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Terms of Service

1. DEFINITIONS

Capitalized terms used herein have the meaning ascribed below, or where such terms are first used, as applicable:

‘Agreement’ shall mean the Order Form incorporating these General Terms and Conditions and any applicable Specific Terms and Conditions.

‘Superlinear’ shall mean Superlinear.ai BVBA, a Belgian company with registration number 0660.746.974 and registered offices at Cantersteen 47 in 1000 Brussels, Belgium.

‘Customer‘ shall mean the customer identified in an Order Form.

‘Deliverable’ shall mean a deliverable defined and identified in an Order Form.

‘Force Majeure Event’ shall mean an event, or series of related events, that is outside the reasonable control of the Party affected (including, but not limited to, fire, war, terrorist attack, unfavourable weather conditions, force majeure on the part of the third party suppliers of Superlinear, failures in goods, equipment, software or materials of third parties the use of which the Customer prescribes to Superlinear , government measures, disruption of internet, data network or telecommunications facilities, unavailability of third party servers, strike, unavailability of Employees and/or their equipment, general transportation problems and electricity outages).

General Terms & Conditions shall mean the present document entitled “Superlinear General Terms & Conditions”

‘Order Form’ shall mean an ordering document specifying the Services to be provided hereunder that is entered into between Superlinear and Customer.

‘Party’ shall mean Superlinear or Customer.

‘Parties’ shall mean Superlinear rand Customer.

‘Services’ shall mean the services provided by Superlinear to Customer pursuant to an Order Form.

‘Specific Terms and Conditions’ shall mean the specific terms which may apply to various Services set out in the Order Form.

2. SCOPE AND DELIVERY

These General Terms and Conditions shall apply to all Agreements whereby Superlinear provides Customer with any Services whatsoever and however described. The Specific Terms and Conditions agreed between Superlinear and Customer shall also apply to the extent that this is agreed upon in the Order Form.

Superlinear shall provide Customer all Services and Deliverables in accordance with this Agreement.

Superlinear shall perform the Services and provide the Deliverables in a good, diligent, workmanlike manner in accordance with industry standards in effect upon the date of performance. Superlinear shall provide all services on the basis of a reasonable effort obligation, unless and in so far as Superlinear has explicitly undertaken in the written agreement to achieve a specific result and the result in question is sufficiently determined.

All delivery terms provided by Superlinear are provided to the best of its knowledge and are based on the data which was known or brought to the attention of Superlinear when entering into the Agreement. The mere fact that any term of delivery is exceeded shall not constitute a default of Superlinear and Superlinear shall not be bound by any terms (of delivery). If any term threatens to be exceeded, Superlinear and Customer shall consult together as soon as possible. Superlinear may charge Customer for all Services and Deliverables which were not in the initial scope at their Superlinear’ then current daily or hourly rates.

Unless otherwise set out in the Specific Terms and Conditions, Superlinear will, upon completion of each Deliverable (if applicable) under an Order Form, submit a copy to Customer. Customer is responsible for reviewing the Deliverable in accordance with the provisions of the Order Form. If nothing has been agreed in the relevant Order Form, Customer shall review the Deliverable within 10 calendar days. Customer shall notify Superlinear within 10 calendar days if any submitted Deliverable does not satisfy the agreed upon criteria. Superlinear will use reasonable commercial efforts to correct the deficiency as soon as reasonably practicable. If no notification is given within 10 calendar days, the Deliverables are deemed to be accepted.

Even if the Agreement for the provision of Services has been entered into with a view to implementation by one or more specific individuals, Superlinear shall at all times and at its sole discretion be entitled to replace this individual with one or more other individuals (employees or freelance).

In the event that Superlinear ’ Services consist out of workshops and/or talks the following shall apply:

unless otherwise set out in the Order Document, Customer shall provide a suitable location, facilities, accommodation and catering;
any materials, presentations and or documents used during the workshops and/or talks remain the sole property of Superlinear and may not be distributed to third parties without the express agreement of Superlinear ;
unless otherwise set out in the Order Form, Superlinear may reschedule the workshop and/or talk at any time without cost by giving at least two weeks’ notice to the Customer.
Customer shall be entitled to cancel or rescheduling of a workshop and/or talk giving at least two weeks’ notice. In such event Superlinear shall not charge any costs other than the costs related to the travel arrangements. In all other events Superlinear shall be entitled to charge for the cancelled or rescheduled workshop and/or talk and may invoice the Customer for the costs related to the workshops and/or talks, such as, but not limited to, travel costs.

3. FEES, PAYMENT AND PAYMENT TERMS

Payment.In consideration of the Services and/or Deliverables, Customer shall pay Superlinear the charges set forth in the relevant Order Form.

Payment terms.Customer shall pay Superlinear within thirty (30) days after receipt of invoice. Payments will be made without right of set-off or chargeback.

In the event of late payment by the Customer, where such payment is not subject to a good faith dispute, Superlinear shall, without prejudice to any other rights and remedies, be entitled to charge a late payment interest equal to the rate set out in the Belgian Late Payment Act (Wet van 2 augustus 2002 betreffende de bestrijding van de betalingsachterstand bij handelstransacties as amended from time to time). After expiry of the payment period, the Customer is automatically in default without any prior notice being required. The Customer is not entitled to settlement or suspension of a payment. In addition to the foregoing, Superlinear shall also be entitled to suspend the Services and/or, as the case may be, the provision of the Deliverables until Customer has paid any due and outstanding charges.

Taxes. All fees, charges and other sums payable to Superlinear under this Agreement do not include VAT or other taxes or levies.

Expenses. Hourly rates, daily rates, fixed prices and maximum prices exclude costs for travel time, travel costs, accommodation and similar costs. Customer shall reimburse Superlinear for such reasonable travel, accommodation and similar costs incurred in connection with the provision of the Services and/or Deliverables.

Additional terms and conditions in respect of the charges, invoicing and payment are set out in the applicable Order Form, or as the case may be, the Specific Terms and Conditions.

4. CO- OPERATION BY THE CUSTOMER

The Services provided by Superlinear to the Customer under an Order Form are dependent on the availability and cooperation of Customer. Customer understands and agrees to provide Superlinear any and all information which may be necessary or useful to perform the obligations under the Agreement.

Customer shall ensure that all information and data provided to Superlinear will be complete, accurate and up-to-date. Customer indemnifies Superlinear for all damages resulting from incorrect, late or incomplete provision of information.

Customer shall ensure that the personnel used for the co-operation with Superlinear has appropriate competence and training for the assigned tasks and the necessary power of attorney for Superlinear to receive the requested information and/or documentation.

If any services by a third-party vendor contracted by Customer are necessary for the execution of the Services and/or Deliverables, Customer shall manage and coordinate them at their own costs.

Failure to comply with the obligations set out in this clause 4 (Co-operation by the Customer) may have an impact on the costs and timing.

In case any Superlinear personnel or subcontractors perform activities at Customer’s location, Customer shall arrange, free of charge, for the facilities reasonably required by such personnel or subcontractors, such as, if required, a workroom with telecommunication facilities etc. Customer shall indemnify Superlinear against any claims from third parties, herein included personnel or subcontractors of Superlinear , who in connection with the execution of the agreement suffer any loss caused by any action or failure to act of Customer or by unsafe situations on Customer’s premises.

Where relevant, Customer shall provide Superlinear with remote access, via VPN or corresponding technology, to its infrastructure in a timely fashion.

Superlinear ’ personnel shall at all times remain under the exclusive authority of Superlinear .

5. USE OF CONSULTANTS

For the performance of its obligations under this Agreement Superlinear may rely on its employees and/or freelance staff (hereinafter ‘Consultant(s)’). Superlinear reserves the right to determine which Consultant shall be assigned to the performance of the Services, and to replace this Consultant as Superlinear ix sees fit throughout the duration of the Contract.

Where deemed necessary or desirable by both Parties, the Parties may also agree to charge another Consultant with the performance of obligations under this Agreement, either temporarily or permanently.

Customer’s request to replace the Consultant does not discharge Customer from its obligation to continue to pay for the Services performed by the Consultant and Superlinear has no obligation following such a request to replace the Consultant.

The Parties acknowledge and accept that they are familiar with the Act of 24 July 1987 governing temporary labour, the secondment and posting of employees for users, the changes implemented by the Programming Act of 27 December 2012 and the changes that may be made from time to time and published in the Belgian Official Journal (Belgisch Staatsblad). The Parties undertake the obligation to comply with the provisions of these acts of legislation.

Customer may not give any instructions to the employees of Superlinear (and/or employees of the subcontractors the services of which are called upon by Superlinear ) other than the instructions given in this Agreement in relation to the standards of conduct and safety, time management, the applicable policy standards and procedures of Customer identified in this Contract, and/or the work to be performed by these employees.

Customer is not authorised to make decisions in regard to:

The recruitment process;
the remuneration package (definition of salaries and benefits, expense reimbursement, etc.);
disciplinary matters;
training and the policy in regard to training (with the exception of those aspects necessary for the performance of the Services);
dismissal and related policy;
management of attendance and absence from work (vacation, sick leave and other forms of absence);
employment relationships and organisational aspects relating to employees of Superlinear (and/or employees of the subcontractors the services of which are called upon by Superlinear ).

Any instructions given by the Customer to employees of Superlinear (and/or employees of the subcontractors the services of which are called upon by Superlinear ) in regard to the work to be performed must remain strictly limited to the operational and technical aspects of the provision of the Services, and may not under any circumstances effectively entail the authority of an employer; these instructions must pertain purely and exclusively to the following:

scheduling of the Services to be provided;
timeframe within the Services must be completed, if applicable;
processes and procedures of Customer as agreed by the Parties and which must be observed in the performance of the Services (for example in relation to those of safety or access);
access to locations and facilities of Customer for the purposes of the performance of the Services;
use of the material, infrastructure, tools or facilities of the Customer for the purposes of the performance of the Services;

In cases of doubt, the Parties must consult on the applicability of an instruction of Customer.

6. INTELLECTUAL PROPERTY RIGHTS

Unless otherwise set out in the Order Form, Superlinear will own and retain all ownership rights, intellectual property rights and other proprietary rights relating to the Services and Deliverables. Upon full payment of any outstanding sums, Customer will receive a limited, non-exclusive and non-transferable right to use the result of the Services and Deliverables for its normal business purposes. This Agreement does not entail any assignment of any intellectual property to Customer. Customer does not grant Superlinear any right in or to the intellectual property of the Customer except where such licenses may be required for Superlinear to provide the Services and/or Deliverables.

Notwithstanding anything to the contrary in this Agreement, Superlinear will not be prohibited or enjoined at any time by the Customer from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services, including, without limitation, information publicly known; provided however that Superlinear does not make use of any Confidential Information of Customer.

7. PROCESSING OF PERSONAL DATA

Superlinear does not seek or require, and Customer shall use commercially reasonable efforts not to provide Superlinear with, access to (or the means to access) personal data (other than personal data relating to Customer personnel that is obtained by Superlinear in the ordinary course of maintaining its business relationship with Customer).

If Superlinear nonetheless would be processing Personal Data in order to perform its obligations under the Agreement, Customer shall act as data controller and Superlinear as data processor of such personal data as these terms are defined in Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. In such event the rights and obligations of the Parties will be set out in a separate data processing agreement.

In any event Customer ensures that the personal data that Customer supplies or discloses to Superlinear has been obtained fairly and lawfully and that Customer will obtain all necessary approvals from persons whose personal data is being processed and registrations with authorities (as applicable) to permit Customer to transfer the personal data to Superlinear .

8. CONFIDENTIALITY

Each Party undertakes to keep confidential all information (written or oral) which is marked as confidential and/or and/or which the receiving Party knows or reasonably should know the disclosing Party considers confidential or proprietary regarding the business operations, strategies, plans, way of working, customers, technical and commercial information and prices of the other Party which have been obtained or received prior to this Agreement or which the Party will obtain or receive during the term of this Agreement, safe for information which is:

already in its possession without restrictions as to use or disclosure other than a result of this clause 8 (Confidentiality);
or becomes a part of the public domain through no act or omission of the other Party;
is lawfully received from a third party without restrictions as to use or disclosure; or
required by a court of law or other competent authority (including but not limited to public authorities).

Each Party hereby undertakes:

to keep the confidential information secret and not disclose it, in whole or in part, to any person other than
1. with prior written consent of the disclosing Party or
2. its employees, directors, subcontractors and consultants who have a direct need to know such confidential information for the sole purpose of complying with its obligations under this Agreement. The receiving Party shall ensure that these parties are bound by similar confidentiality obligations;
to use the confidential information solely in relation to this Agreement; and
to use the same degree and care and means that it utilizes to protect its own information of a similar nature, but in any event not less than reasonable care and means, to ensure the confidentiality of such confidential information and avoid any third party to use or have access to the confidential information; and
upon the written request of the disclosing Party, to forthwith and promptly return or, at the direction of the disclosing Party, destroy, any and all confidential information. Notwithstanding the foregoing, either Party shall be entitled to retain a copy of the confidential information to comply with its legal or compliance obligations, or to retain one copy of the confidential information to the extent that this is necessary for that Party to manage or participate in a dispute with the other Party.

If the receiving Party is required to disclose confidential information by law or a competent court, the receiving Party shall, to the extent allowed, use reasonable efforts to give advance notice of such compelled disclosure to the disclosing Party, cooperate with the disclosing Party in connection with any efforts to prevent or limit the scope of such disclosure and/or use of such confidential information, take reasonable precaution to disclose the minimum amount necessary and seek to protect the confidentiality of such disclosed information.

Notwithstanding anything else in this Agreement, Superlinear shall have the right to collect and analyse data and other information relating to the use and performance of various aspects of the Services. Superlinear will be free to (i) use such information and data during and after the term hereof to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Superlinear offerings, and (ii) disclose such data in aggregate provided that such data or information does not directly or indirectly identify Customer’s confidential information.

All media releases, public announcements and public disclosures by either Party relating to this Agreement or the subject matter of this Agreement, including promotional or marketing material, but not including announcements intended solely for internal distribution or disclosures to the extent required to meet legal or regulatory requirements beyond the reasonable control of the disclosing Party, shall be coordinated and approved in writing by the other Party prior to release. Neither Party shall, without the other Party’s prior written consent, which may be withheld in the other Party’s sole discretion, use the name, service marks or trademarks of the other Party. Each Party is entitled to request that the other Party enters into a license with the other for the use of the name, service marks or trademarks of the other Party.

This clause 8 shall survive the expiry or termination of this Agreement for a period of five (5) years.

9. LIMITATION OF LIABILITY

All obligations of Superlinear under this Agreement are obligations of means (‘inspanningsverbintenis’ or ‘obligation de moyen’). If Superlinear fails in the execution of its obligations, it is exclusively bound to provide the Services and/or Deliverables again (i.e. repair by performing the agreement). Only if this is not possible, will Superlinear be held to compensate the direct losses within the limits described in these terms and conditions.

Neither Party will in any event be liable under this Agreement or the termination thereof for any loss of profits, loss of data, loss of revenues, loss of use, loss of anticipated savings, interruption of business activities, damages to third parties or third parties’ goods or indirect or consequential damages of any kind.

Information communicated in the form of catalogues, brochures, graphics, illustrations, mockups or similar publications are purely descriptive and do not bind Superlinear .

Superlinear ’ aggregate liability for all damages and indemnities arising out of or related to this Agreement, whether in contract or tort, or otherwise, shall be limited to the total amount paid and payable by the Customer under the relevant Order Form. Notwithstanding anything to the contrary, our limitations of liability under this clause 9.3 shall not apply to gross negligence or wilful misconduct.

10. TERM AND TERMINATION

Unless otherwise agreed between the Parties in the Order Form, the Agreement will commence as from the signing of the Order Form and expire upon completion of the Services as set forth in the Order Form.

Either Party shall have the right to immediately terminate this Agreement (i) if the other Party has committed a material breach of this Agreement, and has not rectified the same within thirty (30) calendar days after receipt of written notice from the non-breaching Party specifying the breach, (ii) in the event of proof of fraud committed by the other Party or (iii) if the other Party becomes the subject of a bankruptcy order or becomes insolvent or makes any arrangement or composition with or assignment for the benefit of its creditors or goes into liquidation, either voluntary (otherwise than for reconstruction or amalgamation) or compulsory, or if a receiver or administrator is appointed over its assets.

Without prejudice to any other rights or remedies that Superlinear may have, if this Agreement is terminated (irrespective of the reason therefore), Superlinear shall always be entitled to charge Customer for Services and Deliverables provided and costs incurred up to the date of termination.

Any termination of this Agreement shall not affect (i) any accrued liabilities and rights of the Parties prior to such termination, and (ii) any provision of this Agreement that is expressed to survive its expiration or termination.

Customer explicitly waives the application of article 1794 of the Belgian Civil Code.

11. NON-SOLLICITATION

During the term of the agreement and for a period of one year thereafter, Customer agrees that it will not actively approach the employees or self- employed staff of Superlinear directly or indirectly with the intention of engaging these employees or self- employed staff.

In the event of a breach of clause 11.1 (Non-solicitation), Customer will pay to Superlinear a fixed sum equal to the total cost of the employee or self- employed staff involved over a period of twelve months.

12. FORCE MAJEURE

If a Force Majeure Event gives rise to a failure or delay in either Party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

A Party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that Party performing any obligation under this Agreement, must: (a) promptly notify the other; and (b) inform the other of the period for which it is estimated that such failure or delay will continue.

A Party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

13. MISCELLANEOUS

Entire Agreement. The Parties agree that this Agreement (including any Order Forms hereunder) constitutes the entire agreement between the Parties and supersedes any and all prior negotiations, representations and agreements, whether written or oral, between the Parties with respect to the subject matter hereof.

Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to give effect the intent of the Parties and will be amended to the extent necessary to make such provision valid and enforceable.

Non-waiver. Any failure of either Party to insist upon or enforce performance by the other Party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver of such Party’s right to assert or rely upon such provision, right or remedy in that or any other instance.

Order of precedence. In the event of a conflict between the terms and conditions of any of the foregoing documents, the conflict shall be resolved based on the following order of precedence: (i) Order Form, (ii) the Specific Terms and Conditions (iii) data processing agreement (to the extent this is in scope) and (iv) these General Terms and Conditions. For avoidance of doubt, the Parties expressly acknowledge and agree that any additional terms such as purchase or invoice terms shall not apply even if these terms say differently.

Assignment. Neither Party may assign the Agreement in whole or in part without the prior written consent of the other Party, provided that no such consent will be required to assign the Agreement in its entirety to (i) an Affiliate that is able to satisfy the obligations of the assignor under the Agreement or (ii) a successor in interest in connection with a merger, acquisition or sale of all or substantially all of the assigning Party’s assets.

Subcontracting. Superlinear is entitled to use subcontractors for the performance of its obligations under the Agreement.

Notices. Any notice or other communication under this Agreement given by either Party to the other must be sent to the address specified in the Order Form by registered mail or email. Notices sent by email must be confirmed in writing by letter immediately after sending. The date of the postmark will always be applicable as proof of the date of sending. Either Party may from time to time change its address for notices under this clause by giving the other Party notice in accordance with this clause.

Relationship of the Parties. Superlinear is entirely free and independent in performing the Services. There is no hierarchical relationship between Superlinear (or employees, agents or subcontractors on which Superlinear relies for the execution of the Services under this Agreement) and the Customer. Nothing in this Agreement shall be construed as a creation of partnership, joint venture, agency or otherwise between the Parties. Neither Party has the right to enter into an agreement in name of the other Party.

Survival. All provisions of the Agreement which are expressly marked to survive the termination or expiration of the Agreement, as well as all provisions of the Agreement which aim to enforce or execute the Agreement after the termination or expiration of the Agreement shall survive the Agreement and remain in full force.

14. GOVERNING LAW AND JURISDICTION

The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the Belgian laws, excluding its conflicts of law provisions.

Each Party irrevocably agrees that the courts of Brussels shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation which cannot be settled in an amicable way.

Any claim of the Customer relating to Services must be filed within six (6) months after the date on which the Customer became aware of the events which gave rise to the claim.