Platform and Services
Opinum shall create an Account for the Client and shall provide to the Client login details on or promptly following the Effective Date in order to access the Platform. The moment whereupon the Client can effectively use the Services and Platform, depends on the implementation onboarding project as agreed upon between the Parties.
Subject to the terms set forth in these Terms and Conditions and the timely payment of the Subscription Fee, Opinum hereby grants to the Client a personal, revocable, restricted, non-assignable, worldwide, non-exclusive, non-transferable license, without the right to sublicense, to use the Services (i) for the internal business purposes of the Client, and (ii) to make the Platform and Services available to its End Users, during the Term and as set out in the relevant documentation. The extent of the license granted under these Terms and Conditions is restricted to the scope expressly set forth herein, and there are no implied licenses under these Terms. Opinum reserves any right not expressly granted to the Client hereunder. Additionally, Opinum shall, subject to the aforementioned conditions, provide the Platform and Services, as specified in the Order.
The Client can provide access to its End Users to use the Platform by creating an Account per End User through which the End Users can use the Platform. The Client acknowledges and agrees that it remains solely responsible towards Opinum with respect of the usage of the Platform by its End Users and their compliance with these Terms and Conditions.
Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the license granted by Opinum to the Client under this Agreement is subject to the following prohibitions. The Client must not and shall procure that its End Users shall not: (a) sub-license, hire, assign, distribute, transfer, sell, lease, rent charge or otherwise deal in or encumber its right to access and use the Platform; (b) permit any unauthorized person to access or use the Platform; (c) use the Platform to provide services to third parties other than the End Users; (d) republish or redistribute any content or material from the Platform; (e) make back-up copies of the Platform or the Object Code behind the Services or the Platform; (f) adapt, alter, translate or modify the Platform in any manner; (g) decompile, reverse engineer, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Platform, except and only to the extent that such activity is expressly permitted by any applicable mandatory law; (h) alter, remove, or obscure any copyright notice, digital watermarks, proprietary legends or other notice included in the Platform; (i) intentionally distribute any virus, or other items of a destructive or deceptive nature or use the Platform for any unlawful, invasive, infringing, defamatory or fraudulent purpose; or (j) remove or in any manner circumvent any technical or other protective measures in the Platform. The Client will inform Opinum in writing of any infringement on these usage rights within ten (10) Business Days after the infringement took place.
The Client acknowledges to comply with all applicable laws relating to the use of the Platform.
For the avoidance of doubt, the Client has no right to access the software code (including Object Code, intermediate code and source code) of the Platform, either during or after the Term.
Professional Services
In addition to the Platform, the Client can request additional Services from Opinum through electronic mail as set out in article 20.5 of these Terms and Conditions. The scope and applicable fees for such Services shall be specified in the Order.
Opinum shall provide the Services in complete independence and shall plan its activities as it sees fit. This independence constitutes an essential element of this Agreement, without which the Parties would not have concluded it. In no case shall this Agreement be interpreted as an employment contract between the Client and the person or persons assigned by Opinum.
Client Cooperation
The Client acknowledges and agrees that in order for Opinum to effectively perform the Services in a proper, timely and efficient manner, the Client must cooperate with Opinum by, at no cost, (i) making available on a timely basis management decisions, information, and approvals; and (ii) providing timely and appropriate access to the Client facilities, personnel, equipment, resources and systems, and any relevant information and documentation (to be accurate and complete) as necessary to facilitate the performance of the Services.
The Client shall use best efforts to promote the Services and the Platform to its End Users.
Client Data
During the usage of the Platform, the Client may upload Client Data. The provision of such Client Data shall comply with the formats and standards provided by Opinum. In case the provision of the Client Data doesn’t comply with the aforementioned formats and standards, Opinum shall charge additional fees and costs to the Client due the conversion of the Client Data.
The Client warrants that all Client Data provided in accordance with article 4 shall at all times be true, accurate and not misleading. Opinum reserves the right to edit or exclude any Client Data on becoming aware that it is incorrect or incomplete or in violation of the terms and conditions under these Terms and Conditions. Any complaints or claims in respect to the Client Data and its consumption, services rendered or offered by the Client or specific requests made by End User or third parties are to be dealt with by Client, without mediation by or interference of Opinum. Opinum is not responsible for and disclaims any liability in respect of such claims. Opinum may at all times and at its sole discretion (i) offer Client (support) services to an End User in this respect, (ii) act as intermediate between Client and End User, or (iii) otherwise assist an End User in its communication with or actions against the Client.
Unless explicitly agreed otherwise, the Client is solely responsible for the safety and security of the Client Data and for making the necessary back-ups in order to avoid loss and/or corruption of the Client Data.
The Client hereby grants to Opinum a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Client’s Data to the extent reasonably required for the performance of Opinum’s obligations and the exercise of Opinum's rights under this Agreement. The Client also grants to Opinum the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of Opinum’s obligations and the exercise of Opinum’s rights under this Agreement, subject always to any express restrictions elsewhere in this Agreement. Notwithstanding the foregoing, Client Data shall remain the sole and exclusive property of Client.
The Client is fully and solely responsible for the Client Data provided to Opinum. The Client warrants to Opinum that the Client Data when used by Opinum in accordance with this Agreement will not infringe the Intellectual Property Rights, privacy or any other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law and is not illegal, criminal, deceptive or fraudulent or any other action that is unlawful, and will not adversely or negatively affect or reflect Opinum’s name, reputation or goodwill.
Security and Usage
The Client shall use reasonable endeavors, including reasonable security measures relating to Account access details, to ensure that no unauthorized person may gain access to the Platform using an Account and shall effect and maintain adequate security measures to safeguard the Platform from unauthorized use or copying by any person.
Opinum shall use all reasonable endeavors to maintain the availability of the Services to the Client, but does not guarantee 100% availability.
The Client must not use the Platform: (a) in any way that is unlawful, illegal, fraudulent or harmful, or (b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
Usage Control
If the Platform allows the Customer to monitor its usage, the Customer will be obliged to monitor and inspect the usage of the Platform at least on a monthly base. If the Client has underpaid the amount of (Subscription) fees due to Opinum based on the usage, the Client shall inform Opinum without undue delay. The (Subscription) fees of the Client shall be adapted based on the usage.
Opinum has the right to monitor and inspect the usage of the Platform by the Client, without being obliged to monitor. If such inspection shows that the Client has underpaid the amount of (Subscription) fees due to Opinum, without prejudice to any other rights and remedies available to Opinum, the Client shall promptly pay the amount of such underpayment to Opinum together with any applicable late payment interest.
Intellectual Property Rights
Opinum is and remains or becomes (as applicable) the sole and exclusive owner of the Platform, the Services and applicable documentation and all related Intellectual Property Rights. Nothing herein shall convey title or any proprietary rights in or over the Platform, Services or applicable documentation to the Client or any third party. The Client shall not in any way acquire any title, rights of ownership, copyright, Intellectual Property Rights or other proprietary rights of whatever nature in the Platform or Services, including any materials provided under support services or in any copies of it.
The Client agrees not to remove, suppress or modify in any way any proprietary marking, including any trademark or copyright notice, on or in the Platform or Services, or visible during its operation, or on media or on any applicable documentation. Client shall incorporate or reproduce such proprietary markings in any permitted back-up or other copies.
Third Party Infringement Claims
Opinum will be given prompt written notice of any third party claim on an alleged or actual infringement by the Platform or Services or other material made available by Opinum, and will be granted the right to control and direct the defense and settlement of such a claim. The Client shall be entitled to participate in such proceedings at its own cost. Opinum shall keep the Client regularly informed of the status of the proceedings and/or settlement negotiations. The Client agrees to reasonably cooperate with Opinum in the defense and settlement of such a claim. In the event the Platform or the Services or such other material as referenced above, in Opinum’s reasonable opinion, are likely to become or actually become the subject of a claim of infringement as set out above, Opinum shall have the right, at its option and expense, to (i) modify or replace the (alleged) infringing material so that it becomes non-infringing while preserving substantially equivalent functionality; or (ii) obtain for the Client the right to continue to use, market and distribute such material as per the terms of this Agreement. In case any alleged or actual Intellectual Property Rights infringement relating to the Platform or Services arises the Client shall immediate cease the use thereof. In case the Client neglects this obligation, Opinum may at its sole discretion terminate the Agreement with immediate effect and without any compensation or indemnification.
Opinum shall have no liability for any claim which is based upon (i) the Client’s or End User’s unauthorized use of the Platform or the Services, (ii) Client’s, End User’s or any third party’s modification of any of the Platform, or (iii) Client’s or End User’s use of the Platform or Services in unauthorized or incompatible combination with any non-Opinum products or services.
Confidentiality
Each Party shall treat as confidential and keep secret all Confidential Information relating to the other Party and shall not disclose, whether in written, oral, electronic or other form, to any third party, other than its agents, officers, employees, professional advisors, insurers, subcontractors or consultants where such disclosure is necessary, any Confidential Information learned during the negotiation and performance of the Agreement. Confidential Information disclosed under this Agreement shall not be used by the receiving Party for any purpose other than as required for the performance of its obligations under the Agreement.
Both Parties shall take precautions to maintain the confidentiality of the Confidential Information and in particular the Parties covenant that they: (a) shall not copy or otherwise exploit any component of the Confidential Information other than as herein provided, nor make any disclosures with reference thereto to any third party, (b) shall promptly notify the disclosing Party if it becomes aware of any breach of confidence and give the disclosing Party all reasonable assistance in connection with the same.
The provisions of this article shall not apply to any secret or information which: (a) is published or comes into the public domain other than by a breach of the Agreement or, (b) can be shown to have been known by the receiving Party before disclosure by the disclosing Party or, (c) is lawfully obtained from a third party or, (d) can be shown to have been created by the receiving Party independently of the disclosure and other than as part of the project.
The restrictions in this article do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation or by any judicial or governmental order or request, provided that the receiving Party (i) gives the disclosing Party reasonable notice prior to seek a protective order or equivalent, unless the receiving Party is legally prohibited from doing so; (ii) reasonably cooperates with the Disclosing Party in its reasonable efforts to obtain a protective order or other appropriate remedy; (iii) discloses only that portion of the Confidential Information that it is legally required to disclose; and (iv) uses reasonable efforts to obtain reliable written assurances from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection available under applicable law or regulation.
The provisions of this article shall enter into force as from the start of negotiations between the Parties and shall continue in force during five (5) years following the termination of this Agreement.
Payment Terms
During the Term and as consideration for the license to use the Platform, to receive the Services and standard support (i.e., access to online documents and community), the Client agrees to pay the Subscription Fee. The Subscription Fees are mentioned on the website of Opinum (https://www.opinum.com/pricing). The Subscription Fee shall not include a one-time set up (including standard implementation and activation support (such as, activation of the Account)) and any other support. Hence, the one-time set up and any other type of support that is not considered standard support shall be subject to the applicable support fees as set forth in the Order. The Subscription Fee and any other fees, costs or amounts due will become payable as set out in the Order and the Terms and Conditions. All payments under this Agreement shall be done by bank transfer, wireless transfer, credit card or any other agreed payment method (using such payment details as notified by Opinum to the Client from time to time).
The Subscription Fee is payable in advance and will be invoiced on a monthly, quarterly or yearly basis as defined in the relevant Order(i) immediately following the approval in writing by the Client of an Order for the Initial Term, and (ii) prior to the beginning of the next Renewal Term. The Subscription Fees shall be reviewed, adjusted and increased at the end of the Initial Period or Renewal Term (as applicable) in accordance with applicable volume parameter. The Client expressly acknowledges and agrees that any upfront payments made pursuant to these Terms and Conditions are final and non-refundable. If the Agreement is terminated early, the Client shall not be entitled to a refund whatsoever.
Any additional support fees or other costs, fees or amounts due shall be invoiced monthly on a time and material basis and are payable within thirty (30) calendar days following the date of invoice, unless the Parties have agreed otherwise in writing.
Invoices shall be sent in PDF-format to the Client’s email address, specified in the Order, or in writing to the Client’s physical address if specifically requested by the Client.
The Client agrees to make all payments due to Opinum under the provisions of this Agreement within thirty (30) days of the date of invoice and in euro, unless Parties have agreed otherwise in writing. In the event of late payment, all Client payment obligations to Opinum will immediately become due and payable.
All amounts payable to Opinum under this Agreement shall be paid without the right to set off or counterclaim and free and clear of all deductions or withholdings whatsoever, unless the same are required by law, in which case the Client undertakes to pay Opinum such additional amounts as are necessary in order that the net amounts received by Opinum after all deductions and withholdings shall not be less than such payments would have been in the absence of such deductions or withholding. Amounts stated to be payable under this Agreement do not include any applicable value added tax or other taxes, which shall be additionally charged to the Client. The Client is responsible for payment of all general, state or local import, usage, value added, withholding or other taxes associated with the supply or use of the Platform or Services. The Client shall promptly reimburse Opinum for any such taxes or duties paid by Opinum.
The amount of any invoice which has not been paid within thirty (30) days from the invoice date shall automatically be subject to a late payment interest equal to the legal interest rate of the Act of 2 August 2002 on late payment interests in commercial transactions, which interest shall be compounded daily as of the due date until receipt of full payment by Opinum. In addition, Client shall pay all costs incurred by Opinum, as a result of the (extra)judicial enforcement of the Client’s payment obligation under this article, with a minimum of 150 EUR. If Client fails to pay any outstanding amounts within sixty (60) days from receipt of a written default notice, Opinum shall be entitled to suspend its obligations and the Client’s rights hereunder until receipt of payment of such outstanding amounts.
Each invoice made by Opinum shall be deemed to have been accepted by the Client if it is not disputed by registered letter sent to Opinum wherein the reason for the dispute is explained, and this within fifteen (15) days after the invoice date of that specific invoice.
In the event the use of the Platform, Services or support services give rise to additional costs and/or expenses for the Client from third parties (including but not limited to software integration costs), such costs are exclusively the Client’s responsibility and cannot be claimed from Opinum.
Limitation of Liability
The limitations and exclusions of liability set out in this article and elsewhere in this Agreement govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty or otherwise, and third-party claims, except to the extent expressly provided otherwise in this Agreement.
Neither Party shall be liable to the other Party in respect of any losses arising out of a Force Majeure Event.
Subject to the maximum extent permitted by applicable law, Opinum’s liability under this Agreement in respect of each event (or series of connected events) and per contract year shall not exceed the Subscription Fees paid by the Client to Opinum under the present Agreement in the contract year during which the event (or last of the series of connected events) giving rise to the claim occurred.
Subject to the maximum extent permitted by applicable law, under no circumstances shall Opinum be liable to the Client and/or End User for any indirect, punitive, special, consequential or similar damages (including damages for loss of profit, anticipated savings, lost revenue or income, loss of use or production, loss of business, loss or corruption of data, loss of database or software, loss of customers and contracts, loss of goodwill, the cost of procuring replacement goods or services, and reputational damage). Each Party shall have the duty to mitigate damages.
Term
The Agreement shall commence on the Effective Date for the Initial Term and shall thereafter automatically and tacitly renew for successive one (1) year periods (each a "Renewal Term") unless written notice of non-renewal is given by either Party at least three (3) months prior to the expiration of the Initial Term or any (subsequent) Renewal Term.
Opinum may terminate this Agreement and/or user rights granted hereunder by written notice to the Client, if the Client fails to pay to Opinum any amount due hereunder and the Client fails to cure such failure to pay within sixty (60) days from the date of such notice. The Client acknowledges and agrees that any use of the Platform or the Services outside the scope of this Agreement, unless such use has been expressly approved in writing by a duly authorized representative of Opinum, shall entitle Opinum to immediately terminate (or alternatively, at Opinum’s option, suspend) the license granted hereunder and/or the Agreement for material breach by the Client, without any formalities being required and without prejudice to any other right or remedy available to Opinum pursuant to this Agreement or under applicable law.
Either Party may terminate this Agreement by written notice to the other Party if the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days from the date of receipt of such notice by the breaching Party, provided that Opinum shall be entitled to terminate the Agreement (or alternatively suspend the Services and/or user rights granted hereunder) on giving written notice in the event the Client breaches the license terms hereunder or infringes Opinum’s Intellectual Property Rights, Confidential Information, or breaches its obligations under the applicable Data Protection Laws. For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement: (i) a Force Majeure Event; (ii) a fault or failure of the Client’s computer systems or networks; (iii) any breach by the Client of this Agreement; or (iv) scheduled maintenance carried out in accordance with this Agreement.
Either Party may terminate the Agreement by written notice to the other Party, effective as of the date of delivery of such notice, if the other Party becomes the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding or otherwise liquidates or ceases to do business.
Upon termination of the Agreement for whatever reason the Client shall promptly pay Opinum all fees and other amounts earned by or due to Opinum in respect of the Services and use of the Platform, up to and including the date of termination, including (non-exhaustive list) the full Subscription Fees, and any additional support fees or other costs, fees, or amounts due . Additionally, all user rights granted to the Client pursuant to these Terms and Conditions, including the right to use the Platform as per Article 2, shall automatically terminate and the Client shall return all Intellectual property or other proprietary information (including the documentation) of Opinum and any copies thereof, in its possession or under its control to Opinum. Except as required to comply with any applicable legal requirements, each Party shall return the disclosing Party’s Confidential Information that is in the possession or under the control of that receiving Party (or alternatively destroy any copies thereof that cannot be returned and confirm the disclosing Party in writing that such copies have been destroyed).
Updates
Opinum shall provide services with regard to the required updates to the Client during the Term. In particular, Opinum reserves the right to make, in its sole discretion, changes and updates to the functionalities of the Platform from time to time without any prior notification to the Client, provided that Opinum shall not change any material functionalities of the Platform without prior notification to the Client. The foregoing shall be without prejudice to Opinum’s right to make available additional features, functionalities, modules or otherwise for which additional fees may be required.
Opinum shall where practicable give to the Client at least ten (10) Business Days' prior written notice of the scheduled services regarding the update that are likely to affect the availability of the Services or are likely to have a material negative impact upon the Services.
Support Services
As of the Effective Date and in consideration of the timely payment by the Client of the Subscription Fees and/or support fees (if applicable; no support services with regard to the free trial version of the Platform), Opinum shall provide support services in relation to the Platform in accordance with the provisions set out below and as set out in the Order.
The Client shall appoint one or two single point(s) of contact(s) towards Opinum and the End Users for support related matters (hereafter, the “SPOC”). If an Incident is encountered by the Client (or an End User), the SPOC shall first review and assess the Incident. If the Incident cannot be solved by the SPOC, and provided that the Incident is not an out of scope Incident, the SPOC may notify Opinum of such Incident via the applicable support channels as specified in the documentation (or such other method of communication specified by Opinum from time to time), and the SPOC shall designate a priority level to the Incident and specify the details of the Incident (in accordance with the priority levels as set forth in the Order). Upon receipt of a ticket, Opinum may in its sole discretion determine whether the Incident is an out-of-scope Incident or not and Opinum’s classification shall be binding and final. Opinum undertakes to make all commercially reasonable efforts to remedy any Incidents reported by the Client through the SPOCs within a reasonable period of time. Opinum reserves the right to charge the Client any costs that are made in respect of investigating the nature of an Incident on a time and material basis.
Support services for out-of-scope Incidents are not included in the fees. However, the Client is entitled to ask any questions regarding the Platform and Opinum shall answer any Client request in good faith, without any binding commitment whatsoever. Opinum may charge for any services so rendered on a time and material basis at the then-current rates. On request, Opinum shall inform the Client of the applicable rates.
In particular, Incidents caused by one of the following are not included in the support services, however the Client may request Opinum to provide services regarding such incidents for which Opinum may charge additional fees (on a time-and-material basis at the then-current rates) (non-exhaustive) (i) out of scope Incidents; (ii) abuse or misuse of the Product; (iii) modification of the Product not performed by or with the consent of Opinum; (iv) incorrect configuration not performed by or with the consent of Opinum; (v) the use of incorrect data or data structures; (vi) any installation other than a supported release; (vii) the use of any other environment than the Client’s production environment; or (viii) any Incident caused by the Client or its End Users.
Warranty
The Client acknowledges and agrees that the Platform and the Services are provided “as is”. Except for the foregoing warranty and to the maximum extent permitted by applicable law, Opinum does not make any representations or warranties, express or implied, concerning any matter under this Agreement (including the Platform and the Services) and Opinum disclaims any representations or warranties, express or implied, including (without limitation) any implied warranties of accuracy or completeness of data, fitness for a particular purpose, merchantability, or non-infringement.
Hosting
The Platform is hosted by the Hosting Partner and Opinum is entitled to provide the Hosting Partner’s Services (“Hosting Services”) to the Client. The Client represents and warrants that it accepts the terms and conditions of the last version of the Hosting Partner’s terms of use as available on its website the (“Hosting Terms”) and acknowledges and agrees that the Hosting Partner shall retain the right to unilaterally change these terms at any time. The Client shall indemnify and hold harmless Opinum for any non-compliance with such terms. Opinum shall not be responsible for any non-availability of the Platform to the extent due to any Hosting Partner.
The Client acknowledges that the Hosting Services will be performed in the Hosting Partner’s datacenters. The warranties set out in the Hosting Terms are not applicable in case the non-conformity with the service level terms and conditions is due to accident, misuse or use in any other way which is not compatible with the Hosting Terms or the present Agreement. Opinum and the Hosting Partner do not give any other warranties and reject all other explicit, inexplicit or legal warranties, including warranties in respect of merchantability, fitness for a particular purpose, adequate quality, title or non-infringement. Opinum shall in no event provide any warranty in respect of the Hosting Services.
Opinum will make a daily backup of the database. This Client Data is kept for a period of three (3) years from the date the Client Data was created or uploaded to the Platform. After three (3) years, the Client is required to acquire storage units. Otherwise, the Client Data will be deleted.
For a period of two (2) months from the termination of the contractual relationship, Opinum will retain the Client's Data. After this period, the Client Data will be destroyed without the Client being entitled to claim any compensation whatsoever.
The Client may request Opinum to provide a backup of its Client Data. The method of transferring the Client Data will be offered by Opinum and charged at the rate in force at the date of the Client's request, taking into account the quantity and type of Client Data to be transferred.
The Client on behalf of its End Users gives the Hosting Partner the permission to process all Personal Data as contemplated by this Agreement.
Privacy and Data Protection
Each Party shall comply with all applicable legal requirements regarding privacy and data protection, more in particular with the General Data Protection Regulation of 27 April 2016 (“GDPR”) with respect to the processing of Personal Data (as defined in the GDPR). The privacy policy of Opinum is available on: https://www.opinum.com/en/privacy-policy.
The Client represents and warrants to Opinum that it has the legal right to disclose any Personal Data that is available to Opinum under or in connection with this Agreement (including, but not limited to, any Personal Data that might be disclosed by the End User while using the Platform and the Services) and that the Client has a valid legal ground to process such Personal Data and to disclose such Personal Data to Opinum in accordance with applicable law. The Client undertakes to sufficiently inform all Data Subjects about such processing activities by the Client and/or Opinum (as applicable) in accordance with applicable law.
When one of Opinum's Clients decides to engage a supplier through the Marketplace, the Client agrees that Opinum may transmit its data to the supplier in order to perform the services offered in accordance with the data protection agreement concluded between Opinum and the suppliers.
In processing Client Data, Opinum undertakes to implement all appropriate security and confidentiality measures to protect Personal Data against destruction, loss, alteration, unauthorized disclosure or access and against any other unlawful form of processing.
Opinum shall use Client’s Personal Data in accordance with the Data Processing Agreement as concluded between the Parties and as attached hereto. For the rest, the Client is invited to refer to this Agreement for the rights, duties and obligations of the Client and Opinum with regard to Personal Data.
If any changes or prospective changes to the Data Protection Laws result or will result in one or both Parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the Parties shall use their best endeavors to promptly agree such variations to this Agreement as may be necessary to remedy such non-compliance.
In order to ensure the continued functioning of the Services, the subscription, whether optional or not, to certain Services and facilities offered by Opinum may require the transfer of Personal Data outside the European Union. However, the transfer of Personal Data is achieved by implementing the safeguards set out in the GDPR and by applying the additional measures set out in the de Standard Contractual Clauses and other enforcement and security measures as taken.
Non-competition
The Client shall not during the continuance of these Terms and Conditions and a period of twenty-four (24) months after its termination, whether directly or indirectly, alone or together with any other persons, on their own account or in conjunction with, through or on behalf of any persons, agents, intermediaries, joint ventures or alliances, whether as contractor, director, shareholder, consultant, subcontractor, employee or in any other capacity provide to Third Parties in the European Economic Area, a product and/or service that is similar to or has the same functionalities as Opinum’s Platform or Services.
Non-solicitation
The Client shall not without the prior written authorization of Opinum, for the duration of these Terms and Conditions, and for twenty-four (24) months after termination thereof, hire any of Opinum’s employees or independent contractors who are involved in the execution of the Terms and Conditions, or have such employees or independent contractors work for him, either directly or indirectly (with companies wherein the Client has direct or indirect interests), approach them for this purpose or recommend them for employment to Third Parties.
Miscellaneous
Definitions – Defined terms shall have the meanings ascribed to them in article 23 to these Terms and Conditions.
Severability - If any provision of this Agreement is held to be unenforceable, the other provisions shall nevertheless continue in full force and effect. Each Party shall use its best efforts to immediately negotiate in good faith a valid replacement provision with an equal or similar economic effect.
Survival - The provisions of this Agreement that are expressly or implicitly intended to survive termination, shall survive any expiration or termination of this Agreement.
Waiver and entire agreement - This Agreement may be modified or amended only by written agreement executed by a duly authorized representative of both Parties hereto. This Agreement may be waived only by a written document signed by the Party entitled to the benefits of such waiver. This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior oral or written agreements, representations or understandings between the Parties relating to the subject matter hereof. The Client acknowledges that the general terms and conditions of the Client are not applicable and are therefore expressly excluded, even if such general terms and conditions would contain a similar clause.
Notices - Any notice required to be served by this Agreement shall in first instance be given by electronic mail to the email addresses set out in the Order. All notices given by electronic mail, shall only be valid in case confirmation of receipt was expressly given by electronic mail by the receiving Party. In case no confirmation of receipt was given by the receiving Party within five (5) Business Days, all notices can be done in writing and served by personal delivery or registered letter, addressed to either Party at its address given in the Order or to such other address as a Party may designate by notice hereunder. All notices shall be deemed to have been given either (i) if by hand, at the time of actual delivery thereof to the receiving Party at such Party’s address, (ii) if sent by overnight courier, on the next Business Day following the day such notice is delivered to the courier service, or (iii) if sent by registered or certified mail, on the 5th Business Day following the day such mailing is made.
Publicity - Opinum shall have the right (unless otherwise indicated in the Order) to use any trademarks or other marks of the other Party (including the other Party’s corporate name) for marketing or promotion purposes, such as (but not limited hereto) client references on Opinum’s website and sales presentations.
Interpretation - In this Agreement (unless the context shall otherwise require or permit):
(a) Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted;
(b) Words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and incorporate; and each case vice versa;
(c) The headings or captions to the articles are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
Relationship between the Parties - The relationship between Opinum and the Client is that of independent contractors. Neither Party is an agent for the other and neither Party has any authority to make any contracts, whether expressly or by implication, in the name of the other Party, without that Party’s prior written consent for express purposes connected with the performance of this Agreement.
Non-Assignment - Client shall not assign or otherwise transfer any of its rights or obligations under this Agreement without Opinum’s prior written consent. Opinum’s consent should be requested by registered letter, disclosing the identity of the prospective transferee. Subject to any restrictions on assignment herein contained, the provisions of this Agreement shall inure to the benefit of and shall be binding upon the Parties hereto and their respective heirs, legal representatives, successors and assignees.
Language - The Agreement is in the English language only, which language shall be controlling in all respects. Furthermore, all communications and notices made or given pursuant to the Agreement shall be in the English or Dutch language.
Electronic signature - The Parties expressly agree that the Agreement, including the Order may be signed electronically. The Parties agree not to contest the admissibility, enforceability or evidential value of the Agreement or Order on the basis of its electronic signature. The Parties expressly acknowledge that Agreements signed electronically constitute written evidence and have the same evidentiary value as a paper document in accordance with the provisions of the Civil Code. Consequently, the Parties expressly acknowledge that the agreement signed electronically can be validly opposed to them.
Special Terms and Conditions
The Parties undertake to comply to the additional Special Terms and Conditions, if applicable, as set out in the Order.
Applicable law and jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of Belgium and the Parties hereto submit to the exclusive jurisdiction of the competent courts of Brussels (Dutch speaking division). The United Nations Convention for the International Sale of Goods shall not apply to this Agreement.