. TenForce strives to enable the aforementioned audits without an undue delay after receiving the notification.
13. LIABILITY FOR DAMAGES
Each Party needs to fulfil its own obligations under the Data Protection Legislation. Hence, any administrative fines imposed by a competent supervisory authority or damages ordered to be paid to the data subjects by a competent court shall be paid by the Party that has failed in its performance of its legal obligations under the Data Protection Legislation.
Otherwise the Parties’ liability for damages is allocated as set out in the Agreement.
14. EFFECTS OF THE TERMINATION OF THE AGREEMENT
After the termination of the Agreement or the Services TenForce shall either remove or return the Customer’s Personal Data within a reasonable time. TenForce may however keep any copies required by law or official decree.
15. TERM
This Data Protection Addendum becomes effective together with the Agreement and shall be in force as long as TenForce processes Customer Personal Data. This Data Processing Addendum cannot be terminated separately from the Agreement.
If a change in Data Protection Legislation results in this Data Processing Addendum no longer meeting applicable requirements for a data processing agreement, TenForce reserves the right to modify and amend this Data Protection Addendum in order for it to meet any and all requirements under applicable Data Protection Requirements.
16. APPLICABLE LAW AND DISPUTE RESOLUTION
Relevant provisions on applicable law and dispute resolution of the Agreement shall apply with regards to this Data Protection Addendum.