1. General - Scope
The following terms and conditions apply to all business relationships between the customer, following named also as "you", "Customer" or "User(s)"; and CoScale NV, a Belgian limited liability company having its registered offices at Bomastraat 14/A; 9000 Ghent, Belgium, enterprise number 0526.979.818 (RLP Gent), following named as "we", "us" or "CoScale".
Dissenting, conflicting or additional customer terms and conditions, even if acknowledged, are not part of the Agreement unless their validity is expressly agreed upon. In the event of a conflict or inconsistency between these Terms and Conditions and those of an individual quote or specific agreement, the terms of the latter shall prevail.
Your business relationships with CoScale will be governed by Belgian law.
2. Conclusion of the Agreement
By executing or accepting any quote with CoScale, clicking the “I accept” button in connection with CoScale’s online registration process, downloading the CoScale software and/or using the Services, you confirm that you are of legal age to form a binding contract and you agree to these Terms and Conditions either for yourself or on behalf of your employer or another entity. If you are accepting and/or executing on behalf of your employer or another entity, you represent and warrant that you have the full legal authority to bind your employer or such entity to these Terms and Conditions. If you do not have such legal authority, or you do not agree with the Terms and Conditions; you must not accept these Terms and Conditions and you may not use the Services.
In order to access any Services, you are required to provide current and accurate identification, contact, and other details as part of the registration process. You are responsible for maintaining the confidentiality and accuracy of your account information, and you are responsible for all activities that occur under your account. You may not authorize any third party to access or use the Services on your behalf. You agree to immediately notify CoScale of any unauthorized use of your account or any other breach of security. CoScale will not be liable for any loss or damage arising from your failure to provide us with accurate information or to keep your account secure.
CoScale reserves the right, at any time and from time to time, to amend or to modify these Terms and Conditions subject to reasonable prior notification by sending an e-mail to Customer’s registered e-mail address or posting an announcement on the Websites. By continuing to access or use the Services after any such amendments or modifications take effect, you agree to be bound by such amended or modified Terms and Conditions. If you do not agree to any change to these Terms and Conditions, then you must immediately stop using the Services.
Subject to these Terms and Conditions, CoScale hereby grants you a limited, worldwide, non-exclusive, non-sublicensable and non-transferable, personal license to use the software made accessible on or through the Services (such software, together with the CoScale agent: the “Software”), solely for the purposes of using the Services. Any use for purposes other than of using the Services is expressly prohibited, unless you have obtained our prior explicit permission. Your license to use the Software is automatically revoked if you violate these Terms and Conditions.
CoScale reserves all rights not expressly granted to you under these Terms and Conditions.
The Services may contain content specifically provided by us, our partners or our users and such content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any content accessed through the Services.
You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Software or the Services (including without limitation any application), (ii) modify, translate, or otherwise create derivative works of any part of the Software, or (iii) copy, sell, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder.
All content, data or information provided, submitted, or made available through the Services by the User (collectively "User Data"), is the sole property and responsibility of the person who originated such User Data. You represent that all User Data provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You acknowledge that all content, including User Data, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any content you access on or through the Services is or will continue to be accurate. You hereby represent and warrant that the User Data do not include any inappropriate content, malware or any other elements that could result in harm to the Services or to third parties.
By submitting any User Data to the Services, you hereby grant us a worldwide, non-exclusive, royalty-free, sub-licensable and transferable license to use, aggregate, reproduce, distribute, display, and perform such User Data in connection with the Services and our (and our successors' and assigns') businesses. The latter includes the right for CoScale to use data derived from your use of the Services, including but not limited to, information regarding the performance of your network, applications and/or systems, data about transactions in your network, and in general any data generated as a result of your use of the Services (hereinafter: “Derived Data”), however solely for purposes of operating, maintaining and improving the Services or, if compiled into non-identifiable aggregate data, for CoScale’s sales and marketing purposes.
4. Fees and Payment
You may register for a free trial of the Services by submitting your account details on the Websites. If you register for a demo account to trial CoScale, you may use the Services in accordance with the present Terms and Conditions during an initial testing period of thirty (30) days. Upon expiration of the free trial period, your access to the Services will automatically terminate, unless you agree to upgrade to a paid account.
When upgrading to such paid account, you agree to the pricing, payment and billing policies as set forth herein, or as otherwise stipulated on the Websites and/or in a separately executed or accepted fee quote. All fees are non-refundable and non-transferable except as expressly provided in these Terms and Conditions. All fees and applicable taxes, if any, are payable in US Dollar. You are solely responsible for the payment of, and shall pay when due, all applicable sales and use taxes and similar fees now in force, enacted or imposed in the future on the delivery of Services and/or any related transactions (except for direct taxes imposed on CoScale).
If you register for a recurring subscription-based account, your Services will automatically renew, unless we terminate it, or you notify us by telephone or email (firstname.lastname@example.org) of your decision to terminate your current Services. You must cancel your account before it renews in order to avoid billing of subscription fees for the renewal term to your credit card. All fees and charges are nonrefundable and there are no refunds or credits for partially used periods. If payment is made via bank wire you agree to remit the payment before the date specified on the fee quote.
5. Refund Policy
When you purchase Services directly from CoScale you will be entitled to a cancellation period of fifteen (15) days (a "Cooling-Off Period") unless you have made use of the Services in any way, in which case the Cooling-Off Period will be extinguished and your purchase cannot be cancelled or refunded.
Outside of the Cooling-Off Period, no refunds shall be made.
CoScale reserves the right to refuse a refund request if it reasonably believes (i) that you are trying to unfairly exploit this refund policy, for example, by making repetitive refund requests in respect of the same Service; (ii) if you are in breach of these Terms and Conditions or (iii) if CoScale reasonably suspects that you are using our Services fraudulently or that your User account is being used by a third party fraudulently.
You may not access, acquire, copy or monitor the Services or any portion thereof, or any other systems or networks connected thereto, or in any way reproduce or circumvent the structure or presentation of the Services to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Services.
You may not probe, scan or test the vulnerability of the Services or any network connected thereto, nor breach the security or authentication measures relating thereto. You may not reverse look-up, trace or seek to trace any information on any other user of or visitor of the Services, or any other customer of CoScale, including any account not owned by you, to its source, or exploit the Services or any service or information made available or offered by or through the Services, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than your own information, as provided for by the Services.
In addition Users shall meet the following guidelines:
8. Warranty disclaimer
The warranties described in the present Section are the only warranties provided by CoScale under this Agreement, and are in lieu of all other warranties, including but not limited to implied warranties of merchantability and fitness for a particular purpose.
The Services are provided on an "as is" basis, with all faults known or unknown, and CoScale does not warrant or represent that any particular component, information or service comprising the Services will be suitable for User's needs.
To the fullest extent permissible under applicable law, CoScale shall not have any liability with respect to any claims arising out of or related to this Agreement for consequential, exemplary, special, indirect and/or punitive damages (such as -- but not limited to -- loss of goodwill, loss of actual or anticipated business or contracts, work stoppage, loss as a result of a third party claim, data loss or corruption of data, computer failure or lost profit), whether based in contract, or otherwise, even if CoScale has been advised of the possibility of such damages.
To the fullest extent permissible under applicable law, CoScale shall not have any liability with respect to any claims arising out of or related to this Agreement for direct damages other than direct damages resulting from CoScale's fraud or willful misconduct or that of its employees, agents or subcontractors.
To the extent permissible under the applicable law, and without prejudice to the limitations as set forth in the present Section, the contractual and extra-contractual liability of CoScale arising out or related to this Agreement shall be limited to the amounts actually paid by User to CoScaleunder the Agreement during the twelve (12) months immediately preceding the date at which the cause of action has accrued. This limitation is cumulative and not per incident. It applies to all causes of action and obligations in the aggregate, including without limitations, any claim of breach of contract and/or negligence.
No action in any form arising out of or in connection with this Agreement may be brought by User more than one (1) year after the cause of action has accrued.
User shall defend, indemnify, and hold harmless us, our affiliates, parents, subsidiaries, any related companies, licensors and partners, and each of our and their respective employees, officers, directors, agents, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys' fees, that arise from or relate to your (or any third party using your account or identity in the Services) use or misuse of, or access to, the Services, violation of these Terms and Conditions or of any law, or infringement of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defenses.
13. Term and termination
Where not otherwise contractually agreed, the Agreement shall be in place for an indefinite period of time beginning on the date that the User signs up electronically for the Services by creating an account with an e-mail address.
You may terminate your relationship with CoScale at any time and without recourse to the courts by requesting closure of your User account, ceasing to use the Services and/or Websites and cancelling any recurring payments.
CoScale reserves the right to access, read, preserve, and disclose any information as it reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms and Conditions, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.
CoScale may terminate its relationship with you, or may terminate or suspend your use of the Services, User account and/or Websites at any time and without recourse to the courts:
CoScale shall effect such termination by preventing your access to your User account, the Services and/or Websites (as applicable).
Any such termination may result in the forfeiture and/or destruction of information associated with your account.
Unless explicitly stated otherwise in these Terms and Conditions, any fees paid hereunder are non-refundable and any fees owed to CoScale before such termination shall be immediately due and payable, including any liabilities that may have been incurred prior to termination such as CoScale's costs for collection (including attorneys' fees) of any such charges or other liabilities.
Upon termination, any and all rights granted to User by this Agreement will immediately be terminated, and User shall promptly discontinue all use of the Services. If you wish to terminate your account, you may do so by following the instructions on the Websites or through the Services.
All provisions of these Terms and Conditions which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
You agree to the use of electronic communication in order to enter into contracts, place orders, and create other records and to the electronic delivery of notices, policies and changes thereto and records of transactions with CoScale.
These Terms and Conditions constitute the entire agreement between you and CoScale with respect to your use of the Services and replace any prior agreements between you and CoScale with respect to same.
If any provision of the Agreement (or part of it), is found by any court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable, then such provision (or part of it) shall be removed from the Agreement without affecting the legality, validity or enforceability of the remainder of the Agreement.
The failure by CoScale to exercise, or delay in exercising, a legal right or remedy provided by these Terms and Conditions or by law shall not constitute a waiver of CoScale's right or remedy.
You may not assign this Agreement or any rights or obligations contained therein. CoScale may, without prior notice, assign this Agreement or any rights or obligations contained therein to any third party.
This Section, along with any other provisions, which are expressed or clearly intended to survive or operate in the event of termination, shall survive termination of the Agreement.
You acknowledge and agree that if CoScale is unable to provide the Services as a result of a force majeure event, CoScale will not be in breach of any of its obligations towards you under these Terms and Conditions. A force majeure event means any event beyond the control of CoScale.
The Agreement shall be governed by and interpreted in accordance with the laws of Belgium and shall be subject to the jurisdiction of the courts of the district of Ghent, Belgium.
9000 Gent, Belgium