1. Applicability – definitions and interpretation
1.1. These general terms and conditions (the "General Terms and Conditions" or the "General Terms") shall govern all Order Forms entered into by Cumul.io NV, a limited liability company (naamloze vennootschap) having its registered office at at Tiensevest 102 box 201, B-3000 Leuven (Belgium), and registered with the Crossroads Bank for Enterprises (Kruispuntbank van Ondernemingen) under company number 0640.944.227, RLE Leuven (hereinafter "Cumul.io") and the legal entity or natural person identified as customer in the Order Form (the "Customer"), except when superseded and replaced by any deviating contractual agreements expressly made between Cumul.io and the Customer.
1.2. Customer's general terms and conditions are not applicable and expressly excluded.
1.3. Specific services terms, product details and/or subscription terms will be set forth in applicable Order Form(s), each of which become binding on the Parties and subject to these General Terms and documents referenced therein upon execution of an Order Form.
1.4. Each Order Form is governed by and incorporates the following documents in effect as of the date of last update of such documents, collectively referred to as the "Agreement" that consists of:
- the Order Form;
- the Data Processing Agreement;
- these General Terms.
In the event of a conflict, the order of precedence is as set out above in descending order.
1.5. Cumul.io reserves the right to unilaterally and at any time modify this Agreement provided it gives prior written notice of such changes to Customer (including without limitation by e-mail) (the "Notice"). In that case, Customer may terminate this Agreement within fifteen (15) days of such notice by notifying Cumul.io of such termination in writing. If Customer does not notify Cumul.io of such termination, the new terms shall become effective as of the date specified in the Notice.
1.6. Except as otherwise provided, the defined terms used in this Agreement shall have the meaning as set forth in Schedule 1.
2.1. This Agreement governs:
- (i) Customer's subscription to the Licensed Product through a Plan of its choice made available to Customer in the form of a SaaS solution in accordance with the terms of this Agreement; and/or
- (ii) Customer's subscription to additional modules described in article 7.1.1. ("Service Levels & Credits") and 7.1.2. ("Escrow Agreement") (together referred to as the "Add-On Modules"); and/or
- (iii) the provision by Cumul.io of additional services described in article 7.1.3. ("Additional Integration/Dashboarding Support") and article 7.1.4. ("Training or Workshop") (the "Additional Services").
3. Licensed product
3.1. The License Product allows Authorized Users to simplify the visual representation and gathering of data and enable Customer to integrate Cumul.io's Dashboards (branded or not, depending on the Plan) in Customer's own software product or portal, including:
- (i) creating as many dashboards as required taking into account a Fair Use;
- (i) having access to all data sources (local upload, API, webservice and database connectors);
- (iii) developing and using a Plugin Connector;
- (iv) applying custom dashboard themes;
- (v) installing mail schedules and PDF & image exports;
- (vi) creating private-url shares;
- (vii) leveraging multilingual data & dashboards; and
- (viii) having access to a viewer portal.
3.2. The Licensed Products shall include the latest version of the Licensed Products hosted and maintained by Cumul.io, which may be made available by Cumul.io from time to time.
4. Grant of licenses
4.1. Use of the Licensed Products
4.1.1. Subject to the timely payment of the License Fees by the Customer and Customer's compliance with the terms of the Agreement, Cumul.io hereby grants to the Customer solely for the Term of this Agreement a restricted, personal, non-exclusive, non-transferable and non-sublicensable license (except to the extent provided under article 4.1.2) to access and use the Licensed Products for Customer's internal business purposes and for the development and distribution of OEM Products to the extent permitted by the Plan chosen (the "Permitted Use"). Such license shall include the rights for Customer to:
- (a) install, use, integrate, replicate, and reproduce the Licensed Products for the purpose of developing and manufacturing OEM Products that incorporate the Licensed Products;
- (b) demonstrate, market, and distribute the Licensed Products solely as a component of the OEM Product offered by the Customer to its Authorized User(s);
- (c) provide training and support to Authorized Users regarding the Licensed Products, as part of Customer's OEM Products;
- (d) use, reproduce, distribute, and or otherwise make available the Documentation in hard copy and/or read-only soft copy formats solely to the extent that the Documentation is to be used in connection with the OEM Products that incorporate the Licensed Product;
- (e) translate, modify and create derivative works of the Documentation, for the sole purpose of distribution in hard copy and/or read-only soft copy form to (i) Authorized Users who have purchased Customer’s OEM Products; and (ii) third-parties in accordance with Article 4.1.2. of this Agreement and provided that such third parties have executed non-disclosure agreements with Customer with provisions substantially similar to those in Article 10.
4.1.3. The Customer acknowledges and agrees that any use of the Licensed Products outside of the terms of this Agreement, unless such use has been expressly approved in writing by Cumul.io, will entitle Cumul.io to immediately terminate or suspend the Agreement for material breach by Customer, without any formalities being required and without prejudice to any other right or remedy available to Cumul.io.
4.1.4. Cumul.io reserves the right to make, in its sole discretion, changes and updates to the Licensed Products from time to time without prior notification to the Customer. If any such revision to the Licensed Products would materially reduce any features or functionalities of the Licensed Products, Cumul.io shall prematurely and taking into account a reasonable notice period, notify such revisions to the Customer prior to their implementation.
4.1.5. The Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Licensed Products, and will notify Cumul.io promptly in writing of any such unauthorized use which Customer may become aware of.
4.2. Restrictions on use
4.2.1. The Customer agrees to comply with all laws, rules and regulations applicable to its use of the Licensed Products. The Customer agrees that it will not itself or through any parent, subsidiary, Affiliate, agent, (sub)contractor or other third party:
- (a) use or copy the Licensed Products otherwise than for the Permitted Use;
- (b) provide, make available to, or permit individuals other than the Authorized Users to use the Documentation, either in whole or part, except as expressly set forth in this Agreement;
- (c) license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share or otherwise make any portion of the Licensed Products available for access by third parties except as otherwise expressly provided in this Agreement;
- (d) modify, rent, lease, loan, sell, distribute or create derivative works based on the Documentation (including any translation into another language), except as expressly provided in this Agreement.
- (e) access or use the Licensed Products for the purpose of developing or operating products or services intended to be offered to third parties in competition with the Licensed Products or allow access by a direct competitor of Cumul.io
- (f) decompile, disassemble, reverse engineer or attempt to derive, reconstruct, identify or discover any Source Code, underlying ideas, underlying user interface techniques or algorithms of the Licensed Products by any means whatsoever, or disclose any of the foregoing except to the extent expressly permitted by applicable law;
- (g) encumber any lien or security interest on the Licensed Products;
- (h) take any action that would cause the Source Code or the Licensed Products to be placed in the public domain;
- (i) use the Licensed Products in an environment not expressly permitted under the Agreement or use the Licensed Products in any way that (i) is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity or (ii) violates or infringes upon the rights of a third party, including those pertaining to: contract, intellectual property, privacy, or publicity;
- (j) exceed the allowed number of Authorized Users under the Plan, unless payment of the relevant Variable Fee;
- (k) circumvent any technical or other protective measures (including any user limits or view restrictions) embedded in the Licensed Products;
- (l) use the Licensed Products to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs;
- (m) remove, delete, add to, alter, or obscure the Documentation or any warranties, disclaimers, copyright, trademark, patent, or other intellectual property, proprietary rights, or other notices, or any symbols, or serial numbers that appear on or in connection with any Licensed Product (except as specifically allowed by a Plan chosen by Customer); and
- (n) perform any act that, or fail to perform any act the omission of which, infringes, misappropriates, or otherwise violates any Intellectual Property Rights of Cumul.io or violates any applicable law.
4.2.2. Upon first request by Cumul.io, the Customer will provide Cumul.io with such information, certifications and access to its systems as may reasonably be requested by Cumul.io to verify compliance with the restrictions on the use of the Licensed Products.
4.2.3. No express or implied license or right of any kind is granted to the Customer regarding the Licensed Products or any part thereof, including but not limited to any right to obtain possession of any Source Code, data or other technical material relating to the Software, unless otherwise provided in this Agreement.
6. Support services
6.1. All Plans include Cumul.io's standard support services provided to Customer ("First Line Support") in accordance with the terms of this article. Cumul.io shall provide First Line Support services to Customer exclusively via email sent to firstname.lastname@example.org and only regarding Support Cases in connection with the Licensed Products or the OEM Products as follows:
- (a) Cumul.io will provide Customer with off-site troubleshooting and other technical assistance and support concerning the installation and operation of the Licensed Products distributed as part of the OEM Product, via e-mail address. Cumul.io email support shall be available from 09:00 AM to 5:00 PM CET on business days (excluding public holidays).
- (b) Support Cases must be reported by Customer to Cumul.io via the following e-mail address: email@example.com. Only Customer's Support Contact may report Support Cases;
- (c) Cumul.io will respond to a Customer Support Contact by e-mail or telephone, at Cumul.io sole option;
- (d) Cumul.io will use its best efforts to resolve Support Cases reported by a Customer Support Contact as soon as reasonably practicable;
- (e) A Support Case is resolved upon the earlier of the following: (i) the issue or problem is resolved, (ii) if the issue or problem is the result of an Error, the provision of a Fix or Error Correction, (iii) Cumul.io is able to provide a reasonable and mutually acceptable alternative solution, (iv) Cumul.io confirms that the issue or problem is not due to any Error or deficiency in the Licensed Products, (v) Cumul.io confirms that the issue or problem is in fact the result of a multi-vendor issue, and Customer agrees to transfer the problem to the third-party vendor for resolution (vi) Customer Support Contact requests that Cumul.io closes the Support Case, or (vii) the Support Case has been left open for five (5) consecutive business days, during which period Cumul.io has not received a response from a Customer Support Contact;
- (f) Notwithstanding anything contrary herein, Cumul.io will have no obligation to provide First Line Support in connection with Support Cases or operational disruptions caused by: (a) the use of the Licensed Products with software or hardware not designed for use with the operating systems approved by Cumul.io in the Documentation, (b) the use of the Licensed Products with hardware that does not satisfy the minimum system requirements specified by Cumul.io in the Documentation, (c) changes, modifications or alterations to the Licensed Products made by Customer and not approved in writing by Cumul.io or its authorized representatives, (d) use of the Licensed Products other than in accordance with the Documentation and the Agreement, (e) the failure to install Updates made available by Cumul.io or (f) the intentional misconduct of Customer, its clients or their respective Employees and agents or any third-party;
- (g) Cumul.io may elect to provide additional support services at the request of Customer, for which Cumul.io will charge the Customer, and Customer agrees to pay Cumul.io's then-current standard consulting fees.
7. Additional services & add-on modules
7.1. The Licensed Products provided by Cumul.io to the Customer can be supplemented by the following Additional Services and Add-On Modules, that will be delivered by Cumul.io upon separate request from Customer and after payment of the relevant Add-On Fees detailed in Article 12.1.1.
7.1.1. Service Levels & Credits
- 22.214.171.124. Customer can opt for Service Levels & Credits under which Cumul.io will undertake all reasonable commercial and technical efforts and follow accepted industrial standards in this regard, to ensure that the Licensed Products are available to Customer 99% of the time per calendar month ("Uptime SLA"). If it is not, Customer shall be entitled to continue the use of the Licensed Products without payment of any Fixed Fees upon termination of the then current Term and under the conditions of this Agreement for a certain period of time (the "Credits") equaling:
- (a) seven (7) days, if the Monthly Uptime Percentage for a calendar month is between 99.0% and 95.0%;
- (b) fourteen (14) days, if the Monthly Uptime Percentage for a calendar month is between 95.0% and 90.0%;
- (c) thirty (30) days , if the Monthly Uptime Percentage for a calendar month is lower than 90.0%.
- 126.96.36.199. In order to receive any of the Credits described above, Customer must notify Cumul.io by e-mail or otherwise in writing within thirty (30) days from the time Customer becomes eligible to receive a Credit.
- 188.8.131.52. The aggregate maximum number of Credits Customer can claim for any and all Downtime Periods that occur in a single calendar month shall not exceed thirty (30) days. For the avoidance of doubt, Scheduled Maintenance is not considered Downtime for purposes of the Cumul.io's Uptime SLA and will not be counted towards any Downtime Periods.Credits may not be exchanged for, or converted to, any monetary compensation.
- 184.108.40.206. The Uptime SLA does not apply to any (performance) issues (i) caused by factors outside of Cumul.io's reasonable control, including Force Majeure, (ii) that resulted from any actions or inactions of Customer or any third parties, or (iii) that resulted from Customer's equipment (including servers, databases, …) and/or third party equipment that are not under the control of Cumul.io.
- 220.127.116.11. The present service level provisions state the Customer's sole and exclusive remedy for any failure by Cumul.io to provide the Services as a result of Downtime.
- 18.104.22.168. In case Credits are granted to Customer, the new successive Term provided for in Article 17.2 shall begin upon expiration of the period for which Credits applied.
7.1.2. Escrow Agreement
- 22.214.171.124. The Customer may request Cumul.io to enter into a software escrow agreement within sixty (60) days of the Effective Date of the related Order Form against payment of the relevant Add-On Fee. Upon request of the Customer, Cumul.io will enter into a Software Escrow Agreement (the "Escrow Agreement") with an escrow agent that Cumul.io has identified at the time of signing the Escrow Agreement (the "Escrow Agent"). The Escrow Agreement shall remain in full force and effect throughout the Term. The Escrow Agreement shall set forth the procedure that Cumul.io must follow to effectuate delivery of the Licensed Products (as such term is defined in the Escrow Agreement and for the avoidance of doubt shall include the Cumul.io platform) in the event the Customer shall be entitled to the Materials under the Escrow Agreement.
- 126.96.36.199. The Escrow Agreement shall grant the Customer, a non-exclusive, limited license to use, copy, modify, maintain, and develop the released Materials for the sole purpose of maintaining and continuing to offer the OEM Products consistent with the terms of this Agreement upon an occurrence of the release condition as set forth in the Escrow Agreement.
- 188.8.131.52. Parties agree that, subject to the parties entering into a formal Escrow Agreement, the following events shall be qualified as being release events under such Escrow Agreement:
- (a) Cumul.io ceases its business undertakings;
- (b) Cumul.io suffers a liquidation of its assets under bankruptcy or insolvency statutes (not related to this Agreement at hand), or if an application to commence winding up proceedings is issued against Cumul.io which application has not been rejected or nullified within thirty (30) days of it having been filed.
7.1.3. Additional integration/dashboarding support
- 184.108.40.206. In the event the Customer would require additional integration/dashboarding support, such additional services can be provided by Cumul.io on a time and material basis. Parties agree to enter into an Order Form determining (i) the scope of the services, (ii) the duration of the services, and (iii) the applicable fees payable by the Customer in this respect. Such services are also available to Customer independently from the Licensed Products.
7.1.4. Training or workshop
- 220.127.116.11. The Customer shall have the possibility to purchase additional trainings or workshops regarding the use of the Licensed Products.
- 18.104.22.168. The trainings offered by Cumul.io consist of three (3) hours sessions with a maximum of five (5) participants. Participants must bring their own equipment (including but not limited to laptops) to trainings or workshops. The training provided by Cumul.io will consist of a full overview of the Cumul.io's products whereby participants will be encouraged to connect their own data, manage their ‘meta-data' and build and share a dashboard of their choice.
- 22.214.171.124. Customer should timely and no later than one (1) week before the actual date on which the workshop or training is hosted, request Cumul.io to participate in such training and/or workshop. Cancellations of the sessions can be validly made by the Customer forty-eight (48h) hours in advance. In the event an ordered session is cancelled without notice or without respecting the notice referred to in this Article 126.96.36.199, the ordered session is no longer cancellable, and Cumul.io shall be entitled to invoice such ordered session to the Customer.
8. Intellectual property rights
8.1. The Licensed Products, development tools, methods, procedures and Documentation of Cumul.io will be and remain Cumul.io's exclusive property and the Customer will obtain no right, title or interest therein (including without limitation any Intellectual Property Rights to Cumul.io's Dashboards and any related and/or integrated Intellectual Property Rights thereto (including the improvements thereof)). No license is granted to the Customer except as to use the Licensed Products as expressly agreed upon between Cumul.io and the Customer. Cumul.io's name, Cumul.io's logo, and the product names associated with the Licensed Products are trademarks of Cumul.io and they may not be used without Cumul.io's prior written consent.
8.2. In the event that, notwithstanding any prohibition thereto, the Customer modifies, improves or creates derivative works of or from the Licensed Products or any part thereof (collectively, "Improvements"), Cumul.io shall immediately and irrevocably own all right, title and interest, including any and all Intellectual Property Rights, in and to such Improvements and the Customer hereby assigns any rights (including any Intellectual Property Rights) in such Improvements to Cumul.io and agrees to secure any additional confirmations, assignments or other instruments or documents as may be necessary to vest title to any such Improvements in Cumul.io as contemplated by this article.
8.3. No amount shall be payable by Cumul.io to the Customer for the assignment of any rights in Improvements.
8.4. The Customer 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, except as otherwise specifically permitted under the Plan chosen by Customer. The Customer shall incorporate or reproduce such proprietary markings in any permitted back-up or other copies of the Licensed Products except as otherwise agreed.
9. Customer data
9.1. All Customer Data submitted by Customer and/or its Authorized Users to Cumul.io during the term of the Agreement will remain the sole and exclusive property of the Customer and/or its Authorized Users, respectively.
9.2. The Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Customer Data. Cumul.io will not use the Customer Data for any purpose other than to ensure performance of this Agreement.
9.3. The Customer grants Cumul.io a non-exclusive, royalty-free, worldwide, sublicensable, transferable, license to use, copy, store, modify, transmit and display the Customer Data to the extent useful or necessary to perform its obligations under the Agreement, in particular to provide the Licensed Products.
9.4. Cumul.io reserves the right, but is not obliged, to review and remove any Customer Data which are deemed to be in violation with (i) the provisions of the Agreement or otherwise inappropriate, (ii) any rights of third parties, or (iii) any applicable legislation or regulation.
9.5. The Customer shall in its sole discretion be entitled to cease any access to, remove, process and/or modify Customer Data and make such Customer Data available to any Authorized Users.
9.6. Customer agrees that Cumul.io may collect, use, and disclose quantitative data derived from the use of the Licensed Products for industry analysis, benchmarking, analytics, marketing, and other business purposes. All data collected, used, and disclosed will be in aggregate form only and will not identify Customer, its Authorized Users, Customer Data.
10.1. Each of the Parties agrees that it will not (i) disclose any Confidential Information of the other Party, except to those of its employees, sub-suppliers, officers, directors, contractors, Affiliates and/or all other external advisors that have a reasonable demonstrable legitimate need to know such information in light of such Party's rights and obligations hereunder, subject to each of them committing in writing to adequate confidentiality obligations prior to being granted access to such Confidential Information and subject to any other conditions and restrictions set out in the Agreement, or (ii) use any Confidential Information of the other Party for its own benefit or that of any third party, except as expressly permitted under the Agreement.
10.2. Each of the Parties shall ensure that each person who receives Confidential Information is made aware of and complies with these confidentiality obligations. Each of the Parties shall be responsible and liable towards the other Party for a breach of these confidentiality obligations by any party acting under their control or on their behalf or to which they otherwise provided Confidential Information.
10.3. Shall not be considered Confidential Information, information which:
- (a) is in the public domain at the time of disclosure by the disclosing Party or subsequently falls into the public domain through no breach of this Article 10 by the receiving Party, provided that the Customer acknowledges and agrees that Confidential Information of Cumul.io shall not be deemed to be in the public domain merely because any part of said information is embodied in general disclosures or because individual features, components or combinations thereof are known, or become, known to the public, through whatever means, including through means of the supply or commercialization of products or services based on or related to such Confidential Information;
- (b) can be proven to the reasonable satisfaction of the disclosing Party to be lawfully in the receiving Party's possession prior to any disclosure by the disclosing Party and without an obligation of confidentiality towards the disclosing Party;
- (c) can be proven to the reasonable satisfaction of the disclosing Party to be lawfully obtained from a third party which was not under an obligation of confidentiality towards the disclosing Party; or
- (d) can be proven to the reasonable satisfaction of the disclosing Party to be independently developed by the receiving Party, without access or reference to, or use of, the disclosing Party's Confidential Information.
10.4. Parties' confidentiality obligations shall survive any termination of the Agreement for a period of five (5) years. Upon termination of the Agreement or upon disclosing Party's earlier written request, the receiving Party shall promptly destroy or return to the disclosing Party all Confidential Information of the disclosing Party in its possession or under its control and shall certify in writing its compliance with the foregoing.
11. License fees
11.1. In consideration for the Licensed Product and the rights granted pursuant to Article 3, the Customer agrees to pay to Cumul.io the License Fee. The License Fee is composed of (i) a recurring fixed fee based on the Plan Customer chooses in the Order Form (the "Fixed Fee") and (ii) a fee relating to extra use not included in the Plan chosen (the "Variable Fee").
11.2. Both the Fixed Fee and the Variable Fee are agreed upon between the Customer and Cumul.io in the Order Form.
- 11.2.1. Fixed Fee
- 188.8.131.52. The Licensed Product is available under four Plans that offer different features and usage limits and which amount to different Fixed Fees.
- 184.108.40.206. The Fixed Fees, usage and features associated with the Plans are set out in the Order Form.
- 220.127.116.11. Customer may upgrade or downgrade between two Plans (maximum once per invoicing period). Customer understands that downgrading may cause loss of content, features, or capacity of the Licensed Product as available to Customer and Authorized Users before downgrading Customer's Plan. Cumul.io will not be liable for such loss.
- 18.104.22.168. When Customer upgrades, the new Plan and related Fixed Fee becomes immediately applicable. Upon upgrade, the new Fixed Fee for the subsisting invoicing period would be charged on pro-rated basis and the Variable Fee will be computed based on the limits of the upgraded Plan. Subsequent invoicing periods will be charged in full according to the new Fixed Fee.
- 22.214.171.124. When Customer downgrades, the new Plan and related Fixed Fee becomes applicable in the next invoicing period. Upon downgrade, Customer will be offered a credit for the payment made for the subsisting invoicing period in the form of credits and the Variable Fee will be computed based on the limits of the downgraded Plan. These credits will be offset against the new Fixed Fee payable in the subsequent invoicing period.
- 11.2.2. Variable Fee
- 126.96.36.199. If Customer goes beyond any usage limits included in the Plan chosen, a Variable Fee shall be due, which monthly amount is set out in the Order Form.
- 188.8.131.52. The Variable Fee shall be invoiced monthly, with the first invoice being issued at the end of the then current calendar month.
- 184.108.40.206. If the total of the Fixed Fee and Variable Fee for a given month exceeds the Fixed Fee of an upgrade Plan, Customer will be notified automatically and given the option to switch to this upgrade Plan in accordance with article 220.127.116.11.
12. Additional fees
Customer may subscribe to Add-On Modules against payment of the fees detailed in the Order Form (the “Add-On Fee”) or request Cumul.io to provide Additional Services of which the details and scope are set forth in the Order Form as well (the “Additional Service Fees”).
13. Invoicing and payments
13.1. Cumul.io shall start invoicing Customer as of the Effective Date when Customer subscribes to the Licensed Products, Add-On Modules (and any renewal thereof made in accordance with article 17.2) and/ or Additional Services. Following invoices will be issued according to the frequency indicated in the relevant Order Form. Invoices shall be issued at the beginning of each invoicing period. Variable Fees shall be invoiced during the invoice period following the one during which they were incurred. A copy of any invoice provided by Cumul.io is always available in the "Owner Cumul.io account".
13.2. Invoices are issued in the currency indicated in the Order Form. Invoices are due and payable by the Customer within fourteen (14) calendar days from the invoice date. The amount of any invoice which has not been paid within fourteen (14) calendar days from the invoice date shall automatically be subject to a late payment interest equal to the then applicable interest rate as calculated and determined in accordance with the Belgian law of 2 August 2002 regarding late payment in trade transactions ("Wet betreffende de bestrijding van de betalingsacherstand in handelstransacties").In addition, the Customer shall pay all costs incurred by Cumul.io as a result of the (extra)judicial enforcement of the Customer's payment obligations hereunder.
13.3. If the Customer fails to pay any outstanding amounts within thirty (30) calendar days from receipt of a written payment default notice, Cumul.io may terminate the Agreement, or alternatively, at its sole discretion, suspend its obligations and/or the Customer's user rights granted hereunder by written notice to the Customer until receipt of payment of such outstanding amounts.
13.4. If the Customer disputes any portion of an invoice, the Customer shall notify Cumul.io within five (5) calendar days from the invoice date of the nature of any such dispute, the basis for the Customer's dispute and the amount involved, together with any appropriate information supporting Customer's position, failure of which shall result in the invoice being deemed accepted by the Customer. In any event, the undisputed portion of the invoice shall be paid as set forth herein.
13.5. Unless otherwise specified in this Agreement, all License Fees are non-refundable. No refunds shall be issued for partial use or non-use of the Licensed Products by Customer.
13.6. The License Fees do not include any taxes, including value-added tax or withholding taxes. Cumul.io will invoice Customer for such taxes if it believes it has a legal obligation to do so and Customer agrees to pay such taxes if so invoiced.
14. Representations and warranties
14.1. Cumul.io represents and warrants to the Customer the following:
- (a) except as expressly set forth in this Article 14 and to the maximum extent permitted by applicable law, the Licensed Products are provided "as is." The express warranties set forth in this Article 14 are the only warranties made by Cumul.io with respect to the Licensed Products or any materials or services provided by Cumul.io in connection with the Agreement. Cumul.io makes no (and hereby disclaims all) other warranties, covenants or representations or conditions, either written, oral, express or implied, including without limitation any implied warranties of merchantability, suitability and fitness for a particular purpose or use with respect to the use, misuse or inability to use the Licensed Products (in whole or in part) or any other products or services provided by Cumul.io. Cumul.io makes no warranty with respect to any hardware, software or product of any third party. All use of and reliance by the Customer on the Licensed Products or services provided by Cumul.io under the Agreement are at the sole risk of Customer. Cumul.io does not guarantee the accuracy and the correctness of the results generated by the use of such services and/or the Licensed Products;
- (b) Cumul.io warrants and guarantees that the services provided under this Agreement shall be carried out in a proper and professional manner by properly qualified personnel;
- (c) Cumul.io will do its best effort to warrant that the use of the Licensed Product provided to the Customer by Cumul.io will be uninterrupted;
- (d) to the best of Cumul.io's knowledge, the Licensed Products do not, upon delivery to the Customer, contain any Virus and Cumul.io shall not knowingly program into any of the Licensed Products any Virus or other software routine designed to permit unauthorized access to any of Customer's computer systems or to disable, erase or otherwise cause damage to the Software, hardware or data or any back door, time bomb, software lockout key or device, drop dead device, or other software routine designed to disable a computer, either automatically or with the passage of time or under the control of any person, unless any such software routine is expressly requested in writing by the Customer. It being understood that Customer will perform the necessary checks and scans to ascertain this representation;
- (e) Cumul.io warrants that the use of the Licensed Product will meet the applicable servicelevels in the event Customer subscribed to the "Service Levels & Credits" Add-On Module; and
14.2. Each Party represents and warrants to the other the following:
- (a) it is duly organized, validly existing and in good standing under the laws of its incorporation and has all requisite power and authority to execute and deliver the Agreement, to perform its obligations hereunder and to engage in the transactions contemplated thereby;
- (b) the execution, delivery and performance of the Agreement have been duly authorized by all requisite action on the part of such Party and the Agreement constitutes the legal, valid and binding obligation of such Party, enforceable in accordance with its terms;
- (c) the execution, delivery and performance of the Agreement by each Party do not, to the best of its knowledge (i) violate any judgment, order, injunction, decree or award of any court or governmental body binding on such Party, (ii) violate any law or regulation that is applicable to such Party, or (iii) violate or conflict with, or constitute a default under, the terms of any agreement to which such Party is a party. If at any time during the Agreement, a Party notices or suspects that wrong assumptions have been made or any of these warranties prove incorrect, it shall promptly inform the other Party thereof in writing.
15. Third party claims
15.1. Cumul.io shall defend and indemnify the Customer against any founded and well-substantiated claims brought by third parties for any infringement to such third party's Intellectual Property Rights in Europe and in the United States and excluding any claims resulting from (i) the Customer's unauthorized use of the Licensed Products, (ii) the Customer or any third party's modification of any of the Licensed Products, (iii) Customer's use of the Licensed Products in combination with any non Cumul.io products or services, or (iv) the Licensed Products having been developed to the Customer's design or incorporating documents, materials, ideas, data or other information, provided by or on behalf of the Customer. The exclusions and limitations of liability under this Article shall operate to the benefit of Cumul.io's Affiliates and subcontractors to the same extent such provisions operate to the benefit of Cumul.io.
15.2. Cumul.io's indemnity obligation shall be conditional upon the following: (i) Cumul.io is given prompt written notice of any claim, (ii) Cumul.io is granted sole control of the defense and settlement of such a claim, (iii) upon Cumul.io's request, the Customer fully cooperates with Cumul.io in the defense and settlement of such a claim, at Cumul.io's expense and (iv) the Customer makes no admission as to Cumul.io's liability in respect of such a claim, nor does the Customer agree to any settlement in respect of such a claim without Cumul.io's prior written consent. Provided these conditions are met, Cumul.io shall indemnify the Customer for the damages and costs incurred by the Customer as a result of such a claim, as awarded by a competent court of final instance, or as agreed to by Cumul.io pursuant to a settlement agreement.
15.3. In the event the Licensed Products, in Cumul.io's reasonable opinion, are likely to or become the subject of a third-party infringement claim (as per Article 15.1), Cumul.io shall have the right, at its sole option and expense, to: (i) modify the (allegedly) infringing part of the Licensed Products so that they become non-infringing while preserving equivalent functionality, (ii) obtain for the Customer a license to continue using the Licensed Products or (iii) terminate the relevant license and pay to the Customer an amount equal to a pro rata portion of the License Fee paid to Cumul.io for that portion of the Licensed Products which is the subject of such infringement.
15.4. The indemnity provided in article 15.2 and remedies provided in article 15.3 are the entire liability and obligation of Cumul.io and the sole remedy of the Customer with respect to any infringement or alleged infringement of any Intellectual Property Rights caused by the Licensed Products or any part thereof.
16. General liability and indemnification
16.1. To the maximum extent permitted by applicable law, Cumul.io excludes any and all liability (whether in contract, warranty, tort (including as a result of negligence, product liability or other theory)) or otherwise to the Customer or any third person for any indirect, punitive, incidental, special or consequential or other similar damages (including damages for loss of profit, revenue, business, contracts or clients, loss of or corruption of data, loss of goodwill, damages to equipment and reputational damage, opportunity loss, loss of anticipated savings, and the cost of procuring replacement goods or services), even if Cumul.io has been advised or notified of the possibility of such costs or damages.
16.2. Without prejudice to and without limiting Article 16.1, Cumul.io's aggregate liability arising out of or in connection with the Agreement or the transactions contemplated hereby, whether in contract, warranty, tort (including negligence, product liability or other theory), or otherwise, shall not exceed the total License Fees (excl. taxes) paid by the Customer to Cumul.io pursuant to this Agreement during the twelve (12) month period preceding the date on which the applicable liability claim arose.
16.3. The Customer agrees that Cumul.io can only be held liable as per the terms of this Article 16 to the extent damages suffered by the Customer are directly and solely attributable to Cumul.io. However, nothing in the Agreement shall limit or exclude Cumul.io's liability for (i) gross negligence, (ii) willful misconduct, (iii) fraud.
16.4. The limitations provided for in this section 16 shall not apply to Cumul.io's indemnification and remedies obligations provided for in article 15.
17. Term and termination
17.1. This Agreement enters into force on the Effective Date of the relevant Order Form and shall remain in effect for the term specified in such Order Form, including all renewals thereto (the "Term").
17.2. Subscription to the Licensed Products and Add-On Modules shall be tacitly renewed for successive terms equivalent in length to the then expiring Term, unless either Party gives the other Party written notice of its intent not to renew the Term at least thirty (30) calendar days prior to the expiration of the then current Term. Unless otherwise provided for in any Order Form, the Fixed Fee and Variable Fee (if any) applicable to Customer's subscription to the Licensed Products for any such subsequent Term shall be based on the Plan to which Customer has subscribed as of the time such subsequent Term commences.
17.3. In the case of an Order Form for Additional Services, if no end date is specified in the Order Form, then the Order Form shall expire upon completion of Additional Services or early termination as permitted by this Agreement.
17.4. The term of this Agreement shall continue as long as an Order Form referencing this Agreement remains valid and in effect. Prior to the Order Form Start Date, Cumul.io may, upon mutual agreement, start providing Additional Services and/or provide Customer access to the Licensed Products/Add-On Modules, which will be governed by this Agreement. Termination or expiration of any Order Form or shall leave other Order Forms unaffected.
17.5. Parties agree that this Agreement can be terminated, without prior notice in the event the other Party:
- (a) becomes insolvent;
- (b) makes a general assignment for the benefit of its creditors;
- (c) suffers or permits the appointment of a receiver or a manager for its business or assets; or
- (d) avails itself or becomes subject to any proceeding under bankruptcy laws or any other statute or laws relating to the insolvency or protection of the right of creditors.Notwithstanding the foregoing, Cumul.io will be entitled to immediately terminate the Agreement (or alternatively suspend its obligations) in the event the Customer breaches the license terms as set forth in the Agreement or infringes Cumul.io's Intellectual Property Rights.
17.6. Either Party will be entitled to terminate the Agreement by written notice in the event the other Party commits a material and persistent breach under the Agreement (other than as a result of a Force Majeure (as defined hereinafter)), including but not limited to the timely performance of any payment obligations under the Agreement. "Force Majeure" will be understood as being an Act of God, fire, casualty, flood, earthquake, cyberattacks, war, strike, epidemic, pandemic, destruction of production facilities, riot, acts of government, insurrection, material unavailability, interruption in supply of electricity, labor disputes, lock-out telecommunications, network, computer, server or internet downtime or any and all other unforeseen and unforeseeable events beyond a Party's control.
17.7. Where any default or failure can be remedied, the non-defaulting Party should give written notice to the defaulting Party of such alleged default or failure and allow for a period of thirty (30) calendar days to remedy the same to the reasonable satisfaction of the non-defaulting Party. If the default or failure is not remedied at the end of said notice period, the non-defaulting Party is allowed to terminate the Agreement immediately upon written notice.
17.8. Upon termination of the Agreement for any reason whatsoever the Customer shall promptly pay Cumul.io all feescovering the full term of the Agreement, except in the event of a termination by the Customer pursuant to Articles 17.5 or 17.6, in which case the Customer must promptly pay to Cumul.io all fees and other amounts payable hereunder up to the actual termination date.The licenses and user rights with respect to the Licensed Products granted to the Customer pursuant to this Agreement shall automatically terminate and the Customer shall return to Cumul.io or destroy all copies (in whatever form or medium) of the Licensed Products and the Confidential Information of Cumul.io that are in the possession or under control of the Customer. Cumul.io's obligation to provide any further services to Customer under this Agreement will immediately terminate, except any such services that are expressly to be provided following the expiration or termination of this Agreement.
17.9. The provisions of these General Terms that are expressly or implicitly intended to survive termination, including but not limited to, Articles 9, 10, 13, 14, 15, 16, 17 and 18 shall survive any expiration or termination of the Agreement.
18. Data protection
18.1. Each Party shall comply with any obligations under the General Data Protection Regulation 2016/679 (the GDPR) and other applicable privacy laws with respect to the processing of Personal Data in the performance of this Agreement.(the GDPR) and other applicable privacy laws with respect to the processing of Personal Data in the performance of this Agreement.
18.2. In connection with and for the purpose of the performance of its obligations (including but not limited to the provision of the Services) under this Agreement, Cumul.io will process Personal Data on behalf of Customer in accordance with the Data Processing Agreement, available under your profile page under Legal info. This Personal Data may include, but is not limited to Personal Data of Customer as well as of Authorized Users. Customer shall ensure that it has properly informed in accordance with articles 12, 13 and 14 of the GDPR those whose Personal Data is being processed and that the Personal Data that it supplies or discloses to Cumul.io has been obtained fairly and lawfully and that it has, to the extent necessary, obtained all necessary consent of those whose Personal Data is being processed
18.3. Each Party shall ensure that its personnel and (sub)contractors shall, at all times, comply with its/their respective obligations under the GDPR and other applicable privacy laws and the Data Processing Agreement as available under your profile page under Legal info.
19.1. All notices, requests, consents, demands and other communications addressed to the receiving Party's address as set forth below or to such other address as a Party may designate by notice hereunder, and either (i) sent by e-mail, or (ii) delivered by hand, or (iii) sent by registered or certified mail, return receipt requested, postage prepaid:
- If to Cumul.io to: Cumul.io's registered seat, i.e. Tiensevest 102 box 201, B-3000 Leuven (Belgium) or any other address of its registered seat as amended from time to time
- If to the Customer to: the address of the Customer's registered seat
All notices shall be deemed to have been given either (i) by email, or (ii) if by hand, at the time of actual delivery thereof to the receiving Party at such Party's address as provided above, as reasonably demonstrated by the Party serving notice, or (ii) if sent by registered or certified mail, twenty-four (24) hours following the day such mailing is made.
19.2. No announcements regarding the Agreement or its subject- or ancillary matter will be made by any Party except as required by law, without the prior written approval of the other Party, such approval is not to be unreasonably withheld or delayed.
19.3. Each of the Parties to the Agreement shall bear its own costs and expenses in connection with the drafting and negotiation of the Agreement.
19.4. The Parties are independent contractors. This Agreement does not create any partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.
19.5. The Customer may not assign or transfer the Agreement to any third party (including without limitation its Affiliates) without the prior written consent of Cumul.io, such consent not to be unreasonably withheld, but which consent may be made subject by Cumul.io (acting reasonably and in good faith) to payment of additional fees. Cumul.io shall be free to transfer or assign (part of) the Agreement to one of its Affiliates. Cumul.io shall also be free to subcontract performance of its obligations under the Agreement to its Affiliates, to individual contractors and to third party service providers without having to obtain the Customer's prior consent, provided that Cumul.io shall remain responsible towards the Customer in respect of such subcontracted services.
19.6. The present Agreement is governed by Belgian law. Any dispute regarding the interpretation and/or the execution of the present Agreement will be submitted to the competent courts of Leuven. Although the Agreement has been drafted in English, judicial proceedings will be held in Dutch. The provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods are expressly excluded and do not apply to this Agreement. Any legal action arising under this Agreement must be initiated within two years after the cause of action arises.
19.7. If a court of competent jurisdiction determines any provision, or any portion thereof, of the Agreement to be unenforceable or invalid, then such provision shall be deemed limited to the extent that such court deems it valid or enforceable and the remaining provisions of the Agreement shall nevertheless remain in full force and effect. The Parties agree in such case to start good faith negotiations in order to substitute such invalid or unenforceable provision by a like provision to accomplish the intent of Parties to the extent permitted by applicable law.
19.8. No failure or delay by a Party hereto in exercising any right, power or remedy under the Agreement, and no course of dealing between the Parties hereto, shall operate as a waiver of any such right, power or remedy of the Party. No single or partial exercise of any right, power or remedy under the Agreement by a Party hereto, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy, shall preclude such Party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a Party hereto shall not constitute a waiver of the right of such Party to pursue other available remedies.
19.9. As of the Effective Date, Cumul.io shall be entitled to refer to the Customer as a Customer in all of its commercial and marketing documentation and client listings, as a sales reference, as well as on Cumul.io's website.
Schedule 1: Definitions
"Acceleration Storage (AS)"
means all data storage - excluding e.g. metadata, user info, and dashboard definitions - on Licensor's secured datawarehouse, accessible via manual data upload, data push via Licensor's API, or Licensor's webservice data connectors;
means an affiliate (verbonden vennootschap) as defined in article 1:20 of the Belgian Companies and Associations Code;
means the agreement defined under article 1.4;
means an Article of the Agreement;
means one individual natural person, whether an employee, business partner, contractor, or client of Customer or its Affiliates who is designated by Customer to use the Licensed Products. An Authorized User must be identified by a unique e-mail address or a unique set of parameters defined by Customer in a temporary token, and two or more persons may not use the Licensed Products as the same Authorized User. Authorized Users can be either Viewers or Designers depending on their user rights. The number of Authorized Users is limited by the Plan purchased by Customer under the relevant Order Form;
means the information of a Party which (i) is explicitly marked as confidential or proprietary, or (ii) should reasonably be considered confidential given its nature or the circumstances surrounding its disclosure, regardless of whether or not it is expressly marked as confidential, including without being limitative, information and facts concerning a Party and its Affiliates business plans, clients, prospects, personnel, suppliers, Cumul.ios, Customers, partners, investors or others training methods and materials, financial information, marketing plans, sales prospects, client lists, ideas, discoveries, inventions, specifications, models, programs, standards, designs, techniques, methods, drawings, sketches, processes, trade secrets, product information, formulae, recipes, samples, prototypes, selection of materials, systems and components, plans, financial data (including cost and pricing data) and all Intellectual Property Rights embodied therein, that is disclosed in writing, orally, in machine-readable form or in any other form pursuant to the Agreement by a Party;
means tools provided by Cumul.io for the gathering and visual representation of data in order to gain actionable insights from this data. Dashboards can be used by Authorized Users and shared with other Authorized Users and can be embedded in websites and/or apps;
means (i) any content, data, information or material provided or submitted by the Customer (and/or any of its Affiliates) or on its behalf to Cumul.io in the course of utilizing the Licensed Products, (ii) any content, data, information or material that is collected or generated by the Licensed Products that result from queries made by the Customer, and (iii) any content, data, information or material provided or submitted by Authorized Users when using the Licensed Products;
"Data Processing Agreement"
means the agreement made available through this page
"Data Protection Regulation"
means the EU Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation), together with the codes of practice, codes of conduct, regulatory guidance and standard clauses and other related legislation resulting from such Directive or Regulation, as updated from time to time;
means an Authorized User who has the most user rights, including full access to the dashboarding features of the Licensed Products and editing rights. These rights are further detailed on the following website: https://blog.cumul.io/2018/04/09/adding-viewer-accounts/
means the period of 30 consecutive seconds during which Cumul.io fails to respond successfully to all automatic status checks, as tested by a third party monitoring service (like e.g. Pingdom) on behalf of Cumul.io from multiple locations or regions worldwide. The results of these tests are published on Cumul.io's status page. A detailed report of downtime periods can be made available on demand;
means the earlier of: (i) the start date of an Order Form, as indicated therein and (ii) the date of activation of the Licensed Products by Customer;
means any reproducible material failure of the Software conform to the Documentation;
means any modification or addition to the Software, that brings the Software into material conformity with the Documentation;
means the non-automated, normal use by Customer's colleagues, consultants, or Authorized Users within a portal;
means the support services related to the OEM Products provided by Cumul.io to the Customer in first line as described in article 6;
"Intellectual Property Rights"
means any and all now known or hereafter existing (i) patents, patent applications, patent disclosures and inventions (whether patentable or not), (ii) trademarks, service marks, trade dress, trade names, logos, corporate names, internet domain names, registrations and applications for registration thereof together with all of the goodwill associated therewith, (iii) copyrights and copyrightable works, including mask works, and registrations and applications thereof, (iv) computer software programs, including Source Code and Object Code, databases and documentation thereof, (v) trade secrets and other confidential information, including ideas, formulas, compositions, inventions, improvements, know-how, manufacturing and production processes and techniques, research and development information, drawings, specifications, blueprints, flowcharts, schematics, protocols, programmer notes, designs, design rights, developments, discoveries, plans, business plans, proposals, technical data, financial and marketing plans and customer and supplier lists and information, and (vi) all other forms of intellectual property;
means the recurring fees payable by the Customer in respect of the user rights on the Licensed Products as specified in Article 11 of these GTC and the Order Form;
means the Software (including all add-on modules) and the Documentation;
means Cumul.io's Source Code, including but not limited to, all relevant commentary, compilation instructions, explanations and other documentation of the Source Code;
"Monthly Active Designers"
means Authorized Users logged onto and having access to the Licensed Products at any given point in time during a calendar month under a "Designer" or "Owner" permission profile. The number of monthly active viewers is limited by the Plan purchased by Customer under the relevant Order Form;
"Monthly Active Viewers"
means Authorized Users logged onto and having access to the Licensed Products at any given point in time during a calendar month under a "Viewer" permission profile. The number of monthly active viewers is limited by the Plan purchased by Customer under the relevant Order Form;
"Monthly Uptime Percentage"
means the total number of minutes in a calendar month minus the number of minutes of Downtime suffered from all Downtime Periods in such calendar month, divided by the total number of minutes in the calendar month;
means software assembled or compiled in magnetic or electronic binary form on software media that is readable and usable by machines but not generally readable by humans without reserve assembly, reverse compiling or reverse engineering;
means the Licensed Products as integrated in the portal provided by the Customer to the Authorized User;
means any order form executed by Customer and Cumul.io with respect to Customer's subscription to the Licensed Products and/or Additional Services provided under article 7;
means a party to the Agreement, i.e. Cumul.io or the Customer;
means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
means the pricing plan(s) and the functionality and usage associated therewith (as detailed under point 11.1.1) for which Company subscribes with respect to the Licensed Products, as indicated in the Order Form;
means a secured connection between a Customer's Authorized User data storage and Cumul.io. The plugin allows the Customer to control in a scalable way which data is accessible to which Authorized User;
means the period commencing when a Support Case is reported by Licensee's Support Contact and ending when a member of the Licensor's technical support team logs the report and responds to the Licensee's Support Contact by telephone or e-mail;
means scheduled maintenance on Cumul.io's Licensed Products. A public notice will be made on Cumul.io's status page at least five (5) days prior to the commencement of such maintenance activities. There will be no more than twenty-four (24) hours of Scheduled Maintenance per calendar year;
"Severity 1 Support Case(s)"
means a Support Case that renders the Software completely inoperative;
means Cumul.io's technology integrated in the Customer's platform or used by the Customer as a separate (white labeled) platform;
means the Software written in programming languages including all comments and procedural code such as job control language statements, in a form intelligible to programmers trained in and knowledgeable of the Software, and capable of being translated into the Object Code form of the Software for operation on computer equipment through assembly or compiling;
means a single, reproducible issue or problem with the operation of the Software. Examples of Support Cases include, without limitation, Errors and problems encountered as a result of improper installation, configuration or operation of the Software;
means Customer's technical personnel that have been certified as a Cumul.io certified support specialist;
means the period defined in Article 17;
means a new release or version of the Software constituting a compendium of enhancements;
means an Authorized User who can only view dashboards of the Licensed Products. These rights are further detailed on the following website: https://blog.cumul.io/2018/04/09/adding-viewer-accounts/
means a virus, cancelbot, worm, logic bomb, Trojan horse or other harmful component of the Software or data;
means the websites for various Licensed Products and other websites that Cumul.io operates.