General Terms & Conditions
Last update: March 31st, 2020
Article 1 – Definitions
In these terms and conditions (the “Terms and Conditions”), the following terms shall have the following meanings:
- Scalefactory: Scalefactory BV, having its registered offices in Belgium at 9000 Gent, Kruisboogstraat 6, registered under company number 0711.846.178.
- Solution: Scalefactory’s “integrator” solution, for the integration between Salesforce and Office365 applications.
- Contract: The contract on the basis of these Terms and Conditions, a data processing agreement (if applicable) and Scalefactory’s price list (as available on https://appexchange.salesforce.com/).
- Client: The client with whom Scalefactory concludes the Contract for the use of the Solution.
- User: Anyone who uses the Solution on behalf of the Client.
- Content: Any and all data and information (including, without limitation, any documents, statements, designs, services, offers, text, sound, video, images, software, notifications) available on and/or through the Solution.
- Intellectual Property Rights: All intellectual property rights, such as (without limitation) patents, designs, models, copyrights, software and database rights, trademarks, know-how, domain names and trade names, as well as related applications.
Article 2 – Object and applicability of the Terms and Conditions
These Terms and Conditions set out the rights and obligations of the Client, the Users and Scalefactory in relation to the use of the Solution. The Client accepts these Terms and Conditions by paying ordering licenses to use the Solution and by paying the amounts due to Scalefactory, which also constitutes the beginning of the Contract. The Client is responsible for the Users’ compliance with the Contract, in particular in order to ensure the integrity, security, reliability and privacy of the Solution and the Content.
The Contract and the Terms and Conditions provide for the sole and exclusive terms and conditions applicable to the use of the Solution, prevailing over any other terms and conditions (in particular those of the Client), even if they claim to apply solely and exclusively. Deviations are only valid if and to the extent Scalefactory has accepted them in writing and in advance, in particular in its quotation. In such case, the other provisions of the Terms and Conditions remain applicable.
Scalefactory reserves the right to update, change or replace any part of the Terms and Conditions, at any time and at its sole discretion. The Client will be informed in due time about modifications and their entry into force. The Client shall unconditionally accept the modifications as of the first subsequent use of the Solution. If the Client does not agree to the modifications, the Client and the Users are required to discontinue the use of the Solution.
Article 3 – Solution
The Solution is an application within Salesforce, for the integration between Salesforce and Office365.
The Solution provides a visual interface, built within Salesforce, allowing to access and visualize documents available in Microsoft Office365, through Microsoft’s Sharepoint platform as exposed via the Microsoft Graph API. The Client confirms that Scalefactory provided sufficient information regarding the Solution, its functionalities and technical aspects thereof, which is also available here.
Scalefactory may make changes to the Solution from time to time, at its sole discretion. In particular, Scalefactory reserves the right to correct any errors, inaccuracies or omissions at any time without prior notice.
Scalefactory reserves the right to refuse access to and/or the use of the Solution to any User at any time, if duly justified. Scalefactory reserves the right to suspend or discontinue the Solution at any time, on reasonable notice to the Client.
Article 4 – Access to the Solution
The Client shall be responsible for all activity of the Users, and represents that all Users shall abide by all applicable legislations in connection with the use of the Solution, including those related to data protection and Intellectual Property Rights.
Article 5 – Availability of the Solution – Salesforce and Office365
The Client accepts that the use of the Solution requires lawful access of the Users to both Salesforce and Office365, and is therefore subject to the terms and conditions that apply in that respect, which are unaffected by these Terms and Conditions.
Scalefactory intends to make the Solution available 24/7, without proving any guarantee in this respect, unless otherwise agreed in writing. In any case, the Solution may be unavailable in cases of force majeure, updates, malfunctions, maintenance interventions etc. required for the proper functioning of the Solution. These cases shall be limited as much as possible, without any right to indemnification. Maintenance interventions may be performed at any moment and without prior notification.
Scalefactory does not guarantee, represent or warrant that the use of the Solution will be uninterrupted, timely, secure or error-free. Scalefactory does not warrant that the Content or results that may be obtained from the use of the Solution will be accurate or reliable. Scalefactory shall not be liable for any failure or unavailability of the Solution as a result of the loss or destruction of data, the deletion or corruption of storage media, power failures, unavailability of suppliers or any other event beyond its control.
The Client accepts that the use of the Solution is subject to a connection with the Salesforce and Office365 applications, over which Scalefactory has no control and for which Scalefactory is not responsible. In particular, the use of the Application is only possible using Microsoft’s Graph API. If Microsoft discontinues its Graph API, converts it into a paid service and/or otherwise limits the use thereof (e.g. functional limitation, latency, capacity), such could impact the use of the Solution in a manner beyond Scalefactory’s control. In such case, Scalefactory shall use its best efforts to limit such impact and, if necessary, Scalefactory and the Client will enter into good faith negotiations in order to assess the impact on the Solution and on the Contract (e.g. additional cost or functional limitation). If no agreement can be reached within a reasonable amount of time (of at least/ at most to be specified), the Contract shall not be renewed. However, such shall not result in a reimbursement of paid fees, unless otherwise agreed.
Article 6 – Acceptable use of the Solution
The Solution may only be used for lawful purposes and in accordance with its functionalities. The Users are prohibited from violating, or attempting to violate, the security of the Solution. Any violations may result in civil and criminal liabilities of both the User and the Client.
In particular (without limitation), neither the Client nor the Users may use the Solution:
in a way prohibited by law, regulation, governmental order or decree;
to violate the rights of others, including, without limitation, Intellectual Property Rights and privacy;
to the benefit of third parties, since the use of the Solution is personal;
by selling, sublicensing or otherwise distributing the Solution to third parties;
to create, transmit, distribute, or store Content that is obscene, offensive or inappropriate, that may be threatening, abusive or hateful, and/or that encourages conduct that would constitute a criminal offence or give rise to civil liability;
by means of external applications that automatically download Content from and/or using the Solution, in particular by applying data mining, robots, scraping or similar data gathering or extraction methods;
to try to gain unauthorized access to or disrupt any Content, service, device, data, account or network;
to decompile, reverse engineer, modify or disassemble any of the software in or associated with the Solution;
in a way that could harm the Solution, cause technical disturbances or impair anyone else’s use of it, including, without limitation, by introducing viruses, worms or other destructive elements or by means of overloading, “flooding”, “mailbombing”, or “crashing”; or
in any application or situation where failure of the Solution could lead to the death or serious bodily injury of any person, or to severe physical or environmental damage; and/or
in a way that Scalefactory deems to be objectively unacceptable.
If a User becomes aware of any such activities, the User shall immediately notify Scalefactory and take all other appropriate actions to cause such activities to cease and to limit damage.
Article 7 – Fees, invoices and payment
Fees for the use of the Solution are set in Scalefactory’s price list (as available on https://appexchange.salesforce.com/). They are expressed in euros and are without any discount.
Unless expressly agreed otherwise in writing, these fees shall be invoiced and paid in advance on a yearly basis.
Invoices are payable either through an online payment provider or through bank transfer.
All taxes and any additional levies and costs of any nature whatsoever related to the execution of the Contract shall be borne by the Client.
Article 8 – Complaints
The Client must submit any complaint with Scalefactory within 30 (thirty) calendar days of the date on which such claim or cause of action arose. For invoices, this deadline is limited to 10 (ten) calendar days of the invoice date. Such complaints must be submitted by registered letter and must comprise a clear, accurate and substantiated description of the alleged non-compliance. The Client shall bear the burden of proving that these conditions are met. If the aforementioned conditions are not met, the complaint will be null and void.
Article 9 – Term and termination
Unless otherwise agreed, the Contract shall apply for a period of 1 (one) year. At the end of that period, Scalefactory shall contact the Client and provide information regarding the means of concluding a new agreement and regarding the applicable pricing. If the Client does not conclude a new agreement, access to the Solution will be denied.
Scalefactory may terminate the Contract without prior notice and without being liable for any compensation if:
the Client is declared bankrupt, the Client has been put into provisional liquidation, all or part of the Client’s assets have been seized by third parties as a protective measure or with a writ of execution and/or the Client’s solvency is impaired in some other way;
the Client does not respect its obligations under the Contract and fails to remedy such breach within the time specified in Scalefactory’s written notice;
the Client commits an act that seriously damages Scalefactory’s reputation; and/or
the aforementioned conditions of force majeure exceed 30 (thirty) calendar days.
Should the Client fail to fulfil an obligation under the Contract, Scalefactory will also be entitled to request termination of the Contract and compensation.
The provisions which due to their nature are intended to continue to apply after the expiration or termination of the Contract shall remain in force. This applies in any case to Articles to be specified: relevant articles, e.g. on intellectual property rights, confidentiality, limitation of liability, applicable law and competent courts.
Article 10 – Liability – Force majeure
Unless expressly agreed otherwise, the obligations of Scalefactory are obligations to deliver its best efforts. The Client expressly agrees that the Users’ use of, or inability to use, the Solution is at the Client’s sole risk. The Solution is provided “as is” and “as available”, with all faults. The Client is solely responsible for the accuracy and completeness of the documentation and information it provides. Scalefactory is only responsible for the products and services expressly agreed in the Contract.
Within the framework of the functioning of the Solution, Scalefactory may only be held liable for gross negligence, excluding any responsibility for any form whatsoever of consequential damages (including lost profits, lost income and loss of data) and for any action whatsoever that would be brought by third parties against the Client. In any case, regardless of whether the action was brought on a contractual or non-contractual basis, the liability of Scalefactory remains limited at most to the lowest of the following amounts: i) either the amounts that the Client has paid during the 12 (twelve) months preceding the commencement of the action; ii) or an amount of 500 000 EUR (five hundred thousand euros). The Client shall safeguard Scalefactory against any actions by third parties which would be based on or related to the performance of the Contract.
Force majeure should be construed as the conditions that occur independently of the will of the parties and prevent the performance of the Contract, including labour disputes, fire, mobilisation, seizure, embargo, ban on currency transfers, uprisings, acts of terrorism, lack of transport, general shortage of raw materials, and restrictions on energy consumption (non-exhaustive list).
The party invoking circumstances of force majeure must immediately notify the other in writing of their occurrence and their end. The performance of the Contract is suspended for the duration of the cited conditions, given that the Contract may be terminated prematurely if the cited conditions last for more than 30 (thirty) calendar days. The occurrence of any of these conditions discharges both Scalefactory and the Client from any liability.
Article 11 – Intellectual Property Rights
The Intellectual Property Rights of any nature whatsoever relating to specific information about products or processes that are communicated to Scalefactory for the performance of the Contract shall remain the property of the Client. The Client guarantees that all the information and documents that it supplies to Scalefactory for the performance of the Contract as well as their use are free of third-party Intellectual Property Rights. The Client shall indemnify Scalefactory in case of any liability for any loss, damage, costs, expenses and other actions resulting from the infringement of third-party Intellectual Property Rights.
The Client acknowledges that Intellectual Property Rights, regardless of their nature, pertaining to the Solution and/or otherwise relating to the performance of the Contract are and remain the property of Scalefactory. Unless expressly agreed otherwise, the Intellectual Property Rights relating to the results of the Contract shall remain the property of Scalefactory. Even if otherwise agreed, the Intellectual Property Rights on the results of the Contract will not be transferred until all invoices relating to the Contract are settled.
Article 12 – Confidentiality
Scalefactory will not disclose to third parties the information provided by the Client. Within the framework of the Contract, Scalefactory undertakes to only involve the people, partner organisations and subcontractors who are necessary for the performance of the Contract, and shall impose on them the same duty of confidentiality as that covered in this article.
Due to their confidential nature, the Client will not make public, communicate or provide to third parties Scalefactory’s advice, reports, lists and related documentation resulting from the performance of the Contract without Scalefactory’s prior written consent. The Client will only use these reports, lists and related documentation for its own use. The Client will take all reasonable precautions to prevent any unauthorised publication or use.
Subject to the Client’s prior written consent, Scalefactory has the right to publish some information pertaining to the performance of the Contract, particularly in newsletters or other reports.
The above does not apply to any information that is in the public domain or of which Scalefactory already has knowledge when it is released by the Client, and no longer applies if the information falls into the public domain at any time without any breach of the foregoing provisions on the part of Scalefactory or when Scalefactory can prove that it obtained this information from a third party who did not breach any duty of confidentiality.
Article 13 – Data
Scalefactory and the Client will comply with the European Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”).
Scalefactory’s processing of personal data is subject to a data processing agreement.
The Client agrees and accepts that Scalefactory may collect and process non-personal data (including anonymized, aggregated and/or statistical data).
Article 14 – Non-sollicitation
The Client undertakes not to solicit, directly or indirectly, personnel of Scalefactory, without the prior express and written agreement of Scalefactory. This non-solicitation obligation is valid for the duration of the Contract and for 18 (eighteen) months after its expiration or termination, for whichever reason.
Where this obligation is not honoured, the Client shall be liable for compensation amounting to 36 (thirty-six) months of the gross salary that the solicited employee was receiving at the time he/she was solicited.
Article 15 – Miscellaneous provisions
If possible, the provisions of the Terms and Conditions will be interpreted in such a manner as to be valid and enforceable. If a provision is found to be invalid or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted, and the invalid or unenforceable portion shall be deemed to be severed, without affecting the validity and enforceability of the other provisions.
Unless agreed in writing and in advance by Scalefactory, the Client is not allowed to transfer all or part of its rights to third parties. Third parties should be understood as also encompassing the companies related to the Client, such as branches, subsidiaries and parent companies.
The fact that either party does not require or delay the requirement of strict performance of the provisions of the Contract or does not exercise any right, power or remedy provided for in the Contract shall not constitute a waiver or waiver of their exercise.
Except as expressly provided in the Contract, it may only be amended or modified by a written agreement signed by each of the parties.
These Terms and Conditions and the Contract are governed by Belgian law. In case of any dispute as to the validity, interpretation or implementation thereof Scalefactory and the Client shall make every reasonable effort to settle it amicably. In the absence of an amicable settlement and unless otherwise required by law, any dispute shall fall within the exclusive jurisdiction of the courts of the district where Scalefactory is headquartered.