Netika Business solutions SA

“Affiliate” of a party means any legal entity in which a party, directly or indirectly, holds more than fifty percent (50%) of the entity’s shares or voting rights. Any legal entity will be considered an Affiliate as long as that interest is maintained.

“Agreement” means a Product Order and documents incorporated and/or referred into a
Product Order including the GTC.

“Authorized User” means any individual to whom Customer grants access authorization to use
the Products that is an employee, contractor or representative of Customer.

“Cloud Services” means any distinct, subscription-based, hosted, supported and operated on demand solution provided by NETiKA Business Solutions SA under a Product Order.

As of the entry into force of the Agreement in accordance with Sections 9.1, the Parties have
entered into the Agreement for the provision of Licensed Software and/or Cloud Services.

The Agreement is hereby limited to the provision of the Licensed Software and/or Cloud Services to the Customer itself, unless the Agreement provides otherwise by means of Supplement.

In order to implement the Licensed Software and/or the Cloud Services for the Customer, NETiKA Business Solutions SA may also perform certain mutually agreed Maintenance and Support Services as set forth in Schedule 1 and the Product Order and/or mutually agreed Specific Services requested by Customers. Any mutually agreed Specific Services shall be subject to an Offer addressed by NETiKA Business Solutions SA to the Customer and accepted by the latter.

NETiKA Business Solutions SA grants to Customer for the Subscription Term set forth a non-exclusive, nontransferable and world-wide right to use the Cloud Services (including its implementation and configuration) and Support Materials solely for Customer’s internal business operations. Permitted uses and restrictions of the Cloud Services also apply to Support Materials.

NETiKA Business Solutions SA grants to Customer for the Subscription Term a limited, non-exclusive, non-sublicensable and non-transferable license to use the Licensed Software for internal purposes, for the number of Authorized Users paid for by the Customer only in accordance with the provisions of the Agreement and subject to payment of the fees as set forth in the Product Order including the fees related to Maintenance and Support Services.

Customer shall not duplicate, copy or reproduce the Licensed Software or any portion thereof. Customer will not itself, or through any Affiliate, agent or other third party sell, lease, license, sublicense, modify (other than as expressly permitted herein) or encumber the Licensed Software or any part thereof or decompile, disassemble, or reverse engineer any portion of the Licensed Software or attempt to discover any source code or underlying ideas or algorithms of the Licensed Software or otherwise engage in any activities designed to replicate the functionality of the Licensed Software.

4.4.1.

NETiKA Business Solutions SA shall be permitted to audit (in accordance with NETiKA Business Solutions SA procedures, which may include on-site and/or remote audit) the use of NETiKA Business Solutions SA’S Licensed Software. Customer shall cooperate reasonably in the conduct of such audits in accordance with Section 7.3.2. If Customer does not comply with its obligations under this Section 4.4 within ten (10) days of a written request to do so notified by NETiKA Business Solutions SA hereunder, Customer agrees to pay to NETiKA Business Solutions SA, per week after such time period where Customer does not comply with its obligations under this Section 4.4, a penalty amounting to the average annual license fees paid under the Agreement by Customer during the twelve month period preceding the written request. This penalty is in addition to and not in lieu of any damages that might be due to NETiKA Business Solutions SA as a result of Customer’s breach of its obligations under this Section 4.4.

4.4.2.

Reasonable costs of NETiKA Business Solutions SA’s audit shall be paid by Customer if the audit results indicate usage in excess of the licensed quantities or levels

4.4.3.

In the event an audit reveals that (i) Customer underpaid license fees and/or NETiKA Business Solutions SA Maintenance and Support Service fees to NETiKA Business Solutions SA and/or (ii) that Customer has used the Licensed Software in excess of the license quantities or levels stated in the Product Order, Customer shall pay such underpaid fees and/or for such excess usage based on the then-current NETiKA Business Solutions SA price list, terms and conditions in effect at the time of the audit increased by a fifteen (15) percent penalty plus late payment interest from the original due date, and shall execute an additional Product Order to affect the required licensing of any additional quantities or levels.

Customer may permit Authorized Users to use the Products. Usage is limited to volumes stated in the Product Order. Access credentials for the Products may not be used by more than one individual but may be transferred from one individual to another if the original user is no longer permitted to use the Products. Customer is responsible for any and all activity using its, access credentials whether or not he authorized that activity and for breaches of the Agreement caused by Authorized Users.

Customer is responsible for the Customer Data and entering it into the Products.

Customer will collect and maintain all Personal Data (as defined in the Data Processing Agreement) contained in the Customer Data in compliance with applicable data privacy and protection laws.

Customer will maintain reasonable security standards for its Authorized Users’ use of the Products and

During the Subscription Term, Customer can access its Customer Data at any time. Customer may export and retrieve its Customer Data in a standard format. Export and retrieval may be subject to technical limitations, in which case NETiKA Business Solutions SA and Customer will find a reasonable method to allow Customer access to Customer Data.

Before the Subscription Term expires, Customer may use NETiKA Business Solutions SA’s self-service export tools (if available) to perform a final export of Customer Data from the Services. If such self-service export tools are not available, NETiKA Business Solutions SA shall return all Customer data to the Customer in a readable format.

In the event of third party legal proceedings relating to the Customer Data, NETiKA Business Solutions SA will cooperate with Customer and comply with applicable law (both at Customer’s expense) with respect to handling of the Customer Data.

Each Party warrants that it complies with applicable data protection legislation and takes full
responsibility of its data (including in respect of the Customer, Customer Data and Personal
Data contained therein) and its processing under such legislation.

When providing Cloud Services,

NETiKA Business Solutions SA acts as a Data Processor. The Customer Data shall be treated by NETiKA Business Solutions SA in accordance with the Data Processing Agreement part of the Agreement. According to the Data Processing Agreement, Customer grants to NETiKA Business Solutions SA (including its Affiliates and subcontractors) a nonexclusive right to process Customer Data solely to provide and support the Cloud Services as described in the Data Processing Agreement.

NETiKA Business Solutions SA shall use reasonable security technologies in providing the Cloud Services. As a data processor, NETiKA Business Solutions SA has implemented technical and organizational measures referenced in the Data Processing Agreement which is part of the Agreement to secure Personal Data (as defined in the Data Processing Agreement) processed in the Cloud Services in accordance with applicable data protection and privacy law.

At the end of the Agreement, NETiKA Business Solutions SA will delete the Customer Data remaining on servers hosting the Cloud Services unless applicable law requires retention in accordance with the Data Processing Agreement. Retained data is subject to the confidentiality provisions of the Agreement.

NETiKA Business Solutions SA does not process any Customer Data as they are stored on-premises and NETiKA Business Solutions SA
does not have access to the Customer Data.

When NETiKA Business Solutions SA is given access to Customer’s systems and data, NETiKA Business Solutions SA shall comply with Customer’s administrative, technical, and physical safeguards to protect such data and guard it against unauthorized access. In connection with such access, Customer shall be responsible for providing NETiKA Business Solutions SA with user authorizations and passwords to access its systems and revoking such authorizations and terminating such access from time to time. Customer shall not grant NETiKA Business Solutions SA access to Customer systems or personal information (of Customer or any third party) unless such access is required for the performance of the Agreement. The Parties agree that no breach of this provision shall be deemed to have occurred in the event of NETiKA Business Solutions SA non-conformance with the aforementioned safeguards but where no personal information has been compromised.

Customer will pay fees as stated in the Product Order. All Product Orders are non-cancellable and fees non-refundable except as set forth in Section12.1.3. Any fees not paid when due shall accrue interest at the maximum rate as allowed by law.

Fees and other charges described in the Agreement do not include sales, VAT, withholding, use, property, excise, service, or similar taxes (“Tax(es)”) now or hereafter levied, all of which shall be for Customer’s account. Any applicable direct pay permits or valid tax-exempt certificates must be provided to NETiKA Business Solutions SA prior to the execution of the Agreement. If NETiKA Business Solutions SA is required to pay Taxes, Customer shall reimburse NETiKA Business Solutions SA for such amounts. Customer hereby agrees to indemnify NETiKA Business Solutions SA for any Taxes and related costs, interest and penalties paid or payable by NETiKA Business Solutions SA.

The price of the Products is linked to the number of Authorized Users and the number of companies managed by the Customer, as well as any discounts granted to Customer in accordance with the conditions specified in the Agreement. If Customer wishes that the Licensed Software is used by a greater number of users or manages a larger number of companies than provided in the Order, additional fees will be charged, including the adaptation of the ORACLE runtime required to use the Licensed Software. No written Offer or Product Order must be previously sent by NETiKA Business Solutions SA to Customer to justify charging the upgrade requested by the latter, and Customer acknowledges and agrees that it has been informed of the fees and services offered in the Product Order and the Agreement and has accepted them.

8.4.

When using the Licensed Software, Customer undertakes to communicate to NETiKA Business Solutions SA, in
writing, any increase in the number of Authorized Users or companies managed by the
Licensed Software. Any additional maintenance and support fees charged to Customer in this
respect will be prorated to the time remaining until the next anniversary date of the
Agreement.

8.5.

All invoices shall be payable by Customer, by bank transfer, within thirty (30) days from the date of invoice.

8.6.

Without prejudice to any other rights NETiKA Business Solutions SA may have, if Customer fails to pay any sum due to NETiKA Business Solutions SA on the due date and subsequently fails to pay such due sum within seven days of NETiKA Business Solutions SA sending a written reminder to Customer, NETiKA Business Solutions SA may suspend Customer’s use of the Products and/or the Maintenance and Support Services until such time as all due payments including all interest accrued, have been paid in full.

8.7.

NETiKA Business Solutions SA shall have no liability for damages sustained by Customer resulting from suspension of the use of the Products and/or the Maintenance and Support Services pursuant to this Section. Customer shall be responsible for any costs incurred by NETiKA Business Solutions SA in enforcing this Section including, without limitation, full legal costs and court fees.

The Agreement shall enter into force on signature by the last signatory and endure until the expiry of the Subscription Term.

Without prejudice to other rights to which it may be entitled and to any other Section of the Agreement, the Agreement may be terminated immediately by written notice to the other Party:

upon thirty days written notice of the other party’s material breach unless the breach is cured during that thirty-day period;

as permitted under Sections 3.2.2 or 12.1.3 (with termination effective thirty days after receipt of notice in each of these cases), or

immediately if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or otherwise materially breaches Sections 13.

If NETiKA Business Solutions SA terminates this Agreement pursuant to Section 9.2 or Customer terminates this Agreement other than according to Section 9.2 or than as permitted under Section 3.2.2, Customer agrees to pay the Termination Payment to NETiKA Business Solutions SA as agreed damages which Customer agrees are a true reflection of the loss suffered by NETiKA Business Solutions SA. Customer will also pay to NETiKA Business Solutions SA on demand any costs and expenses NETiKA Business Solutions SA may incur in enforcing the terms of this Agreement following a breach by the Customer. The Termination Payment referred to above will be calculated as follows:

(a) all fees, interest and other payments due to be paid before the termination date in accordance with the Product Order but not yet paid; and

(b) the rest of the fees which would be payable (but for early termination) to the end of the Subscription Term

Customer’s right to use the Products and all NETiKA Business Solutions SA Confidential Information will end,

Confidential Information of the disclosing party will be returned or destroyed as required by the Agreement, and

termination or expiration of the Agreement does not affect other agreements between the parties.

the Licensed Software shall be uninstalled by NETiKA Business Solutions SA by remote access, Customer undertakes to provide the required remote access to the Licensed Software within fifteen (15) working days of after NETiKA Business Solutions SA’ written request. If Customer does not comply with its obligations under this Section 9.4.4 within ten (10) days of a written request to do so notified by NETiKA Business Solutions SA hereunder, Customer agrees to pay to NETiKA Business Solutions SA, per week after such time period where Customer does not comply with its obligations under this Section 9.4.4, a penalty amounting to the average annual license fees paid under the Agreement by Customer during the twelve month period preceding the written request. This penalty is in addition to and not in lieu of any damages that might be due to NETiKA Business Solutions SA as a result of Customer’s breach of its obligations under this section 9.4.4. If Customer fails to provide such remote access within the above time-frame, Customer agrees to pay to NETiKA Business Solutions SA, per week after such time period where Customer does not comply with its obligations under this Section 9.4.4, a penalty amounting to the average annual license fees paid under the Agreement by Customer during the twelve month period preceding the written request. This penalty is in addition to and not in lieu of any damages that might be due to NETiKA Business Solutions SA as a result of Customer’s breach of its obligations under this section 9.4.4.

All obligations under the Agreement which are expressed or by their nature are intended, to survive beyond the termination or expiry of the Agreement shall survive its termination or expiry.

in the case of NETiKA Business Solutions SA, the operation of NETiKA Business Solutions SA’s business as it relates to the Products, and

in the case of Customer, the Customer Data and Customer’s use of the Products.

Customer’s sole and exclusive remedies and NETiKA Business Solutions SA’s entire liability for breach of the warranty under Section 10.2. will be the right for the Customer to use the Products free of charge for the duration for which the Products was not provided used in substantial conformance with the Product Order.

The warranties in Sections 10.2. will not apply if:

the Products are not used in accordance with the Agreement,

any non-conformity is caused by Customer, or by any product or service not provided by NETiKA Business Solutions SA, or

The Products were provided for no fee.

Except as expressly provided in the Agreement, neither NETiKA Business Solutions SA nor its subcontractors make any representation or warranties, express or implied, statutory or otherwise, regarding any matter, including the merchantability, suitability, originality, or fitness for a particular use or purpose, non-infringement or results to be derived from the use of or integration with any products or services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error free. Customer agrees that it is not relying on delivery of future functionality, public comments or advertising of NETiKA Business Solutions SA or product roadmaps in obtaining subscriptions for any Products.

NETiKA Business Solutions SA, its Affiliates or licensors own all intellectual property rights in and related to the Products, Developments, Support Materials, design contributions, related knowledge or processes, , and more generally all those resulting from the Agreement, the Maintenance and Support Services, Specific Services or Supplement, and any derivative works of the abovementioned properties (the “NETiKA Business Solutions SA Intellectual Properties”). All rights not expressly granted to Customer are reserved to NETiKA Business Solutions SA and its licensors. To the extent that Customer may acquire property rights in Developments by operation of law, Customer hereby assigns to NETiKA Business Solutions SA, with full title guarantee, all of its rights in and to Developments. At NETiKA Business Solutions SA’s request and expense, Customer shall assist and cooperate with NETiKA Business Solutions SA in all reasonable respects and shall execute documents, give testimony and take further acts as reasonably requested by NETiKA Business Solutions SA to acquire, transfer, maintain and enforce any legal protection for the Developments.

Customer covenants, on behalf of itself and its successors and assigns, not to assert against NETiKA Business Solutions SA, its Affiliates or licensors, any rights, or any claims of any rights, in any part of the NETiKA Business Solutions SA Intellectual Properties.

NETiKA Business Solutions SA will defend Customer against claims brought against Customer by any third party alleging that Customer’s use of the Products infringes or misappropriates a patent claim, copyright, or trade secret right. NETiKA Business Solutions SA will indemnify Customer against all damages finally awarded against Customer (or the amount of any settlement NETiKA Business Solutions SA enters into) with respect to these claims.

NETiKA Business Solutions SA’s obligations will not apply if the claim results from (i) Customer’s breach of Sections 3 and 4, (ii) use of the Products in conjunction with any product or service not provided by NETiKA Business Solutions SA, or (iii) use of the Products provided for no fee.

In the event a claim is made or likely to be made, NETiKA Business Solutions SA may (i) procure for Customer the right to continue using the Products under the terms of the Agreement, or (ii) replace or modify the Products to be non-infringing without a material decrease in functionality. If these options are not reasonably available, NETiKA Business Solutions SA may terminate Customer’s subscription and licenses to the affected Product upon written notice to the other, in which case NETiKA Business Solutions SA shall refund all fees prepaid by the Customer on a pro rata temporis basis.

Customer will defend NETiKA Business Solutions SA against claims brought against NETiKA Business Solutions SA, its Affiliates and subcontractors by any third party related to Customer Data except in case of breach by NETiKA Business Solutions SA of the Data Processing Agreement or for a cause set out in Section 12.1.2. Customer will indemnify NETiKA Business Solutions SA against all damages finally awarded against NETiKA Business Solutions SA, its Affiliates and subcontractors (or the amount of any settlement Customer enters into) with respect to these claims.

The party against whom a third-party claim is brought will timely notify the other party in writing of any claim, reasonably cooperate in the defense and may appear (at its own expense) through counsel reasonably acceptable to the party providing the defense and it shall not take any steps or provide any answer to steps taken by the third party (mail or other) without the other party’s prior approval nor at any time admit liability or otherwise attempt to settle the said claim or action.

The party that is obligated to defend a claim will have the right to fully control the defense.

The provisions of Section 12 state the sole, exclusive, and entire liability of the parties to the other party, and is the other party’s sole remedy, with respect to above-mentioned third party claims and to the infringement or misappropriation of third party intellectual property rights.

Confidential Information disclosed by either Party shall not be used or reproduced in any form except as required to accomplish the intent of the Agreement. Any reproduction of any Confidential Information of the other shall remain the property of the disclosing party and shall contain any and all confidential or proprietary notices or legends which appear on the original. With respect to the Confidential Information of the other, each party : (a) shall take all reasonable steps (meaning those steps the receiving party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care) to keep all Confidential Information strictly confidential; and (b) shall not disclose any Confidential Information of the other to any person other than its bona fide individuals whose
access is necessary to enable it to exercise its rights and/or perform its obligations hereunder, and who are under obligations of confidentiality substantially similar to those set forth herein.

The above restrictions on the use or disclosure of the Confidential Information shall not apply
to any Confidential Information that:

(a) is independently developed by the receiving party without reference to the disclosing
party’s Confidential Information, or is lawfully received free of restriction from a third
party having the right to furnish such Confidential Information;
(b) has become generally available to the public without breach of the Agreement by the
receiving party;
(c) at the time of disclosure, was known to the receiving party free of restriction;
(d) the disclosing party agrees in writing is free of such restrictions; or
(e) is required to be disclosed by order of a court or of an administrative or regulatory body,
provided that Disclosing Party is given prompt written notice of such requirement and the
scope of such disclosure is limited to the maximum extent possible.

Customer shall not disclose the terms and conditions of the Agreement or the pricing contained herein to any third party unless it is required by law, under an audit relating to the acquisition one of the Parties or to some similar operation, or under Court proceedings involving the Parties.

The obligation under Section 13 shall remain into force for the entire duration of the Agreement and for a further three (3) years after its termination or expiry.

Maintenance and Support Services shall be provided to Customer by NETiKA Business Solutions SA as set forth in Schedule 1 and the Product Order subject to payment by Customer of the applicable fees in accordance with the Product Order and the payment terms herein.

The Maintenance and Support Services may be provided by NETiKA Business Solutions SA or individuals or organizations employed by or under contract with NETiKA Business Solutions SA, at NETiKA Business Solutions SA’s discretion. NETiKA Business Solutions SA shall in any event remain responsible for its obligations and the compliance with the terms and conditions of the Agreement as if the Maintenance and Support Services were performed by NETiKA Business Solutions SA.

Neither party will exclude or limit its liability for damages resulting from:

the parties’ obligations under Section 12.1. and 12.2.,

unauthorized use or disclosure of Confidential Information,

either party’s breach of its data protection and security obligations that result in an unauthorized use or disclosure of Personal Data,

death or bodily injury arising from either party’s gross negligence or wilful misconduct, or

any failure by Customer to pay any fees due under the Agreement.

Subject to Sections 15.1 and 15.3, the maximum aggregate liability of NETiKA or its respective Affiliates or subcontractors to the Customer or any other person or entity for all events (or series of connected events) arising in any twelve month period will not exceed the fees paid for the applicable Products directly causing the damage for that twelve month period. Any “twelve-month period” commences on the Subscription Term start date or any of its yearly anniversaries.

Subject to Sections 15.1

NETiKA nor its respective Affiliates or subcontractors will be liable to the Customer or any other person or entity for any special, incidental, consequential, or indirect damages, loss of good will or business profits, work stoppage or for exemplary or punitive damages, and

NETiKA Business Solutions SA will not be liable for any damages caused by any Products provided for no fee.

The Agreement allocates the risks between NETiKA Business Solutions SA and Customer. The fees for the Products reflect this allocation of risk and limitations of liability.

Customer may not, without NETiKA Business Solutions SA’s prior written consent, assign, delegate, pledge, or otherwise transfer the Agreement, or any of its rights or obligations under the Agreement or NETiKA Business Solutions SA Confidential Information, to any party, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation. NETiKA Business Solutions SA may (i) assign the Agreement to any of the NETiKA Business Solutions SA Affiliates or (ii) subcontract all or part of the work to be performed under this Agreement to a qualified third party.

If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.

A waiver or non-enforcement against any breach of the Agreement or obligation under the Agreement is not deemed a waiver of any other breach or obligation.

All notices will be in writing and given when delivered to the respective offices of NETiKA Business Solutions SA and Customer at the addresses first set forth above or in the Order. Notices by NETiKA Business Solutions SA relating to the operation or support of the Cloud Service and those under Sections 3.2 and 8.1 may be in the form of an electronic notice to Customer’s authorized representative or administrator identified in the Product Order.

Electronic signatures that comply with applicable law are deemed original signatures.

The relationship of NETiKA Business Solutions SA and Customer established by this Agreement is that of an independent contractor and no employment, agency, trust, partnership or fiduciary relationship is created by this Agreement.

Any delay in performance (other than for the payment of amounts due hereunder) caused by conditions beyond the reasonable control of the performing party is not a breach of this Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance.

During the period commencing on the date of entry into force of this Agreement and ending 6 months after the termination thereof, neither Parties shall directly or indirectly, solicit or attempt to solicit for employment any persons employed by the other Party during such period. It is acknowledged that (i) where there is any employment or consultancy agreement with a Party’s employee by the other Party there shall be an irrefutable presumption that it results from the other Party’s solicitation and (ii) the Party’s damages resulting from any breach of this section would be impracticable and extremely difficult to fix in an actual amount, therefore, as liquidated damages in the event of a breach of this section and not as a penalty, the non-breaching Party’s sole remedy shall be the payment by the breaching Party to the non-breaching Party of a sum equivalent to one (1) year’s gross salary (including any bonus) of such employee so solicited.

The Agreement constitutes the complete and exclusive statement of the agreement between NETiKA Business Solutions SA and Customer with respect to the subject matter hereof. All previous representations, discussions and writings (including any confidentiality agreements) are merged in and superseded by the Agreement and the parties disclaim any reliance on them. The Agreement may be modified only by a writing signed by both parties.

The Agreement and any claims relating to its subject matter shall be governed by and construed under the laws of Belgium, without reference to its conflicts of law principles. All disputes will be subject to the exclusive jurisdiction of the courts located in Brussels. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The Uniform Computer Information Transactions Act as enacted shall not apply. Either party must initiate a cause of action for any claim(s) arising out of or relating to this Agreement and its subject matter within one year from the date when the party knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s).