1. Introduction
These Terms & Conditions constitute a legally binding agreement made between TenForce and Customer. By using the TenForce Software, Customer and its affiliates (including all users) confirm that they have read and agree to the terms set out within this document. Where Software is supplied to Customer, the terms of this document shall govern access to and use of the said Software. Please therefore read the terms carefully.
2. Definitions
“Affiliate(s)” shall be construed in accordance with article 11 of the Belgian Company Code.
“Authorized Recipients” means the following persons who strictly need access to Confidential Information (as defined under article 9) for the purposes of rendering the Services: (a) the directors, officers, employees and advisers of TenForce and its Affiliates (b) Affiliates of TenForce.
“Consulting Services” shall have the meaning as set out in article 7 of these terms and conditions.
“Customer Specific Configurations” means configurations (workspaces, lists, forms, workflow, authorizations, …) in the Software or the development of scripts in the Software; specific to a Customer.
“Documentation” means any and all operator and user manuals, training materials and guides for use in conjunction with the Software.
“Maintenance and Support Services” shall have the meaning as set out in article 6 of these terms and conditions.
“Services” means Maintenance and Support Services with exception of the Consulting Services which are subject to the terms and conditions of the Consulting Services Agreement in Schedule 7 of the License Agreement.
“Software” means the executable code of the commercially released version of the TenForce software program modules. “Software” also includes any Updates as may be regularly provided by TenForce to Licensee as part of any Maintenance and Support Services purchased by Licensee.
“Updates” means any enhancements, revisions, bug fixes, updates for the Software provided by TenForce generally to its customers that have purchased Maintenance Services for the Software, and shall exclude new products or separate functionality.
3. Execution by Affiliates
A Licensee Affiliate may sign an addendum referencing the License Agreement in its own name and such Affiliate contract will be a separate, but associated, contract incorporating the terms of the License Agreement with respect to that addendum. Licensee and TenForce will arrange to have their respective Affiliates comply with the License Agreement, regardless of whether an Affiliate has signed an addendum.
4. Rendering of Services
TenForce agrees to execute its obligations under the License Agreement and to render its Services.
5. Software License
5.1 Grant of License
Subject to the terms of the License Agreement, TenForce grants the Licensee, a non-exclusive, limited license to use the Software, in conformance with the Documentation, subject to the terms of conditions of the License Agreement. In using the Software, Licensee is responsible for the security of its own network. Licensee shall be directly responsible to TenForce for the use of the Software by its employees, independent contractors and authorized third parties accessing the Software through Licensee, in compliance with the License Agreement.
5.2 Ownership of Software and Documentation
Licensee acknowledges and agrees that all right, title, and interest to, and all copyrights, patents, trade secrets and/or any other intellectual property rights in, the Software and Documentation are and will remain solely the property of TenForce and/or TenForce’s licensors if applicable. Except for the license rights expressly provided herein, no rights to the Software or Documentation are granted to Licensee.
5.3 Restrictions
Licensee shall not and shall not permit any third party to (i) reverse engineer, disassemble, reverse translate, decompile, or in any other manner decode the Software in order to derive the source code or for any other reason, except if permitted by any applicable law (e.g. for the purposes of achieving interoperability with other products); or (ii) copy, modify, enhance, adapt, or translate the Software, except for a reasonable number of copies for its own internal testing, disaster recovery and backup purposes or if permitted by any applicable law. Software may be subject to governmental export control regulations. Licensee shall comply with those regulations if it exports or re-exports Software.
5.4 Record Keeping
Licensee shall keep true and accurate records with regard to the applicable license terms. TenForce shall have the right to audit Licensee’s records and systems relating and strictly limited to Licensee’s use of the Software at any reasonable time, upon written notice to Licensee, no more than once per year. Licensee shall pay any additional license fees due for Software use in excess of the use permitted under the Software licenses granted, within 60 days of the conclusion of the audit making such determination. If the aggregate amount of additional license fees due as a result of the audit is greater than five percent (5%) of the amount owed under existing Software licenses, then Licensee shall also reimburse TenForce for the reasonable, direct costs of the audit.
6. Software Maintenance & Support Services
During the term of the License Agreement, TenForce shall render adequate and prompt Maintenance and Support Services for the Software by telephone, e-mail, or in person, in accordance with the terms of TenForce’s Maintenance and Support Services Policy, as described below, as in effect at the time Maintenance and Support Services are ordered or renewed. TenForce will exercise such reasonable skill, care and diligence as expected of an experienced provider of maintenance and support services.
Scope of Product Maintenance and Support Services
TenForce’s Product Maintenance and Support Services shall consist of the following: (i) undertaking its best efforts to resolve problems or bugs in the Software which cause the Software not to function in material conformity with the Documentation (referred to herein as a “Error”), such efforts to be in accordance with TenForce’s service levels as defined below, based on the impact of the Error on Licensee’s use of the standard Software; (ii) providing new Software Updates (as defined in the Agreement); (iii) providing access to TenForce for reporting Software problems and tracking resolution; (iv) answering technical questions regarding Software functionality and operation; and (v) providing service-related bulletins.
Scope of Custom Maintenance and Support Services
TenForce’s Custom Maintenance and Support Services (on top of Product Maintenance and Support Services) shall consist of the following: (i) undertaking its best efforts to resolve problems or bugs in customer specific configurations which cause the Software not to function in material conformity with the Documentation (referred to herein as a “Error”), such efforts to be in accordance with TenForce’s service levels as defined below, based on the impact of the Error on Licensee’s use of the Software and Customer Specific Configurations; (ii) providing new Software Updates or configurations (as defined in the Agreement); (iii) providing access to TenForce for reporting Software problems and tracking resolution; (iv) answering technical questions regarding configuration functionality and operation; and (v) providing service-related bulletins.
Scope of Premium Maintenance and Support Services
TenForce’s Premium Maintenance and Support Services (on top of Custom Maintenance and Support Services) shall consist of the following: (i) proactively undertaking activities to eliminate problems or bugs in Software and or Customer Specific Configurations which cause the Software not to function in material conformity with the Documentation (referred to herein as a “Error”), such efforts to be in accordance with TenForce’s service levels as defined below, based on the impact of the Error on Licensee’s use of the Software or Customer Specific Configurations. This is done through running automated tests that cover the Software and Customer Specific Configurations. Development and implementation of the tests are not part of the Premium Maintenance and Support Service.
Licensee Obligations
During the term of this Agreement, Licensee shall (i) promptly notify TenForce of any material non-conformities in the Software in accordance with established reporting procedures; (ii) maintain the Software at the then-current or immediately preceding Software release level; and (iii) undertake remedial corrective actions as instructed or provided by TenForce.
Exclusions and Limitations
Maintenance and Support Services shall not include (i) issues determined by TenForce to have been caused by the failure or malfunction of any non-standard software, tools, equipment, or facilities not provided by TenForce; (ii) installation, repair, relocation, addition, alteration, modification or enhancement of the Software, performed by parties other than TenForce; (iii) use of the Software in combination with non-standard products not provided by TenForce, resulting in the defect or non-conformance; (iv) failure to follow applicable operation or maintenance requirements in accordance with the Documentation or technical support instructions provided by TenForce; (v) introduction of data, through any method other than through the Software, into any database accessed by the Software; or (vi) abuse, mishandling, misuse or damage to the Software other than by TenForce.
Error Correction and Service Levels
TenForce will use its best efforts to respond to and correct any Error reported by Licensee in accordance with the Response Times and Resolution Times for each Priority Level as specified below. The Priority Level for an Error will be determined by TenForce based on the impact of the Error on Licensee’s use of the Software in accordance with the Priority Levels specified below.
As used herein, the terms listed below shall have the following meaning:
“Response Time” shall mean the time within which TenForce will respond to Licensee to report on steps taken to resolve an Error reported by Licensee and provide a plan for final resolution of such Error.
“Resolution Time” shall mean the time within which TenForce will provide relief from an Error reported by Licensee.
Priority Level: A – Urgent
Impact on the Software System: Critical Impact
Description: The Licensee cannot use the Software, resulting in a critical impact on operations of the system, requiring an immediate solution
Response Time: 4 business hours
Resolution Time: 1 business day
Priority Level: B – High
Impact on the Software System: Significant Impact
Description: The Software is usable, but its functionality is severely limited.
Response Time: 6 business hours
Resolution Time: 3 business days
Priority Level: C – Medium
Impact on the Software System: Moderate Impact
Description: The issue causes little impact on operations of the system or a reasonable workaround to the issue is available
Response Time: 1 business day
Resolution Time: 5 business days
Priority Level: D – Low
Impact on the Software System: Minimal Impact
Description: The issue causes no impact on the operation of the system
Response Time: 1 business day
Resolution Time: 10 business days
“Business hours” are defined from 8h30 – 17h30 GMT+1 (for Europe); or 8:30AM – 5:30PM CDT (for North and South America).
“Business days” are defined as all weekdays from Monday till Friday, excluding Saturdays, Sundays and Belgian public holidays.
“Extended business hours”: support coverage period can be extended from 6:00 to 23:00 for an additional support and maintenance fee.
“24/7 support”: 7 days a week, 24 hours a day: for an additional support and maintenance fee.
Support engineers shall work diligently to provide a technical follow-up for Errors. A technical follow-up consists of a workaround or procedure to address the issue. Issues that require a change in the Software may be resolved in a future release of the Software.
If the Licensee reports an incident and requests a problem determination and the issue is mutually found not to be an Error in the Software, Licensee will pay TenForce, at TenForce’s then-current standard consulting rates, for all direct work performed in connection with such determination and any reasonable related expenses incurred therewith.
In those instances where TenForce is unable to resolve an Error within the target maximum Resolution Time, TenForce will confer with Licensee to develop a plan for final resolution.
Policy Changes
TenForce reserves the right to modify this Maintenance and Support Services Policy with a timely prior written notice to Licensee, which changes shall take effect at the time of the next renewal of Licensee’s Maintenance and Support Services.
Suspension or Lapse of Maintenance and Support Services
TenForce may suspend or cancel Maintenance and Support Services if Licensee fails to pay Maintenance Services fees in a timely manner in accordance with the terms of the Agreement, or otherwise materially breaches the provisions of the Agreement or this Maintenance and Support Services Policy, provided however that TenForce shall notify Licensee of impending suspension or cancellation and provide Licensee ten (10) Business Days to pay overdue Maintenance and Support Services fees or cure such other breach of the Maintenance Services provisions, as applicable. In the event that Licensee terminates Maintenance and Support Services, Licensee may later reinstate Maintenance and Support Services provided the Software licensed by Licensee is upgraded to the then-current Software release. The fee charged for such Maintenance and Support Services reinstatement will be equal to the cumulative standard Maintenance Services charges applicable for the Maintenance and Support Services terms during which Maintenance and Support Services lapsed, plus Maintenance Services and Support fees for the then-current Maintenance and Support Services term.
7. Consulting Services
During the term of the License Agreement, TenForce shall render adequate services in relation to the implementation of the Software, training or other consulting services to Licensee at Licensee’s option.
8. Compensation, Expenses & Payment
Licensee shall pay TenForce the specified fee for the Software license, the Services rendered and, if applicable, extra options which have been ordered by Licensee, in accordance with the terms and conditions.
9. Proprietary Rights & Information
9.1 Confidentiality
Each Party shall maintain as strictly confidential the proprietary and confidential information of the other Party. “Confidential Information” includes, without limitation, all information that a Party may learn during the performance of its obligations in relation to the License Agreement, including, but not limited to, the scope of the License Agreement, these terms and conditions, diagnostics, software, documentation, specifications, technical information, operational plans and programs, information relating to the business affairs of a Party, market studies, corporate strategies, new products, HR data, customers, sales, patents, trademarks, copyrights, trade secrets, know-how, methodologies, data, pricing, financial, marketing and other business information which such Party marks or otherwise identifies as confidential at the time of disclosure. Confidential Information excludes information to the extent such information (i) was rightfully in the receiving Party’s possession without restriction on disclosure or use before it is received from the disclosing Party under the License Agreement; (ii) is or becomes a matter of public knowledge through no fault of the receiving Party; (iii) is rightfully furnished to the receiving Party by a third party without restriction on disclosure or use; or (iv) is independently developed by the receiving Party without use of the other Party’s Confidential Information. The receiving Party agrees to use the Confidential Information of the disclosing Party only for the purpose and in the manner expressly authorized by the disclosing Party, and to disclose Confidential Information of the disclosing Party only as authorized hereunder to the receiving Party’s and/or its Authorized Recipients and then only on a need-to-know basis. The receiving Party agrees to maintain adequate internal procedures, including appropriate agreements with employees and contractors, to protect the confidentiality of the Proprietary Information of the disclosing Party. The disclosing Party is entitled to appropriate injunctive relief in the event of any unauthorized disclosure or use of its Confidential Information by the receiving Party.
TenForce will not transfer any personal data outside the EEA (European Economic Area) or to any third party (including any sub-processor) without Customer’s prior written consent; other than to TenForce personnel and staff. TenForce shall take appropriate measures to protect all Customer confidential information and personal data. TenForce therefore guarantees that all personnel and staff have signed and comply to the EU Standard Contractual Clauses related to the General Data Protection Regulation (GDPR). TenForce will in any event be liable for the transfer of personal data to any allowed third parties.
9.2 Data Protection & Privacy Practices
TenForce shall maintain appropriate technical and organizational safeguards to protect personal data in line with European data protection laws such as the GDPR. TenForce has integrated appropriate technical safeguards such as encryption and pseudonymisation to ensure a high level of security. Standard security measures are also employed such as firewalls, intrusion detection, virus detection and Layer 7 protection. In our hosting environments, we have taken both technical and organizational measures to protect the databases where personal data is stored against factors like unauthorized access, unauthorized use, theft or loss. Personal data is contained behind secured networks and is only accessible by a limited number of persons who have special access rights to such systems, and are required to keep the information confidential. All sensitive information is encrypted via Transport Layer Security (TLS) technology, which is the standard security technology for creating an encrypted link between a web server and a browser.
10. Claims of Infringement
TenForce shall indemnify and defend Licensee against any damage, loss, liability or expense arising from a third-party claim that the Software infringes a U.S. or EU member country’s patent or worldwide copyright or trademark or any other intellectual property right. Should any Software become, or in TenForce’s opinion be likely to become, the subject of such a third-party claim, then TenForce may, at TenForce’s option and expense, either procure for Licensee the right to continue using such Software or replace or modify the Software so that it becomes non-infringing. Notwithstanding the above, TenForce shall have no liability to Licensee in respect of any claim to the extent the same results from: (i) Licensee’s failure to install or have installed changes, revisions or updates as instructed by TenForce to the extent consistent with Licensee’s obligations pursuant to the Maintenance and Support Services; (ii) unauthorized use of the Software; or (iii) use of the Software in combination with any non-standard software, hardware or device not provided by TenForce. The above shall not affect in any way the right of Licensee to claim damages.
11. Limitations of Liability
11.1 General
TenForce is responsible for and shall fully indemnify, keep indemnified and hold harmless Customer and its affiliates against all liability, losses, costs, claims, expenses and demands which Customer may incur, either directly or indirectly arising from any failure by the TenForce and/or its Sub-processors to comply with contractual agreements and data protection legislation. However, in cases where Customer hosts the application, Customer must take necessary precautions and shall be held responsible for its database.
TenForce’s maximum liability for any damages to Licensee or any other party shall not exceed 50.000 euro. In no event will TenForce, its affiliates or licensors be liable for (i) any special, indirect, incidental, consequential or punitive damages arising out of or relating to the License Agreement, regardless of the legal or equitable basis of any claim, including without limitation, loss of use, or loss of revenues or profits resulting from the improper use of the software, even if informed of such damages. The foregoing will apply save any limits allowable for willfully negligent of fraudulent behaviour, covered by TenForce professional indemnity insurance cover (a copy is available from the address mentioned on page 1 of the License Agreement). neither party excludes or limits its liability to the other for death or personal injury arising as a result of its negligence.
11.2 Custom Configuration
Customer shall remain fully responsible for consent of users and privacy law compliance on any personal data stored in the TenForce system as a result of parametrisation and configuration. TenForce only executes parametrisation and configuration upon explicit request and requirements of Customer, and Customer staff independently maintains and manages the TenForce system and its configuration.
12. Term
For perpetual licenses, the License Agreement is of undefined duration. Licenses duly bought and paid by Licensee before termination of services shall remain fully valid. For subscription licenses, the License Agreement is valid for the initial contracted period, and its subsequent renewals. Licensee may terminate Services, for any reason whatsoever, by giving TenForce 30 days written notice. TenForce may terminate Services, for any reason whatsoever, by giving Licensee 60 days written notice.
Notwithstanding the above, either Party may terminate the License Agreement with effect as from the day such Party gives the other Party written notice of termination, if (i) the other Party is in breach of any of its obligations under the License Agreement and fails to remedy the breach (if capable of remedy) within fifteen (15) calendar days of a written notice so to do, (ii) the other Party fails to provide the standard of performance of Services that substantially meets reasonable expectations of Licensee, or (iii) bankruptcy or liquidation of the other Party. In case of termination of the Agreement pursuant to this article 12, article 9 “Proprietary Rights and Information”, article 10 “Claims of Infringement” and article 13 “Publicity” shall stay in force entirely. In case of a perpetual license and in case that the TenForce hosted environment would be transferred to the Licensee’s infrastructure in accordance with article 5, Licensee may continue to use the Software pursuant to the License granted hereunder but will not be entitled to receive the Services and Updates from TenForce for the Software.
Additionally, at the choice of Customer and without any additional costs for Customer, TenForce will irrevocably delete or return all personal data to Customer upon termination of Services for whatever reason or at Customer’s request.
13. Publicity
Each Party shall have no permission to issue one or more press releases disclosing the nature of the relationship entered into hereby, unless the other Party has granted prior written approval.
14. Escrow Agreement
Upon Customer’s request, Customer has the option to become a beneficiary to an escrow agreement giving it rights to obtain the source code for the Products pursuant to the terms set forth in the escrow agreement. The costs associated with establishing Customer’s rights as a beneficiary under the escrow agreement and for obtaining access to the source code will be payable by Customer.
15. Invalid Provision
In the event that a provision or a part of a provision of Services is null and void or unenforceable (either in whole or in part), the remainder of Services shall continue to be effective to the extent that, in view of the License Agreement’s substance and purpose, such remainder is not inextricably related to and therefore inseverable from the null and void or unenforceable provision or part of a provision. The Parties shall make every effort to reach agreement on a new clause which differs as little as possible from the null and void or unenforceable provision or part of a provision, taking into account the substance and purpose of the License Agreement.
16. Assignment
No assignment or delegation by TenForce of the License Agreement or any sums due under it will be valid without prior written consent of Licensee.
17. Governing Law
The License Agreement and terms will be governed by Belgian law. Any dispute arising in connection with the interpretation, validity, performance and/or termination of Services shall be exclusively submitted to the Courts of Brussels.
18. Notices and Contact Information
All written notices shall be personally delivered or sent by registered certified mail, return receipt requested, and shall be deemed to be given for purposes of the License Agreement on the day that such writing is received by the intended recipient.
Notices to Licensee will be sent to the registered contact person.
Notices to TenForce can only be sent to:
TenForce BVBA
Attn.: Jan Van den Nieuwenhof
Havenkant 38,
3000 Leuven
Tel.: +32 (0) 16/31 48 60
Mobile: +32 (0) 497 82 81 09
E-mail: jan@tenforce.com
Website: www.tenforce.com
Our Terms & Conditions may be adapted in the future and we recommend that you consult it regularly to learn about any changes.