VAT: BE0769443788
Sassevaartstraat 46 bus 102, 9000 Ghent, Belgium
1. Scope of Application
2. Conclusion and Performance of the Agreement
3. Phishing Simulations
4. Prices and Invoicing
5. Payment
6. Right of Use of the Software
7. Confidentiality and Privacy
8. Intellectual Property Rights
9. Non-Solicitation
10. Terms, Termination and End of the Agreement
11. Force Majeure
12. Liability
13. Miscellaneous
1.1 These General Terms and Conditions apply to – and form an integral part of – every proposal or quote for services of any kind to be delivered, and every Agreement relating to services of any kind to be delivered by OutKept B.V., VAT number BE0769.443.788, with registered office at Sassevaartstraat 46 bus 102, 9000 Ghent, Belgium, hereinafter referred to as the “Service Provider”, unless expressly agreed otherwise in writing.
1.2 In these General Terms and Conditions, the following terms will have the meaning ascribed to them below:
These General Terms and Conditions will be deemed read and accepted when the Customer starts using the Software and may only be deviated from if the Parties have expressly agreed so in writing. These General Terms and Conditions will be deemed accepted even if they conflict with the Customer’s general or special purchasing terms and conditions. The fact that the Service Provider has not explicitly rejected the Customer’s terms and conditions referred to in a contract or order confirmation may not be interpreted by the Customer as acceptance by the Service Provider of such terms and conditions.
The Service Provider reserves the right to amend these General Terms and Conditions. The Customer will be notified of material changes, for example by e-mail. Such changes will be deemed accepted if no objection is received within a period of thirty (30) working days after notification. After this period, the changes will enter into force and be applicable to the Agreement.
2.1 All proposals, i.e. quotations made by the Service Provider in any form whatsoever, are without obligation unless a period for acceptance is included in the offer. An Agreement is concluded by written or electronic (order) confirmation by the Customer, for example by signing an offer, or by actual performance by the Service Provider. If the offer has been made electronically by the Service Provider and accepted by the Customer, the Service Provider will confirm receipt of the acceptance of the offer electronically, thereby concluding the Agreement. The provision of services by the Service Provider with the Customer’s consent will be deemed acceptance by the Customer of the Agreement and its annexes. Obvious errors or mistakes in the Service Provider’s offers will not bind the Service Provider and the Customer cannot derive any rights therefrom.
2.2 The services performed will be deemed accepted if no objection is received within fifteen (15) working days of delivery and any shortcomings or defects in the services performed have not been notified to the Service Provider in writing or electronically. If notification within that period is not reasonably possible, the period will commence from the moment the shortcoming or defect was discovered or could reasonably have been discovered.
2.3 In the sale of services or goods, an advance payment may be agreed upon between the Parties. This will in principle amount to the amount corresponding to three (3) months of services, or the agreed quarterly price, as well as any costs relating to onboarding, i.e. the set-up and start of the performance of the Engagement. Where an advance payment has been agreed, the Customer cannot assert any rights with regard to the performance of the relevant order or the relevant request for the provision of service(s) until the agreed advance payment has been made.
2.4 The Customer is responsible for the use and application of the Software and of the services to be provided by the Service Provider within its organisation. The Customer will use the Software made available by the Service Provider only for the purposes for which it is intended by the Service Provider. In case of doubt about the intended use, the Customer will consult with the Service Provider in order to obtain clarity.
2.5 The Customer must provide the Service Provider with all information, facilities and cooperation reasonably required. If this obligation is not complied with, or not in time, or not in full, the performance schedule may be adjusted without this leading to any change in the Customer’s payment obligation(s). Data and other materials must be delivered in the format indicated by the Service Provider and within the mutually agreed reasonable time periods.
2.6 The Service Provider is entitled, if it deems this necessary or desirable for the proper performance of the Engagement, to engage third parties in the performance of the Agreement.
2.7 The performance periods indicated by the Service Provider are indicative only and do not bind the Service Provider, unless expressly designated as binding in an Agreement. A delay in the performance of the Engagement can in no event give rise to any damages, interest, termination of the Agreement and/or suspension of the Customer’s obligations.
3.1 Where the Engagement includes Phishing Simulations, the Customer will have the ability to initiate these via the Platform on its own initiative and determine their scope.
3.2 For the purpose of carrying out the Phishing Simulation, the Customer hereby grants permission to the Service Provider and any engaged persons to impersonate third parties, and to approach employees and other representatives of the Customer under false pretences solely in the context of the Phishing Simulation. The Customer may inform the Service Provider, if desired, that the persons engaged for the Phishing Simulations may not impersonate employees of the Customer in such Phishing Simulations. This notification must be made at the latest prior to the start of the Phishing Simulation.
3.3 The Customer may at all times consult the results of the Phishing Simulation in the Software.
3.4 In the event that employees or other persons engaged by the Service Provider are confronted with (supervisory) authorities on suspicion of unlawful or illegal activities, the Customer will be obliged to assist the Service Provider to the best of its abilities in its defence, provided that (1) the suspicion relates to the Phishing Simulation and (2) the Phishing Simulation was carried out in accordance with the Agreement and the arrangements between the Service Provider and the Customer.
4.1 For payments, the Service Provider will send an invoice to the Customer. This invoice will comply with Belgian statutory requirements.
4.2 All prices are in euros and include costs incurred by the Service Provider, and exclude VAT and other charges imposed by public authorities.
4.3 If the Customer purchases a service that is invoiced based on the number of users, the Service Provider will always be entitled to invoice based on the maximum number of users simultaneously registered in the Software during a given month. Such subscribed users include not only “activated” users but also “non-activated” users. Furthermore, it is irrelevant whether such subscribed users have actually used the Software during the month in question.
4.4 The Service Provider reserves the right to adjust recurring fees annually at the beginning of the year based on the Agoria Digital Index (or an equivalent index) using the formula Fn = Fo (0.2 + 0.8 (Sn/So)) (where Fn = new fee; Fo = old fee; Sn = reference labour costs (national average – wages and social charges) as last published by the federation of the technology industry Agoria prior to the adjustment of the fee; So = reference labour costs (national average – wages and social charges) published by Agoria, applicable for the month preceding the entry into force of the Agreement).
5.1 Payment will always be made within thirty (30) days of the invoice date unless otherwise agreed in writing. The Customer is not entitled to set off any claim against the Service Provider with amounts charged by the Service Provider. Any transfer costs are to be borne by the Customer. The final amount received by the Service Provider may therefore not be lower than the invoiced amount.
5.2 Payment will be made by deposit or transfer to a bank account indicated by the Service Provider. Any objections to the amount of the invoices and/or complaints concerning the service(s) will not suspend the payment obligation and must be notified to the Service Provider within a period of seven (7) days. After the expiry of that period, the Customer will be deemed to have accepted the relevant invoice.
5.3 All payment obligations are non-cancellable and all amounts paid are non-refundable. All amounts not paid on the due date stated on the invoice will bear interest at 2% per (part of a) month, but in no event lower than the interest calculated in accordance with the Belgian Act of 2 August 2002 on combating late payment in commercial transactions, as well as a lump-sum compensation equal to 10% of the invoiced amount for all costs related to the recovery of the amounts due, including reasonable legal costs. In addition, the Service Provider reserves the right to suspend further services.
5.4 In the event of non-payment, all judicial and extrajudicial costs incurred will be borne by the Customer. Judicial costs include all actual costs of legal and litigation assistance incurred in the course of legal proceedings.
6.1 The Service Provider grants the Customer a non-exclusive, non-transferable, renewable, worldwide and limited right to access and use the Software for the duration of the Agreement, subject to the conditions and limitations of the Agreement and these General Terms and Conditions.
6.2 Scope of the right of use
The Customer is not permitted to use the Software in a manner not authorised by the Service Provider. The right of use further applies only to the number of users agreed in the Agreement. Use by a larger number of users or use by other systems is not permitted without the prior written consent of the Service Provider. The Customer may only use the Software for data processing activities within its own company and its affiliated companies, but never in such a way that such use leads or may lead to any form of – whether or not commercial – exploitation of the Software or any part thereof by the Customer or any third party, unless otherwise agreed in writing with the Service Provider, e.g. where a formal partner agreement has been concluded with a Customer allowing commercialisation of the Software to third parties.
6.3 Copies and modifications
The Customer may not disclose, copy or otherwise reproduce or modify the Software, except to the extent necessary for the use expressly permitted under this Agreement.
6.4 Reverse engineering
The Customer is not permitted to decompile the Software, reproduce or translate the code or otherwise subject it to reverse engineering, except where this is done in accordance with statutory rules or agreements made with the Service Provider regarding establishing interoperability of the Software with other software.
6.5. Prohibited use
The Customer is not permitted to intentionally distribute viruses, worms, “backdoors” or other code of a destructive or misleading nature, or to use the Software for unlawful, invasive, infringing, defamatory or fraudulent purposes, or to remove or otherwise circumvent technical or other protection measures in the Software. The Customer will ensure that only natural persons use the Software, and that it is not permitted to use the Software in a manner that is disruptive or causes disruption to the Service Provider or third parties. This includes the use of personal scripts or programs to upload or download large amounts of data or excessive use of the Software. The Customer further represents and warrants that the Software will not be used in violation of applicable law, the Agreement or the rights of third parties.
6.6 Confidentiality of the Software and transfer
The Customer acknowledges that the Software may contain sensitive data and will not disclose, make available for inspection or otherwise make available the Software to any third party, including its own directors, employees, suppliers and (sub)contractors who do not need to work with the Software.
If the Customer nevertheless wishes to transfer access to the Software to a third party, it must first request the Service Provider’s prior written consent and provide all information requested by the Service Provider. The Service Provider will then assess whether access to the Software can be transferred to the said third party and whether a new right of use can be granted to such third party.
6.7 Changes to the Software
The Service Provider reserves the right to make material or immaterial changes and/or updates to the Software. The Service Provider will notify the Customer of material changes by e-mail or via a notice in the Software. Such changes will take effect fifteen (15) calendar days after such notification.
6.8 Maintenance
The Service Provider will actively maintain the Software, which may result in temporary unavailability of the Software. Where maintenance is expected to have a negative impact on the availability of the Software, the Service Provider will use reasonable efforts to perform such maintenance when average use of the Software is low according to the Service Provider’s statistics. Emergency maintenance may be carried out by the Service Provider at any time.
6.9 Support
The Service Provider will use commercially reasonable efforts to ensure that the Software is compatible with the latest versions of commonly used web browsers. The Customer will ensure that it and/or its employees use up-to-date web browsers. The Service Provider is entitled, at its sole discretion, to cease support for older versions of web browsers. The Service Provider will use commercially reasonable efforts to provide the Customer with support during office hours in relation to the Software.
6.10 Account
An account or certain login credentials are required to use the Software. Unless otherwise agreed, accounts and login credentials are for individual use only and may not be shared by multiple persons/users. The Customer is fully responsible for keeping any login credentials confidential, including for persons for whom the Customer is responsible (e.g. employees or freelancers engaged by the Customer). The Service Provider may assume that actions taken from the Customer’s accounts are authorised and controlled by the Customer. If login credentials are accidentally disclosed or otherwise become known to any unauthorised third party, the Customer must immediately notify the Service Provider and take all measures reasonably expected from the Customer to prevent misuse of its accounts.
6.11 Third-party trade names, trademarks and logos
The Software may use third-party trade names, trademarks and logos (e.g. in Phishing Simulations). Where this is the case, such use is intended solely for illustrative and educational purposes. All trade names, trademarks and logos remain the property of their respective owners. The use or display of such trade names, trademarks or logos does not imply any relationship with, approval by or association of any kind between such third parties and the Service Provider.
7.1 The Parties will observe strict confidentiality with regard to Confidential Information about each other’s organisation, the operation of the Software and other information, and will protect such information against unauthorised disclosure to third parties. The Parties agree that the Agreement will also be deemed Confidential Information. Except with the prior written consent of the other Party, neither Party will make the above-mentioned information available to third parties and will only disclose it to its directors, employees, suppliers and (sub)contractors to the extent necessary for the performance of the agreed activities.
7.2 Each Party will be liable for the acts and omissions of its directors, employees, suppliers and (sub)contractors that result in unauthorised distribution, use and/or disclosure of Confidential Information as if such acts or omissions were its own.
7.3. The Confidential Information will remain the exclusive property of the Disclosing Party. The Receiving Party will return or destroy all Confidential Information upon first request of the Disclosing Party.
7.4. The obligations of the Parties with respect to the Confidential Information will remain in force for an indefinite period and at least for as long as the Receiving Party has Confidential Information of the Disclosing Party in its possession.
7.5 The confidentiality obligations will not apply to information in respect of which the Parties can demonstrate that:
7.6 Insofar as the provision of services by the Service Provider and the use of services by the Customer involves the processing of Personal Data, the Service Provider will act as processor on behalf of the Customer. In that capacity, the Service Provider will comply with all Data Protection Legislation applicable to the Service Provider. A data processing agreement will be concluded between the Parties, specifying any sub-processors.
7.7 If the Service Provider is required, on the basis of a statutory provision or court order, to disclose Confidential Information to third parties designated by law or by the competent court, the Service Provider will not be obliged to pay damages or compensation, and the Customer will not be entitled to terminate the Agreement on the grounds of any damage arising therefrom, provided that the Service Provider has informed the Customer of such request or order (unless such notification is expressly prohibited).
8.1 The (digital) information (i) provided by the Customer to the Service Provider and/or (ii) stored or processed using the Software (“Customer Data”) is and remains the property of the Customer (or the property of the Customer’s suppliers or licensors). This does not include generic tools, programs, algorithms and benchmarks built or developed by the Service Provider based on data collected from the Customer, which will be the exclusive property of the Service Provider.
8.2 The Customer grants the Service Provider, for the duration of the Agreement, a non-exclusive, royalty-free, transferable, sublicensable licence to use, copy, store (including back-up), transfer and display the Customer Data to the extent necessary to perform its obligations under the Agreement, in particular to perform the Engagement and maintain the Software, and for no other purpose. The Customer also grants the Service Provider, for the duration of the Agreement, a non-exclusive, royalty-free, transferable, sublicensable licence to compile and use Customer Data solely for the research, development, improvement or support of the Software provided by the Service Provider, provided that such data is used in an anonymous or aggregated form in which such information does not directly identify the Customer, its users or other data subjects contained therein, and is not reasonably likely to be used to identify them.
8.3 All Intellectual Property Rights in and to the Software and Documentation, as well as similar rights protecting information, and all content provided by the Service Provider, will belong exclusively to the Service Provider, its licensors or supplier(s). Content means all materials provided by the Service Provider, whether electronically or in print, including texts, code and designs, for example but not limited to (simulation) e-mails, landing pages, attachments, brochures, educational material, video material and others. Nothing in this Agreement will be construed as a full or partial transfer of such rights.
8.4 The name of the Service Provider, its logo and the product names associated with the Software are trademarks of the Service Provider and may not be used without the Service Provider’s prior written consent. The Customer acknowledges and agrees that the source code of the Software is and remains Confidential Information and a proprietary trade secret of the Service Provider.
8.5 The Service Provider warrants to the Customer that the Engagement, the Software and the authorised use thereof by the Customer do not infringe the Intellectual Property Rights or similar rights of third parties. The Service Provider will indemnify the Customer against the consequences of alleged infringement of such rights of third parties in the manner set out in this article, provided that the Customer (i) promptly notifies the Service Provider of any alleged infringement and (ii), if the Service Provider so wishes, leaves the defence against such claim entirely to the Service Provider and provides all requested cooperation and information, and (iii) does not make any admission as to the Service Provider’s liability in relation to such claim, nor agrees to any settlement of such claim without the Service Provider’s prior written consent. The obligation to indemnify the Customer will lapse if the alleged infringement is related to (i) materials made available by the Customer to the Service Provider for use, modification, processing or incorporation, (ii) unauthorised use of the Software by the Customer or its users, or use not in accordance with these General Terms and Conditions or the Documentation, (iii) any modification of the Software by the Customer or a third party, or (iv) use of the Software by the Customer in combination with products or services of third parties.
8.6 In the event of an infringement, or alleged infringement, or where the Service Provider reasonably considers that there is a real risk that such infringement may occur, the Service Provider will be entitled to replace or modify the Engagement and/or Software in such a way as to eliminate the infringement. If an infringement is established by a court decision enforceable in the country where the Customer is established, and it appears that replacement or modification of the Engagement or Software is not possible without materially impairing the functional characteristics of the Software or services provided under the Engagement, the Customer will be entitled to terminate this Agreement for the future without notice period or any other form of compensation in favour of the Service Provider. Except as provided in this article, the Service Provider will not be liable to the Customer for any damages or other performance in the event of an infringement of third-party Intellectual Property Rights.
8.7 If the Customer provides the Service Provider with ideas, suggestions or recommendations relating to the Software or its services (“Feedback”), the Service Provider will be free to use and incorporate such Feedback into the Software without payment of royalties or other compensation to the Customer, provided that the foregoing will not be construed as granting the Service Provider any right or licence to the Customer’s Intellectual Property Rights in such Feedback.
9.1 During the term of the Agreement and for a period of one (1) year thereafter, neither Party will in any way solicit or attempt to solicit employees of the other Party, unless prior written consent has been obtained from the employing Party. This provision does not prevent the Parties from hiring each other’s employees on the basis of vacancies that were addressed to the broader public.
10.1 The Agreement is entered into for:
(i) an initial term of one (1) year. Upon expiry of this period, the Agreement will be tacitly renewed for successive periods of one (1) year, unless either Party terminates the Agreement in writing no later than thirty (30) days before the expiry of the previous term;
or (depending on the chosen subscription),
(ii) an initial term of one (1) month. Upon expiry of this period, the Agreement will be tacitly renewed for successive periods of one (1) month unless terminated no later than the end of the applicable month.
10.2 The Service Provider may terminate this Agreement with immediate effect (or, at its discretion, suspend access to the Software) for material breach upon written notice in the event the Customer breaches the terms of use of the Software as set out in Article 6 or infringes the Service Provider’s Intellectual Property Rights. The Service Provider may also suspend access to the Software if the Customer fails to pay any amount due to the Service Provider under the Agreement and does not remedy such failure within thirty (30) calendar days from the date of a written notice of default from the Service Provider.
10.3 Either Party will have the right to terminate the Agreement with immediate effect for the future:
10.4 If the Customer, after written acceptance of the Agreement (e.g. after signing the quotation), cancels the Engagement before the start of the performance of the Engagement, the Service Provider will retain the right to invoice the onboarding and advance for the first 3 months of the Engagement.
10.5 The temporary suspension or pausing of the Engagement, for example by using the pause button on the Customer’s dashboard page in the Software, has no effect on the Customer’s payment obligations.
10.6 Upon termination of the Agreement for any reason (i) the Customer will immediately pay the Service Provider all fees and other amounts earned by or due to the Service Provider under the Agreement up to and including the date of termination, and (ii) all rights of use granted to the Customer and its users under the Agreement, including the rights to use the Software as set out in Article 6, will automatically terminate. Termination of the Agreement on any ground will not prejudice any right or remedy that has arisen prior to the effective date of termination.
10.7 The provisions of these General Terms and Conditions that are expressly or implicitly intended to survive termination will remain in force after expiry or termination of these General Terms and Conditions.
11.1 All arrangements set out in the Agreement are subject to force majeure. The Parties will be entitled to invoke force majeure if they are wholly or partially, whether or not temporarily, unable to fulfil their obligations under the Agreement as a result of a cause beyond the control of a Party, including but not limited to: loss or total or partial destruction of the Service Provider’s IT system or its database, power failures, interruption of data traffic (lack of internet connection), business blockades, strikes, work-to-rule or go-slow actions, non-performance or late performance by suppliers, unforeseeable processing difficulties, whether or not such obligations should already have been performed at the time the force majeure occurs.
11.2 If a force majeure situation occurs, the Party in respect of which the force majeure situation occurs is obliged to notify the other Party immediately in writing.
11.3 During the period in which force majeure exists, a Party may temporarily suspend its obligations under the Agreement or adjust the performance of the Engagement. The Parties undertake that, if the situation of force majeure makes the performance of the Engagement impossible, more difficult or more expensive, they will in good faith and within a reasonable period (but no longer than 60 days) renegotiate the terms of the Agreement. If no agreement is reached within a reasonable period, each Party will have the right to terminate the Agreement without any compensation being due.
12.1 Except as expressly provided in these General Terms and Conditions and to the extent permitted under applicable law, the Service Provider expressly disclaims all warranties, whether express or implied, including but not limited to warranties of merchantability, non-infringement, satisfactory quality and fitness for a particular purpose with respect to the Software or services, except that the Service Provider warrants that, to the best of its knowledge, the Software will not contain viruses and will not infringe third-party Intellectual Property Rights as set out in Article 8.5. In particular, the Service Provider does not warrant that the Software will be error-free or that the use and/or operation of the Software will be secure or uninterrupted, that the Service Provider will detect every defect in the Customer’s systems or that all problems relating to the Software can be resolved, and disclaims any liability in this respect. The Software will be provided by the Service Provider under the Agreement on an “as-is” basis.
12.2 The Service Provider will never be liable for any damage of any kind resulting from any deviation, errors or defects in any design, text or data, if the Customer has approved such design, text or data, or if the Customer has been given the opportunity by the Service Provider to check such design, text or data but has not made use of that opportunity.
12.3 The Customer warrants to the Service Provider that the ordered Engagement may be lawfully carried out in all countries or regions relevant for the performance, in accordance with the local laws of such countries or regions. If the activities forming part of the ordered Engagement are illegal in one or more relevant countries or regions, the Customer will inform the Service Provider thereof in good time so that the performance of the Engagement can be adjusted and carried out within the legal framework of the relevant countries or regions. The Customer will indemnify and hold the Service Provider harmless against any fines or damage arising from the Customer’s failure to inform the Service Provider in good time.
12.4 To the extent permitted under applicable law, the maximum liability of each Party to the other Party arising out of this Agreement will in no event exceed the fees paid or payable by the Customer to the Service Provider during the preceding period of twelve (12) months. The foregoing limitations will not apply to a Party’s liability arising from wilful misconduct or fraud.
12.5 Neither Party will be liable for unforeseeable, indirect, consequential or similar damage, including but not limited to damages for loss of profit, revenue, business, contracts or customers, loss or corruption of data, loss of goodwill, damage to equipment and reputational damage, loss of opportunity and loss of anticipated savings.
13.1 Severability. If any provision of this Agreement is held invalid or unenforceable by a competent court, such provision will be interpreted as far as possible in accordance with the intentions of the invalid or unenforceable provision, and all other provisions will remain in full force and effect.
13.2 Interpretation. If any ambiguity exists regarding the interpretation of one or more provisions of these General Terms and Conditions, such provision(s) will be interpreted “in the spirit” of these General Terms and Conditions.
13.3 Entire Agreement. The Agreement, together with all applicable Documentation, constitutes the entire agreement between the Customer and the Service Provider and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties relating to the subject matter hereof. No amendment to or modification of the Agreement will be binding unless in writing and signed by an authorised representative of each Party.
13.4 Applicable Law. The Agreement is governed by Belgian law.
13.5 Disputes. In the event of a dispute regarding the validity, interpretation, performance or delivery of the Engagement(s), the Parties agree to initiate a mediation procedure before resorting to any other form of dispute resolution. In such case, the Parties will jointly appoint a certified mediator from the Federal Mediation Commission or have a third party appoint such a mediator. Once a mediator has been appointed, the Parties will determine the modalities of the mediation together with the mediator. Each Party may terminate the mediation procedure at any time, without prejudice to any other rights. If the mediation procedure fails, the courts of the judicial district of East Flanders, Ghent division, will have jurisdiction.
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