Last update: 1 July 2021
1.1. The use of the Service and other services rendered by Silverfin shall be governed by the Agreement. The general terms and conditions of the Customer are not applicable and are explicitly excluded, even if such general terms and conditions of the Customer would contain a similar clause.
|Additional Orders:||the order for additional Services following a Silverfin Proposal, accepted and signed by the Customer;|
|Authorized Users:||the users which are authorized to use the Service by means of an account created by Silverfin or the Customer;|
|Client file:||the client file of each End Customer of the Customer;|
|Confidential Information:||non-public information, technical data or know-how of a Party and/or its affiliates, which is furnished to the other Party in written or tangible form in connection with this Agreement, including all data provided by End Customers. Oral disclosure will also be deemed Confidential Information if it can be reasonably assumed to be of a confidential nature or if its confidentiality is confirmed at the time of disclosure;|
|Content:||Silverfin Content or, insofar applicable, Third Party Content for which (in case not included in the Silverfin Proposal) an Additional Order is concluded (e.g. additional templates or products which support certain themes);|
|Customer:||the party with whom Silverfin has concluded the Agreement;|
|Customer Data:||data or material provided to or submitted to Silverfin by the Customer during the use of the Service;|
|Data Protection Legislation:||the General Data Protection Regulation de (“GDPR”) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC; and, all other legislation and regulations concerning the protection of data and privacy which is applicable to the processing of personal data in the context of the Agreement.|
|Effective Date:||the date of commencement as specified in the Silverfin Proposal or in the Additional Orders;|
|End Customer:||the end customers of the Customer and their affiliates, advisors, representatives, officers, directors, employees, agents and consultants which may be serviced or processed through the Service by the Customer;|
|License value:||the money value of the Service (in accordance with among other things the number of Client Files) as set out in the pricing schedule in the Silverfin Proposal and Additional Orders;|
|Overage:||the additional usage of the Service on top of the License value as established during the automatic, monthly evaluation;|
|Service:||the online service of Silverfin including the integrations, features and modules, as set forth in the Silverfin Proposal and Additional Orders;|
|Silverfin Content:||templates, tools, workflows, features, materials, other content information and data provided via the Service;|
|Silverfin Platform:||the Silverfin platform as described and represented via www.silverfin.com;|
|Silverfin Proposal:||the initial offer accepted and signed by the Customer;|
|Term:||the duration of the Agreement as set forth in Section 11;|
|Third Party: Content||templates, tools, workflows, features and other content material which are developed, and possibly maintained, by a third party and which are provided to the Customer via the Service;|
|Third Party Services:||integrations provided by the Service with, or other functionalities the Service comprises which give the Customer access to, services or software of third parties (e.g. services of third parties with whom Silverfin sets up a synchronization);|
|Uptime:||the time the Service is operational and available to communicate with the internet on the server location of Silverfin;|
|Virus:||a virus, cancelbot, worm, logic bomb, Trojan horse or other harmful component of software or data;|
|Website:||the Silverfin website, namely: https://www.silverfin.com.|
3.1 Customer license. Subject to the terms and conditions of this Agreement, Silverfin grants to Customer a renewable, personal, non-exclusive, non-transferable license (without the right to sub-license) to the Service. During the Term, Customer gets access to the Service for Customer’s business purposes as of the Effective Date.
3.2 Authorized Users license. In accordance with the conditions set forth in this Agreement, Silverfin grants to the End Customers’ Authorised Users a limited, personal, non-exclusive, non-transferable, (without the right to sub-license), for the Term to have restricted access to the Service.
3.3 Updates and changes. Silverfin reserves the right to make, in its sole discretion, from time to time, without prior notification to the Customer, standard (i.e. to all Silverfin customers accessible) changes and updates to the functionality and/or documentation of the Service, provided they do not nullify or otherwise disregard the features and conditions of the Agreement.
3.4 Excluded usage. Customer shall not have the right to:
- use the Service in whole or in part for any other purpose, other than for the purposes provided for in this Agreement;
- decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Service by any means whatsoever, or disclose any of the foregoing, or
- use the Service in any way that is unlawful, illegal, fraudulent or harmful.
3.5 License value. Customer has the permission to use the Service in accordance with the License value as specified in the pricing schedule in the Silverfin Proposal and Additional Orders.
3.6 Overage. The actual usage of the Customer is auto-evaluated on a monthly basis. Any Overage on top of the License value as specified in the pricing schedule in the Silverfin Proposal and Additional Orders will be invoiced for a full-year value upfront at the moment of such evaluation and is subject to an additional cost of ten percent (10%).
3.7 Additional Services. The Customer can obtain additional Services, directly through the Service or by concluding an Additional Order which sets forth the commercial details. The Customer and his End Customers are granted a personal, non-exclusive, non-transferable license to such additional Services for the term in accordance with the Additional Order.
3.8 Integrity and confidentiality. In relation to the Authorised Users, the Customer undertakes that: (i) it will not allow or suffer any user accounts to be used by more than one individual Authorised User, (ii) that each Authorised User shall keep a secure password for his use of the Service and (iii) that each Authorised User shall keep his password confidential. The Customer is responsible for all acts by its Authorized Users in breach of this Agreement.
4. FEES AND PAYMENT TERMS
4.2 Payment terms.
4.2.1 Payments. All payment obligations are non-cancellable and all amounts paid are non-refundable. All invoices for any charges under this Agreement are due and payable within 15 (fifteen) days of the invoice date.
4.2.2 Taxes. Amounts due are exclusive of all applicable taxes, levies, or duties, and the Customer will be solely responsible for payment of all such amounts.
4.2.3 Currency and bank account. All amounts should be paid in the currency as stated on the invoice. The payment should be done on the bank account as communicated by Silverfin on the invoice.
4.2.4 Dispute. If the Customer is of the opinion that Silverfin has incorrectly invoiced, then the Customer shall inform Silverfin of this in writing within fifteen (15) days following the invoice date, specifying the supposed error.
4.2.5 No transfer or set off. Invoices may not be transferred or set off without Silverfin’s prior written consent.
4.3 Overdue payment.
4.3.1 Interest. Interest is payable on any amount not paid by the due date at the rate of one and a half percent (1.5%) per month, each month commenced being deemed to have expired.
4.3.2 Service suspension. Silverfin may also suspend access to the Service if the Customer fails to pay any amount due to Silverfin under the Agreement within ten (10) days of the date of Silverfin’s prior written notice of default.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Scope. Silverfin and its suppliers retain all intellectual property rights, title and interests in and to the Service and the Content. All rights in and to the Service and Content not expressly granted to Customer in the Agreement are reserved to Silverfin. No license is granted to the Customer other than to use the Service or the Content expressly stated in the Agreement. The Silverfin name and logo, and the product names associated with the Service or the Content are trademarks of Silverfin or third parties and may not be used without Silverfin’s prior written consent.
6. CUSTOMER DATA
6.1. License. Subject to the terms of the Agreement, Customer grants Silverfin a non-exclusive license to use, copy, store, transmit and display Customer Data to the extent necessary to provide the Service and to maintain it. However, all Customer Data provided by the Customer to Silverfin remains the exclusive property of the Customer or the End Customer.
6.2. Permitted use. Silverfin will not use the Customer Data for any purpose other than to provide Customer with the Service and to report user statistics.
6.3. Customer responsibility. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, suitability and copyright permissions of all Customer Data. The Customer will also guarantee its legality, which means that it will respect all laws that apply to the Customer Data, the use of the Service, including, but not limited to: Data Protection Legislation.
6.4. Indemnification. Customer agrees to defend, indemnify and hold harmless Silverfin (and its officers, directors, employees and agents) from and against any and all claims, actions or demands of third parties and End Customers (including, but not limited to: costs, damages and reasonable legal and accounting costs) arising from Customer Data that infringes the rights of third parties (including the violation of intellectual property rights).
7. DATA PROTECTION
7.1. Terms. The terms “personal data”, “processing”, “(sub)processor” and “controller” have the meaning as assigned in the Data Protection Legislation.
7.2 Silverfin as data controller.
7.2.1 Scope. Silverfin is the data controller for the collection, storage and any other processing by Silverfin of personal data of the Customer and/or their staff members, of prospects and/or their staff members.
7.3 Silverfin as data processor.
7.3.1 Scope.If Silverfin processes personal data on behalf of the Customer in the performance of its obligations under the Agreement, the Parties expressly agree that the Customer will be considered the data controller (or the data processor if the End Customer is considered the data controller) for the processing and Silverfin as the data processor (or the data sub-processor if the Customer is considered the data processor).
7.3.2 Other provisions. Considering the above, the following applies in any case:
- the Customer acknowledges and agrees that the personal data may be transferred or stored in all countries of the European Economic Area, for the purpose of fulfilling Silverfin’s obligations under the Agreement;
- the Customer shall ensure that it has the right to transfer the relevant personal data to Silverfin so that Silverfin can legally use, store, transfer or otherwise process it on behalf of the Customer in accordance with the Agreement;
- the Customer must ensure that the relevant data subjects are notified and have signed the relevant legal mechanisms for the use, processing, storage and transfer, in accordance with Data Protection Legislation;
- Silverfin will process the personal data in accordance with the terms of the Agreement, the Silverfin Data Processor Addendum (as defined below) and in accordance with any lawful instructions the Customer may reasonably give from time to time;
- the Customer acknowledges and agrees that the Customer Data will be shared with the employees, representatives, officers, directors, agents, advisors, affiliates and consultants of Silverfin who need the data to perform the Agreement and who are bound by a duty of confidentiality which does not allow publication;
- Silverfin will make reasonable efforts to comply with any reasonable request from the Customer to cooperate, provide assistance and provide information for the purpose of enabling the Customer to fulfill its obligations under Data protection laws and such compliance to show;
- Silverfin and the Customer take all appropriate technical and organizational measures against unauthorized or unlawful processing of personal data or accidental loss, destruction or damage.
8. SERVICE LEVEL WARRANTY
8.2 Sole remedy. Customer’s sole and exclusive remedy for such failure is to extend the Term by one (1) week.
8.4 Support level. The response time for questions and issues is two (2) business days. Problems relating to the day-to-day use of the Service will be resolved by Silverfin in a timely manner. Silverfin will provide the Customer with the following support services in accordance with the rate plan chosen by the Customer: online help desk, email, telephone support. Critical issues due to hardware and/or network issues are resolved in a timely manner with a response time of twelve (12) hours, taking into account office hours. In case data is lost, there is a full data recovery within thirty-six (36) hours.
9. DISCLAIMERS AND LIABILITIES
9.1 No Virus. To the best of Silverfin’s knowledge, the Silverfin Service and/or Content upon delivery to Customer does not contain a Virus and Silverfin will not knowingly program into the Service and/or Silverfin Content Viruses or other routine software designed for unauthorized access to the Customer’s computer systems or to place software, hardware, data or back door, time bomb, software lockout key or equipment, drop dead equipment, or other routine software designed to automatically shut down or over time or control the computer of persons, disable, delete or otherwise damage it. Provided that Silverfin performs the necessary checks and scans to guarantee this statement.
9.2.1 No guarantees. Unless expressly provided otherwise in the Agreement, Customer accepts the Service “as is” without warranty of any kind, express or implied, including but not limited to warranties with respect to:
- the use or performance of the Service, including, but not limited to: implied warranties of merchantability or fitness for a particular purpose;
- the compatibility of the Service with applications, programs or platforms not specifically identified as compatible with the Service.
9.2.2 Damage types. To the maximum extent permitted by applicable law, the parties shall not be liable to each other for any special, indirect, incidental or consequential damages of any kind, including, but not limited to: damages or expenses resulting from loss of profit, loss of data, loss of turnover, loss of goodwill, business loss, purchase of replacement services, or physical or material damage arising out of or in connection with the Agreement (including, but not limited to: incorrect calculations, or the (mis)use of or inability to use the Service) regardless of the legal claim or theory of liability, whether based in tort, contract or otherwise.
9.2.3 Limitation of liability. Notwithstanding the foregoing, in the event that a Party is held liable, its aggregate liability arising out of or in connection with the Agreement shall be the Fees paid by the Customer under the Agreement during the twelve (12) months prior to the event giving rise to a Party’s liability.
9.5 Third Party Content. Through the Service, Third Party Content may be offered to the Customer. This Third Party Content is not provided by Silverfin and Silverfin is not liable for this Third Party Content. All Third Party Content is made available to Customer and End Customer on an “as is” basis without additional warranties.
9.6 No advice and obligation to check. The Service, as well as the Content offered on the Service, is not intended to replace any individualized advice and the Customer should at all times check the output generated by the Service before submitting it to official bodies or using it for further calculations. Silverfin makes no guarantees as to the accuracy, correctness or legal relevance of the Service, nor the Content offered on the Service, which should not be construed as any financial or legal advice.
- the Receiving Party may only use the Confidential Information of the Providing Party for its own account and when this is reasonably necessary for the execution of the Agreement;
- each Party will keep the other Party’s Confidential Information confidential by means no less restrictive than those it uses for its own Confidential Information;
- the Receiving Party will not disclose or in any way make available Confidential Information of the Providing Party to third parties (i.e. persons other than its employees or subcontractors who are bound by a duty of confidentiality and who need the same Confidential Information to fulfill the obligations of the Receiving Party under the Agreement), without the express written approval of the Providing Party;
- the Receiving Party may not participate in or authorize others to engage in reverse engineering, disassembly or decompilation of any Confidential Information of the Providing Party;
- no Receiving Party may directly benefit from the Confidential Information of the Providing Party.
10.2 Exclusions. The above obligations do not apply to information which:
- is already in the possession of the Receiving Party and is not subject to a duty of confidentiality vis-à-vis the Party providing the information;
- is independently developed by the Receiving Party;
- has been made public, but not because of the fault of the Receiving Party;
- was lawfully learned by the Receiving Party directly from a third party who is not subject to an obligation of confidentiality;
- has been released with the written consent of the Providing Party; or, finally,
- disclosed pursuant to a legal obligation, regulation or court order, provided that the Receiving Party promptly notifies the Providing Party of such demand and cooperates to obtain a protective order or similar treatment by any means necessary.
10.3 Disclosure in proceeding. When the Receiving Party is requested or required to disclose the Confidential Information of the Providing Party in a proceeding, the Receiving Party shall, where permitted by law, immediately notify the Providing Party to enable it to contest such claim.
10.4 Consequences of Agreement termination.
10.4.2 Survival. The confidentiality obligation in this section remains in effect for one (1) year after the termination or expiry date of the Agreement.
12.1 Grounds for Termination.
12.1.1 Breach by Customer. Silverfin may immediately terminate the Agreement by written notice (or in its sole discretion, otherwise suspend access to the Service) due to a material breach by the Customer of the terms of the Service as set forth in Section 3.
12.1.2 Breach by either Party. Either Party may terminate the Agreement by notifying the other Party in writing if the other Party materially breaches the terms of the Agreement and fails to cure such breach within thirty (30) days of receipt of a notice of default.
12.1.3 Bankruptcy e.a. Either Party may terminate the Agreement by providing written notice to the other Party, effective as of the date such notice is issued, if the other Party becomes the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding or otherwise liquidates or terminates its business activities.
12.3 Survival. The provisions of the Agreement that are explicitly or implicitly intended to survive termination must survive the expiry or termination of the Agreement.
13. APPLICABLE LAW AND JURISDICTION
13.1 Applicable law. This Agreement will be reasonably interpreted in accordance with Belgian law (without giving effect to any laws of conflict).
13.2 Jurisdiction. The courts of Ghent (section Ghent) will have exclusive jurisdiction over any dispute or controversy arising from or relating to this Agreement or its subject matter.
14.2 Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision(s) shall be construed to reflect, as nearly as possible, the intent of the invalid or unenforceable provision(s), while all other provisions shall remain in full force and effect.
14.3 No agency. No joint venture, partnership, employment, or agency relationship exists between the Customer and Silverfin based on the Agreement or use of the Service.
14.4 No waiver. A Party’s failure to enforce any right or provision in the Agreement shall not constitute a waiver of that right or provision unless acknowledged by that Party in a written agreement.
14.5 Force majeure. Except with respect to payment by Customer, in the event that performance of the Contract by either Party is prevented, hindered, delayed or otherwise impracticable due to flood, riot, fire, judicial or governmental action, labour disputes, natural disasters, epidemics/pandemics (and judicial or governmental action related thereto) or other causes beyond the control of the Party, such Party shall be excused to the extent that performance is prevented, hindered or delayed by such causes.
14.7 Notice. Any notice given under the Agreement must be in writing and delivered by email to the following addresses (or alternative addresses as provided in writing by each Party): firstname.lastname@example.org (to Silverfin) and the primary billing address (to Customer). All notices shall be deemed to have been received the second business day following the email transmission.
14.8 Entire Agreement. The Agreement, together with any applicable attachment(s), constitutes the entire agreement between the Customer and Silverfin and supersedes all prior or contemporaneous, written or oral, negotiations, discussions or agreements between the Parties with respect to the subject matter of the Agreement. An amendment or modification to the Agreement is only binding if it is in writing and signed by the authorized representatives of the Parties.