This Master Subscription Agreement (this “MSA”, and together with the documents listed under Structure below, the “Agreement”) sets out the terms on which Engaige Technologies B.V. provides its Services to its customers. It is the document the Engaige Data Processing Agreement refers to as the “Master Agreement”.
This MSA is version 1.0 of Engaige’s standard subscription terms. It becomes binding on a customer when that customer signs an Order Form that incorporates it, or otherwise accepts it in writing. From the Effective Date applicable to the Customer (determined in accordance with the Versioning section below), this MSA supersedes any previously signed Engaige terms of service or general terms and conditions between the Parties for the same Services. Engaige maintains the current version of this MSA at letsengaige.com/legal/msa.
Parties
Company: Engaige Technologies B.V., having its statutory seat in Utrecht and its office at Goeman Borgesiuslaan 77, 3515 ET Utrecht, the Netherlands, registered with the Dutch Chamber of Commerce under number 90976827, VAT number NL865515219B01 (“Engaige” or the “Company”).
Customer: the entity identified in the applicable Order Form (the “Customer”).
Engaige and the Customer are each a “Party” and together the “Parties”.
1. Structure and order of precedence
Structure
The Agreement consists of the following documents:
(a) the Order Form(s) executed by the Parties;
(b) this MSA, including the Acceptable Use Policy in Section 6;
(c) the Engaige Data Processing Agreement available at letsengaige.com/legal/dpa (the “DPA”), including its Annexes; and
(d) any schedule, addendum or exhibit expressly attached to an Order Form (for example, a security addendum or a service-level schedule).
Order of precedence
If there is a conflict between the provisions of the documents making up the Agreement, the following order of precedence applies, in respect of the subject matter of the conflict only: (1) the Order Form (including any schedule expressly attached to it); (2) the DPA, in respect of the processing of personal data; (3) this MSA; and (4) any other document incorporated by reference. The Customer’s own terms and conditions, and any terms referenced in the Customer’s purchase orders, vendor portals or onboarding forms, are expressly rejected and do not apply, even if Engaige does not object to them.
2. Definitions
Capitalised terms used but not defined where they first appear have the meanings below. Capitalised terms used in this MSA and not defined here have the meaning given in the DPA.
“Acceptable Use Policy” or “AUP” means the acceptable-use terms in Section 6.
“Affiliate” means any entity that controls, is controlled by, or is under common control with a Party, where “control” means ownership of more than 50% of the voting interests of the entity.
“Confidential Information” means any information in any form (written, digital, oral or otherwise, including copies) concerning a Party, its Affiliates or its business that is marked as, or that a reasonable person would understand to be, confidential, including the existence and terms of the Agreement and the negotiations relating to it. It does not include information falling within an exclusion in Section 15.
“Customer Content” means data, information or materials submitted by or on behalf of the Customer or its Users to the Services, or otherwise made accessible to the Services by or on behalf of the Customer (including support-ticket content, knowledge sources, policy documents, configurations and data accessed through the Customer’s connected systems), but excluding Feedback and Usage Data.
“Documentation” means Engaige’s then-current product documentation and help-centre materials describing the Services and their configuration.
“Effective Date” means the date stated as such in the Order Form or, if none is stated, the date the last Party signs the Order Form.
“Feedback” means suggestions, feedback or comments about the Services or related offerings.
“Fees” means the amounts payable by the Customer for the Services as set out in the Order Form, including any overage and professional-services charges.
“Force Majeure Event” has the meaning given in Section 17.
“Intellectual Property Rights” or “IP Rights” means any rights under patent, copyright, database, trade secret, trademark (whether registered or not), design or other intellectual or industrial property laws anywhere in the world, together with any know-how related to them.
“Material Breach” means a substantial failure by a Party to perform a material obligation under the Agreement, or a violation of a material provision of the Agreement, that significantly or repeatedly impairs the other Party’s ability to receive the benefits of, or to exercise its rights under, the Agreement. Without limitation, any breach that the Agreement expressly states to be a Material Breach is a Material Breach. Whether a breach of the DPA is a Material Breach is determined in accordance with Section 20 of the DPA.
“Order Form” means a written ordering document, executed by both Parties, that specifies the Services purchased, the Fees, the Term and other transaction-specific information, and that incorporates this MSA and the DPA by reference.
“Personal Data” has the meaning given in the DPA.
“Privacy Policy” means Engaige’s privacy policy available at letsengaige.com/legal/privacy.
“Services” means the Engaige software-as-a-service platform and related services identified in the Order Form, including the AI-assisted customer-experience functionality, integrations and any onboarding services described in the Order Form.
“Term” has the meaning given in Section 10.
“Usage Data” means data and information about the provision, use, configuration and performance of the Services that Engaige collects in connection with the Customer’s use, in a form that does not identify, and cannot reasonably be used to identify, the Customer, any User or any data subject.
“User” means an employee or contractor of the Customer (or of a Customer Affiliate permitted under an Order Form) that the Customer authorises to access and use the Services.
3. The Services
Provision of the Services
Subject to the Agreement and during the Term, Engaige will provide the Services to the Customer and use commercially reasonable efforts to make them available. Engaige grants the Customer and its Users a non-exclusive, non-sublicensable and non-transferable right to access and use the Services during the Term, solely for the Customer’s internal business purposes and in accordance with the Agreement and the Documentation.
Onboarding and support
Where the Order Form includes onboarding or implementation services, Engaige will provide them using commercially reasonable efforts and in cooperation with the Customer. The Customer will provide the access, information and resources reasonably required for onboarding; delays or omissions on the Customer’s side may affect the scope or timing of onboarding, and Engaige is not liable for that impact. Engaige provides support during its standard business hours and uses commercially reasonable efforts to respond to requests promptly. Onboarding and support are provided on a reasonable-efforts basis and Engaige does not guarantee any particular outcome, resolution time or result.
No service-level commitment by default
Except where an Order Form (or a schedule attached to it) expressly states an uptime commitment, response-time commitment or service credits, the Services are provided without a guaranteed service level, and the Customer’s remedies for unavailability or errors are those generally available under the Agreement. Where an Order Form does state a service-level commitment, that commitment is the Customer’s sole and exclusive remedy for the matters it covers and prevails over this Section for the failure modes within its scope. An enterprise service-level schedule is available from Engaige on request.
Changes to the Services
The Services are provided “as is” and “as available”. Engaige may modify, add to or remove features of the Services from time to time, provided that Engaige will not materially diminish the overall functionality of the Services purchased by the Customer during the then-current Term, and will give the Customer at least fourteen (14) days’ prior notice of any change that Engaige reasonably expects to have a material adverse effect on the Customer’s use of the Services. This Section does not apply to changes Engaige must make to address a security risk, comply with law, or respond to a Force Majeure Event, which Engaige may make with such notice (if any) as is reasonable in the circumstances.
Third-party providers and connectivity
Engaige uses third-party service providers to deliver the Services and may engage or change such providers from time to time, provided that Engaige remains responsible for the Services under the Agreement and that any transition is managed to minimise disruption. Where the Customer connects the Services to the Customer’s own systems or third-party services (for example, the Customer’s helpdesk, ecommerce platform or other integrations), those systems are operated under the Customer’s own arrangements and are not Engaige sub-processors; the Customer is responsible for obtaining and maintaining the equipment, accounts, connectivity and authorisations needed to use them with the Services, and Engaige is not responsible for their availability or performance.
Beta features
Engaige may make features identified as beta, trial, evaluation or experimental available to the Customer. Such features are optional, are provided “as is” without any warranty or service commitment, and may be modified or withdrawn at any time.
4. Order Forms and Users
Order Forms
Additional Services, modules, usage allowances or seats are ordered by executing a new or amended Order Form. Each Order Form incorporates this MSA and the DPA and must be signed by both Parties to take effect. The Customer will be invoiced for additional items in accordance with the relevant Order Form.
Users and account security
Where the Services are licensed on a per-User basis, the Customer needs a licence for each User. The Customer is responsible for setting up, managing and monitoring User accounts and credentials, for keeping account information accurate and current, and for keeping credentials confidential. The Customer must not share User accounts with, or otherwise provide access to the Services to, unauthorised persons. The Customer is responsible for all activity under its accounts and will promptly notify Engaige of any known or suspected unauthorised use or compromise. The Customer may increase the number of Users by written notice to Engaige and will be invoiced for the additional licences in accordance with the Order Form.
5. Customer responsibilities
The Customer will: (a) use the Services in accordance with the Agreement, the Documentation and applicable law; (b) be responsible for Customer Content and for the acts and omissions of its Users and of any of its Affiliates permitted to use the Services; (c) obtain and maintain the consents, authorisations and lawful bases required for Engaige to provide the Services and process Personal Data as contemplated by the Agreement and the DPA; and (d) configure and operate the Services, including the AI-assisted functionality, in accordance with its responsibilities in the DPA (in particular Sections 14, 15 and 16 of the DPA). The Customer’s data-protection and AI-related warranties and indemnity are set out in the DPA and apply in addition to this MSA.
6. Acceptable Use Policy
This Section is the Acceptable Use Policy referred to in the DPA. The Customer will comply with it and will ensure that its Users and permitted Affiliates comply with it.
6.1 Prohibited content
The Customer will not use the Services to upload, generate, process or transmit content that: (a) is unlawful in any jurisdiction where it will be received; (b) infringes the IP Rights, privacy or publicity rights of any third party; (c) is obscene, defamatory, harassing, threatening, or that incites violence or discrimination against any individual or group; or (d) constitutes child sexual abuse material or content that sexually exploits or endangers minors.
6.2 Prohibited conduct
The Customer will not, and will not permit any User to: (a) sell, lease, license, sublicense or otherwise make the Services available to a third party except as expressly permitted by the Order Form; (b) reverse engineer, decompile or disassemble the Services, or attempt to derive their source code, models or underlying structure, except to the extent this restriction is prohibited by applicable law; (c) modify, translate or create derivative works based on the Services; (d) use the Services to build, train or improve a product or service that competes with the Services, or to assist a third party to do so; (e) send unsolicited bulk messaging (spam) or conduct phishing through the Services; (f) introduce malware, viruses or other harmful code, or use flooding, denial-of-service or similar techniques against the Services; (g) probe, scan or test the vulnerability of the Services, or bypass or circumvent any access control or security measure, without Engaige’s prior written authorisation; (h) attempt to gain unauthorised access to the Services, to Engaige’s systems, or to other customers’ data; (i) scrape or mirror the Services; or (j) use the Services in a way that imposes an unreasonable load on Engaige’s infrastructure or that abuses free tiers, sandboxes, evaluation environments or fair-use allowances.
6.3 Prohibited AI uses
Without limiting the AI Act allocation in the DPA, the Customer will not configure or use the Services for any practice that constitutes a prohibited AI practice under Article 5 of Regulation (EU) 2024/1689 (the “AI Act”), including subliminal, manipulative or deceptive techniques that materially distort behaviour; exploitation of the vulnerabilities of a person or group; social scoring of natural persons leading to detrimental treatment; or real-time remote biometric identification in publicly accessible spaces. The Customer will not deploy the Services in a configuration that falls within Annex III of the AI Act without first informing Engaige in accordance with Section 16 of the DPA.
6.4 Enforcement and suspension
Where Engaige reasonably believes that the Customer is in breach of this Section, or determines in good faith that suspension is necessary to avoid material harm to Engaige, to other customers, or to a third party’s systems or data, Engaige may suspend access to the affected functionality or, where the breach is a Material Breach, terminate the Agreement in accordance with Section 10. Engaige will notify the Customer of any suspension and its reason as soon as commercially practicable and will, where reasonably practicable and not in conflict with law or its incident-response obligations, give the Customer an opportunity to remediate before suspending or terminating. A breach of Section 6.2(a)–(d) or Section 6.3 is a Material Breach.
7. Customer Content
Ownership and licence
As between the Parties, the Customer owns all right, title and interest in and to Customer Content. The Customer grants Engaige and its sub-processors a non-exclusive, worldwide, royalty-free licence to host, copy, process, transmit, display and otherwise use Customer Content solely as needed to provide and support the Services to the Customer and as otherwise permitted by the Agreement and the DPA. The Customer is responsible for Customer Content, including for having the rights to provide it and for its accuracy, and for maintaining its own backups; Engaige is not liable for the Customer’s failure to back up Customer Content or for loss of Customer Content except to the extent caused by Engaige’s breach of the DPA or this MSA.
No use for model training
Engaige will not use Customer Content, and will not use Personal Data processed in the course of providing the Services, to train, develop or improve any general-purpose or foundation AI model, whether Engaige’s own or a third party’s. Engaige’s processing of Personal Data is governed by the DPA and the Privacy Policy.
Aggregated and de-identified data
Engaige may generate and use Usage Data, and may create aggregated and de-identified data from the operation of the Services, to operate, secure, maintain, analyse and improve the Services and for reporting on general trends. Engaige will not share Usage Data or aggregated data with third parties in a form that identifies, or that can reasonably be used to identify, the Customer, any User or any data subject. Engaige will not use Usage Data, aggregated data or de-identified data to train or fine-tune any general-purpose or foundation AI model. This Section is subject to the DPA, which prevails in respect of Personal Data.
8. Intellectual property, Feedback and publicity
Engaige IP
Engaige (and its licensors) owns and retains all right, title and interest in and to the Services and all related and underlying technology, models, software and Documentation, and all IP Rights in them, including any updates, enhancements, modifications and derivative works. No rights are granted to the Customer other than the limited access and use rights expressly set out in the Agreement. Nothing in the Agreement transfers any IP Rights in the Services to the Customer.
Feedback
If the Customer provides Feedback, it does so “as is”, and Engaige may use Feedback freely and without restriction or obligation, including to improve the Services. The Customer is not required to provide Feedback.
Independent development
Nothing in the Agreement restricts Engaige from developing, acquiring or offering products or services (including AI models) independently, provided that Engaige does not use Customer Content or Personal Data to do so otherwise than as permitted by the DPA.
Publicity and trademarks
Neither Party will use the other’s name, logo or trademarks without prior consent, except that, unless the Order Form states otherwise, Engaige may identify the Customer as a customer and use the Customer’s name and logo in customer lists and on its website. Any joint case study, press release or other co-branded material requires both Parties’ prior approval, and each Party will comply with the other’s reasonable branding guidelines. Either Party may withdraw a previously given marketing consent on reasonable written notice, on a going-forward basis.
9. Fees, payment and taxes
Invoicing and payment
Engaige will invoice the Customer for the Fees in advance, in the currency and at the cadence stated in the Order Form. Invoices are payable within the payment term stated in the Order Form. If the Customer fails to pay an undisputed invoice by its due date, the Customer is in default without further notice, statutory commercial interest (wettelijke handelsrente) accrues, and Engaige may, on reasonable notice, suspend the Services until payment is received. The Customer may not set off or withhold any amount against Fees due, except to the extent set-off cannot be excluded by law.
Disputed invoices
If the Customer disputes an invoice in good faith, it must notify Engaige within the payment term, identifying the disputed amount and the reason, and must pay all undisputed amounts when due. The Parties will work together in good faith to resolve the dispute promptly; suspension and default-interest rights do not apply to amounts genuinely in dispute while the Parties are working to resolve them.
Overage
Unless the Order Form provides for unlimited usage, the Customer will pay overage Fees for usage above the included allowance, calculated at the overage rate in the Order Form. Unless the Order Form states otherwise, overage is invoiced at the end of each calendar quarter and is payable within the payment term in the Order Form.
Fee adjustment on renewal
Engaige may increase the Fees with effect from each renewal Term by no more than the greater of (a) the percentage increase in the Services Producer Price Index published by Statistics Netherlands (Centraal Bureau voor de Statistiek) over the preceding twelve (12) months, and (b) five percent (5%), unless the Order Form specifies a different uplift or cap, which prevails. Engaige will give the Customer at least forty-five (45) days’ written notice (which may be by email) before the renewal date of any such increase. If the Customer does not agree to the increase, it may give notice of non-renewal within thirty (30) days of the notice; failing which the increased Fees apply from the renewal.
Taxes
All Fees are exclusive of VAT and other applicable taxes, duties and charges, for which the Customer is responsible, other than taxes on Engaige’s net income.
10. Term and termination
Term
The Agreement begins on the Effective Date and continues for the initial term stated in the Order Form and any renewal terms (together, the “Term”). Unless the Order Form states otherwise, the Agreement automatically renews for successive renewal terms equal in length to the initial term, unless either Party gives notice of non-renewal within the notice period stated in the Order Form (or, if none is stated, at least thirty (30) days before the end of the then-current Term). Any breakout, ramp or early-exit arrangement stated in the Order Form applies in addition to this Section.
Termination for cause
Either Party may terminate the Agreement (or an affected Order Form) on written notice if the other Party: (a) commits a Material Breach and fails to cure it within thirty (30) days after written notice; (b) ceases business without a successor, makes an assignment for the benefit of creditors, or becomes subject to insolvency, receivership or bankruptcy proceedings that are not dismissed within sixty (60) days. Either Party may terminate an affected Order Form if a Force Majeure Event prevents performance of the Services for thirty (30) or more consecutive days. Non-payment of undisputed Fees that remains uncured for thirty (30) days after notice is a Material Breach.
Effect of termination
On expiry or termination of the Agreement: (a) the Customer’s right to use the Services ends; (b) Engaige will return or delete Customer Content containing Personal Data in accordance with Section 12 of the DPA, and will make other Customer Content available for export for thirty (30) days, after which it may be deleted; and (c) the Customer will pay all Fees accrued up to the effective date of termination, and Engaige will refund any pre-paid Fees for Services not delivered where termination is due to Engaige’s uncured Material Breach. Termination does not affect accrued rights or obligations.
Waiver of rescission
To the extent permitted by law, each Party waives its right to rescind, annul or dissolve (ontbinden) the Agreement in whole or in part under articles 6:228 and 6:265 of the Dutch Civil Code; the termination rights in this Section are the Parties’ exclusive termination remedies.
Survival
Sections 2, 5, 6, 7 (first paragraph), 8, 9 (for amounts accrued), 10 (Effect of termination and this Section), 11, 12, 13, 14, 15, 19 and 20, and any other provision that by its nature should survive (including any provision giving rise to an accrued indemnity claim), survive expiry or termination.
11. Warranties
11.1 Engaige warranties
Engaige warrants that: (a) it will provide the Services with reasonable skill and care and substantially in accordance with the Documentation; (b) it will not knowingly introduce malware into the Services; and (c) it has the right to grant the rights it grants under the Agreement.
11.2 Customer warranties
The Customer warrants that: (a) it has the authority to enter into the Agreement; (b) its use of the Services, its Customer Content and its instructions and configurations comply with the Agreement and applicable law; and (c) the information it provides to Engaige (including in the Order Form) is accurate and complete. The Customer’s data-protection and AI-related warranties in Section 17 of the DPA apply in addition.
11.3 Disclaimer
Except as expressly stated in Section 11.1, and to the fullest extent permitted by law, the Services are provided “as is” and “as available”, and Engaige disclaims all other warranties, whether express, implied or statutory, including any implied warranty of merchantability, satisfactory quality, fitness for a particular purpose and non-infringement. The Customer acknowledges that the outputs of the AI-assisted functionality are probabilistic and may be inaccurate, incomplete or unsuitable, as described in Section 15 of the DPA, and that the Customer is responsible for the configuration, human-review and verification measures described in the DPA. Engaige does not warrant that the Services will be uninterrupted or error-free.
12. Indemnification
Engaige IP indemnity
Engaige will defend the Customer against any third-party claim alleging that the Services, as provided by Engaige and used in accordance with the Agreement, infringe that third party’s IP Rights, and will indemnify the Customer against damages and reasonable legal costs finally awarded against the Customer or agreed in settlement by Engaige in respect of such a claim. Engaige has no obligation under this Section to the extent the claim arises from: (a) Customer Content; (b) the Customer’s combination of the Services with products, data or services not provided by Engaige; (c) the Customer’s use of the Services other than in accordance with the Agreement or the Documentation; (d) any modification of the Services not made by or on behalf of Engaige; (e) the content of an output generated by a third-party large-language-model or other foundation-model provider integrated into the Services, as distinct from the Engaige Services themselves; (f) the training data or training process of a third-party foundation model not developed by Engaige; or (g) any feature made available as beta, trial, evaluation or experimental. For a claim excluded under (e), Engaige will, at the Customer’s reasonable request, seek the benefit of any IP indemnity or copyright commitment offered by the relevant model provider in respect of such output and pass through to the Customer any recovery it obtains. If the Services are, or in Engaige’s reasonable opinion are likely to become, the subject of an infringement claim, Engaige may, at its option and expense, procure the right for the Customer to continue using the Services, modify or replace them to make them non-infringing, or, if neither is commercially reasonable, terminate the affected Services and refund any pre-paid Fees for the unused period. This Section states the Customer’s sole and exclusive remedy, and Engaige’s entire liability, for any claim of IP infringement by the Services.
Customer indemnity
The Customer’s indemnity in respect of Customer Content, its instructions and configurations, its breach of the AUP, and its data-protection and AI-related obligations is set out in Section 17 of the DPA and applies as if set out in this MSA. In addition, the Customer will indemnify Engaige against third-party claims arising from the Customer’s breach of Section 6 (Acceptable Use Policy) of this MSA.
Procedure
The Party seeking indemnification will promptly notify the other of the claim (provided that a delay does not relieve the indemnifying Party except to the extent it is prejudiced), give the indemnifying Party control of the defence and settlement (provided that any settlement imposing a non-monetary obligation on, or admission of liability by, the indemnified Party requires that Party’s prior written consent, not to be unreasonably withheld), and provide reasonable cooperation at the indemnifying Party’s expense.
13. Limitation of liability
Exclusion of indirect damages
To the fullest extent permitted by law, neither Party (nor its Affiliates, agents, licensors or suppliers) is liable to the other for any indirect, special, incidental, consequential, exemplary or punitive damages, or for lost profits, lost revenue, lost savings, loss of goodwill or loss of or damage to data (other than the cost of restoring data from the Customer’s backups), in each case however arising and even if advised of the possibility.
Liability cap
Subject to the carve-outs below, each Party’s total aggregate liability arising out of or in connection with the Agreement, whether in contract, tort (including negligence) or otherwise, is limited, for all events in any twelve (12) month period, to the total Fees paid or payable by the Customer under the Agreement in the twelve (12) months preceding the event giving rise to the liability (or, where the Order Form states a different liability cap or cap multiple, that amount, which prevails).
Carve-outs
The exclusion of indirect damages above does not apply to, and the liability cap above does not limit, liability for: (a) a Party’s payment obligations; (b) death or personal injury caused by a Party’s negligence; (c) fraud, intentional misconduct or gross negligence (opzet of bewuste roekeloosheid); (d) a Party’s breach of Section 15 (Confidentiality); (e) the Customer’s breach of Section 6 (Acceptable Use Policy) or of Section 8 (Engaige IP); and (f) liability that cannot be excluded or limited by law. Engaige’s liability under the IP indemnity in Section 12 is not subject to the general cap above, but is instead subject to a separate dedicated cap equal to the greater of (i) the cap above and (ii) the limit of Engaige’s professional-indemnity and cyber-liability insurance then in force (and subject always to the exclusions in Section 12), unless the Order Form states a different IP-indemnity cap. The Customer’s indemnity under Section 17 of the DPA is not subject to the liability cap above; it is instead subject only to the separate dedicated cap set out in Section 17 of the DPA, which may, where the Order Form so provides, exceed that cap. A Party’s liability for breach of the DPA (including damage caused by unlawful processing) is subject to a separate aggregate cap equal to the greater of the cap above and any data-protection liability cap stated in the Order Form, except where applicable data-protection law or the Standard Contractual Clauses require liability towards data subjects to be uncapped, in which case that liability is uncapped to that extent.
Claims
To be eligible for a remedy, the Customer must notify Engaige of the facts giving rise to a claim within a reasonable period after the Customer becomes, or reasonably should have become, aware of them, and in any event within twelve (12) months, after which the claim lapses to the extent the delay has prejudiced Engaige. This Section does not shorten any limitation period that cannot be varied by agreement.
Insurance
During the Term, Engaige will maintain, with reputable insurers, insurance appropriate to its obligations under the Agreement, including professional indemnity (errors and omissions) and cyber-liability cover, each with a limit of not less than the amount stated in the Order Form or, if none is stated, a commercially reasonable amount for a business of Engaige’s size and activities. On the Customer’s reasonable written request (no more than once per year), Engaige will provide a certificate or summary evidencing the insurance then in force.
14. Data protection
In connection with the Services, Engaige processes Personal Data as the Customer’s processor, in accordance with the DPA and the Privacy Policy. The DPA is incorporated into the Agreement and is binding on the Parties without separate countersignature; either Party may request a countersigned counterpart for its records by writing to privacy@letsengaige.com. The Customer is responsible for the lawfulness of the Personal Data it makes available to the Services and for the matters allocated to it in the DPA. In the event of a conflict between this MSA and the DPA in respect of the processing of Personal Data, the DPA prevails.
15. Confidentiality
Obligation
During the Term and for five (5) years afterwards (and, for trade secrets, for as long as they remain trade secrets), each Party will keep the other’s Confidential Information confidential, use it only to perform or exercise its rights under the Agreement, and not disclose it except to its personnel, advisers and contractors who need it and who are bound by confidentiality obligations no less protective than these. Each Party is responsible for its recipients’ compliance.
Exclusions
The obligation does not apply to information that: (a) is or becomes generally available other than through a breach of this Section; (b) was lawfully known to the receiving Party before disclosure without a duty of confidentiality; (c) is lawfully received from a third party without a duty of confidentiality; or (d) is independently developed without use of the disclosing Party’s Confidential Information.
Compelled disclosure
A Party may disclose Confidential Information to the extent required by law or by a court, regulator or other authority, provided that, where lawfully permitted, it gives the other Party reasonable prior notice and discloses only the portion required.
Prior NDA
Any non-disclosure agreement signed by the Parties before the Effective Date is superseded by this Section, which applies to all Confidential Information exchanged before and after the Effective Date.
16. Versioning
Engaige maintains the current version of this MSA at letsengaige.com/legal/msa. The version of this MSA in force as at the Effective Date of the applicable Order Form applies for the duration of the then-current Term. On each renewal, the then-current published version applies for the renewed Term. Engaige will publish notice of any material change to this MSA at that page and, where the Customer has provided a billing or legal contact, by email to that contact, at least thirty (30) days before the change takes effect. A material change includes a change to the Fees structure, the limitation of liability or indemnities, the governing law or jurisdiction, the termination rights, the warranties, or a restriction in the AUP that materially reduces what the Customer may do with the Services. Routine, non-material changes (typographical corrections, clarifications that do not change substantive meaning, contact updates, cross-reference renumbering, and additions to the AUP that address newly emerging abuse vectors or newly announced legal prohibitions) take effect at that page without prior notice. If the Customer does not accept a material change, its remedy is to give notice of non-renewal before the change takes effect for its Term.
17. Force majeure
Except for payment obligations, neither Party is liable for any delay or failure to perform to the extent caused by an event beyond its reasonable control, including natural disasters, acts of God, strikes or labour disputes, acts of war or terrorism, civil unrest, telecommunications or internet-infrastructure failures, failures of utilities or of a third-party hosting or connectivity provider, pandemics or epidemics, quarantines, or government orders (a “Force Majeure Event”). The affected Party will use reasonable efforts to mitigate the effect.
18. Governing law and jurisdiction
The Agreement, and any non-contractual obligations arising out of or in connection with it, are governed by the laws of the Netherlands, excluding its conflict-of-laws rules and the UN Convention on Contracts for the International Sale of Goods. The Rechtbank Midden-Nederland (District Court of Midden-Nederland, location Utrecht) has exclusive jurisdiction over any dispute arising out of or in connection with the Agreement, save that either Party may seek interim or injunctive relief in any court of competent jurisdiction. Where the Standard Contractual Clauses apply under the DPA, the governing law and forum for those clauses are as stated in the DPA.
19. Notices
Notices under the Agreement are given in writing and are effective: (a) when delivered, if delivered in person or by courier; or (b) when sent, if sent by email to the address stated in the Order Form for the receiving Party (or, for Engaige, to legal@letsengaige.com), provided no bounce or delivery failure is received. Operational and service-related notices may be given through the Services or by email to the Customer’s designated contacts. Either Party may update its notice address by notice to the other. Notices under the DPA are given as set out in the DPA.
20. Miscellaneous
Assignment
Neither Party may assign or transfer the Agreement without the other’s prior written consent, except that either Party may assign the Agreement, on notice and without consent, to an Affiliate or to a successor in connection with a merger, acquisition, reorganisation or sale of all or substantially all of the assets to which the Agreement relates. Any other purported assignment is void. The Agreement binds and benefits the Parties and their permitted successors and assigns.
Relationship of the Parties
The Parties are independent contractors. Nothing in the Agreement creates an employment, agency, partnership or joint-venture relationship.
Subcontracting
Engaige may use subcontractors and third-party providers to perform its obligations and remains responsible for their performance. Engaige’s engagement of sub-processors of Personal Data is governed by the DPA.
Severability
If any provision of the Agreement is held invalid or unenforceable, it will be modified or severed to the minimum extent necessary, and the remaining provisions remain in effect.
No waiver
A failure or delay in exercising a right is not a waiver, and no waiver is effective unless in writing and signed by the waiving Party. A waiver of one breach is not a waiver of any other.
Entire agreement
The Agreement (the Order Form, this MSA, the DPA and any attached schedules) is the entire agreement between the Parties on its subject matter and supersedes all prior agreements and understandings, oral or written. The Customer has not relied on any statement or representation not set out in the Agreement. No amendment is effective unless made in accordance with the Versioning section or signed by both Parties.
Counterparts and electronic signature
The Order Form and any amendment may be signed in counterparts and by electronic signature, each of which is an original and all of which together form one instrument.
Third-party beneficiaries
Except for a Party’s Affiliates and indemnified persons as expressly provided, the Agreement does not create rights for any third party.