END USER LICENSE AGREEMENT

This page was last updated on May 22, 2023

IMPORTANT - PLEASE READ THE END USER LICENSE AGREEMENT CAREFULLY

- This End User License Agreement (hereinafter, the "Agreement") is an agreement between Nutribam, a company incorporated under Belgian law, having its registered office at Leeuwenrikenlaan 5, 2390 Malle, Belgium, registered with the Crossroads Bank for Enterprises under number 0674.721.904 (hereinafter, "4Gold" or "we") and you (hereinafter, the "End User" or "you"), explaining your rights and obligations as an End User of 4Gold's products.

- By clicking the "I agree to the End User Terms" box, or by accessing or otherwise using the mobile application (hereinafter, "Application"), you agree to this Agreement. If you do not agree to this Agreement, do not click the "I agree" box and do not access or otherwise use the Application.

- You acknowledge and declare that digital acceptance of this Agreement has the same legal value as a physical wet ink signature.

- We reserve the right, at our sole discretion, to modify, amend, add or delete this Agreement or any part thereof at any time. Your rights under this Agreement are subject to the most recent version of this Agreement. Changes to this Agreement will be communicated to you via email or pop-up, as appropriate OR you should bookmark this Agreement and read it regularly to stay informed of your rights and relevant restrictions.

1. USAGE RIGHTS AND OBLIGATIONS

1.1. The End User is granted a non-exclusive, personal, non-sublicensable right to use the Application solely through online web and mobile application access, provided you comply with the terms of this Agreement. The rights granted to the End User for the Application are expressly limited to personal use by the End User. Under no circumstances can the Application or its content be used to draw medical conclusions of any kind. The license (only a right to use) to the Application is granted to you, but is not sold to you. All of our rights not expressly granted under this Agreement are retained.

1.2. During the term of the Agreement, the End User will implement and maintain, to the extent reasonably possible, adequate security measures on its device to secure the Application against unauthorized access or use;

1.3. Unless expressly permitted by law, the End User may not disassemble, decompile or reverse engineer the Application. The End User may not modify, adapt or translate the Application or any part thereof in any way or allow the Application or any part thereof to be combined with or incorporated into any other computer program (except for the combined solution as permitted in this Agreement). Except as expressly permitted by law, End User may not modify or create derivative works from the Application. Except as expressly permitted in this Agreement, End User may not rent, lease, assign, dispose of, sublicense or otherwise transfer its rights in the Application to any third party.

1.4. "Software" means any software products of 4Gold and that may be included in the Application. Portions of the Software, if any, owned or controlled by third parties and licensed to 4Gold (hereinafter "Third Party Software") may be subject to additional terms and conditions set forth in the human readable form of the Software (hereinafter "Software Source Code") and the third party information files accompanying the Software. The End User acknowledges and agrees that its use of Third Party Software is subject to compliance with such additional terms and conditions. The Third Party Software is licensed, not sold, to you. Title and ownership of the Third Party Software and any part thereof remains with that third party, except for title to the medium on which the Third Party Software is provided. The End User is prohibited from using the Third Party Software separately from the Application. The End User is prohibited from subjecting any part of the Third Party Software to reverse engineering, attempted reverse engineering, decompilation or disassembly. 4Gold's licensors and 4Gold shall not be liable for any consequential damages. The End User is prohibited from (i) copying the Third Party Software, (ii) using the Third Party Software with, and/or transferring it to, any third party other than a contractor of the End User or as installed, embedded, integrated or otherwise incorporated into a Product, (iii) modifying the Third Party Software, or (iv) exporting the Third Party Software or any underlying technology in violation of applicable E.U., U.S. or other export laws and regulations. All rights to use the Third Party Software shall terminate upon termination of this Agreement.

1.5. You acknowledge that the Application may contain information, software, photographs, videos, text, graphics, music, sounds, questions, creative suggestions, messages, comments, feedback, ideas, recipes, notes, drawings, articles and other materials (hereinafter "Information") that are protected by intellectual property rights including but not limited to, copyright, database rights, patents, trademarks, designs, trade secrets, proprietary rights in know-how, confidential information, design rights and/or other proprietary rights, and that such rights (whether registered or unregistered) are valid and protected in all present or future forms, media and technologies. In any event, 4Gold is and shall remain the owner or licensee of such rights as a result of which all Information is copyrighted under applicable copyright laws (and 4Gold owns a copyright in the selection, coordination, arrangement and enhancement of such Information). In addition, all trademarks appearing on the Application are trademarks of their respective owners.

1.6. 4Gold only grants the End User a right to use the Application. Title and ownership rights to the Application are not transferred to the End User.

1.7. All intellectual property rights associated with the Application, including - without limitation - all right, title and interest (legal, equitable or otherwise) in software, databases, technology and source code used therein, as well as all rights to modification, enhancements and future releases of the Application, whether registered or unregistered, together with all rights in the attribution of and applications, compilations, inventions, know-how, confidential information, trade secrets, trade names, company names, domain names as they exist from time to time anywhere in the world, shall remain the full and exclusive property of 4Gold and/or 4Gold's third party suppliers.

1.8. "Feedback" means any feedback, comments, suggestions or materials (including, to the extent disclosed to 4Gold, any modifications made by End User) that End User may provide to 4Gold about or in connection with the Application, including any ideas, concepts, know-how or techniques contained therein. The End User may provide Feedback in connection with maintenance or otherwise. The End User hereby grants 4Gold a worldwide, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify or otherwise exploit the Feedback for any purpose, including incorporating or implementing the Feedback in the Applications. The End User agrees that 4Gold may exploit all Feedback without any limitation or obligation due to intellectual property rights or otherwise. For the avoidance of doubt, no Feedback shall be considered Confidential Information of the End User within the meaning of Article 6 of this Agreement, and nothing in this Agreement limits 4Gold's right to independently use, develop, evaluate, or market products, whether the Feedback is incorporated therein or otherwise.

2. DELIVERY

2.1. The Application will be deemed to have been accepted at the time of delivery. If the Application is made available to the End User by means of access to a website and/or (cloud) server, delivery will be deemed to have taken place at the time of such provision.

3. PROHIBITED USE

3.1. You acknowledge that ownership rights in the Information are owned by 4Gold (or its licensors), and from this perspective, you may not modify, copy, sublicense, rent, sell, publish, transmit, adapt, enhance, (re)distribute, perform, reverse engineer, assign, disassemble, decompile, participate in the transfer or sale, create derivative works, or in any way exploit the Information, in whole or in part. When Information is downloaded to your device, you do not acquire ownership of such Information. Modification of the Information or use of the Information for any other purpose, including, but not limited to, use of Information in printed form or on a website, app or network computing environment is strictly prohibited unless you receive our prior written consent. You also need our prior written permission to create a hyperlink to our website and/or to the Application.

3.2. You will not take any actions with the intent to damage the Application by means of viruses, "worms," defects, "Trojan horses," "malware," "spyware" or things of a destructive nature.

3.3. You will not use the Application in a manner that could harm or otherwise cause harm to any person, defame, abuse, harass or threaten any person or encourage third parties to do so.

3.4. You will not use the Application in a manner or for a purpose that violates any law or other regulation (including, but not limited to, anti-money laundering laws and regulations), or for any transfer of data that is or may be illegal, fraudulent, defamatory, harassing, invasive or harmful to the privacy of third parties, that contains viruses, that violates or may violate the intellectual property or other rights of 4Gold, its licensors, other persons or entities.

3.5. You will not attempt to access reserved or protected areas of the Application to which you have not been explicitly granted access.

3.6. End User shall indemnify, defend and hold harmless 4Gold from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with any claim arising out of or relating to (a) any breach by End User of this Agreement, (b) End User's data, (c) End User's modifications of or combinations with an Application, (d) any service or product offered by End User in connection with or related to an Application or (e) representations or warranties made by End User with respect to an Application to third parties.

This indemnification obligation is contingent upon End User's receipt of (i) prompt written notice of any such claim (but in any event sufficiently timely so that End User may respond without suffering any prejudice in so doing); (ii) the exclusive right to control and direct the investigation, defense or settlement of any such claim, provided that 4Gold may participate in the claim at its own expense and End User may not settle any claim without 4Gold's prior written consent; and (iii) all reasonable necessary cooperation by 4Gold at End User's expense.

4. WARRANTY LIMITATIONS, GUARANTEES, LIABILITY

Please observe the following important limitations on warranties, guarantees and liability:

4.1. The End User represents and warrants that it has the legal power and authority to enter into this Agreement.

4.2. To 4Gold's knowledge, its Applications do not infringe the intellectual property rights of third parties. If a third party alleges that the Applications infringe its rights or if a third party commences legal proceedings against the End User or 4Gold for alleged infringement of its rights, 4Gold shall have the right, in its sole discretion, to (i) refute such allegations or claims, (ii) modify the Applications so that they no longer infringe the rights of such third party or (iii) block the End User's access to the Applications subject to a refund of the price paid for it by the End User within thirty (30) days after blocking access to the Application. If none of the above is reasonably possible, 4Gold shall be liable to the End User in accordance with this Article 4 of this Agreement.

4.3. If 4Gold provides Applications to the End User that are manufactured by another supplier, 4Gold will provide no warranties to the End User other than those provided by that supplier.

4.4. The Applications are provided "as is" and to the maximum extent permitted by applicable law, except in cases of malice, gross negligence or failure to perform the essential obligations of this Agreement. Except as expressly set forth herein, 4Gold and its third party suppliers/licensors provide the applications as is and with all defects, and hereby disclaim all other representations, warranties and guarantees, whether express, implied or statutory, including implied warranties of merchantability, title, non-infringement and fitness for any purpose.

Notwithstanding the foregoing, 4Gold and its third-party suppliers/licensors make no representation, warranty or guarantee as to (i) the reliability, timeliness, quality, suitability, truth, availability, (ii) that (a) the use of the products will be secure, timely, uninterrupted or error-free or will work in conjunction with other hardware, software, systems or data, (b) the products will meet the end user's requirements or expectations, (c) the stored data will be accurate or reliable or that the stored data will not be lost or corrupted, (d) the quality of the products, services, information or other material purchased, or other material purchased or obtained by the end user through the applications will meet the end user's requirements or expectations, (e) errors or deficiencies will be corrected, or (f) the applications will be free of viruses or other harmful components.

Notwithstanding the foregoing, 4Gold and its third-party suppliers/licensors make no representation or warranty with respect to, and assume no liability for, products provided on an evaluation basis. In addition, 4Gold and its third party suppliers/licensors shall not be liable for delays, interruptions, service disruptions and other problems inherent in the use of the Internet and electronic communications or other systems beyond the reasonable control of 4Gold. The End User may have other legal rights. However, to the extent permitted by law, the duration of legally binding warranties, if any, is limited to the limited warranty period.

4.5. Under no circumstances will 4Gold be liable for damage caused by improper installation, configuration, use and/or maintenance of the Applications by the End User or a third party.

4.6. In no event shall 4Gold be liable for consequential or indirect damages, nor for loss of data, lost profits, loss of income, downtime, increased operating costs, loss of customers or damage to equipment, data or reputation that the End User, its customers, users or third parties may suffer as a result of any fault or negligence on the part of 4Gold or any appointee.

4.7. 4Gold's total liability for proven direct damage will be limited to the lesser of the following amounts: the price paid by the End User to 4Gold for the Application that caused the damage, or EUR 25,000.00.

4.8. If the End User turns to other suppliers, 4Gold assumes no liability above or beyond that assumed by such suppliers for their goods or services.

4.9. You understand, agree and accept that 4Gold has no obligation to install, maintain, support, upgrade or update the Application, or to provide any or specific Information relating to the Application. 4Gold and/or the owners of any Information may remove such Information from time to time without notice, to the extent permitted by applicable law. This section will be enforced to the extent permitted by applicable law.

5. REGULATION AND DATA PROTECTION

5.1. The End User and 4Gold are aware that personal data are processed via the Application within the meaning of the Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data (General Data Protection Regulation). 4Gold adheres to the applicable laws and regulations when processing such personal data. Regarding your rights as a data subject, please refer to 4Gold's privacy policy, which can be found at https://4gold.eu/nl/pages/privacy-policy.

5.2. 4Gold will implement appropriate technical and organizational security measures necessary to protect personal data to be processed under the Application against accidental or unauthorized destruction, accidental loss, as well as against unauthorized access to, alteration and use of, and any other unauthorized handling of, such personal data, including through the implementation of user and access management based on identification, authentication and logging mechanisms.

5.3. You agree to take all appropriate measures to protect your own data and/or software from contamination by possible viruses on the Internet network. You should avoid using computers and cell phones accessible to the public, taking into account the risks inherent in this type of access and in particular the possibility of compromising the security of your credentials.

5.4. You are solely responsible for using and implementing appropriate means for the safety, protection and security of your personal equipment and data. We strongly recommend that you

- use cryptographic means to protect your data from unauthorized access;

- Back up your data regularly;

- regularly update your software and maintain an up-to-date anti-virus at all times.

6. CONFIDENTIAL INFORMATION

6.1. Confidential Information shall mean all commercial, technical, financial and other information of any kind and recorded in any form (including, but not limited to, know-how, pricing and business procedures) provided by the Disclosing Party to the Receiving Party, including, but not limited to, know-how, business and other plans, ideas, inventions, formulas, models, trade and manufacturing secrets, proprietary computer programs, algorithms, techniques, drawings, prototypes, formulas or test data, as well as any intellectual property rights contained therein. The receiving party may use such information only for the purpose for which it was provided.

6.2. The confidentiality obligations referred to in this Article 6 do not apply to Confidential Information that:

 

- common knowledge, other than through a breach by the receiving party of its obligations under the Agreement;

- communicated to the receiving party by a third party as non-confidential;

- independently developed by the receiving party, or that the receiving party was already aware of this information before the information was communicated to it;

- disclosed with the written consent of the disclosing party.

6.3. If the Receiving Party is required to disclose Confidential Information by order of a court of competent jurisdiction and/or administrative or governmental authority or pursuant to any law, regulation or any other administrative or judicial proceeding, it shall inform and consult the Disclosing Party in advance.

6.4. Notwithstanding the provisions of this Article, the receiving Party may disclose the Disclosing Party's Confidential Information to its employees, consultants and suppliers who are directly involved in and/or need to know such Confidential Information for the performance of the Agreement, provided that each Party warrants and undertakes to ensure compliance with this Article, in particular by imposing on them written confidentiality obligations similar to those contained in this Article.

6.5. If the Receiving Party no longer needs the Confidential Information to perform its obligations under this Agreement or if this Agreement is terminated, the Receiving Party agrees to return or destroy the Confidential Information (together with each copy and summary thereof) to the Disclosing Party at the Disclosing Party's discretion.

6.6. The End User will use its best efforts to protect the Application from unauthorized access, reproduction, disclosure or use. The End User will notify 4Gold immediately if the End User becomes aware of any unauthorized use of or access to the Application, and will cooperate fully with 4Gold at its own expense to minimize the effects of such unauthorized use or access.

7. DURATION AND TERMINATION

7.1. This Agreement shall take effect upon the End User's first use of the Licensed Products and shall continue for the duration of the End User's use of the Licensed Products until terminated by either the End User or 4Gold. Unless terminated by the End User with one (1) month's written notice to 4Gold prior to the end of the then current term, the Agreement will automatically renew for successive six (6) month periods.

7.2. 4Gold may at any time terminate or suspend this Agreement with immediate effect (at 4Gold's option) by written notice to End User if End User commits a breach of any material term of this Agreement and (if such breach is remediable) fails to remedy such breach within a period of 30 (thirty) days after being given written notice to do so. Upon termination of this Agreement for any reason, the End User agrees to immediately cease using the Application. Article 4 (Limitation of Warranties, Guarantees and Liability), Article 6 (Confidential Information) and Article 7 (Duration and Termination) of this Agreement shall survive termination of this Agreement.

7.3. 4Gold is entitled to suspend all or part of its contractual performance (for example, suspend the End User's access to the Application) without judicial intervention if the End User endangers or threatens to endanger the rights of 4Gold and/or the services provided to 4Gold's clients.

8. FORCE MAJEURE

8.1. Circumstances beyond 4Gold's control that are reasonably unforeseeable and render 4Gold's performance of the Services or delivery of the Products impossible, such as but not limited to fire, flood, strikes, administrative actions, non-delivery of parts or downtime with third-party suppliers and other unforeseen circumstances, shall relieve 4Gold of its obligations under this Agreement for the duration of the force majeure situation. In such case, the End User shall not be entitled to any indemnification by 4Gold. Force majeure cannot be applied to financial obligations.

9. APPLICABLE LAW AND COMPETENT COURTS

9.1. The validity, interpretation, performance, execution and termination of this Agreement between 4Gold and the End User shall be governed by Belgian law.

9.2. All disputes relating to the Agreement are subject to the exclusive jurisdiction of the courts of Antwerp, Belgium.

9.3. However, before initiating any proceedings before the court, 4Gold and the End User will make a good faith effort to negotiate to reach an out-of-court settlement.

10. MISCELLANEOUS

10.1. Should any provision of this Agreement, or the performance thereof, be void or unenforceable, the remaining provisions shall not be affected thereby and shall remain in full force and effect. In such event, 4Gold and the End User shall, within the limits of applicable law, draft a new provision that meets the purposes intended by the void or unenforceable provision, and include it in an annex to this Agreement.

10.2. The entire agreement between you and 4Gold (hereinafter "Entire Agreement") consists of:

- this Agreement;

- 4Gold's Terms and Conditions;

- Privacy Policy.

10.3. The Entire Agreement supersedes and voids all prior written or oral understandings, agreements, offers, correspondence or proposals between the End User and 4Gold.

10.4. 4Gold reserves the right to use the services of subcontractors for the execution of the Agreement without notifying the End User.

10.5. No waiver or abandonment of rights may be understood by the mere failure to enforce or fail to enforce a right, the failure to enforce a sanction or procedure, or the failure of 4Gold to assert a claim.

10.6. All notices and requests relating to this Agreement shall be given or made in writing to the respective parties.