When the Customer has the right to copy the Software, without this sentence being interpreted as the granting of that right, the Customer must ensure that all such notices or signs appear on the copy in the same way as on the original. The same obligation applies to all documentation and attached documents related to the Software.
3.2. The prices are calculated based on the contractually agreed number of Users. If the Customer requires more Users, this must be requested in writing via the provided (email) address, and an invoice will be prepared for the number of additional Users.
Upon payment of this invoice, the number of recognized Users will be increased accordingly.
3.3 The Service Provider has the right to audit the Customer's use of the Software (including through site visits), and the Customer shall provide full cooperation to such audits and grant the Service Provider, or the external auditor, access
to all information, systems, tools, and premises that are reasonably necessary for the Service Provider to obtain or verify the required usage information of the Software. The costs of the audit (except for the internal costs for the Customer) are
borne by the Service Provider, unless the audit reveals that the Customer underpays, in which case the Customer – in addition to the payment of extra costs (subject to retroactive late interest from the date the recognized usage was exceeded) of the actual
use of the Software by the Customer –, bears all the costs of the audit;
3.3.1. the Service Provider is entitled to an additional fee for the actual or suspected use of the Software by the Customer;
3.3.2. the Service Provider may terminate the Agreement with immediate effect due to breaches by the Customer;
3.3.3. the Service Provider may exercise all other rights and remedies available to it; whereby the aforementioned constitute cumulative rights and remedies.
3.4. Access to and normal use of the Service is granted after the complete customization of the Service has been completed.
3.5. The Service Provider will be responsible for concluding an agreement and providing the necessary cloud space. The requirements regarding the cloud space are provided in the actual agreement.
3.6. It is the task and responsibility of the Service Provider to continue to provide the necessary cloud space for the use of the Service.
4.1. The Service Provider invoices the right to access and use the project, as determined in the Agreement, in advance or at the end of each period. The fees for support and maintenance will, if applicable, begin to accrue after the end of the Warranty Period and will be invoiced in advance on a monthly or an annual basis for the upcoming month or the upcoming year.
4.2. In case of a dispute, the Customer must inform the Service Provider within 5 days after receipt of the invoice and must provide their reasons to the Service Provider. The Parties will then initiate discussions in good faith to resolve the dispute.
5.1. The delivery of the Service is deemed to have occurred at the moment the Customer has received the final login details to access the Service and can commence using the Service. This delivery will take place after the stipulated conditions and description of the service in the Framework Agreement and its annexes have been completed, thus aligning with the description and subject of the agreement as agreed upon by the parties.
5.2. As soon as the Service meets all conditions and checkboxes provided in the Framework Agreement and its annexes, the Service is deemed ready. Should the Customer desire any additional modifications and/or changes, deviating or supplementary to what is stipulated in the Framework Agreement and its annexes, the Service Provider will apply an hourly rate of 100 EURO per hour worked.
5.3. Only in the event of disagreement over the Service's compliance with the description in the Framework Agreement and its annexes, the Service Provider will inform the Customer by registered letter about the finalization of the Service. In the absence of any
response within 7 days after the aforementioned letter, the Customer is deemed to have accepted the delivery.
6.1. When the Service is completed and access is granted in accordance with Article 5 (Delivery and Access), the Client will be able to utilize the Service. If the Client finds that the Service does not meet the acceptance criteria or contains Bugs, the Client will notify the
Service Provider about this. The Service Provider will rectify the deficiencies and correct the identified Bugs as quickly as possible, enabling the Client to utilize the software again.
6.2. If the Client does not provide a notice of acceptance or rejection within a reasonable period after the Service Provider has made the software available for acceptance, this acceptance shall be presumed.
7.1. The Service Provider guarantees that the Service meets the requirements and specifications provided in the Framework Agreement and its annexes and will function accordingly for a period of 1 month from the acceptance of the Service.
7.2. During the Warranty Period, the Service Provider will correct the Bugs reported by the Customer in the Service free of charge. Bugs can be reported to the Service Provider's helpdesk by calling the following number +32473192523, by initiating a ticket via the following email address thomas.strybol@eminentcoding.be 7.3. The warranty is subject to the Customer's compliance with his obligations as outlined in this Agreement. The warranty mentioned in article 7.2 does not apply in the following cases:
7.3.1. the Customer has used the Service in conjunction with unsupported Equipment;
7.3.2. the Customer has used the Service incorrectly or improperly. 7.4. Unless otherwise stated in this Agreement, the Service Provider does not guarantee that the Service will function as expected at all times or be error-free.
8.1. The support and maintenance provided by the Service Provider are described in the framework agreement and its annexes.
8.2. To enable the Service Provider to provide support and maintenance, the Client will:
8.2.1. when reporting a Bug, provide all reasonable information they have within a period of 5 days and any additional information requested by the Service Provider also within a period of 5 days from the day
the request is made;
8.2.2. provide the Service Provider with reasonable information and cooperation, including, where applicable, providing the necessary facilities or access to the Client's systems (remotely or on-site), infrastructure, or locations.
8.3 The rates for the Support and Maintenance of the Service are automatically adjusted annually based on the IT Agoria (Digital) Index. The adjustment takes place on the first day of each calendar year and applies to the services provided during that year.
9.1. Each Party shall keep all information it receives regarding the other Party, its technical and operational structure, its products and services, its financial information, its personal data, the Materials, its intellectual property, and the Service confidential.
9.2. All exchanged information may only be used for the execution of the Agreement and may only be shared with employees within a Party's organization who need to be aware of such information. Neither Party has the
right to disclose confidential information to a third party without the prior written consent of the other Party. Both Parties commit to taking reasonable measures to protect the confidential information of the other Party,
which in any case will be no less stringent than the measures they take for their own confidential information.
9.3. The following types of information do not constitute confidential information: (i) information lawfully obtained from a third
party; (ii) information that a Party is lawfully aware of before entering into the Agreement; (iii) information that has entered the public domain through no act or omission of a Party; (iv) information independently developed without breaching the Agreement.
9.4. If a Party is required by law or order of a regulatory, administrative, or otherwise competent authority to disclose confidential information, such Party shall notify the other Party of such a request, if permitted, in order to
allow such Party to take necessary measures to prevent or limit disclosure. If the Party obliged to disclose the information is not entitled to inform the other Party, the disclosure of confidential information is limited to
what is strictly necessary for that Party to comply and the Party shall inform the other Party that it has disclosed the information as soon as it is permitted.
Each Party must at all times comply with its respective obligations under all Applicable Data Protection Legislation concerning any personal data processed under the Agreement. To the extent that the
Service Provider would process personal data on behalf of the Client in its capacity as processor, the Client, as the controller, remains responsible for determining the purpose and means of processing, and the
Service Provider shall follow all reasonably provided instructions by the Client in connection herewith. Upon request by a Party, the Parties shall enter into a data processing agreement.
11.1. The Service Provider has the right to suspend access to the Service for all or some of the Authorized Users if:
11.1.1. the Customer or its Authorized Users have violated the Acceptable Use Policy (AUP) in a manner that may cause harm or adverse consequences to the Service, other users, networks,
systems or infrastructure or is likely to lead to such;
11.1.2. the Service Provider needs to perform (urgent) maintenance on the Service that cannot be carried out without suspending or restricting access.
11.2. To the extent possible, the Service Provider will provide written notice in advance of its intention to suspend (access to) the Service in whole or in part, as well as the expected duration. The Service Provider will limit the suspension to what is strictly necessary
to remedy or mitigate the situations outlined in the preceding paragraph. If the suspension is caused by an Authorized User, the Service Provider will only suspend the responsible Authorized User until the cause of the
suspension has been resolved.
12.1. Each Party has the right to terminate the Agreement with immediate effect simply by sending a written notice of termination; however, if the Customer decides to terminate the Service as described in the Framework Agreement after signing the current agreement, the Customer will always be obligated to pay 100% of the agreed price for this early termination of the cooperation, even if the Service has not yet been completed and/or delivered. The Service Provider will no longer be obliged to deliver the Service after the termination.
12.2. Each Party has the right to terminate the maintenance and support contract at any time and for any reason, subject to a written notice period of (i) 3 months for the Customer and (ii) 1 week for the Service Provider.
12.3. Each Party has the right to terminate the Agreement simply by sending a written notice of termination:
12.3.1 in the event that the other Party is declared bankrupt or files for bankruptcy, that a bankruptcy application is filed against it, or if it is evidently insolvent;
12.3.2. in the event of dissolution and/or liquidation of the other Party's company;
12.3.3. if part or all of the assets of the other Party are subject to execution or conservatory seizure or if there are other executive or conservatory measures taken.
12.4.4. in the event of a serious fault.
From the notification of termination, all amounts owed to the Service Provider become due, regardless of the envisaged duration of the Service as stipulated in the Framework Agreement and its annexes, unless the termination is due to a material breach of the Agreement by the Service Provider.
14.1. The liability of the Service Provider is limited to compensating damages up to a maximum of the value of the Agreement. 14.2. The limitation of liability does not apply to (i) intentional misconduct or gross negligence of a Party, (ii) physical injury, (iii) the obligation of indemnification by the Service Provider, or (iv) failure by the Service Provider to fulfill its obligations regarding personal data.
14.3. Upon Customer's request, the Service Provider shall provide proof of insurance demonstrating that the Service Provider has taken out the legally required and necessary insurance to cover its risks. If the Customer deems the insurance inadequate in light of the Agreement, the Service Provider shall provide higher additional insurance at its own expense.
15.1. Neither Party can be held to its obligations under the Agreement if it is prevented from doing so by Force Majeure.
15.2. In the event of Force Majeure, the affected Party will immediately inform the other Party in writing. Upon termination of the Force Majeure, the affected Party will also immediately notify the other Party in writing. The Service Provider will resume the delivery of the Services immediately after, depending on the case, sending or receiving such notification. Regardless of which Party was affected, the Service Provider undertakes to complete the Services with as little
delay as possible. In no event may the extension of the period be longer than the number of calendar days the force majeure situation lasted.
16.1. Without the consent of the other Party, neither Party is entitled to hire, contract, or otherwise collaborate with the employees of a Party during the term of the Agreement and up to twelve (12) months after its termination or expiration.
16.2. If a Party, in violation of the above, hires, contracts, or otherwise collaborates with such an employee, the Party acting in violation of the above will be required to pay the other Party an amount of 25,000 EUR. This amount is due and payable on the date the person is hired, contracted, or otherwise collaborates with the other Party.
17.1. In these General Terms and Conditions, "Intellectual Property Rights" means patents, trademarks, service marks, trade secrets, copyrights, design rights, know-how, rights to Confidential Information, trade and business names, domain names, database rights, sui generis rights (including for software), rental rights, and all other intellectual and industrial property or similar rights worldwide, whether registered or not, including applications for such items and the right to apply for, maintain, and enforce them. All Intellectual Property Rights in works (results), goods, including the Software, or services owned, used, or created by or on behalf of the Service Provider (including by its employees, consultants, or subcontractors) in the context of the execution of the Agreement (including on software, documentation, technology, or other material), will, as between the Service Provider and the Customer, remain the exclusive property of the Service Provider and/or its licensors, as applicable.
17.2. The supply of goods, including the Software, or services by the Service Provider to the Customer does not imply the transfer of such rights, neither to the Customer nor to third parties. The costs paid by the Customer cover only a limited right of use as described in the Agreement. Under no circumstances can this Agreement be interpreted as a transfer of rights. The Service Provider retains ownership even when the performance was ordered and paid for by the Customer. No payment by the Customer results in the transfer of intellectual or industrial property rights to the benefit of the Customer or a third party, nor can it be interpreted as such, unless expressly stated otherwise in writing.
17.3. If the Customer receives a license from the Service Provider, the Customer may only use the material to which the license relates in accordance with the terms and conditions of the applicable (third-party) license.
17.4. If the Customer provides material to the Service Provider (such as software, texts, images, documentation, information) in the context of the execution of the Agreement by the Service Provider, the Customer guarantees that they have all the required rights and licenses to enable the Service Provider to use that material and that the use by the Service Provider does not infringe the Intellectual Property Rights of third parties. The Customer will indemnify and hold the Service Provider harmless against any damages, losses, expenses, and claims that may result from breaches of this warranty.
17.5. If the Parties exceptionally, explicitly, and in writing, agree to transfer the Intellectual Property Rights of everything the Service Provider has specially developed for the Customer (as specified in the respective Agreement), but not Software, this transfer will only become effective after payment by the Customer of the total price (including all additional costs payable by the Customer, including interest or other compensation due to late payment of the invoices).
18.1. The Agreement shall be interpreted in accordance with and governed by Belgian law.
18.2. If the Parties fail to reach an amicable settlement, the competent courts of Bruges shall have exclusive jurisdiction to resolve the dispute.