Hello Customer develops and owns certain software in respect of managing customer feedback, and are in the business of licensing such software as a hosted solution and providing maintenance and other professional services in connection with such software. parties are currently discussing and negotiating a license (and professional services
- if applicable) agreement for the licensing of Hello Customer proprietary software and the provision of related services by Hello Customer to the Client. In order to evaluate its business interests in the aforementioned contractual relationship with Hello Customer, the Client wishes to perform a proof of concept in relation to the Hella Customer software that will be the subject of the license- and the professional services agreement. Such proof of concept requires the Client to obtain a restricted software Pilot license from Hello Customer. Hello Customer is willing to grant to the Client such restricted software Pilot license, subject to the terms and conditions set forth in these Pilot Terms and in the Pilot License Order.1. License
1.2 Solely to the extent necessary for the Purpose, Hello Customer hereby grants to the Client a personal, restricted, temporary, non-exclusive, non transferable, non-assignable, royalty-free license, without the right to sublicense, to use the Product in object code on the supported web browsers ("Supported Web Browser") as specified in the Pilot License Order and in accordance with the applicable documentation, exclusively for use in respect of the Purpose, for such limited period (the "Pilot Period", as specified in article 2) as specified in this article (the "License").
1.3 The Supported Web Browser shall be the following internet browser: latest version of Google Chrome, Mozilla FireFox, Internet Explorer. PDF reader and standard mailing program are necessary to use all the Hello Customer's functionalities.
1.4 These Pilot Terms do not grant the Client any title, interest or right, including any intellectual or industrial property right, in or to the Product and its related documentation, except for the restricted user rights expressly set out in these Pilot Terms. Client is obliged to report to Hello Customer in writing any infringement on these usage rights within ten (70) days after an infringement takes place.
2.2 These Free Trial Terms, including the License, shall in any event promptly and automatically terminate in the event the parties end their discussions regarding the License Order as per article 1.1 above.
2.3 Hello Customer shall be entitled to promptly terminate the Free Trial Terms, including the License, on giving written notice to the Client in the event the Client breaches the terms of these Free Trial Terms. In that case, Hello Customer shall be entitled to terminate the Pilot Terms, including the License, at any given time on giving written notice to the Client, without having to justify such termination and without any compensation being due to the Client.
2.4 In the event of the expiration or termination of these Free Trial Terms (including the License) for whatever reason, the Client shall (i) promptly cease all use of the Product. In the event of expiration or termination of these Pilot Terms, if the Client does not wish to enter info the License Order, the Client shall bear the reasonable costs incurred by Hello Customer as a result of these Pilot Terms and the negotiations in respect of the License Order, which could not reasonably be avoided and as evidenced by receipts.
2.5 Rights and obligations under these Free Trial Terms that are expressly stipulated or which by their nature are intended to survive expiration or termination of the Pilot Terms, shall survive and shall remain in effect after termination or expiration of these Pilot Terms.
3.2 The Client acknowledges and agrees that the Product in source code form is and remains a confidential and proprietary lrade secret of Hello Customer.
3.3 The Client is not allowed to sublicense, rent, lease, transfer, reproduce, distribute or resel1 any copy of the Product and related documentation to any third party on either a permanent or temporary basis. The Client shall not charge or otherwise deal in or encumber the Product or related documentation.
3.4 The Client agrees that the Product will be used only by the Client's employees, solely for the Purpose. The Client further agrees not to make any copies of the Product and related documentation without Hella Customer's express prior written consent, all of which copies, together with the original, must be kept in the Client's possession or direct control. The Client shall put in place and maintain effective (technical and
organizational) security measures to safeguard the Product and related including loss of profits or revenue, anticipated savings, opportunity loss, documentation from unauthorized access and use. loss of goodwill, loss of use of the Product, loss of data, casts of recreating lost data, Client investments, other economic loss or reputational.3.5 The Client shall not merge the Product with any other software damage, even if Hello Customer has been advised of the possibility of program, and agrees not to translate, decipher, decompile or such damage arising.
disassemble the Product or to permit or cause others to do so, except to the extent such restriction is prohibited under applicable law. The Client further agrees not to modify or create derivative works of the Product or the related documentation. The Client shall not remove or in any way obscure Hello Customer's proprietary notices on any copy of the Product and related documentation.
3.6 Hello Customer reserves the right to inspect the Client's use of the Product for the purpose of verifying the Client's compliance with these Pilot Terms. Each Party shall bear its own costs related to such inspection, provided that, in the event, such audit determines that the Client has acted in breach of these Pilot Terms, in addition to any other rights and remedies available to Hello Customer in respect of such a breach, the Client shall bear the full cost of such inspection.
3.7 The Client shall be fully liable to Hello Customer and its licensors in the event of any breach by the Client of these Free Trial Terms.
4.1 The Client acknowledges and agrees that it will receive trade secrets, competitively sensitive information and other confidential and/or proprietary information of Hello Customer pursuant to these Pilot Terms, including information concerning products, customers, business accounts, financial information, or other dealings, transactions or affairs, reports, recommendations, advice or tests, source and object program codes and development plans, product configuration and business rules. All such information which is either marked "confidential", or which is traditionally recognized as confidential information or trade secrets or should reasonably be considered confidential given its nature or the circumstances surrounding its disclosure (regardless of whether or not such information is expressly designated as proprietary or confidential) constitutes "Confidential Information" of Hella Customer. The Product and related documentation in any event constitute Hello Customer Confidential Information. The Client agrees to disclose Hello Customer Confidential Information solely to the extent necessary for the purposes of the Pilot Terms and only to those of its employees who have a demonstrable legitimate need to know such information for the purpose of these Pilot Terms and who have committed in writing to adequate confidentiality undertakings prior to being granted access to the Confidential Information, and to prevent its disclosure to or access by any third party without the prior written consent of Hello Customer. The Client shall be liable towards Hella Customer for any breach of these confidentiality undertakings by its employees or any third parties acting under its control or on its behalf.
4.2 The Client shall promptly inform Hello Customer if it becomes aware of any breach of these confidentiality undertakings and shall provide Hello Customer with such assistance as reasonably requested by Hella Customer in connection with any proceedings which il may institute in respect of such a breach.
4.3 The obligations of confidentiality set out herein shall survive the termination of the Pilot Terms.
5.1 Hello Customer shall have no liability for any claim which is based upon (i) Client's unauthorized use of the Product, (ii) Client's or any third party's modification of any of the Product, (iii) Client's use of the Product in unauthorized or incompatible combination with any non-Hello Customer's products or services.
6.1 Hello Customer does not make any warranty or representation in relation to the Product and the License granted hereunder. The Client acknowledges that the Product and documentation are provided "as is, with all faults", without any maintenance, debugging, support or improvement. Hello Customer makes no representations or warranties of any kind, either express or implied, and disclaims all express or implied conditions, representations and warranties, including without limitation any implied warranties of merchantability, fitness for a particular purpose, or non-infringement. Except as expressly set out in these Pilot Terms, all conditions, warranties and representations, express or implied, including warranties of merchantability, fitness for a particular purpose, non-infringement and non-interference in relation to the Product and related documentation are hereby excluded.
6.2 The Client assumes the entire risk as to the quality, results, performance and/or non-performance of the Product. The Client shall have the safe responsibility to adequately protect and backup its data and equipment used in connection with the Product.
6.3 Hello Customer shall be under no obligation to support the Product in any manner. During the Pilot Period, Hello Customer shall not perform any maintenance or support services and the Client shall have no right to receive maintenance services (e.g. error correction)
7.3 The Client acknowledges that the Hosting Services will be performed in dedicated Microsoft Azure datacenters. The warranties set out in the Microsoft Terms are not applicable in case the non-confarmity with the service level terms and conditions is due to accident, misuse or use in any other way which is not compatible with the Microsoft Terms or the present Free Trial Terms. Microsoft does not give any other warranties and rejects all other explicit, inexplicit or legal warranties, including warranties in respect of merchantability, fitness for a particular purpose, adequate quality, title or non-infringement. Hello Customer shall in no event provide any warranty in respect of the Hosting Services.
7.4 The Client, on behalf of its users, gives Microsoft the permission to process all Personal Data as contemplated by these Free Trial terms
7.5 The maximum liability of Hello Customer and Microsoft for all claims in respect of the Hosting Services, is limited as set out in article 6 of these Pilot Terms.
The Client shall (i) comply with all applicable legal requirements regarding privacy and data protection; and (ii) provide sufficient notice to, and obtain sufficient consent and authorization from, users and any data subject of which personal data is provided to Hella Customer, to permit the processing of the data by the Client and Hella Customer and the Hella Customer's hosting partner, and their respective affiliates, subsidiaries, subcontractors and licensors. If and to the extent required by law, the Client shall notify and obtain the explicit consent of the individual users of the Product and data subjects concerned that their data may be processed by Hella Customer (and its subcontractors). Hella Customer and the Client shall conclude a data processing agreement before the Product is made available to the Client. The data processing agreement is annexed to these Pilot Terms as Schedule 7.
Except as stipulated otherwise in these Pilot Terms, the Pilot Terms do not imply any obligation on either Party to enter into any further business relationship, neither to purchase nor deliver any software license or related services. With the exception of such obligations as are expressly defined in these Pilot Terms (or any other agreement currently in force between the parties). neither Party shall have any obligation towards the other Party.
Any notice to be given pursuant to these Free Trial Terms shall be delivered by hand upon confirmation of receipt or sent by email to the addresses as set out in the Free Trial License Order.
The Client shall not be entitled to transfer or assign, in whole or in part, the benefit of this Pilot Terms, or to transfer, delegale or subcontract, in whole or in part, any of its obligations under these Pilot Terms, without the prior written consent of Hella Customer.
12.2 No changes to these Free Trial Terms shall be valid and binding unless in writing and signed by a duly authorized representative of both parties.
12.3 A failure by Hello Customer to exercise any right or remedy hereunder shall not constitute a waiver of such right or remedy or of future enforcement thereof.
12.4 If any provision of these Free Trial Terms is held to be invalid or unenforceable by a competent court, such invalidity or unenforceability shall not affect the remaining provisions of these Free Trial Terms, which shall remain in full force and effect.
This Data Processor Agreement supersedes and replaces all previous agreements made in respect of Processing Personal Data and data protection. parties agree that Hella Customer is a Processor and the Client is a Controller in respect of all Services provided by Hella Customer related to the Pilot Terms. The aforementioned indication of the parties as Controller and Processor is consistent with the terms and definitions given within the GDPR. In the performance of the Services related to the Pilot Terms, the Processor will receive and process Personal Data for the benefit of the Controller and according to its instructions and purpose. Specific legislation applies to such processing. The legislation applicable to these Services includes, among others the GDPR with possible Belgian implementing laws. By means of this Data Processor Agreement (hereafter the "DPA") parties wish to lay down their specific agreements in respect to Processing Personal Data within the framework of the Pilot Terms.1. Definitions
Regarding the interpretation of this DPA, the definitions as concluded in the Pilot Terms and in the GDPR will also apply to this DPA, unless this DPA expressly deviates from those definitions.
"Consent' of the Data Subject means any freely given, specific, informed and unambiguous indication of the Data Subject's wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the Processing of Personal Data relating to him or her;
"Controller" or "Data Controller" means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data (i.e. the Client);
"(Personal) Data Breach" means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed;
"Data Subject' a natural person who is identified or identifiable by the Personal Data. an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
"GDPR" Regulation (EU) 2016l679 of the European Parliament and of Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95l46lEC (General Data Protection Regulation);
"Personal Data" means any information relating to an identified or identifiable natural person as defined in the GDPR;
"Processing" means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction; 'Processor· means a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Controller (i.e. Hella Customer);
"Services" means Hello Customer's SaaS software, as specified in the Free Trial License Order, which will be made available by Hello Customer to the Client as a service via the internet in accordance with the Free Trial Terms;
"Subcontractor": refers to any third party that is involved in the Processing of Personal Data by the Processor;
"Supervisory Authority": refers independent government body who is responsible for monitoring the application of GDPR;
'Third Party·: a natural or legal person, a government agency, a service or other body, not being the Data Subject, neither the Controller nor the Processor, nor the persons authorized under direct authority of the Controller or the Processor to process the Personal Data;
2.1 This DPA determines the conditions of the Processing by the Processor, on a self-employed basis, of the Personal Data communicated by or at the initiative of the Controller and in the context of the Pilot Terms; this Processing will exclusively take place for the benefit of the Controller and for the purpose as defined by the Controller.
2.2 The nature and purpose of the Processing, a list and the type of Personal Data as well as the categories of the Data Subjects, taking info account the Services to be performed, are detailed in the License Order (Data Processing Details).
2.3 The Processor will only process the Personal Data according to the documented instructions of the Controller, and will not use these Personal Data for its own purpose.
2.4 If the Processor is legally obliged to proceed with any Processing of Personal Data, the Processor, unless this would violate applicable mandatory rules, will inform the Controller of such obligation.
The Controller and the Processor are obliged to comply with ! their obligations under applicable legislation (but possibly also codes of conduct, standard contractual clauses, other related regulations).
4.1 This DPA is applicable to every Processing of Personal Data executed in the context of the Free Trial terms.
4.2 This DPA applies as long as the Processor processes Personal Data made available by the Controller in the context of the Pilot Terms. This OPA ends automatically upon termination of the Pilot Terms; the provisions of this OPA that are either expressly or implicitly (given ! heir nature) intended to have effect after termination of the DPA shall survive the end of the Free Trial Terms as regards the Personal Data communicated by or at the initiative of the Controller in the context of the Free Trial Terms.
The Processor and Controller offer adequate guarantees with regard to the implementation of appropriate technical and organizational measures so that the Processing complies with GDPR requirements and that the protection of the Data Subject's rights is guaranteed.
Each Party and, where applicable, their representatives, shall maintain a register of the processing activities under their responsibility. Each such register shall contain at least all legally required data.
If required by law, the Controller and/or the Processor will appoint a Data Protection Officer. The name and the contact details of the Data Protection Officer (or any other person responsible for privacy-related matters) can be found in the License Order (Data Processing Details).
8.1 The Processor will not keep the Personal Data any longer than as required for Processing of such Personal Data in the context of the Pilot Terms. The Controller will not instruct the Processor to store any Personal Data longer than necessary. The agreed storage period can be found in the License Order (Data Processing Details).
8.2 Unless storage of the Personal Data is mandatory under Union or Member State law, the Processor shall, within a reasonable period after the end of the Processing services, at the option of the Controller, either erase all Personal Data or return it to the Controller and delete existing copies.
9.1 The Controller and the Processor shall take all appropriate technical and organizational measures as referred to in article 32 GDPR to ensure a level of security appropriate to the risk. The measures taken by the Processor are available on request.
9.2 The Processor shall, taking into account the nature of the Processing and the information available, assist the Controller in ensuring compliance with the obligations resulting from Articles 32 to 36 GDPR. The Controller will reimburse the Processor for services rendered in the context of providing assistance in fulfilling the aforementioned obligations according to article 77 "Casts" of this DPA.
9.3 Only those agents of the Processor who are involved in the Processing of Personal Data may be informed about the Personal Data. The Processor ensures that persons authorized to process the Personal Data are committed to confidentiality by contract or are under an appropriate statutory obligation of confidentiality.9.4 The Processor may only provide Personal Data to Third parties with the prior written approval of the Controller.
Adherence by the Processor to an approved code of conduct as referred to in article 40 GDPR, or an approved certification mechanism as referred to in article 42 GDPR may be used as an element of proof of sufficient guarantees as referred to in GDPR.
11.1 Taking into account the nature of the Processing, the Processor shall use best efforts, by taking appropriate technical and organizational, to assist the Controller in the fulfillment of its obligation to respond to requests from Data Subjects.
11.2 For all services performed by the Processor in the context of the treatment of such requests from Data Subjects, the Controller will pay the Processor in accordance with article 77 "Casts" of this DPA.
12.1 Upon becoming aware of a Personal Data Breach the Processor shall notify the Controller thereof without undue delay.
12.2 At the request of the Controller, the Processor will cooperate with the investigation and elaboration of the measures necessary in case of any Breaches.
12.3 The parties will keep each other informed of any new developments with regard to any Breach and of the measures they take to limit its consequences and to prevent the repetition of such Breach.
12.4 It is the responsibility of the Controller to report any Breach to the Supervisory Authority or the Data Subject, as required.
13.1 The Controller expressly authorizes the Processor to engage Subcontractors for the processing of Personal Data. The Controller grants a proxy to the Processor to decide with which Subcontractor(s) the Processor cooperates. The Processor shall keep a list of all Subcontractors engaged, which can be consulted by the Controller upon simple request. The Controller can only refuse a Subcontractor proposed by the Processor on the basis of a wel1-founded justification submitted in writing.
13.2 The Processor will conclude a separate subcontracting agreement with each Subcontractor.
13.3 In this subcontracting agreement, the same data protection obligations as set out in this OPA shall be imposed on the Subcontractor.
13.4 In the event the Subcontractor fails to fulfil1 its data protection obligations, the Processor shall remain fully liable to the Controller for the performance of the obligations of that Subcontractor in accordance with article 79 of this OPA.
14.1 The Processing of Personal Data will exclusively take place within the EEA.
14.2 The Processing or transfer of Personal Data outside the EEA can only occur with the specific prior written consent of the Controller and/or in compliance with applicable legislation. The Processor can sign standard contractual clauses, codes of conduct or any other instruments adopted by the European Commission, which ensures that the transfer of Personal Data to a country outside the EEA complies with appropriate safeguards as required by the GDPR.14.3 Such consent of the Controller is not required when the transfer of Personal Data to countries outside the EEA is mandatory under EU or Member State law provisions.
15.1 When a 'Data Protection Impact Assessment' or a 'prior consultation is required according to articles 35 and 36 GDPR, the Controller will implement such assessment. At the request of the Controller, the Processor will assist in this assessment as well as in compliance with any required measures.
15.2 The Controller will reimburse the Processor for the services so rendered in relation to this assessment and the compliance with any required measures in accordance with article 77 "Costs" of this DPA.
16.1 Each Party shall allow the other Party and its authorized auditors to perform audits regarding the compliance by a Party with its obligations under this OPA and the applicable legislation in respect of data protection.
16.2 Each Party shall use its best efforts to cooperate with those audits and to make available to the other Party all information necessary to prove compliance with the obligations of such Party. A Party shall immediately inform the other Party if, in its opinion, an instruction infringes the applicable legislation. In case the audit required more than one Business Day of services of the Party which is being audited, the auditing Party will compensate the services provided on a time and material basis (at standard rales applicable at that moment in time).
16.3 Upon the performance of any such audit, the confidentiality obligations of the parties with respect to Third parties must be taken into account. Bath the parties and ! their auditors must keep the information collected in connection with an audit secret and use it exclusively to verify the compliance by the other Party with this OPA and the applicable laws and regulations in respect of data protection.
17.1 The services to be performed under these Free Trial terms for which the Processor may charge the Controller, will be charged on the basis of the hours worked and the applicable standard hourly rates of the Processor. The Processor will invoice these amounts on a monthly basis.
17.2 Payment by the Controller to the Processor for the services under these Pilot Terms will take place in accordance with the provisions in the Free Trial Terms.
When the Processor fails to comply with its obligations under this DPA, the Controller shall first send a registered notice of default. This notice shall clearly mention the defaults that occurred, and, if redress is possible, a proposal of remedial measures and a reasonable term for their implementation.
19.1 Limitations of liability in the Pilot Terms are applicable to this DPA and all services provided in respect of this DPA.
19.2 The Processor is in any case only liable for the damage caused by Processing if it (a) did not comply with its specific obligations of the GDPR, or (b) acted outside or in violation of the lawful instructions of the Controller.
The provisions of the Pilot Terms concerning changes, completeness of the agreement, applicable law and competent court are applicable to this DPA.