Elium Service Plan Agreement
Last updated on May 3, 2019
Between you (referred to hereinafter as “the Subscriber”) and WHATEVER S.A., public limited company, having its registered administrative offices at Rue Emile Francqui 1, B 1435 Mont-Saint-Guibert, Belgium, enterprise VAT number BE 0889 962 726, referred to hereinafter as ”Elium”, Referred to hereinafter individually as a “Party”, or jointly as the “Parties”, It has been agreed as follows :
|Account||all User accounts created by or on behalf of the Subscriber within a Service Plan.|
|Activate/Activation||the action by Elium to make Seat(s) operational for the Subscriber.|
|Activation Date||the date of Activation of the Seat(s) by Elium.|
|Affiliate||as regard to the Subscriber, means any entity which is directly or indirectly controlled by the Subscriber, and any other subsidiary (i.e. non-controlled) provided that both Parties agree in writing to include it in the scope of the Agreement.|
|Agreement||the current document, including its appendices.|
|Article||unless specified otherwise, it refers to an article of the Agreement.|
|Beta Services||a product, service or functionality provided by Elium that may be made available to the Subscriber to try, which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation, labs or by a similar description.|
|Billing Area||the place where the Subscriber finds all data of its account, including the payments and invoices, the current terms and conditions, etc.|
|Confidential Information||all information (whether commercial, financial, technical or otherwise) relating to a Party, its subcontractors, other customers and suppliers, disclosed to or otherwise obtained by the other Party under or in connection with the Agreement and which is either designated as being confidential, or which is by its nature clearly confidential.|
|Documentation||any written or electronic documentation, image, video, text or sound specifying the functionalities of the Service or describing Service Plans, as applicable, provided or made available by Elium to the Subscriber.|
|Official Notice||shall have the meaning given to it in the Agreement under Article 18.|
|Order Form||any Elium generated service order form executed or approved by the Subscriber with respect to its subscription to the Service, which form may detail, among others the number of Users registered to the Service and the Service Plan applicable to the subscription.|
|Personal Data||has the meaning given to it by the General Data Protection Regulation 2016/679 and any other applicable personal data protection regulation.|
|Seat||any account Activated by Elium and administered and managed by the Subscriber.|
|Service/Services||as described in the Service Plan. It includes its underlying software, its Updates and any Documentation provided by Elium to the Subscriber in connection therewith.|
|Service Plan||means the packaged service plan(s) and the functionality and services associated therewith (as detailed in the Billing Area) for the Service selected by the Subscriber in the Order Form.|
|Subscriber||the person who executes and approves the Agreement, and administers the Seat(s).|
|Subscription Period||the basic duration of a Service Plan, as specified in the Order Form.|
|Updates||any new or modified features added to or reducing or augmenting or otherwise modifying the Service or other updates, modifications or enhancements to the Service.|
|User||any own employees, officers, directors or other members of the Subscriber’s personnel, and of its service providers, partners or customers, whom the Subscriber has authorized to use the Service by giving an access through a Seat, identified through a unique login.|
|User Data||any electronic data, text, messages or other materials submitted to the Services by the Subscriber and/or by Users, including, without limitation, Personal Data.|
2. Service, Service Levels, Updates, Connectivity, Domain Names
As from the Activation Date and subject to all terms and conditions of the Agreement, all Seats of the Subscriber will be subject to the same Service Plan.
2.1 Service Levels
The service level corresponding to the Service Plan is specified in the Service Plan specification.
Elium reserves the right to at any time deploy Updates, subject to the provisions of the Agreement.
A high-speed Internet connection is required for the proper transmission of the Service. The Subscriber is responsible (1) for procuring and maintaining the network connections that connect its network to the Service, including, but not limited to, “browser” software that supports protocols used by Elium, including the Secure Socket Layer (SSL) protocol or other protocols accepted by Elium, and (2) to follow the procedures for accessing services that support such protocols.
Elium is not responsible for notifying Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including the User Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Elium.
Elium assumes no responsibility for the reliability or performance of any connections as described in this clause.
2.4 Domain Names
There are two types of domain names depending on the selected Service Plan:
- standard domain name : anything under Elium’s current offering of base domain names (eg. .elium.com, .elium.app) ; Elium will do its best to respect the Subscriber choice but Elium reserves the right to change it at its sole discretion
- custom domain name : a Subscriber-managed subdomain on a base domain of their choosing, which is properly configured as DNS CNAME to the Subscriber internal DNS name managed by Elium (eg. xxx.yyy.com -> INTERNAL_ID.elium.com)
3. Beta Services
From time to time, Elium may make Beta Services available to the Subscriber and the Subscriber may choose to try such Beta Services in its sole discretion.
Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms.
Beta Services are not considered as “Services” under the Agreement; however, all restrictions, Elium’s reservation of rights and the Subscriber obligations concerning the Service shall apply equally to the use of Beta Services.
Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one (1) year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation.
Elium reserves the right to discontinue Beta Services at any time at its sole discretion, or never make them available in production.
Elium will have no liability for any harm or damage arising out of or in connection with the use of a Beta Service.
The Subscriber takes all responsibility for the creation, administration and management of the Seats. Each Seat is strictly personal to the User associated therewith and may only be used by that individual person.
The Subscriber shall inform Elium promptly if it becomes aware of any suspected, unauthorized or prohibited use of a Seat, User password, or of the Service.
5. Promotional Credits Policy
Elium may, at its sole discretion, choose to offer credits for the Service in various ways, including but not limited to coupons or promotional campaigns (such as free trial).
- have no monetary or cash value;
- can only be used by the Subscriber to offset subsequent payment of subscription fees for the Service specifically identified by Elium on the credit voucher
- are non-transferable
- (unless specified otherwise) shall expire and no longer be redeemable after twelve (12) months from the date the credit was issued.
6. Subscription Procedures, Term and Termincation
To register, the Subscriber shall use an e-mail address.
If the Subscriber chooses to register via a third party account (i.e. Google Sign-In), it must adhere to the authentication and rights of use set forth by such third party service. The Subscriber represents and warrants that it has the right and authority to access the Service via that e-mail address.
If the Subscriber accesses the Service with an e-mail address provided by its employer, the Subscriber confirms that it is permissible for it to use such e-mail address associated with its employer's domain and that its use of the Service shall be in compliance with its employer's terms and policies, as well as any third party service authentication and rights of use policies (i.e. Google Sign-In). It is the Subscriber’s sole responsibility to check that its use of the Service is in conformance with its employer’s and/or e-mail provider’s access rights and data handling practices. Elium cannot control, and is not responsible for, the practices or restrictions imposed by the Subscriber’s employer and/or e-mail provider surrounding its use of the Service.
6.2 Subscription using Promotional Credits
When the Subscriber uses promotional credits specified in Article 5, the subscription procedure consists in filling the appropriate Order Form, with the requested information and the selection of a Service Plan.
Before the end of the promotional credits period, the Subscriber may opt for a paying Subscription, as specified hereunder.
Under a promotional credit period, the Service will be available until the earlier of (1) the end of the promotional credits period; (2) the Activation start date of any paying subscription by the Subscriber; or (3) Elium’s decision to terminate the promotional credits period, at its sole discretion.
At the end of the promotional credit period, unless a paying Subscription is initiated, Elium will delete all Seats and all User Data.
6.3 Paying Subscriptions
For an initial subscription, the Subscriber fills the Order Form with the requested information and the selected Service Plan, the number of Seats and the Subscription Period. The number of Seats selected will be Activated after the payment is processed by Elium.
At the end of the Subscription Period, the subscription will be automatically renewed under the same Service Plan for the same Subscription Period and the same number of Seats, and the Subscriber will be charged with the corresponding fees.
At any time, the Subscriber may subscribe to additional Seats (under the same Service Plan) by filling an Order Form; the subscription fees for the additional Seats are calculated prorata temporis until the end of the current Subscription Period, and the Subscriber will be charged with the corresponding fees.
If the Subscriber has opted to pay by credit card, he may, at any point in time, reduce the number of Seats by filling an Order Form; there will be no refund of subscription fees.
If the Subscriber has opted to pay by invoice, he may elect to reduce the number of Seats for the next Subscription Period by filling an Order Form at the latest three (3) calendar months before the end of the current Subscription Period.
If the Subscriber has opted to pay by credit card, he may, at any point in time, to switch to another Service Plan for all current Seats; the additional subscription fees (as the case may be) are calculated prorata temporis until the end of the current Subscription Period, and the Subscriber will be charged with the corresponding fees. In case of downgrading of Service Plan, there will be no refund of subscription fees.
If the Subscriber has opted to pay by invoice, he may elect to upgrade its Service Plan for all current Seats at any point in time by filling an Order Form. The additional subscription fees (as the case may be) are calculated prorata temporis until the end of the current Subscription Periods, and the Subscriber will be charged with the corresponding fees.
If the Subscriber has opted to pay by invoice, he may elect to downgrade its Service Plan for all current Seats for the next Subscription Period by filling an Order Form at the latest three (3) calendar months before the end of the current Subscription Period.
Except for the Subscriptions under promotional credits, before the end of the current Subscription Period, the Subscriber may ask for a copy of the User Data. Elium will make such copy available to the Subscriber in a standard data format, at no additional charge.
6.5 Early Termination
Before the expiration of the Subscription Period, either Party may elect to terminate the subscription at any time, by providing an Official Notice to the other Party, taking into account the following notice period :
- If the Subscriber has opted to pay by credit card : one (1) business day
- If the Subscriber has opted to pay upon invoice : three (3) calendar months before the end of the current Subscription Period.
The Subscription will then terminate at the end of the current Subscription Period.
6.6 Consequences of Termination
At the end of the current Subscription Period, unless a new paying Subscription Period is started, Elium will delete all Seats and all User Data.
Upon termination due to unpaid invoices at the due date, Elium will delete all Seats and all User Data corresponding to the unpaid invoice.
7. Subscription Fees and Payment Terms
The subscription fees for the selected Service Plan are specified in the Billing Area.
The subscription fees for the initial Subscription Period and each renewal, increase in the number of Seats, or upgrade of the Service Plan will be calculated based on Elium’s then-current pricing as specified on the Elium website, unless otherwise agreed to by the Parties in the applicable Order Form or otherwise in writing. In the Order Form, the Subscriber provides the requested information, selects a Service Plan, specifies the number of Seats, the Subscription Period and a method of payment.
If the Subscriber has opted to pay by credit card, the fees are immediately debited from the Subscriber credit card account specified in the Order Form.
If the Subscriber has opted to pay upon invoice, the invoice is due upon thirty (30) days invoice date.
In all cases, an invoice is generated and put in the Subscriber Billing Area and an e-mail message is sent to the Subscriber’s address.
Unpaid invoices at the due date will result in the immediate cancellation and termination of the corresponding order.
All fees are committed amounts, and are non-cancelable and non-refundable.
Unless stated otherwise, all fees are exclusive of VAT (or any other tax).
8. Subscriber Obligations
8.1 The Subscriber Agrees and Commit that he will :
- use the Service only for its internal business purposes;
- comply with all applicable laws, including, without limitation, privacy laws, intellectual property laws, anti-spam laws, export control laws, tax laws, and regulatory requirements;
- use its real identity;
- use the Service in an ethical and professional manner;
- use a non-offensive domain name for the identification of its platform;
- take all responsibility for acquiring and maintaining all equipment (including services) necessary to allow the Subscriber and its Users to access and use the Service;
- take all responsibility and full liability for the use it (and each of its Users) makes of the Service and for the User Data each User stores under its Seat;
- ensure that each of its Users respects the rights (including intellectual property rights) of any third party in relation to such User Data and abides by all applicable laws when using the Service.
8.2 The Subscriber Agrees and Commits that he will not :
- license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than the Users as expressly permitted by the Agreement;
- use the Service to process Personal Data on behalf of any third party other than the Users;
- use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights;
- use or attempt to use the User Data in any other manner or for any use of the Services other than foreseen in the Agreement;
- create a false identity, misrepresent an identity, create a profile for anyone other than themselves, or use or attempt to use another’s Seat;
- develop, support or use software, devices, scripts, robots, or any other means or processes (including crawlers, browser plugins and add-ons, or any other technology) to scrape the Services or otherwise copy profiles and other data from the Services;
- override any security feature or bypass or circumvent any access;
- violate the intellectual property rights of others, including copyrights, patents, trademarks, trade secrets, or other proprietary rights;
- neither decompile, disassemble, analyze the Services source code, structure, algorithms or ideas underlying the Services (except to the extent expressly permitted by law), nor take any other action in derogation of Elium’s intellectual property rights, nor develop a program or service having any functional attributes, functions or other features equal or similar to those of the Services, nor compete with Elium;
- post anything that contains software viruses, worms, or any other harmful code;
- monitor the Services’ availability, performance or functionality for any competitive purpose;
- engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of the Services;
- interfere with the operation of, or place an unreasonable load on, the Services (e.g., spam, denial of service attack, viruses, gaming algorithms, etc.);
- store any data that it is or should reasonably be aware of that they contain viruses, worms, Trojan horses or other harmful or malicious computer code or any data that are prohibited by law;
- undertake any acts that constitute computer criminality as determined by the applicable laws, nor interfere with nor disrupt the integrity or performance of the Service;
- (if the Subscriber is a direct competitor of Elium,) access the Service for any purpose, except with Elium’s prior written consent;
- attempt, now or in the future, to claim any rights in Elium’s trademarks names and logos, degrade their distinctiveness, or use them to disparage or misrepresent Elium, its services or products.
9. Elium's Rights
Elium reserves the right to refuse the registration of a Subscriber.
Elium shall have the right to occasionally communicate to the Users some necessary information regarding updates, release notes, best practices and surveys, and the use, operation or maintenance of the Service.
Elium reserves the right to modify, suspend or terminate the Service (or any part thereof), the subscription, or any Seat, and remove, disable and discard any of the User Data if Elium has reasons to believe that the Subscriber has violated any provision of the Agreement. When taking any of the foregoing actions and unless legally prohibited from doing so, Elium will use commercially reasonable efforts to notify the Subscriber via email.
Elium accepts no liability whatsoever to the Subscriber or any other third party for any such modification, suspension or discontinuation of the Subscriber’s access and use of the Service.
Any suspected fraudulent, abusive, or illegal activity by the Subscriber may be referred to law enforcement authorities at Elium’s sole discretion.
10. Intellectual Property Rights
10.1 User Data
All User Data remains the property of the Subscriber. The Agreement does not transfer any rights on any User Data to Elium.
10.2 Intellectual Property Rights of Elium
All rights, title and interest related to the Service and to all software used to provide the Service, including all related intellectual property rights, will remain with and belong exclusively to Elium.
10.3 Suggestions and Feedback
Elium shall have a worldwide, non-exclusive, perpetual, irrevocable, royalty-free license to use, share and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by the Subscriber, for any purpose, without compensation.
Elium’s service names and logos used or displayed on the Service are trademarks; the Subscriber may only use such names and logos to identify itself as a Subscriber.
11. Data Privacy and Security
11.1 Data Protection
Elium will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality, and integrity of the User Data. These safeguards include encryption of the User Data in transmission (using SSL or similar technologies). Elium’s compliance with the provisions of this clause shall be deemed compliant with Elium’s obligations on confidentiality in Article 12.
11.2 Elium Access to Seats and Information
The Subscriber agrees that Elium shall have the right to access the Seats and to use, modify, reproduce, distribute, display and disclose the User Data solely to the extent necessary to provide the Service, including, without limitation, in response to the Subscriber support requests. Any third party service provider called by Elium will only be given access to the User Data as is reasonably necessary to provide the Service and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with these provisions ; and (b) their agreement to comply with the data transfer restrictions applicable to Personal Data.
Elium may also access or disclose information about Users, including the User Data, in order to (a) comply with the law or respond to lawful requests or legal process ; (b) protect Elium’s or its customers’ or partners’ rights or property, including enforcement of the Agreement or other policies associated with the Service ; (c) act on a good faith belief that such disclosure is necessary to protect personal safety or avoid violation of applicable law or regulation.
11.3 Collection of Information
11.4 Controller and Processor
To the extent the User Data include any Personal Data, the Subscriber acknowledges in all cases that Elium acts as the processor of such Personal Data and that the Subscriber remains the controller of such Personal Data for GDPR and any other applicable Personal Data protection regulations. The Subscriber understands that if it gives an integration provider access to the Subscriber Elium account, the Subscriber serves as the controller of such information and the integration provider serves as the processor for the purposes of those data laws and regulations that apply to the Subscriber. In no case are such integration providers subprocessors of Elium. The Appendix 1 to the Agreement includes Data Processing Agreement between the Subscriber and Elium which shall govern the terms of Elium’s processing of Service Data.
11.5 Data Center Location
The User Data is currently hosted by Elium or its authorized service partners in data centers located in the European Economic Area. If the Subscriber’s principal location is within the European Economic Area, Elium will use commercially reasonable efforts to notify it at least thirty (30) days before Elium’s election to host Personal Data provided to Elium in connection with the use of the Service, in data centers located outside the European Economic Area.
If the Subscriber is entitled to this notice and does not wish to have the Personal Data hosted in data centers located in such other country, the Subscriber may terminate the subscription with immediate effect upon written notice to Elium within thirty (30) days of the Subscriber receipt of Elium’s notice.
In respect of Confidential Information of which it is the recipient, each Party undertakes:
- to treat such information as confidential;
- not to communicate or disclose, without the disclosing Party’s prior written consent, any part of such information to any person except: a. only to those employees, agents, subcontractors and other suppliers on a need-to-know basis who are directly involved in the provision of the Services; b. the recipient’s auditors, professional advisers and any other persons or bodies having a legal right or duty to have access to or knowledge of the Confidential Information in connection with the business of the recipient;
- to ensure that all persons and bodies mentioned in paragraph (b) above are made aware, prior to disclosure, of the confidential nature of the Confidential Information and that they owe a duty of confidence to the disclosing Party and to use all reasonable endeavors to ensure that such persons and bodies comply with the provisions of the present Article;
- not to use or circulate such Confidential Information within its own organization except to the extent necessary for the purposes of the Agreement.
The obligations in this Article will not apply to any Confidential Information which:
- was in the recipient’s possession (with full right to disclose) before receiving it; or
- is or becomes public knowledge other than by breach of this Article; or
- was independently developed by the recipient without access to or use of the Confidential Information; or
- was lawfully received from a third party (with full rights to disclose).
The provisions of this Article will continue in force notwithstanding the termination of the Agreement for any reason, for a period of five (5) years after such termination.
Elium warrants that the Service will perform in a manner consistent with generally accepted industry standards and that the Service will substantially perform in accordance with the Service Plan. The Services uses state-of-the-art security technology including user authentication, secured firewalls and secured communication links.
Elium makes neither warranty as to the merchantability or fitness for a particular purpose of the Service, nor that the Services will be uninterrupted or 100% error-free.
Either Party shall indemnify, defend and hold harmless, at its sole expense, the other Party and its directors, officers, employees and agents from any claims, liabilities, damages, losses, costs and expenses (including reasonable attorney fees) arising out of or connected with the Subscriber’s (and its Users’) use of the Service and the User Data, and Elium’s supply of the Services (including but not limited to infringement of third party rights and breaches of the law) or breach of the Agreement.
To the maximum extent permitted by law, the total aggregate liability of each Party for all claims for damages, arising from negligence, breach of contract or otherwise under or in connection with the Agreement shall be limited to the amounts of subscription paid by the Subscriber during the twelve (12) months period preceding the damage causing event.
Neither Party will be liable hereunder to the other Party for any indirect or consequential damages, even if such Party has been advised of the possibility of such damages.
Elium shall not be liable for any interruption in the Service that is due to circumstances beyond its reasonable control (such as but not limited to internet, network or electronic communications delays, or (delivery) failures or interruptions caused by its third party service providers), or to a Force Majeure event.
15. Force Majeure
Neither Party shall be liable to the other for failure to comply with the Agreement to the extent caused by any Force Majeure event, including acts of God or alien attacks, subject to the Party being unable to comply with the Agreement immediately giving notice to the other Party, such notice containing the following information: (1) details of the Force Majeure event that has occurred ; (2) the date from which the Force Majeure event has prevented or hindered the Party in the performance of its Services ; (3) the Services so affected ; and (4) its best estimate of the date upon which it may be able to resume performance of the affected Services. Such notice will be confirmed by Official Notice within two (2) business days of the occurrence of the Force Majeure event.
Meanwhile, the affected Party will continue at all times to take all steps to (1) resume full performance of its obligations under the Agreement, and (2) mitigate the consequences of the Force Majeure event.
Subject to written confirmation of the assignee to Elium that it agrees to remain bound by all provisions hereof, the Subscriber may assign the Agreement only to (a) a purchaser of or successor to substantially all of its business, or (b) an Affiliate; provided such purchaser, successor or Affiliate is not, or (at the time of the assignment) will reasonably not become, a competitor of Elium.
Each Party may mention the other Party in any communication to the public referring to its commercial references and use the other Party's logo and trademark for this purpose. This right to use the name, logo and other trademarks in its marketing materials and press releases is non-exclusive, non-transferable and free.
Any communication containing additional details about the project must be submitted to prior validation by the Subscriber.
18. Official notice
All official communications necessary for the application of the Agreement shall be delivered in writing by any of the following delivery methods, and shall be deemed to have been received as follows :
|Delivery method||Assumed reception|
|by registered Postal letter||two (2) business days after being deposited|
|by a nationally recognized delivery service to the address below||one (1) business day after being deposited|
|by e-mail with delivery receipt to the e-mail address below||one (1) business day after being sent|
|The Subscriber||Elium / WHATEVER S.A.|
|Postal address and e-mail addresss as specified in the Order Form|
Rue Emile Francqui 1 - B-1435 Mont-Saint-Guibert, Belgium
For the attention of the CEOinfo@elium.com
Any change to these data shall be communicated by Official Notice to the above address.
19. Governing Law and judiction
The Agreement is governed by, and shall be interpreted in accordance with, the Belgian law.
The Parties agree that all disputes arising out of or in connection with the Agreement shall be finally settled by one or more arbitrators under the rules of arbitration of the International Chamber of Commerce. The arbitration shall be conducted in English and the seat of the arbitration shall be Brussels (Belgium). Each Party irrevocably submits to the jurisdiction of such arbitrators and waives any objection to proceedings before any such court on the ground of venue or on the ground that proceedings have been brought in an inconvenient forum.
20.1 Entire Agreement
The Agreement, including its Appendixes and the Order Forms, constitutes the entire agreement between the Parties on the subject of the Services and supersedes and replaces all previous representations, negotiations, engagements, and written communications on this subject.
The nullity or non-applicability of one of the clauses in the Agreement shall not compromise the continued validity or the applicability of the Agreement as a whole or of the remaining terms or rights.
The original version of the Agreement has been made in English. Should the Agreement be translated in whole or in part into another language, the original English version shall prevail between the Parties hereto to the fullest extent possible.
20.4 Incorporation and Precedence
The Agreement consists of the body of the Agreement and the Appendices.
In the event of any conflict between the provisions of the body of the Agreement and those of its Appendices, the provisions of the Appendices shall prevail, it being understood that the provisions of a more recent Appendix prevail on those of an older one.
Upon signature of the Agreement, the following appendices are an integral part of the Agreement:
- Appendix 1 - Data Processing Agreement.