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SPECIAL TERMS AND CONDITIONS FOR SIGNHERE
1. Subject and Scope
The following terms and conditions constitute Special Terms and Conditions (“STC”) as meant under the applicable General Terms and Conditions of Isabel (“GTC”) and apply with regard to the Isabel Product that Isabel markets under the brand “SignHere”. The applicable GTC are those attached to, or referred to in, the SAF pursuant to which Customer subscribes to SignHere.
Capitalized terms used but not defined in these STC shall have the same meaning as ascribed to them in, as applicable, the SAF or the GTC. For the purposes of these STC, the following terms shall have the following meaning:
“Confidential Information” means the information of a 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, information and facts concerning business plans, customers, prospects, personnel, suppliers, partners, investors, affiliates or others, training methods and materials, financial information, marketing plans, sales prospects, client lists, inventions, program devices, discoveries, ideas, concepts, know-how, techniques, formulas, blueprints, software (in object and source code form), documentation, designs, prototypes, methods, processes, procedures, codes, and any technical or trade secrets, including all copies of any of the foregoing or any analyses, studies or reports that contain, are based on, or reflect any of the foregoing. As between Isabel and Customer, the Confidential Information of Isabel shall include, without limitation, the Product and Documentation;
“Isabel” means Isabel NV, a company registered in the commercial register of Brussels (Belgium) under No. 593597 RPR Brussel with VAT No. BE 0455.530.509 and currently having its registered office at Keizerinlaan 13-15, 1000 Brussels, Belgium, or the relevant affiliate of Isabel that contracts with Customer pursuant to the SAF;
“Digital Artefact” means the digital document (or such other digital file or item that is or becomes supported by SignHere) uploaded on the Product platform on behalf of Customer for approval and/or signature;
“Documentation” means the technical and functional product information that Isabel (or, as the case may be, Isabel’s licensor or underlying service provider) generally makes available from time to time to Customers that subscribe to the Product;
“Intellectual Property Rights” or “IPR” means any rights of Isabel (and, as the case may be, any of Isabel’s licensors and underlying service providers) including but not limited to: (i) copyright, patents, database rights and rights in trademarks, designs, know-how and trade secrets (whether registered or unregistered); (ii) applications for registration, and the right to apply for registration, renewals, extensions, continuations, or improvements for or relating to any of these rights; and (iii) all other intellectual or industrial property rights and equivalent or similar forms of protection existing anywhere in the world;
“Product” means the Isabel Product that Isabel markets under the brand name “SignHere” and for which Customer purchases a license and to which Customer subscribes pursuant to the SAF;
“Service Description” means the description of the Product and associated services, labeled as such and provided by Isabel to Customer. References to Documentation in the present Special Terms and Conditions shall equally be deemed a reference to the Service Description.
3. Product, License and License Restrictions
3.1 The Product can be used to sign, approve and distribute supported types of Digital Artefacts through a web based technology platform. Subject to the terms and conditions of the Agreement, and Customer’s compliance with its obligations pursuant thereto, Isabel grants to Customer (and its Affiliates, only if expressly indicated in the relevant SAF) a personal, restricted, revocable, non-exclusive, non-transferrable and non-assignable license to use the Product in accordance with the applicable Documentation for the duration and level of the Product subscription purchased by Customer under the Agreement.
3.2 The extent of the licenses and rights granted under the Agreement is restricted to the scope expressly set forth herein, and there are no implied licenses or rights under the Agreement. Isabel and each of Isabel’s relevant licensors and underlying service providers reserve any right not expressly granted to Customer.
3.3 Isabel (including any relevant licensor and underlying service provider of Isabel) has the right to keep records and to inspect the usage of the Product by Customer (including, if possible, on a remote basis). If such inspection shows that Customer has underpaid the amount of fees due to Isabel, without prejudice to any other rights and remedies available to Isabel, Customer shall promptly pay the amount of such underpayment to Isabel together with any applicable late payment interest. In the event of underpayment or any other contractual breach as determined by such review and inspection, all costs related to such review and inspection shall be borne by Customer, without prejudice to any other rights and remedies available to Isabel (or, as applicable, any relevant licensor and underlying service provider of Isabel) hereunder.
3.4 Customer shall comply with all applicable laws relating to the use of the Products. Customer acknowledges that the Products may include encryption and may, accordingly, be subject to export or other restrictions.
3.5 Save to the extent explicitly permitted under applicable laws, Customer shall not: (i) make back-up copies of the Products without Isabel’s prior written and express authorization; (ii) reproduce, arrange, modify, alter the Products including for the purpose of correcting errors, or create derivative works based on the Products or enable a third party to perform such acts; (iii) assign, distribute, sub-license, hire, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Products, or use the 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; (d) remove or alter any copyright or other proprietary notice on any of the Products.
4. Delivery, Activation and Use
4.1 Isabel shall use commercially reasonable efforts to: (i) provide the Product, in all material aspects, in accordance with the Service Description; and (ii) activate the Product within ten (10) business days following Isabel’s receipt and acceptance of the SAF signed by Customer. Isabel cannot, and does not, guarantee that this date will be met. The actual activation date is dependent on, amongst others, the timeliness and completeness of the information in this SAF as submitted by Customer and the time required by third parties suppliers involved in the setup and configuration of the Product. All risk related to the loss or damage to, if any, any copy of the Product (or any component thereof) and client-side software that Isabel may deliver to Customer shall be assumed by Customer as from delivery.
4.4 Customer shall be solely responsible to choose and identify the users that (i) may, on Customer’s behalf, upload Digital Artefacts for approval and signature through the Product; (ii) may, on Customer’s behalf, invite other users to approve or sign Digital Artefacts; (iii) may be provided with a link to download the Digital Artefacts. Isabel (including its underlying service provider) may disclose the name and contact information of each user that participates in the process flow of a particular Digital Artefact to any other user participating in the same.
4.6 Customer shall be solely responsible and liable in respect of the appropriateness of any Digital Artefact and related content, and any activities that a user may undertake with respect thereto. Isabel (including its underlying service providers) reserve the right, but does not have any obligation, to monitor Digital Artefacts and related content and to remove, edit and/or block the same at any time, which it deems in its sole discretion to be in violation of the Agreement or applicable law, or the rights of a third party, or otherwise inappropriate.
5. Intellectual Property Rights
5.1 As between Customer and Isabel, Isabel (or, as applicable, Isabel’s relevant underlying service provider or licensor) is and remains the sole and exclusive owner of the Product and Documentation and all related Intellectual Property Rights. Customer shall not in any way acquire any title, rights of ownership, copyright, Intellectual Property Rights or other proprietary rights of whatever nature in the Products, including any materials provided under additional services, or in any copies of the same. Customer agrees not to remove, suppress or modify in any way any proprietary marking, including any trade mark or copyright notice, on or in the Product, or visible during its operation, or on media or on any Documentation. Customer shall incorporate or reproduce such proprietary markings in any permitted back-up or other copies.
6. Infringement Claims by Third Parties
6.1 Customer will give Isabel prompt written notice of any third party claim on an alleged or actual infringement by the Product or other material made available to Customer by or on behalf of Isabel. Customer grants Isabel (or, at Isabel’s discretion, Isabel’s relevant licensor or underlying service provider) the right to control and direct the defense and settlement of such a claim. Customer shall be entitled to participate in such proceedings at its own cost. Customer agrees to reasonably cooperate with Isabel (and, as the case may be, Isabel’s relevant licensor or underlying service provider) in the defense and settlement of such a claim. In the event the Product or such other material as referenced above, in Isabel’s (or, as the case may be, Isabel’s relevant licensor’s or underlying service provider’s) reasonable opinion, are likely to become or actually become the subject of a claim of infringement as set out above, Isabel shall have the right, at its option and expense, to (i) modify, or have modified, or replace the (alleged) infringing material so that it becomes non-infringing while preserving substantially equivalent functionality; or (ii) obtain for Customer the right to continue to use the Product as per the terms of the Agreement.
6.2 Customer shall indemnify, defend and hold Isabel, Isabel’s licensors and underlying service providers, and their respective affiliates (each an “Indemnified Party”) harmless from and against any damages, losses, costs and expenses (including reasonable attorneys’ fees) suffered or incurred by such Indemnified Party arising out of Customer’s infringement of any third party’s intellectual property rights.
6.3 In case any alleged or actual Intellectual Property Rights infringement relating to the Product is arising, Customer shall immediately cease the use of these Products. In case Customer neglects this obligation, Isabel may at its sole discretion terminate the Agreement, or any licenses and rights granted to Customer pursuant to these License Terms and Conditions, or both, with immediate effect and without any compensation or indemnification due by Isabel (or any of its licensors and underlying service providers) whatsoever.
6.4 Neither Isabel nor any of its licensors and underlying service providers) shall have any liability for any claim which is based upon (i) Customer’s unauthorized use of the Product, (ii) Customer’s or any third party’s modification of any of the Product, (iii) Customer’s failure to integrate or install any corrections to such Product issued by Isabel (or Isabel’s relevant licensor or underlying service provider), if it was indicated to Customer that such update or correction was required to prevent a potential infringement, (iv) Customer’s use of the Product in unauthorized or incompatible combination with any products or services not provided by or on behalf of Isabel.
7.1 Each party shall treat as confidential and keep secret all Confidential Information relating to the other and shall not disclose to any third party, other than its agents or consultants and, in the case of Isabel, Isabel’s licensors and underlying service providers, where such disclosure is necessary, any Confidential Information learned during the negotiation and performance of the Agreement. Confidential Information disclosed under 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 and, in the case of Isabel, Isabel performing its obligations and exercising its rights vis-à-vis its licensors and underlying service providers.
7.2 Both parties shall take precautions to maintain the confidentiality of the Confidential Information and in particular the parties covenant that they: (i) shall not copy or otherwise exploit any component of the Confidential Information other than as herein provided, nor make any disclosures with reference thereto to any third party; and (b) 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.
7.3 The provisions of this article shall not apply to any secret or information which: (i) is published or comes into the public domain other than by a breach of the Agreement or; (ii) can be shown to have been known by the receiving party before disclosure by the disclosing party or; (iii) is lawfully obtained from a third party or; (iv) can be shown to have been created by the receiving party independently and without reference to the Confidential Information of the disclosing party.
7.4 The undertaking in this article shall survive during five (5) years after the termination or expiration of the Agreement for any reason whatsoever.
8. Payment Terms
8.1 Customer will pay Isabel the recurrent and, if applicable, the one-time and additional fees and charges for the Product subscribed to as set out in the SAF and the Agreement, and such other services as Customer may from time to time order from Isabel pursuant to a separate Order Form (any of the foregoing charges, individually and collectively, hereinafter referred to as “Charges”). Except to the extent explicitly stated otherwise in the SAF: (i) all annual subscription fees will be due as from the Effective Date and will be invoiced yearly in advance; and (ii) all additional fees and supplemental fees that are consumption-based will be invoiced monthly in arrears of consumption. All payments of invoices issued by Isabel to Customer under the Agreement shall be final and non-refundable.
8.2 Where Customer orders a bundle or particular volume (e.g. a bundle of signatures), those Charges are not refundable (in whole or in part) even if that bundle or volume is not exhausted for whatever reason.
8.3 All invoices have to be paid in full by Customer using a direct debit arrangement: this is an essential condition of the Agreement. To that end Customer must provide Isabel with a SEPA Direct Debit Mandate in the form as provided or made available by Isabel in connection with Customer subscribing to the Product. Isabel may withhold activation of the Product until receipt of Customer’s duly completed and signed SEPA Direct Debit Mandate. Customer agrees not to terminate said mandate while it is in effect and, in the event of changing banks, to take the necessary steps to ensure that there is no interruption to the direct debit instruction. In event of late payment, all Customer payment obligations to Isabel will immediately become due and payable.
8.4 All Charges payable to Isabel 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 Customer undertakes to pay Isabel such additional amounts as are necessary in order that the net amounts received by Isabel after all deductions and withholdings shall not be less than such payments would have been in the absence of such deductions or withholding. Sums stated to be payable under the Agreement do not include any applicable value added tax or other taxes, which shall be additionally charged to Customer. Customer is responsible for payment of all general, state or local import, usage, value added, withholding or other taxes associated with the supply or use of the Product. Customer shall promptly reimburse Isabel for any such taxes or duties paid by Isabel.
8.5 Isabel’s shall have the right to modify the Charges from time to time (including, applying a price indexation to the Charges) to the same extent as Isabel may modify its rates and fees pursuant to Isabel’s GTC.
9. Limitation of Liability
9.1 Isabel shall not be held liable in any way, neither contractually nor extra-contractually, for discontinuing an older version or release of the Product. Customer shall at all times during and after the term of the Agreement indemnify, keep indemnified and hold each Indemnified Party harmless against all claims, demands, actions, proceedings and all losses in relation to any breach of the Agreement by Customer or its users, any negligent or wrongful acts or omissions of Customer or its users, under the Agreement, any failure to act or misrepresentation by the Customer or its users, and/or any faults and omissions in the performance of its obligations pursuant to the Agreement, resulting into claims of third parties.
9.2 Under no circumstances shall Isabel (or any of its licensors and underlying service providers) be liable to Customer for: (i) any damages other than proven direct damages; and (ii) any indirect, consequential or similar damages, damages for loss of profit, lost revenue, loss of business, loss or corruption of data, loss of customers and contracts, loss of goodwill, the cost of procuring replacement goods or services, and reputational damage, irrespective of any such damages arise from negligence, breach of contract or of statutory duty or otherwise, and third parties’ claims.
9.3 The exclusions and limitations of Isabel’s liability under these STC shall operate without prejudice to such further exclusions and limitations as Isabel may benefit from under the Agreement or applicable law, and all will operate to the benefit of Isabel’s affiliates, licensors and underlying service providers under the Agreement to the same extent such provisions operate to the benefit of Isabel.
10. Data Protection
10.1 In respect of any personal data submitted by, or on behalf of, Customer or a user in connection with the delivery and use of the Product, Customer assumes the capacity of “controller” (as defined under GDPR) and Isabel assumes the capacity of “processor” (as defined under GDPR). Without prejudice to the generality of article 8 of the GTC, in connection with the Product, Isabel (or an Isabel sub-processor) may process the name, telephone number, email address and date of birth of Customer representatives and users of the Product (including eSignature users).
10.2 Isabel shall take appropriate technical and organizational measures as referred to in article 32 GDPR to ensure a level of security appropriate to the risk. Isabel will ensure that persons processing the personal data are committed to confidentiality by contract or are under an appropriate statutory obligation of confidentiality. Isabel shall, to the extent required by GDPR and taking into account the nature of the processing and the information available, assist Customer in: (i) meeting the obligations resulting from articles 28.3 (h) and 32 to 36 GDPR; and (ii) responding to a data subject seeking to exercise its rights under GDPR . Customer will reimburse Isabel for services rendered in the context of providing such assistance according to Isabel’s then current rates or such rates as may be agreed upon in such Order Form as may be concluded by Isabel and Customer for such services
10.3 Customer authorizes and permits Isabel to engage other processors to process personal data on Isabel’s behalf, including, as applicable and without limitation, Isabel’s licensors and underlying service providers. Isabel shall inform Customer of any intended changes concerning the addition or replacement of sub-processors and Customer may object to such changes on the basis of a well-founded justification notified in writing to Isabel within fifteen (15) days from Isabel informing Customer of the intended changes.
10.4 Customer (as controller) shall: (i) comply with all applicable legal requirements regarding privacy and data protection; and (ii) as required, provide sufficient notice to, and obtain sufficient consent and authorization from all relevant data subjects to permit the processing of their personal data by Isabel and any relevant sub-processor of Isabel for such purposes as contemplated under the Agreement and any other purpose as permitted pursuant to GDPR and applicable law.
10.5 Customer shall defend Isabel and each of its sub-processors against any claim from a data subject whose personal data is processed within the framework of the Agreement and arising from the non-compliance by Customer with its obligations under or flowing from the Agreement, GDPR or applicable law.
10.6 Isabel will process the personal data only on documented instructions from Customer or as otherwise required by applicable law. Customer warrants that any instructions it may give to Isabel will be lawful. Isabel will not assume, and no sub-processor of Isabel will assume, any obligations with respect to Customer’s data or to Customer’s use of the Product other than as required by applicable law.
10.7 In respect of any personal data submitted by, or on behalf of, Customer or a user in connection with the delivery and use of the Product, Isabel and each of Isabel’s relevant sub-processors may retain such data for the term of the Agreement and three (3) months thereafter, or such longer period as may be permitted or required under GDPR or applicable law. Isabel (and each of Isabel’s relevant sub-processors) may thereafter erase that personal data.
10.8 All terms used in this article “Data Protection” are to be construed in accordance with their meaning under GDPR and the relevant Belgian legislation on data protection.
11. Term and Termination
11.1 The Agreement shall commence on Isabel’s acceptance of the SAF and continue in effect for the duration of all Product subscriptions purchased by Customer pursuant to the SAF. The initial term of a Product subscription will commence upon the Product activation date, which will be the date a registration email is sent to Customer’s designated user identified in the SAF. Upon expiration of its initial term, a subscription shall automatically and tacitly renew for successive one-year periods (each a "renewal term") unless written notice of non-renewal is given by either party to the other at least three (3) months prior to the expiration of the initial term or any (subsequent) renewal term.
11.2 Customer acknowledges and agrees that any use of the Product outside the scope of the license or rights granted under the Agreement, unless such use has been expressly approved in writing by a duly authorized representative of Isabel, shall entitle Isabel to immediately terminate (or alternatively, at Isabel’s option, suspend) one or more of the licenses or rights granted hereunder and/or the Agreement for material breach by Customer, without any formalities being required and without prejudice to any other right or remedy available to Isabel pursuant to the Agreement or under applicable law.
11.3 Any breach by or attributable to Customer of the Product license or usage terms hereunder, and any infringement by or attributable to Customer of Isabel’s (or, as applicable, Isabel’s relevant licensor’s or underlying service provider’s) intellectual property rights shall in any event be deemed a breach incapable of remedy allowing Isabel to terminate the Agreement (in whole or in part, at Isabel’s discretion) immediately upon notice and without intervention of the court.
11.4 Upon termination of the Agreement for whatever reason (i) Customer shall promptly pay Isabel all fees and other amounts earned by or due to Isabel pursuant to the Agreement, up to and including the date of termination, including (non-exhaustive list) the full subscription fee; and (iii) all licenses and rights granted to Customer pursuant to the Agreement shall automatically terminate and Customer shall return to Isabel all copies (in whatever form or medium) of the Product and the Confidential Information of Isabel that are in the possession or control of Customer.
12.2 Without prejudice to such other limitations, disclaimers and exclusions as may apply under or pursuant to the Agreement or the Mircosoft Terms, Customer acknowledges that the Hosting Services will be performed in dedicated MicroSoft Azure datacenters. In case a non-conformity 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 Agreement, any representations or warranties as may be stated therein with regard to Product or the quality of service of the associated hosting services will not apply and all other explicit, inexplicit or legal warranties are excluded, including warranties in respect of merchantability, fitness for a particular purpose, adequate quality, title or non-infringement. Customer acknowledges and accepts that Isabel shall in no event provide any warranty in respect of the Microsoft Azure hosting services.
12.3 Customer, on its own behalf and on behalf of each of its users, give Microsoft the permission to process all Personal Data as contemplated by the Agreement. Customer understands and accepts, on its own behalf and on behalf of its users, that all Personal Data collected by Microsoft can be transferred and processed in the United States or any other country where Microsoft or any of its contractors have facilities.
12.4 If and to the extent Isabel, an Isabel licensor or underlying service provider, or Microsoft, would incur liability in respect of the Hosting Services, the maximum liability of each individually and collectively for all claims in respect of the Hosting Services, is limited to only direct damages and will in no event exceed the amount of subscription fee paid by Customer to Isabel for the past six (6) months prior to the event which gave rise to the claim. These limitations are applicable regardless to the determined liability based on breach of contract, risk liability, breach of terms of warranty or any other legal ground and to the extent permitted by applicable law, and are otherwise without prejudice to any other liability limitation that Isabel, its underlying licensor or service provider, or Microsoft may benefit from pursuant to the Agreement or applicable law.
13. Timestamping and Certification
13.2 Customer, on its own behalf and on behalf of each of its users, gives all third parties involved in timestamping and certification the permission to process all personal data as contemplated by the Agreement and the applicable Trust Terms. All personal data collected by these third parties may be transferred and processed in the United States or any other country where these third parties or any of its contractors have facilities.
13.3 If and to the extent Isabel, Isabel’s underlying licensor or service provider, or a Third Party Trust Provider would incur liability in respect of the timestamping, or the certification services, or both, the maximum liability of each individually and collectively, for all claims in respect of the timestamping and certification services, is limited to only direct damages and will in no event exceed the amount of subscription fees paid by Customer to Isabel for the past six (6) months prior to the event which gave rise to the claim. These limitations are applicable regardless to the determined liability based on breach of contract, risk liability, breach of terms of warranty or any other legal ground and to the extent permitted by applicable law, and are otherwise without prejudice to any other liability limitation that Isabel, its underlying licensor or service provider, or a Third Party Trust Provider, may benefit from pursuant to the Agreement or applicable law.
14.1 The Agreement may be modified or amended (in whole or in part) by Isabel as provided herein or otherwise by a written instrument signed by a duly authorized representative of Isabel. No waiver will be effective unless it is in writing and signed by the party granting the waiver, and 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. All notices intended for Customer’s receipt shall be deemed delivered and effective when sent to the email address of Customer’s administrator for Customer’s Product portal as registered at the time of sending. 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.
14.2 Neither party will be liable for any delay in performing, or failure to perform, any of its obligations under the Agreement due to force majeure. Force majeure is understood to mean a temporary or permanent inability of a party to fulfil his obligations, resulting from unavoidable, unforeseeable and external facts, and circumstances reasonably beyond the control of that party. Without prejudice to the generality of the foregoing, any of the following events or circumstances shall in any event be deemed to constitute a case of Force majeure: war or war risk, insurrection or public revolt, fire caused by an outside calamity, an import or export embargo imposed by the government, floods, internet failure, third party negligence or contractual default, strike or social action and otherwise all circumstances qualified by both parties as force majeure.