Qonic End User License Agreement

This End User License Agreement (“Agreement”) is between Qonic NV, located at Koning Albertlaan 140, 9000 Ghent, Belgium, with company number 0776.635.943 (“Qonic”) and the individual or entity entering into this Agreement (“Customer” or “you”), and governs the use of the cloud-based modelling software provided by Qonic (“Software”). If you are accepting this Agreement on behalf of a company, you expressly confirm that you have the authority to legally bind that company to this Agreement.

By accepting this Agreement during the account registration process or by accessing or using our Software, you confirm your acceptance of this Agreement. This Agreement shall be binding regardless of any stipulations to the contrary in a document issued by Customer.

1. Account

Customer must register and create an account (“Account”) in order to use the Software. Customer must provide Qonic with correct information and undertakes to keep this information up-to-date and complete. Customer is responsible for the confidentiality of its Account, usernames and passwords.

Customer can choose between a free Account and different types of paid Accounts. Paid Accounts differ from the free Account and from each other in the functionalities and/or usage limits imposed, as indicated on the Qonic website (“Website”) and as modified from time to time.

Qonic may allow Customer to designate anyone, such as employees, agents and/or independent contractors of Customer (“Users”) to create a user account and to use the Software solely in accordance with the terms of this Agreement. Customer shall not allow access to the Software to any person that is not a User, except when Customer Data is shared in read-only mode through a public share-link. Customer is solely responsible when sharing Customer Data using such public share-link (including for ensuring that the data sharing complies with applicable legislation and does not infringe third party rights) and for the use made of the Software and/or data by these third parties. Customer will hold Qonic harmless for all claims from any third party using such public share-link.

Each User must keep its login credentials confidential and not share them with anyone else. Customer is solely responsible and fully liable for its Users’ compliance with this Agreement and for all activity occurring under the Account (which includes the user accounts), and shall indemnify Qonic from and against any damage, cost, claim, or loss arising out of the use or unauthorized use of Customer’s Account. Customer will immediately notify Qonic if it becomes aware of any compromise of any User login credentials.

2. License

Qonic grants to Customer a non-exclusive, restricted, non-transferable and non-assignable license to use the Software during the term of the Agreement. The License is granted only for use in accordance with the intended use (and documentation) of the Software, this Agreement, including any usage limits, and applicable law. Customer acknowledges that the Software is licensed, not sold.

Except as expressly authorized by this Agreement or as otherwise permitted in writing by Qonic, Customer will not (and will not permit anyone else to) do any of the following: (a) provide access to, distribute, sell or sublicense the Software to a third party, (b) copy, modify or create derivative works from all or any portion of the Software, (c) use or reference the Software to develop a similar or competing product or service, (d) reverse engineer, decompile, disassemble the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software, except to the extent expressly permitted by law (and then only with prior notice to Qonic), (e) circumvent any usage limits, (f) access the Software for purposes of monitoring the availability, performance or functionality of the Software, nor for any benchmarking or competitive purposes, (g) remove or obscure any proprietary notices in the Software, (h) take any action that would cause the Software to fall in the public domain, (i) interfere with the Software’s operation or conduct any security or vulnerability test of the Software, (j) send, process or store harmful, infringing, or otherwise unlawful or tortuous material, including material that violates third party rights, or (i) transmit any viruses or other harmful materials to the Software.

Qonic reserves the right to use all technical means to verify that Customer (and its Users) complies with these restrictions and may suspend and/or terminate with immediate effect Customer’s access to the Software in case of any (suspected) use of the Software contrary to the Agreement. Customer shall indemnify and hold Qonic harmless from and against any claims, damages, liabilities and expenses arising out of or in connection with any use by Customer (and its Users) of the Software.

The Software is a constantly evolving product which Qonic is continually seeking to improve and align with the needs of its broader customer base. Customer accepts that, as a result of this process, all elements, functions and any other content of the Software are subject to modifications, including the addition of new or the removal or replacement of existing elements and functions. Customer will only have access to the latest released version of the Software. Each new version or update of the Software will replace the previous version thereof and will be subject to all rights and obligations as mentioned in this Agreement.

3. Fees

No fees are due for the use of a free Account. The fees for paid Accounts may change from time to time and are those applicable on the date the order is placed or renewed. All prices are net of any sales, use, value-added, withholding or similar taxes, which are payable by Customer.

Qonic may change the future prices for paid Accounts from time to time based on relevant economic factors, such as development and maintenance costs, functionalities of the Software, inflation or market conditions. Any adjustments to prices will be communicated to the Customer and shall take effect on the date specified in the notice to the Customer.

Unless stated otherwise, all fees for paid Accounts are payable either monthly or yearly. Monthly payments are to be made in advance and via credit card only, while annual invoices will be settled via credit card or bank transfer. All annual invoices will be electronic and are due and payable by Customer within thirty days after the invoice date. Unpaid invoices are subject to a late payment interest of 1.5% per month on any outstanding balance, or the maximum permitted by applicable law, whichever is lower, plus all reasonable expenses of collection.

4. Term and Termination

The term of this Agreement starts from the date of Customer’s online registration. The term of free Accounts shall continue for an indefinite term unless either party terminates the Agreement upon thirty days prior written notice. Paid Accounts will continue for the term of one month and, thereafter, will automatically be renewed every month, unless either party gives a written notice to the other party of its intention not to renew the Agreement at least seven days before the end of the then current term. If the Customer opts for a yearly payment, Paid Accounts will continue for the term of one year and, thereafter, will automatically be renewed every year, unless either party gives a written notice to the other party of its intention not to renew the Agreement at least thirty days before the end of the then current term.

Either party may terminate this Agreement with immediate effect if the other party (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within thirty days after being notified in writing, (b) suspends or ceases operation without a successor, (c) is declared bankrupt, becomes insolvent, makes any arrangement or composition with its creditors, goes into voluntary or involuntary liquidation, or (d) is excused by a force majeure event as defined in section 11 and such event has lasted for more than thirty consecutive days.

Upon expiration or termination of this Agreement, Customer’s right to access and use the Software will immediately and automatically cease. At Customer's request, within thirty days following termination of this Agreement and payment of all sums owed hereunder, Qonic will permit Customer to access the Software solely to the extent necessary for Customer to retrieve Customer Data then in Qonic’s possession. Customer acknowledges that Qonic has no obligation to retain Customer Data and the Customer Data may be irretrievably deleted after such thirty day period.

All sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers and limitations of liability.

5. Customer Data

Customer represents and warrants that all data and content submitted by Customer (and/or its Users) to the Software (“Customer Data”) (i) complies with all applicable laws and regulations, including regarding data protection, and (ii) does not violate or infringe any intellectual property, privacy or other rights of any third party. Customer acknowledges that Qonic will have no liability or responsibility for the content of any Customer Data, and Customer shall indemnify and hold Qonic harmless from and against any claims, damages, liabilities and expenses arising out of or in connection with Customer Data.

Qonic will treat any Customer Data as confidential with standards no less rigorous than Qonic uses to preserve its own confidential information. Notwithstanding Qonic’s measures to protect Customer Data, Qonic cannot guarantee that no loss of or damage to data, including Customer Data, will occur. Customer is responsible for making adequate and regular backups of the Customer Data and the data files that are generated with the Software.

Customer retains ownership of all Customer Data and hereby authorises Qonic and its designees to internally use and handle the Customer Data for supplying and improving the functionalities of the Software as provided under this Agreement or in connection with legal obligations or proceedings. Customer hereby also grants Qonic the right to perform data analytics or other analysis (including by means of artificial intelligence models) on anonymized Customer Data and Software usage, and to use and disclose the resulting data and insights to analyse, develop and improve its products and services to the benefit of both customers and Qonic. Such information will not identify any particular Customer or User. Qonic commits to treating Customer Data with care and will not share them with third parties.

6. Intellectual Property

Qonic is and shall be and remain the exclusive owner of all right, title and interest, including all intellectual and industrial property rights as well as all similar rights for the protection of information, in the Software (including but not limited to the technology, protocols, underlying algorithms and source codes, structure and organization, visual and sound elements, user interfaces, editorial content and documentation), and any suggestions, enhancement requests or other information provided by Customer relating to the Software.

The rights granted to Customer under this Agreement are subject to all of the restrictions described herein and Qonic reserves any rights not expressly granted herein.

7. Warranty Disclaimer

The Software is provided to Customer on an “as is” basis. Except for the express warranties set forth in this Agreement, Qonic hereby disclaims all express or implied warranties with regard to the Software, including but not limited to any implied warranties of merchantability, fitness for a particular purpose, performance, title and non-infringement, accuracy, completeness and quality of service, or that the Software shall be uninterrupted or free from viruses, harmful components, errors or defects. Customer is aware of the need to have an appropriate IT infrastructure and to create backups of all Customer Data introduced in the Software.

Customer acknowledges that neither Qonic nor its third party providers controls the transfer of data over communications facilities and that the Software may be subject to delays and other problems inherent in the use of such communications facilities, for which Qonic shall not be responsible. Customer also recognizes that Qonic may interrupt the Software (in whole or in part) for maintenance work purposes, including both scheduled maintenance work and unscheduled work in the event of an emergency. Where possible, Qonic undertakes to inform Customer in advance of any suspension or discontinuation of the Software. In the event of an unforeseen unavailability of the Software, Qonic shall make reasonable efforts to remedy such unavailability within a commercially reasonable delay.

8. Limitation of Liability

To the maximum extent permitted by applicable law, in no event shall Qonic be liable for any indirect damages, contractual or non-contractual, including, without limitation, incidental, special, punitive or consequential damages such as damage to or loss of profit, revenue, business, reputation, programs, data, equipment or software, incurred by Customer or by any other party arising out of or in connection with the Agreement.

For direct damages arising out of or in connection with this Agreement, the liability of Qonic shall be limited to ‘repair in kind’, i.e. providing the Software again, without the defect. In any case, when ‘repair in kind’ is not possible, the liability of Qonic shall never exceed in aggregate the amounts paid by Customer for the specific license that caused the direct damage to Qonic during the prior 12 months under this Agreement or, in case of free Accounts, the amount of 50 EUR. Customer acknowledges that the price of the Software has been determined taking into account the limitation of liability as set out in this Agreement.

Under no circumstances shall Qonic be liable for any damages related to (i) any software provided by Customer or by a third party on Customer’s behalf and used in combination with the Software, or (ii) any use of the Software other than in accordance with this Agreement or Qonic’s instructions.

If the Software becomes the subject of an infringement claim, Qonic has the choice to either (i) procure the rights for continued use of the Software by Customer, (ii) replace or modify the Software with another software or components of comparable quality and functionality, or (iii) terminate the Agreement and refund any prepaid and unused fees. However, Qonic has the right to wait with such solutions until the infringement claim appeared to be successful.

9. Confidentiality

As receiving party, each party agrees to (a) hold in confidence and not disclose confidential information to third parties except as permitted in this Agreement, and (b) only use confidential information to fulfil its obligations and exercise its rights in this Agreement. Each party will take reasonable precautions to protect the confidential information in the same manner as it would protect its own confidential information of a similar nature, but in no event with less than reasonable care.

The foregoing shall not apply with respect to any information, excluding the Software and information related thereto, that the receiving party can demonstrate (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the disclosing party, (c) was rightfully disclosed to it by a third party, or (d) was independently developed without use of any confidential information of the disclosing party.

If the receiving party is required to disclose information by law, the receiving party shall notify the other party in advance, take reasonable precaution to disclose the minimum amount necessary and seek to protect the confidentiality of such disclosed information.

10. Personal Data

Each party will comply with the applicable data protection legislation.

If Qonic is required under the Agreement to process personal data on behalf of Customer, Qonic shall act as data processor on behalf of Customer and shall:

• process the personal data only on documented instructions from Customer, unless required otherwise by applicable legislation. All instructions must be agreed upon in writing and must be consistent with the terms of this Agreement and applicable data protection legislation. Qonic shall inform Customer if it is of the opinion that one of its instructions infringes applicable data protection legislation;

• ensure that persons authorised to process the personal data under its responsibility or supervision have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

• assist Customer, insofar as reasonable possible and taking into account the nature of the processing, in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR and with Customer’s obligation to respond to data subject rights requests;

• inform Customer without undue delay when Qonic becomes aware of a data breach in the context of the performance of the Agreement;

• ensure that its sub-processors offer a similar level of data protection as required by Qonic under this Agreement. Customer hereby provides a general written authorization to Qonic to engage sub-processors for the processing of the personal data. Qonic shall make the current list of sub-processors available to Customer upon request. If Qonic adds or replaces a sub-processor, Qonic shall inform Customer about the intended change and Customer shall be entitled to object to this change on reasonable grounds by notifying Qonic promptly in writing within thirty days after receipt of Qonic’s notice. In that case, Qonic may suggest modifications to the modalities of the Agreement. If Customer continues to object for a legitimate reason, both Customer and Qonic may terminate the Agreement without having to pay damages to the other party;

• be entitled to transfer personal data to a country located outside the European Economic Area which has not been recognized as ensuring an adequate level of data protection, if Qonic has provided appropriate safeguards or can rely on a derogation foreseen by applicable data protection legislation enabling such transfer;

• not retain the personal data longer than necessary for executing Customers instructions. Upon expiration of this period, termination of the Agreement or expiration of another period determined by Customer, Qonic shall destroy the personal data it may have in its possession entirely and irrevocably. Upon Customers request, Qonic shall return the personal data to Customer or give Customer the possibility to extract the personal data, after which Qonic shall delete any copies entirely and irrevocably;

• make available information that shows that Qonic complies with the obligations laid down in this section 10 and allow for and contribute to audits conducted by Customer or a certified auditor. An audit at Qonic’s premises will be limited to data privacy aspects, may not unnecessarily disturb Qonic’s activities and shall be limited to one inspection per year. Customer shall notify the audit to Qonic in writing at least thirty days in advance. Before the start of the audit, Qonic and Customer shall agree on the process of the audit. Customer shall bear the costs of the audit, including a reasonable compensation for the efforts of Qonic’s accompanying staff, except when the audit has revealed that Qonic is manifestly not compliant to the applicable data protection legislation.

The subject-matter and purpose of the processing of personal data, if any, by Qonic is the provision of the Software. The data subjects include the individuals about whom data is provided to Qonic via the Software by or at the directions of Customer. The personal data that are processed may include any type of personal data processed by Customer or included in the Software. The duration of the processing is the period during which Qonic provides the Software.

Customer warrants that all personal data that it transmits to Qonic are obtained lawfully and can be lawfully processed by Qonic in the context of this Agreement.

11. General Terms

Entire Agreement. This Agreement is the parties’ entire agreement regarding its subject matter and supersedes all prior or contemporaneous agreements and understandings, whether oral or written.

Publicity. Neither party may publicly announce this Agreement or otherwise use the other party's trademarks or other indicia of source except with the other party’s prior written consent or as required by law. However, Qonic may include Customer’s name and/or logo in its customer lists and promotional materials, including its website, but will cease this use at Customer’s written request.

Modifications to Agreement. Qonic may modify this Agreement (which may include changes to the pricing and plans) from time to time by giving notice to Customer by email or through the Software. Modifications become effective upon renewal of Customer’s subscription term, or, in case of free Accounts, after thirty days of such notification. If Qonic specifies that the modifications will take effect prior to such renewal (e.g., due to changes in the law) and Customer notifies Qonic of its objection to the modifications within thirty days after the date of such notice, Qonic will either: (a) permit Customer to continue under the existing version of this Agreement until expiration of the then-current term (after which time the modified Agreement will go into effect) or (b) allow Customer to terminate this Agreement and receive a refund of any prorated pre-paid fees. Continued use of the Software by Customer one month after such notification shall constitute Customer’s acceptance of the modification.

Severance. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary, so the rest of this Agreement remains in effect.

Assignment. Neither party may assign this Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed. Notwithstanding the foregoing, Qonic shall be free to transfer or assign (part of) the Agreement to one of its affiliates or in connection with any merger, consolidation or sale of all or substantially all of its assets or any similar transaction or by operation of law, provided that this does not affect the performance of the Software.

No third-party beneficiaries. Except as expressly provided to the contrary, this Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person any legal or equitable right, benefit or remedy under or by reason of this Agreement.

No waiver. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct.

Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for payment obligations) due to events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government license or natural disaster.

Dispute resolution. This Agreement shall be governed by, interpreted and construed in accordance with the laws of Belgium. All disputes relating to the Agreement, including its interpretation, fall under the exclusive jurisdiction of the Dutch-speaking courts of the district of Ghent. Before bringing a legal claim to court, all parties concerned shall take all possible measures to resolve their dispute amicably.