Terms of Use

These Terms of Use shall apply to customer’s use (the “Customer”) of AKA Foods Netherlands BV’s proprietary software (“Software”) identified in one or more ordering documents (which documents may be be in electronic or digital format) signed and/or accepted digitally by the parties (each an “Order”). Customer’s execution of an Order referencing these Terms of Use and/or access or use of the Software shall be deemed Customer’s agreement to these Terms of Use. These Terms of Use and all Orders (collectively referred to as the “Agreement”) represent the parties’ entire understanding regarding the Software and shall govern over any different or additional terms of any purchase order and no terms included in any such purchase order shall apply to the Software unless such different terms are stated specifically in a mutually signed Order.

1. Use Rights
   1. Subject to Customer’s compliance with the terms and conditions of the Agreement and payment of all applicable fees, Company hereby grants Customer a limited, fully revocable, non-exclusive, non-transferable, non-sub-licensable and non-assignable right and license, which is time-limited to the Term (as defined below), to install, internally access and use the web-based Software and any other material (whether written or oral), and any deliverables provided in connection with the Software, if any (the “Materials”), solely for the purpose of food prototype recipe development, prototype process design, prototype sensory experiment management and reporting (unless Customer has received the prior written consent of Company in each specific instance).
   2. Customer shall be responsible to ensure that its computer, operating systems, computer networks and network connections, telecommunications facilities or mobile device meet all the necessary technical specifications to enable it to access and use the Software. Company does not provide Customer with the equipment to access and/or use the Software. Customer is responsible for all fees charged by third parties related to its access and use of the Software (e.g., charges by internet service providers or airtime charges).
   3. Notwithstanding anything to the contrary in this Agreement, if Company has made available to Customer free, trial, or evaluation access to the Software (“Evaluation License”), such access is limited to evaluating the Software to determine whether to purchase a subscription from Company. Customer may not use the Evaluation License for any other purposes, including but not limited to competitive analysis, commercial, professional or for-profit purposes.
2. Account Information
   1. During the process of creating an account in order to access the Software (“Account”), Customer may be required to provide certain information including the selection of a password (the “Login Information”). The following rules govern the security of Customers Account and Login Information. For the purposes of this Agreement, references to Account and Login Information shall include any account and account information, including usernames, passwords or security questions, whether or not created for the purpose of using the Software, that are used to access the Software:
      1. Customer shall not share its Account or Login Information, nor let anyone else access its Account or do anything else that might jeopardize the security of the Account;
      2. In the event Customer becomes aware of or reasonably suspects any breach of security, including, without limitation any loss, theft, or unauthorized disclosure of its Login Information or unauthorized access to its Account, Customer must immediately notify Company and modify its Login Information;
      3. Customer is solely responsible for maintaining the confidentiality of the Login Information, and will be responsible for all uses of its Login Information, whether or not authorized by it;
      4. Customer is responsible for anything that happens through its Account, whether or not such actions were taken by it, including, for the avoidance of doubt, actions taken by third parties. Customer therefore acknowledges that its Account may be terminated if someone else uses it to engage in any activity that violates this Agreement or is otherwise improper or illegal;
      5. Customer undertakes to monitor its Account and restrict use by any individual barred from accepting this Agreement and/or using the Software, under the provisions listed herein or any applicable law. Customer shall accept full responsibility for any unauthorized use of the Software by any of the above mentioned;
      6. Company reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to claims by a third party that a username violates such third party’s rights.
   2. Any personal information Customer provides when creating or updating the Account, which may include Customer’s name, age, birth date, gender, address, geographic location, e-mail address, picture and any such other information, will be held and used in accordance with Company’s Privacy Policy that may be located at Company’s website (“Privacy Policy”) as amended from time to time which constitutes an integral part of this Agreement. Customer agrees that it will supply accurate and complete information to Company, and that it will update that information promptly after it changes. Customer represents and warrants that it has full right and authority to provide Company with the foregoing information, including, without limitation, any third party’s consent (to the extent required under any applicable law).
3. Software Availability
   1. Company shall make commercially reasonable efforts to ensure that the Software will be accessible and functional on a continuous basis, twenty-four (24) hours per day, seven (7) days per week, with the exception of scheduled maintenance periods. The foregoing notwithstanding, Customer acknowledges and agrees that the Software may be inaccessible or inoperable at any time and for any reason, including without limitation due to equipment malfunctions, unscheduled maintenance or repairs, or causes that are beyond Company’s reasonable control or not reasonably foreseeable by Company, including without limitation interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures.
   2. If the Software becomes inaccessible or is not functional, other than due to scheduled maintenance, Company shall have qualified personnel respond and endeavor to remedy such unavailability or failure of functionality as soon as reasonably possible.
   3. Company may make changes or updates to the Software (such as infrastructure, security, technical configurations, features, etc.) during the term of the Agreement, including to reflect changes in technology, industry practices and patterns of system use. The terms of the Agreement will apply to any such changes and/or updates that Company may make available to Customer. If, in Company’s reasonable judgment, any such modification to the Software materially reduces its functionality, Company will endeavor to inform Customer via the e-mail address associated with Customer’s Account no less than fourteen (14) days prior to such change. Customer’s continued access and/or use of the Software following such changes or modifications shall be deemed to be Customers acceptance of the revised Software.
   4. During the Term, Company shall provide Customer with the following functionalities:
      1. Export Functionality: Customer will have access, through the use of the Software, to export its Customer Data and Formulations.
      2. Data Table Export Request: Customer can request in writing, for Company to provide the provision of a structured backup of the data-base tables related to the Customer Data.
   5. 1. Customer shall retain all ownership rights in and to all: (i) Customer Data (as defined below) passing though or generated by the Software; (ii) the Customer Data table generated by the Software though Customer’s use thereof; and (iii) any of Customer’s Confidential Information (as defined below). All right, title and interest (including any and all intellectual property rights) in the Software and in the Materials (and all copies thereof) and any improvements and enhancements thereto shall at all times remain with Company and no license in the Software and/or the Materials under any Company intellectual property rights is granted to Customer except as explicitly provided in Section 1 above.
      2. All rights, title and interests in and to any feedback, suggestions, ideas or other inputs that Customer provides Company in connection with the Software or the evaluation (the “Feedback”) shall vest solely with Company, will be owned exclusively by Company, and accordingly, may be freely used by Company at its sole discretion, including for improving or enhancing its Software. For purpose of clarification, and without derogating from the provisions of Section 4.1 above, all rights in and to any improvements and/or enhancements, howsoever arising, to the Software, including as a result of any ideas, inputs or information provided by Customer as aforesaid, shall also be owned exclusively by Company. Company in no way shall be obligated to use any of the Feedback or any portion thereof.
      3. Customer shall not and shall not permit any third party to: (a) engage in, cause, or permit the reverse engineering, disassembly, de-compilation or any similar manipulation or attempt to discover the source code of the Software or any part thereof; (b) bypass, alter, or tamper with any security or lockout features of the Software; (c) create any derivative work or translation of the Software; (d) modify, revise or enhance the Software; (e) remove, alter, or obscure in any way the proprietary rights notices (including copyright, patent, and trademark notices and symbols) of Company contained on or within any copies of the Software; or (f) copy or share screen captures, images, or video of the Software.
   6. Collection of Information.
      1. Customer acknowledges that the use of the Software may require Customer to upload and/or enter into the Software anonymized data (Customer Data).
      2. Customer hereby undertakes to ensure that all approvals, permissions, authorizations and consents required, including without limitation, under applicable law, in order for Customer Data to be uploaded to the Software and used by the Company in accordance with the terms herein.
      3. During the term of this Agreement (as set forth in Section 9 below), Company may collect Customer Data. Any such information gathered by Company will be used in connection with Company’s obligations under this Agreement and for evaluating and improving Company’s products and technology. For the sake of clarity, Company shall not use any Customer Data to train the Software’s artificial intelligence models. Customer shall not, and shall ensure anyone acting on its behalf shall not, provide to Company, any personally identifiable information or any other information which may fall under or which may require compliance with the applicable privacy laws, rules or regulations. Where Customer is unable to do so, it shall notify Company accordingly.
   7. Confidential Information.
      1. Confidential Information (as defined below) of either Party shall be retained in strict confidence by the other Party which shall take all reasonable measures to protect the secrecy of disclosing Party’s Confidential Information employing at least the same degree of care that it utilizes to protect its own Confidential Information, but in any event not less than a reasonable degree of care.
      2. The Party receiving Confidential Information of the other Party shall use such Confidential Information solely for the purposes of, and in accordance with, this Agreement. Each Party may disclose Confidential Information of the other Party only to those employees/consultants with a need to know such Confidential Information for the purposes of this Agreement, and who have executed an obligation of confidentiality and restriction of use similar to the terms hereof.
      3. “Confidential Information” means any business, marketing, technical, scientific or other information disclosed by either Party. For purpose of clarification, Company’s Confidential Information is including, without limitation, the Software, the Materials, the Feedback, this Agreement (including any prices, payment terms and appendices attached thereto) and any know-how, trade secrets and other proprietary information relating to this Agreement.

Notwithstanding the above, Confidential Information does not include information which the receiving Party can prove in tangible evidence that (i) it was known to the receiving Party at the time it was disclosed, other than by previous disclosure by disclosing Party, as evidenced by the receiving Party’s written records at the time of disclosure; (ii) is at the time of disclosure or later becomes publicly known under circumstances involving no breach of (a) this Agreement by the receiving Party, or (b) an obligation of confidentiality which was resulted from, or is in connection with, this Agreement by any other person or entity, including, without limitation, the receiving Party’s employees/consultants; (iii) is lawfully and in good faith made available to receiving Party by a third party who is not subject to obligations of confidentiality to disclosing Party with respect to such information; or (iv) has been independently developed by the receiving Party without use of or reliance on information disclosed by the disclosing Party. Furthermore, Customer is welcome to recommend the Software to third parties without it being considered a breach of confidentiality, as long as it refrains from sharing any specific details related to the engagement or any Confidential Information.

4. If required by law, receiving Party may disclose Confidential Information to a governmental authority or by order of a court of competent jurisdiction, provided that receiving Party shall (i) promptly notify to the disclosing Party as to such requirement, and (ii) takes reasonable steps to limit the scope of such disclosure and cooperates, at the expense of the disclosing Party, with disclosing Party’s request to obtain appropriate protection orders and to take similar protective measures to preserve the confidentiality ofdisclosing Party’s Confidential Information.
5. Receiving Party agrees that the wrongful disclosure of Confidential Information may cause irreparable injury that is inadequately compensable in monetary damages. Accordingly, disclosing Party may seek injunctive relief in any court of competent jurisdiction for the breach or threatened breach of this Section in addition to any other remedies in law or equity.

7. Warranties and Limitations.
   1. Each party represents and warrants to the other party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such party and have been duly authorized by all necessary corporate action on the part of such party, and constitute a valid and binding agreement of such party; and (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder.
   2. In addition to the representations and warranties set forth in Section 7.1, Customer represents and warrants to Company that: (i) the Customer Data contains no harmful code; (ii) Customer has the right to provide Company with the Customer Data in accordance with this Agreement; and (iii) Customer’s use of the Software, including, without limitation, the submission and processing of the Customer Data, complies with all applicable laws.
   3. WITHOUT DEROGATING FROM THE AFORESAID, IT IS HEREBY CLARIFIED THAT THE SOFTWARE IS PROVIDED “AS IS”. COMPANY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS RELATING TO THE SOFTWARE, WHETHER EXPRESS, IMPLIED OR ARISING BY CUSTOM OR TRADE USAGE, OR FROM A COURSE OF DEALING INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATION, WARRANTY, OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE, OR ANY PORTION THEREOF, REMAINS EXCLUSIVELY WITH THE CUSTOMER.
   4. NOTWITHSTANDING ANYTHING CONTAINED ABOVE,COMPANY SHALL HAVE NO LIABILITY RELATING TO EVALUATION LICENSE OR ANY SERVICES PROVIDED FREE OF CHARGE.
   5. In no event shall Company be liable to the Customer for any damages arising under this Agreement, including, but not limited to, direct, indirect, special, incidental or consequential damages, even if Customer has been advised of the possibility of such damages.
   6. For the removal of a doubt, Company accepts no responsibility or liability for any consequential, incidental, direct, indirect and/or special damages, expense, losses or action incurred or undertaken by Customer as a result of its receipt or use of the Software, and Company shall not, under any circumstances, indemnify or be required to indemnify the Customer against, or be liable for, any claims with respect to the Software or any use thereof.
8. Evaluation License.
   1. Company may, at its sole discretion, offer Customer an Evaluation License. Company will be under no obligation to provide Customer any support services with respect to the Evaluation License. Company makes such Evaluation License available to Customer in accordance with the dates stated in the Order (“Evaluation Period”). Company grants Customer, during the Evaluation Period, a non-exclusive, nontransferable right to access and use the Evaluation License for Customer’s internal evaluation purposes and subject to the access and use restrictions set forth in the Agreement or any other applicable terms governing the Evaluation License. Notwithstanding anything to the contrary, Company provides the Trial Services “as is” and “as available” without any warranties or representations of any kind. To the extent permitted by law, Company disclaims all implied warranties and representations, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose and non-infringement. Customer assumes all risks and all costs associated with its use of the Evaluation License. Customer’s sole and exclusive remedy in case of any dissatisfaction or Company’s breach of the Agreement with respect to such Evaluation License is termination of the Evaluation License.
9. 1. In consideration for the right to access and use the Software under this Agreement, Customer shall pay Company the subscription fees upon such terms and dates stated in the Order.
   2. When the Customer signs up for Evaluation License, the Customer acknowledges and agrees that unless the Customer actively cancels the subscription at least 30 days prior to end of the Evaluation Period, the Customer will be automatically billed subject to the then-current subscription fees stated in the Order.
   3. All fees payable under the Agreement are non-refundable, net amounts and are payable in full, without any deduction of any kind including for taxes and/or duties. In addition, no amounts shall be set off by Customer for any reason whatsoever. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes) associated with the Agreement or its use of the Software, except for taxes based on Company’s net income.
   4. Any payments by Customer that are not paid on or before the date such payments are due under the Agreement shall bear interest of one percent (1%) per month. Interest shall accrue beginning on the first day following the due date for payment and shall be compounded quarterly. Company may use a third party to collect past due amounts. Customer shall be required to pay for all reasonable costs Company incurs in order to collect any past due amounts. These costs may include reasonable attorneys’ fees and other legal fees and costs.
10. Term and Termination.
    1. The Agreement shall commence as of the date set forth in the Order and, unless earlier terminated as set forth below, shall remain in effect through the end of the term stated in the Order (“Initial Term”). Except as otherwise specified in an Order, after the Initial Term, the Agreement shall be automatically renewed for additional terms equal to the Initial Term (each a “Renewal Term”), unless one party notifies the other party in writing of its intent not to renew the Agreement, at least forty-five (45) days prior to the expiration of the Initial Term or any Renewal Term.
    2. Either party may terminate this Agreement if the other party breaches any material term or condition of the Agreement and such breach is not remedied within thirty (30) days after receiving written notice thereof. Notwithstanding the foregoing, Company may immediately, by written notice to Customer, suspend or terminate the Agreement if Customer fails to make any timely payment of fees owed or in case of breach and/or failure to comply with any of the provisions of Sections 1 (“Use Rights”), 4 (“Title”), or 6 (“Confidential Information”).
    3. Either party shall have the right to immediately terminate the Agreement, upon written notice, in the event the other party files a petition in bankruptcy or is adjudicated as bankrupt or insolvent, or makes an assignment for the benefit of creditors, or an arrangement pursuant to any bankruptcy law, or discontinues its business or has a receiver appointed for its business and such receiver is not discharged within ninety (90) days.
    4. Upon termination of the Agreement, (i) Customer shall cease to use the Software;(ii) each party shall cease to use and shall either destroy or return to the discloser any Confidential Information of the other party in its possession; and (iii) if Company has terminated this Agreement, Customer will promptly pay all unpaid fees and applicable taxes due through the end of the term.
    5. Upon expiration or termination of this Agreement, all rights and obligations pursuant to this Agreement shall immediately terminate, except for any provisions of this Agreement that are intended by their nature to survive termination.
11. 1. This Agreement shall not be construed to prevent the Company from providing services similar to those outlined herein to other customers. The Customer acknowledges and agrees that the Company offers a range of services, some of which may be similar in nature to the services provided to the Customer under this Agreement, and that the Company retains the right to continue offering such services to others without restriction.
    2. No agency, partnership, joint venture or employment relationship is or shall be created by virtue of this Agreement.
    3. The Customer may not assign this Agreement or any of the rights or obligations granted hereunder without the consent of Company.
    4. The Company is relieved from liability for a failure to perform any of its obligations due to any circumstance beyond its immediate control, which impedes, delays, or aggravates any obligation to be fulfilled by the Company under the Agreement, such as changes in laws and regulations or in the interpretation thereof, acts of authorities, war, acts of war, labor disputes, blockades, major accidents and currency restrictions.
    5. This Agreement constitutes the entire agreement between Company and Customer and supersedes any previous agreements or representations, either oral or written. This Agreement may only be modified, changed or amended by an instrument in writing executed by each Party’s duly authorized representative. No provision of this Agreement will be waived and no breach excused unless the waiver or consent is in writing and is signed by the Party that is claimed to have provided such waiver or consent.
    6. This Agreement shall be governed by, interpreted and enforced in accordance with the laws of the Netherlands, without regard to its conflict of law principles. All actions, suits or proceedings under or related to this Agreement shall be adjudicated in the courts of Amsterdam, the Netherlands, and the Parties hereby irrevocably consent to the exclusive jurisdiction and venue of such courts
    7. All notices given by one Party to the other in accordance with the addresses set forth in the preamble to this Agreement (or any other alternative address or reasonable means of communication provided), shall be given in writing, and shall be deemed to have been delivered to the addressee immediately upon their delivery if delivered by hand, or within one (1) business day following transmission if sent by email, or within five (5) business days after being sent by registered mail.