PREAMBLE

These General Terms and Conditions shall apply to all Contract(s) with respect to the purchase of Services or Products from Appdate (as defined below).

Depending on the types of Services or Products purchased, the Client will be either contracting with Appdate BV, a company existing under Belgian law with its registered offices at Da Vincilaan 1, 1930 Zaventem and with VAT number BE 0785.747.807; Appdate Iberia sl., a company existing under Spanish law, with its registered offices at Calle de Zorrilla 23-1D, 28014 Madrid and with CIF number ES B-56180029; Appdate Service Center, Ltd. a company existing under Bulgarian law, with its registered offices at Stefan Karadzha Str., fl. 3-4, 1000 Sofia and with UIC numberUIC 208015045] (hereinafter jointly referred to as “Appdate”). The contracting Appdate entity will be mentioned in the Offer.

Appdate , is specialised in provision of services related to Microsoft governance, security assessments & audits, development & configuration, software product engineering, resell of licenses of a software, cloud, technology consultancy & engineering, data & analytics, solutions maintenance and trainings. 

By accepting a Purchase Order and after becoming acquainted with the Services offered by the Appdate and being assured of their appropriateness to its needs, the Client accepts these General Terms and Conditions (hereinafter the “GT&C”) which govern all orders placed with Appdate.

 

ARTICLE 1: DEFINITIONS

Terms beginning with a capital letter in the GT&C, whether used in the singular or the plural, will have the meaning given to them hereafter.

Client: means the legal entity that orders the Services from Appdate and with whom the Appdate has concluded the Contract.

Contract: means the entirety of contractual documents constituting the agreement between the Service Supplier and the Client, including the GT&C and the Purchase Order(s).

Day: means a calendar day.

Deliverable: means any result, measurable, tangible or verifiable document, such as computer program and its related user documentation, which may be developed, created and/or modified by Appdate pursuant to the Contract and resulting from fulfilment of the Service(s).

Price: means the compensation paid or payable by the Client to Appdate for the provision of the Services in accordance with the Contract. The Prices may be agreed upon either as a fixed price, either on an hourly/daily basis.

Intellectual Property Rights: means all industrial and intellectual property rights including, but not limited to, patents, trademarks, trade names, service marks, domain names, copyrights, schematics, industrial models, inventions, know-how, trade secrets, computer software programs, all rights to apply or register such elements worldwide and other intangible proprietary information.

Offer: means any sales proposal or offer for provision of services sent to the Client by Appdate. 

Party or Parties: means the Client and/or Appdate, as applicable.

Products: means any product(s) ordered by the Client from Appdate as detailed in the Contract, and which may include Third-Party Software (as defined below).

Project Manager: means either Party’s reference person mentioned in the Offer who has the necessary skills to follow the proper performance of the Services.

Service(s): means any service(s) ordered by the Client from Appdate, detailed and performed in accordance with the Contract. 

Third-Party Software: means any software produced by a third-party publisher that may be ordered by the Client from Appdate under an Offer.

The Client’s IT Environment means the Client’s information technology environments including all infrastructure, hardware, software and systems.

 

ARTICLE 2: OBJECT

The purpose of the GT&C is to set out all the rules applicable to the sale and delivery of the Products or Services ordered by the Client from Appdate.

ARTICLE 3: CONTRACTUAL DOCUMENTS

The contractual documents are:

• These General Terms and Conditions.
• The Offer.
• The Data Processing Agreement (“DPA”) – if applicable.
• Statements of work – if applicable.

If and to the extent that there is any conflict between the provisions of the documents constituting the Contract, the conflict shall be resolved in accordance with this order of precedence: the DPA,  these General Terms and Conditions, the Offer, any statements of work with more recent statements of work taking precedence over the older ones .

Notwithstanding the foregoing, the Offer may prevail over these GT&C if explicitly provided in the Offer.

The Client agrees to waive all its general or specific terms and conditions, whenever and in whatever form these are communicated, even when these state that they apply exclusively and even when Appdate did not expressly reject their applicability. 

ARTICLE 4: ORDERING SERVICES

The Client will notify its needs in writing to Appdate, who will respond with one or more Offer(s). This Offer will remain valid for 10 business days, unless otherwise stated in the Offer. The accepted Offer will constitute proof of the Contract and be binding on the Client.

If the Offer is not accepted, Appdate is not bound by any obligation towards the Client, no Services or Products have been ordered nor provided and the Offer is considered null and void. Where applicable and if the Client still has a need, a new Offer will be issued by Appdate.

If requested by the Client, a purchase order number can be coupled to the accepted Offer which will then be used for the invoicing of said Offer.

Any request to modify the Service(s), shall give rise to an additional Offer, which must be accepted by the Client under the terms of this article.

 

ARTICLE 5: EFFECTIVE DATE AND DURATION OF THE CONTRACT

5.1 Effective Date

The Contract shall enter into force on the date set out in the Offer (“Effective Date”).

5.2 Duration

The duration of the Contract is set out in the Offer. If no duration is specified in the Offer, the Contract will come to an end when Appdate has fully performed the Services and Deliverables (if any) or delivered the Products set out in the Contract and they have been fully paid by the Client.

In the event that the Offer is issued for renewable Services, the Contract is concluded for a tacitly renewable period. If the Parties have not agreed any other specific conditions in writing, the Contract will be renewed by tacit agreement, for an identical period, the starting date of which is the day following the end date of the initial Contract, and under the same terms and conditions as those set out in the initial Offer, with the possibility for Appdate to adapt the Price due to objective factors such as changes in the market. In the event of renewable Services, each Party may terminate the Contract by registered letter with acknowledgement of receipt, at least one (1) month before the effective renewal date.

5.3 Termination for convenience

Unless otherwise agreed by the Client in writing, if the Contract is concluded for an undefined term, Appdate may terminate the Contract for convenience at any time upon providing thirty (30) Days’ notice without any compensation being due to the Client.

Unless otherwise agreed by Appdate in writing, if the Contract is concluded for an undefined term, the Client may terminate the Contract for convenience at any time upon providing sixty (60) Days’ notice. In any case all incurred costs for the provision or preparation of the Services shall be invoiced by Appdate and duly paid by the Client. 

Exception is made on Service Provider’s notice period in case Appdate’ s staff providing Service(s) to the Client is an employee that leaves Appdate’ s employment under the terms of applicable labour law. Service Provider shall promptly inform the Client of such resignation and use all reasonable efforts to come to a feasible notice period.

5.4 Termination for cause

In the event of non-fulfilment or incorrect fulfilment of one of the obligations of the Contract by a Party, not remedied within thirty (30) Days from sending of a formal notice by registered letter with return receipt notifying the breach in cause, the other Party may as of right notify the termination of the Contract, without prejudice to any damages it may claim, and without any compensation being claimed by the other Party.

To the extent permitted by law, in the event of court-ordered administration, liquidation, temporary suspension of proceedings or similar procedures, the Contract will be terminated with immediate effect as of right without notification.

5.5. Suspension of Services

Furthermore, in the event of non-payment by the Client within fifteen (15) Days of the first reminder, Appdate may as of right notify the suspension of Services or the termination of the whole or a part of the Contract or the unpaid or partially paid equivalent, without prejudice to any damages it may claim, and without any compensation being claimed by the Client.

5.6 Effects of termination

Termination of this Agreement in application of Section 13 above does not affect the validity nor the duration of Statements of Works entered into before the termination date.

Statements of Works that survive the termination of this Agreement shall remain subject to the terms of this Agreement for their entire duration.

Termination of this Agreement will be without prejudice to any rights a Party may have for any breach by the other Party of any of the provisions of this Agreement that occurred before termination.

Articles 7, 8, 9, 11, 12, 13, 14 and 15 as well as every provision which by their nature extend beyond the termination of the Contract shall remain force notwithstanding the termination of the Contract.

 

ARTICLE 6: TYPE OF SERVICES AND THEIR SPECIFIC CONDITIONS

6.1 Fixed Price 

Services performed under fixed price entail that the Client shall pay a set and fixed amount for those particular Services that will be defined in the Offer (“Fixed Price”). Without prejudice to Article 7.1, said payment will include all costs, any materials needed to perform the Services, and all overhead and profits incurred by Appdate. 

The Services performed under a Fixed Price will be divided, at Appdate’ s discretion, in two types of Fixed Price Services; i.e. bulk and milestones. 

In addition to the definitive Price, the Offer related to Fixed Price bulk will include a detailed description of the Deliverable and, if any, the stages of producing and/or the estimated schedule. 

Should a Fixed Price project be divided in several milestones, each milestone will be included in one Offer. In addition to the Price, each Offer will include a detailed description of the various Deliverables and stages of producing. The Parties may also agree on a specific calendar defined in the Offer. Under no circumstances may a delivery or performance delay result in any penalty or invoice discount, which the Client acknowledges.

6.2 Times & Material Services (T&M)

Services performed under times and material (“Times and Material Services” or “T&M”) are charges billable each month to the Client based upon each hour/day worked, multiplied by the hourly/daily rate for the work, plus the cost of any materials necessary (including but not limited to, the cost of Third-Party Software licenses, travel and accommodation expenses, or otherwise). The rates and charges will be defined in an Offer. 

If the Parties agree that the Services will be performed based on Times and Materials pursuant to the Offer, the following provision will apply and it will always entail an obligation of means for Appdate. 

The Offer will include a daily rate or the Price and the period during which the Services will be provided. The Parties may agree to define a maximum budget in the Offer, which cannot be exceeded by Appdate, and which will be monitored by Appdate. 

6.3 Maintenance

The Client will delegate the maintenance of an application and/or infrastructure to Appdate (“Maintenance”), which can include the following, but will not be limited to; bug correction, knowledge maintenance, adding upgrades, doing updates of security patches, etc. The scope of what the Services entail, will be defined in the Offer. The validity and duration of the Maintenance Services will be set out in the Offer.  

6.4 Managed Services

In cases where the Client requests the management of their solutions, Appdate shall perform the managed services (“Managed Services”). These Services can pertain to different solutions, which will be mentioned and defined in the Offer. Managed Services can be ordered quarterly, monthly, or yearly. The duration of the Managed Services will be defined in the Offer. 

6.5 Retainer (TAM packages)

Services pertaining to technical account management (“TAM” or “Retainer”) will consist out of a package containing hours or a budget, which can be used for all consultancy work which will not be covered by Maintenance or Managed Services. The scope and timing of those Services will be defined in the Offer. The abovementioned TAM packages will have a maximum duration of two (2) years, unless otherwise stated in the Offer.

6.6 Reselling of licenses and/or subscriptions 

In relation to certain projects, the Clients could need licenses and/or subscriptions which can be provided by Appdate, acting as a reseller (“Reselling of Licenses and/or Subscriptions”). Licenses can be bought by the Client for a definite duration. Subscriptions are usage based and will be tacitly renewed the month prior to exceeding the budget, for the same Price and duration, except otherwise mentioned in the Offer. 

By purchasing a license or subscription, the Client will be deemed to have accepted terms and conditions of the Third-Party Software publisher set out in the end user license agreement of the licensor or owner of the subscription.  

6.7 Trainings and/or Workshops 

Appdate may provide training Services and/or workshops to the Client, of which the content of those Services will be defined in an Offer (“Trainings and/or Workshops”).

The trainings and/or Workshops may be provided on Appdate’ s premises, the Client’s premises made available to Appdate or remotely. The Training dates are set by mutual agreement between Appdate and the Client and are scheduled as fixed dates. 

In the event of postponement or cancellation by the Client of a mutually scheduled training session, compensation payments are due under the following conditions:

• postponement or cancellation notified less than thirty (30) working days and at least fifteen (15) working days before the session: 30% of the fees for the session will be invoiced to the Client;
• postponement or cancellation notified less than fifteen (15) working days before the session: 75% of the fees for the session will be invoiced to the Client;

ARTICLE 7: FINANCIAL CONDITIONS

7.1 Prices

In consideration of the provision of Services, the Client agrees to pay Appdate the Prices as set out it the Offer. Unless otherwise stated in the Offer, the Prices are defined in euros and are exclusive of VAT and charges.

Any travel and accommodation costs incurred by Appdate’ s personnel performing the Services will be invoiced separately and accompanied by receipts and/or any other means of right. 

Appdate reserves the right to revise its Prices upon prior notice based on objective factors such as – without limitation – a change in the market or a price increase on the supply side.

Every year in the beginning of January, the hourly/daily rate for the provision of Services can be reviewed, according to the salary index published by Agoria (the “Agoria Index EUR/h”). This indexation will be applied automatically and does not rule out a possible other review of the daily/hourly rate  between both Parties. The following formula will be used for the calculation: 

Pi = P0* (0,8 Sai/Sa0 + 0,2)

Where:

Pi = daily rate after indexation to Agoria Index

P0= Daily Rate mentioned in the Purchase Order;

Sai = the last Agoria Index EUR/h published at the time of the reviewing;

Sa0 = the Agoria Index EUR/h applicable during the month before the start date of the Purchase Order.

7.2 Modalities for invoicing per type of Service

Appdate shall invoice the Client in accordance with the payment schedule and provisions set out in the Contract. The invoicing address is the address of the Client’s registered office, unless otherwise stated by the latter. Appdate may make changes to its Services and accordingly its price conditions. If this occurs, the new price conditions will be notified to the Client in an Offer, who will have ten (10) business day  to object. If no objection is made, the new price conditions will be deemed accepted by the Client.

Invoices per type of Service, as previously described in article 6, will be issued as stated hereunder, unless otherwise mentioned in the Offer. 

The Client has a ten (10) Days period following the date on which the invoice has been sent to oppose to the said invoice. In the event of a disputed invoice, the Client shall deliver a written statement to Appdate listing all the disputed items and providing a reasonably detailed description of each disputed item. Amounts which are not disputed as mentioned above, shall be deemed accepted and shall be paid, notwithstanding disputes on other items, within the time set forth in this Article. On expiry of this deadline, the invoice and the Services will be considered accepted by the Client without any further recourse, unless otherwise stated in the Offer. 

Fixed Price 

Appdate shall invoice the Client for the Services partially upfront (70%) and partially after completion of the Services (30%). Regarding Fixed Price project with milestones, the Client will receive an invoice after completion or delivery of each milestone.

When a Deliverable is delivered, it will trigger invoicing of the sums owed by the Client for this Deliverable under the conditions of the payment terms set out in this Article. When the Services are divided in milestones or sprints in the Offer, each milestone or sprint will be defined in a separate Offer, which can therefore be invoiced after delivery. Nevertheless, if the Client should order the next milestone to be started, before the Deliverables from the previous milestone have been validated, this decision shall be deemed as a formal validation of the said Deliverables set out in the previous milestone. 

Notwithstanding the foregoing, TAM packages, maintenance and managed services will be invoiced upfront by Appdate, unless otherwise stated in the Offer.

Times & Material Services (T&M)

Appdate’ s Services performed under Times & Material will be invoiced according to two criteria:

• the time spent by Appdate performing the Services;
• the hourly or daily rate for the Services.

Invoices will be based on the extract of the records of time spent.  Appdate will invoice on a monthly basis, unless otherwise specified in the Offer. 

Resell of licenses and subscriptions

Licenses with a fixed duration will be invoiced upfront to the Client by Appdate. 

Usage based subscriptions can be invoiced to the Client depending on the type of licenses, which will be mentioned in the Offer. 

7.3 Modalities for package hours

Package hours give the Client the right to purchase Services – excluding reasonable advice and guidance concerning the Services and the use of the Products, and troubleshooting allowing Appdate to resolve issues and informing Client (support services) – from Appdate, or to have Services outsourced by Appdate. One package hour gives the Client the right to purchase one hour of Services that are normally invoiced at the standard hourly rate of Appdate or a reduced hourly rate. An increase in the standard hourly rate by Appdate after the package hours have been purchased does not affect this right. If the Client wishes to use package hours to purchase Services at an increased hourly rate, a higher hourly rate than the standard hourly rate, or to pay for outsourced Services of which the hourly rate is higher than the standard hourly rate of Appdate, the Client will be invoiced separately for the additional cost of purchasing the relevant Services, or of outsourcing.

Upon simple request, Appdate will provide an overview of the hours already worked with a timesheet in which the details of all performances are included.

When the Client has used up its package hours, it will be invoiced at the standard hourly rate applied by Appdate for the Services further purchased.

Package hours should be used within one year after the invoice date in accordance. Unused package hours will expire after one year and this in no case grants the Client a right to be reimbursed.

Compensation for annulation

If fixed man-days are taken, the Client has, subject to overpower as stipulated in Section 11 (Force Majeure), the right to cancel or move these man-days (depending on the availability of Appdate) subject to payment of a fee, excluding costs (as determined in the quotation or cost estimate) depending on the cancellation period:  

•        Up to 30 days before the planned fixed Monday: 0% of the daily rate; 

•        From 29 days to 7 days before the planned fixed Monday: 50% 

•        From 6 days to 48 hours before the planned fixed Monday: 75% 

•        From 48 hours before the planned fixed Monday: 100% of the daily rate.

 

7.5 Payment terms

Unless otherwise stated in the Offer, the invoices are payable thirty (30) Days from date of the invoice.

7.6 Payment default

Without prejudice to any damages, failure by the Client to pay an invoice on its due date will automatically result in:

• application of late payment interest equal to the legal interest rate for commercial transactions, without prior formal notice and with effect from the first day of delay;
• application of a compensation equal to 10% of the invoice amount and with a minimum of EUR 100,00 for reimbursement of recovery costs;
• the right of Appdate to immediately suspend ongoing Services. Appdate doesn’t hold any liability for the client’s direct or indirect damages resulting from this suspension.
• termination as of right of the unpaid Subscription fifteen (15) Days after Appdate has sent a formal notice by registered letter with return receipt that has not been remedied, any down payments being retained by Appdate, who also reserves the right to claim damages. Any payment default shall immediately render payable all sums owed for invoices issued but not yet due.

 

ARTICLE 8: INTELLECTUAL PROPERTY

The Client recognizes that all intellectual property rights, including know-how, in all proposals, conditions, communications, forms, advice, strategies, suggestions, communications, reports, documents or other materials provided by Appdate in performance of the services are vested with Appdate.

Nothing in this Agreement shall be understood as granting to the Client any other rights in the Deliverables than the rights explicitly granted to it under this Article.

Appdate grants to the Client a license to use the Deliverables for non-commercial internal use, unless otherwise explicitly agreed between the Parties.

The Client shall under no circumstances provide any Deliverables, regardless of whether this is done free of charge or incriminating capacity, to third parties except with                       the prior written consent of Appdate. Unless the Parties have agreed this in advance, the Client is also not entitled to provide the Deliverables to affiliated companies.

The Client will observe the Appdate’ s intellectual property rights at all times and make all reasonable efforts to protect said rights. The Client will immediately inform Appdate of any infringement of Appdate’ s intellectual property rights by third parties of which it becomes aware.

 

Article 9: COOPERATION OBLIGATIONS OF THE PARTIES

The Client undertakes to cooperate actively with Appdate and, to this end, will clearly and precisely express its needs and define the functional specifications of the Services, which will be mentioned in the Offer. Next to that, the Client will ensure the adequation of the Services with its IT Environment, define the practical organisation of the Services to be performed and, without undue delay, proceed with the Record of Acceptance of the Deliverables (if any) which were clearly described in the Offer. Furthermore, the Client shall provide Appdate with any material and human resources required for delivery of the Services and comply with the payment terms set out in Article 7.

If any, the Client is required to comply with the deadlines set out in the calendar agreed between the Parties. If it fails to do so, Appdate may not be held liable for any delivery delays. In addition, Appdate may not be held liable for a delivery delay if the Client has not provided all the information, data and content required for Appdate to perform the Services within a period of five (5) days from the request sent by Appdate.

Within the limit of the Services required for the performance of the Offer, Appdate is bound by an ongoing duty to advise, to warn and to inform the Client and undertakes, on a general basis, to:

• verify with the Client that Appdate has all necessary information for the proper performance of the Offer;
• define with the Client the technical specifications of the Services;
• reply in a timely manner to any reasonable request for information that it receives from the Client;
• provide the Client with advice;
• notify the Client, as soon as possible, of any element, event or act likely to affect the proper performance of its obligations.

For the performance of the Offer, each Party will appoint a Project Manager responsible for the smooth running of the Offer in, and steering the different stages of the Services. 

The Client accepts and acknowledges that the Fixed Price Services have been defined with the information communicated in writing by the Client. If the information turns out to be inaccurate, incomplete or missing, Appdate will be entitled to review the Offer, the Purchase Order, the Price of the Services and the schedule for execution to take account of these elements and adapt them accordingly.

ARTICLE 10: PERSONAL DATA

With regard to the processing of personal data in relation to the Contract, the

With regard to the processing of personal data in relation to the Contract, Each Party represents and warrants to the other Party that it will strictly comply with  applicable data protection legislations, including Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) – “GDPR”.

Appdate may process personal data in connection with (the execution of) these GT&C. Further, Appdate continuously strives to improve and personalise its Services and in order to do so, Appdate processes usage data by using analytics techniques. Such processing activities are carried out in accordance with Appdate’ s privacy policy and where applicable, relevant cookie policy.

If, and to the extent Appdate processes Personal Data as a processor in the sense of article 4 GDPR, this will be done on the basis of the provisions of the data processing agreement annexed to these GT&C (Annex I).

ARTICLE 11: NON-SOLICITATION OF PERSONNEL

For the duration of this Agreement and for a period of twelve (12) months following its expiry or termination, the Client shall not solicit, entice or persuade or attempt to solicit, entice or persuade any employee of or consultant to Appdate or any parent, subsidiary or affiliate of Appdate to leave the services of Appdate or any such parent, subsidiary or affiliate for any reason.

If this provision is breached, the Client will make a compensation payment of 50,000 EUR per breach, unless Appdate is able to prove higher amounts of compensation, in which case the highest amount must be paid.

 

ARTICLE 12: NON-EXCLUSIVITY

The Parties acknowledge that signature of an Offer does not confer any exclusivity of Services to the Client. As a result, Appdate is authorised to work for third parties, even competitors, for the duration of performing Services for the Client, and after the end thereof.

ARTICLE 13: CONFIDENTIALITY

Each Party shall respect the strictest confidentiality with regard to the existence and content of the Contract and the information or data, documented or not, that is exchanged in order to perform the Services.

The receiving Party shall in particular (i) use the disclosing Party’s Confidential Information only for the purposes of fulfilling its obligations under the Agreement; (ii) protect the confidentiality of the Confidential Information of the disclosing Party by using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care; (iii) not disclose the disclosing Party’s Confidential Information to any other person except as expressly set out in the Agreement or without obtaining the disclosing Party’s prior written consent; and (iv) immediately notify the disclosing Party if it suspects or becomes aware of any unauthorised access, copying use or disclosure in any form or any of the disclosing Party’s Confidential Information.

Notwithstanding the foregoing, the receiving Party may disclose Confidential Information of the disclosing Party to its employees or third parties who are directly involved in and need to know such Confidential Information for the purpose of the provision or use of the Services. The receiving Party has or agrees to put in place confidentiality terms no less onerous than those set out in the Contract. The receiving Party assumes full responsibility for the acts or omissions of such person or entity.

Neither Party will be required to protect the confidentiality of a piece of information or data for which it can provide proof that (i) it was or became public for reasons other than noncompliance by this Party with its confidentiality commitment; (ii) the confidential information was disclosed by a third Party who has not been  subject to any confidentiality obligation; (iii) the information or data was disclosed by the Party as a result of a legal or regulatory obligation or a court decision with binding force on such Party, provided that it has – where practicable and/or permissible, consulted with the disclosing Party as to the terms, content or timing of the disclosure, and uses reasonable endeavour to limit the scope of the required disclosure; (iv) or the confidential information was disclosed with the written consent of the other Party.

This article shall survive five (5) years after the termination of this agreement. Notwithstanding, at the end of this period, this Section 9 shall continue to apply to trade secrets that the disclosing Party has provided to the receiving Party for as long as the trade secrets retain their secret character. For clarification, any violation of this article by the receiving Party shall not remove the secret nature of these trade secrets.

ARTICLE 14: FORCE MAJEURE

“Force Majeure” means any event which is beyond the reasonable control of a Party and which impacts the execution of its obligations under the Agreement, including, but not limited to, natural disasters, epidemics, pandemics, extreme weather conditions, fire, riots, war and military operations, national or local emergency situations, acts or negligence of the government, economic disputes of any nature whatsoever, strikes, unannounced labour actions, fire, flooding, lightning, explosions, collapses, disruptions in traffic, the reduced or non-functioning of networks, systems or equipment of third parties as well as any act of negligence of a person or entity which is outside of the reasonable control of a Party. For the avoidance of doubt, failure by Client to correctly or timely pay the Price shall not be excused by a Force Majeure event.

Appdate shall not be liable due to delay or failure to comply with its obligations under the Agreement, if this delay or failure was the result of Force Majeure. In such a case, Appdate may suspend or terminate Client’s access to the Services by giving Client a prior written reasonable notice to the extent possible. In such case, Price for the Services until the termination date will be due on a pro rata basis.

ARTICLE 15: LIABILITY

15.1 Complaints

Any complaints about the Services- including the Deliverables – or the Products provided must be received at the registered office of Appdate by registered letter no later than eight (8) Days after the Services, Deliverables or Products have been provided. In the absence of any justified complaints within this period, the Services, Deliverables or Products provided will be considered sufficient and any further recourse is excluded. Appdate is always entitled to substitute a new sufficient performance in place of a previous insufficient performance, without the Client being entitled to compensation, unless the default should prove irreparable.

15.2 Extent of compensation

Each Party is liable for the consequences resulting from their faults, errors or omissions, and the faults, errors or omissions of their sub-contractors causing direct damages to the other Party. Accordingly, Appdate may not under any circumstances be held liable for the Client’s or third parties’ indirect or unforeseeable loss or damage, including any loss of earnings, loss, inaccuracy or corruption of files or data, business loss, loss of turnover or profit, loss of customers, loss of opportunity, the cost of obtaining a replacement product, service or technology, relating to or arising from the non-performance or incorrect performance of the Services.

Except in case of gross negligence of wilful misconduct, the amount of Appdate’ s liability is strictly limited to the Price excluding VAT actually paid by the Client during the last 12 months, on the date that the event in cause occurs, in respect of the Product or Service in question.

15.3 Compliant delivery of the Third-Party Software

In the event of a Third-Party Software order, the Third-Party Software publisher is solely liable for the compliant delivery of the Third-Party Software ordered from Appdate. Appdate is not liable for: i) the acts or failings of the Software publisher; ii) the additional commitments that the publisher might make towards the Client or iii) the products or services that the publisher provides to the Client under a contract entered into between them. Technical support offered by Appdate does not include assistance with the design and development of applications, the use of Software outside its specified environment or errors caused by Third Party Software.

All Third Party Software distributed by Appdate are provided with the Software publisher’s limited warranty. Warranties for third-party products and services not performed by Appdate are governed solely by the applicable policies and procedures of the third-party supplier/service provider. Appdate makes not express or implied warranties for third-party products or services.

Under no circumstances may Appdate be held liable for the quality, integrity, completeness and accuracy of the data transmitted by the Client for the purposes of performing the Services. The Client will hold Appdate harmless on first request against any loss that might result from a claim by a third party for a breach of this warranty.

15.4 Appdate’ s limited warranties

The Client will be solely liable for compliance with the laws, regulations and other imperative or legislative provisions, whether national or international, in terms of content, identification of need, instructions and implementation of the Service(s) and if any, the Deliverable(s).

The Products are provided ‘as is’ and are not personalized or customized to fit the Client’s particular needs. Appdate makes no promises, guarantees or assurances to that extent. There is no warranty that the Products will be free of error, that access will be continuous or uninterrupted, that any information provided or used with the Products will be secure, accurate, complete or timely, or that any content will be preserved or maintained without loss.

Appdate will employ reasonable efforts to conduct the Services, employing a reasonable amount of skill and care. Unless otherwise provided, Appdate only enters an obligation of means (“middelenverbintenissen” / “obligations de moyens“) related to the services and not an obligation of result.

To the extent permitted by law, the Client expressly acknowledges that the compensation of damage caused in the performance of the Agreement by Appdate and/or its auxiliaries, directors, associates, employees or subcontractors, shall only lead to contractual liability, even if the event at the origin of the damage also constitutes a tort.

 

ARTICLE 16: SUBCONTRACTING

Appdate reserves the right to subcontract the execution of any or part of the Contract to third parties, without prior notice or information.

Client may only transfer its rights and obligations under the Contract to another entity upon prior written agreement from Appdate. Appdate is entitled to transfer its rights and obligations under the Contract to third parties subject to informing the Client.

ARTICLE 17: MISCELLANEOUS

The Contract expresses the entirety of the obligations and the agreement between the Parties and replaces all other agreements, written or verbal, in regard to its purpose.

 

The Parties undertake to perform the Contract, the terms of which they have decided freely, in all points, and to give each clause of the Contract its full effect.

The Parties shall act in good faith, in accordance with the Belgian Civil Code, from the time of entering into the Contract until after its expiry, if circumstances so require.

Except where explicitly provided otherwise herein and to the extent permitted by law, Appdate may update or modify the Contract from time to time, for specific reasons, including but not limited to (i) applicable law; (ii) changes to the Services; (iii) technical reasons; (iv) operational requirements; or (v) changes that are advantageous to the Client. If a revision meaningfully reduces the Client’s rights, Appdate will use reasonable efforts to notify the Client (by, for example sending an email to the Client, posting on Appdate’ s website or in the Product itself). The Client must notify Appdate within fifteen (15) Days of Appdate’ s notice of the modifications that the Client does not agree with such changes, and Appdate (at Appdate’ s option and as the Client’s exclusive remedy) may either: (i) permit the Client to continue under the prior version of the Contract until Client’s next Subscription (after which the modified Contract will apply) or (ii) allow the Client to terminate the Contract and receive a pro-rated refund based on the unused portion of the term of Client’s subscription.

Any waiver of or amendment to any one of its stipulations may only take effect after it has been recorded in a supplementary agreement duly signed by the Parties.

If a stipulation in the GT&C and/or the Contract is declared null and void, the other stipulations shall remain in force. The Parties will then seek to adopt a new stipulation with the closest economic effect than the clause declared null and/or void.

If one Party fails to demand enforcement of any clause in the GT&C, this shall not under any circumstances be interpreted as a waiver of their rights under the GT&C. 

Appdate reserves the right to transfer all or part of its obligations to any third party of its choice.

Each Party acts in its own name and on its own account. It does not have the power or authorisation to commit the other Party in any way whatsoever. None of the provisions of the Contract may be interpreted as creating a mandate, subsidiary, relationship of agent or employee to employer between the Client and Appdate.

Unless otherwise stated by the Client, the latter expressly authorises Appdate to use the Client’s name and/or brand as a commercial reference, and to reproduce them on its promotional documents, to the exclusion of any other use.

 

ARTICLE 18: APPLICABLE LAW AND JURISDICTION

The Contract is governed by Belgian lawn, except for any conflict-of-laws rules or provisions (Belgian, foreign or international), that would cause applying the laws of any country other than Belgium.

The Parties will attempt to resolve amicably any dispute between them regarding the formation, interpretation, performance, expiry or termination of the Contract. Failing this, the dispute will be brought before the competent court in Brussels.

ANNEX I: DPA

In this Data Protection Addendum, Appdate will be referred to as “Processor” or “Appdate” and the Client will be referred to as “Controller”. Processor and Controller are individually referred to as “Party” and collectively referred to as “Parties”.

WHEREAS:

• Controller wishes to hire the Processor to perform certain services as detailed in a services agreement, whereby personal data is processed, subject to the terms and conditions as detailed herein;

 

IT IS AGREED AS FOLLOWS:

ARTICLE 1: DEFINITIONS AND INTERPRETATION

Unless otherwise defined herein, capitalized terms used in this DPA shall have the following meaning:

“Controller”, “Processor”, “Personal Data”, “Data Subject”, “Personal Data Breach”, “Process/Processed/Processing” shall have the meaning as defined in the Data Protection Legislation.

“DPA” means this Data Processing Agreement and all Annexes.

“Data Protection Legislation” means Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (repealing Directive 96/46/EC) (GDPR).

“Contract” means the agreement between the parties and/or its affiliates relating to the Services.

“Service” means the services to be carried out by the Processor as defined in and/or that are the object of, the Contract.

“Sub-processor” means any Processor (including any third party excluding an employee of Processor) appointed by or on behalf of the Processor, or its Sub-processor, to Process Personal Data on behalf of the Processor in connection with the Contract.

ARTICLE 2: OBJECT OF THIS DPA

To the extent that Appdate, acting as a Processor, processes Personal Data for the Controller acting as Controller, this DPA applies to such Processing as part of the provision of the Services under the Contract.

This DPA sets out the subject-matter and duration of the Processing, the nature and purpose(s) of the Processing, the type of Personal Data and categories of Data Subjects and the obligations and rights of the Controller and Processor in relation to the provision of the Services as further detailed in Schedule I (Details of Processing).

ARTICLE 3: DURATION AND TERMINATION

The duration of the Processing is set out in the Contract.

Upon termination or expiry of the DPA, or at any earlier moment if the Processing of Personal Data is no longer relevant for the delivery of the Services, at the choice of the Controller, the Processor shall delete or return all the Personal Data to the Controller in the format agreed upon by the Parties, and delete existing copies unless a law or regulation requires storage of the Personal Data.

Notwithstanding the foregoing, article 5 (Liability) of this DPA shall survive the termination of this DPA.

ARTICLE 4: DATA PROTECTION

Where Personal Data is Processed by the Processor in relation to the performance of the DPA, the Contract and the Services, Processor shall comply with applicable Data Protection Legislation and shall:

Instructions – process the Personal Data only on documented instructions from the Controller, unless required to do so by applicable laws and regulations to which the Processor is subject. In such a case, the Processor shall inform the Controller of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest;

Need-to-know – provide Personal Data only to authorised persons (which shall include employees, agents and subcontractors) on a need-to-know basis and ensure that persons authorised to Process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

Measures – implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including at least the measures detailed in Schedule II (Security Measures). It is the responsibility of the Processor to adapt the measures and adjust them to the state of art. Such measures may be updated by the Processor, in accordance with the security requirements. The Controller is solely responsible for his own means to get access to the Personal Data which are being processed when preforming the Services (for example his own PC, connection, etc.), as well as if the Processor must make use of the resources made available by the Controller and offers appropriate measures to ensure an appropriate level of security;

Sub-processors – make use of the Sub-processors in accordance with the general authorization of the Controller, which is hereby given. The (categories of) Sub-processor are listed in Schedule III (Sub-processors). The Processor shall inform the Controller of any intended changes concerning the addition or replacement of Sub-processors, thereby giving the Controller the opportunity to object to such changes, during a period of ten (10) calendar days, after which such Sub-processors are deemed to have been accepted. Sub-processors enabled by the Processor before the date of the Contract are deemed to have been accepted by the Controller. If the Controller objects to a new Sub-processor and this objection is justified on reasonable grounds, the Processor will attempt to resolve the problem. If the Processor cannot reasonably resolve the problem, the Controller may terminate the DPA as specified in the Contract, where the Services cannot be provided without the use of such Sub-processor. Where the Processor engages a Sub-processor for carrying out specific Processing activities on behalf of the Controller, the same data protection obligations as set out in this DPA shall be imposed on that Sub-processor. Where that Sub-processor fails to fulfil its obligations under the Data Protection Legislation, the Processor shall remain fully liable to the Controller.

Assistance – reasonably assists the Controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Controller’s obligation to respond to requests for exercising the Data Subject’s rights, unabated the right of the Processor to charge the Controller all reasonable costs for such assistance. Processor shall promptly notify the Controller about any legally binding request of the Personal Data by a Data Subject and to assist the Controller therewith;

Cooperation – assists the Controller in ensuring compliance with its obligations relating to the: security of the Processing, notification of Personal Data Breaches and data protection impact assessments and prior consultations taking into account the nature of Processing and the information available to the Processor, unabated the right of the Processor to charge the Controller all reasonable costs for such assistance;

Infringement in connection with Personal Data – to inform the Processor without unreasonable delay as soon as he become aware of a Personal Data Breach. Such notification will contain the following information: (i) the nature of Personal Data Breach, where possible stating the categories of the Involved and Personal data registers in question, approximately, the number of Involved and Personal data registers in question; (ii) the name and contact details of the data protection officer or other contact point where more information can be obtained; (iii) the likely consequences of the Personal Data Breach; (iv) the measures that the Processor has proposed or took to deal with the Personal Data Breach, including, where appropriate, the measures to limit any adverse effects thereof. If and insofar as it is not possible to provide all information simultaneously, the information can be provided in steps without unreasonable delay. This obligation to report or respond to a Personal Data Breach is not and will not be construed as an acknowledgment by the Processor of any error or liability with regard to the Personal Data Breach;

Duty to inform & audit – provide the Controller with all information necessary to demonstrate compliance with the obligations laid down in the DPA and audits, including inspections, facilitating and contributing to a controller authorized by the Controller, under following conditions: the Controller must request a written audit with prior notice of thirty (30) working days and instruct approved auditors on its own behalf to perform such an audit in following circumstances:

1. once every twelve (12) months provided that such audits do not have an unreasonable impact on the Processor’s regular work activities and not be incompatible with applicable legislation or with the instruction;
2. when an audit is reasonably deemed necessary due to genuine concerns regarding the Processor’s compliance with this DPA;
3. when required by a competent supervisory authority under Data Protection Legislation;
4. when a Personal Data Breach occurred by the Processor.

The Controller must immediately provide the Processor information about non-compliance found during an audit or when assessing the information provided. The Controller agrees that Processor will send a draft of the audit report for review. The Processor is entitled to make amendment proposals and comments in this draft document, before the Controller determines the final version;

immediately inform the Controller if, in his opinion, an instruction constitutes a violation of the Data Protection Legislation.

Transmission – Personal Data Processed in the context of this DPA may be transferred to a country outside the European Economic Area without the prior written consent of Controller, where Processor ensures that there are appropriate safeguards for such a transfer or which is based on an adequacy decision.

Obligations Controller – Controller is responsible for complying with its obligations under the Data Protection Legislation and any other applicable legislation, the Processor will not be held liable for violations of the Controller, also in the case where the Processor uses systems of the Controller for the execution of the Services.

ARTICLE 5: PRIVACY STATEMENT

In the context of this DPA and the Contract, the Processor may processes Personal Data of the employees and representatives of Controller as a controller, including identification and contact details, in the context of its customer administration.

For more information about the Processing of this Personal Data and how the employees and representatives of the Controller can exercise their rights, please consult our privacy statement via the website of the Processor.

The Controller guarantees to have sufficient legal basis to transmit this Personal Data and to provide employees and representatives with this information regarding the processing including reference to the Privacy statement. 

List of Schedules:

• Schedule I: Details of Processing
• Schedule II: Security measures
• Schedule III: Sub-processors

SCHEDULE I: DETAILS OF PROCESSING

1. The duration of the Processing

The duration of the Processing is set out in this DPA and relates to the Contract.

2. The subject-matter of the Processing

The subject-matter of the Processing is set out in this DPA and relates to the Services.

3. The types of Personal Data to be Processed

The following types of Personal Data may be processed by Processor in the context of the Services:

• Personal identifiable information;
• Identification data, other than the National Register Number;
• Personal particulars;
• Belongings;
• Physical data & physical descriptions;
• Video recordings & sound recordings;

4. The categories of Data Subjects to whom the Personal Data relates

The following types of Personal Data may be processed by Processor in the context of the Services:

• Employees of the Controller;
• Visitors of the Controller;
• Students of the Controller;
• Any other person who registers or makes himself known (or is expressed) to the Processor in the context of the performance of the Services by the Processor.

5. The nature and purpose of the Processing

The abovementioned Personal Data with regard to the abovementioned Data Subject are only processed for the purpose of performing the Services, as stipulated in the Contract.

 

SCHEDULE II: SECURITY MEASURES

Processor aims to, taking into account the state of the art, implementation costs as well as the nature, scope, context and risks of the Processing, take appropriate technical and organizational measures to ensure a risk-adjusted security level that meets the following requirements:

Organisational requirements

• Security policy
• Appointment of internal responsible person for information security / data protection
• Asset Management
• Raising awareness among staff
• Classification of information
• Continuity plan
• Periodic monitoring of the adequacy of the processing systems and services
• Processing registry
• Infringement log

Technical requirements

• Back-up system
• Access control
• Authentication & authorisation
• Password policy
• Logging system, tracking and analysis of access
• Anti-virus
• Fire wall
• Network security
• Supervision, inspection and maintenance of the systems
• Encryption of personal data

SCHEDULE III: SUB-PROCESSORS

 

[List the processor for which authorisation has been provided].