General Terms and Conditions
sympl NV – General Terms and Conditions
1. General and Scope
1. 1. The present general terms and conditions, together with its Annexes, are applicable to the Platform and all Services provided by sympl to the Client, and to each Commercial Offer or Statement of Work executed between sympl and the Client.
1.2. If you are an employee (or contractor) of the Client entering into this Agreement on behalf of the Client, you represent and warrant that (i) you have full legal authority to bind the Client to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree on behalf of the Client to this Agreement.
1.3. The Client expressly waives the application of its own general and special terms and conditions, even where it is stated therein that only those conditions may apply and even if such terms and conditions were not protested by sympl.
1.4. The Client expressly acknowledges and agrees that this Agreement (including any amendment hereto) may be executed and signed through electronic signature technology (including by clicking on a button stating “I accept”, or similar). To the extent that the Agreement is executed or signed electronically, the electronic signature is the legally binding equivalent to their handwritten signature. Delivery of a fully executed copy through electronic signature technology shall have the same force and effect as delivery of an original hardcopy. To the maximum extent permitted by applicable law, the Client will not, at any time in the future, repudiate the meaning of electronic signature or claim that its electronic signature is not legally binding.
1.5. These Terms and Conditions equally apply to Trial Users, it being understood that Trial Users will have a (limited) Trial Account. The scope of the Trial Account shall be determined by sympl in its sole discretion. Trial Users will have all rights and obligations of the Clients during the Trial Term, unless expressly stated otherwise herein or if the context requires otherwise. For the avoidance of doubt, any reference to “Client” shall imply a reference to “Trial User” for the purpose of a Trial Account.
2. Definitions
2.1. In these Terms and Conditions, unless otherwise specified, the following definitions will apply:
"Advertising Budget” has the meaning given to it in clause 5.6.
Affiliate” means, in relation to the relevant Party, any person or entity controlling, controlled by, or under common control with such Party, whereby “control” means the power, direct or indirect, to direct or cause the direction of the management and policies of such entity whether by contract, ownership of shares, membership on the board of directors, by agreement or otherwise and, in any event and without limitation of the foregoing, any entity owning more than 50% of the voting securities of a second entity shall be deemed to control that second entity (and “controlling” and “controlled” shall have a corresponding meaning).
"Agreement” means the entire contractual relation between sympl and the Client, including these Terms and Conditions, its annexes, any Commercial Offer and any Statement of Work (as applicable).
“Business Day” means a normal working day of sympl from 8.30 a.m. to 5.30 p.m. from Monday to Friday, excluding Belgian public holidays.
“Campaign” means a paid advertising campaign to reach job seekers (for a specific Vacancy).
“Client Content” means all content, information, media or data proprietary to, or held by the Client which is (i) provided by the Client to sympl, or (ii) inputted or uploaded by the Platform Users when using the Platform, for the purposes of this Agreement. Client Content may include, but is not limited to, photo and/or video material, job descriptions or requirements, the Client’s company name, logos or brands. Campaigns and Creative Materials shall be considered Client Content.
“Client Personal Data” means the personal data proprietary to or held by the Client, which is inputted or uploaded by the Client (through the Platform Users) when using the Platform and as processed or stored by sympl as a result of the Client (through the Platform Users) using the Platform.
“Client” means the legal entity entering into contractual relations with sympl, as identified in the Commercial Offer.
"Commercial Offer” means the written or electronic document signed by both Parties, regardless of its entitlement, specifying the details of the Licensed Products and the Services subscribed to by the Client, including the specific conditions under which such offer is made and which forms an integral part of the Agreement. For the avoidance of doubt, any reference to Commercial Offer shall include a reference to the feature available in the Platform containing the commercial account information (as applicable).
“Confidential Information” of a Party means the information of such Party, whether in written, oral, electronic or other form, and which (i) is explicitly marked as confidential or proprietary, or (ii) should reasonably be considered confidential or is traditionally recognized to be of a confidential nature, regardless of whether or not it is expressly marked as confidential, including but not limited to, all materials, papers, databases, drawings, diagrams, calculations, figures, procedures, processes, business methodologies, contracts (including this Agreement), financial, technical and legal information, budgets, sales marketing, public relations, advertising and commerce plans, ideas, strategies, projections, business plans, strategic expansion plans, products and product designs. The Confidential Information of sympl shall include, without limitation, the Licensed Products. The Confidential Information of the Client shall include, without limitation, the Client Content.
“Documentation” means the technical and functional product information that sympl (at its sole discretion) generally makes available from time to time to its clients.
“Effective Date” means the date of the last signature of the first Commercial Offer or the date on which the Client accepted this Agreement online (as applicable).
“Fees” means all amounts payable by the Client to sympl under this Agreement such as (without limitation) Services Fees and Subscription Fees.
“Force Majeure” means a temporary or permanent inability of a Party to fulfil its (non-monetary) obligations, resulting from unavoidable, unforeseeable and external facts and circumstances reasonably beyond the control of that Party. The following events shall in any case be considered as Force Majeure (without limitation): war or war risk, insurrection or public revolt, fire caused by an outside calamity, an import or export embargo imposed by the government, floods, explosion, weather conditions, strike or social action, pandemics and all other circumstances generally qualified as force majeure.
“Full Service Package” means the set of additional services provided by sympl in relation to a Campaign or Vacancy as further described in clause 6.1 and the Commercial Offer.
“Hosting Partner” means Digital Ocean (or such other provider of hosting services sympl might contract in the future as will be notified to the Client from time to time).
“Incident” means a malfunctioning of the Platform.
“Initial Term” means the duration set out in the Commercial.
“Intellectual Property Rights” means (non-exhaustive list) patents, trademarks, copyrights, rights in software programs (both in object code and source code), design rights, database rights, proprietary rights in know-how, business names, trade names and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of the afore listed which may subsist anywhere in the world, and any other intellectual or industrial property rights in any country and any existing or future applications for or registrations of such rights.
“Licensed Products” means the Platform and Documentation.
“Out of Scope Incident” means an Incident that is not caused by or related to the Platform such as (without limitation) Incidents due to malfunctioning of interfaces, Incidents induced by the Client due to incorrect use of the Platform, Incidents caused by non-supported data formats; Incidents caused by problems in third party software and Incidents caused by third parties such as Social Media Platforms.
“Parties” or “Party” means the Client and/or sympl (as applicable).
“Renewal Term” means the duration set out in the Commercial Offer.
“Platform” means the proprietary software as a service platform developed by sympl, including the underlying software, computer programs, applications, including but not limited to all algorithms, (source or object) code and methodology pertaining thereto and as further described in the Commercial Offer.
“Platform User” means a physical person in Client’s organization (employees, contractors and/or third party service providers or consultants) who is granted access to the Platform by the Client for the purposes of using the Platform as an end user on behalf of the Client and by feeding it with Client Content in accordance with the Agreement.
“Services” mean the professional services to be delivered by sympl to the Client hereunder, including the services included in the Full Service Package, any recruitment services, support services, or such services as may be agreed between the Parties from time to time and set out in the Commercial Offer and/or a Statement of Work (all as applicable).
“Services Fees” means the amount payable by the Client to sympl in order to receive Services.
“Service Request” means a request raised by the Client for sympl to perform additional Services in accordance with these Terms and Conditions.
“Social Media Platform” means the social media platforms on which the Campaigns and/or Vacancies are launched and published as agreed in the Commercial Offer. The Client acknowledges that in some cases a “Social Media Platform” may also include employment websites.
“Statement of Work” means a written document, regardless its entitlement, that Parties may enter into from time to time describing the services that sympl is to provide in connection with this Agreement. For the avoidance of doubt, a mutually signed proposal shall also be regarded as a Statement of Work for the purposes of these Terms and Conditions. For the avoidance of doubt, any reference to Statement of Work shall include a reference to the feature available in the Platform containing the commercial account information (as applicable).
“Subscription Fee” means the amounts payable by the Client to sympl in order to gain access to the Platform in accordance with the applicable subscription.
“sympl” means sympl NV, a company organized and existing under the laws of Belgium having its registered office at Broederminstraat 36D / 2018 Antwerp (Belgium) and registered with company number BE 0644.814.329.
“Term” means the Initial Term together with any Renewal Term.
“Terms and Conditions” means the present general terms and conditions applicable to all Commercial Offers and Statements of Work agreed upon between sympl and the Client, unless expressly stipulated otherwise in writing.
“Trial Account” means an account with a limited scope of features and functionalities (as made available by sympl in its sole discretion) to which a Trial User subscribes free of charge, but which is only available during the Trial Term and for limited use of the Licensed Products only (as set out in this Agreement).
“Trial Term” means the limited term of thirty (30) days to use the Licensed Products as part of a Trial Account or such other limited term as might be determined in the Commercial Offer.
“Trial User” means a legal entity who is not a Client, has not been a Trial User previously and subscribes free of charge to a Trial Account subject to the terms of this Agreement.
“Vacancy” means a job opening for which the Client searches potential candidates.
3. License
3.1. Subject to the terms and conditions of this Agreement and timely payment of the Subscription Fees, sympl grants to the Client (and to those Affiliates as indicated in the Commercial Offer) a personal, restricted, non-exclusive, non-transferrable and non-assignable license to (i) access and use the Platform through the Platform Users in object code, and (ii) to use the Documentation, for its internal business purposes and in accordance with this Agreement and the applicable Documentation for the Term of the Agreement. Depending on the applicable subscription, different features and functionalities shall be made available in the Platform by sympl at its sole discretion.
3.2. With respect to Trial Accounts, the Trial User is granted a limited, revocable, non-exclusive, non-transferable right to use the Licensed Products during the Trial Term and subject to the Trial User’s continued compliance with this Agreement, it being understood that Trial Users are not charged any Subscription Fees during the Trial Term. The scope of the Trial User’s right to use the Licensed Products shall be determined by sympl in its sole discretion and shall be limited to the features and functionalities made available by sympl in the Trial Account of the Product. sympl shall at all times be entitled to change the scope of the Trial User’s rights. For the avoidance of doubt, Trial Users shall only be able to launch Campaigns via the Platform if sufficient Advertising Budget is purchased in accordance with clause 5.6 and further.
3.3. The extent of the licenses granted under this Agreement is restricted to the scope expressly set forth herein, and there are no implied licenses under this Agreement. sympl reserves any right not expressly granted to the Client hereunder.
3.4. The Client shall comply with all applicable laws relating to the use of the Licensed Products. The Client acknowledges that the Licensed Products may include encryption and may, accordingly, be subject to export or other restrictions.
3.5. Unless to the extent permitted by this Agreement or applicable law, the Client shall not directly or indirectly (including without limitation through the actions of any of its Affiliates, Platform Users, agents, contractors, employees, representatives, subcontractors, or in general, any third party) (i) arrange or create derivative works based on the Licensed Products without sympl’s express written consent; (ii) assign, distribute, sub-license, hire, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Licensed Products, or use the Licensed Products on behalf of any third party or make them available to any third party, nor allow or permit a third party to do any of the same; (iii) copy, duplicate, reverse engineer, reverse compile, disassemble, record or otherwise reproduce the Licensed Products or any part of them except as expressly provided in this Agreement; (iv) remove or alter any copyright or other proprietary notice on any of the Licensed Products.
3.6. The Client is permitted to make as many copies of the Documentation as are reasonably necessary for operational security, disaster recovery or back-up purposes. Such copies shall in all respects be subject to this Agreement and shall be deemed to form part of the Licensed Products and shall be the property of sympl. Any use of the copies made pursuant to this clause is strictly limited to internal use.
4. Delivery & Activation of the Platform
4.1. The Client’s access to the Platform shall be activated promptly after the Effective Date by sending the license key to enable the Client to activate its access. Unless agreed otherwise, the Client is responsible for the activation, installation and/or set-up of the Platform in the Client’s systems.
4.2. The Licensed Products shall be delivered “as is” and shall be deemed accepted by the Client upon the first use thereof.
5. Usage of the Platform
Platform Users
5.1. The Client may create accounts allowing multiple Platform Users to access the Platform. Such user accounts are personal and may not be shared with third parties unless expressly agreed by sympl or otherwise provided herein. The number of Platform Users entitled to access and use the Platform shall be subject to the fair use principle and/or will be defined by the Commercial Offer (as applicable).
5.2. If the Client creates a user account for an external service provider or individual consultant performing services for the Client, such service provider or individual consultant may only use the Platform (i) on behalf of the Client and (ii) to the extent necessary for the services performed for the Client. Any other use of the Platform by the service provider or individual consultant is strictly prohibited (such as, without limitation, performing competing activities based on the Platform or any information acquired through the Platform). The Client undertakes to inform the service provider or individual consultant of the obligation contained herein prior to creating an account and represents and warrants that each service provider or individual consultant shall comply with this clause 5.2. In case the Client breaches this clause 5.2 (either directly or indirectly), the Client shall pay upon first request of sympl a lump sum amount of five thousand euros (5.000 EUR), without prejudice to sympl’s right to initiate legal proceedings and/or to claim additional damages if sympl can establish that it has incurred losses or damages exceeding this amount.
5.3. The Client represents and warrants that the Platform Users shall comply with these Terms and Conditions, the Documentation and any terms of use sympl may make available from time to time (as applicable). The Client remains at all times responsible for its Platform Users’ use of the Platform.
Vacancies
5.4. If the Client (through the Platform Users) uses the configuration options in the Platform with regard to Vacancies and corresponding landing pages (including any application forms or chatbots available on such landing pages), such configurations are subject to the relevant guidelines set out in the Documentation. The Client acknowledges that sympl cannot be held liable for any mistake or other error in a Vacancy or the corresponding landing page that is not configured in accordance with the applicable guidelines. The number of Vacancies that can be created in the Platform per month is limited to the amount specified in the Commercial Offer. Upon request, the Client may purchase additional Vacancies at the then current prices. In such case the Parties shall enter into a new Commercial Offer.
5.5. The Client is responsible to provide the relevant Client Content for each specific Vacancy. Unless the Client has purchased a Full Service Package or other services for such Vacancy (in which case clauses 6.1 and following shall apply), the specific content of the Vacancy (and corresponding landing page) is solely based on the Client Content as delivered by the Client. The Client remains solely responsible for the accuracy and correctness of the specific Vacancy and sympl cannot be held liable for any material errors, typo’s or other mistakes in the specific content of the Vacancy as made available through the Platform.
Advertising Budget and Campaigns
5.6. A Campaign for a specific Vacancy can only be launched if the Client has purchased sufficient advertising budget for such Campaign (hereafter the “Advertising Budget”). Details on the underlying calculation of the Advertising Budget shall be set out in the Commercial Offer.
5.7. If the Client (through the Platform Users) uses the configuration options in the Platform with regard to a Campaign, such configurations are subject to the relevant guidelines set out in the Documentation. The Client acknowledges that sympl cannot be held liable for any mistake or other error in a Campaign that is not configured in accordance with the applicable guidelines.
5.8. The Client is responsible to provide the relevant Client Content for each specific Campaign. Unless the Client has purchased a Full Service Package or other services for such Campaign (in which case clauses 6.1 and following shall apply), the specific content for a Campaign is solely based on the Client Content as delivered by the Client. The Client remains solely responsible for the accuracy and correctness of the specific Campaign and sympl cannot be held liable for any material errors, typo’s or other mistakes in the specific content of the Campaign as launched through the Platform.
5.9. If a Campaign is launched, it shall continue for a period of thirty (30) subsequent calendar days and the related Advertising Budget shall be distributed over such period (or as otherwise specified in the Commercial Offer). Unless to the extent otherwise configured by the Client in the Platform, the Advertising Budget is allocated to advertisements on various Social Media Platforms based on the sympl allocation algorithm depending on behaviour and interests of potential candidates. The Client acknowledges and agrees that the Advertising Budget for such duration shall be an estimation only and shall be subject to the actual costs of the applicable Social Media Platforms. If applicable, sympl shall be entitled to invoice (and the Client shall pay) any additional Advertising Budget.
5.10. The Client acknowledges that during a Campaign, Platform Users may adjust certain configurations of the Campaign (such as increasing the Advertising Budget), which may imply additional costs chargeable to the Client. Such configurations are attributable to the Client and will legally bind the Client to pay any additional costs following thereof. Any such cost shall be additionally invoiced by sympl to the Client. The Client is solely responsible to inform its Platform Users about any applicable internal corporate purchase policies and cannot refuse payment of the additional costs solely because the Platform User in question had no internal purchasing authority.
6. Professional Services
Full Service Package
6.1. If the Client has purchased a Full Service Package with regard to a specific Vacancy and/or Campaign, sympl shall provide such services as further described in the relevant Commercial Offer or the relevant Statement of Work (as applicable) in accordance with the provisions below. The Client acknowledges that the services provided pursuant to a Full Service Package is subject to the provision of sufficient and adequate Client Content by the Client.
6.2. After an intake session during which the Parties shall discuss Vacancy and/or Campaign approach, priorities and “hooks”, all as applicable (which shall be planned in mutual agreement), sympl shall create and/or improve creative materials based on the Client Content provide by the Client (the “Creative Materials”). Following delivery of the Creative Materials to the Client, the Client may request one (1) redelivery of the Creative Materials containing adjustments as suggested by the Client. Any additional revisions or adjustments shall be charged on a time and material basis at the then current rates. The Creative Materials shall be transferred by sympl to the Client in accordance with clause 11.
6.3. If the Client has not purchased a Full Service Package, the Client may order specific services from sympl in relation to Vacancies and/or Campaigns. In such case, clauses 6.1 and 6.2 shall apply mutatis mutandis to such specific services and in accordance with clause 10.
General Provisions
6.4. sympl shall provide any Services hereunder in complete independence and shall plan its activities as it sees fit. This independence constitutes an essential element of the Agreement, without which the Parties would not have concluded it. In no case shall the Agreement be interpreted as an employment contract between the Client and sympl or its employees.
6.5. sympl shall be entitled to reassign or remove any of its resources assigned at sympl’s sole discretion.
6.6. The Client acknowledges and agrees that in order for sympl to effectively perform the Services in a proper, timely and efficient manner, the Client must cooperate with sympl by (i) making available on a timely basis management decisions, information, and approvals; and (ii) at no cost to sympl, providing timely and appropriate access to the Client’s facilities, personnel, equipment, resources and systems, and any relevant information and documentation (to be accurate and complete) as necessary to facilitate performance of the Services.
6.7. The Client shall promptly inform sympl of any delay or particular problem in connection with the performance of the Services.
6.8. sympl shall use best efforts to provide the Services in accordance with the milestones (if any) set out in the Commercial Offer or Statement of Work (which shall be deemed to be indicative only, unless expressly agreed to be binding), generally accepted industry standards and shall exercise reasonable care and skill in doing so.
6.9. The Services and any deliverables shall be delivered “as is” and shall be deemed accepted upon delivery, unless otherwise provided herein.
7. Client Content
7.1. The Client is solely responsible for the accuracy and correctness of any Client Content uploaded in the Platform, used in Vacancies or Campaigns, or made available to sympl for the purposes of its obligations hereunder. sympl shall not be liable for damages or liability resulting from incorrect Client Content distributed through the Platform.
7.2. All Client Content shall remain property of the Client. The Client hereby grants (i) sympl the right to use the Client Content for the performance of its rights and obligations under this Agreement, expressly including the right to publish the Client Content on Social Media Platforms and (ii) the applicable Social Media Platform the right to use the Client Content in accordance with the terms and conditions of such Social Media Platform.
7.3. In particular, the Client acknowledges and agrees that as soon as any Client Content is shared with Social Media Platforms in accordance with the terms and conditions of this Agreement, the Client Content shall be subject to the applicable terms and conditions of the applicable Social Media Platforms and the Client shall thereby grant the applicable Social Media Partner the right to use such Client Content in accordance with such terms and conditions.
7.4. The Client warrants to sympl that the Client Content shall not infringe the Intellectual Property Rights or other legal rights of any third party, and shall not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law. In particular, the Client represents and warrants that it has received the appropriate consents of third parties in order to be able to provide the Client Content to sympl (and the applicable Social Media Platform) in accordance with this Agreement.
7.5. The Client acknowledges and agrees that it shall solely be responsible for the Client Content that is distributed or accessible through the Platform. sympl shall in no event be responsible or held liable for any such Client Content. In particular, the Client represents and warrants that no Client Content is distributed through the Platform that in any manner in sympl’s sole discretion: (i) violates any applicable, local, state, national, regional or international law, statute, ordinance or regulations; (ii) is illegal, criminal, erotic, pornographic, extremist, deceptive, fraudulent or any other action that is unlawful, harmful or invasive of others privacy; (iii) adversely or negatively affects or reflects sympl’s name, reputation or goodwill.
7.6. The Client acknowledges and agrees that any violation by the Client of the provision of this clause 7 shall entitle sympl, at its sole option (i) to immediately terminate (or alternatively, at sympl’s option, refuse or suspend any access to and use of the Platform) for material breach, without any formalities being required and without prejudice to any other rights or remedies available to sympl pursuant to this Agreement or under applicable law; and/or (ii) immediately remove or block the concerning Client Content.
8. Third Party Components, Hosting and Social Media Platforms
General
8.1. The Client acknowledges and agrees that in order to use the Platform, it needs appropriate hardware, networks, operating systems, data transmittal lines with appropriate communication applications and environments.
Hosting
8.2. The Platform will be hosted by sympl in the datacentres of the Hosting Partner. The Client acknowledges and agrees that the hosting services shall at all times be subject to the terms and conditions of the applicable Hosting Partner. The Client acknowledges and agrees that the Hosting Partner retains the right to unilaterally change any such terms and conditions (including the hyperlink to such terms and conditions).
8.3. sympl does not give any direct, indirect, explicit or implicit, warranty whatsoever to provide uninterrupted availability of the Platform, however, sympl shall use its best efforts to provide an monthly uptime of the Platform of 99 % on a 24/7 basis.
8.4. The Client acknowledges that the hosting services and the Platform might not be available during periods of planned maintenance by sympl or the Hosting Provider. If reasonably feasible, any planned maintenance will be performed outside of Business Days and sympl will inform the Client as soon as reasonably possible of any planned maintenance.
8.5. sympl and the Hosting Provider reserve the right to conduct any unplanned maintenance at any time if necessary for security reasons or other reasons requiring immediate maintenance. sympl or the Hosting Partner will not be held liable for any damages resulting from such unavailability of the Platform.
Social Media Platforms
8.6. The Campaigns (and the publishing and sharing thereof) shall at all times be subject to the terms and conditions of the applicable Social Media Platform.
8.7. The Client acknowledges and agrees that sympl shall be dependent on the applicable Social Media Platforms in order to be able to publish and share the Campaigns on such Social Media Platforms. If for any reason sympl is unable to publish and share the Campaigns on the Social Media Platforms (regardless whether it is due to the Social Media Platform’s unavailability, the Social Media Platform’s refusal to publish the Campaign or otherwise), sympl shall not be considered to be in breach with its obligations under this Agreement and shall not be liable for such non-compliance.
9. Support
9.1. As from the Effective Date and subject to the timely payment of the Subscription Fees, sympl shall provide standard technical support services in relation to the Platform in the Client’s production environment in accordance with the provisions set out below.
9.2. If an Incident is encountered by the Client, the Client shall first review and assess the Incident (amongst others via the FAQ). If such assessment shows that the Incident is not an Out of Scope Incident, a Platform User may notify sympl of such Incident by sending an email to the address indicated in the Platform or using the dedicated support button in the Platform (or such other means of communication as may be provided by sympl from time to time) and the Platform User shall specify the details of the Incident (in the format as provided by sympl from time to time). Upon receipt of a ticket, sympl may in its sole discretion determine whether the Incident is an Out of Scope Incident or not and sympl’s classification shall be binding and final. If an Incident is requalified to an Out of Scope Incident, sympl reserves the right to charge the Client any costs that are made in respect of investigating the nature of an Incident on a time and material basis. Moreover, if the Incident is qualified as a Service Request, clause 10 shall apply.
9.3. Upon receipt of a ticket, sympl undertakes commercially reasonable efforts to resolve the Incident, provided that it is not an Out of Scope Incident, as soon as possible, without any commitment whatsoever.
9.4. For the avoidance of doubt, Incidents caused by one the following are not included in the support services, however the Client may request sympl to provide Services regarding such incidents for which sympl may charge additional fees on a time and material basis at the then-current rates (non-exhaustive): (i) Out of Scope Incidents; (ii) abuse or misuse of the Platform; (iii) modification or addition to the Platform not performed by or made without the consent of sympl; (iv) incorrect installation of a fix by a party different than sympl; (v) incorrect configuration not performed by or with the consent of sympl; (vi) the use of incorrect data or data structures; (vii) any installation other than a supported release; (viii) any other environment than the Client’s production environment.
10. Service Requests
10.1. If the Client has logged a Service Request by sending an email to the address available in the Platform or by using the dedicated support button (or such other means of communication as may be provided by sympl from time to time), the Parties shall enter into a Commercial Offer or Statement of Work (as applicable) to mutually agree on the scope of the Services to be provided by sympl in relation to such Service Request. Unless expressly agreed otherwise, sympl shall charge the service provided following a Service Request on a time and material basis at the then-current rates.
11. Intellectual Property Rights
11.1. sympl is and remains the sole and exclusive proprietary owner of all Intellectual Property Rights related to the Licensed Products and the Services (including any new versions, updates, customizations, enhancements, modifications or improvements made to the Licensed Products or the Services). Except for the limited license granted pursuant to clause 3, no other rights in respect of the sympl Intellectual Property Rights shall be granted or transferred to the Client in connection with this Agreement. Except as set out in clause, nothing in this Agreement shall convey any title or proprietary right or Intellectual Property Rights in or over the Licensed Products or Services to the Client or any third party. The Client shall not in any way acquire any title, rights of ownership, copyrights, Intellectual Property Rights or other proprietary rights of whatever nature in the Licensed Products or Services. The Client agrees not to remove, suppress or modify in any way any proprietary marking, including any trademark or copyright notice, on or in the Licensed Products, or visible during its operation or on media. The Client shall incorporate or reproduce such proprietary markings in any permitted back-up or other copies.
11.2. Notwithstanding the foregoing, subject to the Client’s timely and full payment of the Fees relating to the applicable Creative Materials and sympl’s receipt thereof, sympl shall assign all rights, titles and interest, including any Intellectual Property Rights in such Creative Materials to the Client and the Client shall become the owner of such. For the avoidance of doubt, to the extent any Intellectual Property Rights of sympl are included in such Creative Materials, such Intellectual Property Rights shall not be transferred to the Client. The Client hereby grants an irrevocable, worldwide, royalty free license (i) to sympl to use the Creative Materials in order to comply with its obligations under this Agreement (expressly including the right to publish the Creative Materials on the applicable Social Media Platforms) and (ii) to the applicable Social Media Platform to use the Creative Materials in accordance with the terms and conditions of such Social Media Platform.
11.3. Notwithstanding anything to the contrary in this Agreement, sympl shall be entitled to use the ideas, concepts, methodologies, processes and knowhow developed or created by sympl in the course of performing the Services. Nothing in this Agreement shall preclude sympl from acquiring, marketing, developing, providing or using for itself or others, services or other products that have the same or similar functions to the Services and Creative Materials provided to the Client under this Agreement, save to the extent that such use would result in a breach of sympl’s confidentiality undertakings under this Agreement.
12. Confidentiality
12.1. Each Party shall treat as confidential and keep secret all Confidential Information relating to the other Party and shall not disclose it to any third party, other than its employees, advisors, agents or consultants where such disclosure is necessary for the performance of this Agreement and provided that they are bound by confidentiality obligations at least a strict as those provided herein, any Confidential Information learned during the negotiation and performance of the Agreement. Confidential Information disclosed in the Agreement shall not be used by the recipient thereof for any purpose other than as required for the performance of its obligations under the Agreement.
12.2. The Parties shall take sufficient measures to maintain the confidentiality of all Confidential Information. The Parties in particular agree that they (i) shall not copy or otherwise exploit any component of the Confidential Information other than as provided herein, nor make any disclosures with reference thereto to any third party; (ii) shall ensure that all copies of the Confidential Information (made in accordance with the provisions of the Agreement) contain a permanently legible reproduction of the other Party’s copyright notice and a confidentiality notice; (iii) shall promptly notify the other Party if it becomes aware of any breach of confidence and give the other Party all reasonable assistance in connection with the same.
12.3. The provisions of this clause shall not apply to any Confidential Information which (i) is published or comes into the public domain other than by a breach of the Agreement; (ii) can be proven to have been known by the receiving Party before disclosure by the disclosing Party; (iii) is lawfully obtained from a third party that is not bound by a duty of confidentiality; or (iv) can be shown to have been created by the receiving Party independently of the disclosure and other than as part of the project.
12.4. If and to the extent required in accordance with a judicial or other governmental order, the receiving Party may disclose Confidential Information, provided that the receiving Party (i) gives the disclosing Party reasonable notice prior to seek a protective order or equivalent, unless the receiving Party is legally prohibited from doing so; (ii) reasonably cooperates with the disclosing Party in its reasonable efforts to obtain a protective order or other appropriate remedy; (iii) discloses only that portion of the Confidential Information that it is legally required to disclose; and (iv) uses reasonable efforts to obtain reliable written assurances from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection available under applicable law or regulation.
12.5. The obligations set out in this clause 12 shall enter into force as from the start of negotiations between the Parties and shall survive during five (5) years after the termination or expiration of the Agreement. These confidentiality obligations in the Agreement replace any prior non-disclosure agreement signed between the Parties.
13. Privacy and Data Protection
13.1. The Parties shall comply with all applicable legal requirements regarding privacy and data protection, more in particular with the General Data Protection Regulation of 27 April 2016 (hereafter “GDPR”) with respect to the processing of personal data (as defined in the GDPR).
13.2. With respect to Client Personal Data, sympl shall act as a data processor and shall use the Client Personal Data only for the execution of this Agreement and in accordance with the data processing agreement attached to the Commercial Offer.
13.3. The Parties acknowledge and agree that with regard to personal data of any job candidates responding to Vacancies and Campaigns hereunder or personal data that is otherwise shared by sympl pursuant to this Agreement, each Party shall qualify as a data controller in respect of its own processing activities with regard to such personal data. In such case, each Party undertakes in particular to sufficiently inform the job candidate(s) about the means and purposes of the processing of such job candidates’ personal data in accordance with applicable law. If applicable or if reasonably requested by either Party, the Parties shall negotiate in good faith to enter into a data sharing agreement.
13.4. In any event, with respect to any personal data (including Client Personal Data) provided by the Client to sympl, the Client represents and warrants to sympl that (i) it has the legal right to disclose any such personal data to sympl in connection with this Agreement (including, but not limited to, any personal data that is included in the Client Content or might otherwise be disclosed by the Platform Users while using the Platform) and (ii) that the Client has a valid legal ground to process such personal data in accordance with applicable law. The Client undertakes to sufficiently inform all data subjects about such processing activities by the Client and/or sympl (as applicable) in accordance with applicable law. In particular, the Client represents and warrants that each individual that may be identified in photo or video material delivered by the Client, has given the necessary consents for the creation of such materials and for the distribution of such materials on social media and the internet for marketing purposes.
14. Third Party Claims
14.1. The Client shall indemnify, defend and hold sympl harmless from and against any damages, losses, costs and expenses (including reasonable attorney fees) suffered or incurred by sympl (including its Affiliates, agents, contractors, directors, employees or representatives) arising out of Client’s infringement of any third party’s Intellectual Property Rights or any other rights of such third party.
15. Fees and Payment Terms
15.1. Unless otherwise determined in the Commercial Offer or Statement of Work, the Client shall pay any and all fees in the amounts and on the times set forth below and in accordance with the provisions in this clause 15:
15.1.1. Subscription Fees: in advance at the commencement of the Initial Term and each Renewal Term;
15.1.2. Any and all other Fees (expressly including Services Fees): on a monthly basis.
15.2. All invoices shall be paid within fifteen (15) calendar days after the invoice date. If the Parties have agreed to a longer payment term, the Client acknowledges that each invoice shall be increased by the applicable percentage (as specified in the Commercial Offer). Any disputes must be notified by the Client by registered letter (containing the reasons for such dispute) within eight (8) calendar days after the invoice date. If the Client has not disputed an invoice in accordance with the previous sentence, the invoice shall be deemed accepted by the Client.
15.3. Invoices shall be sent in PDF-format to the Client’s email address, specified in the Commercial Offer, or as a physical copy to the Client’s address if specifically requested by the Client in writing. All payments under this Agreement shall be made in euro (€) (or such other currency as agreed by the Parties in the Commercial Offer) and are exclusive VAT and exclusive any other costs and expenses which may be charged separately by sympl (if applicable).
15.4. All amounts payable to sympl under the Agreement shall be paid without the right to set off or counterclaim and free and clear of all deductions or withholdings whatsoever unless the same are required by law, in which case the Client undertakes to pay sympl such additional amounts as are necessary in order that the net amounts received by sympl, after all deductions and withholdings, shall not be less than such payments would have been in the absence of such deductions or withholdings.
15.5. Any amounts of undisputed invoices that have not been paid within fifteen (15) days after the Invoice Date shall automatically and without notice be subject to a late payment interest equal to eight percent (8%) per month or the maximum extent permitted by applicable law. The interest shall be compounded daily as of the due date until receipt of full payment by sympl. In addition the Client shall pay all costs incurred by sympl as a result of the (extra)judicial enforcement of the Client’s payment obligation under this clause. If Client fails to pay any outstanding amounts within thirty (30) days from receipt of a written default notice, sympl shall be entitled to suspend its obligations and the Client’s rights hereunder until receipt of payment of such outstanding amounts.
15.6. During the Initial Term and during each Renewal Term thereafter, sympl reserves the right to change the fees in its sole discretion at any time. Such price adjustment shall become effective the next Renewal Term and sympl shall inform the Client thereof at least one (1) month prior to the end of the then-current Initial Term or Renewal Term. In the event the Client does not agree to such price increase, the Client may terminate the Agreement in accordance with this Agreement.
15.7. Upon conclusion of a Commercial Offer, sympl reserves the right to verify the creditworthiness of the Client. If sympl, in its reasonable opinion, deems the Client’s creditworthiness to be insufficient, all invoices shall be immediately due and the payment term specified in 15.2 shall not apply. sympl shall notify thereof within two (2) business days following the signature date of the Commercial Offer and during three (3) business days following such notice, sympl shall be entitled to immediately terminate the Agreement.
16. Term & Termination
16.1. The Agreement shall commence on the Effective Date and shall continue for the Initial Term. After the Initial Term the Agreement shall automatically and tacitly renew for consecutive Renewal Terms, unless either Party notifies the other Party in writing of its intend not to renew the Agreement at least one (1) month before the end of the Initial Term or the then current Renewal Term or unless terminated earlier in accordance with this clause 15.
16.2. Upon expiry of the Trial Term, the Trial Account shall automatically be converted into the applicable Subscription Plan, unless either Party notifies the other Party in writing of its intend not to renew the Agreement at least one (1) day before the end of the Trial Term. In the event of a conversion, the Trial User shall become a Client and thus shall become liable to pay the applicable Subscription Fee and to comply with all terms and conditions of this Agreement. Notwithstanding the automatic conversion, the Parties may agree on an appropriate Subscription Plan.
16.3. Either Party may immediately terminate (or sympl may alternatively suspend) the whole or any portion of the Agreement without any judicial intervention, without being liable for compensation and without prejudice to its rights to damages and any other rights, remedies and/or claim to which it may be entitled by law, upon providing the other Party with written notice of termination if (i) the other Party performs a material breach to any provision of the Agreement and fails to cure such material breach within thirty (30) calendar days after receipt of the written notice of the material breach (or in case of sympl, if the Client fails to pay the applicable amount within fifteen (15) days after receipt of the written default notice), (ii) the other Party becomes insolvent, is subject to voluntary or involuntary bankruptcy, insolvency or similar proceeding or otherwise liquidates or ceases to do business, or (iii) the other Party breaches its obligations under the provisions regarding the license, Intellectual Property Rights and confidentiality.
16.4. Without prejudice to any other rights and remedies available to sympl, the Client acknowledges and agrees that sympl shall be entitled to immediately terminate the Agreement, without any formalities being required, in case the Client breaches or violates (i) the terms and conditions of the Hosting Partner, the Social Media Platform or the applicable third party software; (ii) the provisions of clause 7; or (iii) sympl’s Intellectual Property Rights (expressly including the license grant pursuant to clause 3) or Confidential Information.
17. Consequences of Termination
17.1. Upon termination of the Agreement for whatsoever reason (i) the Client shall promptly pay to sympl all amounts due and payable under this Agreement up to and including the date of termination; (ii) all licenses granted to the Client shall automatically terminate; (iii) except as otherwise provided herein or as required to comply with any applicable legal or accounting record keeping requirement, each Party shall return the other Party’s Confidential Information that are in the possession or under the control of that respective Party (or alternatively destroy any copies thereof that cannot be returned and confirm the other Party in writing that such copies have been destroyed).
18. Warranty
18.1. The Client acknowledges and agrees that the Licensed Products and Services are provided “as is” and to the maximum extent permitted by applicable law, sympl does not make any representations or warranties, express or implied, concerning any matter under this Agreement (including the Licensed Products and Services) and sympl disclaims any representations or warranties, express or implied, including (without limitation) any implied warranties of accuracy or completeness of data, fitness for a particular purpose, merchantability, or non-infringement.
19. Limitation of Liability
19.1. Subject to the maximum extent permitted under applicable law, sympl’s liability under the Agreement shall per event (or series of connected events) and in the aggregate per Initial Term or Renewal Term (as applicable) be limited to and not exceed an amount equal to the Fees paid during the Initial Term or the applicable Renewal Term (as applicable) during which the liability event occurred.
19.2. The Trial User acknowledges and agrees that, subject to the maximum extent permitted under applicable law, sympl’s liability under this Agreement in respect of Trial Accounts shall in no event exceed one (1) EUR as Trial Users do not pay any fees.
19.3. Subject to the maximum extent permitted under applicable law, under no circumstances shall sympl be liable to the Client for any indirect, punitive, special, consequential or similar damages (including damages for loss of profit, lost revenue, loss of business, loss of corruption of data, loss of customers and contracts, loss of goodwill, the cost of procuring replacement goods or services, and reputational damage) whether arising from negligence, breach of contract or of statutory duty or otherwise howsoever.
19.4. sympl shall not be held liable in any way, neither contractually nor extra-contractually, for discontinuing an older release of the Platform or for damages caused by the wrongful (or out of scope) use of the Platform.
20. Miscellaneous
20.1. Entire agreement – The Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior oral or written agreements, representations or understandings between the Parties relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in the Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of the Agreement.
20.2. Severability – If any provision of the Agreement is held to be unenforceable (in whole or in part), the other provisions shall nevertheless continue in full force and effect. The provisions found to be unenforceable shall be enforceable to the full extent permitted by applicable law. Each Party shall use its best efforts to immediately negotiate in good faith a valid replacement provision with an equal or similar economic effect.
20.3. Waiver – The terms and conditions of the Agreement may be modified or amended only by written agreement (including through electronic signature technology) executed by a duly authorized representative of both Parties hereto. This Agreement may be waived only by a written document signed by the Party entitled to the benefits of such Terms or Conditions. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or conditions, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent.
20.4. Survival – The provisions of the Agreement that are expressly or implicitly intended to survive termination, shall survive expiration or termination of the Agreement, including without limitation, the provisions relating to Intellectual Property Rights, Confidential Information and limitation of liability.
20.5. Assignment – sympl may assign, transfer and/or subcontract the rights and obligations under this Agreement to any third party. The Client shall not assign or otherwise transfer any of its right of obligations under the Agreement without sympl’s prior written consent.
20.6. Force Majeure – Neither Party will be responsible or liable for any failure or delay in the performance of its (non monetary) obligations under the Agreement arising out of or caused by Force Majeure. In the event of Force Majeure, the Party shall inform the other Party at least within reasonable time about the nature of the Force Majeure and the fact that it wants to rely on this clause. The Party must, within reasonable time, provide the other Party with evidence of the existing Force Majeure, the date when the Force Majeure comes or has come into effect, and also when it will have ceased to exist. In case of Force Majeure, the Party is obligated to mitigate damage, and must use its reasonable efforts to keep the consequences to a minimum. In the event of a failure to comply with the abovementioned procedure, the Party shall be prevented to rely on the Force Majeure event and the Force Majeure clause.
20.7. Notices – Any notice required to be served by this Agreement shall in first instance be given by electronic mail to the email addresses specified in the Work Order (or as otherwise provided by the Parties). All notices given by electronic mail, shall only be valid upon confirmation of receipt expressly given by electronic mail by the receiving Party.
20.8. Interpretation – In the Agreement (unless the context shall otherwise require or permit) (i) reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted; (ii) words importing the singular include the plural, words importing any gender include every (non binary) gender and words importing persons include bodies corporate and incorporate; and each case vice versa; (iii) the headings or captions to the clauses are for ease of reference only and shall not affect the interpretation or construction of the Agreement.
20.9. Conflict – In case of conflict between the provisions of the contractual documents executed between the Parties, the first document shall prevail over the below documents, unless expressly agreed otherwise between the Parties in writing:
(i) the applicable Commercial Offer or applicable Statement of Work,
(ii) the annexes,
(iii) these Terms and Conditions.
20.10. Relationship of the Parties – The relationship between sympl and Client is that of independent contractors.
20.11. Publicity – sympl shall have the right to use any trademarks, logos or other marks of the Client (including the Client’s corporate name) for client references and use cases on sympl’s website, social media announcements and sales presentations. With respect to the publication of more detailed case studies or blogposts, the Parties shall agree on the content and manner of publication thereof in mutual consent.
20.12. Dispute resolution – Before initiating proceedings before the competent courts, the Parties shall exercise reasonable good faith efforts to amicably settle any disputes that might arise during the execution of this agreement.
20.13. Applicable law and jurisdiction – The Agreement shall be governed by and construed in accordance with the laws of Belgium and the Parties hereto submit to the exclusive jurisdiction of the courts of Antwerp. The United Nations Convention for the International Sale of Goods shall not apply to the Agreement.
Contact?
If you have any questions or comments about the Processing of your Personal Data by sympl, want to have your data removed, or have a complaint regarding the Processing of your Personal Data, please contact sympl NV, attn. Data Protection Officer, Broederminstraat 36D, 2018 Antwerpen, Belgium, mark@sympl.be and 03-294.73.59