DocShifter License Agreement - TERMS OF LICENSE
1. GENERAL
1.1 These Terms of License (hereinafter, the “Terms”) will apply to and form an integral part of: (a) all offers to Customer (i.e. person or company addressed in an offer) issued by DocShifter NV, registered with the Crossroads Bank of Enterprises under number 0544.961.044 and having its registered office at Eedverbondkaai 242/003, B- 9000 Gent (Belgium), or by any of its affiliates (hereinafter, “DocShifter”); (b) all orders placed by Customer with DocShifter; and (c) all order confirmations issued by DocShifter. The Terms will apply to all offers, orders and confirmations in as much as they are relating to the licensing of DocShifter software (“Licensed Software”) to Customer.
1.2 DocShifter is the licensor, Customer is the licensee under these Terms.
1.3 The present Terms will replace any other terms and conditions stated orally by Customer or set forth in any document issued by Customer either before or after issuance of any document by DocShifter setting forth or referring to these Terms. Such any other terms and conditions are hereby explicitly rejected and they will be wholly inapplicable to any performance by DocShifter, who will not be bound by them, unless and to the extent expressly agreed to in writing by DocShifter.
1.4 An order is only accepted by DocShifter, and it will only be binding, upon written confirmation by DocShifter. Likewise, acceptance of any offer by Customer is expressly conditional on Customer’s acceptance of all of these Terms. Acceptance by Customer of an offer may be evidenced by Customer’s, or its representative’s, (a) written or acceptance of the License, (b) payment of the fee which is due to DocShifter for the use of the Licensed Software (“Software License Fee”), (c) or click on the ‘agree’ field when activating the Licensed Software.
1.5 DocShifter’s offers are open for acceptance within the period stated by DocShifter in said offer or, when no period is stated, within thirty (30) calendar days from the date of the offer. However, any offer may be withdrawn or revoked by DocShifter at any time prior to the receipt by DocShifter of Customer’s acceptance related thereto.
1.6 ANY OFFER IS AN ENGAGEMENT OF DocShifter TO PERFORM SERVICES AND PROVIDE A LICENSE TO THE LICENSED SOFTWARE. IT IS NOT AN ENGAGEMENT TO ACHIEVE ANY PARTICULAR RESULT.
1.7 Likewise, any delivery date is a mere estimation, and is not binding on DocShifter. Nonetheless, DocShifter will use its best efforts to meet any such delivery date, on the condition that Customer meets all its obligations under the present Terms and corresponding offer and confirmation, and that Customer provides all necessary orders, information, technical and functional specifications or requirements sufficiently prior to the requested delivery date.
1.8 These terms are also applicable in case DocShifter provides a temporary trial license on the Licensed Software to Customer. A trial license is provided “as is” without obligation or warrant on the side of DocShifter. The purpose of a trial license is to allow the Customer to evaluate whether the Licensed Software could be useful. The demo license is not intended for operational use by the Customer. DocShifter may decide to terminate a trial license with immediate effect and without ground or notification.
2. PRICES, INVOICING, PAYMENT AND SUSPENSION
2.1 THE LICENSED SOFTWARE IS ACTIVATED UPON RECEIPT OF PAYMENT (REGARDLESS OF THE PAYMENT METHOD USED) OF THE SOFTWARE LICENSE FEE. THE SOFTWARE LICENSE FEE INCLUDES MAINTENANCE AND SUPPORT AND UPGRADES UNLESS AGREED OTHERWISE.
2.2 All prices in any offer are exclusive of all applicable taxes, levies or duties, and Customer will be solely responsible for the payment of all such amounts. DocShifter will add taxes to the Software License Fee, where it is required to do so by law, at the moment of invoicing for the License, and Customer will pay them together with the price. All prices are payable in Euro (EUR) unless agreed differently.
2.3 DocShifter will invoice Customer for the License, as specified in the offer, as well as for related services, materials and related expenses (such as, but not limited to, costs of traveling or additional necessary licenses to execute any service). Any Software License Fee needs to be paid in advance before the start of each contract year.
2.4 All invoices are due and payable at a due date as mentioned on the invoice, or in absence thereof within (30) calendar days of the invoice date. A purchase order or purchase order number from Customer is not required for sending valid invoices.
2.5 DocShifter Software Licence fees are subject to a 5% yearly increase.
2.6 If Customer does not pay the price due within the stipulated term, Customer will be automatically, without DocShifter’s notification being required, in default. In addition, all amounts not paid by Customer on the due date mentioned in the invoice will bear an interest of nine percent (9%) per year. Furthermore, Customer agrees to pay any costs, fees and expenses incurred by DocShifter in connection with the collection of the debt together with the applicable interest, with a minimum of one hundred fifty (150) EUR.
2.7 IF CUSTOMER HAS NOT TIMELY PAID THE SOFTWARE LICENSE FEE BY THE DUE DATE, DocShifter MAY AUTOMATICALLY SUSPEND THE LICENSE. CUSTOMER ACKNOWLEDGES AND AGREES THAT DocShifter IS NOT OBLIGED TO CONTINUE RENDERING ANY SERVICES OR PROVIDING ACCESS TO THE LICENSED SOFTWARE AS LONG AS THE RELATED INVOICE IS NOT PAID.
3. LICENSE
3.1 Subject to Customer’s fulfillment of all obligations under the Terms and corresponding offer and/or confirmation (in particular, but without an exhaustive character, full payment of the Software License Fee), Customer will have a time-bound, non-exclusive, personal, non-transferable, non-sublicensable license to use the Licensed Software for the purpose as agreed between DocShifter and Customer.
3.2 Customer agrees not to use the Licensed Software for any purpose that may be detrimental to DocShifter’s business activities or commercial interests.
3.3 Unless agreed otherwise, the License is granted for use on no more than one instance, meaning a single installed version of the Licensed Software on a physical or virtual computer, server, machine, or container.
3.4 DocShifter may use a license key or similar control mechanism to ensure compliance with the use and limitations of the License.
4. INTELLECTUAL PROPERTY
4.1 Any and all intellectual property rights (i.e. any and all (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights, know-how; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, (f) trade and business names, domain names, database rights, rental rights and any other industrial or intellectual proprietary rights or similar right (whether registered or unregistered); (g) all registrations, applications for registration, renewals, extensions, continuations, divisions, improvements or reissues relating to any of these rights and the right to apply for, maintain and enforce any of the preceding items, in each case in any jurisdiction throughout the world) in the Licensed Software are the sole property of DocShifter.
4.2 Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Licensed Software.
4.3 Customer agrees to utilize the Licensed Software for Customer’s business purposes only and Customer agrees not to disseminate the Licensed Software, in any form, to any person or entity.
4.4 Customer will not, and will not encourage any third party to: (i) modify, adapt, alter, translate, or create derivative works of the Licensed Software; (ii) reverse-engineer, decompile, disassemble, or attempt to derive the source code for the Licensed Software; (iii) distribute, license, sublicense, lease, rent, loan or otherwise transfer the Licensed Software or license key to any third party; (iv) remove, alter, obscure in any way the proprietary rights notices of DocShifter; (v) use the Licensed Software for the purpose of creating a product or service competitive with the Licensed Software; (vi) use the Licensed Software in connection with any unsupported software or hardware.
4.5 CUSTOMER MAY NOT REMOVE OR CIRCUMVENT ANY TECHNICAL PROVISIONS THAT WERE INSTALLED TO PROTECT THE LICENSED SOFTWARE (OR HAVE THESE REMOVED OR CIRCUMVENTED BY OTHERS).
4.6 In case Customer uses the Licensed Software in combination with open source software it will ensure that DocShifter is under such open source license not obliged (i) to divulge or disclose any functionalities or technical aspects of the proprietary Licensed Software or (ii) to provide a free license on the Licensed Software.
4.7 Customer will refrain from any action that can in any way be damaging DocShifter or reputation associated with the trademark DocShifter. Customer will refrain from registering the trademark DocShifter or any similar trademark for similar activities anywhere in the world.
5. CONFIDENTIALITY
5.1 Customer acknowledges that the Licensed Software incorporates confidential and proprietary information developed or acquired by or licensed to DocShifter. Customer will take all reasonable precautions necessary to safeguard the confidentiality of the Licensed Software, including (i) those measures taken by Customer to protect Customer’s own confidential information and (ii) those which DocShifter may reasonably request from time to time.
5.2 Customer will not allow the removal or defacement of any confidentiality or proprietary notice placed on the Licensed Software. The placement of copyright notices on these items will not constitute publication or otherwise impair their confidential nature.
5.3 Customer will not disclose, in whole or in part, any item of the Licensed Software to any individual, entity, or other person, except to those persons who (i) require access for Customer’s authorized use of the Licensed Software and (ii) agree to comply with the use and non-disclosure restrictions applicable to the Licensed Software under this Agreement. Customer acknowledges that any unauthorized use or disclosure of the Licensed Software may cause irreparable damage to DocShifter. If an unauthorized use or disclosure occurs, Customer will immediately notify DocShifter and take all reasonable steps which may be available to recover the Licensed Software and to prevent subsequent unauthorized use or dissemination.
5.4 Customer entitles DocShifter to use the name of Customer as reference for marketing purposes.
6. DATA PROTECTION
6.1 Before the Licensed Software can be taken into use, Customer will read and accept the contents of the Privacy Statement.
6.2 If, and only to the extent, DocShifter processes any personal data of third parties on Customer’s behalf when rendering any services, DocShifter and Customer record their intention that, relating to the processing of the personal data of these third parties, Customer will be the data controller and DocShifter will be a mere data processor and in any such case:
6.2.1 Customer acknowledges and agrees that the personal data may be transferred or stored in any country of the European Union.
6.2.2 Customer will ensure that it is entitled to transfer the relevant personal data to DocShifter, so that DocShifter may lawfully use and process the personal data for the purposes of rendering services.
6.2.3 Customer will ensure either (i) that the third parties whose personal data are processed have authorized such use, processing, storage and transfer as compliant with applicable data protection legislation and industry standards or (ii) if necessary, personal data are delivered ‘de-identified’, meaning that the personal identifiers have been extracted from all personal data provided to DocShifter.
6.2.4 Customer acknowledges and agrees that the personal data will be shared with DocShifter’s employees, representatives, officers, directors, agents, advisors, affiliates subcontractors and consultants who have a need to know such data for the purposes of rendering services.
6.3 Both, DocShifter and Customer will take appropriate technical and organizational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction or damage.
6.4 THE LICENSED SOFTWARE DOES ITSELF NOT STORE DATA OF CUSTOMER AND DATA OF THIRD PARTIES PROVIDED BY CUSTOMER. DocShifter DOES NOT ARCHIVE OR BACK-UP ANY DATA PROCESSED USING THE LICENSED SOFTWARE, NOR DOES DocShifter ACCEPT ANY LIABILITY RELATED THERETO.
7. AUDIT
7.1 THIS LICENSE ALLOWS CUSTOMER TO USE THE LICENSED SOFTWARE ONLY ON AN INSTANCE AS SPECIFIED BY DocShifter. CUSTOMER WILL NOT DISABLE, CIRCUMVENT, OR ATTEMPT TO DISABLE OR CIRCUMVENT IN ANY WAY THE LICENSE KEY OR THE USE AND LIMITATIONS SET BY DocShifter OR THE LICENSED SOFTWARE.
7.2 Customer agrees to notify DocShifter in writing in case there is a need to change the number of instances or in case the license key would not suffice. Customer understands that any changes to the number of instances will result in payment of additional Software License fees.
7.3 Customer will establish and maintain a state-of-the-art system that enables DocShifter or its authorized representative to audit and examine the use made by Customer. DocShifter is entitled to audit the number of instances of the Licensed Software and to verify compliance with the offer and the Terms. Customer understands that, if needed, DocShifter may scan any Customer’s software or hardware to check for any compliance issues.
7.4 DocShifter reserves the right to conduct, without prior notice, such audit or to have an authorized representative conduct the audit either remote or physically on location of Customer. Upon request of DocShifter Customer or any of its subcontractors, will provide all assistance needed to execute the audit.
7.5 Costs of audits conducted by DocShifter or its authorized representative will be borne by DocShifter unless the audit reveals that Customer is not in compliance with the Terms, or has committed fraud. In such case Customer will reimburse the total costs of the audit and will immediately pay any additional Software License Fees and accrued interests as from the date of use of the Licensed Software. This leaves unaffected the right for DocShifter to claim compensation for any damages suffered.
8. WARRANTIES AND DISCLAIMERS
8.1 EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSE AND ANY SERVICES RELATED THERETO ARE PROVIDED “AS IS”.
8.2 DocShifter makes no and hereby disclaims all other warranties, covenants or representations, or conditions, whether written, oral, express or implied including, without limitation, any implied warranties of satisfactory quality, course of dealing, trade usage or practice, merchantability, suitability, availability, title, non-infringement, or fitness for a particular use or purpose, with respect to the use, misuse, or inability to use the Licensed Software, as the case may be, provided to Customer by DocShifter.
8.3 DocShifter does not warrant that the Licensed Software is error-free. Customer specifically acknowledges and agrees that DocShifter cannot be held liable for any errors when using the Licensed Software or as an outcome of using the Licensed Software.
8.4 Customer acknowledges and agrees that there are risks inherent to transmitting information over the Licensed Software and DocShifter is not responsible and cannot be held liable for any losses of Customer’s data.
8.5 Customer represents and warrants to DocShifter that it has the authority to contract (i.e. accepting offers and placing orders) and to accept these Terms, and that any information, confidential or not, as well as personal data, provided to DocShifter by Customer is accurate and truthful.
8.6 Customer will not: (a) infringe any intellectual property rights of third parties when using the Licensed Software; (b) use any sources containing viruses, worms or other malicious computer programming codes intended to damage or actually damage the Licensed Software or, DocShifter’s system or data; or (c) otherwise violate the rights of a third party.
9. INDEMNIFICATION
9.1 DocShifter will defend Customer as specified herein against any founded and well-substantiated claims brought by third parties to the extent such claim is based on an infringement of any registered intellectual property rights of such third party by the Licensed Software and excluding any claims resulting from: (a) the unauthorized use of the Licensed Software by Customer or by third parties with the consent of Customer; (b) the modification of the Licensed Software by Customer or by third parties with the consent of Customer; (c) the use of the Licensed Software in violation of any of the present Terms by Customer or by third parties with the consent of Customer.
9.2 Such indemnity obligation will be conditional upon the following: (a) DocShifter is given prompt written notice by Customer of any such claim; (b) DocShifter is granted sole control of the defence and settlement of such a claim; (c) upon DocShifter’s request, Customer fully cooperates with DocShifter in the defence and settlement of such a claim; and (d) Customer makes no admission as to DocShifter’s liability in respect of such a claim, nor does Customer agree to any settlement in respect of such a claim without DocShifter’s prior written consent.
9.3 Provided these conditions are met, if such a violation is asserted DocShifter’s sole responsibility will be at its own expense and option either (i) to procure the right/license to continue using the Licensed Software ; and/or (ii) to modify the Licensed Software to non-infringing; and/or (iii) to take legal action against such third party if DocShifter is convinced that any asserted intellectual property rights are not valid or the Licensed Software does not infringe such intellectual property rights.
9.4 The foregoing states the entire liability and obligation of DocShifter and the sole remedy of Customer with respect to any infringement of any intellectual property rights.
9.5 Customer hereby agrees to indemnify and hold harmless DocShifter and its current and future affiliates, officers, directors, employees, agents, consultants and representatives from each and every demand, claim, loss, liability, or damage of any kind whatsoever, including reasonable attorney’s fees, whether in tort or in contract, that it or any of them may incur by reason of, or arising out of, any claim which is made by any third party with respect to: (a) any breach or violation by Customer or by any of Customer’s employees, helpers or agents of any provisions of these Terms; (b) any information provided by Customer to DocShifter for the purposes of rendering the services or providing the License that violates any intellectual property rights or any other kind of right of a third party; and (c) fraud, intentional misconduct, or gross negligence committed by Customer.
10. LIABILITY
10.1 TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, DocShifter’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE LICENSE, LICENSED SOFTWARE OR RELATED SERVICES UNDER THESE TERMS WHETHER IN CONTRACT, WARRANTY, TORT OR OTHERWISE, WILL BE SUBJECT TO THE RESTRICTIONS SET FORTH IN THESE TERMS, AND IT WILL NOT EXCEED THE ANNUAL SOFTWARE LICENSE FEE PAID BY CUSTOMER AND MAXIMUM TEN THOUSAND EURO.
10.2 To the extent legally permitted under applicable law, DocShifter will not be liable to Customer or any third party, for any special, indirect, exemplary, punitive, incidental or consequential damages of any nature including, but not limited to damages or costs due to loss of profits, loss of data, revenue or income, goodwill, production of use, procurement of substitute services, fatal injuries, including but not limited to any miscalculations, incorrect conversion of data, or the use, misuse, or inability to use the Licensed Software, regardless of the cause of action or the theory of liability, whether in tort, contract, or otherwise.
10.3 For the avoidance of doubt, DocShifter will not be liable for any claims resulting from: (a) Customer’s or Customer’s employees’, helpers’ or agents’ unauthorized use of the Licensed Software; (b) Customer’s or any third party’s unauthorized modification of the Licensed Software; (c) Customer’s use of the Licensed Software in combination with any incompatible hardware or software; (d) Customer’s or Customer’s employees’, helpers’ or agents’ use of the Licensed Software in violation of any of the Articles of these Terms.
10.4 The exclusions and limitations of liability under these Terms will operate to the benefit of DocShifter’s affiliates, subcontractors and resellers to the same extent such provisions operate to the benefit of DocShifter; and all exclusions and limitations of liability enforceable towards Customer are also, to the same extent, enforceable to Customer’s employees, patients, helpers and/or agents.
11. MAINTENANCE AND SUPPORT
11.1 The License fee covers maintenance and support and upgrades in relation to the Licensed Software, unless agreed otherwise.
11.2 The terms and conditions for maintenance and support are covered in the Support Terms (see below).
12. TERM AND TERMINATION
12.1 The License is offered by DocShifter for a specific term. Any offer made to Customer will identify Customer’s right and the start date of the License. If no start date has been explicitly mentioned, the start date is the date that the licenced software is ordered.
12.2 A term-based License is valid for the fixed term as agreed between Customer and DocShifter and will automatically renew, unless either party provides notice ninety (90) calendar days prior to the anniversary date. The absence of a purchase order or purchase order number from Customer does not prevent the automatic renewal.
12.3 DocShifter may terminate with immediate effect the License, without any compensation being due to Customer: (a) if DocShifter believes or has reasonable grounds to suspect that Customer is violating these Terms (for example in case Customer attempts to exceed the use of the Licensed Software beyond the limits of the License or the license key); or (b) if Customer fails to pay any amount when due.
12.4 Without prejudice to the foregoing, and at DocShifter’s sole discretion, DocShifter may decide, in the event of breach, to suspend the License or rendering of related services.
12.5 Upon the termination for any reason whatsoever in accordance with the provisions of these Terms, Customer will discontinue any use of the Licensed Software and will return any materials or related documentation. DocShifter will prevent further access to the Licensed Software.
12.6 Upon any termination or expiration of this License, Customer understands that any data may no longer be processed using the Licensed Software. Customer is solely responsible for retrieving its data from the Licensed Software prior to termination for any reason.
12.7 Termination will not exempt Customer from paying any pending invoices nor from paying services already rendered (regardless whether or not the corresponding invoice has already been issued).
12.8 Customer understands that DocShifter’s audit right will survive termination for a period of two (2) years. Likewise, rights and obligations under sections 2.6, 3.2, 4, 5, 7, 8, 9.5, 10, 12.5, 12.6, 12.7, 12.8, 14.6 will survive any such termination.
13. FORCE MAJEURE
13.1 DocShifter will not be liable for any failure or delay if such delay or failure is due to causes beyond DocShifter’s control, including, but not limited to, war, strikes or labour disputes, embargoes, government orders, telecommunications, network, computer, server or internet downtime, unauthorized access to DocShifter’s information technology systems by third parties or any other cause beyond the reasonable control of DocShifter (hereinafter, the “Force Majeure Event”).
13.2 DocShifter will notify Customer, for mere informative purposes and without assuming any liability or obligations in respect of it, of the nature of such Force Majeure Event and the effect on the License and its ability to render services, as well as of DocShifter’s plan to mitigate the effects of such Force Majeure Event.
14. MISCELLANEOUS
14.1 These Terms constitute the entire agreement and understanding between Customer and DocShifter with respect to License and rendering of related services in respect of the Licensed Software and supersedes all prior oral or written agreements, representations or understandings between Customer and DocShifter relating to the same subject.
14.2 If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
14.3 Any failure to enforce any provision of the Terms will not constitute a waiver thereof or of any other provision.
14.4 Customer’s obligations and rights under the present Terms may not be assigned by Customer without the prior written approval of DocShifter. DocShifter may assign its obligations and rights to (a) a parent company or affiliated company, (b) an acquirer of all or substantially all of DocShifter’s assets involved in the operations relevant to these Terms, or (c) a successor by merger or other combination. Any purported assignment in violation of this Article will be void. These Terms may be enforced by and is binding on permitted successors and assigns.
14.5 All notices from DocShifter intended for receipt by Customer will be deemed delivered and effective when sent to the email address provided by Customer, without prejudice to any other additional mean of communication used for giving such notice. If Customer changes its email address, Customer must inform DocShifter of that circumstance in written.
14.6 THESE TERMS WILL BE EXCLUSIVELY GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF BELGIUM, WITHOUT GIVING EFFECT TO ANY OF ITS CONFLICT OF LAW PRINCIPLES OR RULES. THE COURTS AND TRIBUNALS OF GHENT WILL HAVE SOLE JURISDICTION SHOULD ANY DISPUTE ARISE IN RELATING TO THE TERMS.
MAINTENANCE & SUPPORT TERMS
1. GENERAL
I. The objective of the present maintenance and support terms (hereinafter, the “Support Terms”) is to provide Customer with the necessary Support to try to solve any Incident concerning the Licensed Software (“Support” and “Incident” as defined in Article 2) and to try to avoid or predict such Incidents, as the case may be.
II. Some clauses of the Support Terms are general. They are those which shall be accepted as an integral part of the License Terms. Other clauses can be specific and set out in Exhibit I.
III. The Support Terms also apply even when the First Line Support is delivered by a reseller of DocShifter.
2. DEFINITIONS
I. Incident shall mean any problem concerning the Licensed Software that is demonstrable and that has been notified according to the notification procedure through DocShifter’s support portal. The Incidents shall be classified in three categories: (i) Critical Incidents, (ii) Standard Incidents or (iii) Minor Incidents. Whether an Incident falls under the scope of one or another category shall be determined by DocShifter according to the following criteria:
i. Critical Incidents (“P.0”) shall consist in problems that precludes the Customer from using the Licensed Software and disrupts critical business functions, and the solution of which may be complex.
ii. Standard Incidents (“P.1”) shall consist in problems that do not preclude Customer from using the Licensed Software but diminish the functionalities or the performance of the Licensed Software, and the solution of which is not a complex one.
iii. Minor Incidents (“P.2”) shall consist in problems that do not diminish the functionalities or performance of the Licensed Software, but simply imply minor deficiencies the solution of which is very standard.
Under no circumstance Incident shall mean any matter affecting third party’s software/hardware that has been installed in addition to the Licensed Software. Should any matter arise in connection with such software/hardware, Customer shall enter into direct relationship with the licensor/manufacturer of software/hardware.
II. Support shall mean the assistance provided either by DocShifter or reseller, as the case may be, in relation the Licensed Software. Two types of support can de distinguished under the Support Terms:
i. Corrective Support, which shall consist in support aimed to try to solve P.0, P.1 and P.2 Incidents once they have occurred. Corrective Support shall be divided in (1) First Line Support, to be provided by reseller (or DocShifter in the absence of the latter), and (2) Second Line Support, to be provided by DocShifter.
ii. Preventive Support, which shall consist in support aimed to avoid that P.0, P.1 and P.2 Incidents occur. Preventive Support shall be provided by reseller, or by DocShifter in the absence of the latter.
3. NOTIFICATION PROCEDURE OF INCIDENTS
I. Corrective Support shall only be rendered under the Support Terms if the Incident is notified by Customer pursuant to the following rules:
i. The Incident shall be notified in writing to reseller or DocShifter (in the absence of the former) through DocShifter’s support portal by a technical contact of the Customer.
ii. The Incident shall be described clearly and in such way that enables reseller and/or DocShifter to find a solution.
iii. The Incident must be notified at the latest within two (2) working days as of its discovery.
iv. Together with the notification of the Incident, Customer should designate the details of its technical contacts. Such technical contacts shall be authorized and knowledgeable enough about the Incident as well as about the Licensed Software in order to help reseller and/or DocShifter resolve the Incident.
4. FIRST LINE SUPPORT
I. First Line Support shall be provided by reseller. Nonetheless, DocShifter shall be in charge of First Line Support where Customer licenses the Licensed Software directly from DocShifter.
II. First Line Support shall comprise:
i. Acknowledgement of receipt of the notification of the Incident.
ii. Identifying the cause of the Incident through remote diagnosis.
iii. Confirmation to the Customer that either the reseller and/or DocShifter have started the analysis of the Incident.
III. The response time for First Line Support shall vary depending on whether the Incident falls under P.0, P.1 or P.2 category.
5. SECOND LINE SUPPORT
I. Second Line Support shall be provided by DocShifter once the First Line Support has been rendered, and as far as the Incident has not been solved through First Line Support.
II. Second Line Support shall consist in a more in-depth technical analysis by DocShifter’s support engineers in response to Incidents that cannot be solved through First Line Support.
III. The response time for Second Line Support shall vary depending on whether the Incident falls under P.0, P.1 or P.2 category.
6. COMMON PROVISIONS TO CORRECTIVE AND PREVENTIVE SUPPORT
I. Corrective Support (either First Line or Second Line) and Preventive shall only be provided during working days, excluding Saturdays and Sundays, as well as Belgian official holidays. Likewise, Support shall only be provided during normal business hours (i.e. 9.00 am-5.00 pm CET).
II. In this regard, DocShifter may send communications to Customer informing of the dates that are to be deemed holidays under the Support Terms.
7. SUPPORT SERVICES EXCLUSIONS
I. DocShifter shall have no responsibility to provide support to Customer with respect to any problem with the Licensed Software caused by:
I. any software, device, or other product not officially released by DocShifter;
II. neglect, misuse, alteration, modification, and/or enhancement to the Licensed Software by any party other than DocShifter;
III. negligence, hardware malfunction or other causes beyond the control of DocShifter;
IV. failure of Customer to provide a suitable installation or operating environment for the Licensed Software;
V. use of the Licensed Software for a purpose other than the purpose for which it was designed;
VI. use of the Licensed Software installed on a computer platform other than the platform authorized by DocShifter.
II. DocShifter shall have no obligation to support a failure that cannot be reproduced at DocShifter’s facility or via remote access to the Customer’s facility.
8. UPDATES AND UPGRADES
I. Updates, meaning improvements of the same version of the Licensed Software, are available to Customer. For example: if version 1.0 is the first version, version 1.1. is the first update (minor release) within the same version.
II. Upgrades, meaning the addition of functionalities to the ones originally included in the Licensed Software, can be made available to Customer by DocShifter. For example: if version 1.0 is the first version, version 2.0 is the upgrade (major release).
III. DocShifter is not obliged to carry out updates or develop upgrades.
IV. DocShifter’s Support covers the last upgrade (so, the current major release). The previous version is supported for two (2) years following the introduction of the last upgrade.
V. The Customer cannot refuse updates or upgrades to the Licensed Software that help to solve Incidents. If the Customer refuses updates or upgrades, DocShifter is entitled to suspend any further support.
9. PAYMENT OF SUPPORT FEES
I. DocShifter support, maintenance and upgrades are included in the time-bound annual Software license fee.
II. Failure to execute Licence fee payment in time shall result in a termination of the Support Terms.
III. In case a Customer has not paid or stopped paying Software license Fees and requests DocShifter to provide support, updates or upgrades, Customer shall pay a reinstatement fee, meaning an amount equal to the sum of unpaid Software License Fees over the past.
10. TERM AND TERMINATION
I. This Support Terms shall commence on the start date of the Software License Terms and is time-bound to the same period.
II. DocShifter shall be entitled to immediately terminate the Support Terms without any compensation being due in the event that it came to its attention that Customer is abusing the request of Support, either by infringing the clauses of the Support Terms, by using the Licensed Software with gross negligence or infringing the Terms of License.
11. LIABILITY
I. Except as otherwise stated under the present Support Terms, DocShifter does not make any warranty, express or implied, with respect to the Licensed Software. The provisions of the Support Terms state the entire and sole liability of DocShifter for any defective Licensed Software, whether in contract or in tort, and exclude all other liability in law or in contract relating thereto.
II. If the above disclaimers of warranty or limitations of liability are found to be void, invalid or unenforceable, DocShifter’ liability will in no event exceed the actual direct loss or damage incurred by Customer. In any event DocShifter’ liability will be limited to the Support Fees of the last Support Period.
III. DocShifter will not be liable for any indirect damages such as any loss of use, revenue or anticipated profits, loss of stored, transmitted or recorded data, or for any unforeseen damages arising out of the Support Terms or use of the Licensed Software.
IV. DocShifter shall not be liable in any way for failure or delay in performing its obligations under the Support Terms, when such failure or delay is due to force majeure or hardship, such as war or warlike conditions, terrorism, blockade, international sanctions or embargo, a ban on the international transfer of money, seizures or attachments, shortage of raw materials or means of transport, restraints on the consumption of energy, absence of internet access, serious accidents, fire, flood, strikes or lock-outs, breakage of machinery, government intervention, or any other cause that was unforeseeable at the time of signing this Support Terms, and that is beyond DocShifter’ reasonable control.
V. If any force majeure or hardship situation occurs, DocShifter shall notify Customer in writing, describing the situation, the possible consequences and the prospects of continuing performance under these Support Terms. DocShifter shall inform Customer in writing of the ending of the force majeure or hardship situation.
12. MISCELLANEOUS
I. These Support Terms constitute the entire agreement and understanding between Customer and DocShifter with respect to maintenance and support of the Licensed Software.
II. If any provision of these Support Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Support Terms will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
III. Any failure to enforce any provision of the Support Terms will not constitute a waiver thereof or of any other provision.
IV. Customer’s obligations and rights under the Support Terms may not be assigned by Customer without the prior written approval of DocShifter. DocShifter may assign its obligations and rights to (a) a parent company or subsidiary, (b) an acquirer of all or substantially all of DocShifter’s assets involved in the operations relevant to these Terms, or (c) a successor by merger or other combination. Any purported assignment in violation of this Article will be void. These Support Terms may be enforced by and is binding on permitted successors and assigns.
V. All notices from DocShifter intended for receipt by Customer will be deemed delivered and effective when sent to the email address provided by Customer, without prejudice to any other additional mean of communication used for giving such notice. If Customer changes its email address, Customer must inform DocShifter of that circumstance in written.
Any non-technical notice to be given under this Support Terms must be in writing. Notices shall become effective on the date received. To these effects, the non-technical contact details of each of the Parties are listed in Exhibit III.
VI. THESE TERMS WILL BE EXCLUSIVELY GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF BELGIUM, WITHOUT GIVING EFFECT TO ANY OF ITS CONFLICT OF LAW PRINCIPLES OR RULES. THE COURTS AND TRIBUNALS OF GHENT WILL HAVE SOLE JURISDICTION SHOULD ANY DISPUTE ARISE IN RELATING TO THE TERMS.
Privacy Statement
THE LICENSED DocShifter SOFTWARE DOES ITSELF NOT STORE DATA OF CUSTOMER AND DATA OF THIRD PARTIES PROVIDED BY CUSTOMER. DocShifter DOES NOT ARCHIVE OR BACK-UP ANY DATA PROCESSED USING THE LICENSED SOFTWARE, NOR DOES DocShifter ACCEPT ANY LIABILITY RELATED THERETO. IF, AND ONLY TO THE EXTENT, DocShifter PROCESSES ANY PERSONAL DATA OF THIRD PARTIES ON CUSTOMER’S BEHALF WHEN RENDERING ANY SERVICES, DocShifter AND CUSTOMER RECORD THEIR INTENTION THAT, RELATING TO THE PROCESSING OF THE PERSONAL DATA OF THESE THIRD PARTIES, CUSTOMER WILL BE THE DATA CONTROLLER AND DocShifter WILL BE A MERE DATA PROCESSOR.
1. Definitions
1.1 “DocShifter”: DocShifter NV with enterprise number BE 0544.961.044 and registered office at Eedverbondkaai 242/003, B-9000 Gent, Belgium;
1.2 “Personal Data”: any information relating to an identified or identifiable natural person; 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;
1.3 “Customer”: any existing person or company using the DocShifter Software for its legitimate commercial purposes;
1.4 “Customer Content”: all information and data provided by the Customer through the DocShifter Software;
1.5 “Website”: The Website through which DocShifter may offer its services online, currently https://www.docshifter.com/or any successor or URL indicated by DocShifter from time to time.
2. Customer Data
2.1 In order to allow Customer to use the Website and/or DocShifter Software, DocShifter processes a limited number of Personal Data received from the Customer:
2.1.1 Information that the Customer provides by filling in the contact form on the Website, namely, name, company name, e-mail, telephone number and Personal Data included in the message;
2.1.2 Information provided in order to receive a license on DocShifter Software, namely, company name, VAT number, name of the authorized representative, technical or non-technical contact persons, address, e-mail addresses, phone numbers, account number for invoicing;
2.1.3 Communication and correspondence with the Customer.
2.2 If information is provided by a Customer via a form, the fields indicated with a (*) strictly are necessary for the purposes for which they are processed. If these are not filled in, the submission of the form will not be followed.
3. IP addresses and cookies when using the Website
3.1 DocShifter may collect information about Customer’s computer, including where available your IP address, operating system and browser type, for system administration and to report aggregated information to Customer. This is statistical data about Customer’s browsing actions and patterns and does not identify any individual.
3.2 For the same reason, DocShifter may obtain information about Customer’s general internet usage by using a cookie file which is stored on the hard drive of Customer’s computer. Cookies contain information that is transferred to Customer’s computer’s hard drive. They help DocShifter to improve the Website.
3.3 Customer may refuse to accept cookies by activating the setting on Customer’s browser which allows Customer to refuse the setting of cookies. However, if Customer selects this setting Customer may be unable to access certain parts of the Website. Unless Customer has adjusted the browser setting so that it will refuse cookies, the system will issue cookies when Customer logs on to the Website.
4. DocShifter Software
4.1 The licensed DocShifter Software does itself not store data of Customer and data of third parties provided by Customer. DocShifter does not archive or back-up any data processed using the licensed software, nor does DocShifter accept any liability related thereto.
4.2 If, and only to the extent, DocShifter processes any Personal Data of third parties on Customer’s behalf when rendering any services, DocShifter and Customer record their intention that, relating to the processing of the Personal Data of these third parties, Customer will be the data controller and DocShifter will be a mere data processor:
4.2.1 Customer will ensure that it is entitled to transfer the relevant Personal Data to DocShifter, so that DocShifter may lawfully use and process the Personal Data for the purposes of rendering services.
4.2.2 Customer will ensure either (i) that the third parties whose Personal Data are processed have authorized such use, processing, storage and transfer as compliant with applicable data protection legislation and industry standards or (ii) if necessary, Personal Data are delivered ‘de-identified’, meaning that the personal identifiers have been extracted from all Personal Data provided to DocShifter.
4.2.3 Customer acknowledges and agrees that the Personal Data will be shared with DocShifter’s employees, representatives, officers, directors, agents, advisors, affiliates subcontractors and consultants who have a need to know such data for the purposes of rendering services.
4.3 DocShifter processes Personal Data to carry out the agreement between DocShifter and Customer. The Personal Data of Customer are used to:
4.3.1 Offer or execute the license of the DocShifter Software;
4.3.2 Allow Customers to use the DocShifter Software;
4.3.3 Audit the use of the DocShifter Software;
4.3.4 Manage incidents notified by Customer when using the DocShifter Software;
4.3.5 Notify Customer on the updates or upgrades to the DocShifter Software;
4.3.6 Perform account administration;
4.3.7 Comply with applicable law.
4.4 If the processing of Personal Data is based on the Customer’s consent, Customer has the right to withdraw the consent at any time, without this affecting the legality of the processing on the basis of the permission before its withdrawal.
5. Disclosure of your information
5.1 DocShifter does not sell or rent the Personal Data to third parties.
5.2 Within DocShifter, Personal Data are only made available to its staff on a need-to-know basis.
5.3 DocShifter may use sub-processors to process Personal Data of the Customer.
5.4 DocShifter may disclose or share Customer’s Personal Data when required by law, or to enforce or apply DocShifter’s Terms of License or Support Terms, to protect DocShifter’s rights, property and safety. This includes exchanging information with third party companies and organisations for the purposes of fraud protection and credit risk reduction.
5.5 DocShifter can change its corporate structure by changing its legal form, merger, acquisitions and sales. In such transactions, Personal Data may be transmitted in accordance with this Privacy Statement and the applicable data protection legislation.
6. Storage and retention of Personal Data
6.1 The Personal Data that DocShifter collects from Customer is stored on information technology systems located in the European Union which are operated by DocShifter.
6.2 Although DocShifter gives its best effort in protecting Customer’s Personal Data, DocShifter cannot guarantee the total security of Personal Data and any transmission is at Customer’s risk.
6.3 DocShifter takes appropriate technical and organisational measures to prevent unauthorised access to the Personal Data received.
6.4 Upon instructions of the Customer and at the end of the Service, DocShifter will delete all Personal Data.
7. Aggregated statistics
7.1 DocShifter may collect statistics about the behaviour of Customers of the Website and use of DocShifter Software. For instance, DocShifter may monitor amongst others the most popular parts of the Website, the most viewed video content or the most read articles.
7.2 DocShifter may display this information publicly or provide its Customers or third parties with reports. However, these data are anonymized and therefore not considered Personal Data.
8. Customer Rights
8.1 Customers have the right to request to review, rectify or erase Personal Data or to limit the processing of their Personal Data, as well as the right to objection to processing of the Personal Data and the right to request data transferability.
8.2 All these requests should be addressed to admin@docshifter.com.
9. Changes to our Privacy Statement
9.1 DocShifter has the right to make changes to this Privacy Statement.
9.2 Any changes DocShifter may make to the Privacy Statement in the future will be notified to Customer by email.
