Terms & conditions

This version is in effect since April 26, 2016

By and between

1. INTUO NV, a limited liability company incorporated under the laws of Belgium, with registered office at Ottergemsesteenweg Zuid 808, Box 336, 9000 Ghent, Belgium, registered with the Crossroads Bank for Enterprises under company number 0541.977.305, RLE Ghent (“Intuo”);

And the customer

2. , incorporated under the laws of Belgium, with registered office at CUSTOMER ADDRESS The parties listed under (1) and (2) may individually be referred to as a “Party” and jointly as the “Parties”. This Agreement sets forth the terms and conditions governing Intuo’s performance of the services described herein.

Preambule

Whereas Intuo has developed and designed an online performance management system named “Intuo”. Whereas Parties have concluded a “Platform License and Software Agreement” dd. with regard to the use by Customer of the Intuo platform (the “Software Agreement”) and will develop content for their Virtual Learning Environment. Whereas the Customer would like Intuo to provide additional services as described in this Agreement with regard to the Intuo platform. Whereas the Parties would like to formalize the terms and conditions of their contractual relationship with regard to the Services in this Agreement.

1. Services and Statement of Work

Statement of Work. Intuo shall provide, under the provisions of this Agreement, the services, which are mutually agreed upon and described on the Statement(s) of Work (hereinafter “SOW”) to this Agreement (the “Services”). A form of the SOW is attached hereto as “Schedule 1”. All work to be performed by Intuo under this Agreement shall be documented in a SOW signed by authorized representatives of both Parties, in substantially the form attached hereto as “Schedule 1”. Each SOW shall be effective, incorporated into and form a part of this Agreement when duly executed by both Parties. If there is a conflict between this Agreement and any SOW, the terms of the SOW shall govern the provision of the Services involved.

Changes in scope – Change control. Either Party may request changes to a SOW or the Services by submitting a written request form to the other Party in a form to be agreed between the Parties. The Parties shall cooperate and negotiate in good faith to reach agreement on the specifics of the requested change, including the scope and nature of the requested change, the impact on the SOW the related Services Fees (as defined hereafter) and the time period in which such change will be implemented. The Customer will respond within (ten) 10 calendar days of receipt of a quote from Intuo. Neither Party shall be bound by a requested change request until approved in writing by both Parties. Acceptance. If the SOW specifies deliverables that are subject to acceptance, Intuo shall provide deliverables as set forth in the project plan and the Customer shall accept or reject such deliverable in writing within five (5) calendar days after receipt of the deliverable. In the event the Customer fails to accept or reject the deliverable within this period, the deliverable shall be deemed accepted.

2. Fees

Fees. For all Services performed by Intuo, the Customer will pay Intuo the fees that are contemplated under the SOW (the "Service Fees"). Taxes. The Service Fees exclude value added tax, sales tax, use tax, service tax, all other duties and/or taxes or other similar charges imposed on Intuo or the Customer by any tax authority (other than taxes imposed on Intuo’s income) which shall be charged separately by Intuo and paid by the Customer. All such charges, duties and/or taxes shall be identified in the invoice as a separate item. Expenses. The Customer agrees to pay for reasonable out-of-pocket costs and expenses (including but not limited to travel, hotel and other business related expenses) incurred in performing the Services, provided that Intuo has submitted supporting documentation of such expensesthese were pre-approved by Customer.

Invoices – Payment Terms For time and material engagements, Intuo will invoice the Customer monthly in arrears for Services performed by Intuo and expenses incurred. For fixed price arrangements, Intuo will invoice 50% of the Service Fees upon start of the Services and the remainder 50% upon completion of the Services. Invoices are payable in euro within thirty (30) calendar days from the invoice date. If the Customer fails to pay any sums when due Intuo shall be entitled to interest on the amount due compounded daily at the rate of 1,50% per month calculated from date due and shall also be entitled to recover all costs including reasonable expenses, legal fees and cost of collection. Without prejudice to any other rights or remedies Intuo may have, in the event the Customer fails to pay any undisputed amount within fourteen (14) calendar days of the due date for payment, Intuo may suspend performance of its obligations under this Agreement without incurring any liability whatsoever until such payment is made.

Disputes of Invoices. In the event the Customer disputes any portion of an invoice, the Customer shall notify Intuo of such disputed amount and the basis for the Customer’s dispute within fifteen (15) calendar days from the invoice date (failure of which shall result in the invoice being deemed accepted by the Customer), together with any appropriate information supporting the Customer’s position, and the undisputed portion shall be paid as provided herein. Without prejudice to any other rights or remedies Intuo may have, in the event the Customer fails to pay any undisputed amount within fourteen (14) days of the due date for payment, Intuo may suspend performance of its obligations under this Agreement without incurring any liability whatsoever until such payment is made.

3. Work policy/personnel

Project management. For each SOW, Intuo shall designate a project manager (the “Project Manager”) to serve as the main contact between Intuo and the Customer. The scope and specific conduct of Intuo's Services should be consistent with the SOW, and coordinated with the Customer at all times.

Qualified personnel. Intuo shall assign employees or contractors (which may include the Project Manager) to perform the Services under each SOW that it has determined, in its sole discretion, arebeing qualified to perform all necessary tasks. Intuo shall cause such employees/contractors (the “Personnel”) to devote sufficient time to perform the Services under any SOW as necessary to timely complete all deliverables. Intuo shall use its best efforts to ensure the continuity of Personnel assigned to perform the Services under any SOW. Status Reports. On a periodic basis, or as specified or applicable in the SOW, Intuo will submit written status reports describing its activities during the preceding period. Where feasible, and upon request, Intuo will meet with Customer’s managementto review the status of Intuo's activities.

Customer’s resources. The Customer shall provide working space, resources and materials to the extent specified on the SOW as necessary for completion of the Services.

Independent Contractor Status. The Parties acknowledge and agree that: Intuo shall exercise its activities and use its powers in an independent and autonomous way as an expert ICT developer and service provider; Intuo’s Personnel shall work exclusively under the authority and supervision of Intuo. There shall be no direct employment relationship whatsoever between the Customer, the Customer’s affiliates and their respective agents, officers, employees, directors and shareholders (and persons holding comparable positions), on the one hand, and Intuo, Intuo’s affiliates and their respective agents, officers, employees, directors and shareholders (and persons holding comparable positions), on the other hand. The Personnel shall in all circumstances remain under the hierarchic and disciplinary responsibility of Intuo, who is only authorized to issue directives and instructions to the Personel, except if otherwise foreseen in this Agreement or Schedule 2 hereto;

No provisions of this Agreement shall be construed as meaning that (i) the Personnel are employees of the Customer or that (ii) Intuo puts Personnel at the disposal of the Customer with a transfer of employer’s authority to the Customer within the meaning of the Law of 24 July 1987. The Customer is only entitled to give instructions to the Personnel of Intuo if undeniable necessary for the proper performance of this Agreement and/or the SOW and in so far as these instructions are plainly provided in Schedule 2. This constitutes an essential element of the contractual relationship, in the absence of which the Parties would not have reached this Agreement;

Being the sole employer of and solely responsible for the Personnel, Intuo shall observe and perform all employer’s obligations in respect of the Personnel both with regard to employment legislation and tax and social security laws, or any other compulsory provisions. In its capacity as the sole employer, Intuo alone may sanction or dismiss any Personnel; and Intuo assumes sole and full responsibility for the acts of its Personnel and Intuo and its Personnel have no authority to make commitments or enter into contracts on behalf of, bind or otherwise obligate the Customer in any manner whatsoever. Intuo, and not the Customer, is solely responsible for the compensation of Personnel assigned to perform any Services hereunder, and payment of worker's compensation, disability and other similar benefits, unemployment and other similar insurance and for withholding income and other taxes and social security.

4. Working environment

Working Environment. If the Services are performed on the Customer’s premises, the Customer is responsible for providing access to and allowing the use of a proper working environment within its premises, in order to allow Intuo to fulfill its obligations. A proper working environment means: respect of safety regulations, offices and means of communication made available, as well as any other necessary facilities. All such facilities and offices must be fully compliant with the applicable regulations in force. Intuo may suspend its Services if and as long as it reasonably believes that the conditions in which the representatives are expected to perform Services represent a safety or health hazard to any of the representatives.

5. Intellectual Property Rights

Existing intellectual property rights. The Customer acknowledges that ownership of and title in and to all Intuo intellectual property that exists as of the Effective Date, including patent, trademark, service mark, copyright, and trade secret rights (hereinafter “Intuo IP”), will remain with Intuo. Unless otherwise specified in the SOW, ownership of and title in and to all Intuo IP, and all derivative works based on Intuo IP, will remain with

Intuo. The Customer acquires only the right to use the Intuo IP, during the term of the Agreement, as provided by Intuo in connection with the Services being provided to Customer by Intuo. Company, however, shall not acquire any proprietary rights to such Intuo IP by virtue of this Agreement.

Newly created intellectual property rights. Subject to payment in full of the Service Fees specified herein, the Customer shall have exclusive, unlimited ownership rights to all deliverables created by Intuo as part of the Services and paid for by Customer pursuant to such SOW developed specifically for Customer collectively, “Newly Created IP”). Notwithstanding anything herein or in the SOW to the contrary, Customer’s ownership rights shall apply to all Newly Created IP, whether completed or otherwise. For any partially completed Newly Created IP, Customer shall pay for such deliverables on a pro rata basis based on the percentage of work performed under the relevant SOW. All Newly Created IP shall be considered works for hire and made in the course of Services rendered and shall belong exclusively to Customer, with Customer having the sole right to obtain, hold and renew, in its own name and/or for its own benefit, patents, copyrights, registrations and/or other appropriate protection.

Third Party Intellectual Property. Except with the written approval of the third party, Newly Created IP shall not include any pre-existing works of authorship of a third party (“Third Party IP”) and title to and ownership of such Third Party IP shall not be deemed to be conveyed to Customer. Residual Rights. Notwithstanding anything to the contrary above, Intuo will be free to utilizeutilise any concepts, know how, techniques, improvements or methods which it may discover or adapt in the performance of the Services for Customer subject to any Intuo’s obligations with respect to the care and use of Customer Confidential Information (as defined in Section 7 below). For the avoidance of doubt, Intuo’s residual rights under this Section 5.4 include Intuo’s right to use the concepts, know how, techniques, improvements or methods which Intuo may discover or adapt in the creation of any Newly Created IP but such residual rights shall not include the use of any Newly Created IP itself or any Customer Confidential Information.

6. Warranties

Intuo shall fulfill its obligations in relation to the performance of the Services using reasonable care and skill and in accordance with good industry practice.

Save as expressly provided in this Section 6, all other conditions, warranties, terms, undertakings and representations of any kind whatsoever, express or implied, whether by statute, common law or otherwise, in respect of the Services are hereby excluded by Intuo to the fullest extent permitted by law and Intuo shall have no other obligation, duty or liability whatsoever in contract, tort, statute or otherwise to the Customer.

7. Confidentiality

Each Party shall protect against any unauthorized disclosure of the information and data of the other Party (or its agents or subcontractors) which is indicated to be confidential or proprietary or which by its nature is confidential or proprietary (“Confidential Information”) by using the same degree of care as it takes to preserve and protect its own confidential information but in no event shall this be less than a reasonable degree of care.

The receiving Party agrees that disclosure and receipt of the Confidential Information shall oblige the receiving Party not to use (and to procure that its employees, agents, representatives and any other third parties do not use) the Confidential Information except to perform its obligations hereunder.

A receiving Party shall not be required to treat as confidential any information, which is already in its possession, which becomes publicly available other than as a result of any breach of this Agreement by the receiving Party, which is independently developed by it, or which is lawfully obtained from any third Party without restriction on disclosure. Nothing in this Section shall prevent a Party from disclosing Confidential Information where finally ordered to do so by a court or a statutory or regulatory body with power to order such disclosure.

8. Term and Termination

This Agreement shall commence as of the Effective Date and shall continue in full force and effect for a period of one 1 year from the end date specified in the latest executed SOW, including any extensions thereof.

Notwithstanding anything herein to the contrary, either Party may terminate this Agreement and/or SOW upon sixty 60 calendar days written notice. The Customer agrees to pay Intuo for Services performed up to the effective date of termination, at the agreed upon rates set forth in the applicable SOW. Notice of termination of any SOW shall not be considered notice of termination of this Agreement unless specifically stated in the notice.

Without prejudice to any other rights or remedies which either Party may have against the other for the breach or non-performance of any of the terms of this Agreement, the whole or any part of this Agreement may be terminated by either Party forthwith on notice in writing to the other Party: (i) if the other Party commits a material breach of this Agreement which either cannot be remedied or is not remedied within thirty (30) calendar days after written notice requiring that it be remedied; or (ii) if the other Party enters into liquidation, receivership, bankruptcy or other insolvency procedure, whether compulsorily or voluntarily, or the Party is unable to pay its debts within the meaning of the applicable laws of the jurisdiction other than for the purposes of reconstruction or amalgamation.

Upon termination of this Agreement the Customereach Party shall return to Intuothe other Party all information and property (and all copies thereof) on any media belonging to Intuothe other Party or received from any third party by Intuothe other Party which is in the Customer’ssuch Party’s possession or under its control and shall confirm in writing to Intuothe other Party that it has complied in all respects with this Section.

9. Limitation of Liability

Subject to Section 9.2 and 9.3 below, the aggregate liability of Intuo to the Customer arising out of any act, omission, event or circumstance or series of acts, omissions, events or circumstances relating to this Agreement or with respect to the matters contemplated herein shall in no circumstances exceed anthe higher amount equal to 100% of 10.000,00 EUR and (ii) the Service Fees (excl. taxes and expenses) paid to Intuo by the Customer under a SOW during the preceding twelve (12) month period preceding the event giving rise to Intuo’s liability. Nothwithstanding anything to the contrary set out in the Agreement, Intuo shall not be liable towards the Customer for any indirect, consequential, punitive, or special damages arising pursuant to this Agreement, including loss of revenue or profits, loss of business, contracts, goodwill or anticipated savings, damages due to business interruption, loss oor corruption of data or reputational damage. Nothing in this Agreement shall operate to exclude or restrict a Party’s liability for: (i) death or personal injury resulting from its negligence; (ii) fraudulent misrepresentation; or (iii) any other liability to the extent prevented from being excluded by applicable law.

10. General

Assignment. The Customer may not assign any rights or obligations under this Agreement without the prior written consent of Intuo, such consent not to be unreasonably withheld or delayed. Intuo may assign this Agreement to any affiliate, parent or subsidiary of Intuo. Subcontracting. Intuo shall be entitled to subcontract delivery of the Services to its affiliates and to individual consultants engaged by Intuo pursuant to a professional services agreement, without having to obtain the Customer’s prior consent. Amendment. This Agreement may be amended or modified only by written agreement of a duly authorized representative of both Parties Counterparts. This Agreement and the SOW may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

Entire Agreement; Severability; Waiver, Survival. This Agreement, including any Schedules and SOW’s hereto constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements, whether oral or written, with respect to such subject matter. If a provision of this Agreement is determined to be invalid or unenforceable, this shall not affect the remaining provisions which remain valid or enforceable. Any failure to enforce any provision of the Agreement shall not constitute a waiver thereof or of any other provision. The provisions of this Agreement which are expressly or implicitly intended to survive termination of the Agreement, shall survive any termination or expiration of this Agreement.

Governing Law and jurisdiction. This Agreement shall be exclusively governed by and construed in accordance with the laws of Belgium without regard to its conflict of law principles. Any dispute arising hereunder which cannot be amicably settled between the Parties within a reasonable period from the dispute arising, shall be submitted to the exclusive jurisdiction of the courts of Ghent. Non-hiring During the term of this Agreement and for a period of one (1) year following its expiration or termination, the Customereach Party shall not, either directly or indirectly, solicit or hire, nor set up business with any employee or contractor of Intuothe other Party for the purposes of hiring or causing such employee or contractor to terminate his or her relationship with Intuo.the other Party In the event the Customera Party breaches the previous paragraph, Customerthis Party shall pay Intuothe other Party an amount equal to twelve (12) times the gross salary or fees, as the case may be, that individual earned with Intuothe other Party in the last full month the individual worked for Intuothe other Party. Notices.

All notices under this Agreement shall be in writing and in English and addressed to the Parties as follows:

If to Intuo: Sales/support | INTUO NV | Ottergemsesteenweg 808, 9000 Gent

If to the Customer: Customer | Address

Any address for notice may be changed from time to time by notice in writing from the appropriate Party. All notices required or allowed to be given hereunder shall be deemed to have been given when actually received by the addressee thereof, it being understood that notices shall generally be sent by hand delivery (including international courier service), facsimile service, recorded delivery post or registered mail with return or confirmed receipt requested or by some other method chosen by the Party sending the notice which shall require proof of receipt of such notice. The burden of proving receipt shall be on the Party sending the notice.

Schedule 1 – Statement of Work n° 2016 / 92

This Statement of Work dated [DATE] (the “SOW”) is concluded between INTUO NV, a limited liability company incorporated under the laws of Belgium, with registered office at Ottergemsesteenweg Zuid 808, Box 336, 9000 Ghent, Belgium, registered with the Crossroads Bank for Enterprises under company number 0541.977.305, RLE Ghent (“Intuo”) and [customer], a limited liability company incorporated under the laws of Belgium, with registered office at CUSTOMER ADDRESS, (“Customer”) pursuant to the Master Services Agreement between Intuo and the Customer dated 26/04/2016 (the “Agreement”).

Customer dependencies and assumptions

This Statement of Work, including the timeline and fees specified herein, is subject to the Customer fulfilling its obligations in a timely manner, in particular:

  • Prior to the start of this SOW, the Customer will indicate to Intuo in writing a person to be the point of contact.
  • The Customer will provide access to and use of information, data, facilities, equipment, and internal resources as reasonably necessary to deliver the Services.
  • The Customer will make available all the appropriate staff to participate in meetings, provide follow- up information and/or feedback.

In the event the Customer fails to fulfil any of its obligations hereunder, the timeline and fees may be impacted.

Intuo engagements

The Personnel is specifically skilled and has a substantial expertise for delivering the Services. If the Customer has reasons not being satisfied with the performance, the Customer may ask for either a replacement or termination of the Agreement without prior notice. The Personnel will report in writing on a monthly basis to the Customer directly about achievements, issues and further planning. The Customer shall provide Intuo with a detailed template indicating all elements the Customer expects to be reported. The Customer acknowledges that such reports shall be provided on a time and materials basis at the rates set forth herein. Intuo will establish an hour registration including information of the main activities per day, to be attached to the invoice provided by Intuo. Parties shall negotiate in good faith the appointment of a member of the Personnel who shall be full time available for the performance of the

Services to the Customer.

The Personnel will not perform activities that are covered by Intuo’s other engagements towards the Customer under the Software Agreement dd. 18 March 2016. In such case, the hours charged as such will be deducted twice. Re-occurence is subject to instant termination of the SOW by the Customer without compensation to Intuo.

Fees, Invoicing and Payment

The Services shall be performed on a time and materials basis at the rates set forth herein. In addition, Intuo shall bill the Customer for expenses incurred by Intuo in performing the Services, in accordance with the terms of the Agreement. Intuo shall submit invoices to the following address: Ottergemsesteenweg 808, 9000 Gent

Locations

The Services shall be performed at/from the following location(s): Ottergemsesteenweg 808, 9000 Gent

Schedule 2 – Customer’s instructions

Pursuant to the Master Services Agreement dated between INTUO NV, a limited liability company incorporated under the laws of Belgium, with registered office at Ottergemsesteenweg Zuid 808, Box 336, 9000 Ghent,Belgium, registered with the Crossroads Bank for Enterprises under company number 0541.977.305, RLE Ghent (“Intuo”) and , registered office at CUSTOMER ADDRESS, (the “Agreement”) this Schedule contains additional provisions in respect of the proper performance of the Agreement by Intuo.

1. Pursuant to Section 3.5 of the Agreement, the Customer will not exercise any, wholly or partially, employer’s authority over the Personnel. The Customer is only entitled to give instructions to the Personnel for the proper performance of the Agreement, if undeniable necessary, and with respect to one of the items enumerated hereunder.

2. Parties acknowledge that the following instructions will be given by the Customer to the Personnel:

  • 2.1 Instructions regarding the practical and efficient realization of the Services, such as:
    • 2.1.1 The timing and planning of the realization of the Services;
    • 2.1.2 The organization and execution of the Services;
  • 2.2 instructions regarding day-to-day aspects of the realization of the Services, such as:
    • 2.2.1 The essential requirements that have to be met;
  • 2.3 instructions in respect of quality assessment of the Services:
    • 2.3.1 Feedback on the deliveries and timing.

These instructions will not be considered as exercising any employer’s authority. Parties explicitly agree that Intuo will remain the effective and sole employer of said Personnel, who shall work exclusively under the authority and supervision of Intuo.

3. Contact Persons Intuo appoints the following person as the Project Manager in relation to the performance of the Services: Sales/support . The Project Manager is responsible for the monitoring and coordination of the Services, as governed in the Agreement and SOW’s.