Terms of service

Article 1. Definitions

For the purpose of the Agreement, including the Schedules (except if defined differently therein):

• “Add-on” means any optional feature of the Platform not included in the Standard Services, which can be requested by the Customer at any time during the Initial term or any subsequent Renewal term.
  Add-ons are part of the Additional recurring services.
• “Add-on fees” means the fees of any Add-on.
• “Additional services” means services, including any Add-on, that are not included in the Standard Services nor in the Implementation services.
• “Additional fees” means the fees for Additional Services.
• “Agreement” means this service agreement between the Parties that is composed of all documents referred to in the Order form under “Terms and conditions”.
• “Anniversary date” means each anniversary date of the Agreement calculated as from the Start date.
• “Authorised User” refers to the Customer’s employee(s) and/or consultant(s) who are authorised to access and use the Platform, for the internal business purposes of the Customer and in relation to the brand and territory as agreed.
• “Data protection laws” means all applicable laws and regulations relating to the processing of Personal Data including but not limited to, the Electronic Communications Data Protection Directive (2002/58/EC) and the EU’s General Data Protection Regulation (GDPR) (2016/679/EC),  as well as all local laws and regulations implementing these and any amendment or re-enactment thereof.
  The terms “Controller”, “Personal data”, “Process”, “Processor” and “Supervisory authority” shall have the meanings given to them in the GDPR.
• “Days” means calendar days, unless otherwise specified in the Agreement.
• “End date” or “Agreement end date” or “End date of the Agreement''” means the termination of the Agreement following the non-renewal of the last Renewal term or the termination of the Agreement following the conditions provided for in Article 23. Early termination. End date triggers the end of use of the Platform. 
• "Force majeure event" means an event that is not foreseeable by the affected Party at the time of execution of the Agreement, is unavoidable and outside the reasonable control of the affected Party, provided that it cannot overcome such an event despite all reasonable efforts and prevents the affected Party from performing its obligations.
  Force majeure includes, but is not limited to, any act of war (whether declared or not), riot, insurrection, revolution, civil war, terrorist attack, strike (not by a Party’s employees), epidemics and pandemics, flood, fire, earthquake, storm, or other act of God, government act of restriction.
• “Implementation fees” means the fees paid or payable by the Customer in consideration for the implementation and customisation (if any) of the Platform, as agreed by the Parties.
• “Information security policy” means the security documentation applicable to the Platform and Services purchased by Customer, as updated from time to time, as made reasonably available to Customer by Optimy. 
• “Initial term”: the initial fixed duration of the contract prior to any Renewal.
• “Intellectual property” means intangible creations of the mind which are protected by intellectual property laws such as literary and artistic works, inventions, designs and symbols, names and images used in commerce.
• “Laws” refers to any statute, regulation, rule, ordinance or ruling by a foreign, federal, state or local government including, but not limited to data transfer, Intellectual property rights and privacy laws.
• “Licence fees” means the annual, recurring fees, paid or payable by the Customer in consideration for the right to access and use the Platform, as agreed by the Parties.
• “Notice of rejection” means any formal notification sent to Optimy by which the Customer objects to the amended Terms of service. Such Notice of rejection shall be received no later than 15 (fifteen) days after the notification by Optimy of such amendments.
• “Notice of termination” means any formal notification by one Party to the other of the Party’s will to terminate the Agreement.
• “Order Form” means a signed Order Form or Service Agreement, stating explicitly a start date, a commitment on annual terms, and referring explicitly to the current Terms of service.
• “Platform” shall have the meanings as defined in the introductory considerations of the Terms of service.
• “Purchase order” refers to any type of internal commercial document issued by the Customer to Optimy indicating the types, quantities and agreed prices for the Services to be performed by Optimy in conformity with the Agreement and which might be required for invoicing purposes.
• “Recurring additional services” means any Additional services that occur for more than one year, and that are expressly defined as recurring in the pricelist of Optimy.
• “Recurring additional fees” means the fees for any of the Recurring additional services.
• “Renewal date” means the day after the last day of the Initial term or of a Renewal term, and the first day the Agreement is renewed for a Renewal term. 
• “Renewal terms” means the consecutive renewal terms of the Agreement, the first of which commences immediately after the end of the Initial Term and each term having a duration of three years.
• “Services” means the Standard Services and the Add-on.
• “Standard services” means the provision of the services described in Article 4 of the Terms of service.
• “Start date” or “Start date of service” means the date the Agreement enters into force, i.e. the first day of the Initial term, duly specified in the Order Form as the “Order Start Date”.
• “Term” indicates the Initial term or any Renewal term.
• “Territory” means the country or countries from which the Platform is used by the Customer and the Services are performed, as indicated in the Order Form.

Article 2. Introduction

2.1. These Terms of service set the rules and guidelines that the Customers must follow in order to access and use the Platform and the Services. 

2.2. The Customer’s access to and use of the Platform is conditioned on its acceptance of and compliance with these Terms of service. These Terms of service apply to all Customers, Authorised users and others who access or use the Platform.

2.3. By accessing or using the Platform, you agree to be bound by these Terms of service. If you disagree with any part of these Terms of service then you may not access the Platform.

2.4. These Terms of service were last updated on the 21st of August, 2024.

Article 3. Update to the Terms of service

3.1. Optimy reserves the right to modify the present Terms of service at any time. In such a case, Optimy shall give a prior notice of update to the Customer (the “Notice of update”) by using the contact details of the person referred to as “the Primary contact” in the Order Form. Would the Customer wish to receive such a Notice of update on a different email address, the Customer shall duly inform Optimy of such a change at legal@optimy.com. In the event where the Customer does not receive a Notice of update sent by Optimy as a result of negligence towards this obligation, the Notice of update shall not be considered invalid.

3.2. In case the Customer wishes to oppose the modifications mentioned in the Notice of update, the Customer shall advise Optimy of its intention within 15 (fifteen) calendar Days from the reception of the Notice of update, by email to legal@optimy.com or in writing by registered letter (“Notice of rejection”). The Customer shall evidence how the modifications carried out by Optimy materially affect the rights of the Customer in a detrimental way, within 15 (fifteen) calendar Days from the date of the Notice of rejection. In such a case, the then-current Terms of service shall remain applicable until the next renewal of the Agreement, unless otherwise agreed by the Parties. If no such evidence is provided within such a period of time, the update of the Terms of service will apply as from the 15th Day after the Notice of Update.

3.3. In case the Customer does not send a Notice of rejection within the time frame and conditions mentioned in paragraph 3.2, the Customer shall be deemed to have accepted the new version of the Terms of service. From 15 (fifteen) Days after the Notice of update, the new version of the Terms of service shall be enforceable as part of the current Agreement.

3.4. If provisions of the Order Form contradict provisions of the Terms of service in whole or in part, the provision of the Order Form shall take precedence.

3.5. Specific contractual terms listed in the Order form cannot be modified by a modification of the generic Terms of service and can only be modified by a written agreement between the Parties.

Article 4. Description of the Platform and the Standard services

4.1. The Platform is made of a fully set up licensed package of software services and add-ons, designed to enable the Customer to manage its social impact. The Platform functionalities include, but are not limited to, such options as measuring its corporate social responsibility, expanding its philanthropic reach and connecting with its community.

4.2. As part of the Standard Services, Optimy hosts the Platform, the software and the Customer’s data and provides the Platform as a web-based, cloud-hosted platform. The Customer shall have access to the Platform at any time with the exception of Scheduled maintenance periods, under the conditions defined in the Service Level Agreement to which reference is made in the Order Form.

4.3. Optimy only ensures the compatibility of the Platform with recent versions of the common web browsers, the list of which is currently Chrome, Edge, Opera, Firefox, Safari and may evolve over time.

4.4. The Standard Services includes maintenance services, software updates and upgrades. 

4.5. Add-ons can be requested by the Customer at any time against payment of Additional fees. Optimy reserves the right to modify the list of available Add-ons and the associated pricing.

4.6. The Platform’s API may be made available by Optimy for external connections on Client request, but it is understood between the Parties that it is not part of the Standard services and may be subject to additional payable fees.

Article 5. Renewal of the Agreement

5.1. Without prejudice to articles 21 to 23 of the Terms of service, after the Initial term the Agreement is renewed automatically every 3 (three) years for further successive periods of 3 (three) years (“Renewal terms”), unless one of the Parties gives a written Notice of termination to the other Party by registered letter or by official email at least 3 (three) months before the next Renewal date.

5.2. In the event where the Customer wishes to share an official email as a Notice of termination to Optimy, this official email must be addressed to the electronic address legal@optimy.com to be considered valid.

Article 6. Access to and use of the Platform

6.1. Optimy grants the Customer a personal, non-exclusive, non-assignable and non-transferable right to access to and use the Platform for the Brand and the Territory in conformity with the terms of the Agreement.

6.2. Access and use of the Platform are strictly personal and may only be used by the Authorised users exclusively for the purposes of the Customer, in relation to the brand and territory as agreed between the Parties.

6.3. The Customer may not, without the prior written approval of Optimy

(i) allow affiliated companies, subcontractors or third-parties to use the Platform,

(ii) use the Platform on behalf of, or for the benefit of third-parties,

(iii) include all or parts of the Platform in the software or services offered by the Customer to its own clients,

(iv) and otherwise transfer or sub-license any of its rights under the Agreement.

6.4. If the Customer intends to use the Platform for other brands, other purposes or activities, territories or under other conditions, the terms and conditions thereof must be agreed upon in writing between the Parties beforehand.

6.5. The access to the Platform is granted to the Customer for the duration of the Agreement and is non-exclusive. The Customer must use the Platform reasonably, in accordance with the instructions provided by Optimy directly or available in the Optimy Help Center.

6.6. The Customer cannot access the source codes of the Platform and cannot modify the Platform.

6.7. The Customer shall not use the Platform in a manner that violates any applicable Law. Furthermore, the Customer shall not allow or assist any Authorised user or third-party to:

(i) use the Platform for other purposes than the one(s) defined in the foreword of the Order Form;

(ii) unless in accordance with the terms herein, grant third-parties permission to use the Platform or resell, transfer, pledge, lease, rent, or share Customer’s rights under the Agreement;

(iii) modify, remove or amend Optimy’s name or logo, update, reproduce, duplicate, copy all or any part of the Platform or the Services;

(iv) make the Platform, the Services or the content generated by the Platform and the Services available to anyone other than Customer’s employees and consultants for use for its benefit as intended pursuant to the Agreement, or use the Platform and the Services for the benefit of any entity other than Customer; 

(v) access or attempt to access any of Optimy’s systems, programs or data that are not made available for public use, or attempt to bypass any of the security and traffic management devices;

(vi) use the Platform or the Services for benchmarking or for developing a product which is competitive with any Optimy product offering;

(vii) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, object code or underlying ideas, structure, know-how, algorithms, file formats or programming or interoperability interfaces relevant to the Platform or the Services or any software, documentation or data related to the Platform of the Service by any means whatsoever. 

Article 7. User accounts

7.1. When the Customer creates an account for its Authorised users on the Platform, the Customer must provide information that is accurate, complete, and current at all times. Failure to do so constitutes a breach of the Agreement.

7.2. The Customer and its Authorised users are responsible for safeguarding the passwords that are used to access the Platform and for any activities or actions on the Platform when accessed through these passwords. The Customer and its Authorised users agree not to disclose their password to any third party. The Customer must notify Optimy immediately upon becoming aware of any breach of security or unauthorised use of the Customer’s account.

7.3. The Customer and its Authorised users may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than the Customer or the Authorised users without appropriate authorization, or a name that is otherwise offensive, vulgar or obscene.

Article 8. Additional developments

8.1. Subject to an agreement between the Parties on the scope, on the price and on the development term, Optimy may, at the Customer’s request, accelerate the development of certain additional functionalities or develop new functionalities for the Customer’s sole usage.

8.2. All rights on these additional functionalities, including Intellectual property rights, shall remain the sole property of Optimy. The decisions on commercialisation, development, deployment, modification, removal and use of such developments will be determined at Optimy’s sole discretion. 

Article 9. Backups

9.1. The Customer acknowledges that Optimy performs regular backups. Ultimately, any backup is definitely deleted at the latest 1 (one) year after the end of the day it has been performed.

9.2. Although regular backups of the Platform are performed, Optimy can not guarantee that there will be no loss or corruption of data. Corrupt or invalid backup points may be caused by, without limitation, content that is corrupted prior to being backed up or that changes during the time a backup is performed.

9.3. Optimy will provide support and attempt to troubleshoot any known or discovered issues that may affect the backups of content as described in the Service level Agreement. The Customer acknowledges that Optimy has no liability related to the integrity of content or the failure to successfully restore content to a usable state.

9.4. The Customer agrees to maintain a complete and accurate copy of any content in a location independent of the Platform.

Article 10. Security testing

10.1. The Customer can realise an Automated scanning in order to ensure the Platform’s security on a replica of the Platform and in accordance with the Automated scanning service offered by Optimy, which are subject to additional payable fees.

10.2. Should the Customer wish to perform an Automated scanning, the Customer will secure the paid option of Automated scanning with Optimy, following Optimy’s best practices.

10.3. The Customer shall not launch any attack or penetration test against the production servers hosting the customers. Similarly, Optimy does not allow the performance of any pentest on the Platform.

Article 11. Fees

11.1. In consideration of the use of the Platform and of the provision of services by Optimy, the Customer shall pay the following fees: 

(i) one-off fees for the setup of the Platform, the “Implementation fees”, and 

(ii) “Recurring annual fees”, including (a) the “Licence fees”, for the use of the Platform and the provision by Optimy of the Standard services, which does not cover the activation or provision by Optimy of any of the Additional services; (b) the “Recurring additional fees” for the use of any of the Recurring additional services, including but not limited to the possible Add-ons, that have been requested to be activated by the customer over the ongoing term;

(iii) Fees for any other of the Additional services which are not Recurring additional services.

11.2. The fees for the services that the Client has opted for initially are determined in the Order Form signed between the Parties.

11.3. The Recurring additional fees shall be invoiced as from activation of the relevant Recurring additional services, at the then-applicable price, pro-rata temporis for the remaining time until the next Anniversary date. 

11.4. After the first invoicing upon activation, Recurring additional fees shall be included in all the next annual recurring invoices until the end of the Term, regardless of any possible deactivation of the Recurring additional services before the end of the ongoing Term.

11.5. The Implementation fees and the Recurring annual fees for the first year of the Agreement are invoiced on the Start date. By the end of the first year of the Agreement, further Recurring annual fees are invoiced 30 (thirty) days prior to each Anniversary date in order to cover the use of the Platform, the Standard services and possible Recurring additional services for the following year.  

11.6. The Recurring annual fees will be adapted in conformity with the indexation clause in article 12 of the Terms of service. 

11.7. The fees for Additional services, other than Recurring additional services, will be invoiced at the date on which Optimy starts to provide these Additional services, as commonly agreed between the Parties.

Article 12. Invoicing and pricing

12.1. All banking charges and fees shall be at the Customer’s sole expense.

12.2. Any Add-on shall be invoiced upon activation, at the then-applicable price, pro-rata temporis for the remaining duration of the ongoing term and shall then be included in the next recurring invoice.

12.3. Optimy reserves the right to adjust the Fees, without prejudice to any other adjustment mechanisms, annually on the Anniversary date of the signature of the Agreement and for the first time one year after the Agreement comes into force, according to the following formula:

Where:

P = the adjusted fees.

P0 = the original fees on the date of the entry into force of the Agreement.

S0 = Reference hourly wage plus social contributions of the Agoria sectors (national average) as recognized by the Belgian Federal Public Service Economy, SMEs, Self-Employed and Energy and published by AGORIA on the date of entry into force of the Agreement.

S = Same reference at date of fee adjustment.

12.4. Regardless of the annual increase based on inflation, Optimy may modify its prices at any time. However, these modifications shall not alter the price applicable to the ongoing term and shall only apply from the next Renewal term.

Article 13. Taxes

13.1. All Fees exclude VAT and other applicable charges, taxes or levies, which must be borne by the Customer.

13.2. In case Optimy is not able to recover all or part of any withholding tax levied by the Customer in application of a mandatory applicable law, the Customer shall make an additional payment to Optimy for the entire amount of tax withheld, so that Optimy receives a net payment equal to the amount which would have been received in the absence of a withholding tax.

Article 14. Payment terms and late payment

14.1. All payments by the Customer under the Agreement are due within 30 (thirty) days from the date of the invoice, by electronic bank transfer only.

14.2. Each Day of late payment can be charged with late interest in application of the Belgian Act of August 2nd, 2002 on late payments in commercial transactions, calculated as follows:

Where,

• ECB% is the official rate of the European Central Bank (ECB) if positive, or 0.00% if the rate of the ECB is negative;
• D is the number of late payment days;
• A is the Amount of the overdue invoice, inclusive of all taxes.

Late payment shall therefore bear annual interest set by the European Central Bank (ECB) plus 8% (eight percent) on top of that interest rate.

14.3. In addition, Optimy is entitled to the amount of 150 (one hundred and fifty) euros as a lump sum compensation for recovery costs, and to reasonable compensation for any other recovery cost caused by the delay in payment, by virtue of the Belgian Act of August 2nd, 2002 on late payments in commercial transactions.

Article 15. Confidentiality, data rights and security

15.1. The Parties agree to keep confidential any non-public information received from each other (“Confidential information”) and not to use it for any other purpose than the ones specified herein. No Confidential information may be passed on to a third-party, except if it is necessary for the performance of the Agreement.

15.2. The Parties agree to keep the Confidential information confidential and to implement appropriate safeguards to preserve the confidentiality for a period of 3 (three) years after the termination of the Agreement. 

15.3. Optimy may access and use the data of the Customer and the data relating to the use of the Platform for statistical purposes and for improving the Platform and its services, without however disclosing the Customer's Confidential information and without prejudice to the obligations regarding personal data. Optimy may disclose anonymous statistics to third-parties.

15.4. The Customer is responsible for the confidentiality and security of its account(s), and shall ensure that its Authorised users access the Platform through properly secured computers. 

15.5. The data submitted by the Customer and those related to the Authorised users remain the property of the Customer.

15.5.1. The Customer should export and keep adequate copies or back-ups of its data in addition to the backups made by Optimy.

15.5.2. Optimy may, on the Customer’s request only and for the provision of Services, modify the Customer data on the Platform. In no event shall a modification made by Optimy alter the Customer’s sole ownership of its data.

15.6. The Customer can export its data at any time in a CSV format before the termination of the Agreement by using the export functionalities in the Platform. The Customer may ask for support from Optimy to customise the export of data, which shall be charged on estimate proportionally to the amount of data and to the amount of work required.

15.7. Without prejudice to the content of Article 9 about backups being kept for a maximum of 1 (one) year, Optimy shall delete the Customer’s data hosted on the Platform after 1 (one) month after the end date of the Agreement.

Article 16. Data Protection

16.1. Optimy may process Personal data in the course of performing the Agreement. Where Optimy processes Personal data on behalf of the Customer and not for its own purposes, Optimy acts as processor (article 16.2.). Where Optimy processes Personal data for its own purposes, Optimy acts as controller (article 16.3).

16.2.   Optimy shall fulfil its obligations as a Processor of Personal data in accordance with Article 28 of the GDPR. The obligations incumbent upon the Parties are set out in the Data Processing Agreement to which reference is made in the Order Form.

16.3. Optimy acts as a Data Controller when it processes Personal data of the Customer’s employees and representative for invoicing and administrative purposes, and of the Customer’s Authorised users,  known as Data subjects, for creating their account and for offering the services related to the Platform, including the analysis of their general use of the Platform to improve the Platform, for the undertaking or arrangement of marketing activities and the conducting or arrangement of market research, or the fulfilment of statutory obligations as specified in the privacy policy of Optimy. The Customer acknowledges that Optimy’s privacy policy is available on Optimy’s website.

The categories of personal data processed by Optimy as controller shall be:

• Name, title, function of the contact person
• Professional contact data (name of the company, address, email address, phone number…)
• Invoicing data
• Use of the Platform and related Services
• Other information related to the Agreement: contractual relationships, connection information, preferences regarding the product and interest in the product or in the services.

The processing is justified by the legitimate interests of Optimy, i.e. to perform the Agreement with the Customer and ensure the best service possible to the Customer, while having a limited impact on the interests and rights of Data subjects.

Furthermore, Optimy strives to continuously improve its services and to that end may get in touch with data subjects, provided that they have given prior explicit consent, to get their impression about the Optimy Platform and future developments.

The Customer acknowledges and accepts that Optimy may transfer Professional contact data to subcontractors or other service providers to deliver the Platform. Some of these recipients may be located outside of the European Economic Area but ensure an adequate level of protection of Personal data, as required by the GDPR, in particular by the conclusion of the European Commission’s Standard Contractual Clauses between Optimy and those third-parties.

Optimy does not process Personal data for a longer duration than necessary with regard to its legitimate interest and in any case no longer than 5 (five) years after the termination of the Services.

Data subjects have the right to request from Optimy, provided that the legal conditions have been met:

1. access to their Personal data being processed,
2. rectification or erasure of their Personal data,
3. restriction of processing, as well as the right to object to the processing of their Personal data.

Data subjects have also the right to submit a complaint to the competent data protection authority.

The Customer commits to inform its Authorised users about Optimy’s processing activities above and to advise them of their rights as Data subjects. 

Article 17. Intellectual property

17.1. The Platform as well as Optimy’s websites, database structure, trademarks, trade, product names and brands, including any customisation, modification or enhancement thereof, are protected by Intellectual property rights. 

17.2. Apart from the limited licence granted hereunder to use the Platform in accordance with the provisions of the Agreement, and unless otherwise agreed by the Parties in writing, all rights on codes, text, layout, drawings, photographs, films, graphics and other elements are retained by Optimy. Any copy, adaptation, translation, arrangement, communication to the public, rental or other use, modification of all or part of Optimy owned materials in any form and by whatever means, whether electronic, mechanical, or otherwise, is strictly prohibited.

17.3. The Customer shall immediately inform Optimy of any actual or suspected claim of the Platform and the Services infringing any copyright on computer programs or database rights of a third-party. The Customer shall give Optimy full control of the defence and Optimy shall defend and indemnify Customer against such a claim. In case the Platform or the Services are found to infringe any copyright on computer programs or database rights of a third-party, Optimy shall either secure the right for the Customer to continue using the Platform or modify the Platform and the Services in order to cease the infringement. If none of these solutions is possible in acceptable commercial conditions to Optimy, Optimy shall have the right to terminate the Agreement and shall reimburse the Customer for any Fees paid for the on-going yearly term, as sole compensation and remedy for the damage suffered.

17.4. The Customer shall

(i) defend Optimy from and against any claim by a third-party alleging that the Customer data, or Customer’s use of the Platform and Services in breach of the Agreement infringes such third-party’s Intellectual property rights or violates applicable Laws, 

(ii) in relation to such claim, indemnify and hold harmless Optimy from any and all damages and costs finally awarded or agreed to in settlement by the Customer, including but not limited to reasonable attorneys’ fees.

Article 18. Referencing Customer 

The Customer grants Optimy a right to use its logo and trademark for Optimy’s track record, reference purposes and on Optimy’s website.

Article 19. Warranties

19.1. Optimy shall perform its obligations with professional skill and care. Optimy shall not be held to any obligation to achieve a specific result. Optimy shall make reasonable efforts to ensure that the Platform is available, is not affected by errors and is secured against unauthorised access. However, Optimy gives no warranty on any of these elements. Moreover, Optimy might not be held liable for defects of designs or materials if the specifications were previously approved by Customer. The Platform is provided ‘as is’ and Optimy disclaims all warranties, expressed or implied, other than those mentioned in the present Terms of service. The use of the Platform by the Customer is under its sole responsibility and at its own risks.

19.2. The Customer is responsible for the determination of its needs and requirements by the time they enter into the Agreement. Optimy makes no representation regarding the fitness of the Platform for the intended needs or purposes of the Customer or regarding the achievement by the Customer of its business, financial or operational objectives.

Article 20. Liability

20.1. Optimy is only liable for the direct damages suffered by the Customer as a result of a breach of Optimy’s obligations. Any claim of such direct damages shall be duly evidenced by the Customer. 

20.2. Except in case of fraud, willful misconduct, gross negligence, or any situation for which liability cannot as a matter of law be limited or excluded, the aggregate liability of Optimy for any cause – contractual and extracontractual – including any obligation to indemnify the Customer, is limited to the amount of the annual Licence fees paid or payable by the Customer – excluding taxes – for the yearly term during which the event giving rise to liability occurs.

20.3. The Parties and their affiliates, directors, employees, owners, agents or representatives are never liable for any incidental, indirect or consequential damages, including any loss or alteration of data, any loss of profit, turnover, time, opportunity, any damage to goodwill or reputation, even if those Parties were informed of the possibility of such damages. In case of loss or alteration of data, the Customer shall only be entitled to a restoring of the data as backed-up by Optimy, without any guarantee of any result. This shall be its sole remedy.

20.4. Each Party shall defend, indemnify and hold harmless the other and their affiliates, officers, directors, employees, shareholders and partners, against all claims, losses, liabilities, fines, penalties, damages, costs and expenses including but not limited to reasonable attorneys’ fees which either Party shall sustain as a result of the other’s negligent acts, errors or omissions in carrying out the obligations of the Agreement. This article shall survive the expiration or early termination of the Agreement.

20.5. At all times during which Optimy’s indemnification obligations under the Agreement are in effect, Optimy will, at its sole expense, carry and maintain :

(i) a Commercial General Liability Insurance policy, including without limitation coverage for Products Liability and Employers’ Liability, covering for a minimum cumulative amount of $2,000,000 (two million US dollars) ;

(ii) and a dedicated Cyber Liability Insurance, covering for a minimum cumulative amount of $1,000,000 (one million US dollars).

20.6. The above-mentioned insurance policies shall be written by a financially sound insurance company with financial ratings accepted as financially strong by insurance rating organisations; Optimy may provide Customer with its Certificate of Liability Insurance for the Required Insurance upon execution of the Agreement and within thirty (30) days after any subsequent written request by Customer for an updated Certificate. 

Article 21. Suspension of the services

21.1. Optimy reserves the right to suspend the Customer’s access to the Platform and to suspend the provision of the Services if any of the following events occurs:

(i) breach by the Customer of its obligations, including late payment of any sum due to Optimy that is not remedied within 15 (fifteen) calendar days of receipt of a payment reminder from Optimy;

(ii) an abnormal activity on the account of the Customer; suspected or actual security breach affecting the account of the Customer;

(iii) when Optimy is required to perform emergency maintenance;

(iv) in case of court order, instigated by a government agency or other competent authority.

21.2. In case the event giving rise to suspension is caused by the Customer, the performance of the Services shall resume after the Customer has fully remedied the cause of suspension and Optimy is allowed to charge reasonable reconnection fees.

Article 22. Force Majeure

22.1. If a Party (the "Affected Party") is prevented, hindered or delayed from or in performing any of its obligations under the Agreement due to a Force majeure event, it shall notify the other Party in writing within a maximum of five (5) Days from the date that the Force majeure event started to occur, providing all available documentation and taking all possible measures to resolve the situation within the shortest possible period.

22.2. The Affected Party's obligations are suspended while the Force majeure event continues. If the duration of a Force majeure event exceeds or is expected to exceed 60 (sixty) Days, either Party can terminate the Agreement by giving a written notice to the other Party, without compensation being due from either Party. 

Article 23. Early termination

23.1. Either Party may terminate the Agreement by registered letter with immediate effect only if the other Party: 

(i) commits a material breach of one or more of its obligations and such breach is either incapable of remedy or is not cured within 20 (twenty) Days from the Notice of default,

(ii) ceases to be licensed to do its activities - if such a licence is required - or ceases to exist,

(iii) institutes proceedings under bankruptcy or insolvency laws or makes an assignment for the benefit of its creditors or becomes otherwise insolvent.

23.2. In case of termination of the Agreement for any reason, the Customer shall cease to use the Platform and return to Optimy any proprietary materials of Optimy in its possession. Any use of the Platform in the absence of a valid Agreement in force shall constitute a breach of Optimy’s Intellectual property rights in addition to a contractual breach.

23.3. If the Customer wishes to terminate the Agreement for convenience (“Termination for convenience”), all outstanding fees for the unexpired portions of the then-current Initial term or Renewal term shall become immediately due and payable, irrespective of the payment terms set out in the Agreement. If the Customer has pre-paid fees for a portion of the term, such pre-paid fees shall not be repayable by Optimy.

Article 24. Assistance and verification

24.1. In the event that the Customer requires assistance for the use of the Platform, accredited Optimy personnel and subcontractors may be required to access the Customer's data within the Platform. 

24.2. Optimy reserves the right to verify the Customer’s use of the Platform in order to ensure its compliance with the Agreement. For this purpose, Optimy may access the account(s) of the Customer and audit the Customer data. Optimy will inform in writing the Customer of the planned audit at least 2 business days beforehand.

24.3. All the information obtained during the verification or the assistance shall be kept confidential and shall not serve any other purpose than the application and enforcement of the Agreement. Upon request from Optimy, the Customer shall immediately remedy any non-compliance detected by Optimy.

Article 25. Notices

25.1. Any notice, demand or other communication required to be given or made under the Agreement shall be in writing and be deemed duly given or made if delivered or sent

(i) by registered letter to Optimy’s headquarters,

(ii) or by electronic mail with return receipt requested to the Customer’s Customer Success Executive and to the following email address: legal@optimy.com. 

25.2. A Party may change its address for the purpose of the Agreement by giving notice of such change to the other Party pursuant to the provisions of this paragraph. Any notice, demand or other communication sent by mail shall be deemed to have been received by the Party to whom it was sent at the end of the Day shown as the Day of receipt on the return receipt sent with the same. Any notice, demand or other communication sent by hand delivery shall be deemed, in the absence of proof to the contrary, to have been received when delivered.

Article 26. Miscellaneous 

26.1. Transfer of rights. Each Party may transfer its rights and obligations under the Agreement to another company of its group, following a change of control or the sale of all or substantial part of its assets, after giving a 1 (one) month written notice prior to the transfer to the other Party. Any successor agrees to fulfil its obligations pursuant to the Agreement.

26.2. No Waiver. A Party’s failure to exercise, or delay in exercising any right, power or privilege shall not operate as a waiver, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof.

26.3. Severability. In the event that any of the provisions contained in the Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions in the Agreement and should be replaced with an efficient provision, approaching the original provisions in its economic implications..

26.4. Governing Law.

1. For all Customers, except Customers located in North America, the Agreement between the Parties is exclusively governed by Belgian Law.

2. For all North American Customers, the Agreement between the Parties is exclusively governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, with the exclusion of the rules on conflicts of laws. 

26.5. Jurisdiction.

1. For any claim, controversy or dispute of any kind or nature whatsoever arising between the Parties ("Dispute") that cannot be settled through negotiation within a period of 15 (fifteen) working days, this Dispute shall be submitted to the exclusive jurisdiction of the Brussels courts, French section for any Customer except Customers located in North America.

2. For any claim, controversy or dispute of any kind or nature whatsoever arising between the Parties ("Dispute") that cannot be settled through negotiation within a period of 15 (fifteen) working days, this Dispute shall be submitted to the exclusive jurisdiction of the courts of the Province of Ontario for any Customer located in North America.