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The SRL NOVUTECH, with registered offices at Rue Longue 171, 1420 – Braine-L’Alleud, Belgium, and known in the “Banque Carrefour des enterprises” / “Kruispuntbank van Ondernemingen” under the number 0725.984.919 (hereinafter “NOVUTECH”) offers a bundle of services called “ConnectoBank Bundle” (hereinafter “the Bundle”), in relation with the Customer’s the NetSuite environment.

The present Terms and Conditions (hereinafter “the T&C”), their annexes and the Quote constitute the entire agreement between NOVUTECH and the Customer (hereinafter “the Agreement”) in relation to the provision of the Bundle.

NOVUTECH and the Customer are each individually referred to as a “Party” and are collectively referred to as the “Parties“.

1. Definitions

In the T&C, the following terms shall have the following meanings ascribed to them:

1.1. Annual Fee: amount to be paid to NOVUTECH by the Customer, on a yearly basis, to continue to benefit from the Bundle.

1.2. Background: the cloud based application components which are part of the Bundle and are necessary for the Services to be provided by NOVUTECH.

1.3. Bundle: the pack of Services provided by NOVUTECH to the Customer in the context of the Customer’s NetSuite environment.

1.4. Business Day: any day from Monday to Friday inclusive, excluding public holidays in Belgium.

1.5. Confidential Information : all information of a confidential nature of NOVUTECH or the Customer disclosed by whatever means, directly or indirectly, intentionally or unintentionally, whether before or after the Agreement becomes effective, including any trade secrets, information relating to the Intellectual Property Rights, system(s), know-how, products or services, operations, processes, plans, product information, market opportunities or business affairs of the person/entity making the disclosure, or which relates to the provision or use of the Bundle to or by the Customer and is prepared, devised or written by NOVUTECH.

Information relating to the Parties or their subcontractors, suppliers, customers, clients or other contacts which is disclosed to, or processed or otherwise handled by, either the Customer, or NOVUTECH, in the course of the performance of their respective obligations under the Agreement as well as in the course of the negotiation, development and conclusion of the Agreement is deemed to be of a confidential nature;

1.6. Customer: any natural person or entity that purchase the Bundle from NOVUTECH.

1.7. Force Majeure: any delay, execution failure, damage, loss or destruction, or malfunction affecting the provision of the Bundle, or any consequence thereof, caused or occasioned by or due to force majeure event, such as, but not limited to, flooding, inclement weather, storms, floods, droughts, fire, earthquakes, destruction by thunderbolt, power outages, explosions, wars, riots, destruction of machinery or equipment, unavailability of means of transport, malfunctions or interruptions in the electrical network or telecommunication, strikes, occupancy of premises, work stoppages, acts or omissions of third parties, or any other cause beyond the reasonable control of each Party preventing the normal performance of the Agreement and which cannot be resolved by reasonable measures ;

1.8. Intellectual Property Rights: all patents, copyrights, design rights, trademark rights, trade name, trade secret, skill, database right, and any other intellectual property right (registered or not) and all applications of these throughout the world;

1.9. NetSuite: a group of software services used to manage the Customer’s business operations and client relations, owned and operated by a Third Party Supplier

1.10. Quote: the contractual document describing at least the services to be provided by NOVUTECH in the context of the Bundle and the price of the Bundle.

1.11. Third Party Supplier: any supplier whose services/components specified in the Quote and that are necessary in order for the Bundle to be functional

1.12. Services: the services provided by NOVUTECH and which are part of the Bundle.

2. T&C acceptance and opposability

2.1. By signing the Quote, the Customer is considered as having agreed the last version of the T&C.

2.2. The T&C may be amended at any time by NOVUTECH depending on the evolution of the applicable rules and its own needs. The new T&C apply as soon as they are published on NOVUTECH’s Website, at the following address: https://www.novutech.com/connectobank-terms-and-conditions/

3. Quote and conclusion of the Agreement

3.1. When receiving a request from the Customer, NOVUTECH issues a Quote describing at least the Bundle content and rates and submits it to the Customer. All rates quoted in NOVUTECH Quote are valid for a maximum of three (3) weeks, unless expressly otherwise stated in the Quote.

3.2. Any Quote is, by nature, non-final and may be subject to changes until NOVUTECH’s received of the signed Quote. Only the reception by NOVUTECH of the signed Quote makes binding commitments and constitutes the Agreement between the Parties.

4. Price and payment

4.1. Every invoice sente by NOVUTECH must be paid within one (1) month from their issue date.

4.2. Payment of a set-up fee (“one time set up”), which amount is specified in the Quote, is requested by NOVUTECH. In the absence of payment of the specified amount within a one (1) month period from the Agreement’s effective date, NOVUTECH reserves the right to terminate the Agreement, without prior warning and without compensation to the Customer.

4.3. When specified in the Quote, NOVUTECH shall invoice the costs of Third Party Suppliers’ services and/or components to the Customer.

4.4. The invoices relative to the Annual Fee are sent on a yearly basis to the Customer.

4.5. When payment is not received within the specified timeframe, NOVUTECH is allowed to suspend, without warning, the provision of the Bundle.

4.6. Any challenge about the invoice(s) must be addressed in writing to NOVUTECH within seven (7) Business Days from their issue date. After that period, the invoice(s) will be considered as irrevocably accepted by the Customer.

5. Scope and provision of the Services

5.1. Services which are part of the Bundle, and therefore subject to the Agreement are the ones described in the Quote.

5.2. Any modification of the Services occurring after the Quote signature must be the subject of a prior written agreement by NOVUTECH and, if applicable, a new Quote.

5.3. The Customer acknowledges that the provision of certain services and/or components by identified Third Party Suppliers is necessary in order for the Bundle to be functional. The said services and Third-Party Suppliers are identified in the Quote.

5.4. The provision of the needed services and/or components specified in clause 5.3 is done by the relevant Third Party Suppliers according to their own service levels. It is the sole responsibility of the Customer to assess the relevance of the Third Party Suppliers’s service levels in relation with its own activity.

5.5. Except when stated otherwise in the Quote, all materials used in the context of the Services’ provision are sole property of NOVUTECH. When the provision of the Services requires it, NOVUTECH may grant to the Customer a non-exclusive license to use such materials for a duration equivalent to the one of the Agreement, unless the Quote states otherwise. This license does not include the right to sublicense, sell or otherwise multiply or disclose the software in any way. The compensation for this licence is encompassed in the Annual Fee.

6. Background

6.1. Upon commencement of the Agreement, NOVUTECH will as quickly as possible provide Customer with the Background described in the Quote. Delivery of the Background is done online through the NetSuite service. The Customer shall provide NOVUTECH with the NetSuite account ID information that is required to identify the Customer on the NetSuite platform for the delivery of the Background. The Customer shall also provide NOVUTECH with the necessary access and authorization on its NetSuite account to perform the installation of the Background.

6.2. Form the date specified on the Quote, NOVUTECH grants to the Customer a non-exclusive license to use the Background for a duration equivalent to the one of the Agreement, unless the Quote states otherwise. This license does not include the right to sublicense, sell or otherwise multiply or disclose the software in any way. The compensation for this licence is encompassed in the Annual Fee.

6.3. NOVUTECH remains the sole holder of the Intellectual Property Rights on the components composing the Background. None of these components may be copied or used without the prior written permission of NOVUTECH, except and to the extent permitted by mandatory law.

6.4. By no means, the signature of the Agreement may be construed as an assignment of any Intellectual Property Right to the Customer.

6.5. NOVUTECH is not the holder of Intellectual Property Rights pertaining to other software, coding languages, etc. potentially required for the Background’s proper operation. The licences and other conditions of use specific to these third party components shall apply, as the case may be. It is the sole responsibility of the Customer to obtain such rights and authorization pertaining to those components.

6.6. NOVUTECH reserves the right to momentarily interrupt, suspend or modify the access the Background for maintenance or technical reasons. Such occurrences will be announced fourteen (14) days before they take place. NOVUTECH may by no means be held liable of the potential harm suffered by the Customer due to the temporary unavailability of the Background due to maintenance operations.

6.7. Customers are encouraged to suggest new features and improvements. The final decision to implement any of the changes is solely up to NOVUTECH.

6.8. Updates and upgrades are periodically and automatically pushed to the Customer through the NetSuite Platform.

7. Liability

7.1. Unless explicitly provided otherwise, all the obligations of NOVUTECH under the Agreement are obligations of means.

7.2. The timelines potentially communicated by NOVUTECH are only indicative.

7.3. The Bundle is provided as it is, without any warranty in respect to its performances and to its adequation to the Customer’s activity specific needs.

7.4. Each Party shall seek to limit the damage as much as possible, whether resulting from its own failure or the failure of the other Party.

7.5. Except expressly otherwise stated in this Agreement, neither Party shall be liable for any damage beyond the liability cap equal to the amount paid by Customer in the twelve (12) calendar months prior to the moment the cause of the damage occurred.

7.6. No Party limits or excludes its liability for fraud or wilful misconduct.

7.7. Neither Party shall be liable for indirect or consequential damage under or in connection with the Agreement or under or in connection with the Agreement, including without limitation financial damage, commercial loss resulting from the use or impossibility to use the Bundle, in whole or in part.

7.8. NOVUTECH shall not be held liable for any damages in connection with the provision of Third Party Suppliers’ services and/or components specified in clause 5.3 of present Agreement. NOVUTECH shall neither be held liable for any unavailability of the Bundle due to a Third Party Supplier’s behaviour.

8. Force majeure

8.1. Neither Party shall be liable for any non-performance of its obligations, to the extent that such non-performance was directly caused by a Force Majeure event.

8.2. The Party claiming force majeure shall only be excused provided that it (a) continues to use all reasonable endeavours to limit the effect of non-performance and to recommence performance as soon as possible and (b) immediately notifies the other Party by telephone (to be confirmed in writing within five (5) days of the inception of such non-performance) and describes in reasonable detail the circumstances causing such Force Majeure event and the likely duration of the non-performance. In any such case, the performance of the affected Party’s obligations, to the extent affected by the cause, shall be suspended during the period that the Force Majeure event persists. If performance is not resumed within thirty (30) days after the notice from the affected Party to the other Party, the other Party may terminate this Agreement, immediately and without any compensation, by written notice to the affected Party.

9. Confidentiality

9.1. The Parties agree that the following terms apply when a NOVUTECH discloses Confidential Information to the Customer and when the Customer discloses Confidential Information to the NOVUTECH.

9.2. The Parties undertake to treat as confidential all Confidential Information in any medium or format, which they receive from each other.

9.3. The Parties shall use Confidential Information they disclose to each other, process or otherwise handle in the course of the negotiation, development and conclusion of the Agreement for the sole purpose of the negotiation, development and conclusion of the Agreement. The Parties shall not copy or reproduce such Confidential Information in any form whatsoever except as may be strictly necessary for the purposes of the negotiation, development and conclusion of the Agreement.

9.4. The Parties shall in addition:
a) use the utmost care and discretion to avoid disclosure, publication, or dissemination of Confidential Information;
b) use Confidential Information only for the purpose for which it was disclosed under the Agreement;
c) observe a general obligation of discretion regarding the information received from each other;
d) ensure that their personnel, affiliates, directors, officers, agents who will be working on the provision of the Bundle are bound by all obligations of confidentiality under this clause 9;
e) keep secret and preserve the confidentiality of all Confidential Information disclosed to them;
f) ensure that access to Confidential Information is limited to directors, officers, employees and professional advisors who reasonably need to know the Confidential Information to carry out the proper execution of the Agreement; and
g) be liable for any breach of this clause by any of their directors, officers, personnel or professional advisors.

9.5. A Party shall not disclose, publish, or disseminate the terms of the Agreement without the prior written consent of the other Party, except to the extent permitted by this clause.

9.6. The Parties shall protect Confidential Information for as long as the Confidential Information is in their possession, without the possibility of contractual waiver or limitation.

9.7. When the Confidential Information is no longer regarded as relevant, upon request from a Party, and upon termination of the Agreement, the other Party shall promptly return all Confidential Information, or any item thereof if such is requested, having come into the other Party’s possession as a part or result of the Agreement. Upon request by a Party and in any case upon termination of the Agreement, the other Party shall destroy or cause to be destroyed all Confidential Information. In these cases, that Party shall confirm in writing that it has destroyed all Confidential Information and provide up-to-date list of destroyed materials.

9.8. Except to the extent and for the duration required in order for the Parties to comply with their obligations under the Agreement, nothing in this clause shall be construed so as to grant to a Party any right, whether by ownership, license or otherwise, in the Intellectual Property Rights of the other Party.

9.9. This clause shall not apply to any information which:
a) is or becomes generally available to the public other than as a result of a breach of this clause;
b) is acquired from a third party owing no confidentiality obligation to a Party, in respect of that information, where the use or disclosure accords with rights lawfully granted by that third party;
c) is independently developed by a Party without use of the other Party’s Confidential Information as evidenced by written records;
d) is already known by the other Party at the time of its receipt, as evidenced by its written records; or
e) a Party is required by any applicable legislation to disclose, provided always that a Party should, to the extent reasonably possible whilst complying with the applicable legislation, notify the other Party of such requirements prior to any such disclosure and provide the notified Party with a reasonable opportunity to contest the requirement to disclose the information or to limit the extent of the disclosure.

10. Processing of personal data

10.1. Each Party Parties shall comply with all data protection and privacy laws applicable to it and shall not, by any act or omission, put the other Party in breach of any data protection or privacy laws (in so far as such laws are applicable to the said other Party) in connection with the Agreement.

All the terms which are not defined in the present provision have to be understood in accordance with the relevant European Union legislation on data protection.

10.2. NOVUTECH collects Customer personal data via the Background, on the instructions of the Customer, on the behalf of the Customer, and for the Customer’s own purposes, in his data controller quality.

The Customer, acting as data controller, undertakes to comply with all legislation specified in clause 10.1.

The Customer hereby grant a general authorization to NOVUTECH to engage any subprocessor it sees fit for the provision of the Bundle. NOVUTECH shall however inform the Customer in case of any subprocessor’s inclusion or replacement.

NOVUTECH, acting as a processor, shall only process the Customer personal data on instruction of the Customer, and to the extent necessary for the Bundle provision, unless required to do so by Union or Member State law to which NOVUTECH is subject. May that be the case, NOVUTECH shall inform the Customer of the said legal requirement before the processing unless that law prohibits such information on important grounds of public interest.

NOVUTECH, acting as a processor, undertake to
a) Ensure that the personnel authorized to process Customer personal data are bound by an appropriate confidentiality obligation ;
b) take appropriate technical and organizational measures against the unauthorized or unlawful processing of the personal data and against actual loss or destruction of, or damage to, the personal data and be responsible for safeguard of personal data;
c) notify immediately to the Customer any breach of security or non-compliance with the Agreement which might affect the confidentiality or integrity of personal data processed under the performance of the Agreement, and share with the Customer any useful information regarding the origin, scope and consequences of the problem, so that the other Party, as a data controller, will be in a position to comply with its legal obligations to inform the competent authorities and data subjects. In such a case, NOVUTECH shall also provide any useful assistance to the Customer regarding the implementation of any measures which might be ordered by the competent authorities to fix the issue or mitigate the risks;
d) Assist the Customer in the fulfilment of his obligation to answer to data subject right’s requests;
e) Assist the Customer in regard to his compliance with the obligations imposed to him by article 32 to 36 of GDPR;

NOVUTECH only collects and processes the following Customer personal data on the behalf of the Customer:

a) Banking information of the Customer’s employee(s)/client(s)/supplier(s) (name, surname, bank account number, employees’ revenue);
b) Authentication information of the users allowed by the Customer to use the Bundle (name, surname, credentials)

10.3. Personal data relating to either Party staff (name, surname, position, contact details) are processed by the other Party in accordance with the General Data Protection Regulation (GDPR) and any applicable implementation rules for the needs of the performance of the Agreement:

a) to enable the performance of the Agreement and its follow-up by both Parties, including invoicing and payment;
b) to enable each Party relevant staff to contact the other Party relevant staff, as required for the proper performance of the Agreement.

The provision of the personal data relating to the other Party staff is a requirement for entering and performing the Agreement.

Personal data relating to the other Party staff can also be processed by each Party based on its legitimate interest to run its usual business:

a) for security reasons and to prevent fraud,
b) for internal monitoring of the Agreement performance,
c) to inform the other Party staff on and/or request consent for any possible additional purpose of processing.

Where strictly necessary, the personal data relating to the other Party staff may be communicated to the following third-parties:

a) the group to which belongs the concerned Party, for monitoring and reporting purposes,
b) BPOST or any similar company in charge of delivery of letters or parcels,
c) the public administrations in charge of tax and social security, the accountants of the Parties, to ensure compliance with the concerned Party legal obligations.

The personal data relating to the other Party staff shall be stored for no longer than ten (10) years after the termination of the Agreement.

Any transfer of the personal data relating to the other Party staff outside of the European Union is subject to the strict compliance with the requirements set forth in the GDPR, i.e. implementation of all appropriate measures through the signature of a contract with the recipient, based on the standard clauses edited by the European Commission (this contract being available for review at the head office of the concerned Party).

For any GDPR related enquiry, each Party can be contacted as follows:

a) for NOVUTECH : welcome@novutech.com

b) for the Customer: the email address specified on the Quote;

Each Party or its staff may (upon request dated and signed sent by email to the other Party with the proof of the data subject identity) obtain, free of charge if it is a reasonable volume, the written communication of processed personal data and the portability of the data, as well as, where appropriate, rectification, restriction of processing, deletion of those which are inaccurate, incomplete or irrelevant. The application is considered as dismisses where no action has been taken on the application within thirty (30) days of the request. You may apply to or lodge a complaint with the Belgian Data Protection Authority (Rue de la presse 35, 1000 Brussels – contact@apd-gba.be – Tel. + 32 2 274 48 00 – Fax + 32 2 274 48 35) for the exercise of these rights.

11. Non-solicitation

11.1. During the term of the Agreement, as well as for a period of one (1) year after the expiry or termination of the Agreement, neither Party shall in any form whatsoever, directly or indirectly, proceed to
a) employ an employee or a former employee of the other Party directly involved in the provision of the Bundle until six (6) months after the termination of his (employment) contract or;
b) enter into a cooperation on an independent basis, (directly, via any company or via a third party), with an employee or a former employee of the other Party for six (6) months after the termination of his (employment) contract, unless this is done with the other Party’s express prior written consent.

11.2. The Party acting in breach of present clause shall forfeit an immediately due and non-mitigable compensation of six (6) months’ gross wage and salary of the employee concerned, without prejudice to the right to claim additional compensation.

12. Term and termination

12.1. The Agreement begins on the effective date specified in the Quote.

12.2. The Agreement is concluded for an initial period of three (3) years.

12.3. During the initial period mentioned in clause 12.2., and unless explicitly agreed otherwise in the Agreement, neither Party may unilaterally terminate this Agreement before its minimum term has expired, unless for cause, in the following circumstances:
a) Insofar as legally possible, either Party shall have the right, without prejudice to its other rights or remedies, to terminate the Agreement with immediate effect (without necessity for judicial action) by written notice to the other Party in the event the other Party becomes insolvent, applies for bankruptcy, or an order is made or a resolution passed for the bankruptcy, liquidation, administration, winding-up or dissolution of the other Party, or a trustee, liquidator, administrator or similar officer is appointed over all or any substantial part of the assets of the other Party, or anything similar to the foregoing occurs.
b) Each Party shall have the right, without prejudice to its other rights or remedies, to terminate the Agreement with immediate effect (without necessity for judicial action) by written notice to the other Party in the event that Party is in material breach of the Agreement and either that breach is not capable of remedy or, if the breach is capable of remedy, the Party in breach has failed to remedy the breach within thirty (30) days after receiving written notice of default requiring it to do so.

12.4. At the expiring of the initial period specified in clause 12.2., the Agreement is silently renewed with successive terms of a one (1) year period (renewal period).

12.5. During each renewal period, the Customer may terminate the Agreement per the end of a renewal term while taking into account a three (3) months ‘notice period.

12.6. During these renewal periods, each Party may also terminate the Agreement following the terms of clause 12.3 a) and b).

12.7. All obligations of the Parties that accrued prior to termination of this Agreement shall survive termination of this Agreement.

13. Interpretation of the T&C

13.1. Except when stated otherwise, the plurals terms encompass the singular terms and conversely.

13.2. The terms which are not defined in clause 1 are to be understood in their common sense.

13.3. Express when stated otherwise, the enumerations are never limitative.

14. Severability

14.1. If any provision or part of provision of the T&C is held to be invalid, illegal, or unenforceable, the remaining provisions of T&C or parts thereof will not in any way be affected or impaired, and the invalid, illegal, or unenforceable provision or part thereof will be restated to reflect the original intentions of the Parties as nearly as possible in accordance with applicable legislation and preserving to the fullest extent possible the intent and agreements of the Parties as set forth in the Agreement.

14.2. Each Party shall use its best effort to immediately negotiate, in good faith, a valid replacement clause which shall preserve intent and agreements.

15. No waiver

15.1. Neither failure to exercise nor any delay in exercising any right, power or remedy by a Party operates as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting such waiver unless it is made in writing.

16. Independence

16.1. NOVUTECH and its employees are independent contractors and nothing in the Agreement shall render them an employee, an agent or partner of the Customer. NOVUTECH shall not and shall ensure that its employees shall not hold themselves out as such. NOVUTECH and its employees shall not have any right or power to bind the Customer to any obligation towards any third-party.

16.2. NOVUTECH is retained or engaged by the Customer only for the purpose of providing the Bundle to the extent set forth in the Agreement. NOVUTECH’s relation to the Customer shall, during the term of the Agreement, be that of an independent contractor and as such NOVUTECH shall be free to dispose of such portion of its time, energy and skill in such a manner as NOVUTECH sees fit.

16.3. The Agreement shall not establish a joint venture, agency or partnership between the Customer and NOVUTECH.

16.4. NOVUTECH shall not be considered under the Agreement or otherwise or in any way as having the status of employee or being entitled to participate in any plans, schemes, arrangements or distributions by the Customer pertaining to or in connection with any person, stock, bonus, profit sharing or other benefits provided ordinarily by the Customer to its employees.

17. Assignment

17.1. The Customer may not transfer, assign or novate its rights and/or obligations, under the Agreement without the prior written consent of NOVUTECH.

17.2. Any assignment, transfer or novation of all or any part of the Agreement or attempt thereto, that does not comply with this clause, is void and shall have no effect. Such an attempt will be considered as a material breach of the Customer.

18. Notifications

18.1. All notices that a Party is required or permitted to provide to the other Party in connection with this Agreement shall be in writing and shall be done at the address/contact details mentioned in the Quote. A notice shall be deemed to have been duly given:
a) on the date of delivery mentioned on the proof of delivery, when sent by registered or certified mail, postage prepaid and with proof of delivery;
b) the first Business Day following the day the notice is sent, if sent by facsimile or by email provided that the facsimile or email transmission is promptly confirmed by telephone or by an electronic receipt;
c) the date of delivery, if delivered personally to the intended recipient;

18.2. If a Party wishes to modify the address/contact details, it shall send the new address/contact details to the other Party, according to the contact details provided on the Quote.

19. Applicable law and dispute

19.1. This Agreement is governed by and interpreted in accordance with Belgian law.

19.2. The courts of Brabant-wallon shall have exclusive jurisdiction to settle any disputes arising out of or in connection with this Agreement.

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