Terms and conditions

GENERAL TERMS AND CONDITIONS - SMARTBEAM

November 2019

1. Definitions

In these terms of service, the following concepts shall have the meaning described in this article (when written with a capital letter) :

« Access Rights »: all contractual rights to access, receive and use the Services according to the technical protocols and procedures established by SMARTBEAM pursuant to the agreement between parties.

« Additional Service(s) »: all features the Customer can order in addition to the Basic Package;

« Administrator »: the user(s) who is (are) responsible for the Administrator Account(s);

« Administrator Account » : the user account of the Customer, which can solely be accessed and used by the Administrator and through which the Administrator shall be able to (i) use the Tool and Services in accordance with Customer’s order, (ii) change the configuration settings (including but not limited to adding additional Services or features) and (iii) creating additional accounts for Users

« Basic Package » : the standard services of which the Customer can make use of through the Tool and which may be subject to change in the future: manage requests for quotation, compare and communicate about the bids received, select the chosen contractors, keep updated and report on progress of the works to be carried out by each contractor, automatically generate financial reports and analyze a budget summary of the projects.

« Communication »: any communication sent by SMARTBEAM via email at regular times concerning Services-related announcements, administrative e-mails and newsletters;

« Customer »: every natural person or legal entity, as well as anyone who orders the Services from SMARTBEAM and/or enters into an agreement with SMARTBEAM in the name of or on behalf of this legal entity. Every natural person is considered to be at least 18 years of age;

« Customer Data »: any and all content, information and data – including personal data – pertaining to prospects, business partners, clients and/or customers of the Customer (non-limitative) entered and uploaded into the Tool by the Customer by using the Services;

« Demo »: a temporary access to the Tool, which allows the Customer, before entering into an agreement with SAMARTBEAM, to make use of the Tool and Services during a term of 30 calendar days;

« Documentation »: any documentation provided by SMARTBEAM regarding the Tool and Services as well as the Website and including any documentation, tutorials or other available on the Website;

« Privacy Declaration »: the privacy statement of SMARTBEAM as available on https://www.smartbeam.co/en/privacy-policy/;

« Services »: the online services which facilitate budget management of building projects, significantly improve efficiency and collaboration between all stakeholders and which notably consist of the Basic Package and the Additional Services;

« SMARTBEAM »: the limited company « SMARTBEAM », with its registered office at Avenue Louise 486/15, 1050 Bruxelles, Belgium, VAT BE 0675.367.844 ;

« Indemnitee »: every SMARTBEAM officer, director, partner, employee and affiliate;

« Term »: the initial or renewed term during which the Customer can make use of the Tool and Services, as selected by the Customer when ordering the Services

« Tool »: the online application, developed by SMARTBEAM, with the brandname “Smartbeam®” (trademark registration number 018100625)

« User »: any user of the Customer for whom the Customer has also ordered a User Account

« User Account »: the user account, which can be accessed by a User through his/her personal login in order to make use of the Tool and Services;

« Website »: www.smartbeam.co and every SMARTBEAM website of the country in which SMARTBEAM operates.

« Particular terms and conditions »: the particular terms and conditions provided for in the offer sent by SMARTBEAM and countersigned by the Customer.

2. Scope

SMARTBEAM developed and offers a Tool for budget management of building projects. The Tool offers an integration of various Services that ensure a more efficient management between all stakeholders intervening on a building site, as from the request for quotations until the invoicing.

Every commercial relationship between SMARTBEAM and the Customer shall be governed by the terms of service as laid down in this document.

By ordering the Services or entering into an agreement with SMARTBEAM – including registration for the Demo – the Customer acknowledges to have read these terms of service as well as the data processing agreement – available on https://www.smartbeam.co/en/data-processing/ (cf. Article 17) – and thereby accepts both. The terms of service always take precedence over the terms and conditions of the Customer, even if they stipulate that they are the only valid conditions.

The invalidity of one or more provisions of these terms of service or any part thereof shall not affect the validity and enforceability of the other clauses and/or the remainder of the provision in question. In case of invalidity, parties shall negotiate to replace the invalid provision by an equivalent provision in accordance with the spirit of these terms of service. If parties do not reach an agreement, then the competent court may mitigate the invalid provision to what is (legally) permitted

The (repeated) failure by SMARTBEAM to exercise any right may only be construed as a toleration of a particular situation and shall not give rise to a forfeiture of rights.

These terms of service shall not affect the mandatory legal rights granted to the consumer-Customer under the Belgian legislation relating to consumer protection.

SMARTBEAM reserves the right to change its terms of service whenever it wishes to do so by a change on its Website. SMARTBEAM undertakes to notify the Customer thereof through (i) an announcement on its Website within a reasonable term prior to the application of the amended terms of service and/or (ii) through the SMARTBEAM Communication.

These terms of service must be read together with SMARTBEAM’s Privacy Declaration and may at all times be consulted on the Website.

3. Offer

Catalogues, brochures, newsletters, folders, SMARTBEAM Communications and other publicity announcements, as well as announcements on the Website are entirely non-binding, and may only be regarded by the Customer as an invitation to order the Services, unless explicitly specified otherwise.

Every offer shall only be valid for (i) a specific order and shall thus not automatically apply to subsequent (similar) orders as well as (ii) the duration as stipulated therein.

4. Demo

Each potential Customer will be given the opportunity to use the Demo free of charge upon registration thereto via the Website. Upon such registration, the potential Customer will receive an email to validate and activate its account and then will be able to connect thereto with the login and password previously informed.

The use of the Demo shall automatically be frozen once 30 calendar days have passed since the online registration. The Customer shall still have a read-only access to its account for a period of 3 months. However, the potential Customer shall be able during the term of the Demo as well as upon its termination to enter into a (definitive) agreement with SMARTBEAM regarding the Services in which case the conditions as described in Article 5 must be complied with.

5. Conclusion of the Agreement

A definitive Agreement (exclusive of Demo) is entered into between SMARTBEAM and the Customer as soon as the Particular terms and conditions provided for in the offer sent by SMARTBEAM are countersigned by the Customer. The Particular terms and conditions provide a description of the requested Services, i.e. the Basic Package and, as the case may arise, the additional Services/features, term of the agreement, etc.

The Particular terms and conditions of the countersigned offer and these general terms and conditions constitute the “Agreement”.

Any changes or additions to the Agreement after the Administrator Account (and additional User Account(s))) have been provided will only be considered valid after written approval of and implementation by SMARTBEAM.

6. Delivery

Following conclusion of the Agreement, the Customer shall be granted access to the Tool and Services, which is provided as ‘Software as a Service (SaaS)’. Such right of access merely implies a non-exclusive and non-transferable right to use the Tool and Services.

Providing the Administrator Account to the Customer will be considered a delivery of the Tool and Services.

Upon delivery, the Customer is obliged to carry out an initial verification involving, among other things: number of Users, the Services (being the Basic Package and/or requested additional features), invoicing per quarter or per year. The Customer is obliged to inform SMARTBEAM within 48 hours following delivery of any non-conformity by sending an email (support@smartbeam.co).

If no complaints are made within such timeframe of 48 hours, the Customer is deemed to have approved and accepted the delivery.

7. Administrator Account / User Account

The Customer shall be able to access the Tool as well as make use of the Services through the Administrator Account and the additional User Accounts.

The Administrator shall be solely responsible for every use and activity of the Administrator Account.

The number of User Accounts corresponds to the number of Users of the Customer. Each User has its own User Account. The Administrator determines the extent of the rights of the User Accounts and the Administrator shall always remain responsible for every use of the User Accounts.

Each User Account (including the Administrator Account) belongs to one person only and may therefore not be shared with other persons. The Administrator as well as every User is advised to create a unique password, to change it frequently.

The Customer shall be solely responsible for the protection and security of the Administration Account and the User Accounts. In this context, the Administrator and every User must ensure the confidentiality of their respective account, including the confidentiality of the login-data such as the password. Each loss or misuse of such login-data may therefore lead to liability towards SMARTBEAM.

Furthermore, it is strictly forbidden to:

  • Ask for the login-data of other users;

  • Login onto one other’s account;

  • Use the Tool and Services in a fraudulent manner (e.g. the use of a false account and/or providing false information is considered as fraudulent use);

  • Pretend to be another (legal or natural) person when using the Tool and Services without the necessary permission. Such action may lead to civil and criminal sanctions.

The Customer must immediately (i) penalize or sanction any improper and unauthorized use and (ii) immediately inform SMARTBEAM in writing of such use and of every controversial registration it notices.

A well-reasoned and founded notification may lead to temporary and/or perpetual suspension and/or removal of Administration Account and/or the User Accounts. SMARTBEAM preserves itself a wide margin of discretion to ensure best quality of the Services. In any event, SMARTBEAM will not be liable for any loss or damage arising from Customer’s failure to comply with the above requirements.

8. No right to withdrawal

Pursuant to Book VI Market Practices & Consumer Protection of the Belgian Business Code (‘WER’) and subject to the exceptions set forth therein, every Customer (in his capacity of a consumer) has a right of withdrawal with regard to products and/or services purchased through the Internet, by email or phone.

Professional Customers shall under no circumstances have a right of withdrawal.

9. Price

The Basic Package is offered by SMARTBEAM at a price as further detailed in the Particular terms and conditions.

If the Customer requests at a later date for additional Users or projects, or if it decides to reduce the number of Users/projects in the framework of the Services provided by SMARTBEAM, the price shall then be adjusted to the tariffs which will apply at that time.

In case of one or more Additional Services, a price supplement per Additional Service shall be invoiced on the top of the price of the Basic Package. The Additional Services to the Basic Package are:

  • Training and/or site intervention by the Customer, at a rate of 150 eur/hour;

  • Customer Data export at any other time than the term of the Agreement, at a rate of 250 Eur per export.

The Basic Package, the additional Users/projects and Additional Services shall permanently be sold at the price notified by email or by phone at the moment of the purchase, as applied to the country where the Customer pursues its activity. The price for these additional Users/projects shall be calculated on a pro rata basis taking into account the remainder of the billing period.

The prices are expressed in euros and exclusive of VAT, unless when specifically determined otherwise.

Unless otherwise specified in the Particular terms and conditions, SMARTBEAM reserves the right, at its own discretion, to adapt the price at the start of each renewal period of the Agreement, with 2 months prior notice sent by email to the Customer. Should the Customer not accept the new price, the Agreement can be terminated in accordance with these general terms and conditions. If the Agreement is not terminated, the Customer shall be deemed to have accepted the new tariffs.

Any commercial discounts on the standard prices which are granted by SMARTBEAM shall only be applicable in accordance with the guidelines and conditions expressly stated in this regard. The Customer acknowledges that discounts (as well as any other promotional gifts) cannot be accumulated, are personal by nature and can never give rise to acquired rights.

10. Payment

By ordering the Services, the Customer expressly agrees to electronic invoicing by SMARTBEAM, unless agreed otherwise in writing by parties.

Unless expressly agreed otherwise in the Particular terms and conditions, SMARTBEAM shall send payment in advance invoices to its Customers on a yearly basis.

An invoice will be sent to the (electronic) address provided by the Customer when ordering the Services. The Customer undertakes to inform SMARTBEAM as soon as possible of any changes in respect to thereto.

Unless expressly agreed otherwise in the Particular terms and conditions, the invoiced amount shall be paid within 30 calendar days of invoicing.

Invoices may only be legitimately disputed by the Customer via email (billing@smartbeam.co) within 14 calendar days after the invoice date, stating the invoice date, the invoice number and detailed reasons. Such dispute does not discharge the Customer from his obligation to pay.

The unconditional payment by the Customer of the invoice amount is considered explicit acceptance of the invoice.

Part payments by the Customer are always accepted subject to change and without any prejudice, and first allocated to the collection costs, next to the damages, the interest due and, finally, to the principal sum, with preference given to allocation to the oldest outstanding principal sum.

If the Customer terminates the Agreement (for whatsoever reason) (cfr. Article 15), the amounts already paid to SMARTBEAM shall not be returned.

11. Consequences of non- or late payment

For each invoice that has not been paid in full or in part by the Customer on the due date, the latter is liable to pay – by operation of law and without prior notice of default – late payment interest of 1% per month in arrears, whereby a month that has already started is to be considered as fully completed, while the amount due will be increased with all collection costs paid by SMARTBEAM in connection with the collection of the debt, plus 20% of the invoice amount, with a minimum of € 50 (excl. VAT) by way of lump sum damages, without prejudice to SMARTBEAM right to claim higher compensation.

SMARTBEAM also reserves the right to (temporarily) suspend the access to the Services until it has received actual and full payment from the Customer. Moreover, SMARTBEAM can consider the entire order (or part thereof) as cancelled if the aforementioned payment did not take place, even after formal notice was given, and – in addition – SMARTBEAM is entitled to claim a fixed compensation of 20 % of the price (excluding VAT), with a minimum of 50 Euro, without prejudice to its right to compensation for higher proven damage.

This will also result in all other invoices of SMARTBEAM to the Customer immediately becoming due and payable, even if they have not yet fallen due, and all permitted payment conditions will cease to apply. The same applies in the event of an imminent bankruptcy, judicial or amicable dissolution, suspension of payment, as well as any other fact showing that the Customer is insolvent.

12. Use of Services

General

For as long as this agreement remains in effect, the Customer can make use of the Tool and the Services within the scope of the Access Rights of the Customer, of which the scope is determined when ordering the Services. The scope of such Access Rights can be limited or extended during the Term of the agreement.

The Customer acknowledges that only his Administrator and Users may use the Tool and the Services and this for Customer’s internal business purposes solely and in compliance with all applicable laws, rules and regulations issued by governing authorities. Customer agrees that compliance with this article is an essential basis of the Agreement.

Use of and access to the Services by the Customer presupposes an Internet connection and the use of a modern web browser (such as but not limited to the most recent version of Google Chrome). If an obsolete web browser is used, the Customer may not be able to use all functions of the Services or these functions may not operate optimally.

The Customer shall be fully responsible for compliance with these terms of service, as well as for the acts and omissions of all users who make use of the Tool and Services through the Administrator Account and/or User Account. The Customer shall not authorize access to or permit use of the Tool and Services nor the Documentation by persons other than the Administrator or the Users.

Restrictions

Customer agrees not to misuse the Access Rights and shall thus not, without this list being exhaustive:

  • Sell, resell, license, sublicense, rent, lease or distribute the Tool and any Services, or include any Services or any derivative works thereof in a service bureau or outsourcing offering to any third party;

  • Copy, modify, adapt, alter, translate or make derivative works based upon the Services (other than any copies, modifications or derivative works made exclusively from the reports or overviews which are created solely for Customer’s internal business purposes);

  • Engage in, nor authorize others to engage in, the reverse engineering, disassembly or the decompilation of the Tool and/or Services.

  • Use the Tool and Services for illegal or unlawful purposes or for the transmission of data which is illegal, defamatory, invasive of another's privacy, abusive, threatening, harmful or infringes on someone's intellectual property (non- exhaustive list).

  • Use the Services to stalk, harass or harm another individual;

  • Disturb the good operation of the Tool and/or Website. This includes that Customers should refrain from the use of viruses, worms, Trojans or other software that may infringe the services and interests of both SMARTBEAM and its Customers. Customers should also refrain from any content that may burden or disturb the websites infrastructure and its proper functioning;

  • Send unsolicited and/or commercial messages, such as junk mail, spamming and chain letters;

  • Add content that can be described as not-appropriate regarding the aim of the Tool. SMARTBEAM reserves a large discretion and may notify Customers when touching boundaries;

  • Circumvent the business-model of SMARTBEAM;

  • Use the Services – partly or integrally – nor the Tool or Website in any manner that may give a false or misleading impression, attribution, or statement as to SMARTBEAM, or any third party.

13. Intellectual Property

Intellectual property rights of SMARTBEAM

The Customer explicitly acknowledges that SMARTBEAM is and remains the sole owner of the Tool and Services and/or other intellectual property rights relating thereto. All such rights and goodwill are, and shall remain, vested with SMARTBEAM.

Consequently, the Access Rights granted to the Customer solely imply the right to use – at a charge – the Tool and Services and no implied licenses shall be granted under this Agreement. Under no circumstances such right:

  • Entails a transfer of ownership of the Tool, Services and Documentation by SMARTBEAM to the Customer;

  • Grants the Customer any rights to or interests in the Tool, Services, any trade names and/or or trademarks of SMARTBEAM, and

  • Grants the Customer the right to request SMARTBEAM to deliver a copy of any software or other products utilized by SMARTBEAM to provide the Services.

The Customer shall thus not use any trademark, tradename, or brand name of SMARTBEAM (such as but not limited to the use thereof in metatags, keywords or hidden text), without the explicit written approval from SMARTBEAM.

Without prejudice to the right of the Customer or any third party to challenge the validity of any intellectual property of SMARTBEAM, the Customer shall not perform or authorize any third party to perform any act which would or might invalidate or be inconsistent with any intellectual property of SMARTBEAM – including without being limited to any patent, copyright, registered design, trade mark or other industrial or intellectual property rights – and shall not omit or authorize any third party to omit to do any act which, by its omission, would have that effect.

The Customer undertakes to notify SMARTBEAM of any actual, threatened or suspected infringement of any intellectual property rights of SMARTBEAM which comes to the Customer’s notice, and of any claim by any third party due to use of the Tool and Services.

Documentation

Subject to these terms of service, SMARTBEAM hereby grants to the Customer a non-exclusive, non-transferable license during the Term of the Agreement (cfr. Article 14) to reproduce copies of the Documentation solely for use by the Customer in connection to his Access Rights. Customer acknowledges that:

  • No right is granted to publish, modify, adapt, translate or create derivative works of the Documentation;

  • The Documentation is part of SMARTBEAM’s intellectual property and hereby agrees to accurately reproduce all proprietary notices, including any copyright notices, trademark notices or confidentiality notices, that are contained within any copies of the Documentation.

Customer’s intellectual property rights

Further, without conveying any right, title or interest, parties agree that SMARTBEAM is allowed to make accurate informational references to Customer’s trade names, trademarks or service marks (collectively, the “Marks”) in connection with its performance of the Services, for example through branding SMARTBEAM landing page by means of the latter’s Marks, subject to the condition that SMARTBEAM shall promptly cease any use of any Mark owned by Customer in connection with the performance of the Services upon (i) termination of this agreement or (ii) receipt of notice from the Customer to discontinue such use.

14. Duration

The agreement closed between SMARTBEAM and the Customer concerning the use of the Tool and Services shall have the initial Term as stipulated in the Particular terms and conditions.

Unless otherwise provided for in the Particular terms and conditions, the Term shall automatically be prolonged with successive periods of the same duration as the initial Term set forth in the Particular terms and conditions, if the agreement is not terminated by the Customer by the latest 15 calendar days before termination thereof.

15. Termination

Termination by the Customer

The Customer may terminate the Agreement by sending an email to SMARTBEAM ((hello@smartbeam.co) :

(i) At any time and for any reason, as long as such termination takes place at least 15 calendar days before expiration of the Term.

Every termination by the Customer less than 15 calendar days before expiration of the Term shall be without object since the agreement shall automatically be prolonged (cfr. Article 14). Consequently, the Customer shall be obliged to pay the invoice concerning the renewed Term, even if the Customer has no intention to continue its use of the Tool and the Services.

(ii) In the event he cannot agree with one or more of the following circumstances and such termination takes place within 30 calendar days after being notified thereof by SMARTBEAM: (i) a change in the offer of the Services, which entails a significant disadvantage for the Customer, **(ii) **a change of these terms of service by SMARTBEAM (cfr. Article 2) or (iii) any announced price adjustment by SMARTBEAM (cfr. Article 9). Under no circumstances, this entitles the Customer to claim any sort of damages or compensation from SMARTBEAM;

However, prior to such termination by the Customer but in any case before deactivation by SMARTBEAM, the latter is obliged to export the Customer Data by using the available export tools.

Termination by SMARTBEAM

Without prejudice to any other right or remedy SMARTBEAM may have against the Customer, SMARTBEAM can terminate the agreement at any time and without legal intervention in the event of exceptional circumstances which make it impossible to continue any professional cooperation between SMARTBEAM and the Customer.

The Customer agrees that the following circumstances should be considered as exceptional circumstances:

(i) If SMARTBEAM detects or has substantial reasons to assume that:

  • The Customer Data are false, misleading, inaccurate or obsolete;

  • The Customer materially breaches any of the provisions of these terms of service and, notwithstanding a notification from SMARTBEAM (i) to rectify the situation as well as (ii) to refrain from such a breach and, if possible, (iii) prevent such a breach or breaches from occurring in the future, fails to comply with such a request within 30 calendar days following receipt of such notification, without prejudice of SMARTBEAM to claim from the Customer an additional compensation as a result of this contractual breach;

  • The Customer uses the Tool and Services for unauthorized, illegal and/or inappropriate purposes;

  • The Agreement with the Customer is based on incorrect or false information of the Customer; or

  • The Customer ordered the Services for reasons that cannot be considered as objectively reasonable and acceptable.

(ii) If the Customer ceases its payments, files a declaration for bankruptcy, is declared bankrupt, enters into a liquidation or similar proceedings or is liquidated;

(iii) If the Customer commits an act of dishonesty, disloyalty or fraud with respect to SMARTBEAM, its business or the Tool and Services;

In the event of such termination by SMARTBEAM, notified by email, the Agreement will be automatically terminated without a period of notice or compensation and without prejudice to the right of compensation.

Consequences of termination

Upon termination of the agreement:

✓ By the Customer, SMARTBEAM undertakes within 5 working days – but in any event not before the ongoing Term expires – to freeze the Customer’s Administrator Account and User Accounts and shall use its best efforts to inform the Customer of such deactivation in advance;

✓ By SMARTBEAM, the latter shall **(i) **deactivate the Customer’s Administrator Account and User Accounts and (ii) notify the Customer that it has the possibility during a term, as mentioned in such notification, to export the Customer Data through the available export tools;

✓ SMARTBEAM is entitled to refuse any request from the Customer to enter into a (new) agreement with regard to the use of the Tool and Services.

✓ Each party will discontinue its use and will return the confidential information and proprietary materials of the other party.

If the Customer fails to have exported its Customer Data prior to terminating the agreement or within the term granted by SMARTBEAM following its termination, SMARTBEAM shall first delete the Customer Data via ‘soft deletion’ and subsequently, once a term of (maximum) six (6) months has passed, anonymize the Customer Data.

Articles 13, 16, 17 and 18 shall survive and continue in full force and effect in accordance with their terms, notwithstanding the expiration or termination of this Agreement for whatsoever reason.

The termination of the agreement, for whatever reason, shall not prejudice the rights acquired by each party.

16. Liability

SMARTBEAM’s liability shall be limited to an amount equal to 50% of the total amount paid by the Customer pursuant to this Agreement during the 12 months preceding the date of the event giving rise to the concerned claim. Multiple claims shall not increase this limitation.

Except as otherwise expressly represented or warranted in these terms of service and to the maximum extent permitted by applicable law, the Tool and/or Services as well as the Documentation and any other products or services provided by SMARTBEAM are provided on an “as is” basis. SMARTBEAM thus disclaims any and all other promises, conditions, representations and warranties – whether express or implied – including but not limited to any implied warranties of fitness for particular purpose, satisfactory quality, reasonable skill and care, system integration and/or data accuracy.

Furthermore, SMARTBEAM does not warrant that the Tool and/or Services will meet all of Customer’s requirements. Moreover, since the Customer has the possibility to (i) make use of the Demo (cfr.** **Article 4) prior to becoming a paying Customer and **(ii)** request at all times further information from SMARTBEAM in this respect. Hence, the Customer declares to have been sufficiently informed about the content and the scope of the Tool and Services.

Without prejudice to the generality of the preceding section, SMARTBEAM does not guarantee that: (i) the performance of the Tool and Services will be uninterrupted or error-free nor that all errors and/or bugs will be corrected (within a reasonable time),** (ii)** the Tool and Services will be constantly available, free of viruses, in time and complete, or **(iiI)** the information provided by the Tool and Services is complete, correct, accurate and non-misleading.

The intended use of the Tool and Services by the Customer, Administrator and/or Users is determined under their full responsibility and at their own risk. SMARTBEAM cannot be held liable in any way for any direct or indirect damage resulting from this intended use. Therefore, the Customer, Administrator and/or User shall thus be solely responsible for any damage to its computer (programs), wireless devices and/or other equipment consequential to the Tool and Services.

SMARTBEAM shall neither be liable for:

✓ Indirect and/or consequential damage (including but not limited to loss of income, loss of goodwill and damage to the property of the Customer caused by the Tool and Services). This limitation of liability also applies when SMARTBEAM has been specifically informed of the potential loss by the Customer;

✓ Defects that have been caused directly or indirectly by an act on the part of the Customer or a third party, irrespective of whether they are caused by an error or negligence;

✓ Damage caused by using the Tool and Services for a different purpose than the purpose for which it has been developed or is intended by SMARTBEAM;

✓ Additional damage caused by continued use by the Customer, Administrator and/or Users after a defect has been detected;

✓ The loss or incorrect use of the Customer Data, unless this is solely due its fault;

✓ Damage caused by non-compliance with any advice and/or guidelines that may be given by SMARTBEAM, which the latter always provides on a discretionary basis;

✓ Damage caused by force majeure or hardship (cfr. Article 23).

Furthermore, the Customer accepts that SMARTBEAM does not offer any guarantee that the Tool and Services comply with the regulations or requirements which apply in any legal area, with the exception of the regulations or requirements that apply in Belgium on the moment of conclusion of the Agreement. SMARTBEAM can thus not be held liable for any subsequent changes of whatever nature in such law and/or regulations.

Customer is deemed not to provide any (confidential) information (e.g. an Excel sheet with data, including Customer Data) nor any login data to any employee of SMARTBEAM in whatever manner and for whatever reason. If the Customer, in contrary to the above, does provide any of such data to SMARTBEAM, the Customer acknowledges that it is acting entirely at its own risk. In such case, SMARTBEAM cannot guarantee the same security and confidentiality with respect to the information provided as it guarantees with respect to the Customer Data.

The Customer acknowledges that SMARTBEAM’s liability can only be invoked by the Customer directly and not by a third party, such as the person to whom the Customer Data relates.

The Customer shall indemnify and/or hold harmless SMARTBEAM and/or a SMARTBEAM Indemnitee from and against all claims of whatever nature that might arise from the existence, implementation, non-compliance and/or termination of these terms of service and which have been caused by his own negligence, fault or carelessness or by his Administrator and/or any of his Users.

Finally, it is the Customer its responsibility to inform his Administrator and Users of the provisions of this Article (and the remaining of these terms of service).

17. Personal Data and Privacy

SMARTBEAM as data controller

The processing by SMARTBEAM of personal data concerning the (potential) Customer and/or its personnel/staff shall take place in accordance with the provisions of SMARTBEAM's Privacy Declaration. In such event, SMARTBEAM acts as a data controller.

This Privacy Declaration includes information about the personal data collected by SMARTBEAM, as well as the manner in which SMARTBEAM uses and processes this personal data. SMARTBEAM’s privacy statement can be consulted on the Website and must be read together with the coolie policy.

By ordering the Services or entering into an agreement with SMARTBEAM – including registration for the Demo – the Customer acknowledges to have read the privacy statement and to fully understand its content

SMARTBEAM as data processor

The Customer acknowledges that – with regard to the processing of Customer Data – it shall act as controller and SMARTBEAM as processor. All arrangements made between parties in this respect shall be solely governed by the data processing agreement, as concluded between parties and as made available on https://www.smartbeam.co/en/data-processing/

Following the above, the Customer acknowledges explicitly that by ordering the Services or entering into an agreement with SMARTBEAM, the Customer acknowledges to have read and accept the data processing agreement in its entirety.

18. Confidentiality – Non sollicitation

18.1 Confidentiality

Customer Data

Each Customer is obliged to treat his Customer Data confidential as well as to ensure that each third party, to whom he grants access to a User Account, is bound by the same confidentiality obligations.

The Customer must be aware that when he provides his “API-key” to a third party, this leads to granting this third-party full access to his Administrator Account and User Account, logins and Customer Data.

Cooperation

All information (including but not limited to all information of financial, commercial, legal, fiscal, social, technical and organizational nature, business and trade secrets, business partner, customer and supplier data, employee data, personal data, programs, source codes, computer programs, computer code, modules, scripts, algorithms, features and modes of operation, inventions (whether or not patentable), processes, schematics, testing procedures, software design and architecture, design and function specifications) exchanged between parties prior to entering into an Agreement as well as during the Agreement shall be considered confidential and be treated by each party with the utmost secrecy and thus more specifically the recipient shall:

✓ Solely use the confidential information for its own account and under the utmost secrecy;

✓ Not use, reproduce, or allocate the confidential information in any manner or for any other purpose than the (possible) cooperation between parties;

✓ Not engage in, nor authorize others to engage in, the reverse engineering, disassembly or the decompilation of any of the confidential information;

✓ Not derive any commercial benefit from the confidential information;

✓ Not divulge, disclose or make the confidential information, of which it has knowledge, available to any third party, without the express written consent of the disclosing party;

✓ Disclose such confidential Information only to those employees who need to know such information within the framework of the (possible) cooperation between parties, and the recipient certifies and warrants that these employees have previously agreed, as a condition to employment, to be bound by terms and conditions substantially similar to provisions applicable to the recipient under these terms of service.

The obligations, as determined in the previous paragraph, are not applicable to the following information:

✓ Information, which is publicly available, publicly spread and/or known by the general public at the time of its communication;

✓ Information which is obtained in a lawful manner by the recipient on a non-confidential basis from any party other than the disclosing party, whereby such third party is at its turn not bound by any confidentiality agreement with the disclosing party;

✓ Information which disclosure/announcement is required by law or by a court or other government decision (of any kind). In such case the recipient shall, prior to any disclosure/announcement discuss the scope and manner of such disclosure/announcement with the disclosing party.

This confidentiality obligation applies during the course of the cooperation between parties and will continue to exist for a period of five (5) years starting from the termination of the cooperation for any reason whatsoever.

The disclosing party shall remain at any moment the sole owner of its confidential information. Except as expressly set forth herein, nothing in these terms of service or the relationship between parties shall grant to the recipient any rights to or interest in the confidential information, and no implied licenses are granted by these terms of service.

This confidentiality obligation shall, however, in no event imply that SMARTBEAM shall not be entitled to use and/or commercialize any ideas, input, feedback received from the Customer, which may serve to improve and/or expand the Tool and Services.

Without prejudice to the foregoing, Customer acknowledges that in the event a non-disclosure agreement is signed between parties, such non-disclosure agreement shall prevail.

19. Support

In the event the Customer is in need of assistance or has an enquiry with respect to the Tool and Services, the Customer is advised to first consult SMARTBEAM’s support page (https://help.smartbeam.co/fr/)

If the information provided on SMARTBEAM’s support page does not provide the required assistance, the Customer may contact the SMARTBEAM helpdesk free of charge. The SMARTBEAM helpdesk shall be available via a messaging integrated to the Tool, via email (support@smartbeam.co) and telephone from Monday to Friday from 9 am to 5 pm (CET), excluding bank holidays or holidays in replacement of bank holidays during weekends.

The SMARTBEAM helpdesk will do its best efforts to assist the Customer as soon as reasonably possible following the requested support.

The Customer will bear the costs made as a result of unjustified complaints and/or enquiries.

20. Availability, maintenance and updates

SMARTBEAM offre à ses Clients la possibilité de vérifier à tout moment, en direct et en temps réel la disponibilité des Services via son Site web (http://status.smartbeam.co/). En cas de problèmes de disponibilité de ses Services, SMARTBEAM mettra tout en œuvre pour résoudre ce problème au plus vite, sans garantie d'aucune sorte. Dans tous les cas et, le cas échéant, SMARTBEAM sera libre de déterminer ce qui doit être considéré comme une solution adéquate ou une compensation pour ses Clients à cet égard.

SMARTBEAM offers its Customers the possibility to check at all times, live and in real-time the availability of the Services through its Website (http://status.smartbeam.co/). In the event of problems with the availability of its Services, SMARTBEAM undertakes its best effort to solve such issue as soon as reasonably possible without giving any guarantee. In any case and where appropriate, SMARTBEAM shall be free to determine on what is to be considered an adequate solution or compensation for its Customers in this respect.

SMARTBEAM wishes to keep the quality of the Tool and/or Services high by performing maintenance activities and implementing updates on a regular basis. SMARTBEAM undertakes to minimize the impact of such maintenance activities and updates on the availability of the Tool and Services but does not exclude any downtime in this respect. In any case SMARTBEAM undertakes its best effort to inform the Customer thereof in due time, unless this is impossible or not useful.

The above gives no grounds for compensation to be borne by SMARTBEAM.

21. SMARTBEAM Communication

At all times, the Customer will be able to unsubscribe from SMARTBEAM’s Communication. Since the Communication is considered to form an integral part of the Services, the Customer can in no event hold SMARTBEAM liable for changes of whatever nature of which the Customer would normally have been informed through the Communication if he had not chosen to unsubscribe.

22. Changes of the Services

SMARTBEAM has the right to change at any time the offer and composition of its Services, including its Basic Package and/or features. In such event, SMARTBEAM will inform the Customer thereof within a reasonable term prior to such change through (i) a notification on the Website and/or the Tool and/or (ii) the SMARTBEAM Communication.

23. Force majeure/hardship

SMARTBEAM is not liable for any failure to meet its obligations if this failure is due to force majeure or hardship.

Usual events of force majeure or hardship include: all circumstances that at the time of the conclusion of the agreement were reasonably unforeseeable and unavoidable, and which prevent SMARTBEAM from performing the agreement, or which would make the performance of the agreement more difficult, financially or otherwise, than would normally be the case (including but not limited to war, natural disasters, fire, seizure, delays with or bankruptcy of third parties engaged by SMARTBEAM, shortage of staff, strikes, organizational circumstances and threat or acts of terrorism).

The aforementioned situations entitle SMARTBEAM to review and/or suspend the agreement by simple written notice to the Customer, without being liable to pay compensation. If the situation of force majeure and/or hardship lasts longer than 2 months, SMARTBEAM will be entitled to terminate the agreement (cfr. Article 15).

24. Compensation

In accordance with the provisions of the Belgian Law on Financial Collateral of 15 December 2004, parties agree that in their reciprocal relation, as from the start of the agreement between SMARTBEAM and the Customer, all currently existing as well as any future debts shall always be automatic and ipso jure be set off against each other and compensated, irrespective of their due date, their aim or the currency in which they have been expressed. In case of concurrent creditors, the claim of the other party on the party dealing with concurrent creditors shall always be limited to the remainder after the setoff of the chargeable amounts and the permanent setoff will in any case have legal effect against the curator and the remaining creditors, who can themselves therefore not object nor oppose any of the aforementioned compensations or debt comparison carried out by parties.

25. Applicable law and jurisdiction

All issues, questions and disputes concerning the validity, interpretation, enforcement, performance or termination of this Agreement shall be governed by and construed in accordance with the Belgian law.

Any dispute concerning the validity, interpretation, enforcement, performance or termination of this Agreement shall be submitted to the exclusive jurisdiction of the courts where SMARTBEAM has its registered office.