Terms of Use

1.1. These General Terms shall govern Customer’s use of the Software and the provision of Services by Timefold to the Customer, except when superseded and replaced by a deviating contractual agreement expressly made between Timefold and the Customer.

1.2. Unless agreed in writing by Timefold, Customer’s general terms and conditions are not applicable and expressly excluded.

1.3. Specific services terms, product details and/or subscription terms may be set forth in an Order, each of which become binding on the Parties and subject to these General Terms and documents referenced therein upon execution of an Order Form.

1.4. Each Order is governed by and incorporates the following documents in effect as of the date of last update of such documents, collectively referred to as the “Agreement” that consists of:

1.5. In the event of any inconsistency or conflict between the above-mentioned documents, the hierarchy as stated above will apply (the Order prevailing over the General Terms and schedules set forth therein).

1.6. The following capitalized terms will have the following meanings whenever used in this Agreement.

2.1. Subject to full payment of the applicable Fees and compliance with the restrictions set forth in Article 2.9 below, Timefold grants to the Customer a revocable, non-exclusive, non-transferable, non-sublicensed, renewable fixed and limited right to access and use the Software during the Term for Customer’s internal business purposes. Customer will need to comply with Timefold’s usage models as defined below.

2.2. Parties agree and acknowledge that the usage model (and subscription model) will be indicated in the order, and can be linked to the number of unique planning values ('Resources') used by the Customer in relation with the Software. The usage model grants the Customer the right to access and use the Software in direct correlation with the actual usage metrics, including the number of Resources, as determined by Timefold’s monitoring and reporting systems.

2.3. During the Term, Customer may reproduce the Documentation as reasonably necessary to support internal use of the Software. Customer agrees to delete or destroy such copies of the Documentation at the end of the Term.

2.4. For purposes of these General Terms, Software means the initial version of the relevant proprietary software licensed or subscribed to by the Customer together with periodic updates and upgrades (collectively “Updates”), which Timefold may provide at its sole discretion and without prior notification. Updates may not necessarily include all existing features or functionalities. Timefold is entitled to request an additional Fee for the implementation of new features or functionalities. New features and functionalities might only be available for Customers if the latest Updates are implemented. Customer acknowledges that its own models and software that interact with the Software will in some cases need to be updated to function correctly in relation with the Updates. Timefold does not guarantee backwards compatibility, unless agreed in writing with the Customer.

If an Update would materially reduce functionalities of the Software, Timefold shall prematurely and taking into account a reasonable notice period, notify such revisions to the Customer prior to their implementation.

2.5. The Customer acknowledges and agrees that any use of the Products and/or Services outside of the terms of this Agreement, unless such use has been expressly approved in writing by Timefold, will entitle Timefold to immediately terminate or suspend the Agreement for material breach by Customer, without any formalities being required and without prejudice to any other right or remedy available to Timefold.

2.6. The Customer shall use its best efforts to prevent unauthorized access to, or use of, the Products and/or Services, and will notify Timefold promptly in writing of any such unauthorized use which Customer may become aware of.

2.7. The Customer grants Timefold the right to use its customer data in an anonymized and aggregated form for research and development purposes.

3.1. The Customer acknowledges and agrees that Timefold can only deliver access to the Products and/or Services to those Authorized Users that have accepted terms and conditions that are at least of the same standard as the terms and conditions as set forth in these General Terms. In case such Authorized User would breach any term or condition of these General Terms, the Customer will be jointly and severally responsible with such Authorized User towards Timefold pursuant to the Agreement. Customer acknowledges that it is responsible and liable for any person it invites to its Timefold environment, and such person’s compliance with the terms and conditions that are at least of the same standard as the terms and conditions as set forth in these General Terms.

4.1. The Products, development tools, methods, procedures of Timefold will be and remain Timefold’ exclusive property and the Customer will obtain no right, title or interest therein (including without limitation any Intellectual Property Rights any related and/or integrated Intellectual Property Rights thereto (including the improvements thereof)). No license is granted to the Customer except as to use the Products as expressly agreed upon between Timefold and the Customer. Timefold’s name, Timefold’s logo, and the product names associated with the Products are trademarks of Timefold and they may not be used without Timefold’s prior written consent.

4.2. In the event that, notwithstanding any prohibition thereto, the Customer modifies, improves or creates derivative works of or from the Products or any part thereof (collectively, “Improvements”), Timefold shall immediately and irrevocably own all right, title and interest, including any and all Intellectual Property Rights, in and to such Improvements and the Customer hereby assigns any rights (including any Intellectual Property Rights) in such Improvements to Timefold and agrees to secure any additional confirmations, assignments or other instruments or documents as may be necessary to vest title to any such Improvements in Timefold as contemplated by this article. No amount shall be payable by Timefold to the Customer for the assignment of any rights in Improvements.

A Customer may develop models that interact with the Software. Timefold does not claim any rights to such Customer models (provided they are not Improvements, as defined above) or to Customer data.

4.3. The Customer agrees not to remove, suppress or modify in any way any proprietary marking, including any trademark or copyright notice, on or in the Products, except as otherwise specifically permitted under this Agreement. The Customer shall incorporate or reproduce such proprietary markings in any permitted back-up or other copies of the Products except as otherwise agreed.

5.1. Timefold will provide reasonable commercial efforts to have the Software function in good order and in accordance with the Documentation. Parties may enter into a separate service level agreement with regard to the maintenance and support services for the Software provided by Timefold. Please get in touch with Timefold, if You would like to enter into such a service level agreement.

6.1. Each of the Parties agree that it will not (i) disclose any Confidential Information of the other Party, except to those of its employees, sub-suppliers, officers, directors, contractors, Affiliates and/or all other external advisors that have a reasonable demonstrable legitimate need to know such information in light of such Party’s rights and obligations hereunder, subject to each of them committing in writing to adequate confidentiality obligations prior to being granted access to such Confidential Information and subject to any other conditions and restrictions set out in the Agreement, or (ii) use any Confidential Information of the other Party for its own benefit or that of any third party, except as expressly permitted under the Agreement.

6.2. Each of the Parties shall ensure that each person who receives Confidential Information is made aware of and complies with these confidentiality obligations. Each of the Parties shall be responsible and liable towards the other Party for a breach of these confidentiality obligations by any party acting under their control or on their behalf or to which they otherwise provided Confidential Information.

6.3. Shall not be considered Confidential Information, information which:

(a) is in the public domain at the time of disclosure by the disclosing Party or subsequently falls into the public domain through no breach of this Article 6 by the receiving Party, provided that the Customer acknowledges and agrees that Confidential Information of Timefold shall not be deemed to be in the public domain merely because any part of said information is embodied in general disclosures or because individual features, components or combinations thereof are known, or become, known to the public, through whatever means, including through means of the supply or commercialization of products or services based on or related to such Confidential Information;

(b) can be proven to the reasonable satisfaction of the disclosing Party to be lawfully in the receiving Party’s possession prior to any disclosure by the disclosing Party and without an obligation of confidentiality towards the disclosing Party;

(c) can be proven to the reasonable satisfaction of the disclosing Party to be lawfully obtained from a third party which was not under an obligation of confidentiality towards the disclosing Party; or

(d) can be proven to the reasonable satisfaction of the disclosing Party to be independently developed by the receiving Party, without access or reference to, or use of, the disclosing Party’s Confidential Information.

6.4. Parties’ confidentiality obligations shall survive any termination of the Agreement for a period of five (5) years. Upon termination of the Agreement or upon disclosing Party’s earlier written request, the receiving Party shall promptly destroy or return to the disclosing Party all Confidential Information of the disclosing Party in its possession or under its control and shall certify in writing its compliance with the foregoing.

7.1. Timefold will charge, and the Customer will pay, the Fees set forth in the Order. Timefold may communicate fees for new Orders via its website, and is entitled to change such proposed fees at its discretion.

7.2. Timefold may increase the Fees at the beginning of each calendar year in function of a change in labor costs or external (third party) costs (e.g. wages, energy costs and (raw) material, third party licenses (e.g. hosting services, and others) reasonably projected by Timefold. If nothing else is agreed between Parties, such indexation will take place on the basis of the Agoria digital index, and will be applied to 80% of the relevant Fees.

7.3. The Fees may also be amended at the beginning of each calendar year to permit Timefold to maintain the high quality of the Products and/or Services, and to reflect improvements in the Software. Timefold shall provide written notice to the Customer at least thirty (30) days in advance of the Effective date of any fee increase. Notwithstanding the foregoing, Customers who have entered into this Agreement within the six (6) months preceding the Effective date of any fee increase shall be exempted, and the fee increase shall be applicable to the latter six (6) months from the Effective Date. If Customer objects to the increase, the Customer may terminate this Agreement by written notice to Timefold at any time before the Effective date of the increase.

8.1. Subject to the terms set forth in Article 14 (with regard to metrics verification), Timefold will charge, and the Customer will pay, the Fees set forth in the Order Form for the Products (the License Fees) and Services (the Service Fees). Fees are invoiced in accordance with the terms set forth in the Order, in absence whereof, the License Fees are invoiced at the start or before the start of license or subscription term, and the Service Fees are invoiced after provision of the Services.

8.2. Unless otherwise agreed, invoices are due and payable by the Customer within thirty (30) calendar days from the invoice date. Invoices are issued in euro, or the currency indicated in the Order Form. All payments must be made to Timefold’s bank account provided in the invoice. The amount of any invoice which has not been paid within thirty (30) calendar days from the invoice date shall automatically be subject to a late payment interest equal to the then applicable interest rate as calculated and determined in accordance with the Belgian law of 2 August 2002 regarding late payment in trade transactions (“Wet betreffende de bestrijding van de betalingsacherstand in handelstransacties”), with a minimum late payment fee of 150 EUR (one hundred and fifty euros).

8.3. In addition, the Customer shall pay all costs incurred by Timefold as a result of the (extra)judicial enforcement of the Customer’s payment obligations hereunder.

8.4. If the Customer fails to pay any outstanding amounts within thirty (30) calendar days from receipt of a written payment default notice, Timefold may terminate the Agreement, or alternatively, at its sole discretion, suspend its obligations and/or the Customer’s user rights granted hereunder by written notice to the Customer until receipt of payment of such outstanding amounts.

8.5. If the Customer disputes any portion of an invoice, the Customer shall notify Timefold within five (5) calendar days from the invoice date of the nature of any such dispute, the basis for the Customer’s dispute and the amount involved, together with any appropriate information supporting Customer’s position, failure of which shall result in the invoice being deemed accepted by the Customer. In any event, the undisputed portion of the invoice shall be paid as set forth herein.

8.6. Unless otherwise specified in this Agreement, all Fees are non-refundable. No refunds shall be issued for partial use or non-use of the Products and/or Services by Customer. In the event the Agreement is terminated for any other reason than breach of the Agreement by Timefold, all Fees remain or immediately become payable, due and non-refundable.

8.7. The Fees do not include any taxes, including value-added tax or withholding taxes. Timefold will invoice Customer for such taxes if it believes it has a legal obligation to do so and Customer agrees to pay such taxes if so invoiced.

9.1. In the event the Order sets forth that the Software will be made available in a downloadable format, Timefold will provide Customer access to a machine-readable copy of the Software listed in the Order, and the relevant license keys as applicable. Timefold will make the Software and Documentation available in electronic format (for download). In the instance of downloads, the Customer will be deemed to have accepted the delivery at the conclusion of the download. In case of electronic delivery (direct download or other electronic means), Timefold will not be held liable for any loss, costs, damages, charges, or expenses caused directly or indirectly by any software/hardware/telecommunication network failures or dysfunction of any kind (including, but not limited to, bugs, security issues, viruses, phishing, additional telecommunication costs, traffic diversion, etc.).

10.1. Timefold represents and warrants to the Customer the following:

(a) Timefold warrants and guarantees that the Services provided under this Agreement shall be carried out in a proper and professional manner by properly qualified personnel;

(b) except as expressly set forth in this Article 10 and to the maximum extent permitted by the applicable law, the Products and/or Services are provided “as is”, without any warranty of any kind (including but not limited to bugs, security issues, viruses, etc.).

Timefold makes no (and hereby disclaims all) other warranties, covenants or representations or conditions, either written, oral, express or implied, including without limitation any implied warranties of merchantability, suitability and fitness for a particular purpose or use with respect to the use, misuse or inability to use the Products and/or Services (in whole or in part) or any other products or services provided by Timefold. Timefold makes no warranty with respect to any hardware, software or product of any third party. All use of and reliance by the Customer on the Products and/or Services provided by Timefold under the Agreement are at the sole risk of Customer. Timefold does not guarantee the accuracy, and the correctness of the results generated by the use of such services and/or the Products and/or Services. The Customer acknowledges that the Software may not always provided the best possible result. Customer acknowledges that its own models interacting with the Software may not remain compatible with newer versions of the Software.

10.2. The Customer represents and warrants the following, as of the date of the Order:

(a) it is duly organized, validly existing and in good standing under the laws of its incorporation and has all requisite power and authority to execute and deliver the Agreement, to perform its obligations hereunder and to engage in the transactions contemplated thereby;

(b) the execution, delivery and performance of the Agreement by the Customer do not and will not (i) violate any judgment, order, injunction, decree or award of any court or governmental body binding on the Customer, (ii) violate any law or regulation that is applicable to the Customer, in particular Export Law, or (iii) violate or conflict with, or constitute a default under, the terms of any agreement to which such Party is a party. If at any time during the Agreement, the Customer notices or suspects that wrong assumptions have been made or any of these warranties prove incorrect, it shall promptly inform Timefold thereof in writing.

11.1. Timefold shall defend and indemnify the Customer against any founded and well-substantiated claims brought by third parties for any infringement to such third party’s Intellectual Property Rights, excluding any claims resulting from (i) the Customer’s unauthorized use of the Products, (ii) the Customer or any third party’s modification of any of the Products, (iii) Customer’s use of the Products in combination with any non Timefold’ products or services which are not authorized in writing from Timefold, or (iv) the Products having been developed to the Customer’s design or incorporating documents, materials, ideas, data or other information, provided by or on behalf of the Customer. The exclusions and limitations of liability under this Article shall operate to the benefit of Timefold’ Affiliates and subcontractors to the same extent such provisions operate to the benefit of Timefold.

11.2. Timefold’ indemnity obligation shall be conditional upon the following: (i) Timefold is given prompt written notice of any claim, (ii) Timefold is granted sole control of the defense and settlement of such a claim, (iii) upon Timefold’ request, the Customer fully cooperates with Timefold in the defense and settlement of such a claim, at Timefold’ expense and (iv) the Customer makes no admission as to Timefold’ liability in respect of such a claim, nor does the Customer agree to any settlement in respect of such a claim without Timefold’ prior written consent. Provided these conditions are met, Timefold’ shall indemnify the Customer for the damages and costs incurred by the Customer as a result of such a claim, as awarded by a competent court of final instance, or as agreed to by Timefold pursuant to a settlement agreement.

11.3. In the event the Products, in Timefold reasonable opinion, are likely to or become the subject of a third-party infringement claim (as per Article 11.1), Timefold shall have the right, at its sole option and expense, to: (i) modify the (allegedly) infringing part of the Products so that they become non-infringing while preserving equivalent functionality, (ii) obtain for the Customer a license to continue using the Products or (iii) terminate the relevant license and pay to the Customer an amount equal to a pro rata portion of the Fees paid to Timefold for that portion of the Products which is the subject of such infringement.

11.4. The indemnity provided in Article 11.2 and remedies provided in article 11.3 are the entire liability and obligation of Timefold and the sole remedy of the Customer with respect to any infringement or alleged infringement of any Intellectual Property Rights caused by the Products or any part thereof.

12.1. To the maximum extent permitted by applicable law, Timefold excludes any and all liability (whether in contract, warranty, tort (including as a result of negligence, product liability or other theory)) or otherwise to the Customer or any third person for any indirect, punitive, incidental, special or consequential or other similar damages (including damages for loss of profit, revenue, business, contracts or clients, loss of or corruption of data, loss of goodwill, damages to equipment and reputational damage, opportunity loss, loss of anticipated savings, and the cost of procuring replacement goods or services), even if Timefold has been advised or notified of the possibility of such costs or damages.

12.2. Without prejudice to and without limiting Article 12.1, Timefold aggregate liability arising out of or in connection with the Agreement or the transactions contemplated hereby, whether in contract, warranty, tort (including negligence, product liability or other theory), or otherwise, shall not exceed the total amount paid by the Customer to Timefold during the twelve (12) month period preceding the date on which the applicable liability claim arose.

12.3. The Customer agrees that Timefold can only be held liable as per the terms of this Article 12 to the extent damages suffered by the Customer are directly and solely attributable to Timefold. However, nothing in the Agreement shall limit or exclude Timefold’ liability for (i) gross negligence, (ii) willful misconduct, (iii) fraud.

13.1. This Agreement enters into force on the Effective Date and shall remain in effect for the term specified in the Order (which may be an online offering), and will renew for the same term unless terminated at least 90 calendar days before the end of the then-current term (the initial term and renewals together the Term). If no term is included in the Order, Customer will enter into a yearly subscription, which renews at the end of the then-current term, unless terminated by either Party no later than 90 calendar days before the end of the then-current term.

13.2. Either Party may terminate this Agreement at any time upon written notice if the other Party commits a material breach of this Agreement and fails to cure such breach within ten (10) calendar days (in the case of non-payment) or thirty (30) calendar days (in the case of other breaches) after written notice specifying such breach. On termination of this Agreement for any reason, all rights and licenses granted to the Customer will immediately terminate, and the Customer will discontinue use of the Products and/or Services and, at Timefold’s option, return to Timefold or destroy all copies of the Products in the Customer’s possession or control and provide written confirmation of such return or destruction. The terms of this Agreement which by their terms or nature survive termination, will survive any termination of this Agreement.

13.3. Notwithstanding the foregoing, Timefold will be entitled to immediately terminate the Agreement (or alternatively suspend its obligations) in the event the Customer breaches the license or use terms as set forth in these General Terms or in the event Customer infringes Timefold’s Intellectual Property Rights.

13.4. Upon termination of the Agreement for any reason whatsoever the Customer shall promptly pay Timefold all amounts covering the full term of the Agreement, except in the event of a termination by the Customer pursuant to Articles 13.2., in which case the Customer must promptly pay to Timefold all amounts payable hereunder up to the actual termination date.

14.1. Timefold shall have the right, at its sole discretion, to conduct periodic audits of Customer’s usage and records related to the Software to verify compliance with the terms of this Agreement and the actual usage metrics. Such audits shall specifically focus on Customer’s quarterly Software usage and payment records.

14.2. Audits may be conducted by Timefold or its authorized representatives during regular business hours using audit tools and methods, as deemed appropriate by Timefold. The audits shall be scheduled at least thirty (30) days] in advance, and Timefold shall take reasonable measures to minimize any interference with the Customer’s business activities.

14.3. The Customer shall reasonably cooperate with Timefold in the conduct of any audit and shall provide all necessary access, information, and assistance required to complete the audit. This includes but is not limited to, granting Timefold or its authorized representatives access to relevant systems, records, and documentation related to the usage and payment for the Software.

14.4. If an audit reveals that the Customer has underpaid the total fees due for the audited quarterly period, the fees shall be adjusted accordingly based on the actual usage of the Software. Any adjustment to the invoices based on the audit results shall be reflected in the subsequent quarterly payments.

14.5. Both parties acknowledge that any information obtained during the audit shall be treated as confidential information in accordance with the provisions of Article 6 of this Agreement.

14.6. The exercise of audit rights by Timefold shall not be considered a waiver of any of its rights or remedies under this Agreement or at law.

15.1. Entire Agreement. This Agreement, and any of its schedules, exhibits, or attachments, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all written or oral prior and contemporaneous agreements and understandings between the parties concerning such subject matter. If any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable, the same shall not affect any of the other portions of this Agreement. Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right or any other right.

15.2. Right to Amend. Timefold at its sole discretion, reserves the right to modify the General Terms at any time to reflect new features or changes in law without notice, if the modifications will not materially decrease Timefold’s overall material obligations set forth in these General Terms. For material changes, Timefold shall notify the Customer of an updated agreement available for online acceptance or other designated manner. Timefold shall provide the Customer with at least fourteen (14) calendar days to decline the updated General Terms. After such period, the updated General Terms shall be deemed to have been accepted. Customer shall be required to accept the updated Agreement if it desires to continue to use the Products and/or Services. If the Customer does not accept the changes, the Agreement will terminate at the end of the then-current term.

15.3. 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 reformed to the extent necessary to make such provision valid and enforceable.

15.4. Assignment. This Agreement, and any rights or obligations hereunder, shall not be assigned or sub-licensed by Customer, including by operation of law, without prior written consent from Timefold. Timefold may assign this Agreement without the consent of the Customer. Any attempted assignment or transfer in violation of the foregoing shall be void and shall result in the immediate and automatic termination of this Agreement. Subject to this restriction, this Agreement will be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns.

15.5. Force Majeure. Except for payment for Fees due hereunder, neither party shall be liable for any losses arising out of the delay or interruption of its performance of obligations under this Agreement due to any Force Majeure.

15.6. Choice of Law. This Agreement and any disputes related thereto shall be governed by and construed in accordance with the laws of Belgium. Any dispute regarding the interpretation and/or the execution of the present Agreement will be submitted to the competent courts of Ghent, Belgium. Although the Agreement has been drafted in English, judicial proceedings will be held in Dutch. The provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods are expressly excluded and do not apply to this Agreement.

15.7. Relationship. The Parties are independent contractors. This Agreement does not create any partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.

15.8. Notices. All notices related to this Agreement shall be in writing, effective if dispatched by reliable overnight delivery service (which shall be deemed given on business day after mailing) and sent to Timefold address as specified in the Order Form with a copy via e-mail (EMAIL), and to the Customer, at the respective address and email address as set forth in the Order Form.

15.9. Waiver. Failure or delay by either party in exercising any right here under shall not operate as a waiver of such right. No single or partial exercise of any right, power or remedy under the Agreement by a Party hereto, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy, shall preclude such Party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a Party hereto shall not constitute a waiver of the right of such Party to pursue other available remedies.

15.10. Publicity. As of the Effective Date, Timefold shall be entitled to refer to the Customer as a Customer in all of its commercial and marketing documentation and client listings, as a sales reference, as well as on Timefold’ website.

This data processing agreement (Data Processing Agreement) is entered into between Timefold and the Customer.

WHEREAS:

THE PARTIES AGREE AS FOLLOWS: