1.2. Confidential Information
The term “Confidential Information” means information which has been or which may be disclosed, either orally or in writing, by one party (the “Provider”) to the other party (the “Recipient”) in confidence or marked “Confidential”, including, without limitation, information concerning any aspect of the business of the Provider or its parent, financial statements, business and marketing plans, pending or threatened litigation, prospective contractual relations, collection, tabulation and analysis of data, computer programming methods, designs, specifications, plans, drawings and similar materials, programs, databases, inventions (whether or not eligible for legal protection under patent, trademark, or copyright laws), research and development, and/or work in progress. Confidential Information also includes any document marked “Confidential”. Notwithstanding the foregoing, Confidential Information does not include any information which: (a) is or was in the public domain at the time communicated to the Recipient, or which becomes public through no fault of the Recipient; (b) is or was obtained by the Recipient, with permission to disclose, from a third party not, to the Recipient’s knowledge, subject to a contractual, fiduciary or other duty not to disclose; (c) has been independently derived by the Recipient without reference to Confidential Information; or (d) was lawfully in the Recipient’s possession free of any duty to the Provider before the date of disclosure to the Recipient by the Provider.
1.3. End User
1.4. Development license
License to install, develop, test and evaluate the Product.
The Software-as-a-Service platform as set up by Themosis and through which the Software is made available to Licensee.
The software program, in object code format, listed and described on https://support.themosis.com, including all present and future bug fixes, corrections, updates, upgrades, modifications, new features or functionalities and documentation.
The installation of the Software, integration of the system and Support to End Users as described on https://support.themosis.com.
Themosis’s trademarks, trade names, company names, logo’s, used to identify herself, its products and services.
The Themosis Support website accessible through https://support.themosis.com.
Themosis Support allows to create help desk tickets on a user-based scope in order to ask for dedicated support in order to implement the Themosis framework on one or multiple end-user projects/applications.
The Software includes the following, distinctive features:
- Support tickets
- Priority order based on a premium subscription
Any amendments, additions or deletions may be made to these features and will be send to the subscriber.
3.1. In order to access the Software through the Platform, the Licensee has to fill in the Registration Form on the Website with his personal information. This form must be completed correctly and entirely. Themosis can unilaterally, immediately, definitely and without prior notice terminate / disconnect the account linked to an incomplete or incorrect Registration.
3.2. Licensees are not allowed to use third parties identities, proxy’s, temporary email addresses and more than one (1) username.
3.3. The account is created strictly for the Licensee, he is not allowed to share this account with third parties, except with the completion of its team by inviting members. Every Licensee who has a subscription can manage its team (organization) and invite others, users, into his team. Each user can create tickets, without any limit, and manage the access of the users in his team. Only the original creator, the ‘owner’ of the team is allowed to manage the payment details.
3.5. Themosis reserves the right to agree or refuse the Registration and the right to warn Licensee or to refuse temporarily or definitely the access to the Website and/or Software. This may notably be refused, based on any of the following reasons:
- Licensee does not communicate the data asked for the identification or communicates incomplete or wrong data;
- Licensee tries to register more than once e.g. under different pseudonyms;
- Licensee uses a third party’s identity;
- Any other reason based on which Themosis can reasonably decide to refuse the Registration.
4. Duration – Termination
- If a substantial part or the entire body of the Licensee’s assets is sold;
- If the Licensee suspends all payments, files a voluntary petition in bankruptcy, is declared bankrupt or starts liquidation or similar proceedings;
- If there is a major change of the Licensee’s shareholding structure or if the control over the Licensee’s business changes hands;
5. Conditions Subject of License
5.1. The Software is offered to the Licensee to be used as-a-Service (SaaS).
This means that access to the Software is delivered by Themosis on a hosted third party server, hired, rented or leased by Themosis as an integrated part of Themosis’s service proposal towards Licensee.
5.3. If the Licensee is a business or organization, the Licensee agrees that upon request by Themosis or a Themosis authorized representative and within 7 days, the Licensee shall fully document and certify, i.e. to support with evidence on a case by case basis, that its use of the Software at the time of the request is in conformity with the License granted by Themosis.
5.4. Except for the limited rights and license expressly granted hereunder, no other license is granted, no other use is permitted and Themosis (and its suppliers) shall retain all right, title and interest in and to the Software (and all patent rights, copyright rights, trade secret rights and all other intellectual property and proprietary rights embodied therein).
6. Updates and Support
6.1. Themosis may ensure such periodical updates for the Software and its functionalities as it deems required at its own discretion.
Themosis may update the Software without notifying you, and you hereby consent to Themosis applying patches, updates, and upgrades. Themosis may modify, suspend, discontinue, substitute, replace, or limit your access to any aspect of the Software at any time.
6.2. If the Licensee is experiencing technical problems with the Software or system, but in Themosis’s sole judgment, the problem is caused by something other than the Software and not a direct responsibility of the working of the Software, Themosis cannot provide additional support to help remedy the problem, nor at standard service rates.
Technical problems or support questions which are not directly caused by the Software and which require additional support as set out under the present article 6.2. may include (by way of example, but not by way of limitation) the following matters as illustrative examples of additional support that cannot be provided by Themosis:
- Computer viruses not introduced by the Software as delivered by Themosis
- Problems with the Licensee’s hardware
- Problems with the Licensee’s software
- Problems with the Licensee’s backup and recovery services
- Problems arising from the installation or use of uncertified third-party software
- Problems with the Licensee’s network
- Networking issues not caused by the Software
- Servicing, repairing, relocating, re-installing or moving any hardware
If it is unclear at the time of appearance of the technical problem whether the cause is external, Themosis will work with the Licensee to determine the cause. Once it has been established that the cause is indeed external, the Licensee becomes responsible for further escalation.
Themosis supports the Licensee with assistance in solving problems arising from the use of the Software, hardware interfacing of peripheral devices and logging of enhancement requests and bugs submitted by the Licensee.
Themosis does not offer training, Maintenance or direct Support to staff or partners of Licensee. Licensee is exclusively responsible for all training, maintenance and support towards its staff and partners regarding the Software.
6.4. Support offered by Themosis to Licensee, in the scope of his Software use, includes:
- Providing support by e-mail only at firstname.lastname@example.org
- Themosis reserves the right to add new features, which can be consulted on https://support.themosis.com
Support does not include:
- Any external components/software needed for the new functionalities
- Travel expenses
6.6. All Support offered by Themosis, on the Software use by the Licensee and its Service, is offered on a best efforts basis. Themosis does not guarantee response and intervention times and is not liable for any direct or indirect damages to Licensee unless shortcomings to best efforts are proven.
7. Pricing & Payment
7.1. All license fees consist of a lump sum fee per team per month, which are non-refundable and non-fractionable in weekly or other periodical payments. Invoicing for cost per team is made up front for the upcoming month. The fee includes access to the Platform and Support as described at any given time on the Website.
8. General Terms of Payment
8.1. All invoices, with monthly subscription fees, will be generated as a PDF to download and stored into the Licensee (owner) account and are automatically charged at the start of each billing period. Payments have to be completed with credit card, unless alternative payment methods have been agreed in writing.
8.2. In order to be valid, all protests regarding subscription fees must be submitted immediately by email.
8.3. All delivered goods, including software licenses, user accounts and passwords, shall remain Themosis’s property until full payment of all invoices.
9. Intellectual Property and data processing
9.1. The Software is licensed, not sold to the Licensee. The Licensee does not obtain any property right on the Software. At all times, Themosis remains the exclusive owner of the Software, as well as the exclusive holder of all copyrights and other intellectual property rights on this Software. Its code, structure and organisation are valuable trade secrets of Themosis and its suppliers which are protected by Belgian copyright laws and international treaties.
9.2. Themosis may, to the extent that personal data in the sense of the General Data Protection Regulation is processed, be considered to be a data processor for the Licensee, who acts as a Data controller. In such case, Themosis will only process the personal data provided by the Licensee and only for the purpose for which it is provided by the Licensee. Themosis guarantees that it fully complies to all obligations under the General Data Protection Regulation, both in relation to its obligations as a processor towards Licensee and in general. It guarantees that it has taken all reasonable technical and organisation precautions to ensure safe data processing and that it shall comply to all obligations towards Licensee as described in the General Data Protection Regulation. All data is processed within the European Union.
10. Disclaimer of Warranty
10.1. The Software and its Documentation is provided “as is” and with all its faults.
10.2. Any use of the Software by the Licensee is under its own responsibility and at its own risk. Themosis does not guarantee compliance to tax laws or other laws or regulations at any moment. Licensee is sole responsible for the accuracy of data input into the Software, data processing by the Software based on Licensee’s input and data output by the Software as well as for the use of data output made by Licensee and respect for all laws to which Licensee may at times be subject, including amongst others, but not limited to, anti-money laundering laws and regulations, tax laws and regulation, financial laws and regulations.
10.3. The software and support services are provided “as is” without warranty of any kind. Themosis does not warrant that the software or support services will meet Licensee’s requirements or that they will be uninterrupted or error-free. To the fullest extent permitted by law, Themosis hereby disclaims (for itself and its suppliers) all other warranties, whether express or implied, oral or written, with respect to the software and support services including, without limitation, all implied warranties of title, non-infringement, quiet enjoyment, integration, merchantability or fitness for any particular purpose and all warranties arising from any course of dealing, course of performance or usage of trade.
11. Control of Proceedings
11.1. The Licensee shall forthwith inform Themosis in writing about the existence and substance of any legal action based on the allegation that the Software infringes any intellectual or industrial property right of any third party and leave the handling of the case entirely to Themosis, including making a settlement.
12. Ownership & Confidentiality
12.1. Price offers, studies, projects, invoices, documents, software code, interpretations, arrangements, ideas, etc., regardless of the techniques used, shall remain the exclusive property of Themosis and shall under no circumstances be communicated to third parties, in full or in part, without the prior written permission of Themosis. Reprinting or copying of the Software in any form whatsoever and using any process whatsoever, constitutes an act of forgery and/or unfair competition, if carried out without the prior written permission of Themosis.
13. Publicity & Testimonials
13.1. The Licensee explicitly consents to the use of its trading name within any promotional material to be published by Themosis in the future. Such promotional material will not contain any Confidential Information and shall be limited to reference to the fact that Themosis has developed the Software license of the Licensee.
13.2. The Licensee agrees to provide a testimonial to the developer for use in promotional material.
13.3. If Themosis wishes to use the Licensee’s business cases for promotional purposes, it will ask Licensee’s permission to do so. Such permission shall not be denied for other than serious reasons.
14. Third Party Licenses
15. Applicable Law – Competent Court
17. Force Majeure
17.1. Neither Party shall be liable for failure or delay on its part in performance of any of its obligations or for any loss, charge or damage suffered by the other Party if such fact shall be the result of or arising out of circumstances of Force Majeure character such as fire, natural disaster, intervention by public authorities or any other cause beyond the control of the signatories; and if such fact has been notified in writing by the signatory claiming Force Majeure promptly to the other upon occurrence.
18. General Terms and modifications