Terms of Services Enterprise

SUBSCRIBER AGREEMENT FOR ENTERPRISE PLANS

These Terms and Conditions apply exclusively to Enterprise Plans. Customers on a Self-Serve Plan should refer to the Terms and Conditions for Self-Serve Plans.

“Enterprise Plans” refers to any subscription plan that is custom-scoped, individually negotiated, and entered into between AppTweak and the Subscriber under a Subscriber Agreement.

1. DEFINITION AND INTERPRETATION

   For the purpose of this Subscriber Agreement (the “Agreement”), the words and expressions listed below shall have the following meaning:

   • “Affiliate” shall mean any entity that directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. Control shall mean ownership of more than 50% of the voting rights or the power to direct the management or policies of an entity.
   • “Agreement” means the quote, the Subscriber Agreement, the Appendix 1 – Data Processing Addendum (“DPA”) including the appendices to the DPA: “Technical and organisational measures” (“TOMs”) and the sub-processors list), and where applicable, the Standard Contractual Clauses.
   • “Applicable Laws” means all statutes, statutory instruments, orders, rules, regulations, instruments, provisions in each case that applies to this Agreement.
   • “Background Material” means all materials, strategies, business concepts, and Intellectual Property Rights owned or licensed by a Party that existed prior to the Effective Start Date of the Agreement or that is created out of the scope of or irrespective of this Agreement.
   • “Client” means the Subscriber as represented in the Quote.
   • “Confidential Information” means all information of a confidential nature disclosed (by whatever means, directly or indirectly) by the Disclosing Party to the Recipient, whether before or after this Agreement becomes effective, including any trade secrets, information relating to the Intellectual Property Rights, system(s), know-how, products or operations, processes, plans, product information, market opportunities or business affairs of the Disclosing Party.
   • “Data Processing Addendum” means the agreement defining the terms and conditions under which the Service Provider (Processor) agrees to perform processing activities of Client Personal Data on behalf of the Client (Controller).
   • “Data Protection Laws” means all European Privacy Laws, where applicable, (i) EU Regulation 2016/679, adopted on 27 April 2016 (“GDPR”), (ii) Directive 2002/58/EC of 12 July 2002 (“e-Privacy Directive”), and any legislation replacing the GDPR and the e-Privacy Directive, (iii) any law, statute or regulation relating to the protection of Personal Data of a Member State of the European Economic Area (“EEA”), which may apply to one of the Parties in the context of its data processing activities or its establishment in the EEA, and all subordinate legislation made under them.
   • “Deliverables” means any outputs of the Services to be provided by the Service Provider to Client as specified in the quote.
   • “Effective Start Date” means the date on which this Agreement enters into force, being the date on which the Services are made available to the Client.
   • “End Date” means the date on which this Agreement ceases to be in force, being the date on which the Services cease.
   • “Fees” means the fees, excluding taxes, as set out in the quote.
   • “Good Industry Practices” means the exercise of reasonable skill, care, prudence, efficiency, foresight and timeliness which would at that time be expected from a skilled, trained, experienced, specialised professional.
   • “Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. The Solution or SaaS platform and its components are the intellectual property of the Service Provider or are subject to intellectual property rights owned or licensed by the Service Provider. The Solution is part of the Service Provider’s intangible assets, know-how.
   • “Managed Services” means the specific additional consulting services to be provided by the Service Provider, as further described in the quote, and to which the Client has subscribed in the quote.
   • “Managed Service Term” means the period during which the service provider performs managed services for the client. This term cannot exceed the Service Term.
   • “Order Form” or “OF” means any appendix setting out changes or amendments to the Agreement. The OF forms an integral part of the Agreement.
   • “Parties” means both AppTweak and the Client referenced together.
   • “Service Provider” means AppTweak.
   • “Service Term” is equivalent to the License Term and means the period beginning on the Effective Start Date and concluding on the End Date, as specified in Clause 17.
   • “Services” means the services to be provided by the Service Provider as further described in the quote.
   • “Site” means the general and informative website https://apptweak.com and the Solution https://app.apptweak.com.
   • “Solution” means the SaaS platform or online application developed by the Service Provider.
   • “Terms & Conditions” are the general terms and conditions of the Service Provider as set out in the Quote.
   • “Users” means any individual to whom the Client chose to give access to the Solution, and for whom the Client needs to communicate some personal data and information to the Service Provider, who are uniquely identified to have access to the Solution on behalf of the Client. The User must be a natural person of legal age, enjoying full legal capacity and complying with the Agreement.

2. PREAMBLE

   1. If any Services are commenced at the request of the Client without an Agreement being signed, if applicable, or otherwise agreed in writing, the provisions of this Agreement, including, but not limited to the limitation of liability provisions, will apply to such Services undertaken prior to the signature or the relevant Agreement for the provision of such Services.
   2. If there is any conflict between the quote of the Agreement, the Agreement and any document referred to in this Agreement the following order of precedence shall apply:
      • the Quote;
      • the Agreement;
      • other documents referenced in this Agreement.

3. SCOPE

   1. The Client hereby appoints the Service Provider, on a non-exclusive basis, to provide the Services, and, where applicable, the managed services described in the Quote of the Agreement and, subject to the terms of this Agreement, the Service Provider hereby accepts the appointment. The Service Provider provides the Client with access to the Solution under the conditions set out in the Subscriber Agreement. Only if the Client has subscribed to the managed services in the quote will the applicable Managed Services provisions apply to the Client. The terms of this Agreement apply to any and all documents referenced in this Agreement, with the exclusion of the Client’s own terms and conditions which are hereby explicitly rejected.
   2. The Services are strictly limited to the domain(s) explicitly listed in this Agreement. Any domain not expressly listed shall be excluded from the scope of this Agreement. Additional domains may be added subject to additional fees and must be agreed upon in writing by both parties. For the purposes of this Agreement, a “domain” refers to a unique root domain (e.g., example.com) and does not include subdomains unless explicitly stated otherwise. The Service Provider reserves the right to suspend access to the Services, block the account, or terminate this Agreement in the event of use outside the agreed scope, including but not limited to use on unlisted domains.

4. PERFORMANCE OF SERVICES

   1. The Service Provider shall perform the Services in a professional manner in accordance with any Applicable Law and Good Industry Practice. Each of the Services shall be provided for the period set out in the quote of the Agreement.
   2. The Service Provider shall use reasonable efforts to respect the timelines agreed upon in the quote of the Agreement. Should, despite such efforts, delays be encountered versus the agreed-upon timelines, Service Provider shall notify the Client within a reasonable time thereof and both Parties shall discuss and agree in good faith how to address the delays encountered, taking into account the importance of the timing for Client.

5. TECHNICAL SUPPORT SERVICES

   1. For the duration of this Agreement, the Service Provider commits to making all reasonable efforts to remedy any failure of the Solution that results in a complete stop, error traceback, or security breach, and is not directly caused by a defective use of the Solution by the Client, for example, when the Solution does not produce the results or performance it was designed to produce (hereinafter a “Technical Failure”), submitted by the Client by e-mail (info@apptweak.com) or by chat.
   2. Service Provider’s technical support for the use of the Solution includes the provision by e-mail or by chat of technical advice, assistance, and support to the Client on the use and configuration of the Solution every opening day (Belgian calendar) from 09:00 am to 17:00 pm, and provision of assistance regarding Solution updates.
   3. Other guidance or assistance requests may be covered through the purchase of a specific Plan (as described in the “pricing” tab on the Site). In case it’s not clear if a request is covered by the Agreement or Plan, the decision is at the discretion of the Service Provider.
   4. Both parties acknowledge that as specified in Clause 15 (LIABILITY) of this Agreement, the Service Provider cannot be held liable for Technical Failures in the Solution.

6. USE AND ACCESS TO THE SOLUTION

   1. License
      1. The Client can only use the Solution hosted on the SaaS Platform. The SaaS Platform is hosted and fully managed by the Service Provider and accessed remotely, via the Internet (Software-as-a-Service) by the Client. The right of use is understood to mean the right to represent and implement the Solution in accordance with this Agreement, in SaaS mode via a connection to an electronic communications network.
      2. The Service Provider grants the Client a personal, non-exclusive, non-assignable, and non-transferable worldwide license, for the entire duration of the Agreement.
      3. The Client may only use the Services in accordance with its needs and for internal business purposes only. In particular, the license relating to the Solution is granted for the sole and exclusive purpose of allowing the Licensee to use the Solution, to the exclusion of any other purpose.
      4. It is forbidden to:
         • allow a third party to use your account;
         • use the Solution to process data of a third party, and/or cause the Solution to be available to any third party;
         • use the Solution or Data in violation of any Applicable Law or in a manner that promotes illegal activities, including, without limitation, Data Protection Laws and other rights of third parties;
         • disparage or misrepresent the capabilities or reputation of the Service Provider;
         • use the Solution, Background Materials, and Deliverables to compile databases or similar services;
         • resell or commercialise access to or the use of the Solution to any third party; and
         • use the Solution to create, build, develop, or commercialise competitive Services;
         • make any adaptation, modification, translation, arrangement, distribution, decompilation of the Platform, or reverse engineering, without this list being exhaustive.
   2. Users’ conditions of use and access to the Solution
      1. We may enable Client Users to establish an account with a username and password to access and use certain areas of the Site and Services (see the “Pricing Tab”). Client Users’ access to their User Accounts is conditional upon their express acceptance of the Agreement.
      2. You must provide your full legal name, a valid email address, User last name and first name, country, password, (optional: company name, billing address, and tax ID number), and other information we request in order to complete the signup process. The User is also invited to read the Privacy Policy describing the use made of his/her User Data by the Service Provider. The Policy is available by clicking on the following link: privacy policy.
      3. Access to the Solution is limited to users associated with one or more email domains authorized for the applicable account (“Authorized Domains”). Depending on the subscription plan selected, an account may be limited to a maximum number of Authorized Domains.
      4. AppTweak may require users to register, access the Solution, or be invited to an account using an email address associated with an Authorized Domain. AppTweak may prevent the creation of new accounts or the invitation of additional users if the email domain used is not authorized for the relevant account.
      5. You may not create an account unless you are 18 years or older.
      6. You are responsible for maintaining the strict confidentiality of your account password, and you are responsible for any activity using your account and password. You agree to immediately notify us of any unauthorized use of your password or account or any other breach of security. It is your sole responsibility to control the dissemination and use of your password, control access to and use of your account, and notify us when you desire to cancel your account. We will not be responsible or liable for any loss or damage arising from your failure to comply with this provision.
      7. Login details may only be changed by a User, or when invited to do so by the Service Provider. If a User loses or wants to change his/her password, he/she should click on the “Forgot password?” button on the login page and then reset your password. Password change is also possible from the user account setting once he/she is logged in.
      8. Accounts registered by “bots” or other automated methods are not permitted.
      9. AppTweak reserves the right, at its reasonable discretion, to restrict or refuse certain email domains from registering for the Solution or being added to an account (“Restricted Domains”). Restricted Domains may include, without limitation:
         • publicly available or disposable email domains;
         • domains associated with fraudulent, abusive, or excessive use of the Solution;
         • domains that AppTweak reasonably believes are used to circumvent subscription limits, trial conditions, or contractual obligations.
      10. The list of Restricted Domains may be updated from time to time based on AppTweak’s observations and risk assessments.
      11. Upon creation of the account, you will automatically be added to our mailing list. You may choose to remove your email address from this mailing list by selecting the “unsubscribe” link at the bottom of any email communication we send you.

7. AVAILABILITY

   1. The Service Provider shall make the Services available 24 hours a day, 7 days a week, including bank holidays except for:
      • scheduled maintenance provided that Service Provider has given Client a public communication on its website (www.apptweak.com);
      • Outages or disruptions attributable in whole or in part to a Force Majeure event (as defined in the Agreement).

8. SECURITY OBLIGATIONS

   1. Each Party shall:
      • maintain reasonable security measures to protect the other’s systems to the extent that such systems are used in the provision or receipt of the Services, as the case may be, only, from third parties, and in particular from disruption by any “back door”, “time bomb”, “Trojan Horse”, “worm”, “drop dead device”, “virus” or other computer software routine intended or designed to: (i) permit access or use of information technology systems by a third person other than as expressly authorized; or (ii) disable, damage or erase or disrupt or impair the normal operation of any information technology systems; and
      • not attempt to obtain access, use, or interfere with any information technology systems or data belonging to the other except to the extent required to do so to receive the Services (in the case of the Client), provide the Services (in the case of the Service Provider) or as otherwise permitted under this Agreement; and
      • notify the other of any breach of this Clause 8 or any other event relating to it that is reasonably likely to materially affect the security of the other Party’s systems as soon as reasonably practicable once it becomes aware of the same.

9. CHANGE REQUEST

   1. Any additional services subscribed by the subscriber will be effective after the issue and the acceptance by the subscriber of a new Quote.
   2. Either Party may propose changes to the Quote of the Agreement, but no proposed changes shall come into effect until a relevant Order Form has been signed by both Parties. An Order Form shall be a document setting out the proposed changes and the effect those changes will have on:
      • the Services and Deliverables when applicable;
      • the Fees;
      • the timetable for the Services and/or Deliverables; and
      • any of the other terms of the Agreement.

10. INTELLECTUAL PROPERTY

    1. Each Party will remain the sole owner or licensee of its Background Material. The Parties agree that this Agreement does not confer or imply any right or license on any Background Material except for the licenses or rights of use as set out hereunder.
    2. Service Provider grants to the Client a non-exclusive, non-transferable, license to use the Deliverables from its software.
    3. Service Provider assigns all Intellectual Property Rights, as they are created, all rights to use, reproduce, represent, market, modify, adapt, translate, publish, broadcast, distribute and use on any present or future medium, any element created or produced by the Service Provider specifically and exclusively for the Client as part of the Services, subject to full payment of the fees and full compliance with this Agreement.
    4. In particular, but not exclusively, the Client may not under any circumstances use the Solution, Background Materials, and Deliverables to compile databases or to create, build, develop, or commercialize competitive or similar services, and resell or commercialize access to or the use of the Solution to any third party. Should the Client fail to comply with this clause, the Service Provider reserves the right to suspend or terminate the Agreement in accordance with Clauses 18 and 19.
    5. The Service Provider warrants that to its knowledge the Services will not infringe any Intellectual Property Right of third parties. The Service Provider will defend and indemnify the Client in case a final judgment awarded against the Client by a competent jurisdiction establishes that the Services infringe Intellectual Property Rights of a third party or in case of damages agreed upon in a written settlement agreement signed by the Service Provider (the “Losses”) if the Client:
       • promptly notifies the Service Provider in writing of any threatened or actual claim or suit initiated by a third party;
       • allows the Service Provider to assume the sole control of the defense of such claim and all related settlement negotiations; and
       • provides the Service Provider, at Service Provider’s request and expense, with the assistance, information, and authority necessary to perform the Service Provider’s obligations under this section.
    6. In the event that the Services are held or are believed by the Service Provider to infringe a third party’s intellectual property rights, the Service Provider may, at its option and expense:
       • obtain for Client the right to continue using the Services and the Deliverables in the manner permitted under or as a result of, this Agreement; or
       • modify or replace the infringing part of the Services or the Deliverables so as to avoid the infringement or alleged infringement. The Service Provider shall ensure that such modification or replacement shall have no impact on the business of the Client.
    7. The foregoing section states the Service Provider’s sole and exclusive liability, and the Client’s sole and exclusive remedy, for any claim of infringement.

11. FEES AND PAYMENT

    1. In consideration of the provision of the Services by the Service Provider, the Client shall pay the Fees. The Client shall be responsible for all taxes, such as VAT, sales and use tax, gross receipts tax, withholding tax, and any similar tax, imposed on or in connection with the Services, other than Service Provider’s income and property taxes.
    2. The Fees shall exclude the following costs which shall be payable by Client monthly in arrears, subject to submission of an appropriate invoice: the cost of hotel, subsistence, traveling, and any other ancillary expenses reasonably incurred by the individuals whom the Service Provider engages in connection with the Services, provided always that the Service Provider shall obtain Client’s written approval before incurring any such expense.
    3. The Service Provider will invoice the Client for the Fees at the beginning of the intervals specified in the Quote of the Agreement.
    4. Payments are due at the beginning of the Service Term using the payment methods available in the Quote of the Agreement.
    5. If Client fails to pay all or part of any undisputed invoice within 30 calendar days of receipt of the invoice, the Service Provider may charge, and Client will pay 8% interest per year accruing daily from the date marked on the invoice to the date of full payment (both dates inclusive).
    6. Notwithstanding the foregoing, if the Client fails to make any timely payment required under this Agreement, the Service Provider may, in the Service Provider’s sole and absolute discretion and without limiting any other rights or remedies available to Service Provider, (a) suspend or defer the provision of Services until such failure is remedied and/or (b) terminate the Agreement.

12. FEES REVISION

    1. In the event of a renewal under Clause 17 or an extension via any Order Form, except where specifically agreed otherwise, there will be an automatic indexation of prices at a rate of 8% effective from the new Start Date.

13. WARRANTY

    1. Each Party warrants to the other that:
       • it is duly constituted, organized and validly existing under the laws of the country of its incorporation;
       • it has the legal right and full power and authority to execute and deliver, and to exercise its rights and perform its obligations under, this Agreement and all the documents which are to be executed by it as envisaged by this Agreement; and
       • it shall comply with all Applicable Laws and regulations in performing its obligations under this Agreement;
       • nothing contained in this Agreement will result in a breach of any provision of its constitutional documents or result in a breach of any agreement, license or other instruments, order, judgment or decree of any court, governmental agency or regulatory body to which it is bound.
    2. Except for the European Union, Service Provider does not warrant that the Solution complies with any Applicable Laws, local or international laws, or regulations.

14. INSURANCE

    1. The Service Provider shall maintain during the entire Service Term of this Agreement a comprehensive general liability insurance to cover its liability resulting from the performance of this Agreement.

15. LIABILITY

    1. To the extent provided for in this Clause 15, the Service Provider shall indemnify, defend and hold harmless Client from and against any damage to the extent the damage is caused by, results from, or arises out of the negligence or willful misconduct of Service Provider or the material failure of Service Provider to comply with the terms of this Agreement.
    2. Neither Party shall have any liability in connection with its obligations under the Agreement for special, indirect, consequential, or incidental damages. Subject to Clause 15.5, neither Party shall be liable to the other or to any third party under or in connection with this Agreement or the provision of the Services for:
       • any loss of profit, loss of revenue, loss of contract, loss or corruption of data or loss of goodwill; or
       • any indirect or consequential losses.
    3. Subject to Clause 15.5 and to the maximum extent permitted by law, each Party’s aggregate liability, whether in contract, in tort (including negligence), under statute, or otherwise under or in connection with this Agreement or the provision of the Services shall each be limited to the higher of the aggregate amount of Fees paid to the Service Provider in the twelve (12) months prior to the relevant liability arising. Multiple claims shall not enlarge this limitation.
    4. The Service Provider shall not be liable to the Client or to any third party, whether in contract (including under any indemnity), in tort (including negligence), under statute or otherwise under or in connection with this Agreement or the provision of the Services, for any liability to the extent that such liability is caused by, or is a result of, a breach by the Client to perform any of its obligations under this Agreement.
    5. The limits on liability set out in this Clause 15 shall not apply in respect of:
       • any liability for death or personal injury resulting from a Party’s negligence;
       • any liability for fraud or fraudulent misrepresentation by a Party;
       • any other liability to the extent which it cannot be lawfully excluded.
    6. Each Party shall take any and all reasonable measures to avoid and/or mitigate damages.

16. RELATIONSHIP BETWEEN THE PARTIES

    1. This Agreement does not set up or create an employer/employee relationship, a partnership of any kind, an association or trust between the Parties, each Party being individually responsible only for its obligations as set out in this Agreement and, in addition, the Parties agree that their relationship is one of independent contractors. Save to the extent to which a Party is specifically authorized in writing in advance by the other Party, neither Party is authorized or empowered to act as agent for the other for any purpose and neither Party may on behalf of the other enter into any contract, warranty or representation as to any matter. Neither Party shall be bound by the acts or conduct of the other, save for acts or conduct which the first Party specifically authorized in writing in advance.

17. SERVICE TERM

    1. This Agreement commences on the Effective Start Date and remains in effect until the End Date, as set out in the Quote of the Agreement. This Agreement will be automatically renewed for the same time periods.
    2. Either party may terminate this Agreement by providing the other party with at least three (3) months’ written notice via email sent to info@apptweak.com with dealdesk@apptweak.com in CC. The termination will take effect at the end of the Service Term as outlined in this Agreement, provided that the required notice period has been observed. The termination notice will only be considered valid if the Service Provider confirms in writing that the termination email has been received. If the minimum notification period is not observed, or if receipt of the termination notice is not confirmed by the Service Provider, the notification will be deemed null and void, and the Agreement will automatically renew for a new Service Term.

18. TERMINATION FOR CAUSE

    1. Notwithstanding the provisions of Clause 17 (Service Term), this Agreement (and any Appendix) may be terminated at any moment with immediate effect, without the need to send a prior notice letter or prior Court authorization, and further without any obligation to pay compensation or indemnities, by registered letter:
       • by either Party, if the other Party commits a breach of its obligations under this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 15 calendar days after being notified in writing to do so;
       • by either Party, if the other Party becomes insolvent or bankrupt, is in a state of liquidation, has ceased its business, is unable to fulfill its obligations for legal or statutory reasons, or on the occurrence of any similar event according to the national legislation and regulations of that Party;
       • by either Party, if a situation of force majeure continues for more than two months, upon 15 calendar days written notice.

19. CONSEQUENCES OF THE TERMINATION

    1. Upon expiration or termination of this Agreement for whatever reason, the Client shall compensate the Service Provider in accordance with the terms of the Agreement for the Services performed and Fees or costs incurred until the effective end date of termination.
    2. Each Party shall, as soon as reasonably practicable:
       • return to the other Party all equipment, materials and property belonging to the other Party that the other Party had supplied to it in connection with the supply of the Services under this Agreement;
       • return to the other Party all documents and materials (and any copies) containing the other Party’s Confidential Information;
       • erase all the other Party’s Confidential Information from its computer systems (to the extent practicable); and
       • on request, certify in writing to the other Party that it has complied with the requirements of this Clause.
    3. Any provisions of the Agreement which either expressly or by their nature extend beyond the expiration or termination of this Agreement shall survive such expiration or termination, including without limitation, ownership of a Party’s property, damage liability, warranties, confidentiality, indemnification, governing laws and dispute resolution.

20. FORCE MAJEURE

    1. Neither Party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances, or causes beyond its reasonable control. If the period of delay or non-performance continues for more than two months, either Party may terminate this Agreement by giving 15 calendar days’ written notice to the other Party.

21. CONFIDENTIALITY

    1. Each Party (“Recipient”) undertakes to the other Party (each, a “Disclosing Party”) to treat as confidential all Confidential Information received from the Disclosing Party under this Agreement.
    2. The Recipient agrees:
       • to hold in strict confidence all such Confidential Information and, subject to Clause 21.4, not to disclose it to any third party without the prior written consent of the Disclosing Party;
       • to solely use such Confidential Information for exercising its rights and/or performing its obligations under this Agreement (hereinafter the “Purpose”);
       • to take all reasonable precautions necessary or prudent to prevent material in its possession or control that contains or refers to such Confidential Information from being lost, discovered, used, intercepted or copied by any third party (unless in accordance with Clause 21.4); and
       • to disclose such Confidential Information only to such of its and its affiliates’ directors, officers, employees, professional advisors and their suppliers, on a “need to know” basis, who are required by their duties to have knowledge of the Confidential Information for the Purpose, and on the condition that each such person:
         • is informed that the disclosed information is confidential; and
         • has agreed in writing to be bound by substantially similar obligations of confidentiality and restrictions of use as those set forth herein and not to disclose the Confidential Information to any third party or to use such information except for the Purpose. The Recipient shall be liable for any breach by each such person of the obligations of confidentiality and restrictions of use hereunder.
    3. This Clause 21 shall not apply to any information which the Disclosing Party can demonstrate:
       • is in or subsequently enters the public domain other than as a result of a breach of this Clause 21;
       • has been or is subsequently received by the Recipient from a third party which is under no confidentiality obligation in respect of that information;
       • has been or is subsequently independently developed by the Recipient without reliance on the Disclosing Party’s Confidential Information; or
       • was previously known to the Recipient free of any obligation to keep it confidential (as can be evidenced by the written records of the Recipient).
    4. Notwithstanding the foregoing, the Recipient shall be entitled to disclose Confidential Information to the extent required by law or court order in which event the Recipient shall provide the Disclosing Party, to the extent legally permissible, with written notice that the Confidential Information is proposed to be disclosed sufficiently in advance of the proposed disclosure so as to provide the Disclosing Party with a reasonable opportunity to seek to prevent the disclosure of or to obtain a protective order for the Confidential Information.
    5. The obligations of confidentiality shall be applicable for the Service Term of this Agreement until two (2) years after termination of this Agreement.

22. DATA PROTECTION

    1. In order to provide the Services, when the Service Provider (the “Processor”) processes personal data on behalf of the Client (the “Controller”), the Service Provider undertakes to comply with Data Protection Laws concerning the processing of Personal Data and, in particular, the Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data (hereinafter “GDPR”) and to process the Personal Data as described in the Data Processing Addendum to this Agreement defining the terms and conditions under which the Service Provider (Processor) agrees to perform processing activities of Client Personal Data on behalf of the Client (Controller).
    2. Use of the Site or the Services may result in the collection and processing of personal data by the Service Provider. The Service Provider is committed to protecting the User’s Personal Data in accordance with Data Protection Laws and under the conditions detailed in our Privacy Policy available by clicking on the following link: privacy policy.

23. NON-SOLICITATION

    1. Neither Party shall, nor cause any of its affiliated companies to, induce any employees of the other Party to leave or solicit for employment during the Agreement and for a period of one (1) year following the termination of the Agreement.

24. ASSIGNMENT

    1. The Client’s obligations under this Agreement are personal and may not be assigned, delegated, subcontracted or otherwise transferred without the prior written consent of the Service Provider.
    2. Neither party shall have the right to assign or transfer this contract or any of its obligations, in part or in whole, to any affiliate without the prior written consent of the other party.
    3. Service Provider shall provide App Store Optimization “ASO” all-in-one Software as a Service (SaaS) platform services to Client. These obligations are solely between the Service Provider and Client and do not extend to any affiliates of either party.
    4. If the Client wishes to add affiliates to the scope of this Agreement at any point during the term, such addition shall require the prior written consent of the Service Provider and shall be subject to an additional cost, which will be agreed upon between the parties in writing.

25. MISCELLANEOUS

    1. This Agreement and its Appendices contain the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes and replaces all prior agreements and understandings, whether written or oral, with respect to the same subject matter, still in force between the Parties.
    2. This Agreement may not be modified or amended except by a written agreement that explicitly refers to this Agreement and that is signed by both Parties.
    3. If a provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, that prohibition or unenforceability shall not invalidate the remaining provisions thereof which will remain in full force and effect. The Parties agree to attempt to substitute for any invalid or unenforceable provision, a valid and enforceable provision that achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision. The obligations of the Parties under any invalid or unenforceable provision of the Agreement will be suspended while an attempt at substitution is made.
    4. Any failure or delay by a Party in exercising any right under this Agreement shall not constitute a waiver of its rights under this Agreement or preclude the further exercise of any such rights unless waived in writing.
    5. Each Party shall bear the costs incurred by it in connection with the preparation and the performance of this Agreement.

26. APPLICABLE LAW – JURISDICTION

    1. The validity, interpretation and/or execution of the Agreement are entirely and exclusively subject to Belgian law, to the maximum extent permitted by the prevailing rules of private international law.
    2. The Parties irrevocably agree that the Courts of Brussels (Belgium) have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement.