Terms and Conditions of Purchase

GENERAL

In these Terms and Conditions of Purchase (“Purchase Terms”):

1. “Affiliate” means any entity that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control of such party; ‘control’ for such purposes means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person or entity, whether through the ownership of voting securities, by contract or otherwise.

2. “Billing Agent” means an individual or a legal entity appointed by Customer to pay for Customer’s orders on its behalf.

3. “Customer” means an individual or a legal entity purchasing Product or Service directly from Kervalt.

4. “Individual Consumer” means an individual who purchases Kervalt Products, or is otherwise in a contractual relationship or deals with Kervalt in relation to Kervalt Products outside the scope of their trade, business, craft or profession.

5. “Kervalt” means Eliama & Otileo BV, a private limited liability company (besloten vennootschap) incorporated under the laws of Belgium, with its registered office in Belgium, registered under VAT number BE0785992879.

6. “Product” means any software program or service made available by Kervalt, such as the Understand, Connect and Control engines and the Kervalt platform, unless otherwise expressly stated in these Purchase Terms. The use of Product by Customer is governed by the applicable Terms of Use.

7. “Kervalt Website” or “Site” means any website that is the property of Kervalt, including but not limited to everything hosted under the kervalt.eu domain.

8. “Services” means professional, support, training, onboarding or other services offered in relation to Products for a separate fee.

9. “Terms of Use” mean the terms and conditions of end-user license agreement, subscription terms, terms of service, or other standard customer agreements set forth by Kervalt and applicable to Product or Service in addition to these Purchase Terms, including the Kervalt Account Agreement.

10. “Privacy Notice” means the Kervalt Privacy Notice, which may be updated from time to time.

11. “Personal data” means any information relating to an identified or identifiable natural person.

Customer accepts these Purchase Terms by placing an order for Product or Service with Kervalt. For orders placed by email or through the Kervalt Website, the entity with which Customer is contracting is Eliama & Otileo BV as identified on the order confirmation or invoice. Orders placed by Customer with a Kervalt reseller or partner are subject to the terms and conditions of purchase set forth by that reseller or partner.

ORDER PLACEMENT AND ACCEPTANCE

Customer may place an order with Kervalt online on the Kervalt Website, through the Kervalt Portal, or by email using the contact information on the Kervalt Website. Order details shall be in English or Dutch. Customer can modify order details before acceptance of Customer’s order by Kervalt by submitting a written notice to Kervalt.

Any order is not binding upon Kervalt until accepted by Kervalt. Non-acceptance of an order may be the result of one of the following:

1. failed payment;
2. growing backlog or negative payment history;
3. incomplete or incorrect order details, such as missing email address for delivery, missing Customer billing address, or a pricing or product description error, among others;
4. ineligibility according to the order criteria (e.g. entitlement to certain Product or purchase options restricted to particular users or purpose of use); or
5. for any reason at the sole discretion of Kervalt.

Any additional or conflicting terms on an order will not apply unless specifically agreed to in a separate written agreement signed by Kervalt.

PRICES AND PAYMENT TERMS

Kervalt sets the prices for Products and Services in EUR (€) unless otherwise agreed in writing. Current list prices are published on the Kervalt Website; custom quotes are confirmed in writing before acceptance of an order.

Kervalt accepts major debit and credit cards (collectively, “Payment cards”) for online orders via third-party payment gateway providers. Kervalt is not responsible for any (i) payment failure resulting from inaccurate Payment card details provided by Customer when placing an online order, (ii) any restrictions applicable to Payment card by Customer’s bank or payment service provider, (iii) payment gateway failure, or (iv) misuse, abuse, unauthorized use, or fraudulent use of Payment cards.

In relation to payment by card or any other form of payment agreed in writing with Kervalt on a monthly, quarterly, or annual basis (“Recurring Payments”), by purchasing a Product or Service requiring regular payments, Customer authorizes Kervalt to charge Customer’s Payment card automatically at the interval and in the amount selected by Customer based on the available options during the purchase process. Customer agrees that the Payment card specified by Customer for Recurring Payments is, and will continue to be, an account that Customer owns or is otherwise legally authorized to use, and that Customer will maintain sufficient availability under Customer’s credit card limit, or sufficient funds in the account linked to Customer’s debit card, as applicable, to make Recurring Payments. Customer can cancel Recurring Payments at any time via the Kervalt Portal or by written notice to Kervalt prior to the next Recurring Payment due date. If Customer cancels Recurring Payments after this time, the cancellation will not take effect until the following Recurring Payment due date, and no refund or partial refund will be issued to Customer by Kervalt.

In relation to other forms of payment from Payment cards, Kervalt will only accept orders from existing business Customers that have no outstanding payments past due. In such a case, orders can only be paid by wire transfer on net 30 days terms (payable within 30 days from the date of the invoice), unless otherwise specified by Kervalt. Orders from newly registered business Customers are subject to advance payment by wire transfer. Kervalt may, upon reasonable request, disclose and verify its bank details in writing.

Customer may choose to appoint a Billing Agent to pay for orders placed by Customer, on its behalf. In such a case, Customer remains Kervalt’s sole contractual counterparty, with rights and obligations as set out in these Purchase Terms and applicable Terms of Use.

PRODUCT DELIVERY

Kervalt ships no physical Products. Access to the purchased Product or Service is provisioned to Customer’s organization in the Kervalt Portal, and any details necessary to enable Customer to use the purchased Product or Service will be delivered by Kervalt to Customer via email to the email address provided by Customer. Customer is responsible for providing Kervalt with a valid email address for delivery purposes.

Kervalt will use its commercially reasonable efforts to deliver Product or Service purchased by Customer within 2 business days of the order acceptance, unless otherwise provided by any agreement between Kervalt and Customer. Kervalt shall not be liable for any failure to deliver Product or Service within this timeframe.

Products or Services shall be deemed delivered to Customer on the date when Kervalt makes the Product or Service available in the Customer’s Kervalt Portal or sends a delivery email to the email address provided by Customer. Kervalt shall not be liable for any failure to deliver Product or Service to Customer due to non-delivery of an email message.

TAXES AND DEDUCTIONS

Product and Service prices do not include any national, state, or local sales tax, use tax, value added tax (VAT), goods and services tax (GST), digital services tax (DST), or other tax (“Local Tax”). If a purchase is subject to any Local Tax, that Local Tax can be added to the invoice.

If there is a possibility to issue the invoice without Local Tax, Customer is obliged to provide Kervalt with a valid Local Tax number (e.g. VAT ID) or valid exemption documentation.

Customer bears the sole responsibility for any withholding tax liabilities, and no deductions shall be made by Customer from the amount payable to Kervalt under any invoice.

Any correction to an invoice for tax reasons (in particular based on the provision of Customer’s Local Tax number) shall be requested by Customer by the 7th day of the month following the month when the affected invoice was issued, at the latest, unless otherwise specified by the applicable local laws.

TEMPORARY SUSPENSION FOR NON-PAYMENT

If Customer fails to pay any amount on time under these Purchase Terms and the applicable Terms of Use, or any other agreements Customer entered into with Kervalt, Kervalt reserves the right to, at its sole discretion, suspend Customer’s access to all Kervalt Products or performance of Services until such time as Kervalt is satisfied that all payments have been made or terminate the Terms of Use, in the manner specified in the applicable Terms of Use.

If Kervalt suspends Customer’s access to Kervalt Products or performance of Services for any failure to, or delay in, payment of any amount, Customer must pay the entire outstanding amount in order to restore its access to Kervalt Products or performance of Services. During any period of suspension, Customer hereby agrees that Kervalt is entitled to charge Customer for the entire period for which Customer has placed an order for subscription to Kervalt Products or Services.

TERMINATION FOR BUSINESS REASONS

Kervalt may, at its discretion for legitimate business reasons and notwithstanding anything to the contrary in the applicable Terms of Use or any other agreement, terminate the provision of any Product or Service, in whole or in part (including within a specific geographic region or for specific license types), where Kervalt decides to cease doing business in a relevant market or for other legitimate business reasons, including but not limited to strategic, legal, or regulatory considerations.

Kervalt will provide at least thirty (30) days’ notice of such termination via the contact information provided by Customer. Such termination may be implemented in stages and may apply to different Products, Services, or license types. At Kervalt’s option, such termination may either: (i) allow existing subscriptions to continue until the end of their current term, without renewal; or (ii) terminate subscriptions prior to the end of the applicable term.

Kervalt will use commercially reasonable efforts to minimize disruptions to Customer resulting from such termination. Where applicable, Kervalt will allow Customer a limited period to access and export their data in accordance with the relevant Product capabilities and documentation.

Where a paid subscription is terminated prior to the end of its term under this section, Customer will be entitled to a pro-rata refund of any prepaid, unused fees. However, no refund shall be payable where such payment is prohibited by Export Control Laws or other applicable regulations, except where such limitation is not permitted under applicable mandatory law, including laws protecting Individual Consumers. For the avoidance of doubt, this provision does not affect any other refund limitations applicable to recurring billing cycles unless termination occurs prior to the end of the relevant subscription term under this section. No refund will be provided where the subscription is allowed to continue until the end of its current term.

Nothing in this section limits any mandatory rights of Individual Consumers under applicable law.

REFUND, WITHDRAWAL AND SUPPORT

Any refund request following the Product or Service purchase date will be subject to prior authorization by Kervalt, and acceptance of such request shall be at the sole discretion of Kervalt, unless otherwise provided by applicable law.

Any Customer in the position of an Individual Consumer has the right to withdraw from the Product or Service purchase contract within 14 days without giving any reason. The withdrawal period will expire after 14 days from the day of purchase (the day of conclusion of the contract). To exercise the right of withdrawal, Customer must inform Kervalt of the decision to withdraw from the purchase by an unequivocal statement (e.g. a letter sent by post or email, or a message to support@kervalt.eu). To meet the withdrawal deadline, it is sufficient to send the communication concerning exercise of the right of withdrawal before the withdrawal period has expired.

Kervalt shall reimburse to Customer in the position of an Individual Consumer all payments received, without undue delay and in any event not later than 14 days from the day on which Kervalt is informed about the decision to withdraw from the purchase. Kervalt will carry out such reimbursement using the same means of payment as the particular Customer used for the initial transaction, unless such a Customer has expressly agreed otherwise; in any event, Customer will not incur any fees as a result of such reimbursement.

If a Product or Service shows any defects or does not function properly, Customer may contact Kervalt via the Kervalt Support Center or by email at support@kervalt.eu.

Any Customer in the position of an Individual Consumer has the right to request:

1. that any defect be removed without undue delay free of charge;
2. if the removal is not possible, an appropriate discount corresponding to the actual malfunction of the Product or Service.

The above Individual Consumer rights are applicable only in respect to any defects or malfunctions existing at the time of the Product or Service purchase, even if apparent later. Customer in the position of an Individual Consumer is entitled to assert their rights arising from a defect within twenty-four months of the purchase. If a defect occurs within six months, the Product or Service is presumed to have already been defective upon purchase.

EXPORT CONTROL

Customers shall comply with all applicable laws and regulations with regards to economic sanctions; export controls, import regulations and trade embargoes (collectively “Export Control Laws”), including those of the European Union, United States, and the territory of Customer’s residency. Customer acknowledges that it is not an entity targeted by Export Control Laws nor is it otherwise owned or controlled by or acting on behalf of any person targeted by Export Control Laws. Further, Customer agrees to ensure that neither Kervalt Products nor any related technical information, are:

1. downloaded, transferred, exported, or re-exported directly or indirectly in violation of Export Control Laws; or
2. used for any purpose prohibited by Export Control Laws, including but not limited to nuclear, chemical, or biological weapons proliferation; or
3. exported to restricted and/or embargoed destinations, prohibited end-user(s); and/or
4. used to participate in prohibited end-use and/or proliferation activities.

Kervalt will not be liable to Customer for any failure to provide Product or Service, as a result of any government action that Kervalt reasonably believes may adversely impact its obligations under these Purchase Terms, its business, or its reputation.

INTELLECTUAL PROPERTY

All right, title and interest in and to the Kervalt platform, the Understand, Connect and Control engines, all software, models, the pre-training methodology and implementation toolkit, documentation, and all improvements thereto, are and remain the exclusive property of Kervalt or its licensors. Except for the rights expressly granted in these Purchase Terms and the applicable Terms of Use, no right, title or interest is transferred to Customer.

Implementation and pre-training. Configurations, skills, connectors and other setup artifacts produced by Kervalt during the implementation (“pre-training”) for Customer’s organization are licensed to Customer for its own internal use for as long as Customer holds an active subscription. Kervalt retains ownership of the underlying platform, templates and generic know-how embodied therein, and may reuse generic improvements across customers.

Customer data. As between the parties, Customer (or its licensors) owns all documents, files, queries and other content that Customer uploads to or connects with the Products (“Customer Data”). Customer grants Kervalt only the rights to Customer Data that are necessary to provide, secure and support the Products and Services.

No training on Customer Data. Kervalt does not use Customer Data, including documents and queries, to train or improve any model without Customer’s explicit prior consent.

Feedback. If Customer provides feedback, suggestions or ideas about the Products, Kervalt may use them freely, without obligation or compensation.

CUSTOMER DATA AND EXIT

Kervalt processes Customer Data solely to provide the Products and Services, on documented instructions from Customer, and in compliance with applicable data protection law, including the GDPR where applicable. Where Kervalt processes personal data contained in Customer Data on Customer’s behalf, Kervalt acts as processor and Customer acts as controller; a data processing agreement is available on request at legal@kervalt.eu.

Customer Data is hosted in the European Union. Access is limited to authorized personnel, is logged in the audit log available in the Kervalt Portal, and Kervalt maintains administrative, technical and organizational measures appropriate to the risk.

Upon termination or expiry of the subscription, Customer may export its Customer Data through the Kervalt Portal or the Products’ API for thirty (30) days after the end of the term. After that period Kervalt will delete Customer Data within a commercially reasonable period, except copies retained in routine backups (for a maximum of thirty (30) days) and records Kervalt is required to keep by law, such as invoices.

MISCELLANEOUS

No terms and conditions other than the terms and conditions contained herein shall be binding upon Kervalt, unless explicitly accepted by Kervalt in writing and signed by a duly authorized representative of Kervalt. If Customer’s terms and conditions of purchase are different from, or are in addition to, these Purchase Terms, these Purchase Terms shall prevail and Customer’s terms are hereby rejected, unless otherwise explicitly agreed in writing with Kervalt.

These Purchase Terms are subject to change at any time by Kervalt by posting the updated Purchase Terms on the Kervalt Website.

Customer declares having had sufficient opportunity to review these Purchase Terms, understood the content of all of their clauses, and sought independent professional legal advice in that respect, before accepting these Purchase Terms. Consequently, any statutory “form contracts” (“adhesion contracts”) regulations shall not be applicable to these Purchase Terms.

Nothing in these Purchase Terms limits any rights Customer in the position of an Individual Consumer might have under applicable consumer protection laws.

These Purchase Terms shall be governed by the laws of Belgium, without reference to conflict of laws principles, and the parties agree that any litigation relating to these Purchase Terms may only be brought in, and shall be subject to the jurisdiction of, the competent courts of Belgium, unless provided otherwise by applicable consumer law. Any disputes between Kervalt and an Individual Consumer can be settled out of court through the extrajudicial dispute resolution entity.

The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Purchase Terms.

Kervalt reserves the right (and Customer grants its consent with it) to assign or otherwise transfer the agreement based on these Purchase Terms or any rights or obligations under these Purchase Terms, in whole or in part, without further Customer’s consent to any Kervalt Affiliate. If the foregoing is in breach of applicable consumer laws, Individual Consumers have the right to terminate their contract with Kervalt.

PERSONAL DATA

In connection with purchase of Products and Services by Customer, Kervalt and Kervalt Affiliates will process Customer’s Personal data, in particular, Customer’s contact and identification details and information about Customer’s subscription and payments, for the following purposes:

1. To provide Customer with software services or information;
2. To protect Kervalt from piracy and unlawful use of Kervalt software or services;
3. To improve Kervalt offerings based on usage;
4. For internal evidence of Kervalt and to protect the rights and interests of Kervalt and other users;
5. To promote and market Kervalt software and services to the Customer; and
6. To fulfil legal duties stipulated by accounting, taxation, and other laws.

Customer may object to processing of Customer’s Personal data for the purposes 2 to 5 above at any time. More detailed information about personal data processing for the above mentioned purposes and about Customer’s rights can be found in the Privacy Notice.

For the above purposes, Kervalt may process information including but not limited to Customer’s name, email address, username, physical address, telephone number, payment data, company name, and tax identification number where applicable.

Transfer of Personal data to third parties: Kervalt is responsible for the handling of Customer’s Personal data by such third party. Personal data collected from Customer is transferred to:

1. a third-party payment provider to process payment transactions;
2. a third-party cloud accounting service;
3. resellers or partners who are handling purchases of Kervalt products in a certain region: information about the reseller obtaining Customer’s Personal data is indicated to Customer before the transfer is made; or
4. other representatives of the same Customer.

Kervalt may communicate with Customers by sending them emails aiming to help avoid interruption of a service. Such examples include but are not limited to:

1. payment reminders;
2. debt reminders;
3. subscription expiration reminders;
4. license delivery and confirmation emails;
5. payment method expiration reminders for methods saved for automatic payments;
6. purchase follow-ups requesting information about Customer’s company for enhancement of customer service;
7. license assignment emails;
8. administrator invitation emails; and
9. purchase administration requests.

For any questions regarding these Purchase Terms, please contact us at legal@kervalt.eu.