1. General and Scope
1.1. The present general terms and conditions, together with its Annexes, are applicable to each Commercial Offer or Statement of Work executed between Tattoogenda and the Client and to all Licensed Products and Services provided by Tattoogenda to the Client.
1.2. If you are an employee (or contractor) of the Client entering into this Agreement on behalf of the Client, you represent and warrant that (i) you have full legal authority to bind the Client to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree on behalf of the Client to this Agreement.
1.3. The Client expressly waives the application of its own general and special terms and conditions, even where it is stated therein that only those conditions may apply and even if such terms and conditions were not protested by Tattoogenda.
1.4. The Client expressly acknowledges and agrees that this Agreement (including any amendment hereto) may be executed and accepted on through electronically accepting when subscribing to Tattoogenda. To the extent that the Agreement is executed or signed electronically, the electronic acceptance is the legally binding equivalent to their handwritten signature. Delivery of a fully executed copy through electronic signature or clicking an ‘I agree’ or ‘I accept’ checkbox technology shall have the same force and effect as delivery of an original hardcopy. To the maximum extent permitted by applicable law, the Client will not, at any time in the future, repudiate the meaning of electronic signature or ‘I agree’ or ‘I accept’ checkbox or claim that its electronic signature is not legally binding.
2. Definitions
2.1. In these Terms and Conditions, unless otherwise specified, the following definitions will apply:
“Affiliate” means, in relation to the relevant Party, any person or entity controlling, controlled by, or under common control with such Party, whereby “control” means the power, direct or indirect, to direct or cause the direction of the management and policies of such entity whether by contract, ownership of shares, membership on the board of directors, by agreement or otherwise and, in any event and without limitation of the foregoing, any entity owning more than 50% of the voting securities of a second entity shall be deemed to control that second entity (and “controlling” and “controlled” shall have a corresponding meaning);
“Agreement” means the entire contractual relation between Tattoogenda and the Client, including these Terms and Conditions, its Annexes, any Commercial Offer and any Statement of Work (as applicable).
“Business Day” means a normal working day of Tattoogenda from 8.30 a.m. to 5.30 p.m. Belgian time from Monday to Friday, excluding Belgian public holidays.
“Client Data” means all data proprietary to, or held by the Client which is inputted or uploaded by the Client (through the SaaS or via APIs) when using the SaaS and as processed or stored by Tattoogenda as a result of the Client (through the SaaS or via APIs) using the SaaS. Client Data shall also include automated emails and SMS’s to the clients customers and artists and data about the Clients customers details.
“Client Personal Data” means the personal data proprietary to or held by the Client, which is inputted or uploaded by the Client (through the SaaS or via APIs) when using the SaaS and as processed or stored by Tattoogenda as a result of the Client (through the SaaS or via APIs) using the SaaS.
“Client” means the legal entity entering into contractual relations with Tattoogenda, as identified in the Commercial Offer.
“Out of Scope Incident” means an Incident that is not caused by or related to the SaaS such as (without limitation) Incidents due to malfunctioning of interfaces, Incidents induced by the Client due to incorrect use of the SaaS, Incidents caused by non-supported data formats and Incidents caused by problems in third party software.
“Commercial Offer” means the electronic displayed pricetable with Tattoogenda’s technical features listed, from where the client chooses his subscription plan, regardless its entitlement, indicating the applicable Subscription Plan and (as applicable) the nature, the number of, and other specifics of the Licensed Products and the Services subscribed to by the Client, including the specific conditions under which such offer is made and which forms an integral part of the Agreement.
“Confidential Information” of a Party means the information of such Party, whether in written, oral, electronic or other form, and which (i) is explicitly marked as confidential or proprietary, or (ii) should reasonably be considered confidential or is traditionally recognized to be of a confidential nature, regardless of whether or not it is expressly marked as confidential, including but not limited to, all materials, papers, databases, drawings, diagrams, calculations, figures, procedures, processes, business methodologies, contracts (including this Agreement), financial, technical and legal information, budgets, sales marketing, public relations, advertising and commerce plans, ideas, strategies, projections, business plans, strategic expansion plans, products and product designs. The Confidential Information of Tattoogenda shall include, without limitation, the Licensed Products. The Confidential Information of the Client shall include, without limitation, the Client Data.
“Customizations” means any software development or documentation related to the SaaS as developed by Tattoogenda on request of the Client and as further described in the Commercial Offer or Statement of Work (as applicable).
“Documentation” means the technical and functional product information that
Tattoogenda (at its sole discretion) generally makes available from time to time to its clients.
“Effective Date” means the effective date on which a digital subscription started.
“Fees” means all amounts payable under this Agreement, expressly including (without limitation) the Subscription Fees and Services Fees.
“Force Majeure” means a temporary or permanent inability of a Party to fulfil its (non-monetary) obligations, resulting from unavoidable, unforeseeable and external facts and circumstances reasonably beyond the control of that Party. The following events shall in any case be considered as Force Majeure (without limitation): war or war risk, insurrection or public revolt, fire caused by an outside calamity, an import or export embargo imposed by the government, floods, explosion, weather conditions, strike or social action, pandemics and all other circumstances generally qualified as force majeure.
“Hosting Partner” means Render and Microsoft (or such other provider of hosting services Tattoogenda might contract in the future as will be notified to the Client from time to time).
“Incident” means a malfunctioning of the SaaS.
“Initial Term” means one (1) month or year as from the Effective Date unless agreed otherwise in the Commercial Offer.
“Intellectual Property Rights” means (non-exhaustive list) patents, trademarks, copyrights, rights in software programs (both in object code and source code), design rights, database rights, proprietary rights in know-how, business names, trade names and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of the afore listed which may subsist anywhere in the world, and any other intellectual or industrial property rights in any country and any existing or future applications for or registrations of such rights.
“Licensed Products” means the applicable SaaS and Documentation as identified in the Commercial Offer. The Licensed Products shall also include Customizations, unless the Intellectual Property Rights vested therein have been transferred to the Client pursuant to clause 9.2.
“Parties” or “Party” means the Client and/or Tattoogenda.
“Renewal Term” means one (1) month or year unless agreed otherwise in the Commercial Offer.
“SaaS” means the proprietary software as a service, including the underlying software, computer programs, plugins, platforms, applications, including but not limited to all algorithms, (source or object) code and methodology pertaining thereto and as further described in the Commercial Offer.
“SaaS User” means a physical person in Client’s organization (employees and contractors and artists) who is granted access to the SaaS by the Client for the purposes of using the SaaS as an end user (in accordance with its user role as further described in the Documentation) and by feeding it with content (such as, without limitation, Client Data) in accordance with clause 5.
“Services” mean development, implementation and integration services (including, but not limited to customisations), Support Services or such other services in relation to the SaaS to be delivered by Tattoogenda to the Client as may be agreed between the Parties from time to time and set out in the Commercial Offer and/or a Statement of Work.
“Statement of Work” means a written document, regardless its entitlement, that Parties may enter into from time to time describing the Services that Tattoogenda is to provide in connection with the Licensed Products. For the avoidance of doubt, a mutually signed proposal shall also be regarded as a Statement of Work for the purposes of these Terms and Conditions
“Subscription Fees” means the amounts payable by the Client (i) to gain access to and use the Licensed Products, (ii) to receive the standard Support Services and, all as further specified in the Commercial Offer.
“Subscription Plan” means the commercial volume based model pursuant to which the Client purchases the SaaS. Each Subscription Plan comes with a different Subscription Fee and includes different specifics as made available from time to time by Tattoogenda (such as, but not limited to, the amount of artists that can be added to the Tattoogenda account or what types of notifications can be automated with Tattoogenda).
“Support Services” are the maintenance and support services related to the SaaS provided by Tattoogenda to the Client.
“Tattoogenda”means Inksane bv, a company organized and existing under the laws of Belgium, registered with company number BE 0673.734.977.
“Tattoogenda Dasboard”means a page in the Tattoogenda SaaS which the subscribed user can browse to.
“Term” means the Initial Term together with any Renewal Term.
“Terms and Conditions”means the present general terms and conditions applicable to all Commercial Offers and Statements of Work agreed upon between Tattoogenda and the Client, unless expressly stipulated otherwise in writing.
3. License
3.1. Subject to the terms and conditions of this Agreement and timely payment of the Subscription Fees, Tattoogenda grants to the Client (and to those Affiliates as indicated in the Commercial Offer) a personal, restricted, non-exclusive, non-transferrable and non-assignable license to use the
Licensed Products through its SaaS Users in object code in accordance with this Agreement and the applicable Documentation for the Term of the Agreement.
3.2. The extent of the licenses granted under this Agreement is restricted to the scope expressly set forth herein, and there are no implied licenses under this Agreement. Tattoogenda reserves any right not expressly granted to the Client hereunder.
3.3. The Client shall comply with all applicable laws relating to the use of the Licensed Products. The Client acknowledges that the Licensed Products may include encryption and may, accordingly, be subject to export or other restrictions.
3.4. Unless to the extent permitted by this Agreement or applicable law, the Client shall not directly or indirectly (including without limitation through the actions of any of its Affiliates, SaaS Users, artists, contractors, employees, representatives, subcontractors, or in general, any third party) (i) arrange or create derivative works based on the Licensed Products without Tattoogenda’s express written consent; (ii) assign, distribute, sub-license, hire, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Licensed Products, or use the Licensed Products on behalf of any third party or make them available to any third party, nor allow or permit a third party to do any of the same; (iii) copy, duplicate, reverse engineer, reverse compile, disassemble, record or otherwise reproduce the Licensed Products or any part of them except as expressly provided in this Agreement; (iv) remove or alter any copyright or other proprietary notice on any of the Licensed Products.
3.5. The Client is permitted to make as many copies of the Documentation as are reasonably necessary for operational security, disaster recovery or back-up purposes. Such copies shall in all respects be subject to this Agreement and shall be deemed to form part of the Licensed Products and shall be the property of Tattoogenda. Any use of the copies made pursuant to this clause is strictly limited to internal use.
3.6. The Licensed Products shall be delivered “as is” and shall be deemed accepted by the Client upon activation thereof.
4. Subscription Plans and usage of the SaaS
4.1. The SaaS is provided pursuant to different Subscription Plans as communicated by Tattoogenda on its website. Each Subscription Plan includes distinct variables related to the use of the SaaS and Services as further detailed in the Commercial Offer.
4.2. Each Subscription Plan includes access to all features and functionalities of the SaaS as available on the Effective Date. However, the Client acknowledges that Tattoogenda reserves the right to make available future features and functionalities (i) subject to additional payment or (ii) only in certain Subscription Plans. In such case, Tattoogenda shall inform the Client thereof on its website.
4.3. The number of artists that can be added to the SaaS by the Client is limited to the volume included in the applicable Subscription Plan.
4.4. During the Term, the Client may at any time change its Subscription Plan to a higher Subscription Plan. The new Subscription Plan and included volumes shall be activated immediately and will continue for the duration of the then-current Initial Term or Renewal Term (and will be automatically renewed thereafter in accordance with the provisions of this Agreement). If the Client has already paid the monthly/yearly Subscription Fee prior to an upgrade pursuant the foregoing, the additional Subscription Fees corresponding to the higher Subscription Plan shall be charged by Tattoogenda on a pro-rata basis for the remaining duration of the then-current contract year/month. In such case, Tattoogenda shall send a correcting invoice.
4.5 Prices and quotes for software offerings may be adjusted at any time by Tattoogenda.
5. Client Data
5.1. The Client acknowledges that the SaaS consists of certain algorithms and artificial intelligence and that for a proper and seamless functioning of the SaaS, the Client will be responsible to enter accurate Client Data. Client Data must be inputted in accordance with the guidelines provided by the Saas UI.
5.2. The Client shall solely be liable and responsible for the accuracy and correctness of Client Data. Tattoogenda shall not be liable for damages or liability resulting from incorrect Client Data inputted in the SaaS. For example, but not limited to, the correct delivery of automated emails to the clients endcustomer by entering correct emailadress into Tattoogenda.
5.3. All Client Data shall remain property of the Client. The Client hereby grants Tattoogenda the right to use such Client Data (including any other content and information provided, transmitted or uploaded through the Licensed Products) for the performance of its obligations under this Agreement and to improve the functioning and provision of the Licensed Products.
5.4. The Client warrants to Tattoogenda that the Client Data shall not infringe the Intellectual Property Rights or other legal rights of any third party, and shall not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
5.5. The Client acknowledges and agrees that its shall solely be responsible for the Client Data that is distributed or accessible through the SaaS. Tattoogenda shall in no event be responsible or held liable for any such Client Data. In particular, the Client represents and warrants that no Client Data is distributed through the SaaS that in any manner in Tattoogenda’s sole discretion: (i) violates any applicable, local, state, national, regional or international law, statute, ordinance or regulations; (ii) is illegal, criminal, deceptive, fraudulent or any other action that is unlawful, harmful or invasive of others privacy; (iii) adversely or negatively affects or reflects Tattoogenda’s name, reputation or goodwill.
5.6. The Client acknowledges and agrees that any violation by the Client of the provision of this clause 5 shall entitle Tattoogenda, at its sole option (i) to immediately terminate (or alternatively, at Tattoogenda’s option, refuse or suspend any access to and use of the SaaS) for material breach, without any formalities being required and without prejudice to any other rights or remedies available to Tattoogenda pursuant to this Agreement or under applicable law; and/or (ii) immediately remove or block the concerning Client Data.
5.7. The Client acknowledges and agrees that after termination of this Agreement, Tattoogenda may retain certain elements of the Client Data solely for the purposes of improving the algorithms and models underlying the SaaS. Any such Client Data shall be held in the strictest confidence and shall under no circumstances be disclosed to third parties. Tattoogenda shall delete or remove any proprietary markings or brands from such Client Data to the extent not necessary for the purposes of improving the algorithms and models. If and to the extent such Client Data include Client Personal Data, Tattoogenda shall anonymize and/or pseudonymize any such personal data to the fullest extent possible. Upon request, Tattoogenda shall inform the Client about how such Client Data is stored and used.
6. Third Party Components and Hosting
6.1. The Client acknowledges and agrees that in order to use the Licensed Products, it needs appropriate hardware and internet connection.
6.2. The Client acknowledges and agrees that, if applicable now or in the future, in order to use the Licensed Products (or parts thereof), it may need to obtain, at Client’s expense, the right to use any software owned by third parties by either (i) purchasing from Tattoogenda the right to use such third party software, provided and to the extent Tattoogenda has the right to license such third party software to the Client and offers such opportunity to the Client, or (ii) licensing or otherwise obtaining from the vendors of such third party software the right to use such third party software. If the Client elects to license such third party software from Tattoogenda, such license shall be executed and attached to the Commercial Offer. Tattoogenda shall inform the Client from time to time if certain third party software components are required to use the Licensed Products (or parts
thereof). Any third party software licensed thereunder or otherwise included in the Licensed Products shall be exclusively governed by the service offering of the applicable third party software, and (without limitation) any warranties, indemnification and maintenance and support provided hereunder by Tattoogenda in respect of the Licensed Products shall not apply in respect of such third party software (except as expressly otherwise agreed to in writing by Tattoogenda).
6.3. The SaaS will be hosted by Tattoogenda in the datacentres of the Hosting Partner. The Client represents and warrants that it accepts the applicable terms and conditions of the Hosting Partner that will be made available by Tattoogenda or the Hosting Provider (as applicable) to the Client. The Client acknowledges and agrees that the Hosting Partner retains the right to unilaterally change any such terms and conditions (including the hyperlink to such terms and conditions)
6.4. Tattoogenda does not give any direct, indirect, explicit or implicit, warranty whatsoever to provide un-interrupted availability of the SaaS, however, Tattoogenda shall use its best efforts to provide an monthly uptime of the SaaS of 97 % on a 24/7 basis.
6.5. The Client acknowledges that the hosting services and the SaaS might not be available during periods of planned maintenance by Tattoogenda or the Hosting Provider. If reasonably feasible, any planned maintenance will be performed outside of Business Days and Tattoogenda will inform the Client as soon as reasonable possible of any planned maintenance.
6.6. Tattoogenda and the Hosting Provider reserve the right to conduct any unplanned maintenance at any time if necessary for security reasons or other reasons requiring immediate maintenance. Tattoogenda or the Hosting Partner will not be held liable for any damages resulting from such unavailability of the SaaS.
6.7 Tattoogenda rejects any liability for any circumstances that are the responsibility of a network service provider.
6.8 Any liability and warranty claims by the customer against the network service provider are to be settled directly with the network service provider.
7. Support Services
7.1. As from the Effective Date and subject to the timely payment of all applicable Subscription Fees, Tattoogenda shall provide the standard Support Services in relation to the SaaS in accordance with the provisions set out below.
7.2. The standard Support Services include the provision of commercially reasonable assistance with functional questions during Business Hours. The number, types, nature, applicable support channels, duration and period of such functional assistance, included in the applicable Subscription Plan, are set forth in the Commercial Offer.
7.3. If an Incident is encountered by the Client, the Client shall first review and assess the Incident. If such assessment shows that the Incident is not an Out of Scope Incident, the SaaS User(s) assigned by the Client may notify Tattoogenda of such Incident by using the communication channel(s) as included in the applicable Subscription Plan and the SaaS User shall specify the details of the Incident (in the format as provided by Tattoogenda). Upon receipt of a ticket, Tattoogenda may in its sole discretion determine whether the Incident is an Out of Scope Incident or not and Tattoogenda‘s classification shall be binding and final.
7.4. Support Services for Out of Scope Incidents are not included in the Subscription Fees, however, SaaS Users are entitled to ask any questions regarding the Licensed Products and Tattoogenda shall answer any SaaS User’s request in good faith, without any binding commitment whatsoever.
7.5. For Incidents that are not an Out of Scope Incident, Tattoogenda shall use its best efforts to resolve the Incident in the best humanly possible way. For the avoidance of doubt, Tattoogenda may in its sole discretion assign a priority level to each Incident.
7.6. If included in the Subscription Plan, Tattoogenda shall appoint a dedicated client service manager for the Client. .
7.7. Incidents caused by one the following are not included in the Support Services, however the Client may request Tattoogenda to provide Services regarding such incidents for which Tattoogenda may charge additional fees (non-exhaustive) (i) Out of Scope Incidents; (ii) abuse or misuse of the SaaS; (iii) modification or addition to the SaaS not performed by or with the consent of Tattoogenda; (iv) incorrect installation of a fix by a party different than Tattoogenda; (v) incorrect configuration not performed by or with the consent of Tattoogenda; (vi) the use of incorrect data or data structures; (vii) any installation other than a supported release.
7.8. If the Parties have agreed to custom Support Services in a Commercial Offer or a Statement of Work, the provisions of this clause shall not apply. In such case, the scope of the custom Support Services (including any applicable service levels) shall be specified in a separate agreement that will be attached to the Commercial Offer or the Statement of Work (as applicable).
8. Intellectual Property Rights
8.1. Tattoogenda is and remains the sole and exclusive proprietary owner of all Intellectual Property Rights related to the Licensed Products and the Services (including any new versions, updates,
Customizations, enhancements, modifications or improvements made to the Licensed Products or the Services). Except for the limited license granted pursuant to clause 3, no other rights in respect of the Tattoogenda Intellectual Property Rights shall be granted or transferred to the Client in connection with this Agreement. Nothing in this Agreement shall convey any title or proprietary right or Intellectual Property Rights in or over the Licensed Products or Services to the Client or any third party. The Client shall not in any way acquire any title, rights of ownership, copyrights, Intellectual Property Rights or other proprietary rights of whatever nature in the Licensed Products or Services. 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 Licensed Products, or visible during its operation or on media. The Client shall incorporate or reproduce such proprietary markings in any permitted back-up or other copies.
8.2. For the avoidance of doubt, the foregoing shall apply to any and all Customizations unless expressly agreed in writing in the Commercial Offer or Statement of Work (as applicable) that the Intellectual Property Rights vested in the Customizations shall be transferred to the Client. In such case the Commercial Offer or Statement of Work (as applicable) shall clearly describe and define which Customizations shall be transferred and such transfer shall under no circumstances include a transfer of the Intellectual Property Rights vested in the SaaS.
9. Confidentiality
9.1. Each Party shall treat as confidential and keep secret all Confidential Information relating to the other Party and shall not disclose it to any third party, other than its employees, advisors, agents or consultants where such disclosure is necessary for the performance of this Agreement and provided that they are bound by confidentiality obligations at least as strict as those provided herein, any Confidential Information learned during the negotiation and performance of the Agreement. Confidential Information disclosed under the Agreement shall not be used by the recipient thereof for any purpose other than as required for the performance of its obligations under the Agreement.
9.2. The Parties shall take sufficient measures to maintain the confidentiality of all Confidential Information. The Parties in particular agree that they (i) shall not copy or otherwise exploit any component of the Confidential Information other than as provided herein, nor make any disclosures with reference thereto to any third party; (ii) shall ensure that all copies of the Confidential Information (made in accordance with the provisions of the Agreement) contain a permanently legible reproduction of the other Party’s copyright notice and a confidentiality notice; (iii) shall promptly notify the other Party if it becomes aware of any breach of confidence and give the other Party all reasonable assistance in connection with the same.
9.3. The provisions of this clause shall not apply to any Confidential Information which (i) is published or comes into the public domain other than by a breach of the Agreement; (ii) can be proven to have been known by the receiving Party before disclosure by the disclosing Party; (iii) is lawfully obtained from a third party that is not bound by a duty of confidentiality; or (iv) can be shown to have been created by the receiving Party independently of the disclosure and other than as part of the use of Tattoogenda.
9.4. If and to the extent required in accordance with a judicial or other governmental order, the receiving Party may disclose Confidential Information, 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.
9.5. The obligations set out in this clause 10 shall enter into force as from the start of a Tattoogenda subscription between the Parties and shall survive during two (2) years after the termination or expiration of the Agreement. These confidentiality obligations in the Agreement replace any prior non-disclosure agreement signed between the Parties.
10. Privacy and Data Protection
10.1. The Parties 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 (the “GDPR”) with respect to the processing of personal data (as defined in the GDPR).
10.2. In particular, the Client represents and warrants to Tattoogenda that it has the legal right to disclose any personal data that is available to Tattoogenda under or in connection with this Agreement (including, but not limited to, any personal data that might by disclosed by the SaaS Users while using the SaaS) and that the Client has a valid legal ground to process such personal data and to disclose such personal data to Tattoogenda in accordance with applicable law. The Client undertakes to sufficiently inform all data subjects about such processing activities by the Client and/or Tattoogenda (as applicable) in accordance with applicable law.
10.3. Tattoogenda shall use Client Personal Data only for the execution of this Agreement, the improvement of the functioning and provision of the Licensed Products and in accordance with the data processing agreement attached to the Commercial Offer.
10.4 The Client shall take all necessary and appropriate measures for the prevention of unauthorized intrusions into other systems, against the spread of viruses and trojans, as well as for compliance with all applicable provisions of telecommunications, data protection, and copyright law.
10.5 The Client must immediately inform Tattoogenda when he becomes aware of any defects, disruptions, or interruptions due to software flaws, as well as, in particular, of any instances of usage of the services by users associated with the customer or by unauthorized third parties (e.g., hackers) in a manner that is illegal or in breach of the contract.
10.6 The Client agrees that socio-demographic information known to Tattoogenda, as well as email addresses, may be used for marketing purposes.
11. Third Party Claims
The Client shall indemnify, defend and hold Tattoogenda harmless from and against any damages, losses, costs and expenses (including reasonable attorney fees) suffered or incurred by Tattoogenda (including its Affiliates, agents, artists, contractors, directors, employees or representatives) arising out of Client’s infringement of any third party’s Intellectual Property Rights or any other rights of such third party.
12. Fees and Payment Terms
12.1. The Client shall pay any and all Fees in the amounts and on the times set forth in the Commercial Offer or Statement of Work (as applicable) and in accordance with the provisions below.
12.2. The Subscription Fee shall be paid monthy or annually and upfront unless explicitly agreed otherwise in the Commercial Offer.
12.3. If the Parties have agreed on a commercial discount in exchange for a long-term commitment by the Client (as specified in the Commercial Offer or the Statement of Work (as applicable)), the Client shall pay the full amount corresponding to the committed period if the Agreement is terminated prior to such committed period, except where the Agreement is terminated for a breach by Tattoogenda.
12.4. All monthly or yearly subscriptions shall be paid by automated subscriptions with payment gateway Stripe.
12.5. Invoice shall be provided for each month of the active subscription, and can be downloaded from the Tattoogenda dashboard. All payments under this Agreement shall be made in euro (€) (or such other currency as agreed by the Parties in the Commercial Offer) and are exclusive VAT and exclusive any other costs and expenses which may be charged separately by Tattoogenda (if applicable).
12.6. All amounts payable to Tattoogenda under the 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 Tattoogenda such additional amounts as are necessary in order that the net amounts received by Tattoogenda, after all deductions and
withholdings, shall not be less than such payments would have been in the absence of such deductions or withholdings.
12.7. Any amounts of undisputed invoices that have not been paid within thirty (30) days after the Invoice Date shall automatically and without notice be subject to a late payment interest equal to eight percent (8%) per month or the maximum extent permitted by applicable law. The interest shall be compounded daily as of the due date until receipt of full payment by Tattoogenda. In addition the Client shall pay all costs incurred by Tattoogenda as a result of the (extra)judicial enforcement of the Client’s payment obligation under this clause.
12.8 If Client fails to pay any due monthly or yearly subscription fee, access to Tattoogenda will be denied. Tattoogenda shall be entitled to suspend its obligations and the Client’s rights hereunder until receipt of payment of such outstanding amounts.
12.9. During the Initial Term and during each Renewal Term thereafter, Tattoogenda reserves the right to monthly/yearly revise the fees.
12.10. Tattoogenda has the right to monitor and inspect the usage of the Licensed Products by the Client (including but not limited to monitoring the use of the applicable Features and Functionalities and Add-Ons) to ensure that the Subscription Fees to be paid by the Client are correct. If such inspection or monitoring shows that the Client has underpaid the amount of the Subscription Fees due to Tattoogenda, without prejudice to any other rights and remedies available to Tattoogenda, Tattoogenda shall invoice and the Client shall promptly pay the amount of such underpayment to Tattoogenda together with any applicable late payment interest.
13. Term & Termination
13.1. The Agreement shall commence on the Effective Date and shall continue for the Initial Term. After the Initial Term the Agreement shall automatically and tacitly renew for consecutive Renewal Terms, unless either Party notifies the other Party by using the unsubscribe functionality in the Tattoogenda Dasboard. Unless terminated earlier in accordance with this clause 13.
13.2. Either Party may immediately terminate (or Tattoogenda may alternatively suspend) the whole or any portion of the Agreement without any judicial intervention, without being liable for compensation and without prejudice to its rights to damages and any other rights, remedies and/or claims to which it may be entitled by law, upon providing the other Party with written notice of termination if (i) the other Party performs a material breach to any provision of the Agreement and fails to cure such material breach within thirty (30) calendar days after receipt of written notice of the material breach, (ii) the other Party becomes insolvent, is subject to voluntary or involuntary bankruptcy, insolvency or similar proceeding or otherwise liquidates or ceases to do business, or
(iii) the other Party breaches its obligations under the provisions regarding the license, Intellectual Property Rights and confidentiality.
13.3. Without prejudice to any other rights and remedies available to Tattoogenda, the Client acknowledges and agrees that Tattoogenda shall be entitled to immediately terminate the Subscription, without any formalities being required, in case the Client breaches or violates (i) the terms and conditions of the Hosting Partner or the applicable third party software; or (ii) Tattoogenda‘s Intellectual Property Rights (expressly including the license grant pursuant to clause 3) or Confidential Information.
14. Consequences of Termination
Upon termination of the Agreement for whatsoever reason (i) the Client shall promptly pay to Tattoogenda all amounts due and payable under this Agreement up to and including the date of termination; (ii) all licenses granted to the Client shall automatically terminate; (iii) except as provided in clause 5.7 or as required to comply with any applicable legal or accounting record keeping requirement, each Party shall return the other Party’s Confidential Information that are in the possession or under the control of that respective Party (or alternatively destroy any copies thereof that cannot be returned and confirm the other Party in writing that such copies have been destroyed).
15. Warranty
The Client acknowledges and agrees that the Licensed Products and Services are provided “as is”. Except for the foregoing warranty and to the maximum extent permitted by applicable law, Tattoogenda does not make any representations or warranties, express or implied, concerning any matter under this Agreement (including the Licensed Products and Services) and Tattoogenda 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.
16. Limitation of Liability
16.1. Subject to the maximum extent permitted under applicable law, Tattoogenda’s liability under the Agreement shall per event (or series of connected events) and in the annual aggregate per contract year or month not exceed an amount equal to all Fees paid hereunder during such contract year or month.
16.2. Subject to the maximum extent permitted under applicable law, under no circumstances shall Tattoogenda be liable to the Client for any indirect, punitive, special, consequential or similar damages (including damages for loss of profit, lost revenue, loss of business, loss of corruption of data, loss of customers and contracts, loss of goodwill, the cost of procuring replacement goods or services, and reputational damage) whether arising from negligence, breach of contract or of statutory duty or otherwise howsoever.
16.3. Tattoogenda shall not be held liable in any way, neither contractually nor extra-contractually, for discontinuing an older release of the SaaS or for damages caused by the wrongful (or out of scope) use of the SaaS.
17. Miscellaneous
17.1. Entire agreement – The 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. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in the Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of the Agreement.
17.2. Severability – If any provision of the Agreement is held to be unenforceable (in whole or in part), the other provisions shall nevertheless continue in full force and effect. The provisions found to be unenforceable shall be enforceable to the full extent permitted by applicable law. Each Party shall use its best efforts to immediately negotiate in good faith a valid replacement provision with an equal or similar economic effect.
17.3. Waiver – The terms and conditions of the Agreement may be modified or amended only by written agreement (including through electronic signature technology) 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 Terms or Conditions. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or conditions, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent.
17.4. Survival – The provisions of the Agreement that are expressly or implicitly intended to survive termination, shall survive expiration or termination of the Agreement, including without limitation, the provisions relating to Intellectual Property Rights, Confidential Information and limitation of liability.
17.5. Assignment – Tattoogenda may assign, transfer and/or subcontract the rights and obligations under this Agreement to any third party. The Client shall not assign or otherwise transfer any of its right of obligations under the Agreement without Tattoogenda’s prior written consent.
17.6. Force Majeure – Neither Party will be responsible or liable for any failure or delay in the performance of its (non monetary) obligations under the Agreement arising out of or caused by Force Majeure. In the event of Force Majeure, the Party shall inform the other Party at least within reasonable time about the nature of the Force Majeure and the fact that it wants to rely on this clause. The Party must, within reasonable time, provide the other Party with evidence of the existing Force Majeure, the date when the Force Majeure comes or has come into effect, and also when it will have ceased to exist. In case of Force Majeure, the Party is obligated to mitigate damage, and must use its reasonable efforts to keep the consequences to a minimum. In the event of a failure to comply with the abovementioned procedure, the Party shall be prevented to rely on the Force Majeure event and the Force Majeure clause.
17.7. Notices – Any notice required to be served by the Agreement shall in first instance be given by electronic mail to the email addresses set out on the Tattoogenda website www.tattoogenda.com. All notices given by electronic mail, shall only be valid in case confirmation of receipt was expressly given by electronic mail from Tattoogenda to the Client within five (5) Business Days. In case no confirmation of receipt was given by Tattoogenda within five (5) Business Days, all notices can be done in writing and served by personal delivery, registered letter, addressed to either Party at its address given in the Commercial Offer or to such other address as a Party may designate by notice hereunder. All Notices shall be deemed to have been given either (1) if by hand, at the time of actual delivery thereof to the receiving Party at such Party’s address, as provided above, (2) if sent by overnight courier, on the next Business Day following the day such notice is delivered to the courier service, or (3) if sent by registered or certified mail, on the fifth (5th) Business Day following the day such mailing is made.
17.8. Interpretation – In the Agreement (unless the context shall otherwise require or permit) (i) 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; (ii) 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; (iii) the headings or captions to the clauses are for ease of reference only and shall not affect the interpretation or construction of the Agreement.
17.9. Conflict – In case of conflict between the provisions of the contractual documents executed between the Parties, the first document shall prevail on the latter, unless expressly agreed otherwise between the Parties in writing (i) the applicable Commercial Offer or applicable Statement of Work, (ii) the Annexes, (iii) these Terms and Conditions.
17.10. Relationship of the Parties – The relationship between Tattoogenda and Client is that of independent contractors.
17.11. Publicity – Tattoogenda shall have the right to use any trademarks, logos or other marks of the Client (including the Client’s corporate name) for client references on Tattoogenda’s website, social media announcements and sales presentations. With respect to the publication of more detailed
case studies or blogposts, the Parties shall agree on the content and manner of publication thereof in mutual consent.
17.12. Dispute resolution – Before initiating proceedings before the competent courts, the Parties shall exercise reasonable good faith efforts to amicably settle any disputes that might arise during the execution of this agreement.
17.13. Applicable law and jurisdiction – The 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 courts of Gent. The United Nations Convention for the International Sale of Goods shall not apply to the Agreement.