General Terms & Conditions
- General and Scope
- The present general terms and conditions, together with its Annexes, are applicable to each Commercial Offer or Statement of Work executed between Chatlayer and the Client and to all Licensed Materials and Services provided by Chatlayer to the Client.
- 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.
- 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 Chatlayer.
- The Client expressly acknowledges and agrees that this Agreement (including any amendment hereto) may be executed and signed through electronic signature technology. 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.
- These Terms and Conditions equally apply to Demo Users, it being understood that Demo Users will have a (limited) Demo Account. The scope of the Demo Account shall be determined by Chatlayer in its sole discretion. Demo Users will have all rights and obligations of the Clients during the Demo 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 “Demo User” for the purpose of a Demo Account.
- In these Terms and Conditions, unless otherwise specified, the following definitions will apply:
“Add-On” means an addition of a certain Feature or Functionality that is not included in the applicable Subscription Plan. Chatlayer reserves the right at all times to determine which specific Feature and Functionality it may separately offer. Upon request, Chatlayer shall inform the Client of the available Add-Ons.
“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 Chatlayer and the Client, including these Terms and Conditions, its Annexes, any Commercial Offer and any Statement of Work (as applicable).
“Product User” means a physical person in Client’s organisation (employees and contractors) who is granted access to the Product by the Client for the purposes of (i) using the Product by feeding it with content (such as, without limitation, Client Data) in accordance with clause 6 in order to use the Product in accordance with clause 3 and (ii) receiving Maintenance Services in accordance with clause 8. The amount of Product Users is strictly limited to the amount corresponding to the applicable Subscription Plan as identified in the Commercial Offer.
“Business Day” means a normal working day of Chatlayer from 8.30 a.m. to 5.30 p.m. from Monday to Friday, excluding Belgian public holidays.
“Chatlayer” means Chatlayer BV, a company organized and existing under the laws of Belgium having its registered office at Ankerrui 9 v2, 2000 Antwerpen, (Belgium) and registered with company number BE 0691.917.430, which developing & distributing the Product Chatlayer .
“Client Data” means all data proprietary to, or held by the Client which is inputted or uploaded by the Client, the Product Users or the End Users when using the Product and as processed or stored by Chatlayer as a result of the Client, the Product User or the End User using the Product. Client Data shall also include output data resulting from the processing by the Product of the entered data by the Client, the Product User or the End User.
“Client Personal Data” means the personal data proprietary to or held by the Client, which is inputted or uploaded by the Client, the Product Users or the End Users when using the Product and as processed or stored by Chatlayer as a result of the Client, the Product User or the End User using the Product.
“Client” means the legal entity entering into contractual relations with Chatlayer, as identified in the Commercial Offer.
Out of Scope Incident” means an Incident that is not caused by or related to the Product such as (without limitation) Incidents due to malfunctioning of interfaces, Incidents caused by non-supported data formats and Incidents caused by problems in third party software.
“Commercial Offer” means the written or electronic document signed by both Parties, regardless its entitlement, indicating the applicable Subscription Plan and (as applicable) the nature, the number of, and other specifics of the Licensed Materials 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.
“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 Chatlayer shall include, without limitation, the Licensed Materials.
“Demo Account” means an account with a limited scope of Features and Functionalities (as made available by Chatlayer in its sole discretion) to which a Demo User subscribes free of charge, but which is only available during the Demo Term and for limited use of the Licensed Materials only (as set out in this Agreement).
“Demo Term” means the limited term of 30 days to use the Licensed Materials as part of a Demo Account or such other limited term as might be determined in the Commercial Offer.
“Demo User” means a legal entity who is not a Client, has not been a Demo User previously and subscribes free of charge to a Demo Account subject to the terms of this Agreement.
“Documentation” means the technical and functional product information that Chatlayer generally makes available from time to time to its clients.
“Effective Date” means the effective date as set forth in the Commercial Offer.
“End User” means any individual to whom the Product will be made available by the Client and who will be able to use the Product as an end user, e.g. the End User of the Product available in a channel such as web, messaging or telephone.
“Features or Functionalities” means the features or functionalities available in the Product as included in the applicable Subscription Plan such as (without limitation) number of chatbots, number of test bots, number of Product Users, volume of messages, communication channel through which the Products can be made available to End Users and any other variable specific to a certain Subscription Plan. Chatlayer reserves the right to add or remove Features or Functionalities at any time.
“Force Majeure” means a temporary or permanent inability of a Party to fulfil it (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.
“Hosting Partner” means Google (or such other provider of hosting services Chatlayer might contract in the future as will be notified to the Client from time to time).
“Incident” means a malfunctioning of the Product.
“Initial Term” means the duration set out in the Commercial Offer.
“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 Materials” means the applicable Product and Documentation as identified in the Commercial Offer.
“Maintenance Services” are the maintenance and support services related to the Product provided by Chatlayer to the Client as described in clause 8.
“Parties” or “Party” means the Client (and/or the Demo User, as applicable) and/or Chatlayer.
“Product” means the software, computer programs, platforms, applications, including but not limited to all algorithms, (source or object) code and methodology pertaining thereto as described in the Commercial Offer.
“Renewal Term” means the duration set out in the Commercial Offer.
“Resolution Time” means the period starting at the end of the Response Time and ending when a resolution to an Incident has been provided by Chatlayer to the Client.
“Response Time” means the period starting from the moment when Chatlayer has investigated an Incident and the Incident Report provided by the Client and ending when Chatlayer has provided a written acknowledgement that the Incident report has been received and understood.
“Services Fee” means the services fee specified in the Commercial Offer or the Statement of Work (as applicable) in respect of the Services.
“Services” mean development, implementation and integration services (including, but not limited to customisations), Maintenance Services or such other services in relation to the Product to be delivered by Chatlayer to the Client as may be agreed between the Parties from time to time and set out in the Commercial Offer and/or a Statement of Work.
“Statement of Work” means a written document that Parties may enter into from time to time describing the Services that Chatlayer is to provide in connection with the Licensed Materials.
“Subscription Fee” means the amounts payable by the Client to gain access to and use the Licensed Materials and to receive Maintenance Services as specified in the Commercial Offer.
“Subscription Plan” means the commercial feature-based model pursuant to which the Client purchases the Product. Each Subscription Plan comes with a different Subscription Fee and includes different Features and Functionalities.
“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 Chatlayer and the Client, unless expressly stipulated otherwise in writing.
- Subject to the terms and conditions of this Agreement and timely payment of the Subscription Fees, Chatlayer grants to Client (and to those Affiliates as indicated in the Commercial Offer) a personal, restricted, non-exclusive, non-transferrable and non-assignable license to use the Licensed Materials through its Product Users in object code and to make the Product available to the End Users, both in accordance with this Agreement and the applicable Documentation for the Term of the Agreement.
- With respect to Demo Accounts, the Demo User is granted a limited, revocable, non-exclusive, non-transferable right to use the Licensed Materials during the Demo Term and subject to the Demo User’s continued compliance with this Agreement, it being understood that Demo Users are not charged any Subscription Fees during the Demo Term. The scope of the Demo User’s right to use the Licensed Materials shall be determined by Chatlayer in its sole discretion and shall be limited to the Features and Functionalities made available by Chatlayer in the Demo Account of the Product. Chatlayer shall at all times be entitled to change the scope of the Demo User’s rights.
- 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. Chatlayer reserves any right not expressly granted to the Client hereunder.
- The Client shall comply with all applicable laws relating to the use of the Licensed Materials. The Client acknowledges that the Licensed Materials may include encryption and may, accordingly, be subject to export or other restrictions.
- 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, Product Users, End Users, agents, contractors, employees, representatives, subcontractors, or in general, any third party) (i) arrange or create derivative works based on the Licensed Materials without Chatlayer’s express written consent; (ii) assign, distribute, sub-license, hire, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Licensed Materials, or use the Licensed Materials 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 Materials 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 Materials.
- 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 Materials and shall be the property of Chatlayer. Any use of the copies made pursuant to this clause is strictly limited to internal use.
- The Licensed Materials shall be delivered “as is” and shall be deemed accepted by the Client upon activation thereof.
- Subscription Plans
- The Product is provided pursuant to different Subscription Plans as communicated by Chatlayer to the Client. Each Subscription Plan comes with access to different Features and Functionalities. The Client shall be entitled to use such Features and Functionalities as set out in the applicable Subscription Plan (which shall be specified in the Commercial Offer) or as additionally ordered in accordance with clause 2 below.
- If the Client wishes to make use of additional Features and Functionalities other than included in the relevant Subscription Plan, it may at any time request the purchase of Add-Ons to its Subscription Plan for which the Parties shall sign a new Commercial Offer. Upon request, Chatlayer shall inform the Client of which Add-Ons are available and the applicable costs.
- Chatlayer at any time reserves the right to retroactively charge any amounts corresponding to the any use of such additional Features and Functionalities in excess of the amounts or volume allowed under the relevant Subscription Plan (including but not limited to, the number of Product Users or volume of messages). In such event, Chatlayer shall send a correcting invoice, which shall be payable in accordance with the relevant provisions provided in this Agreement.
- Activation and Services
- Unless Services relating to the installation of the Product are requested pursuant clause 2 below, the Client shall be responsible for performing the necessary software development works to install a version of the Product and integrate such Product in the Client’s systems. For the avoidance of doubt, any such installation or integration shall be in accordance with the Documentation or any other written instructions provided by Chatlayer
- The Client may request Chatlayer to perform certain Services and Chatlayer may in its sole discretion agree to provide such Services. In such case, the Parties shall enter into a Statement of Work detailing the scope of the Services to be provided and the applicable Services Fees which may be on a time and material basis or fixed price basis as determined by the Parties. Any such Services shall be provided in accordance with this Agreement, expressly including the applicable Statement of Work.
- The Services shall be delivered “as is” and shall be deemed accepted by the Client upon delivery thereof by Chatlayer.
- Client Data
- The Client acknowledges that the Product consists of certain algorithms and artificial intelligence and that for a proper and seamless functioning of the Product, the Client is responsible to feed the Product with sufficient Client Data. Except for Client Data inputted by End Users, Client Data may only be inputted by Product Users and in accordance with the guidelines provided in the Documentation.
- The Client shall solely be liable and responsible for the accuracy and correctness of Client Data. Chatlayer shall not be liable for damages or liability resulting from incorrect Client Data inputted in the Product.
- All Client Data shall remain property of the Client. The Client hereby grants Chatlayer the right to use such Client Data (including any other content and information provided, transmitted or uploaded through the Licensed Materials) for the performance of its obligations under this Agreement and to improve the functioning and provision of the Licensed Materials.
- The Client warrants to Chatlayer that the Client Data 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.
- The Client acknowledges and agrees that its shall solely be responsible for the Client Data that is distributed or accessible through the Product. Chatlayer shall in no event be responsible or held liable for any such Client Data. In particular, the Client represents and warrants that no Client Data is distributed through the Product that in any manner in Chatlayer’s sole discretion: (i) violates any applicable, local, state, national, regional or international law, statute, ordinance or regulations; (ii) is illegal, criminal, deceptive, fraudulent or any other action that is unlawful, harmful, threatening, abusive, harassing, tortious, violent, defamatory, vulgar, obscene, invasive of others privacy, hateful racially, ethnically or otherwise objectionable; (iii) adversely or negatively affects or reflects Chatlayer’s name, reputation or goodwill.
- The Client acknowledges and agrees that any violation by the Client of the provision of this clause 6 shall entitle Chatlayer, at its sole option (i) to immediately terminate (or alternatively, at Chatlayer’s option, refuse or suspend any access to and use of the Product) for material breach, without any formalities being required and without prejudice to any other rights or remedies available to Chatlayer pursuant to this Agreement or under applicable law; and/or (ii) immediately remove or block the concerning Client Data.
- Third Party Components and Hosting
- The Client acknowledges and agrees that in order to use the Licensed Materials, it needs appropriate hardware, networks, operating systems, data transmittal lines with appropriate communication applications and environments.
- The Client acknowledges and agrees that in order to use the Licensed Materials, it may need to obtain, at Client’s expense, the right to use any software owned by third parties by either (i) purchasing from Chatlayer the right to use such third party software, provided and to the extent Chatlayer has the right to license such third party software to Client and offers such opportunity to Client, or (ii) licensing or otherwise obtaining from the vendors of such third party software the right to use such third party software. If Client elects to license such third party software from Chatlayer, such license shall be executed and attached to the Commercial Offer. Any third party software licensed thereunder or otherwise included in the Licensed Materials shall be exclusively governed by the terms of the applicable third party software, and (without limitation) any warranties, indemnification and maintenance and support provided hereunder by Chatlayer in respect of the Licensed Materials shall not apply in respect of such third party software (except as expressly otherwise agreed to in writing by Chatlayer).
- The Product will be hosted by Chatlayer in the datacentres of the Hosting Partner. The Client represents and warrants that it accepts the applicable terms and conditions of the Hosting Partner that will be made available by Chatlayer or the Hosting Provider (as applicable) to the Client. 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).
- Chatlayer does not give any direct, indirect, explicit or implicit, warranty whatsoever to provide un-interrupted availability of the Product, however, Chatlayer shall use its best efforts to provide an monthly uptime of the Product of 99.50 % on a 24/7 basis.
- The Client acknowledges that the hosting services and the Products might not be available during periods of planned maintenance by Chatlayer or the Hosting Provider. If reasonably feasible, any planned maintenance will be performed outside of Business Days and Chatlayer will inform the Client as soon as reasonable possible of any planned maintenance.
- Chatlayer 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. Chatlayer or the Hosting Partner will not be held liable for any damages resulting from such unavailability of the Product.
- Maintenance Services
- As from the Effective Date and subject to the timely payment of all applicable Subscription Fees, Chatlayer shall provide third-line Maintenance Services in relation to the Product in the Client’s production environment in accordance with the provisions set out below.
- If an Incident is encountered by the Client, the Client shall first review and assess the Incident. If such assessment shows that the Incident is not an Out of Scope Incident, a Product User may notify Chatlayer of such Incident by using a web based ticketing systems (such as “Jira” and “Slack”, as made available by Chatlayer) and the Product User shall specify the details of the Incident (in the format as provided by Chatlayer). Upon receipt of a ticket, Chatlayer may in its sole discretion determine whether the Incident is an Out of Scope Incident or not and Chatlayer’s classification shall be binding and final. Chatlayer 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.
- Maintenance Services for Out of Scope Incidents are not included in the Subscription Fees, however, Product Users are entitled to ask any questions regarding the Licensed Materials and Chatlayer shall answer any Product User’s request in good faith, without any binding commitment whatsoever.
- For Incidents that are not an Out of Scope Incident, Chatlayer shall use its best efforts to resolve the Incident in accordance with the service level objectives set out in Annex 1 to these Terms and Conditions. For the avoidance of doubt, Chatlayer may in its sole discretion assign a priority level to each Incident.
- For priority 1 and priority 2 Incidents (a “Severe Incident”), the Client shall appoint one (1) Product User who will act as a single point of contact (SPOC) for Chatlayer.
- Incidents caused by one the following are not included in the Maintenance Services, however the Client may request Chatlayer to provide Services regarding such incidents for which Chatlayer may charge additional fees (non-exhaustive) (i) Out of Scope Incidents; (ii) abuse or misuse of the Product; (iii) modification or addition to the Product not performed by or with the consent of Chatlayer; (iv) incorrect installation of a fix by a party different than Chatlayer; (v) incorrect configuration not performed by or with the consent of Chatlayer; (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.
- The provisions of this clause shall not apply to Demo Accounts.
- Intellectual Property Rights
Chatlayer is and remains the sole and exclusive proprietary owner of all Intellectual Property Rights related to the Licensed Materials and the Services (including any new versions, updates, customizations, enhancements, modifications or improvements made to the Licensed Materials or the Services). Except for the limited license granted pursuant to clause 3, no other rights in respect of the Chatlayer Intellectual Property Rights shall be granted or transferred to the Client in connection with this Agreement. Nothing in this Agreement shall convey any title or proprietary right or Intellectual Property Rights in or over the Licensed Materials 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 Materials 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 Materials, 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.
- 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 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.
- 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.
- 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.
- 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.
- The obligations set out in this clause 10 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.
- Privacy and Data Protection
- 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 (“GDPR”) with respect to the processing of personal data (as defined in the GDPR).
- In particular, the Client represents and warrants to Chatlayer that it has the legal right to disclose any personal data that is available to Chatlayer under or in connection with this Agreement (including, but not limited to, any personal data that might by disclosed by the Product Users or End Users while using the Product) and that the Client has a valid legal ground to process such personal data and to disclose such personal data to Chatlayer in accordance with applicable law. The Client undertakes to sufficiently inform all data subjects about such processing activities by the Client and/or Chatlayer (as applicable) in accordance with applicable law.
- Chatlayer shall use Client’s personal data only for the execution of this Agreement, the improvement of the functioning and provision of the Licensed Materials and in accordance with the data processing agreement included in Annex 2 to these Terms and Conditions.
- Third Party Claims
The Client shall indemnify, defend and hold Chatlayer harmless from and against any damages, losses, costs and expenses (including reasonable attorney fees) suffered or incurred by Chatlayer (including its Affiliates, agents, contractors, directors, employees or representatives) arising out of or relating to Client Data, including (without limitation) Client’s or End Users’ infringement of any third party’s Intellectual Property Rights or any other rights of such third party.
- Fees and Payment Terms
- The Client shall have the option to pay the Subscription Fees as identified in the applicable Commercial Offer.
- In the event of a credit card payment, the Client shall pay the first annual or monthly (as applicable) Subscription Fee via credit card on the Effective Date and the Subscription Fee shall thereafter automatically be credited from the Client’s credit card on each anniversary date of the Effective Date or the first day of each month (as applicable). Promptly after each payment via credit card, Chatlayer shall issue the corresponding invoice.
- If no credit card payment pursuant to clauses 2 can be processed due to whatsoever reason, Chatlayer reserves the right to suspend any use of and access to the Licensed Materials by the Client until payment is successfully processed.
- In the event of a bank transfer payment, the Client shall pay the Subscription Fees within thirty (30) days of the date of the invoice.
- The Client expressly acknowledges and agrees that any upfront payments made pursuant to clause 2 and 1.1 are final and non-refundable. If the Agreement is terminated early, the Client shall not be entitled to a refund whatsoever.
- In the event Chatlayer has been requested to perform certain Services, the applicable Services Fees shall be invoiced separately and the Client shall pay all applicable Services Fees within thirty (30) days after the invoice.
- 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 (€) and are exclusive costs and expenses which may be charged separately by Chatlayer (if applicable).
- All amounts payable to Chatlayer 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 Chatlayer such additional amounts as are necessary in order that the net amounts received by Chatlayer, after all deductions and withholdings, shall not be less than such payments would have been in the absence of such deductions or withholdings.
- Any amounts of undisputed invoices that have not been paid within thirty (30) 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 Chatlayer. In addition the Client shall pay all costs incurred by Chatlayer 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, Chatlayer shall be entitled to suspend its obligations and the Client’s rights hereunder until receipt of payment of such outstanding amounts.
- After the Initial Term and each Renewal Term thereafter, Chatlayer reserves the right to change the Subscription Fees in its sole discretion at any time upon thirty (30) days’ prior notice. Such price adjustment shall become effective the next Renewal Term.
- Chatlayer has the right to monitor and inspect the usage of the Licensed Materials by the Client (including but not limited to monitoring the use of the applicable Features and Functionalities and Add-Ons) to ensure that the Subscription Fees to be paid by the Client are correct. If such inspection or monitoring shows that the Client has underpaid the amount of the Subscription Fees due to Chatlayer, without prejudice to any other rights and remedies available to Chatlayer, Chatlayer shall invoice and the Client shall promptly pay the amount of such underpayment to Chatlayer together with any applicable late payment interest.
- Term & Termination
- The Agreement shall commence on the Effective Date an shall continue for the Initial Term (as specified in the Commercial Offer). After the Initial Term the Agreement shall automatically and tacitly renew for consecutive Renewal Terms (as determined in the Commercial Offer), 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 14.
- Upon expiry of the Demo Term, the Demo 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 Demo Term. In the event of a conversion, the Demo 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.
- Each Party may terminate the Agreement at any time without cause by giving one (1) month’ prior notice, provided that if the Client terminates the Agreement during the Initial Term (or the then-current Renewal Term), the Client shall pay the remaining amount of Subscription Fees corresponding to the full period of the Initial Term or then-current Renewal Term. For the avoidance of doubt and in accordance with clause 4, in case of early termination pursuant to this clause, the Client is not entitled to a pro rata refund of any fees that have been paid upfront.
- Either Party may immediately terminate (or Chatlayer 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 written notice of the material breach, (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.
- Without prejudice to any other rights and remedies available to Chatlayer, the Client acknowledges and agrees that Chatlayer 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 or the applicable third party software; or (ii) Chatlayer’s Intellectual Property Rights (expressly including the license grant pursuant to clause 3) or Confidential Information.
- Consequences of Termination
Upon termination of the Agreement for whatsoever reason (i) the Client shall promptly pay to Chatlayer all amounts due and payable under this Agreement up to and including the date of termination (including, but not limited to the fees payable pursuant to clause 14.3); (ii) all licenses granted to the Client shall automatically terminate and the Client shall return to Chatlayer all copies in whatever form or medium of the Licensed Materials (or alternatively destroy any such copies that cannot be returned and confirm in writing to Chatlayer that such copies have been destroyed); (iii) except 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).
The Client acknowledges and agrees that the Licensed Products and Services are provided “as is”. Except for the foregoing warranty and to the maximum extent permitted by applicable law, Chatlayer does not make any representations or warranties, express or implied, concerning any matter under this Agreement (including the Licensed Materials and Services) and Chatlayer 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.
- Limitation of Liability
- Subject to the maximum extent permitted under applicable law, Chatlayer’s liability under the Agreement shall per event (or series of connected events) and in the annual aggregate per contract year not exceed an amount equal to the Subscription Fees paid during such contract year.
- The Demo User acknowledges and agrees that, subject to the maximum extent permitted under applicable law, Chatlayer’s liability under this Agreement in respect of Demo Accounts shall in no event exceed one (1) EUR as Demo Users do not pay any fees.
- Under no circumstances shall Chatlayer be liable to the Client for any indirect, punitive, special, consequential or similar damages (including damages for loss of profit, lost revenue, los 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.
- Chatlayer shall not be held liable in any way, neither contractually nor extra-contractually, for discontinuing an older release of the Product or for damages caused by the wrongful (or out of scope) use of the Product.
- 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.
- 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.
- 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.
- 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.
- Assignment – Chatlayer 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 Chatlayer’s prior written consent.
- Force Majeure – Neither Party will be responsible or liable for any failure or delay in the performance of its 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.
- Notices – Any notice required to be served by the Agreement shall in first instance be given by electronic mail to the email addresses set out in the Commercial Offer. All notices given by electronic mail, shall only be valid in case confirmation of receipt was expressly given by electronic mail from Chatlayer to the Client within five (5) Business Days. In case no confirmation of receipt was given by Chatlayer within five (5) Business Days, all notices can be done in writing and served by personal delivery, registered letter, addressed to either Party at its address given in the Commercial Offer or to such other address as a Party may designate by notice hereunder. All Notices shall be deemed to have been given either (1) if by hand, at the time of actual delivery thereof to the receiving Party at such Party’s address, as provided above, (2) if sent by overnight courier, on the next Business Day following the day such notice is delivered to the courier service, or (3) if sent by registered or certified mail, on the fifth (5th) Business Day following the day such mailing is made.
- 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 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.
- Conflict – In case of conflict between the provisions of the contractual documents executed between the Parties, the first document shall prevail on the latter, 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.
- Relationship of the Parties – The relationship between Chatlayer and Client is that of independent contractors.
- Publicity – Chatlayer shall have the right to use any trademarks, logos or other marks of the Client (including the Client’s corporate name) for client references on Chatlayer’s website, social media announcements and sales presentations.
- 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.
- 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 (Antwerp division). The United Nations Convention for the International Sale of Goods shall not apply to the Agreement.
Annex 1 – Service Level Objectives
Response Time objectives
Resolution Time objectives
The Product is not available for the total of Product Users and End Users.
The Product produces errors with a direct severe impact on all Product Users and End Users.
Two (2) hours during a Business Day .
Four (4) hours during a Business Day;
Permanent fix targeted within two (2) weeks.
The Product is operational for the majority of Product Users and End Users, however it functions solely by:
− material efforts performed by the Client;
− material additional costs incurred by the Client; or
− having serious restrictions on the functionalities of the Product
Four (4) hours during a Business Day.
Eight (8) hours during a Business Day;
Permanent fix targeted within two (2) weeks.
The Product is operational but has certain limitations in functionality for the Product Users and End Users.
Two (2) Business Day.
Five (5) Business Days;
Permanent fix targeted within one (1) month.
The Product is operational but anomalies are identified with regards to the functional documentation provided by Chatlayer. The anomaly has a minor impact for the Product Users and End Users.
Ten (10) Business Days.
Twenty (20) Business Days;
Permanent fix targeted within six (6) months.