“Agreement” means the contractual relationship between AI-GUST and the Customer, including the Terms including any annexes, such as AI-GUST’s Order Form and Data Processing Agreement, and any other applicable agreement between AI-GUST and the Customer.

“API” means application programming interface, allowing two or more computer programs to communicate with each other.

“Confidential Information” of a Party means the information of such Party, whether in written, oral, electronic or other form, 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 the 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.

1.4

“Customer” shall mean the customer specified in the Order Form.

1.5

“Customer Data” all content, data or information provided, submitted, uploaded to or made available through the SaaS-platform (either manually or automatically via API’s) by the Customer or User.

1.6

“Data Processing Agreement” means an agreement as set forth in Annex 2 to these Terms that governs the Processing of Personal Data by or for AI-GUST in accordance with the Data Protection Laws.

1.7

“Data Protection Laws” means all applicable laws relating to the processing of personal data including, while it is in force and applicable to the Customer Data, the General Data Protection Regulation (Regulation (EU) 2016/679).

1.8

“Error” means any material, verifiable and reproducible failure caused by the SaaS-platform or API (specifically excluding any nonconformity resulting from Misuse).

1.9

“Hosting Partner” means Microsoft Azure (or such other provider of hosting services AI-GUST might contract in the future, as will be notified to the Customer from time to time).

1.10

“Implementation Services” means – to the extent applicable - the service of implementing and launching the SaaS-platform for the Customer to be operational, as may be agreed between Customer and AI-GUST and set out in the Order Form.

1.11

“Intellectual Property Rights” means any and all now or hereafter existing (a) rights associated with works of authorship, including copyrights, copyrightable or mask work rights, neighbouring rights and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, rights to know-how and trade secrets, and industrial property rights; (e) layout design rights, design rights, topographic right (f) Internet domain names, (g) rights to software and computer software programs (including but not limited to source code and object code), rights to data, database sui generis right and documentation thereof; and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; whether registered or not and (h) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.

1.12

“Order Form” means the order, by means of a written or electronic document signed by both Parties, as agreed upon between the Customer and AI-GUST, as set out on the cover page, titled “Order Form”.

1.13

“Party” means either AI-GUST or the Customer individually.

1.14

“Parties” means AI-GUST and the Customer collectively.

1.15

“Professional Services” means any other services than described elsewhere in relation to the SaaS-platform, as may be agreed between Customer and AI-GUST from time to time and set out in an Order Form. 

1.16

“SaaS-platform” means the proprietary software-as-a-service fintech platform and related services, features, content, programs or applications (web-based or mobile) developed and owned by AI-GUST.

1.17

“Subscription” means the Customer’s subscription to use the SaaS-platform during a Subscription Period in exchange for the Subscription Fee, as agreed between AI-GUST and the Customer in the Order Form. 

1.18

“Subscription Fee” means the yearly or monthly subscription fees, due by the Customer in exchange for the SaaS-platform and based on the average use of the SaaS-Platform, as specified in the Order Form. 

1.19

“Subscription Period” means the term of the Agreement, as specified in the Order Form.

1.20

“Third Party” a natural or legal person, a government agency or other body, not being a Party to this Agreement or an affiliated party. 

1.21

“User” means any employee, freelancer, contractor, consultant, supplier or other representative of the Customer permitted by the Customer to use the SaaS-platform by or on behalf of the Customer for the Customer’s internal business purposes in accordance with the intended purpose of the SaaS-platform and the terms of the Agreement.

1.22

“Workaround” means a suggested set of actions or recommendations intended, when properly implemented, to correct an Error in the SaaS-platform or API and/or to restore the functionality of the SaaS-platform or to provide equivalent or similar, but not inferior, functionality.

These Terms take precedence over all other conditions from the Customer or from a Third Party even where it is stated therein that only those conditions may apply and even if they were not protested by AI-GUST. The application of the following Terms is for AI-GUST an essential condition for the conclusion of the Agreement.

By executing the Agreement, or any other document referring to these Terms or by using the SaaS-platform, the Customer acknowledges that it has read, understands and accepts these Terms and agrees to be bound by them. If you are an employee (or contractor) of the Customer accepting these Terms on behalf of the Customer, you represent and warrant that (i) you have full legal authority to bind the Customer to these Terms; (ii) you have read and understand the Terms; and (iii) you agree on behalf of the Customer to the Terms. In accordance with Belgian law, acceptance of the invoice also implies acceptance of these Terms.

Subject to the full and timely payment of the Subscription Fees and compliance with the Agreement, AI-GUST hereby grants the Customer a personal, restricted, non-exclusive, non-transferrable, non-assignable and worldwide licence to access and use (and to allow access and use by its Users of) the SaaS-platform and during the term of the Customer’s Subscription solely for the Customer’s internal business purposes in accordance with the Agreement. The foregoing licence does not include the right to access any software code (including object code, intermediate code and source code) of the SaaS-platform.

AI-GUST has the right to monitor the use of the SaaS-platform in order to – among others – correctly calculate the price, and to verify whether the use is in compliance with the Agreement.

The Customer shall not: (i) make back-up copies of the SaaS-platform without AI-GUST’s authorization; (ii) arrange or create derivative works based on the SaaS-platform without AI-GUST’s express written consent; (iii) assign, distribute, sub-license, hire, transfer, sell, lease, rent, charge or otherwise deal in or encumber the SaaS-platform, or use the SaaS-platform 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; (iv) copy, duplicate, reverse engineer, reverse compile, disassemble, record or otherwise reproduce the SaaS-platform, Implementation Services, Professional Services or any part of them except as expressly provided in these Terms; (v) remove or alter any copyright or other proprietary notice on any of the SaaS-platform, Implementation Services or Professional Services.

The Single Point Of Contact (hereafter “SPOC”) appointed by the Customer as included in the Order Form shall have to create a user account for each User wishing to use the SaaS-platform.

The Customer acknowledges and agrees that each user account is personal and that the login details may not be shared with Third Parties. If the Customer has reasons to believe that its account details (or, if applicable, the account details of a User) have been obtained by non-authorized persons, it shall contact AI-GUST as described in the Order Form immediately to suspend the user account.

AI-GUST reserves the right to suspend or terminate any user account that acts in violation of these Terms or the terms of use (if any).

To the extent agreed between the Parties in the Order Form, AI-GUST shall perform the set-up and/or configuration of the SaaS-platform in accordance with the description set out in the applicable Order Form.

After the execution of the Implementation Services by AI-GUST, Parties will organise a feedback-round in this respect. After this feedback-round (and possible adjustments, as agreed between Parties), AI-GUST will formally close the Implementation Services-phase. Between the end of the Implementation Services phase and the actual full use of the SaaS-platform a brief period of time may occur.

If the Customer requests AI-GUST to provide technical support in relation to an Error, AI-GUST will use commercially reasonable efforts to provide a resolution or Workaround for Errors encountered during the usage of the SaaS-platform, in accordance with the Service Levels set forth in Schedule 1 to these Terms.

The Customer represents and warrants that it accepts the terms and conditions of the last version of the Hosting Partner’s terms of use as available on https://azure.microsoft.com/en-us/support/legal/. The Customer on behalf of its Users gives the Hosting Partner the permission to process all Personal Data as contemplated by this Agreement.

The SaaS-platform will be hosted in the datacenters of AI-GUST’s Hosting Partner and such hosting is subject to the applicable service offering of the Hosting Partner. AI-GUST does not warrant that the SaaS-platform shall be available on an uninterrupted basis and the Customer agrees that the SaaS-platform may be unavailable during periods of planned or unplanned maintenance undertaken by AI-GUST or the Hosting Partner. To the extent reasonably possible, AI-GUST shall notify the Customer at least 48 hours in advance of any planned maintenance. Maintenance that potentially impacts the availability of the SaaS-platform will be scheduled outside working hours (between 19h00 and 06h00).

Upon agreement between AI-GUST and the Customer as specified in writing in the Order Form, AI-GUST may provide Professional Services to the Customer. Unless stated differently in the particular Order Form, all Professional Services are charged as a fixed non-refundable fee. 

AI-GUST shall exercise reasonable care and skill in performing the Professional Services. The obligation to perform the Professional Services shall be regarded as an obligation of means and shall not bind AI-GUST to achieve a predefined result. AI-GUST will provide Professional Services in complete independence. Any timelines included in the Order Form or otherwise specified shall be deemed to be indicative only and shall not bind AI-GUST unless expressly agreed to be binding. The provision of the Professional Services is at all times subject to the cooperation of the Customer in good faith. In particular, and without prejudice to the generality of the foregoing, the Customer shall provide on a timely basis any accesses, approvals, business rules and information as necessary to allow AI-GUST to perform the Professional Services. AI-GUST shall not be responsible or held liable for any delay or failure in the provision of the Professional Services resulting from the Customer’s obligation to cooperate in good faith or to provide the necessary input. The scope of the Professional Services may only be changed in mutual agreement and such change(s) shall be documented in writing.

The relationship between the Parties is that of independent contractors. Neither Party is an agent for the other and neither Party has any authority to make any contracts, whether expressly or by implication, in the name of the other Party, without that Party’s prior written consent for express purposes connected with the performance of this Agreement. In no case shall the Customer exercise (or be deemed to exercise) partial or complete employer’s authority over AI-GUST’s personnel.

All Customer Data (including Intellectual Property Rights vested therein) shall remain the property of the Customer. The Customer hereby grants to AI-GUST a non-exclusive, royalty-free, worldwide, sublicensable, transferable licence to use, copy, store, modify, transmit and display the Customer Data as necessary for the purposes of this Agreement. 

The Customer shall indemnify and hold AI-GUST harmless for any claims in relation to the Customer Data.

The Customer shall make fair and reasonable use of the system interaction capabilities of the SaaS-platform and the accessory API and shall refrain from any excessive subtraction of data out of the SaaS-platform. AI-GUST will, at its own discretion, determine what is reasonably permissible. If the Customer exceeds such fair and reasonable use, AI-GUST may limit the system interaction and subtraction capabilities of the SaaS-platform and charge the Customer the additional infrastructure costs at the rates specified in the Order Form.

Derivatives of Customer Data, on strictly anonymized and aggregate basis, generated from Customer’s use of the software shall be used by AI-GUST, to build the underlying model of the SaaS-Platform and to provide you and other customers with improved software. By using the SaaS-platform, you agree to full transfer of ownership on such derivative data. 

The Customer is solely responsible for the accuracy and correctness of Customer Data. AI-GUST shall in no case be responsible for damages or liability resulting from inaccurate or 5incorrect Customer Data inputted in the SaaS-platform. The Customer hereby acknowledges and agrees that the accuracy and quality of the output data is dependent on the accuracy and correctness of the Customer Data. The Customer (and, if applicable, each User) shall bear full responsibility for the use, interpretation or implementation of the output data generated by the usage of the SaaS-platform and AI-GUST cannot be held liable for any damage suffered by the Customer (or, if applicable, the end Users) as a result thereof.

The Customer warrants to AI-GUST that the Customer Data shall not infringe the Intellectual Property Rights or other legal rights of any Third Party and shall not breach applicable law. 9.

AI-GUST exclusively owns and retains all rights, titles, interests in and to all Intellectual Property Rights in or pertaining to its SaaS-platform (including any updates or upgrades thereof and the underlying software, computer programs, platforms, applications, algorithms, software code and methodology pertaining thereto), the Professional Services, the Implementation Services, its website and all the documentation and materials pertaining or relating thereto (including any copies and portions thereof), whether in machine-readable or printed form, including but not limited to (i) all software and materials which are related to the SaaS-platform, the Professional Services, the Implementation Services, its website and (iii) all related technical know-how. The Customer agrees to be bound by and observe the proprietary nature of the SaaS-platform. 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 SaaS-platform, or visible during its operation, or on media or any documentation. The Customer shall incorporate or reproduce such proprietary markings in any permitted back-up or other copies.

AI-GUST does not claim to have any intellectual right, title or interest in any of the images that may be uploaded to the SaaS-platform by the Customer. The Customer and its Users are responsible for all content uploaded to the SaaS-platform.

It is expressly understood, acknowledged and agreed that for any reasonable suggestions, comments and feedback regarding the SaaS-platform, the Customer grants AI-GUST a worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid licence to use such feedback freely for his own purposes.

The SaaS-platform may contain service marks or trademarks of AI-GUST, as well as those of his affiliates or other companies, in the form of words, graphics, and logos. The use of the SaaS-platform by the Customer does not constitute any right or licence for the Customer to use such service marks/trademarks, without the prior written permission of the corresponding service mark/trademark owner. The SaaS-platform is also protected under international copyright laws. The copying, redistribution, use or publication by the Customer of any portion of the SaaS-platform is strictly prohibited. The use of the SaaS-platform does not grant the Customer or the User ownership rights of any kind in the SaaS-platform.

The Customer will be charged a Subscription Fee, as indicated in the Order Form. The Subscription Fee is either a monthly fee, paid by the end of the relevant month and based on the average usage of the SaaS-platform in the past month or a yearly fee, paid upfront and based on the amount of files uploaded in the SaaS-platform at the first day of each Subscription Period. In case of a yearly Subscription Fee, the Order Form shall contain a detailed description of the estimated Customer Data input on which the yearly Subscription Fee is based. Beyond this estimation, AI-GUST deems an error margin of 15% acceptable. Outside this error margin, AI-GUST will charge the Customer pro rata for any excessive input, as indicated in the Order Form and as will reasonably be determined by AI-GUST at that time.

The Subscription Fee will be non-refundable. There will be no refunds or credits for partial years of licence to use the SaaS-platform, account cancellations or refunds for years unused with an open account.

During the term of the Agreement, AI-GUST reserves the right to annually on the first (1^st) of January, revise its pricing, fees, rates and charges on the basis of the Agoria DIGITAL index which is linked to the reference hourly wages in the technological industry published by the employers’ federation Agoria by applying the following formula: p = P0 * [0,2 + 0,8 * (S/S0)] whereby: p = the revised price/fee P0 = the initial price as determined in the Order Form S0 = the national average reference salary in the digital and technological industry as published by Agoria (i.e. Agoria DIGITAL) (hereafter: “Reference Salary”) on the effective date of this Agreement available at www.agoria.be (or, if this index is no longer published, the index replacing it or or failing such index by another index reflecting the increases of labour cost (in the digital or technological industry))

In addition, AI-GUST reserves the right to change the Subscription Fee in its sole discretion at any time. Such price adjustment shall become effective at the start of the next subscription period and AI-GUST shall inform the Customer thereof at least three (3) months prior to the end of the then-current Subscription Period. In the event the Customer does not agree to such price increase, the Customer may terminate the Agreement in accordance with this Agreement.

The Customer must provide AI-GUST with accurate billing information and keep this information up to date.

By subscribing to the SaaS-platform, the Customer gives AI-GUST the right to bill Customer via the payment methods as agreed in the applicable Order Form, for licence fees connected with the SaaS-platform such as renewal fees or fees for Professional Services or Implementation Services. For any change in the Subscription Fee due to requested additional services by the Customer, AI-GUST will automatically charge the Customer’s credit card that 7they provided or bill the Customer via other payment methods for the new rate on the next billing cycle

By subscribing to the SaaS-platform, the Customer gives AI-GUST the right to bill Customer via the payment methods as agreed in the applicable Order Form, for licence fees connected with the SaaS-platform such as renewal fees or fees for Professional Services or Implementation Services. For any change in the Subscription Fee due to requested additional services by the Customer, AI-GUST will automatically charge the Customer’s credit card that 7they provided or bill the Customer via other payment methods for the new rate on the next billing cycle

By subscribing to the SaaS-platform, the Customer gives AI-GUST the right to bill Customer via the payment methods as agreed in the applicable Order Form, for licence fees connected with the SaaS-platform such as renewal fees or fees for Professional Services or Implementation Services. For any change in the Subscription Fee due to requested additional services by the Customer, AI-GUST will automatically charge the Customer’s credit card that 7they provided or bill the Customer via other payment methods for the new rate on the next billing cycle

All undisputed invoices (or parts thereof) must be paid and payment must be received within thirty (30) days after the invoice date. Disputes must be notified by registered mail (containing the reason for such disputes) within ten (10) business days after the invoice date, failure to do so shall result in the invoice being deemed accepted by Customer. In case of non-payment of an invoice, all outstanding invoices, even those not yet due, shall become due by operation of law and without notice of default.

Any amounts of undisputed invoices (or parts thereof) that have not been paid on the due date shall automatically and without notice be subject to a late payment interest equal to the rate applicable pursuant to the Belgian law of 2 august 2002 (as modified from time to time), which interest shall be compounded daily as of the due date until receipt of full payment. In addition, Customer shall pay all costs incurred by AI-GUST, as a result of the (extra)judicial enforcement of the Customer’s payment obligation under this Agreement, with a minimum of 250 EUR If the Customer fails to pay outstanding amounts, AI-GUST can suspend its obligations and Customer’s rights until receipt of payment.

In the event the use of the SaaS-platform, Professional Services or Implementation Services give rise to additional costs and/or expenses for the Customer from Third Parties (including but not limited to software integration costs), such costs are exclusively the Customer’s responsibility and cannot be claimed from AI-GUST.

The Customer will pay any and all applicable international, federal, state, and local sales, use, value-added, excise, duty, and any other taxes, fees, or duties not based on net income of AI-GUST that are assessed on or as a result of this Agreement. Any such taxes, (bank) fees, and duties collected by AI-GUST from the Customer on behalf of a governmental agency or financial institution shall not be considered a part of, a deduction from, or an offset against, payments due to AI-GUST under this Agreement.

All fees payable to AI-GUST under this Agreement shall be paid without the right to set off or counterclaim and free and clear of all deductions or withholdings whatsoever, unless the same are required by law, in which case the Customer undertakes to pay AI-GUST such additional amounts as are necessary in order that the net amounts received by AI-GUST after all deductions and withholdings shall not be less than such payments would have been in the absence of such deductions or withholding. Sums stated to be payable under this Agreement do not include any applicable value added tax or other taxes, which shall be additionally charged to the Customer.

All prices are stated in EUR unless stated otherwise.

Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) may disclose confidential and/or proprietary materials relating to the Disclosing Party’s business (Confidential Information). Each Party hereby undertakes, with respect to the 8Confidential Information (learned during the negotiation and/or performance of the Agreement) to (i) only use it for the performance of the Agreement; (ii) adequately protect and secure it; and (iii) keep it secret and not disclose it, to any person other than with the prior written consent of the Disclosing Party, or its agents, employees, professional advisors, subcontractors or consultants who have a direct “need to know” to such Confidential Information for the sole purposes of the execution of its rights and obligations under the Agreement. The Parties shall ensure that the aforementioned persons are bound by confidentiality obligations which are not less stringent than those set out in these Terms. Each Party shall promptly notify the other Party if it becomes aware of any breach of confidence and shall give the other Party all reasonable assistance in connection therewith.

This clause also implies that the information of different Customers will be treated confidentially by AI-GUST, to the extent applicable.

The provisions of this clause 11, shall not apply to any information which: (i) is published or comes into the public domain other than by a breach of these Terms; (ii) can be shown to have been known by the Receiving Party before disclosure by the Disclosing Party; (iii) is lawfully obtained from a third party; (iv) can be shown to have been created by the Receiving Party independently of the disclosure under these Terms; or (v) is required to be disclosed by any law or regulation or by any judicial or governmental order or request.

The provisions of this clause 11 shall continue in force during [5] years following the termination of the Agreement.

Each Party shall comply with the applicable Data Protection Laws. Customer represents and warrants to AI-GUST that it has the legal right to disclose any personal data that it makes available to AI-GUST under or in connection with this Agreement. AI-GUST shall process such personal data (including but not restricted to Customer Data) in accordance with the Data Processing Agreement (“DPA”), as set forth in Annex 2 to these Terms.

If any changes or prospective changes to the Data Protection Laws result or will result in one or both Parties not complying with the Data Protection Laws in relation to processing of personal data carried out under this Agreement, then the Parties shall use their best endeavours promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance.

Insofar and to the fullest extent permitted under applicable law, the SaaS-platform is provided “as-is,” “as available”. AI-GUST does not make any other representations or warranties, express or implied, concerning any matter under this Agreement and, to the maximum extent permitted by applicable law, AI-GUST 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.

Without prejudice to the foregoing, the Customer understands and agrees that the use of the SaaS-platform is at the Customer’s own risk and that the Customer will be solely responsible for its use thereof and any damages to the Customer.

Limitation of Liability. The limitations and exclusions of liability set out in this clause and elsewhere in the Agreement govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement. Subject to the maximum extent permitted by applicable law, AI-GUST’s liability under this Agreement in respect of each event and each calendar year (or series of connected events) shall not exceed the Subscription Fees paid by the Customer to AI-GUST under the present Agreement for a period of one (1) year prior to the date of the event (or last of the series of connected events) giving rise to the claim.

Force Majeure. Neither Party shall be liable to the other Party in respect of any losses arising out of a force majeure event, except otherwise provided in the Agreement. A force majeure event means an event, or a series of related events, that is outside the reasonable control of the Party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any Third Party, social strikes or actions, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars). For the avoidance of doubt, a temporary and short unavailability of the SaaS-Platform will not lead to any liability whatsoever on behalf of AI-GUST.

Hardship. In the event of changed circumstances, the debtor may request renegotiation of the Agreement for a maximum period of 14 calendar days if i) the changed circumstances excessively interfere with the performance of the Agreement, in a way that normal performance thereof can no longer reasonably be required, ii) the change was unforeseeable at the time of Agreement conclusion, iii) the change is not attributable to the debtor, iv) the debtor has not accepted the risk for its own account and v) the law does not exclude this possibility. Changed circumstances include, among others, a change in legislation or established case law, an increase in production costs, an increase in labour costs, an increase in energy prices.

Indirect Liability. Under no circumstances shall AI-GUST be liable to the Customer for any indirect, punitive, special consequential or similar damages (including damages for loss of profit, anticipated savings, lost revenue or income, loss of use or production, loss of business, loss or corruption of data, loss of database or software, loss of customers and contracts, loss of goodwill, the cost of procuring replacement goods or services, and reputational damage) whether arising from negligence, breach of contract or of statutory 10duty or otherwise howsoever, and Third Parties’ claims. Each Party shall have the duty to mitigate damages.

AI-GUST shall defend and indemnify Customer against any founded and well-substantiated claims brought by Third Parties to the extent such claim is based on an infringement of the Intellectual Property Rights of such Third Party by the SaaS-platform and excluding any claims resulting from (i) Customer’s unauthorised use of the SaaS-platform; (ii) Customer’s or any Third Party’s modification of the SaaS-platform; and/or (iii) Customer’s unauthorised use of Third Party Materials.

Such indemnity obligation shall be conditional upon the following: (i) AI-GUST is given prompt written notice of any such claim; (ii) AI-GUST is granted sole control of the defence and settlement of such a claim; (iii) upon AI-GUST’s request, Customer fully cooperates with AI-GUST in the defence and settlement of such a claim, at AI-GUST’s expense; and (iv) AI-GUST makes no admission as to AI-GUST’s liability in respect of such a claim, nor does Customer agree to any settlement in respect of such a claim without AI-GUST’s prior written consent. Provided these conditions are met, AI-GUST shall indemnify Customer for the damages and costs incurred by Customer as a result of such a claim, as awarded by a competent court of final instance, or as agreed to by AI-GUST pursuant to a settlement agreement.

In the event the SaaS-platform, in AI-GUST’s reasonable opinion, is likely to or become the subject of a Third-Party infringement claim, AI-GUST shall have the right, at its sole option and expense to: (i) modify the ((allegedly) infringing part of the) SaaS-platform so that it becomes non-infringing while preserving equivalent functionality; (ii) obtain for Customer a licence to continue using the SaaS-platform in accordance with this Agreement; or (iii) terminate the relevant Agreement and pay to Customer an amount equal to a pro rata portion of the Subscription Fee paid to AI-GUST hereunder for that portion of the SaaS-platform which is the subject of such infringement.

The foregoing states the entire liability and obligation of AI-GUST and the sole remedy of Customer with respect to any infringement or alleged infringement of any Intellectual Property Rights caused by the SaaS-platform or any part thereof.

Customer shall indemnify, defend and hold harmless AI-GUST, its affiliates, and its officers, directors, employees and agents from and against any loss, expense, cost (including reasonable attorney’s fees), liability, damage or claim by a Third Party made against any of said indemnitees to the extent arising in connection with Customer’s (including, without limitation, any of its affiliates and its or their officers, directors, employees or agents) use of the SaaS-platform, its infringement of any Third Party Intellectual Property Rights or Third Party Materials, gross negligence or willful misconduct, fraud, and breach of any representation or warranty made under this Agreement.

Any audit with respect to compliance with these Terms by Customer and, in particular, the monitoring of the use of the SaaS-platform, will be executed remotely through the SaaS-platform. This monitoring is mainly focused on, but not strictly limited to, detecting overuse of the licence and the detection of the unreasonable use of the storage capacity and API’s of the SaaS-platform.

The Customer’s Subscription shall commence on the effective date as specified in the Order Form and shall continue for a duration of one (1) year in case of a yearly Subscription or one (1) month in case of a monthly Subscription. After the first Subscription Period, the Customer’s Subscription shall automatically and tacitly renew for consecutive periods of respectively one (1) year or one (1) month each, unless either Party notifies the other Party in writing of its intent to end the Subscription (and thus the Agreement) at least, respectively, fifteen (15) (for the monthly Subscription) or thirty (30) (for the yearly Subscription) days’ notice, or unless there is a termination for cause in accordance with this clause 17. Any termination at any given time will take effect immediately, unless mutually agreed otherwise. For the avoidance of doubt, in such case, there will be no refund of the Subscription Fee 

Termination for cause by AI-GUST. AI-GUST may terminate the Agreement or suspend access to the SaaS-platform, Professional Services, Implementation Services or any other services granted by AI-GUST, by written notice to the Customer if the Customer fails to pay AI-GUST the Subscription Fee before the expiration date or violates these Terms (or other terms of the Agreement) and the Customer fails to cure such failure to pay or breach within 15 days from the date of such notice. The Customer acknowledges and agrees that any use of the SaaS-platform outside the scope of the licence as set forth in the Agreement, unless such use has been expressly approved in writing by a duly authorised representative of AI-GUST, the Misuse of system resources or when AI-GUST reasonably suspects that the Customer is using the SaaS-platform to break the law or infringe Third Party rights, shall entitle AI-GUST to immediately terminate - or alternatively, at AI-GUST’s discretion, suspend - one or more of the licences granted under the Terms for material breach by the Customer, without any formalities being required and without prejudice to any other right or remedy available to AI-GUST pursuant to these Terms or under applicable law.

Termination for cause by a Party. Either Party may terminate the Agreement by written notice to the other, effective as of the date of delivery of such notice, if the other Party becomes the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding or otherwise liquidates or ceases to do business. 

Consequences of termination. The Customer understands that if the Customer terminates this Agreement, the Customer will lose access to the SaaS-platform and any Customer Data the Customer has provided thereon. Upon termination of the Agreement, the Customer shall 12promptly pay AI-GUST any fees due pursuant to the Agreement, up to and including the date of termination. The Customer understands that AI-GUST is not required to provide him with copies of such Customer Data nor continue to maintain copies of such Customer Data on the SaaS-platform. AI-GUST will not retain Customer Data beyond a term of thirty (30) days after termination of the Agreement. If requested by the Customer upon termination of this Agreement, AI-GUST shall make it possible for the Customer to download all Customer Data stored in the SaaS-platform on an external hard disk or on any other digital means as provided by the Customer

Parties shall exercise reasonably good faith efforts to resolve any dispute, controversy or claim arising in connection with this Agreement. Whenever necessary or opportune the Parties shall escalate the dispute to the next business level. For the avoidance of doubt, the dispute resolution shall have no impact on the Parties’ termination rights and the Parties’ other rights under the Agreement.

When Parties have not been able to resolve their dispute amicably after 30 days, the legal controversy or legal claim arising out of or relating to the Terms and/or the SaaS-platform shall be settled by the competent Belgian courts in accordance with Belgian law (preferred clause).

Any cause of action by the Customer with respect to the SaaS-platform, must be instituted within one year after the cause of action arose or be forever waived and barred.

Non-solicitation During the Agreement and until 12 months after termination, the Customer agrees not to hire any staff from AI-GUST directly or indirectly as an employee or on any other basis, nor will the Customer attempt to do so. In the context of this clause, the term “staff” means all personnel, employees or other persons, such as freelancers or subcontractors

Severability. Should any part of the Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. To the extent that any content in the SaaS-platform conflicts or is inconsistent with the Agreement, the Agreement shall take precedence.

No Waiver. AI-GUST’s failure to enforce any provision of the Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.

Survival. The rights of AI-GUST under the Agreement shall survive the termination of the Agreement.

Non-Assignment. The Customer shall not assign or otherwise transfer any of its rights or obligations under this Agreement without AI-GUST’s prior written consent. AI-GUST’s consent should be requested by registered letter, disclosing the identity of the prospective transferee. Subject to any restrictions on assignment herein contained, the provisions of the 13Agreement shall inure to the benefit of and shall be binding upon the Parties hereto and their respective heirs, legal representatives, successors and assignees. Amendments. The Agreement may be modified or amended only by written agreement executed by a duly authorised representative of both Parties hereto.

Publicity. Unless agreed otherwise in writing, AI-GUST shall have the right to use any trademarks or other marks of Customer (including Customer’s corporate name) for marketing or promotion purposes, such as (but not limited hereto) Customer references on AI-GUST’s website, announcement of a new Customer and sales presentations.

Applicable law and competent courts. As applicable, the Agreement shall be governed by and construed in accordance with the laws of Belgium. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement. The Parties hereto submit to the exclusive jurisdiction of the competent courts of Leuven, department of Leuven.