Please read fully and carefully these terms and conditions as well as Proxyclick’s privacy policy and cookie statement before using any of the Services.  They set forth the legally binding terms that govern the access to and use of the Services. For any questions or concerns, please contact info@proxyclick.com.

1. Definitions

In these Terms and Conditions, the following capitalized wording shall have the following meaning:

  • Proxyclick”: Proxyclick SA/NV, a company organized under the laws of Belgium, with its registered office at Rue Saint-Hubert 17, B‐1150 Brussels, Belgium, Register of Legal Entities Brussels, and listed in the Crossroads Bank for Enterprises under number 0863.261.693.
  • Client”: any legal entity that opens an account to receive a Service from Proxyclick.
  • "Location": the physical address that is linked to the account opened by the Client, where the Client is entitled to use the Services.
  • User”: any natural person authorized to use a Service on behalf of the Client.
  • Administrator User”: the person or persons appointed by the Client to manage the Client’s account, which have specific administrator functionalities, such as the possibility to create Users, define their rights and modify settings.
  • Service”: any of the web and mobile applications provided by Proxyclick in the form of Software-as-a-Service (SaaS) available online through the Site, and the underlying servers and software used to provide such applications. A detailed description of the Services can be found at proxyclick.com.
  • Trial Period”: as defined in section 3.3.1.
  • Client Subscription”: the plan selected by the Client that includes all or certain of the Services.
  • Agreement”: the contractual relationship between the Client and Proxyclick for the provision of a Service, including these Terms and Conditions, the Data Processing Agreement (“DPA”), the privacy and cookie policy, and all additional policies that are incorporated therein by reference, and any variations thereof or amendments thereto.
  • Business day”: Any day other than Saturdays, Sundays and public holidays in Belgium.
  • Intellectual Property Rights”: all copyrights, patents, database rights, confidential information, trademark rights, designs and models rights and/or any other intellectual property rights (whether registered or unregistered), including technical and/or commercial know-how, methods and concepts, whether or not patentable; applications for registration, and the right to apply for registration, for any of these rights; and all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world.
  • Site”: Proxyclick’s website at https://app.proxyclick.com

2. Binding agreement

2.1 Acceptance of terms

2.1.1. Proxyclick provides its Services subject to the Client’s acceptance of the Agreement.  By registering for and/or using a Service in any manner, the Client acknowledges that it has read, understood and agreed to be bound by this Agreement. If a person signs this Agreement on behalf of a company or legal entity, this person warrants that he/she has the authority to bind the company or any other legal entity or affiliate he/she represents.

2.1.2. If the Client registers for a Trial Period, this Agreement will also govern the Trial Period.

2.2 Modifications of terms

2.2.1.  Proxyclick reserves the right to unilaterally revise or update the Agreement from time to time, at its sole discretion.

2.2.2.  The Client understands and agrees that its continued use of a Service following the posting of any changes to the Agreement constitutes acceptance of those changes. It is the Client’s responsibility to check the Site regularly for changes. Proxyclick will also inform the Client of any modifications of the terms of this Agreement by using a website notice, email or any other form of communication. Changes will apply fourteen (14) business days after they have been published or notified, whichever comes first. 

If the Client does not agree to the changes, the Client can stop using the Service and cancel its account without charge within fourteen (14) business days after they have been published or notified, whichever comes first, in which case the Client will be entitled to a pro rata refund of the monthly or annual fee that would already have been paid. There is no possibility to continue to use a Service under the old conditions.

3. Provision of the services

3.1 Use of the services

3.1.1.  During the term of this Agreement, Proxyclick will provide the Client and the Users, a limited, revocable, non-exclusive, non-transferrable license to access and use the Services included in the Client Subscription, including but not limited to:

 

  • The use of the latest version of Proxyclick’s application(s) (including most recent upgrades) ;
  • An excellent customer service ;
  • The certainty one can expect from good hosting and maintenance ; and
  • The possibility of additional services, at an additional cost (which, if purchased, will become a “Service” under this Agreement).

3.1.2.  Each license starts from the date of purchase of a Client Subscription and is applicable for the duration of the Client Subscription. The Client must ensure that its use of a Service is in accordance with this Agreement.  If the Client subscribes for a Trial Period, a separate license is applicable for the duration of the Trial Period.

3.1.3.  Each type of license for a certain Client Subscription is restricted in terms of number of Users, functionalities and/or transactions, as mentioned clearly in the relevant description of the Client Subscription on the Site. The license is granted only for the sole purpose of using the Services under this Agreement and for the Client’s own lawful internal business purposes. Unless otherwise stated in writing, the license cannot be transferred or (sub-)licensed to any third party, in whole or in part, without the written prior approval of Proxyclick.

3.1.4.  Except for the rights of use and other rights expressly granted herein, no other rights are granted to the Client, either express or implied, and no obligation shall be implied requiring the grant of further rights. The Client expressly acknowledges that the use of a Service does not imply a transfer of any Intellectual Property Right to the Client. All Intellectual Property Rights and all derivative rights related to the Site and the Services continue to be retained by Proxyclick or its licensors.

3.2 Registration process

3.2.1.  In order to sign up for a Service, Proxyclick requires the Client to register on the Site. When the Client registers, a client account will be opened and the Client is required to provide its customary billing information such as name and billing address and to select a plan and a payment frequency. Depending on selected Client Subscription and payment frequency, a credit card number might be required as well.  The Client agrees to provide accurate and complete information when registering, and to keep this information up-to-date.  Proxyclick has the right to suspend or terminate the Client’s client account and to refuse any and/or all current or future use of the Service (or any part thereof), if any information is untrue, inaccurate, not up-to-date or incomplete.

3.2.2.  The Client and its Users are allowed to register and log in, using an email address and a password for authentication (the “Client Login Data”). The Client remains responsible for the confidentiality of the Client Login Data. The Client is fully responsible for all activities that occur using its account.

3.3 Free trial period

3.3.1.  The Client has the right to request (only) one (1) trial period free of charge per Location, in order to experience the features and functionalities of the Services prior to making a purchasing decision (the “Trial Period”). If the Client renews its account, the Client will not be eligible for another free Trial Period for the same Location. If Proxyclick discovers that the Client has registered several times for Trial Periods for a certain Location, Proxyclick reserves the right to restrict or terminate any of the Client’s client accounts in Proxyclick’s sole discretion and/or to refuse all current or future use of the Service (or any part thereof).

3.3.2.  During the Trial Period, Proxyclick makes its Services available to the Client with full access to all functionalities (excluding API and LDAP access) and full support. For Services used during the Trial Period, Proxyclick does not make any binding commitments or obligations in connection with the Services, as the Services are provided “as is” and “as available” during the Trial Period.

3.3.3.  The Trial Period starts from the creation of a client account, which is confirmed by an approval sent by Proxyclick to the e-mail address provided by the Client. The Trial Period is valid for thirty (30) days, unless the Client’s use of the Service is terminated earlier in accordance with this Agreement. As soon as the Trial Period expires, the Client’s access will be immediately terminated, except if a paid for Client Subscription is opened.

3.3.4.  Proxyclick has the right to modify the conditions of the Trial Period or to discontinue it entirely at any time, without prior notice, including, but not limited to, when Proxyclick believes that the Client applies for a Trial Period not to make any purchasing decision, but for any other (unlawful) purpose such as to engage instead in industrial espionage.

4. Quality of service requirements

Providing a great quality of service (QoS) is central to Proxyclick’s Service offering and company culture. QoS is measured by technical specifications that specify the Service quality of features such as availability and good performance (4.1), security (4.2) and serviceability (4.3). Proxyclick represents and warrants to the Client that (i) it has the experience and ability to perform the Services required; (ii) it will perform the Services in a professional, competent and timely manner, consistent with industry standards and with the terms as contained herein; (iii) it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under this Agreement and otherwise comply with applicable laws in the provision of the Service; (iv) it is authorised to grant the rights and undertake the obligations on the terms and conditions contained in this Agreement; and (v) the Service does not infringe the Intellectual Property Rights of any third party.

4.1 Availability and good performance

4.1.1.  Proxyclick has taken all reasonably necessary technical, organisational and legal measures to guarantee the Client a high level of availability and performance. Proxyclick however cannot provide absolute guarantees on the uninterrupted availability, good performance, timely, secure or error free character of the Services given the dependence on external factors, such as the proper functioning of the Internet. Nonetheless, Proxyclick will use its best efforts to correct all defaults, defects and errors in the operation or the functionality of the Services at Proxyclick’s expense as soon as possible if they arise. The Client can choose to subscribe on the Proxyclick platform (http://status.proxyclick.com) to receive status updates with respect to the availability and performance of the Services.

 

4.1.2.  Proxyclick will use all commercially reasonable efforts, being no less than accepted industrial standards, to make its Services available to the Client with a Monthly Uptime Percentage of at least 99.50% during any given monthly billing cycle (the “Service Commitment”).

 

The “Monthly Uptime Percentage” is calculated by taking the total number of minutes in a calendar month minus the number of minutes of Downtime in the given calendar month, all divided by the total number of minutes in that calendar month. The time that the Services are not available qualifies as “Downtime”, which gives rise to service credits.  Downtime does not include (i) scheduled Downtime (for maintenance and upgrades which are notified in advance to Administrator Users), (ii) unavailability of the Service due to force majeure, (iii) lack of access that is due to the Client’s improper use of the Service, and (iv) unavailability of the Service that results from the Client’s acts or omissions or the Client’s third party services, hardware, software, or network, including but not limited to issues resulting from inadequate bandwidth.

 

Proxyclick will notify the Administrator User in case of scheduled Downtime which may have a substantial impact on Users.

4.1.3.  If Proxyclick fails to meet its Service Commitment in a given calendar month, the Client will be eligible to receive Service Credits (for the Client’s Downtime during such calendar month) on future billing cycles. Such Service Credits shall be the Client’s sole and exclusive remedy with respect to such failure to meet the Service Commitment.

4.1.4.  The claim for Service Credits submitted to Proxyclick must include (i) a detailed description of the incident; (ii) information regarding the duration of the Downtime; and (iii) descriptions of the Client’s attempts to resolve the incident at the time of occurrence. Proxyclick must receive the claim and all required information within thirty (30) calendar days after the day when the incident occurred. Proxyclick will evaluate all information reasonably available to it and make a good faith judgment on whether Service Credits are owed. If Proxyclick determines that Service Credits are owed to the Client, Proxyclick will issue them on the next billing period. Service credits will neither be paid in cash, nor refunded to credit cards. If Proxyclick determines that Service Credits are not owed to the Client, Proxyclick will communicate the reason for such decision to the Client within a month. Service Credits are calculated as a percentage of the total charges paid by the Client (excluding one-time payments) for the monthly billing cycle in which the Downtime occurred, in accordance with the chart below:

Monthly uptime percentage Service credit percentage
Less than 99,50% but equal to or greater than 95% 10%
Less than 95% 30%

Our Service is only fully functional and effective if you have the necessary pre-specified hardware (browser) software and telecommunication facilities available. While we are responsible for making the Services available via the Internet, it is your sole responsibility to take the necessary measures that enable the access to our Services on the Internet. The equipment and software you use to access our Services online must meet the system requirements as clearly communicated here.

4.2 Security

4.2.1.  Proxyclick implements appropriate technical and operational measures to (i) safeguard the security and safety of Proxyclick’s applications and Services and (ii) protect the Client’s data (including the personal data of the Client’s visitors which Proxyclick processes on the Client’s behalf and in accordance with the attached DPA (Annex 1)) against accidental or unlawful destruction or accidental loss, modification, unauthorized disclosure and access. Every 15 minutes, Proxyclick systematically creates in real time a backup of the data stored in its applications on another server in the same data center. It moreover creates a full database backup every night on a server located in another location. Proxyclick determines freely the frequency of the backup. It remains the Client’s responsibility to always create its own backup of its data.

4.2.2.  In addition, Proxyclick represents and warrants that (i) all of the Services will be rendered using sound, professional practices and in a competent and professional manner; (ii) its networks, operating systems, software, routers, databases, and computer systems comply with and are properly configured in accordance with applicable industry standards and that it is knowledgeable as to  such applicable industry standards; (iii) it utilizes commercially reasonable back-up procedures to back-up any data processed under  this Agreement; (iv) it shall implement adequate security policies and procedures to protect to the data processed under this Agreement.  Such policies and procedures shall include, but shall not be limited to, Proxyclick utilizing best efforts to protect its computer systems and databases from unauthorized access or tampering, and shall require that it installs and regularly updates anti-virus, anti-spyware and anti-malware software on all of its computer systems, servers or networks utilized in connection with the performance of Services. In addition, Proxyclick will notify the Client immediately of any known or suspected security breach. In view thereof, the Client commits to subscribe on the Proxyclick platform (http://status.proxyclick.com) to receive status updates. Proxyclick will work with the Client to immediately correct any security deficiency.

4.2.3.  This section 4.2 does not discharge the Client of its own responsibility to protect its equipment, software (other than software provided by Proxyclick pursuant to this Agreement), telecommunications and Internet connections against viruses, computer crime, illegal use by third parties or other unauthorized use and to take the security measures mentioned in section 5.2.

4.3 Serviceability

4.3.1. Maintenance and upgrades

4.3.1.1.         Proxyclick intends to keep the quality of its Services high by performing maintenance activities and updates of the applications on a regular basis. Proxyclick is also keen to innovate and improve its Services. The Client acknowledges and agrees that Proxyclick may, in the future, offer new features through the Services or change the form and nature of the latter in a non-material manner. Such new features or modified Services shall be subject to this Agreement.

 

4.3.1.2.         Proxyclick may limit at any time the access or use of the Services to the extent necessary for maintenance or to perform modifications or enhancements to the Services. Proxyclick strives to schedule maintenance and upgrades mostly during weekends.  Proxyclick will inform the Client at least 24 hours in advance of a scheduled maintenance which may have a substantial impact on Users. Downtime or other Service interruptions caused by scheduled maintenance will not entitle the Client to compensation from Proxyclick.

4.3.2. Support

Through its customers’ support service Proxyclick strives to provide clear and conclusive answers to any relevant question or comment of the Client so as to contribute to the solution of a problem, whatever its nature. Proxyclick will reply within 1 Business Day after receipt of the question or comment, but strives to reply sooner. Questions and comments should be made in writing via email at support@proxyclick.com or through the dedicated icon when the Client is logged in

5. Acceptable use

5.1 Illegal activity

The Client shall use and access the Service only in compliance with the Agreement and with all applicable laws and regulations.

5.2 Security

5.2.1.  The Client is not authorized to take any action that may jeopardise the safety or security of the Service or of the network used. This includes, but is not limited to, distributing, downloading, uploading or transmitting any material that contains viruses, Trojan horses, worms, time bombs, cancel bots, or any other harmful or deleterious program that may infringe the Service and the interests of both Proxyclick and its Users and other customers. The Client must refrain from processing any content that may burden or disturb the applications’ and Site’s infrastructure or their proper functioning.

5.2.2.  Upon prior notice to Proxyclick, the Client shall be authorized to perform regular vulnerability tests (automated scans) following agreed upon instructions and procedures. The results shall be provided to Proxyclick in order to try and address or mitigate possible vulnerabilities identified.

5.2.3.  The Client agrees to immediately notify Proxyclick of any breach of security or unauthorized use of the Client’s account or Client Login Data, and commits to take all appropriate measures to prevent unauthorized access or use (e.g. ensuring that the Client exits its account at the end of each session and that the Client Login Data are adequately protected).

5.3 Inappropriate content

The Client and Users must refrain from processing content that is inappropriate for the aims of the Service. Proxyclick reserves a large discretion with regard to content. Please see Section 6.1 for more details.

5.4 Unsolicited messages

Using the Service to send unsolicited and/or commercial messages between Users, such as junk mail, spamming and chain letters or sending threatening messages and other disturbing messages between Users, is not allowed.

6. Content management

6.1 Inappropriate content

6.1.1.  Making use of a Service implies adding content to the application. The Client is solely responsible for the content that it and its Users may add. The Client will not create, transmit, display or make otherwise available any Content that is unlawful, harmful, offensive, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, invasive of another’s privacy, or hateful (including viruses, worms and any other destructive codes).

6.1.2.  Proxyclick’s Services only result in acting as conduit between the Client, Users and other interested parties. Proxyclick does not perform any prior supervision on content that is added to the application. Proxyclick reserves the right, however, to take the necessary action towards inappropriate content upon receiving a well-reasoned and founded complaint. Proxyclick reserves the right to block or remove any inappropriate content. Complaints can be directed at info@proxyclick.com.

6.2 Hyperlinks

The Site may contain direct or indirect links to third party websites and/or electronic communication portals, on which Proxyclick cannot exercise any technical, content or other control. User generated content may include such hyperlinks among others.  Proxyclick does not guarantee, and does not assume any liability for, the accuracy, legality, completeness or quality (of the content) of (i) external websites linked to on the Site or (ii) any other electronic communications portals that are not under the actual control of Proxyclick. The use of or access thereto are therefore at the Client’s own risk and responsibility. Proxyclick is not liable for any damage that may result therefrom.

6.3 Downloads

All Users, also of other customers of Proxyclick, can upload content to the Services, which can then be accessed or downloaded by other authorised Users, including the Client and its authorized Users. Proxyclick cannot be held accountable for the consequences of downloading content added by other Users, on which it does not exercise any control. The Client understands and agrees that every download of content from the Service is at own risk and that damages resulting from loss of data or damage to the Client’s computer system are the Client’s entire and sole responsibility.

7. Fees and payment

7.1. All fees for each possible Client Subscription are indicated on the Site. The fees are stated in Euros (applicable to all Clients, except those mentioned hereafter), US dollars (applicable to Clients from the United States, Canada or Mexico) or British pounds (applicable to Clients from the United Kingdom) and are exclusive of any applicable taxes, duties, levies and currency exchange settlements, unless stated otherwise. The Client agrees to pay the applicable fees and any applicable tax or fee that may accrue in relation to all use of the Service accessed through the Client’s account, including all fees resulting from unauthorized use.

7.2. The Client understands that each Client Subscription offers a maximum limit on the usage of the Service in terms of number of Users and number of visits per month, and undertakes to use the Service in accordance with these limits.  The Client understands that an additional service fee will be due in case the number of Users or visits per month exceeds the limits of the Client Subscription. Proxyclick reserves the right to conduct an audit of the Client’s use of the Service every month, at Proxyclick’s own cost, to determine whether the Client’s use is in accordance with the limits of the Client Subscription. If an audit reveals that the Client has exceeded the applicable limits, the Client may be required to immediately pay an additional fee for such use. 

7.3. Notwithstanding Clause 12, a Client Subscription lasts for an initial term of 1, 12 or 24 months. Regardless of the Client Subscription, the Client will pay the subscription fee in advance.

7.4. If the Client pays its one or two year subscription in advance, a 12-months’ subscription allows the Client to save 10% off the monthly subscription fees, whereas a 24-months’ subscription allows the Client to save 25% off the monthly subscription fees.

If the Client prepays for one or two years and the Client’s asks for additional option(s) or wants to upgrade his subscription plan, (i) Proxyclick will make an appropriate adjustment of the fees on a pro-rated basis (either credit the Client’s account or invoice the Client for the difference) for the period until the next anniversary date of the Agreement, and (ii) thereafter fees will be due that take into account the additional option(s) and/or plan upgrade.

7.5. Proxyclick reserves the right to adapt the fees published on its Site. Any price change will not affect existing subscriptions, but will only apply to new subscriptions. If such change would result in lower prices or otherwise works towards the Client’s advantage (but not in case the lower prices result from higher government levies or taxes), the Client may request its fees due to be adapted as from the date of the Client’s request by sending an e-mail to info@proxyclick.com. Such request will not lead to any reimbursement of part of already paid fees for a Client Subscription. It might however lead to the extension of the Client Subscription.

 

7.6. Provision of the Service is conditional upon the payment by the Client of all fees and charges associated with the Service in accordance with this Agreement. Failure to transfer a due payment will automatically lead to a suspension of the account. Any dispute regarding an invoice must be lodged with Proxyclick in writing within fifteen (15) days of the invoice being received.

Cheques are not accepted.  Payments are made via credit card or wire transfer depending on the terms of the Client Subscription, according to the following table

 

Free

Medium

Large

Enterprise

Monthly payment

Credit card requested in case of overage

Only by credit card

Annual payment

Only by credit card

Credit card or wire transfer

Payment every 2 years

Credit card or wire transfer


Invoices that the client is entitled to pay via wire transfer, are due for payment within thirty (30) days from invoice date. Any amount that has been left unpaid at the due date of payment will be increased automatically and without prior notice of default, with a conventional interest of 10% per year, calculated on a daily basis as from the due date up to the full payment completion date. The Client will moreover in addition be liable to pay a fixed indemnity for loss and administrative costs on a flat rate basis of 10%, with a fixed minimum of 50 EUR per invoice. Proxyclick may also charge the Client for the expenses Proxyclick reasonably incurs in connection with any debt collection or enforcement efforts, in accordance with the applicable law.

7.7.     Payments are processed through the secured facilitator Ingenico Payment Services. Online payments are executed via a closed security system (SSL), through which the Client’s bank details are always encrypted when they are sent via the Internet.

8. Confidential information

8.1. In respect of any Confidential Information disclosed, furnished or made accessible by either party (the “Disclosing Party”) to the other party (the “Receiving Party”) under this Agreement, the Receiving Party undertakes to the Disclosing Party:

8.1.1. to keep confidential the Confidential Information;

8.1.2. to keep the Confidential Information in a safe and secure place using such reasonable technical and organisational security measures to prevent unauthorised access, destruction or loss and to treat the Confidential Information with at least the same degree of care that is used for its own Confidential Information;

8.1.3. not to disclose without the prior written consent of the Disclosing Party the Confidential Information in whole or in part to any other person save those of its employees, agents and sub-contractors involved in performing its obligations under this Agreement, and only in so far as necessary for the performance of this Agreement; and

8.1.4. to use the Confidential Information solely in connection with performing its rights and obligations under this Agreement.

8.2. For the purpose of this section 8, “Confidential Information” means all information whether of a technical, financial or commercial nature or otherwise relating in any manner to the business or affairs of the Disclosing Party which information is not publicly available and which becomes known solely through the exercise of rights and obligations under this Agreement.

8.3. Each Party hereby undertakes to the other to make all its relevant employees, agents and sub-contractors aware of the confidential nature of the Confidential Information of the Disclosing Party and, without limitation to this section 8, to take all such steps as may be deemed necessary in the Receiving Party’s sole discretion from time to time so as to ensure compliance by its employees, agents and sub-contractors with the provisions of this section 8.

8.4. The provisions of sections 8.1 to 8.3 shall not apply to any information which:

8.4.1. is or becomes public knowledge other than by breach of this section 8; or

8.4.2. is in the possession of the Receiving Party without restrictions in relation to disclosure before the date of receipt from the Disclosing Party; or

8.4.3. is received from a third party that lawfully acquired it and that is under no obligation restricting disclosure; or

8.4.4. is independently developed without access to any Confidential Information belonging to the Disclosing Party.

8.5. This section 8 shall remain in full force and effect notwithstanding any termination of this Agreement. All Confidential Information including the copies made thereof is the sole property of the Disclosing Party and shall be promptly returned to the Disclosing Party or destroyed upon written request by the Disclosing Party.

9. Intellectual property

9.1.     The Services are protected by Intellectual Property Rights as defined in Section 1. All Intellectual Property Rights and derived rights are the property of Proxyclick (or its relevant licensors) and continue to be retained by it. The use of the Service does not imply a transfer of the Intellectual Property Rights to the Client.

 

9.2.     The Client agrees not to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast, commercially exploit, communicate, circulate, or in any way transfer or assign the application or any part thereof, to any third party, without the express prior written consent of Proxyclick. The Client further agrees that it will not disassemble, decompile, reverse engineer, create derivative works from or otherwise modify the applications of Proxyclick, except to the extent permitted by applicable law.

10. Client data ownership

10.1. The Client or the respective User always retains ownership of its content, data and information provided in the context of using the Service (“Client Data”).

10.2. Unless specifically permitted by the Client or by the User to which the data relates, the Client’s use of the Services does not grant Proxyclick the right to use the Client Data for any other reason than for the performance of the Service.

10.3. Notwithstanding any other provision in this Agreement, Proxyclick reserves the right to compile and use aggregated usage data and statistics, and to disclose these aggregated statistics, as long as these do not describe or identify any individual User or Client.

10.4. The Client grants Proxyclick a worldwide, royalty free, sub-licensable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by the Client and by its Users.

11. Liabilities

11.1. Proxyclick can only be held liable by the Client for any major or repeated minor contractual and/or non-contractual breach, including any obligation of warranty, caused in the performance of its obligations under this Agreement.

11.2. Proxyclick shall not have any liability or be considered to be in breach or default of its obligations under the Agreement, to the extent that performance of such obligations is delayed or prevented, directly or indirectly, due to force majeure. Force majeure shall be taken to mean any circumstance beyond its control that entirely or partially prevents compliance with its obligations in respect of the other party.

11.3. Proxyclick shall not be liable for damages caused by the Client or actions or omissions of third parties. The Client will hold harmless and indemnify Proxyclick and its employees, managers and directors from any claims and damages that may arise from actions or omissions of the Client.

11.4. In any case, Proxyclick’s liability for damages arising under this Agreement, whether in contract, tort or otherwise, will be limited to actual, proven, direct damages and will not exceed the net amount actually paid to Proxyclick by the Client for the Service under this Agreement during the twelve (12) months immediately preceding the cause of the action. In no event will Proxyclick be liable for indirect,  incidental, consequential, punitive, or exemplary damages or financial losses, including the loss of revenue, even if it  knew these were possible.

11.5. The limits of liability in this section apply to the fullest extent permitted by applicable law, but do not apply if Proxyclick acted with gross negligence or willful misconduct.

12. Terms and termination

12.1 Term and duration

12.1.1. The Agreement takes effect as from the date of completion of the registration process by the Client, for the initial term selected by the Client.

12.1.2. At the end of the initial term and at the end of each renewal, the Agreement is automatically extended for successive renewal terms, with the same duration as the initial term, except if one of the parties has notified the other party of its decision not to renew the Agreement before the end of the then current term.

12.1.3.  Fifteen (15) days prior to the expiry of each term, Proxyclick shall send the Client an email reminding the Client that the term is due to expire. If no response is received from the Client prior to the expiry of the then current term, or if the client has by then not notified its decision to terminate, the subscription will be automatically renewed.

 

12.2 Suspension and termination

12.2.1. Without limiting the right to termination under clause 12.2.3, Proxyclick has the right to suspend the Client’s access to the Service in case of a material breach of this Agreement by the Client. Proxyclick will inform the Client of Proxyclick’s reasons for the suspension as soon as possible. Following a suspension, the parties agree to negotiate in good faith to resolve the material breach in a timely manner, if possible. Fees may continue to accrue during a suspension, and Proxyclick may charge the Client a reinstatement fee following any suspension of the Client’s Service. Any reinstatement fee must be paid before the Services can be restored.

12.2.2. Notwithstanding anything to the contrary in this Agreement, either party can suspend or terminate the Agreement at any time, even in the absence of a cause. If Proxyclick wishes to invoke this right, it should make its intention known by means of a notice as determined in section 2.9, at least thirty (30) calendar days prior to the month in which it wants to suspend or terminate the Agreement. In such case, the Client only pays for the last running month. If the Client wishes to invoke this right, the Client can cancel the subscription at any time from the Administrator User interface. No amount (including any prepaid amounts) will be refunded to the Client following a cancellation.

12.2.3.  Each party may terminate this Agreement by giving written notice if:

  • The other party fails to rectify a material breach of this Agreement, within thirty (30) days of receiving written notice describing the nature of the breach and specifying the intention to terminate this Agreement if the breach is not rectified;
  • The other party commits a material breach of this Agreement which cannot be remediated;
  • It has reasonable suspicion of fraudulent, unauthorised, improper or illegal use being made by the other party of the Service, provided that in such case, prior to exercising its rights, it shall provide the other party with a reasonable and sufficient opportunity to address and rectify such fraudulent activity or improper use.
  • Any event of force majeure continues for more than ninety (90) days.

Either party may terminate this Agreement with immediate effect if the other party is subject to liquidation, insolvency or bankruptcy procedures, or makes any arrangement or composition with, or assignment for the benefit of its creditors, or if any of the other party’s assets are the subject of any form of seizure, or if such other party goes into liquidation, either voluntary (otherwise than for reconstruction or amalgamation) or compulsory or if a receiver or administrator is appointed over such other party’s assets, to the extent such termination is allowed by applicable law.

12.2.4. No refunds or partial refunds will be given in respect of any fees paid to Proxyclick in advance, unless Proxyclick is in material breach of the Agreement. In that case, the Client will be entitled to receive a refund of any part of the fees paid to Proxyclick in respect of the period following the date of termination, calculated pro-rata on a daily basis.

 

12.3 Termination consequences

The Client’s account will be deactivated upon termination or suspension of this Agreement. Deactivation means that the Service will be unavailable in whole or in part and that the Client therefore may not have access to the Client Data. Deactivation does not mean that the account, and the associated content, will be immediately and irrevocably removed. Proxyclick guarantees to keep the data available for at least sixty (60) calendar days following the day of deactivation.

13. Privacy

Proxyclick (as processor) will process personal data on behalf of the Client (in its capacity of controller).

The Client and Proxyclick will prior to the provision of the Services sign the Data Processing Agreement, which can be accessed here. This Annex forms integral part of the Agreement.

14. Final provisions

14.1. This Agreement is exclusively governed by Belgian law.

14.2. Barring the rules of Brussels I Regulation (which provides special jurisdictional rules) and other similar applicable laws to the fullest extent possible, the French speaking courts of Brussels (Belgium) will be exclusively competent.

14.3. This Agreement constitutes the entire agreement between the Client and Proxyclick relating to the Client’s use of Services, superseding any prior oral or written agreements between the Client and Proxyclick regarding the subject matter herein.  The Parties explicitly exclude the application of any standard terms and conditions of purchase or other conditions of the Client, even if these would have been communicated to Proxyclick at a later date and Proxyclick would not have protested those.

14.4. If any provision of this Agreement is held to be unlawful, invalid or otherwise unenforceable for any reason whatsoever, it shall be deemed severed from the Agreement and shall not affect the validity, legality and enforceability of the remaining provisions of this Agreement.

To the maximum extent permitted by applicable law, the unlawful, invalid or unenforceable provision shall be amended to achieve as closely as possible the common intentions of the parties as expressed in the original term.

14.5. The Client may not assign or transfer in any other manner any of its rights or obligations under this Agreement, either in whole or in part, to a third party.

14.6. A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

14.7. This Agreement does not create an agency, partnership, or joint venture.

14.8. There are no third-party beneficiaries to this Agreement.

14.9. Any notice to be served under this Agreement is to be delivered or sent by registered post or email:

  • to the Client at the address or email address provided in the subscription process,
  • to Proxyclick at Rue Saint Hubert 17, B‐1150 Brussels, Belgium or billing@proxyclick.com.