Terms and conditions
1. Applicability and Validity of Offers
1.1. These terms and conditions (the “Terms”), apply to all Offers, all use by the Client of the Solution and all Services provided by Cyfora, unless expressly agreed otherwise. The Client hereby waives its own general or special terms and conditions even where it is stated therein that only those conditions apply and even if such terms and conditions were not protested by Cyfora.
1.2. By executing an Offer referring to these Terms, or by using the Solution, the Client 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 Client accepting these Terms on behalf of the Client, you warrant that you have the authority to bind the Client to the Agreement.
1.3. Unless otherwise stated in the Offer, Offers are valid for thirty (30) days.
2. Definitions
2.1. Capitalized terms shall have the meaning ascribed to them below:
“Agreement”: the contractual relation between Cyfora and the Client, including these Terms, all Offers and any annexes or schedules thereto.
“Cyfora”: Cyfora BV, a limited liability company with office at Antwerpse Steenweg 19, 9080 Lochristi, Ghent, Belgium, and with company number 1027.805.070 (RLE Ghent (division Ghent)).
“Client”: the legal entity identified in the Offer.
“Deliverables” means the client-specific tangible output of the Services, such as reports or presentations, as specified in the Offer (excluding any background Intellectual Property Rights of Cyfora).
“Intellectual Property Rights”: (non-exhaustive list) patents, trademarks, copyrights, rights in software programs (both in object code and source code), design rights, database rights, proprietary rights in know- how and all rights or forms of protection of a similar nature as the afore listed which may subsist anywhere in the world and any existing or future applications for or registrations of such rights.
“Offer”: a written or electronic document signed between both parties, regardless of its name (offer, quotation, order form, etc.), indicating the nature, number and other specifics of the license to the Solution and Deliverables and Services ordered by the Client.
“Services”: the professional services (such as set-up, configuration, maintenance, support, training, consultancy or any other professional services) related to the Solution provided by Cyfora as described in the Offer or as otherwise mutually agreed in writing.
“Solution”: the proprietary security software as a service solution, developed and owned by Cyfora serving as a centralized platform for accessing and managing test, audits and other services reports, including the underlying software, computer programs, platforms, applications, all algorithms, (source or object) code and methodology pertaining thereto, together with any APIs, both as may be further described in the Offer.
3. License to use the Solution
3.1. Subject to the Agreement and timely payment of applicable license fees, Cyfora grants the Client (and to those affiliates as indicated in the Offer) a personal, restricted, non-exclusive, non-transferrable and non- assignable license to access and use the Solution during the subscription term (as specified in the Offer), for its internal business purposes and in accordance with the documentation (as made available by Cyfora from time to time). The Customer remains responsible for the actions and/or omissions of its affiliates.
3.2. This license is limited to the scope (including the relevant modules, functionalities and volume limitations, if any) as specified in the Offer and only includes access to such features and functionalities as set out in and as available on the date of the Offer. Cyfora may make future features, functionalities or subscription packages of the Solution subject to payment of additional license fee and/or additional conditions, in which event a new Offer shall be concluded.
3.3. Use of the Solution is subject to a fair usage principle. The Client may only use the Solution in a commercially reasonable manner consistent with its intended purpose. Usage may be limited based on factors such as the number of users, data volume, hosting capacity, and system performance. Excessive or improper use, including activities causing undue system load, additional hosting fees, or misuse of the Platform, may result in suspension, restriction of access, or additional charges. Cyfora will notify the Client where reasonably possible before taking such measures.
3.4. Client shall not (directly or indirectly through the actions of any of its affiliates, employees, representatives, subcontractors, or in general, any third party): (i) sub-license, assign, distribute, transfer, sell, lease, or otherwise commercialize, deal in or encumber its rights to the Solution; (ii) permit any unauthorized person to access the Solution; (iii) use the Solution to provide services to third parties; (iv) (attempt to) copy, modify, duplicate, reverse engineer, reverse compile, disassemble or otherwise reproduce or create derivative works based on the Solution the underlying ideas, user interface techniques, algorithms, models, or methodologies; (v) use the Solution other than in accordance with the Agreement, its intended purpose and/or applicable laws; (vi) use the Solution in any computer environment not expressly permitted under the Agreement; and/or (vii) work around any technical limitation in the Solution.
4. Accounts
4.1. The Client acknowledges, that one unique user account must be set-up for each individual user accessing the Solution. The Solution may only be used by the users in accordance with the applicable user roles for each user profile. The Customer shall remain responsible for their users’ compliance with these Terms.
5. Services
5.1. During the term of this Agreement, Cyfora shall provide such Services as set forth in the Offer or as otherwise agreed in writing between the Parties. Cyfora shall exercise reasonable care and skill in performing the Services. The obligation to perform the Services shall be regarded as an obligations of means and shall not bind Cyfora to achieve a predefined result. The Services shall be performed in complete independence and Cyfora shall plan its activities as it sees fit. Cyfora shall be free to subcontract the performance of this Agreement in whole or in part to its affiliates and third party service providers, provided thar Cyfora shall remain responsible for such parties. Any timelines included in an Offer or otherwise specified are indicative only, unless expressly agreed otherwise.
5.2. The Client agrees that in order for Cyfora to effectively perform the Services in a proper, timely and efficient manner, the Client must cooperate in good faith with Cyfora, including by providing timely and appropriate access to the Client’s facilities, personnel, equipment, resources and systems, and any relevant information (to be accurate and complete) as necessary to execute the Services and adhere to any other dependencies or requirements as set out in the relevant Offer. Cyfora shall not be responsible or held liable for any delay or failure in the provision of the Services resulting from the Client’s failure to cooperate in good faith. The Client shall ensure that during the execution of the Services, one or more technical Single Points of Contacts for coordination shall remain available to provide assistance and answer questions from Cyfora.
5.3. The Services and/or deliverables (if any) resulting from the Services (such as reports, etc.) provided by Cyfora shall be deemed accepted upon delivery.
6. Support
6.1. During the term of the Agreement, Cyfora will provide maintenance (such as minor software updates) and support services as set forth in the Agreement. The Client acknowledges that to ensure a correct functioning of the Solution, maintenance services are needed from time to time. Cyfora shall carry out such maintenance services at its sole discretion and shall use all reasonable endeavors to minimize the impact on the Client. Cyfora reserves the right to make, at its own discretion, operational or technical changes and updates to the Solution, and to modify, add or remove certain functionalities from time to time, provided Cyfora shall not change any material functionalities of the Solution without prior notification to the Client.
6.2. The Client may notify Cyfora of an incident related to the Solution resulting it to not perform in accordance with its functional description. Such notifications must be made via the applicable support channels as communicated from time to time. Upon notification, Cyfora shall endeavor to provide a resolution or workaround as soon as commercially possible. Such support is provided during Cyfora’s normal business hours. Cyfora makes no warranty whatsoever to provide a resolution or workaround for each specific problem that could arise or that the Solution shall be completely free of bugs or defects.
7. Client Data
7.1. All Client data shall remain the property of the Client. For a proper functioning of the Solution, sufficient and accurate Client data must be provided or inputted to the Solution. The Client hereby grants Cyfora (and its (hosting) service providers) the right to use the Client data as necessary for the execution of this Agreement (including to continuously improve the Solution and Services).
7.2. The Client warrants that the Client data, will not infringe the (intellectual property) rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law. The Client shall solely be liable and responsible for the accuracy and correctness of the Client data.
7.3. The Client is solely responsible (i) for preserving the necessary back-ups and of (critical) data and equipment supplied to Cyfora and for implementing effective disaster recovery procedures for all systems, software and resources that are in scope of the cooperation, both prior to the commencement of and during the execution of the Services; and (ii) for informing staff and users of any software, products or systems that may become unavailable during the execution of the Services.
8. Third party software
8.1. In order to use the Solution and Services, the use of certain third party software may be required. In that 2
case, the Client must, at its own expense, provide the necessary software and obtain licenses for it (as indicated from time to time by Cyfora and/or as described in the relevant Offer) by purchasing a license for such software (i) directly from the relevant third-party software provider; (ii) from a third-party vendor; or (iii) from Cyfora (if possible) as further clarified in the Offer. The Client must have sufficient licenses to such third party software to support the maximum number of users who have access to or can use such software throughout the term of the Agreement.
8.2. The right to use the third party software is subject to a separate legal agreement between the Client and the relevant third party (supplier), as applicable, in the case of clause 8.1 (i) and (ii). In the case of clause 8.1 (iii), the use of third party software is subject to the third-party terms and conditions as provided by Cyfora to the Client (which may be changed from time to time by the third party) and which form a binding agreement between the Client and the third-party software provider, which is a third-party beneficiary of this Agreement. Cyfora shall not be liable for any changes to or termination of any such third-party agreement, or for any other loss attributable to such third-party supplier, and the Client acknowledges that Cyfora's obligations (including warranties, indemnification, etc.) set forth in this Agreement shall not apply to such third-party software and that Cyfora is not responsible for the interaction between the Solution or Client resources and any third-party software, products, or systems, the availability of such third party software, or the accuracy of any results arising from their use.
8.3. If third party software is purchased through Cyfora, Cyfora grants the Client, during the period described in the Offer, subject to the timely payment of the relevant fees set out in the Offer, a personal, limited, revocable, non-exclusive, non-sublicensable, and non-transferable license to use such third party software in accordance with the third-party software provider's terms and conditions for the Client's internal business purposes. Usage of such third party software is also subject to the usage restrictions set out in clause 3.
9. Third party integrations, infrastructure and hosting
9.1. If applicable, the Solution may interact with third party systems (through APIs or similar integrations), such as systems and software licensed or owned by the Client or other software, tools, systems, applications, and resources used in the execution of the Services). The Client remains responsible to scope the environments and boundaries of the connection between its (licensed) resources and the Solution (including “do-not- touch” zones. If and to the extent agreed in the relevant Offer, Cyfora shall provide API endpoints to enable interaction between the Solution, used resources and the Client’s systems (and/or third party systems), in accordance with the specifications set forth therein. In such an event, the Client acknowledges that such third party software shall exclusively be governed by the service offering of the applicable third party software vendor and that any commitments or obligations of Cyfora included in this Agreement shall not apply to such third party software or used resources. Cyfora shall not be responsible for any defect in the Solution or client resources that is caused by (an integration with) a third party system or platform. Cyfora does not ensure that the Solution remains at all times compatible and can interface and interwork with any applicable third party systems or client resources. It remains the Client’s sole responsibility to maintain all necessary rights to use the third party systems and to connect the Solution and used resources with such third party systems via API’s, unless expressly agreed otherwise in the Offer.
9.2. If due to any changes in third party systems, an API or the Solution needs to be updated, Cyfora will make every effort to support adjustments to API integrations, in such event, the Parties shall agree on the scope and modalities of such update in writing. If no (third party) API is readily available for a specific third party system, the Client may request and Cyfora may, in its sole discretion, decide to develop an API for such third party system and the Parties shall mutually agree on the scope, costs and other specifics in an Offer.
9.3. The Solution will be hosted in the datacenters of Cyfora’s hosting partner and such hosting is subject to the applicable service offering of the hosting partner. Cyfora does not warrant that the Solution shall be available on an uninterrupted basis. The Solution may be unavailable during periods of planned or unplanned maintenance undertaken by Cyfora or the hosting partner.
9.4. The Client is responsible to provide the necessary infrastructure, such as hardware, networks, operating systems, and/or other (third party) software and equipment (as may be further specified in the Offer or communicated from time to time by Cyfora) as necessary to use the Solution (the “Infrastructure”). The Client agrees that it is solely responsible, at its own costs, to procure sufficient access or usage rights to the Infrastructure for the Client and Cyfora as necessary for the execution of the Agreement. Cyfora shall not be responsible for any unavailability of the Solution due to third party Infrastructure.
10. Intellectual Property Rights
10.1. Cyfora is and remains the sole and exclusive proprietary owner of all Intellectual Property Rights related to the Solution and the Services (including any software patches, enhancements, improvements or amendments thereto, any updates, new releases or modifications in respect thereof and any derivatives based thereon) and any other Intellectual Property Rights that were already in Cyfora’s possession prior to the Effective Date of the Agreement or are independently developed from the execution of the Agreement (hereinafter together “Cyfora IP”). Nothing in this Agreement shall convey any title, proprietary rights or Intellectual Property Rights in or over the Cyfora IP to the Client or any third party. Except for the limited license granted pursuant to this Agreement, no other rights in respect of the Cyfora IP shall be granted or transferred to Client in connection with this Agreement.
10.2. Subject to the timely payment of the applicable fees hereunder, the Deliverables, expressly excluding any Cyfora IP that may be incorporated therein, shall be owned by the Client. To the extent Cyfora IP is incorporated in the Deliverables, Cyfora grants the Client a personal, restricted, non-exclusive, non- assignable, non-transferable license, without the right to sublicense, to use the Cyfora IP, for the Client’s internal business purposes solely in conjunction with and as incorporated in the Deliverables.
10.3. Cyfora shall be entitled to use the ideas, concepts, methods, models, processes and know-how developed or created by Cyfora in the execution of this Agreement for itself or others to develop similar or other services or products, unless this would result in a breach of Cyfora’s confidentiality undertakings.
11. Confidentiality
11.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose confidential and/or proprietary materials, whether in written, oral, electronic or other form, relating to the Disclosing Party’s business (“Confidential Information”). Each party hereby undertakes to keep the Confidential Information of the Disclosing Party secret and not to disclose it, in whole or in part, to any person other than (i) with the prior written consent of the Disclosing Party, or (ii) its employees, directors and subcontractors who have a direct need to know to such Confidential Information for the execution of the Agreement. The Parties shall implement appropriate measures (at least as stringent as those to protect their own Confidential Information) to protect the Confidential Information of the Disclosing Party. The Receiving Party shall ensure that these persons are bound by confidentiality obligations which are not less stringent than those set out in the Agreement.
11.2. The provisions of this clause shall not apply to any information that: (i) is published or comes into the public domain other than by a breach of the Agreement; (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; or (iv) can be shown to have been created by the Receiving Party independently of the disclosure under this Agreement. The restrictions in this clause do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation or by any judicial or governmental order or request. The provisions of this clause shall commence as of the start of negotiations and shall continue in force during five (5) years following the termination or expiry of the Agreement (unless such Confidential Information is protected under trade secret or Intellectual Property laws, in which event the obligations of this clause shall remain in force for as long as such Confidential Information is protected under such laws).
12. Privacy and Data Protection
12.1. Each Party shall comply with its obligations under the applicable data protection legislation when processing personal data.
12.2. If and to the extent Cyfora processes personal data on behalf of the Client, Cyfora shall do so in accordance with the data processing agreement as concluded between the Parties and as attached in Annex 1. The Client warrants that it has the legal right to disclose any personal data made available under or in connection with the Agreement and that it shall inform all data subjects in accordance with applicable law about the processing activities taking place under this Agreement.
13. AI
13.1. The usage and deployment of AI systems shall at all times be executed in a responsible manner in accordance with industry ethical and human-centric standards, taking into account their intended purpose as well as the generally acknowledged state of the art on AI and AI-related technologies. The Client shall take appropriate measures to ensure a sufficient level of AI literacy, skills, knowledge and understanding of their staff and other persons involved in the operation and use of AI systems on their behalf, allowing them to use and deploy AI systems in an informed and responsible manner. Such measures shall take into account (i) the individual’s knowledge, experience and education; (ii) the specific context wherein the AI systems are to be used; and (iii) the persons or groups of persons on/by whom the AI systems are to be used.
14. Security
14.1. The Parties shall implement safety and security systems, policies and procedures, in accordance with industry best practices, ensuring an adequate protection of all software, systems and devices used in the execution of this Agreement and under its control. The foregoing shall in any case include an incident management process and technical and physical safeguards designed to protect data in its possession from unauthorized access, accidental loss and unauthorized alteration, and which shall enable the Parties to discover and assess security incidents and to take appropriate action in relation to those security incidents.
14.2. The Parties shall notify each other immediately if they become aware of any security incident, including a plan for remediation and respond without delay to all queries and requests for information from the other
Party about the security, in particular bearing in mind the extent of any reporting obligations the Parties may have under applicable laws. In the event security incidents are detected or discovered, each Party shall reasonably assist the other Party upon its request, at such requesting Party’s cost, to (i) mitigate the security incident and any losses or damages, and (ii) restore the affected software, systems and materials to their original operating and security efficiency.
15. Fees and Payment Terms
15.1. The Client shall pay the license and service fees in the amounts and on the times set forth in the Offer. Unless expressly agreed otherwise the license fees shall be payable yearly upfront. Services shall be deducted from pre-paid service retainers on the basis of hours effectively performed, unless explicitly agreed otherwise in writing. Pre-paid service retainers cover a pre-paid number of manhours or services days as specified in the Offer and can be used for the Services as agreed in the relevant Offer. Such pre-paid service credits expire [twenty-four (24) months] after the purchase date. In any event, pre-paid services days will be scheduled upon mutual agreement, subject to Cyfora’s availability and a timely request of the Client. In the event no services retainer is purchased, services shall be charged monthly in arrears on a time and material basis at Cyfora’s then-current rates, which will be provided upon request. Any fee estimations (in an Offer, or otherwise), are indicative and do not limit Cyfora to charge all Services actually performed. Unless otherwise agreed in writing a full services day will constitute eight (8) manhours to be executed during Cyfora’s normal business hours.
15.2. All undisputed invoices (or parts thereof) must be paid within thirty (30) days after the invoice date. Disputes must be notified (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 the Client. All amounts due hereunder are payable in euro (unless agreed otherwise) and are exclusive of VAT, costs and expenses which shall be charged separately by Cyfora.
15.3. Any amounts of undisputed invoices (or parts thereof) that have not been paid on the due date shall automatically be subject to a late payment interest equal to the rate applicable pursuant to the law of 2 august 2002, which interest shall be compounded daily as of the due date until receipt of full payment. In addition, the Client shall pay all costs incurred by Cyfora, as a result of the (extra)judicial enforcement of the Client’s payment obligations, with a minimum of one hundred fifty euro (€150). Additionally, Cyfora shall be entitled to suspend the Client’s access to the Solution until receipt of all overdue amounts.
15.4. All amounts due hereunder shall be paid without the right to set off or counterclaim and free and clear of all deductions or withholdings whatsoever, unless the same are required by law, in which case the Client undertakes to pay Cyfora such additional amounts as are necessary in order that the net amounts received by Cyfora after all deductions and withholdings shall not be less than such payments would have been in the absence of such deductions or withholding. All fees paid by the Client are final and non-refundable.
15.5. Cyfora reserves the right to verify whether the license fee correctly reflects the Client’s usage of the Solution.
15.6. Each contract year Cyfora shall have the right to increase the fees due under the Agreement on the first (1st) of January by using the following formula: P = P0 x [0.2 + 0.8 x (S/S0)], whereby: "P" stands for the revised price; "P0" stands for the price on the effective date of the relevant Offer; "S0" shall be the national average reference salary as published by Agoria (i.e. Agoria DIGITAL) ("Reference Salary") on the effective date of the Offer available at www.agoria.be (or, if this index is no longer published, the index replacing); "S" shall be the Reference Salary at the time of the price revision.
16. Warranty and Liability
16.1. Except to the extent otherwise provided in this Agreement, the Solution, the Services and Deliverables are provided “as is”. Cyfora does not make any other representations or warranties, express or implied, concerning any matter under this Agreement, including (without limitation) any implied warranties of accuracy or completeness of data, fitness for a particular purpose, merchantability, or non-infringement.
16.2. The Client understands that the Solution (i) is only intended to be used as a tool to facilitate the Client’s internal business operations and decision-making; and (ii) may provide the Client advice and recommendations, but that Cyfora shall not be liable for Client’s or its users’ implementation or interpretation of such advice and recommendations nor for any decision based on such output. Any analyzations and interpretations of and any decisions taken based on the output generated by the usage of the Solution or Services, should be executed by a trained and experienced user.
16.3. While every effort will be made to minimize foreseeable risks and Cyfora will endeavor not to change or affect any Client resources, the Client acknowledges that, given the current stand of technique: (i) the absolute safety, and unforeseen impacts on the Client resources or data integrity as a result of the executed Services can never be fully guaranteed; and (ii) with respect to penetration testing, security audits, vulnerability assessment and similar services, Cyfora cannot guarantee that all vulnerabilities or security weaknesses will be identified.
16.4. The Client acknowledges that: (i) it is the Client’s sole responsibility to determine whether any vulnerabilities, data breaches or incidents discovered require notification to competent authorities or affected parties under applicable laws and regulations and to execute such notifications (Cyfora will provide reasonable assistance in such event and reserves the right to charge such assistance at its then-current rates); (ii) the Client is solely responsible for retaining copies of any audit deliverables, reports, or other outcomes provided as part of or uploaded in the Services; and (iii) the Client understands and accepts that security assessment services inherently involve certain risks, which may include, without limitation (a) system downtime or performance degradation of Client resources, (b) data corruption or loss, (c) triggering of defensive mechanisms (e.g., firewalls, IDS/IPS), and (d) exposure of sensitive data during testing. The Client expressly accepts these risks and agrees that Cyfora shall not be liable for any such consequences arising in the normal and good faith execution of the Services. The Client will not make any claim against Cyfora for lost data, re-run time, inaccurate output, work delays, loss of profits, or other damages resulting from the tests or otherwise caused by tools or exploits executed as part of the testing Services.
16.5. Subject to the maximum extent permitted under applicable law, Cyfora’s liability under this Agreement shall per event (or series of connected events) and in the annual aggregate per contract year not exceed an amount equal to all fees paid hereunder during such contract year.
16.6. Subject to the maximum extent permitted under applicable law, under no circumstances shall Cyfora be liable for any indirect, punitive, special, consequential or similar damages (including damages for loss of profit, lost revenue, loss of business, loss of corruption of data, loss of clients and contracts, loss of goodwill, the cost of procuring replacement goods or services, and reputational damage) whether arising from negligence, breach of contract or of statutory duty or otherwise howsoever.
16.7. Cyfora bears no responsibility or liability for damages caused by (defects in) systems, actions or inactions of the Client or third parties. Under no circumstances shall Cyfora be liable for any damage resulting from (incorrect and/or incomplete) information, data or other materials provided or transmitted by the Client to Cyfora and/or its appointees, Users or subcontractors.
16.8. To the maximum extent permitted under applicable law, the Client agrees, and accepts, not to hold the advisers, agents, contractors, directors, employees, representatives, and subcontractors of Cyfora personally liable for or in connection with the Agreement. Any liability claim for or in connection with the Agreement (including any extra-contractual liability claim) shall be brought by the Client exclusively against Cyfora.
16.9. The right to claim damages for defaults attributable to a Party forfeits irrevocably twelve (12) months after the occurrence of the alleged default.
17. Term and termination
17.1. The Agreement shall commence on the date specified in the Offer and shall continue in effect for the duration of the initial subscription term as specified in the Offer (the “Initial Subscription Term”). Upon expiry of the Initial Subscription Term, the subscription term shall be automatically renewed subsequent periods of one (1) year (each a “Renewal Subscription Term”), unless either party provides the other party with written notice of its intention to not renew at least three (3) months prior to the end of the Initial Subscription Term or a Renewal Subscription Term.
17.2. Either party may immediately terminate (or Cyfora may alternatively suspend) the whole or any portion of the Agreement without any judicial intervention, without being liable for compensation and without prejudice to its rights to damages and any other rights, remedies and/or claim to which it may be entitled by law, upon providing the other party with written notice of termination if (i) the other party performs a material breach to any provision of the Agreement and fails to cure such material breach within thirty (30) calendar days after receipt of written notice of the material breach, (ii) the other party becomes insolvent, is subject to voluntary or involuntary bankruptcy, insolvency or similar proceeding or otherwise liquidates or ceases to do business, or (iii) the other party breaches its obligations under the provisions regarding the license, Intellectual Property Rights and confidentiality.
17.3. Upon expiration or termination of the Agreement, for any reason, and unless otherwise agreed between the parties: (i) all licenses granted hereunder shall cease; (ii) the Client shall immediately pay any outstanding amounts to Cyfora up to the date of termination; and (iii) each Party shall return, within a reasonable time of such termination or expiration all Confidential Information of the other Party (or alternatively destroy any copies thereof and confirm in writing that such copies have been destroyed). The provisions of the Agreement that are expressly or implicitly intended to survive termination, shall survive termination.
18. Miscellaneous
18.1. Entire agreement: this Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior oral or written agreements and understandings between the parties relating to the subject matter hereof.
18.2. Severability: if any provision of this Agreement is held to be unenforceable, the other provisions shall nevertheless continue in full force and effect. Each party shall use its best efforts to immediately negotiate in good faith a valid replacement provision with an equal or similar economic effect.
18.3. Waiver: This Agreement may be waived only by a written document signed by the party entitled to the benefits of such waiver. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given and shall not constitute a continuing waiver or consent.
18.4. Non-compete and non-solicitation: During the term of the Agreement and until twelve (12) months after termination, the Client agrees not (i) to hire or solicit any staff from Cyfora directly or indirectly as an employee or on any other basis; and/or (ii) directly or indirectly, in Europe, the US or any other country or region where Cyfora is active, to solicit or entice away, any of Cyfora’s customers or any other contracting party or develop or create any products, solutions, applications or platforms for exploitation or market any services which are similar or identical to or (in)directly compete with Cyfora’s services or business activities, nor will the Client attempt to do so. In the context of this article, the term “staff” means all personnel or other persons engaged by Cyfora, such as freelancers or subcontractors. Should the Client act in breach of this clause, the Client will be liable to pay: (i) an amount equal to twelve (12) times the monthly gross income of the staff member concerned per breach of clause 17.4 (i); or (ii) a lump sum of fifty thousand euro (€50,000) per breach of clause 17.4 (ii), without prejudice to Cyfora’s right to claim additional damages, if it can establish that it has incurred higher damages. The Parties acknowledge that the provisions of this clause are reasonable and necessary to protect the legitimate interests of Cyfora and that if any provision of this clause would exceed the limitations imposed by law, the Parties shall be deemed to have agreed to such provisions that conform with the maximum permitted by law.
18.5. Notices: With the exception of notices of default or termination, any notice required to be served by the Agreement shall in first instance be given by electronic mail to the email addresses indicated in the Offer (or such other email addresses as notified by either Party). All notices given by electronic mail, shall only be valid in case confirmation of receipt was expressly given from the receiving Party within five (5) business days. In case no confirmation of receipt was given by the receiving Party within said period, or for notices of default or termination, all notices can be served by personal delivery or registered letter.
18.6. Publicity: Cyfora shall have the right to use any trademarks or other marks of Client (including Client’s corporate name) for marketing or promotion purposes, such as (but not limited hereto) client references on Cyfora’s website, announcement of a new Client and sales presentations.
18.7. Independence: the relationship between the parties is that of independent contractors.
18.8. Force Majeure: neither party will be responsible or liable for any failure or delay in the performance of its (non-monetary) obligations under the Agreement arising out of or caused by force majeure (including power failures, labor actions, changes to the law, embargo, failures in goods, software or materials of third parties, government measures, disruption of internet, data network or telecommunication facilities or servers, cyber- attacks, virus or other infections and electricity outages). If the delay in performance is likely to extend for a period of ninety (90) days or more, the Parties shall have the right to terminate the Agreement.
18.9. Non-Assignment: the Client shall not assign or otherwise transfer any of its rights or obligations under this Agreement without Cyfora’s prior written consent.
18.10. Conflict –If there is a conflict between these Terms and any Offer, these Terms shall govern, except where it is expressly stated in an Offer that a specific provision of these Terms is to be varied or overridden. If there is a conflict between these Terms and a schedule or any of the schedules hereto the relevant schedule as to its subject matter shall prevail.
18.11. Applicable law and jurisdiction: this Agreement shall be governed by and construed in accordance with the laws of Belgium, without giving effect to its conflict of law principles. The parties hereto submit any disputes that cannot be settled amicably within a reasonable time to the exclusive jurisdiction of the competent courts of Ghent. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement.