Terms and Conditions

1.1.   Rombit NV

Rombit NV is a limited liability company with its registered address at Meir 30, B-2000 Antwerp and registered under company number 0846.801.288 (hereafter “Rombit NV”).

1.2.   Applicability of these Terms and Conditions

These Terms and Conditions are an integral part of any agreement between Rombit and a Customer, and apply to all Rombit’s contractual relationships with its Customers; they govern any contract relating to the Products as set out in the Purchase Order.

By signing the Purchase Order, the Customer explicitly acknowledges the content of the Agreement (consisting of the signed Purchase Order, the current Terms and Conditions and any Schedules and Appendices attached thereto), and its unconditional and integral consent to this content.

The Agreement can only be deviated from when such deviation(s) have been confirmed explicitly and in writing between Rombit and the Customer.

These Terms and Conditions will always take precedence over any other terms and conditions or any other document issued by the Customer. Customer agrees to waive its own general and special terms and conditions, even where it is stated therein that only those conditions may apply and even if such terms and conditions were not protested by Rombit.

In the event a Purchase Order explicitly grants certain rights to any third parties such as Customer affiliates (“Third Party Beneficiaries”), the Customer warrants (sterkmaking/ porte-fort) that the Third Party Beneficiaries shall comply with the obligations related thereto under the Agreement, including any licensing terms. In no case will a Third Party Beneficiary be granted more rights than those granted  to the Customer.

In these Terms and Conditions, the terms set out below shall have the following meaning:

“Acceptance Period” means the acceptance period that is defined in the Purchase Order or in one of the Schedules attached to the Purchase Order;

“Agreement” means jointly the Purchase Order, the current Terms and Conditions and any Schedules and Appendices to the Purchase Order (as applicable) as concluded between the Parties;

“Customer” means the legal entity identified in the Purchase Order which signs the Purchase Order;

“Confidential Information” of a Party means the information of such Party, whether in written, oral, electronic or other form, and which (i) is explicitly marked as confidential or proprietary, or (ii) should reasonably be considered confidential or is traditionally recognized to be of a confidential nature, regardless of whether or not it is expressly marked as confidential, including but not limited to, information and facts concerning business plans, customers, prospects, personnel, suppliers, partners, investors, affiliates or others, training methods and materials, financial, technical and/ or legal information, marketing plans, sales prospects, client lists, inventions, program devices, discoveries, ideas, concepts, know-how, techniques, formulas, blueprints, software (in object and source code form), documentation, designs, prototypes, methods, processes, procedures, codes, and any technical or trade secrets, including all copies of any of the foregoing or any analyses, studies or reports that contain, are based on, or reflect any of the foregoing. The Confidential Information of Rombit shall include all information relating to the Services, Software and Hardware without limitation hereto;

“Customer Data” means the set of data belonging to the Customer which is processed, stored and/or transported in or through the systems and infrastructure of the Customer and/or Rombit;

“Data Protection Laws” means all applicable laws relating to the processing of Personal Data including the General Data Protection Regulation (Regulation (EU) 2016/679);

“Documentation” means the operating manual, including a description of the functions performed by the Services and/or the Software and/or the Hardware, user instructions, technical literature and all other related materials as generally made available by Rombit to its Customers to facilitate the use of the Products delivered to the Customer under the Purchase Order;

“Effective Date” means the date determined in the Purchase Order;

“Hardware” means any physical devices provided by Rombit to the Customer, if and where applicable, as set out in Schedule 3 to the Purchase Order;

“Initial Term” means the initial term defined in the Purchase Order;

“Intellectual Property Rights” means all intellectual and industrial property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights; these Intellectual Property Rights include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs;

“Party” means a party to this Agreement;

“Pre-Existing IPR” means any software, works, documents and materials or Intellectual Property Rights which are in the possession of or owned or controlled by Rombit and which are not generated in respect of the performance of this Agreement or which are developed independently of the activities under this Agreement.

“Products” means the Services, Software and Hardware, if and where applicable, provided by Rombit to the Customer;

“Purchase Order” means the purchase order as agreed upon between the Customer and Rombit, including any Schedules attached to that Purchase Order;

“Rombit” means Rombit NV and/or any of its affiliates, as specified in the Purchase Order;

 “Schedule” means any schedule attached to the Purchase Order;

“Services” means the services, as specified in Schedule 1 to the Purchase Order, which will be made available by Rombit to the Customer in accordance with this Agreement if and where applicable;

“Software” means the software set out in Schedule 2 to the Purchase Order, if applicable;

 “Term” means the term of this Agreement;

“Terms and Conditions” means these Terms and Conditions including the Data Processor Agreement attached hereto as Appendix 1.

3.1.   General

Subject to the Customer’s compliance with its obligations under the Agreement, Rombit will use its reasonable efforts to provide Services to the Customer as set out in the Purchase Order. The Customer agrees that the preceding is an obligation of means. The Customer acknowledges that the obligations of Rombit regarding the provision of Services are exhaustively defined in Schedule 1 to the Purchase Order.

3.2.   Warranty

Rombit shall provide the Services with the expertise and independence, skill, care and diligence that can be reasonably expected from a qualified service provider. Save for the foregoing warranty, Rombit will deliver the Services “as is”, without further warranties, explicitly or implicitly, including (not exhaustive) warranties of soundness, saleability and suitability for a specific goal.

3.3.   Phases and modification

In case it is agreed that the provision of Services will be executed in different phases, Rombit has the right to postpone a subsequent phase until the Customer has accepted the results of the preceding phase in writing and has complied with all other obligations related to this phase.

Rombit is entitled without cooperation of Customer in any way to modify its Products at its sole discretion (for instance updates, bugfixes, user-interface modifications, etc.), without materially changing the core functionality or discontinuing the Products.

3.4.   Advice

The Products may contain advice and recommendations. Unless explicitly agreed otherwise, Customer bears full responsibility for the use and/or implementation of such advice and recommendations.

3.5.   Personnel

Rombit reserves the right to determine which staff members it involves in the provision of Services, and may replace them at any time with other staff members. To the extent possible (and among others taking into account internal schedules and considerations), Rombit will undertake reasonable efforts to comply with any Customer request to involve specific staff members.

3.6.   Customer cooperation

The Customer shall, at no cost to Rombit, cooperate with Rombit with respect to the provision of Services. In this context the Customer shall among other things provide timely, complete and accurate information, timely decisions, dedicated office environment (in accordance with applicable law) and technical environments and deploy sufficient qualified personnel which Rombit reasonably deems useful or necessary for the provision of Services. The data carriers on which data, information, programs and/or materials must be or are being provided by the Customer shall always meet the specifications applicable pursuant to the then current state of the art.

The Customer shall timely notify Rombit of any circumstances which may affect Rombit’s obligations, in particular with respect to the execution, timing, pricing and progress of the provision of Services.

The Customer warrants that it has and shall maintain for the duration of the Agreement all approvals, agreements, authorizations, allowances, licenses and permissions which may be required for the receipt and use of the Services, and for all activities in the framework of this Agreement.

The Customer shall in due time and sufficiently inform Rombit regarding its systems and infrastructure, so as to allow Rombit to take appropriate measures concerning security.

3.7.   Customer premises

The Customer shall provide Rombit with all access to its premises and infrastructure as needed for the provision of the Services.

Rombit will reasonably comply with health and safety rules and rules on the well-being of employees applicable in Customer premises which have been communicated to Rombit in advance. To the extent Rombit incurs costs in complying with such rules, they shall be submitted to a change procedure.

4.1.   General

Subject to the terms and conditions set out in the Agreement and if applicable, Rombit will use its reasonable efforts to deliver to the Customer the Software as set out in Schedule 2 to the Purchase Order.

4.2.   Warranty

Rombit will deliver the Software “as is”, without further warranties; except for the warranties provided for explicitly in this Agreement, including (not exhaustive) warranties of soundness, saleability and suitability for a specific goal, the warranty the Software will function continuously and flawlessly, that all Software defects will be repaired, or additional warranties with regard to title and non-violation of Intellectual Property Rights. All Software results and performance related risks are exclusively the Customer’s responsibility.

For all Software under the Agreement, Rombit offers the Customer a warranty of one (1) calendar month, unless local regulation dictates otherwise, to be calculated as from the date of signing of the Agreement or the delivery of the Software if prior to the date of the signing of the Agreement. This warranty is only applicable to defects identified within the warranty period and reported to Rombit within fifteen (15) calendar days of the date on which the defect was identified.

This warranty implies that defective Software will be repaired free of charge for the Customer. After the warranty period, all defective Software shall be repaired at a cost for the Customer.

No guarantee is provided in the event of failure to comply with the technical specifications of the Software, of which the Customer acknowledges it has been fully informed, or in the case of use or operation by the Customer or a third party not consistent with good practice. Any guarantee is always excluded in case of:

• failure to comply with Rombit’s instructions on installation or operation of the Software;
• failure to carry out proper maintenance or performing a modification without prior written authorization from Rombit;
• use of unauthorized software, firmware or spare parts;
• work, maintenance or handling of the Software by people not authorized or skilled;
• any deterioration or problem of a purely aesthetic nature that has no impact on the properties of the Software;
• modification or use combined with other systems not supplied or approved by Rombit.

4.3.   Code

For the avoidance of doubt, the Customer has no right during and after the Term to access the code (including object code, intermediate code and source code) of the Software.

4.4.   Maintenance and Support

If the Purchase Order determines that Rombit will provide maintenance and support services to the Customer, then subject to the conditions set out in this Agreement and of the timely payment by the Customer of the applicable fees, Rombit will provide maintenance and support services in English in relation to the Software as set out in Schedule 2.

5.1.   General

Subject to the terms and conditions set out in the Agreement and if applicable, Rombit will use its reasonable efforts to provide the Customer with Hardware as set out in Schedule 3 to the Purchase Order.

5.2.   Property

The Hardware shall remain the property of Rombit throughout the duration of the Agreement. The Customer shall at all times take all necessary measures to indicate that the Hardware is not its property and to protect it in any other way against any measure of seizure of forced payment. Any labels affixed by Rombit declaring ownership shall at no time be removed; in case of removal, whatever the cause, such label shall be re-affixed without any delay. In addition to the foregoing, Customer shall take out appropriate insurance cover to protect the leased Hardware for its replacement cost against risk of damage or loss however caused. Customer shall fully indemnify Rombit for any damages resulting from any non-compliance with the foregoing. Customer ensures that the Hardware shall at all times remain in good working order and shall continuously monitor the same; this includes, but is not limited to, requiring reparations when needed, regularly clean the Hardware, monitor compliant use of the machines, etc. The Customer shall not perform any acts on the leased hardware that are not expressly agreed between Rombit and Customer. Leased Hardware can only be used in accordance with the Documentation (e.g. installation guide and user manual). Any damages resulting from non-conform use of the hardware shall be Customer’s sole responsibility. Any purchase option of the leased Hardware during or after the term of the Agreement must be explicitly agreed between the Parties in writing. If no purchase option is agreed, the hardware shall be returned to Rombit.

If the Purchase Order determines that the Hardware shall be sold to the Customer, the following shall apply. If the Hardware is delivered, the Customer shall pay in advance the Hardware in full or, if agreed within the Purchase Order, in multiple terms over the duration of the Agreement. Regardless of the payment scheme, the Hardware shall always remain the property of Rombit until full settlement by the Customer including all fees, costs, retributions, interests or penalty clause resulting from the Agreement. The Customer shall not (i) sell the Hardware to a third party without the prior written consent of Rombit and (ii) use the Hardware for any other means than for the execution of this Agreement.

5.3.   Use

Except to the extent expressly permitted in this Agreement or required by law, the provision of the Hardware to the Customer by Rombit is subject to the following prohibitions: the Customer may not: (a) hire, assign, distribute, transfer, sell, lease, rent charge or otherwise deal in or encumber its right to access and use of the Hardware; (b) permit any unauthorized person to access or use the Hardware; (c) make copies of or reverse engineer the Hardware.

5.4.   Delivery

The Hardware to be delivered by Rombit as well as the delivery address and the delivery site shall be specified in Schedule 3 attached to the Purchase Order.

Unless explicitly stated otherwise in Schedule 3, the shipment of the Hardware, at the point in time it leaves Rombit premises, shall occur at the Customers’ risk to the maximum extent permitted by applicable law, including the risk for loss, damage or destruction, and the Customer shall take out suitable and sufficient insurance for possible damage claims. For the avoidance of doubt all risks relating to the Hardware are borne by the Customer as soon as the Hardware leaves Rombit premises. Any applicable customs taxes are borne by the Customer.

5.5.   Failure to comply with this article 5

In the event of failure to comply with this article 5, a penalty of 20 % of the fees paid for the lease of the Hardware for the duration of the Contract, or if applicable a penalty of 20% of the selling price of the Hardware, if determined in the Purchase Order, shall be payable by the Customer in addition to the full lease or selling price of such Hardware, including interest due.

6.1.   Delivery

The delivery terms and a good faith estimate of the delivery schedule shall be stipulated in the Purchase Order and/ or Schedule 2 and/or Schedule 3. Delivery terms, unless explicitly agreed otherwise, are indicative. Rombit has the right to change or delay any specific delivery schedule agreed to in the Purchase Order if causes beyond its reasonable control prevent the delivery within the stipulated timeframe, without giving rise to any compensation; Rombit shall inform the Customer thereof.

If a Customer fails to accept delivery of the Products which are ready for delivery, or if Rombit is not able to timely deliver the Products due to the Customer failing to provide appropriate information documents, licenses or authorizations, the risk of loss of or damage to such Products shall transfer at the moment Rombit attempted to deliver the Products.

Rombit has the right to retain the Products until the final delivery, in which case the Customer shall bear any related reasonable costs and expenses (including any storage and appropriate insurance costs). Except in case of fraud or willful misconduct by Rombit, Rombit will not be liable for any Damage to the Products of any kind, during such retention period.

6.2.   Acceptance

Products delivered are deemed to be in accordance with the Purchase Order and accepted by the Customer unless a claim is formulated within five (5) calendar days of the actual delivery date. Such claims do not in any circumstances suspend the payment obligation of the Customer.

The Customer shall immediately notify Rombit of any non-conformity of the Products and provide a detailed overview of all defects (“Defects”).

Products will in each case be deemed accepted by the Customer in the event:

• the Customer has not notified any Defects prior to expiry of the Acceptance Period;
• the Customer informs Rombit, during or after the Acceptance Period, of its acceptance of the Products;
• upon expiry of the Acceptance period, or any moment thereafter, the only existing Defects do not impede use of the Products;
• the Customer unreasonably delays the Acceptance Tests; and/or
• the Customer uses the Products for operational and/or productive purposes, regardless of whether the Customer has explicitly accepted the Products and/or notified any Defects.

Rombit will repair the Defects of which it has been notified within a reasonable term. As from the moment Rombit informs the Customer of the correction of the Defects, the Products will be deemed accepted. In case Rombit indicates it will not be able to correct the Defects within a reasonable term, the Parties shall discuss the necessary next steps (during the relevant governance meetings if applicable).

If the provision of Products is carried out in phases, the non-acceptance of a phase shall never affect the acceptance of previous phases and leaves such acceptance intact.

6.3.   Third Party Materials

This paragraph applies to the extent the provision of Services concerns the delivery of Products by Rombit acting as mere reseller (“Third Party Materials”).

Third Party Materials are subject to the delivery conditions, guarantees, maintenance conditions and any other contractual terms (“Third Party Warranties”) of the supplier concerned (“Third Party Supplier”). By signing a Purchase Order, the Customer explicitly accepts the applicability of the specific conditions for Third Party Materials.

The Customer shall, where possible, address any claims exclusively to the Third Party Supplier in view of obtaining the repair of any visible and/or hidden Defects in the Third Party Materials in accordance with such third party warranties.

If the Purchase Order for Third Party Materials do not allow the Customer to address the Third Party Supplier directly, the Defects must be notified to Rombit, and Rombit will undertake its reasonable efforts to have the Defects corrected.

The Customer acknowledges and agrees that, to the extent permitted by applicable law, Rombit does not accept obligations, nor provide any warranties, with respect to the Third Party Materials in addition to the Third Party Warranties.

To the extent the Third Party Supplier provides Rombit with the possibility to transfer any Third Party Warranties to the Customer, Rombit will transfer these Third Party Warranties to the Customer. The Customer shall, where possible, exclusively direct itself to the Third Party Supplier for the execution of any Third Party Warranties.

6.4.   Non-exclusivity

The Agreement does not prohibit Rombit to buy, develop or use, for themselves or for others, services, software or other products which contain similar or the same functionalities as those delivered by Rombit to the Customer in the context of the Agreement, except when this would result in the violation of a potential confidentiality agreement concluded between Rombit and the Customer. Rombit is entitled to re-use the ideas, customer’s suggestions, concepts, methods, processes and know-how, developed or created during the Product development or the delivery of the Services to the Customer.

7.1.   Property

All Intellectual Property Rights with regard to the Products, as well as the designs, applications, documentation and all other materials which are developed and/or used to prepare or to execute the Agreement between Rombit and the Customer, as well as those which result from this Agreement, exclusively remain with Rombit or its suppliers. The Customer shall not in any way acquire any title, rights of ownership, copyright, Intellectual Property Rights or other proprietary rights of whatever nature in the Products or Documentation including any materials provided under Services or in any copies of it.

7.2.   Transfer of Intellectual Property Rights

If the Purchase Order determines that a transfer of Intellectual Property Rights to the Customer should take place, the following shall apply:

Subject to the terms and conditions of this Agreement and timely payment of all applicable fees, the Intellectual Property Rights developed by Rombit exclusively for the Customer when providing the Services under this Agreement shall belong to the Customer (expressly excluding any Pre-existing IPR). The Customer shall grant Rombit an irrevocable, royalty-free, worldwide, perpetual right to use, commercialize, exploit, and/or license the Intellectual Property Rights without the express written permission of the Customer.

For the avoidance of doubt and notwithstanding anything to the contrary in this Agreement, Rombit shall be entitled to use the ideas, concepts, methodologies, processes and knowhow developed or created by Rombit in the course of delivering the Services for its own benefit and for the benefit of third parties.

7.3.   License to Customer

Subject to Customer’s compliance with its obligations under this Agreement, Rombit hereby grants to the Customer a personal, restricted, non-transferable, non-assignable, non-exclusive license to use the Products for the internal business purposes of the Customer, during the Term and solely as set out in this Agreement and the relevant Documentation.

7.4.   License to Rombit

To the extent Rombit is reasonably required to use the Intellectual Property  Rights of the Customer for the provision of Products in accordance with the Agreement, the Customer grants Rombit (including its subcontractors) for the duration of the Agreement a royalty-free, non-exclusive, non-transferable, worldwide license, which may be sub-licensed, to use, modify, change, reproduce and translate the Intellectual Property Rights of the Customer to the extent only as required for the provision of Products.

7.5.   Prohibitions

The Customer may only use the Products for its internal business purposes and may not work around any technical limitations in the Products, may not reverse engineer, translate, decompile or disassemble the Products, or otherwise attempt to discover, copy or create derivative works based upon the Products.

7.6.   Third party claims

Rombit shall not be liable during the Term or after termination of the Agreement for any claim by a third party against the Customer resulting from or related to an infringement or alleged infringement of Intellectual Property Rights caused by the use of the Products.

The Customer shall notify Rombit immediately if it would be informed of an infringement to Rombit’s Intellectual Property Rights.

The Customer is fully responsible for the content of the Customer Data. The Customer warrants that the Customer Data, and Rombit’s access to and processing of the Customer Data in the context of the provision of Products in accordance with the Agreement, do not violate any laws or regulations, contractual agreements and/or any third party rights. The Customer shall comply with any terms of use at all times with respect to the Customer Data.

Unless explicitly agreed otherwise in the Purchase Order, the Customer is fully responsible for the safety and security of the Customer Data, and for making the necessary back-ups in order to avoid loss and/or corruption of the Customer Data. Rombit is only responsible for making back-ups to the extent explicitly specified in the Purchase Order.

In case of loss or corruption of the Customer Data following the provision of the Products, Rombit is only obliged to restore such data on the basis of the most recent available back-up. Under no circumstances is Rombit obliged to input or reconstruct the Customer Data.

All fees will become payable as set out in the Purchase Order and the Terms and Conditions. All payments under this Agreement shall be done by bank transfer using such payment details as notified by Rombit to the Customer from time to time.

Invoices shall be sent in PDF-format to the Customer’s email address, specified in the Purchase Order or in writing to the Customer’s physical address if specifically requested by the Customer.

Customer agrees to make all payments due to Rombit under this Agreement within thirty (30) days of the date of invoice and in euro, unless Parties have agreed otherwise in writing. In the event of late payment, all Customer payment obligations to Rombit will immediately become due and payable.

All fees payable to Rombit under this Agreement shall be paid without the right to set off or counterclaim and free and clear of all deductions or withholdings whatsoever, unless the same are required by law, in which case the Customer undertakes to pay Rombit such additional amounts as are necessary in order that the net amounts received by Rombit after all deductions and withholdings shall not be less than such payments would have been in the absence of such deductions or withholding. Sums stated to be payable under this Agreement do not include any applicable value added tax or other taxes, which shall be additionally charged to the Customer. The Customer is responsible for payment of all general, state or local import, usage, value added, withholding or other taxes associated with the supply or use of the Products. The Customer shall promptly reimburse Rombit for any such taxes or duties paid by Rombit.

The amount of any invoice which has not been paid within the agreed timeframe shall automatically be subject to a late payment interest equal to the legal interest rate of the Act of 2 August 2002 on late payment interests in commercial transactions, which interest shall be compounded monthly as of the due date until receipt of full payment by Rombit. In addition, Customer shall pay all costs incurred by Rombit as a result of the (extra)judicial enforcement of the Customer’s payment obligation under this article, with a minimum of 150 EUR. If Customer fails to pay any outstanding amounts within fifteen (15) days from receipt of a written default notice, Rombit shall be entitled to wholly or partially suspend its obligations and the Customer’s rights hereunder until receipt of payment of such outstanding amounts at Rombit’s discretion.

Upon expiry of the Initial Term, Rombit shall have the right to increase all fees by a percentage equivalent to the aggregate percentage increase of 80% of the Agoria “refertelonen landsgemiddelde” index or if the Agoria index is no longer published, the index replacing it or failing such index by another index reflecting the increases of labour cost. A negative index shall have no impact on the fees. The base index taken is the index applicable three (3) months before the signing of the Purchase Order.

Each invoice made by Rombit shall be deemed to have been accepted by the Customer if it is not disputed by registered letter sent to Rombit wherein the reason for the dispute is explained, and this within fifteen (15) days after the date of that specific invoice.

The limitations and exclusions of liability set out in this article and elsewhere in this Agreement govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.

Subject to the maximum extent permitted by applicable law, Rombit’s liability under this Agreement in respect of any event (or series of connected events) or in the aggregate shall not exceed all fees paid by Customer to Rombit under the present Agreement for a period of twelve (12) months prior to the date of the event (or last of the series of connected events) giving rise to the claim.

Under no circumstances shall Rombit be liable to the Customer for any indirect, punitive, physical, special consequential or similar damages (including damages for loss of profit, anticipated savings, lost revenue or income, loss of use or production, loss of business, loss or corruption of data, loss of database or software, loss of customers and contracts, loss of goodwill, the cost of procuring replacement goods or services, and reputational damage) whether arising from negligence, breach of contract or of statutory duty or otherwise howsoever, and third parties’ claims. Each Party shall have the duty to mitigate damages. The exclusions and limitations of liability under this article shall operate to the benefit of Rombit’s affiliates and subcontractors under this Agreement to the same extent such provisions operate to the benefit of Rombit.

The exclusions and limitations of liability of Rombit under the Agreement apply for all Products, regardless of whether they were delivered to the Customer or to a Third Party Beneficiary. Any claim for compensation of damage suffered by a Third Party Beneficiary as a result of the provision of Products (“Third Party Beneficiary Claim”), can only be directed to Rombit by the Customer in accordance with the provisions and limitations of the Agreement.

Without prejudice to the paragraph above, in the event a Third Party Beneficiary Claim is addressed directly to Rombit by the Third Party Beneficiary, the Customer shall indemnify and hold harmless Rombit for and against any damage which Rombit must compensate to the Third Party Beneficiary.

Rombit may always address a claim for compensation of damage incurred as a result of a Third Party Beneficiary’s fault or negligence, to the Customer and/or the Third Party Beneficiary concerned, it being understood that the same damage must be compensated only once.

Each Party shall treat as confidential and keep secret all Confidential Information relating to the other Party and shall not disclose to any third party, other than its agents, officers, employees, professional advisors, insurers, subcontractors or consultants where such disclosure is necessary, any Confidential Information learned during the negotiation and performance of the Agreement. Confidential Information disclosed under this Agreement shall not be used by the recipient thereof for any purpose other than as required for the performance of its obligations under the Agreement.

Both Parties shall take precautions to maintain the confidentiality of the Confidential Information and in particular the Parties covenant that they: (a) shall not copy or otherwise exploit any component of the Confidential Information other than as herein provided, nor make any disclosures with reference thereto to any third party, (b) shall promptly notify the other Party if it becomes aware of any breach of confidence and give the other Party all reasonable assistance in connection with the same.

The provisions of this article shall not apply to any information which: (a) is published or comes into the public domain other than by a breach of the Agreement or, (b) can be shown to have been known by the receiving Party before disclosure by the disclosing Party or, (c) is lawfully obtained from a Third Party or, (d) can be shown to have been created by the receiving Party independently of the disclosure and other than as part of the project in scope of this Agreement.

The restrictions in this article do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation or by any judicial or governmental order or request.

The provisions of this article shall continue in force during five (5) years following the termination of this Agreement.

The Agreement shall commence on the Effective Date and continue in effect for the Initial Term and shall thereafter automatically and tacitly renew for successive one-year periods (each a “Renewal Term”) unless written notice by registered letter of non-renewal is given by either Party at least one (1) month prior to the expiration of the Initial Term or any (subsequent) Renewal Term.

Rombit may terminate this Agreement and/or user rights granted hereunder by written notice to the Customer, if the Customer fails to pay to Rombit any amount due hereunder and the Customer fails to cure such failure to pay within fifteen (15) days from the date of such notice.

The Customer acknowledges and agrees that any use of the Products outside the scope of the license as set forth in the Agreement, unless such use has been expressly approved in writing by a duly authorized representative of Rombit, shall entitle Rombit to immediately terminate (or alternatively at Rombit’s option, suspend) one or more of the licenses granted hereunder and/or the Agreement for material breach by the Customer, without any formalities being required and without prejudice to any other right or remedy available to Rombit pursuant to this Agreement or under applicable law.

Rombit shall be entitled to terminate the Agreement (or alternatively at its discretion, wholly or partially, suspend the Services and/or user rights granted hereunder) on giving written notice in the event the Customer infringes Rombit’s Intellectual Property Rights.

Either Party may terminate this Agreement by written notice to the other Party if the other Party materially breaches this Agreement, other than by non-payment, and fails to cure (if applicable for cure) such breach within thirty (30) days from the date of receipt of such notice by the breaching Party.

Either Party may terminate the Agreement by written notice to the other Party, effective as of the date of delivery of such notice, if the other Party becomes the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding or otherwise liquidates or ceases to do business.

For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement: (i) a Force Majeure Event; or (ii) scheduled maintenance carried out in accordance with this Agreement.

Upon termination of the Agreement for whatever reason, the Customer shall promptly pay Rombit all fees and other amounts earned by or due to Rombit in respect of the Products, up to and including the date of termination. Furthermore Rombit will be under no obligation to continue the provision of the Services after the Customer has given notice of its desire to terminate the Agreement.

Any notice period will commence on the first day of the month following the month in which the notice was given to the other Party.

Each Party shall comply with the Data Protection Laws and the Data Protection Agreement in Appendix 1 attached to these Terms and Conditions with respect to the processing of Personal Data communicated by the other Party.

The Customer warrants to Rombit that it has the legal right to disclose all Personal Data which it does in fact discloses to Rombit under or in connection with this Agreement and that the Customer has obtained sufficient consent from all data subjects concerned (if applicable).

The Customer shall only supply to Rombit, and Rombit shall only process, in each case under or in relation to this Agreement, the Personal Data of data subjects falling within the categories specified in the data processing agreement as concluded between the Parties.

If any changes or prospective changes to the Data Protection Laws result or will result in one or both Parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the Parties shall use their best endeavors promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance.

14.1.   Severability

If any provision of this Agreement is held to be unenforceable, the other provisions shall nevertheless continue in full force and effect. Each Party shall use its best efforts to immediately negotiate in good faith a valid replacement provision with an equal or similar economic effect.

14.2.   Survival

The provisions of this Agreement that are expressly or implicitly intended to survive termination, shall survive any expiration or termination of this Agreement.

14.3.   Amendments and entire agreement

This Agreement may be modified or amended only by written agreement executed by a duly authorized representative of both Parties hereto. Any renunciation by Rombit of the rights it directly or indirectly derives from the Agreement, can only be made effective by signing an explicit and written declaration or such renunciation. Consequently, Rombit’s wholly or partially refraining from, whether voluntarily of not, exercising its rights deriving directly or indirectly from the Agreement, shall in no way result in the renunciation of those rights nor a waiver to invoke these rights in a later instance.

This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior oral or written agreements, representations or understandings between the Parties relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement shall affect, or be used to interpret, change or restrict, the express clauses of this Agreement.

14.4.   Notices

Any notice required to be served by this Agreement shall in first instance be given by electronic mail to the email addresses set out in the Purchase Order. All notices given by electronic mail, shall only be valid upon confirmation of receipt expressly given by electronic mail by the receiving Party. Any notices can be given in writing and served by personal delivery or registered letter, addressed to either Party at its address given in the Purchase Order or to such other address as a Party may designate by notice hereunder. All notices shall be deemed to have been given either (i) if by hand, at the time of actual delivery thereof to the receiving Party at such Party’s address, (ii) if sent by overnight courier, on the next Business Day following the day such notice is delivered to the courier service, or (iii) if sent by registered or certified mail, on the 5th Business Day following the day such mailing is made.

14.5.   Publicity

Rombit shall have the right (unless otherwise indicated in the Purchase Order) to use any trademarks or other marks of the Customer (including the other Party’s corporate name) for marketing or promotion purposes, such as (but not limited hereto) Customer references on Rombit’s website and sales presentations.

14.6.   Interpretation

In this Agreement (unless the context shall otherwise require or permit):

• Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted;
• Words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and incorporate; and each case vice versa;
• The headings or captions to the articles are for ease of reference only and shall not affect the interpretation or construction of this Agreement.

14.7.   Relationship between the Parties

The relationship between Rombit and the Customer is that of independent contractors. Neither Party is agent for the other and neither Party has any authority to make any contracts, whether expressly or by implication, in the name of the other Party, without that Party’s prior written consent for express purposes connected with the performance of this Agreement.

14.8.   Force Majeure

Neither Party will be liable for any delay in performing, or failure to perform, any of its obligations under this Agreement due to an event, or a series of related events, that is outside the reasonable control of the Party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, social strikes or actions, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars) (a “Force Majeure Event”). If a Party refers to a Force Majeure Event, it must immediately (at least within five (5) Business Days) inform the other Party of the nature of the Force Majeure Event, stating the date when the Force Majeure Event comes or has come into effect, and when it will have ceased to exist. In this case, the Party must use its best efforts to keep the consequences to a minimum.

14.9.   Non-Assignment

Customer shall not assign or otherwise transfer any of its rights or obligations under this Agreement without Rombit’s prior written consent. Rombit’s consent should be requested by registered letter, disclosing the identity of the prospective transferee.

Subject to any restrictions on assignment herein contained, the provisions of this Agreement shall inure to the benefit of and shall be binding upon the Parties hereto and their respective heirs, legal representatives, successors and assignees. Rombit can assign or transfer any of its rights or obligations under this Agreement without the Customer’s prior written consent including the right to subcontract certain or all parts of the Services. In case Rombit assigns any of its rights to another Party, it will notify the Customer thereof in writing as soon as possible.

14.10. Non-solicitation

During the Term and during a period of one (1) year thereafter, neither Party shall without the explicit written approval of the other Party, solicit employees of the other Party which are or were involved in the provision of Products, in view of concluding an employment agreement or an agreement for the provision of services. Should one of the parties be in breach of this condition, it agrees to indemnify the other Party by paying a fixed amount, equal to the total gross remuneration earned by the employee, increased with the social security charges paid by the employer during the 12 months prior to his or her departure.

14.11. Language

The Agreement is in the English language only, which language shall be controlling in all respects. Furthermore, all communications and notices made or given pursuant to the Agreement shall be in the English language.

14.12. Applicable law and jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of Belgium and the Parties hereto submit to the exclusive jurisdiction of the Business court of Antwerp, department Antwerp. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement.

1. About this Data Processor Agreement

This Data Processor Agreement supersedes and replaces all previous agreements made in respect of Processing Personal Data and data protection. Parties agree that Rombit is a Processor and the Customer is a Controller in respect of all Products provided by Rombit related to the Agreement. The aforementioned indication of the Parties as Controller and Processor is consistent with the terms and definitions given within the Data Protection Laws. In the performance of the Services and provision of Products related to the Agreement, Rombit will receive and Process Personal Data for the benefit of the Customer and according to its instructions and purpose. Specific legislation applies to such Processing, including among others the Data Protection Laws. By means of this Data Processor Agreement (hereafter the “DPA”) Parties wish to lay down their specific agreements in respect to Processing Personal Data within the framework of the Agreement.

2. Definitions

Regarding the interpretation of this DPA, the definitions in the Agreement will also apply to this DPA, unless this DPA expressly deviates from those definitions. The notions Controller, Processor, Process, (Data) Breach, Supervisory Authority, Personal Data, Data Protection Officer will be defined as the terms used in the applicable Data Protection Laws.

“Subcontractor” refers to any third party that is involved in the Processing of Personal Data by Rombit;

“Third Party” means a natural or legal person, a government agency, a service or other body, not being the Data Subject, neither the Customer nor Rombit, nor the persons authorized under direct authority of the Customer or Rombit to process the Personal Data.

3. Object of this DPA

This DPA determines the conditions of the Processing by Rombit, on a self-employed basis, of the Personal Data communicated by or at the initiative of the Customer and in the context of the Agreement; this Processing will exclusively take place for the benefit of the Customer and for the purpose as defined by the Customer.

The nature and purpose of the Processing, a list and the type of Personal Data as well as the categories of the Data Subjects, taking into account the Services to be performed, are detailed in Schedule 4 to the Purchase Order (Data Processing Details).

Rombit will only process the Personal Data according to the documented instructions of the Customer and will not use these Personal Data for its own purpose.

If Rombit is legally obliged to proceed with any Processing of Personal Data, Rombit, unless this would violate applicable mandatory rules, will inform the Customer of such obligation.

4. Compliance with Data Protection Regulations

The Customer and Rombit shall comply with their obligations under applicable legislation.

5. Term

This DPA is applicable to every Processing of Personal Data executed in the context of the Agreement.

This DPA applies as long as Rombit processes Personal Data made available by the Customer in the context of the Agreement. This DPA ends automatically upon termination of the Agreement; the provisions of this DPA that are either expressly or implicitly (given their nature) intended to have effect after termination of the DPA shall survive the end of the Agreement as regards the Personal Data communicated by or at the initiative of the Customer in the context of the Agreement.

6. Technical and organizational protection measures

Rombit and Customer offer adequate guarantees with regard to the implementation of appropriate technical and organizational measures so that the Processing complies with GDPR requirements and that the protection of the Data Subject’s rights is guaranteed.

7. Records of processing activities

Each Party and, where applicable, their representatives, shall maintain a register of the processing activities under their responsibility. Each such register shall contain at least all legally required data.

8. Data Protection Officer

If required by law, the Customer and/or Rombit will appoint a Data Protection Officer. The name and the contact details of the Data Protection Officer (or any other person responsible for privacy related matters) can be found in Schedule 4 to the Purchase Order (Data Processing Details).

9. Storage of Personal Data

Rombit will not keep the Personal Data any longer than as required for Processing of such Personal Data in the context of the Agreement. The Customer will not instruct Rombit to store any Personal Data longer than necessary. The agreed storage period can be found in Schedule 4 to the Purchase Order (Data Processing Details).

Unless storage of the Personal Data is mandatory under Union or Member State law, Rombit shall, within a reasonable period after the end of the Processing services, at the option of the Customer, either erase, if reasonably possible, all Personal Data or return it to the Customer and delete existing copies.

10. Security

The Customer and Rombit shall take all appropriate technical and organizational measures as referred to in Article 32 GDPR to ensure a level of security appropriate to the risk. The measures taken by Rombit are available on request.

Rombit shall, taking into account the nature of the Processing and the information available, assist the Customer in ensuring compliance with the obligations resulting from Articles 32 to 36 GDPR. The Customer will reimburse Rombit for services rendered in the context of providing assistance in fulfilling the aforementioned obligations according to Article 18 “Costs” of this DPA.

Only those agents of Rombit who are involved in the Processing of Personal Data may be informed about the Personal Data. Rombit ensures that persons authorized to process the Personal Data are committed to confidentiality by contract or are under an appropriate statutory obligation of confidentiality.

11. Code of Conduct and Certification

Adherence by Rombit to an approved code of conduct as referred to in Article 40 GDPR, or an approved certification mechanism as referred to in Article 42 GDPR may be used as an element of proof of sufficient guarantees as referred to in GDPR.

12. Data Subject’s rights

Taking into account the nature of the Processing, Rombit shall use its best efforts, by taking appropriate technical and organizational, to assist the Customer in the fulfillment of its obligation to respond to requests from Data Subjects.

For all services performed by Rombit in the context of the treatment of such requests from Data Subjects, the Customer will pay Rombit in accordance with Article 18 “Costs” of this DPA.

13. Duty to notify

Upon becoming aware of a Personal Data Breach Rombit shall notify the Customer thereof without undue delay.

At the request of the Customer, Rombit will cooperate with the investigation and elaboration of the measures necessary in case of any Breaches.

The Parties will keep each other informed of any new developments with regard to any Breach and of the measures they take to limit its consequences and to prevent the repetition of such Breach.

It is the responsibility of the Customer to report any Breach to the Supervisory Authority or the Data Subject, as required.

14. Subcontracting

The Customer expressly authorizes Rombit to engage Subcontractors for the processing of Personal Data. The Customer grants a proxy to Rombit to decide with which Subcontractor(s) Rombit cooperates. Rombit shall keep a list of all Subcontractors engaged, which can be consulted by the Customer upon simple request. The Customer can only refuse a Subcontractor proposed by Rombit on the basis of a well-founded justification submitted in writing.

Rombit will conclude a separate subcontracting agreement with each Subcontractor.

In this subcontracting agreement, similar data protection obligations as set out in this DPA shall be imposed on the Subcontractor.

In the event the Subcontractor fails to fulfill its data protection obligations, Rombit shall remain fully liable to the Customer for the performance of the obligations of that Subcontractor in accordance with Article 20 of this DPA.

15. Transfers of Personal Data

The Processing of Personal Data will exclusively take place within the EEA.

The Processing or transfer of Personal Data outside the EEA can only occur in compliance with applicable legislation. Rombit can sign standard contractual clauses, codes of conduct or any other instruments adopted by the European Commission, which ensures that the transfer of Personal Data to a country outside the EEA complies with appropriate safeguards as required by the GDPR.

16. Data Protection Impact Assessment

When a ‘Data Protection Impact Assessment’ or a ‘prior consultation’ is required according to Article 35 and 36 GDPR, the Customer will implement such assessment. At the request of the Customer, Rombit will assist in this assessment as well as in the compliance with any required measures.

The Customer will reimburse Rombit for the services so rendered in relation to this assessment and the compliance with any required measures in accordance with Article 18 “Costs” of this DPA.

17. Audit – inspection

Each Party shall allow the other Party and its authorized auditors to perform audits regarding the compliance by a Party with its obligations under this DPA and the applicable legislation in respect of data protection.

Each Party shall use its best efforts to cooperate with those audits and to make available to the other Party all information necessary to prove compliance with the obligations of such Party. A Party shall immediately inform the other Party if, in its opinion, an instruction infringes the applicable legislation. In case the audit required more than one business day of services of the Party which is being audited, the auditing Party will compensate the services provided on a time and material basis (at standard rates applicable at that moment in time).

Upon the performance of any such audit, the confidentiality obligations of the Parties with respect to third parties must be taken into account. Both the Parties and their auditors must keep the information collected in connection with an audit secret and use it exclusively to verify the compliance by the other Party with this DPA and the applicable laws and regulations in respect of data protection.

The Customer and Rombit and where applicable their representatives, shall cooperate, upon request, with the Supervisory Authority in the performance of its tasks.

18. Costs

The services to be performed under this Agreement for which Rombit may charge the Customer, will be charged on the basis of the hours worked and the applicable standard hourly rates of Rombit. Rombit will invoice these amounts on a monthly basis.

Payment by the Customer to Rombit for the services under this Agreement will take place in accordance with the provisions in the Agreement.

19. Notice of default

When Rombit fails to comply with its obligations under this DPA, the Customer shall first send a registered notice of default (in compliance with article “Notices” of the Terms and Conditions). This notice shall clearly mention the defaults that occurred, and, if redress is possible, a proposal of remedial measures and a reasonable term for their implementation.

20. Liability

Limitations of liability in Rombit Terms and Conditions are applicable to this DPA and all services provided in respect of this DPA.

Rombit is in any case only liable for the damage caused by Processing if it (a) did not comply with its specific obligations of the GDPR, or (b) acted outside or in violation of the lawful instructions of the Customer.

21. Other provisions

The miscellaneous provisions of Rombit Terms and Conditions are applicable to this DPA.

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