One-Off License Agreement
The Software, as further defined, is offered to the Customer by On-Hertz NV a company incorporated under the laws of Belgium, having its registered office at Sint-Pancratiuslaan 18, 1950 Kraainem, box 8, registered with the Crossroads Bank for Enterprises under the number 0696.779.209, hereinafter referred to as "On-Hertz".
This Agreement describes the Customer's rights and the conditions upon which it may use the On‑Hertz Software. If the Customer merely registered for the Trial Software or for any free Services offered hereunder, the applicable provisions of this Agreement will also govern the free trial for the Trial Software and/or such free Services.
The Customer should review the entire Agreement, including any supplemental license terms that accompany the Software and any other terms referenced herein. By accepting this Agreement, either by clicking a tick-box indicating its acceptance, or by executing an Order form referencing this Agreement, the Customer agrees with the terms and conditions herein. If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that it has the authority to bind such entity to these terms and conditions, in which case the term Customer shall refer to such entity.
On-Hertz and the Customer are hereinafter jointly referred to as the "Parties", or each individually as a "Party".
Article 1. Definitions
1.1. Unless expressly otherwise stated, the subsequent terms shall have the following meaning when written with a capital letter.
Account refers to the identifiers used to verify the identity of the Authorised User;
Affiliate in relation to a Party means, an individual or legal entity which directly or indirectly controls, is controlled by or is under common control with that Party, where "control" is defined by the direct or indirect ownership of stock or other interests entitled to elect a majority of the board of directors or other governing body of an entity, or the direct or indirect ownership of more than fifty per cent (50%) of the equity or profits interest in such entity;
Agreement means the present software license agreement, including all annexes attached to it;
API means On-Hertz's Application Programming Interface language that allows other software or hardware devices to interface with the Software, which On-Hertz will make available as disclosed under the terms and conditions of the present Agreement. The API includes any accompanying Documentation and any new revisions or updates to the API made available by On-Hertz in its sole discretion from time to time;
Authorised Equipment means any equipment listed as authorised in the Documentation, including the minimum specifications needed to run the Software;
Authorised User means all employees, consultants, agents, and other individuals contractually bound to the Customer and authorised by the Customer to benefit from the Software in accordance with the terms and conditions set out herein;
Business day means a day of the year during which banks are open for business in Belgium;
Business hours means the time at which On-Hertz will be open, namely, between 9 a.m. and 6 p.m. (Central European Time);
Customer Application means the software application that is developed by the Customer allowing Authorised Users to access, send, and receive data between the Software and such application via the implementation of the API;
Confidential Information means the information of either Party, whether in written, oral, electronic or other form, and which (i) is designated as confidential or proprietary, or (ii) should reasonably be considered confidential given its nature or the circumstances surrounding its disclosure, regardless of whether or not it is expressly designated as confidential, including information and facts concerning business plans, customers, prospects, personnel, suppliers, partners, investors, Affiliates or others, training methods and materials, financial information, marketing plans, sales prospects, customer 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 On-Hertz shall include the Software and the Documentation.
Delivery Date means the date on which the Software is to be delivered to the Customer as specified in the Order;
Documentation means the user documentation, technical and product documentation and specifications, handbooks, and manuals as they each relate to the Software;
Effective Date means the date on which the present Agreement enters into force, except as otherwiste agreed between the Parties, being the Delivery Date provided in the Order;
Intellectual Property Rights all rights of exclusive use, such as patents, designs, models, drawings, copyrights (including moral rights, to the extent legally possible), software rights, database rights, trademarks, service marks, know-how, trade secrets, web domain names, trade names (all whether registered or not, and including any applications thereto) and in general all rights of a same or similar nature, anywhere in the world including all extensions, reversions, revivals, and renewals thereof;
Installation Software means the digital file provided by On-Hertz to the Customer on the Delivery Date, upon concluding the Agreement;
License Fees means the fees payable as a counterpart for the use of the Software described in the relevant Order. The License Fees do not include any remuneration in return for Services;
Object Code means the binary machine-readable version of the Software;
Order means an order for Software as set out in Annex 1 to the Agreement;
Open-Source Software (OSS) means any software, library, utility, tool, or other computer or program code collectively, "Code" that is licensed or distributed as "free software", "freeware", "open-source software", or under any terms or conditions that impose any requirement that the Code or any software using, linked with, incorporating, distributed with, based on, derived from, or accessing the Code: (i) be made available or distributed in source code form; (ii) be licensed for the purpose of making derivative works; (iii) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (iv) or be redistributable at no charge. Open-source materials include without limitation any code licensed or distributed under any of the following licenses or distribution models or similar licenses or distribution models: the GNU General Public License (GPL), GNU Lesser General Public License or GNU Library General Public License (LGPL), Mozilla Public License (MPL), BSD Licenses, the Artistic License, the Netscape Public License, the Sun Community Source Code License (SCSL), the SUN Industry Standard License (SISL) and the Apache License;
Services means the work done by On-Hertz in support of the Software including but not limited to access to API, development services, installation services, training, consulting, support, and such other services;
Software refers to the On-Hertz computer program set out in the Documentation and Order;
Software Key refers to the key provided to the Authorised User by On-Hertz, for it to be able to access and use the Software;
Source Code means computer software written in programming languages including all comments and procedural code such as job control language statements, in a form intelligible to trained programmers, and capable of being translated into the Object Code form of the software for operation on computer equipment through assembly or compiling;
Virus means, without limitation a virus, cancelbot, worm, logic bomb, Trojan horse or other harmful components of software or data.
Article 2. License
2.1. All Intellectual Property Rights and other proprietary rights in or related to the Software are and will remain the exclusive property of On-Hertz, whether or not specifically recognised or perfected under the laws of the jurisdiction in which the Software is used or licensed. The Customer will not take any action that jeopardises On-Hertz' proprietary rights or acquire any right in the Software or the Confidential Information. Unless explicitly otherwise agreed, on a case-by-case basis, On-Hertz will own all rights in any copy, translation, modification, adaptation, or derivation of the Software or other items of Confidential Information, including any improvement or development thereof.
2.2. The Customer agrees to notify On-Hertz promptly if and when the Customer becomes aware of any third party violating or infringing On-Hertz's rights of whatever nature in any of the Software, the Documentation, or the Deliverables. On-Hertz shall have the right, but not the obligation, to prosecute such violator or infringer at its expense and to retain the full amount of the sums recovered as damages. The Customer agrees to provide, at On-Hertz's request and expense, reasonable cooperation to On-Hertz in the event of the opening of any such proceedings by On-Hertz.
2.3. Subject to the terms and conditions of this Agreement and the timely payment of the License Fee by the Customer, On-Hertz hereby grants the Customer a non-exclusive, non-transferable, non-sublicensable, and perpetual license, to use, download, install, and run the Software ant the API on a worldwide basis (in Object Code form only) in accordance with the terms and conditions of this Agreement, the Annexes, and the corresponding Documentation. Except as otherwise agreed in writing, the license terms shall not extend to the Customer's Affiliates, if any.
The license shall be extended automatically to any subsequent versions of the Software and Documentation or to any evolution thereof, resulting from the performance of Services in relation to the Software as set out under article 6 to the Agreement.
2.4. The Customer acknowledges that this Agreement does not, under any circumstance, entail a sale of the Software, or any other right not mentioned in the Agreement.
2.5. The license is granted for internal use of the Software only. This means that the Customer is allowed to use the Software exclusively for its internal business use. The foregoing explicitly excludes the right for the Customer to make the Software available, including via further distribution, in any form, to any third party, that does not qualify as an Authorised User.
Should the Customer nevertheless wish to engage in the further distribution of the Software, it can contact On-Hertz via email@example.com in order to receive additional information regarding the potential distribution of the Software.
2.6. The Customer may copy the Software only insofar as it is strictly necessary for the intended use of the Software. The Customer explicitly agrees that in the foreseeable future, the intended use of the Software does not require it to make copies of this Software other than for archival and/or backup purposes. Should it at any time occur that the intended use of the Software implies the necessity of copies for other purposes than archival and/or backup purposes, the Customer shall immediately notify On-Hertz in writing and provide On-Hertz with all information necessary in order to enable it to evaluate the actual necessity of such copies.
2.7. The Software license includes the right to use and reproduce On-Hertz's standard user manual and other documents for such Software, contained in the Documentation. Reproductions will only be made if they are strictly necessary for the use of the Software by the Customer. The Documentation and its reproductions are subject to article 14.
2.8. The Customer receives all ownership rights, including all Intellectual Property Rights, to the works and other outputs resulting from its exploitation of the Software. The Customer will be free to share and use the creations outputted by its use of the Software with any third party, as long as this output does not infringe the provisions of this Agreement.
C. Use of the Software
2.9. The Customer agrees that it shall not itself, via any of its Authorised Users or through a third party:
(i) transfer, provide, disclose, license or sublicense, or otherwise make available, or permit the use of or access to, the Software, the API or the related Documentation, in whole or in part, to any third party, except as expressly permitted in this Agreement or otherwise agreed in writing between the Parties; (ii) modify the Software, the API or related Documentation or develop any derivative works based on the Software or related Documentation or any Confidential Information of On-Hertz; (iii) use the Software, the API or related Documentation, except as expressly authorised herein; (iv) decompile, disassemble, reverse engineer, or attempt to reconstruct, reproduce, identify, or discover any Source Code, underlying ideas, underlying user interface techniques, or algorithms of the Software by any means whatsoever, unless with express written approval from On-Hertz; (v) encumber or suffer to exist any lien or security interest on the Software, the API or related Documentation or; (vi) take any action that would cause the Software, the API, the related Source Code or Documentation to be placed in the public domain.
D. Access to the API
2.10. The Order may include an access right for the Customer to the API, subjected to the signature of a Non-Disclosure Agreement with On-Hertz. For the entire duration of the Agreement, as disclosed under article 7, the Customer shall have a right to request from On-Hertz access to the API in order to implement the API in one or more Customer Applications. Unless mentioned otherwise, the cost of accessing and using the API is not included in the Price.
2.11. Such access is granted to the Customer in the form of a non-exclusive, non-sublicensable, and limited license to develop the Customer Application, and distribute such Customer Application to the Authorised Users.
2.12. On-Hertz may update and/or upgrade the API from time to time in its sole discretion. To that extent, it may require the Customer to alter the Customer Application developed or distributed under this Agreement to use the most current version of the API.
However, On-Hertz endeavours to support older versions of the API in relation to the Software. Where a new version of the API and/or Software is issued and On-Hertz has knowledge of potential compatibility issues or decides to decommission one or more older versions of the API, it will notify the Customer via a release note thereon, at least one (1) week before implementing such new version of the API and/or Software. The Customer is then free to install the new version or not, at his own risk.
2.13. Notwithstanding the previous, On-Hertz can never be held liable, nor can it be held to pay any indemnity, for the older versions, any compatibility issues in relation to, or decommissioning of older versions of the API.
Therefore, On-Hertz cannot guarantee that the API will meet the Customer's requirements, that it will operate uninterrupted, timely, secure, or error-free, and/or that any errors in de API will be corrected.
2.14. Any material downloaded or otherwise obtained through the API is obtained at the Customer's and its Authorised User's own discretion and risk. The Customer will be solely responsible for any damage to the Customer's or its Authorised User's computer system/network or any loss of data that may result from the downloads of any such material or the use of the API.
2.15. The API shall be considered to be Confidential Information.
Article 3. Open-Source Software
3.1. The Software uses Open-Source Software in order to meet the specifications set out in the Documentation. Except if specifically otherwise stated, any third-party product or element of the software that is Open-Source Software will not be licensed on the basis of On-Hertz's license contained in this Agreement and is always covered by its own license terms, including the therein contained representations, warranties, and indemnities. The latter terms will be referenced by On-Hertz in the Documentation.
Article 4. Delivery of the Software
4.1. Except as otherwiste agreed between the Parties, the Agreement enters into force on the Delivery Date provided in the Order. On-Hertz shall deliver the Software and corresponding Documentation to the Customer on the Delivery Date. Delivery of the Software is executed via the provision of Installation Software giving the Customer access to the files to be downloaded and installed in order to run the Software.
Once the Software has been installed, the Customer receives a unique user ID. The unique user ID can be used by the Customer to generate the Software Key according top the procedure described by On‑Hertz. Once the unique user ID and the Software Key have been verified, they can be inserted into the Software to enable its functionality. Alternatively, On-Hertz can provide a unique customer ID and Software Key directly to the customer.
4.2. As from the moment of delivery, all risk relating to the loss of or damage to the Software passes on to the Customer, except as set out in the articles 11, 12 and 13 of the Agreement relating to the warranties, indemnities and liabilities resting on On-Hertz.
Article 5. Trial version of the Software
5.1. On-Hertz offers a trial version of the Software ("Trial Software"). The Customers making use of the Trial Software are considered Customers for the application of this article 5. Except as explicitly otherwise stated in this article 5, the download, installation and use of the Trial Software are subject to the terms and conditions contained in this Agreement.
5.2. The Trial Software is delivered "as is". The Customer shall not be able to draw any rights from the articles 11, 12 and 13 to the Agreement. The terms and conditions of article 9 do not apply to the download, installation and use of the Trial Software.
5.3. In derogation from Article 2 of the Agreement and except as explicitly stated otherwise by On‑Hertz, the Customer can only download and install the Trial Software once and for a limited duration. Once a predetermined and fixed period expires the Software will no longer be available for use by the Customer. On-Hertz shall retain the right at all times, to terminate the Customers' access to the Trial Software without incurring any liability and without having to pay any indemnification.
5.4. If the Customer should decide to continue its use of the Software after the termination of the period referred to in section 5.3., the provisions of the present Agreement shall apply in full, after payment is made in accordance with article 9 to the Agreement. Delivery and installation shall be proceeded to in accordance with article 4.
Article 6. Services
6.1. The present Agreement includes the right for the Customer to Services. These Services may however be limited in both time and scope. The extent of such Services are set out in the Support and Maintenance Agreement terms attached in Annex 2 to the present Agreement.
Article 7. Obligations of the Customer
7.1. The Customer will make sure, at its own risk, to own, purchase or have access through other means to all the Authorised Equipment necessary for the use of the licensed Software. On-Hertz will not be held responsible for the Customer not having access to the required Authorised Equipment.
7.2. The Customer shall report to On-Hertz any and all material error and/or defect within a reasonable time from when the Customer becomes aware of the material error and/or defect. The reporting will occur via email to the address disclosed in Article 17 of this Agreement.
7.3. The Software is developed with the purpose of allowing the Customers to produce media in the form of sound and video content. The Customer will not use the Software for the creation of content that might:
(i) be considered offensive, racist, hateful, extremist, insulting or pornographic; (ii) infringe Intellectual Property Rights of a third party; (iii) involve a risk of slander and defamation; (iv) be contrary to the purpose of the Software, to different laws and regulations, to public order or to morality; (v) in any way cause harm to On-Hertz's brand, including its reputation.
Article 8. Suspension of access
8.1. On-Hertz may suspend the Customer's access to the Software immediately by written notice to the Customer, if the Customer breaches any of the license terms herein or infringes on the Intellectual Property Rights of On-Hertz in any other way.
Article 9. Fees
9.1. In return for the license, the Customer agrees to pay the fees as recorded in the Order annexed to this Agreement and in accordance with the therein specified payment modalities.
9.2. In case of late payment by the Customer, the Customer shall automatically and without any notice to this effect, be in default and a contractual interest at the rate of 1% per month shall become due. In addition to this contractual interest, the Customer shall automatically and without any notice be liable to pay a fixed and irreducible compensation of 10% payable on the outstanding amount, with a minimum of EUR 500, notwithstanding the delay interest or any other potential charges or legal fees. Non-payment on the due date of a single invoice shall make the balance of all other invoices owed, even those not yet due, immediately due and payable by law.
9.3. Complaints by either Party are not such that they suspend any payment obligations with regard to non-related deliveries and payment obligations that have already become due on an earlier date.
Article 10. Data Protection
10.1. In the context of their professional relations established by this Agreement, the Parties undertake to comply with the laws and regulations in force, applicable to the processing of personal data and, in particular, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 applicable as from 25 May 2018 ("GDPR").
Article 11. Warranties
11.1. The Customer hereby acknowledges and agrees that any modification or attempted modification of the Software by any party other than On-Hertz shall void On-Hertz's warranties with respect to the Software and shall be deemed to constitute a material breach of this Agreement by the Customer.
11.2. Each Party represents and warrants that it has the full right and authority to enter into, execute, and perform its duties under this Agreement.
11.3. On-Hertz represents and warrants the functioning of the Software for a period of ninety (90) Business days when the duration of the Agreement is up to three (3) months or longer. If the duration of the Agreement is less than three (3) months, the warranty does not apply. The warranty period commences on the Delivery Date. The Software shall function materially in accordance with the specifications and functions set out in the Order in Annex 1 and the relating Documentation. The warranty applies, provided that the Software is maintained and operated in accordance with the Documentation and provisions of this Agreement.
11.4. This warranty does not extend to failures in function that result from (i) the interaction of the Software (as applicable) with any products or services not included in the Authorised Equipment, (ii) any misuse or unauthorised use of the Software, (iii) any failure by the Customer to install any corrections or updates to the Software issued by On-Hertz, or (iv) any modification, alteration or change to the Software not made or approved by On-Hertz.
11.5. Upon written and detailed notification by the Customer of the malfunctioning of the Software within the abovementioned warranty period, as the sole and exclusive remedy for breach of the foregoing warranty, On-Hertz shall use commercially reasonable efforts to replace or modify the (malfunctioning part of the) Software, at its own cost, to bring it in conformance with the Documentation or to provide a workaround solution that is substantially similar to the Software, provided that the Customer provides On-Hertz with the necessary diagnostic information with respect to the failure to allow On-Hertz to reproduce the error. If the malfunctioning of the Software is not corrected, On-Hertz will extend the warranty period for the Software on a case by case basis.
11.6. To the best of On-Hertz's knowledge, the Software does not contain any Virus upon delivery to the Customer and On-Hertz shall not knowingly program into the Software any Virus or other software routine designed to permit unauthorised access to any computer system or to disable, erase or otherwise cause damage to software, hardware or data, or any back door, time bomb, software lockout key or device, drop dead device, or other software routine designed to disable a computer, either automatically or with the passage of time or under the control of any person, unless any such software routine is requested in writing by the Customer. Therefore, On-Hertz represents and warrants that it will analyse the Software with industry-standard antivirus software and will not deliver the Software if any of the abovementioned issues are discovered by such anti-virus software.
11.7. The express warranties set forth in this article 11 are the only warranties made by On-Hertz with respect to the Software.
11.8. The Customer warrants that it will at all times use the Software in accordance with this Agreement, the Documentation and the technical instructions provided by On-Hertz.
Article 12. Indemnification
12.1. The Customer shall indemnify On-Hertz for all harm arising from the acts enumerated in section 7.3. committed by itself, the Authorised Users appointed by it, including its agents, employees, officers, and consultants.
12.2. A Party (the "Indemnifying Party") shall indemnify the other Party (the "Indemnified Party") for any claim brought against that Indemnified Party relating to injury or to death of any individual, or any loss of or damage to real or tangible personal property, caused by the act or omission by the Indemnifying Party or by any of its agents, employees, officers, or consultants.
12.3. On-Hertz shall defend, indemnify and hold harmless the Customer against any claims that the normal use or possession of the Software infringes the Intellectual Property Rights of any third party but excluding any claims resulting from (i) the Customer's unauthorised use of the Software, (ii) the Customer's or any third party's alteration or modification of any of the Software, (iii) the Customer's failure to use the most recent version of the Software made available to the Customer or the Customer's failure to integrate or install any corrections to such Software issued by On-Hertz, (iv) Customer's use of the Software in combination with any equipment other than the Authorised Equipment and any non-On-Hertz software, products or services, or (v) the Software having been developed to the Customer's design or incorporating documents, materials, ideas, data or other information, provided by or on behalf of the Customer.
12.4. Such indemnity obligation shall be conditional upon the following: (i) On-Hertz is given prompt written notice of any such claim; (ii) On-Hertz is granted immediate and complete control of the defense and settlement of such claim; (iii) upon On-Hertz's request, the Customer fully cooperates with On-Hertz in the defense and settlement of such a claim, at On-Hertz's expense; and (iv) the Customer makes no admission as to On-Hertz's liability and does not otherwise prejudice On-Hertz's defense of such a claim, nor does the Customer agree to any settlement in respect of such a claim without On-Hertz's prior written consent. Provided these conditions are met, On-Hertz shall indemnify the Customer for the damages and costs incurred by the Customer as a result of such a claim, as awarded by a competent court of final instance, or as agreed to by On-Hertz pursuant to a settlement agreement.
12.5. In the event the Software is, or in On-Hertz's reasonable opinion is likely to become, the subject of a third-party infringement claim (as per section 12.3.), On-Hertz shall have the right, at its sole option and expense, to (i) modify the ((allegedly) infringing part of the) Software so that it becomes non-infringing while preserving equivalent functionality; (ii) obtain for Customer a license to continue using the Software in accordance with this Agreement; or (iii) terminate the relevant license and pay to the Customer a pro-rata amount of the License Fees proportionate to a depreciation rate of five (5) years, meaning that the licensor shall be indemnified for the remainder of the five (5) years, counting from the Delivery Date. The previous shall not apply to any Open Source Software provided in the framework of the present Agreement.
12.6. The foregoing states the entire scope of the indemnity obligation of On-Hertz and the sole remedy of the Customer with respect to any infringement or alleged infringement of any Intellectual Property Rights caused by the Software or any part thereof.
Article 13. Limitation of liability
13.1. Nothing in this Agreement shall exclude or limit either Party's liability for (i) death or personal injury due to its negligence; (ii) any liability which is due to its own fraud, willful misconduct, or gross negligence; or (iii) any liability which it is not permitted to exclude or limit as a matter of law.
13.2. On-Hertz will have no liability for the format, content, veracity, compatibility, or any other use of any other data provided by the Customer or any third party to On-Hertz's Software or processed by the Software. The Customer acknowledges that any use of data and any result of the data processing are the Customer's own liability.
13.3. Except as cannot lawfully be excluded (i) On-Hertz expressly disclaims all warranties, terms, and conditions, including, but not limited to, any implied representations, warranty, term or condition of satisfactory quality, availability, security, or fitness for a particular purpose, or non-infringement, and (ii) On-Hertz does not represent or warrant that the Software is free of inaccuracies, errors, bugs, or interruptions.
13.4. To the maximum extent permitted by applicable law, On-Hertz excludes its liability (whether in contract, warranty, tort (including as a result of negligence, product liability or otherwise) arising out of or relating to this Agreement for (i) cost of cover, recovery or recoupment of any investment made by the Customer, its affiliates or any third parties acting on their behalf or under their control, in connection with this Agreement; (ii) any indirect, punitive, special, consequential or other similar damages; and (iii) losses or damages for loss of profit, lost revenue, loss of business, loss or corruption of data, loss of customers and contracts, loss of goodwill, the cost of procuring replacement goods or services, and reputational damage, in each case even if On-Hertz has been advised of the possibility of such costs or damages arising.
13.5. Without prejudice to the other sections of this article 13 to the Agreement, to the maximum extent permitted under applicable law, On-Hertz's liability arising out of or in connection with this Agreement or the transactions contemplated hereby, whether in contract, tort (including negligence, product liability or other theory), or otherwise, shall not exceed in aggregate the total amount of Fees paid by the Customer in the twelve (12) months preceding the last damaging act.
13.6. The Customer agrees that On-Hertz can only be held liable as per the terms of this article 13 to the extent damages suffered by the Customer are attributable to On-Hertz. The exclusions and limitations of liability under this Section shall operate to the benefit of On-Hertz's Affiliates and subcontractors under this Agreement to the same extent that such provisions operate to the benefit of On-Hertz.
13.7. The Customer's primary remedy for any claim arising out of or in connection with this Agreement shall be for On-Hertz, upon receipt of written notice, to use reasonable efforts to cure the breach or default at its expense, and failing that, On-Hertz's liability shall be limited as set forth in this Agreement. The Customer shall have a duty to mitigate damages for which On-Hertz is responsible.
Article 14. Confidentiality
14.1. Each of the Parties agrees that it shall (i) keep the other Party's Confidential Information secure and confidential and not disclose any Confidential Information of the other Party, except to those of its employees, officers, directors, contractors and Affiliates that have a demonstrable legitimate need to know such information in light of the Parties' rights and obligations hereunder, subject to each of them committing in writing to adequate confidentiality obligations prior to being granted access to such Confidential Information and subject to any other relevant conditions and restrictions set out in this Agreement, and (ii) use any Confidential Information of the other Party only for the purpose of the performance of this Agreement, excluding any use for its own benefit or that of any third party, except as expressly permitted under this Agreement.
14.2. Each of the Parties shall ensure that each person to whom it provides Confidential Information pursuant to this Agreement is made aware of and complies with the confidentiality obligations under this Agreement as if they were a party to this Agreement. Each of the Parties shall be responsible and liable to the other Party for a breach of these confidentiality obligations by any party to whom it provides Confidential Information.
14.3. The confidentiality obligations set forth herein shall not apply in respect of information which:
(a) was rightfully in the receiving Party's possession, without confidentiality restrictions attached to it, prior to receipt of such information from the disclosing Party; (b) is (at the time of disclosure by the disclosing Party) or subsequently falls into the public domain otherwise than as a result of a breach of the receiving Party's confidentiality obligations hereunder; (c) is received from a third party who is not under an obligation of confidentiality in relation to the information; or (d) is developed independently by the receiving Party without access to, or use or reference to, the disclosing Party's Confidential Information.
14.4. The receiving Party may disclose Confidential Information as required to comply with (i) a valid order or other requirement of a court or other governmental body, or (ii) the rules of a regulated market or other recognised organised market place, in each case provided that (to the extent permitted by applicable law) written notice of such order or requirement shall be given to the disclosing Party promptly after being subject to such order or requirement and, if practicable, in advance of the required disclosure. If requested the receiving Party shall, at the disclosing party's cost, cooperate with efforts by the disclosing Party to seek a modification of the disclosure requirement and/or a confidentiality agreement or protective order governing the disclosure.
14.5. In case of termination of the Agreement, whatever the cause, the Parties shall return all copies of documents and material containing confidential information of the other Party or certify, in writing the destruction thereof. Neither the termination nor the expiry shall have any effect on the survivability of this clause.
14.6. If either Party fails to comply with the obligation in the paragraphs of this article 14, an indemnification of EUR 5.000,- (five thousand) per breach shall be due to the other Party, without prejudice to the right of the Parties to commence proceedings in order to obtain injunctive relief, as the case may be to suspend the the Customer's access to the Software in accordance with article 8, and without prejudice to the right of the Parties to claim a higher amount for the damages that are not covered by this amount.
Article 15. Force Majeure
15.1. For the purposes of this Agreement, "force majeure" shall be deemed to be what is generally considered by the case-law of Belgian courts in this respect, and in particular, any event beyond the express will of the Parties which prevents the normal execution of the Agreement, including a total or partial strike within or outside the company, lock-outs, exceptional weather conditions, epidemics, blocking distribution or stocking for any reason, earthquake, fire, storm, flood, water damage, freezing of computer systems or telecommunication, theft, etc.
15.2. In case of force majeure, the Parties may suspend the performance of the Agreement and its Annexes during the period the force majeure subsists. If the force majeure persists for more than sixty (60) days starting from the notification in the next paragraph, the Parties have to right to terminate the Agreement without any compensation being owed.
15.3. Each Party shall notify the other Party in writing of the particular circumstances regarding the force majeure and shall do its best to remedy the situation.
15.4. The force majeure shall never excuse the Customer from making the payments that have become due at the moment of occurrence of the force majeure event.
Article 16. Term and Termination
16.1. The present Agreement is concluded between the Parties for a fixed duration as set out in the applicable Order ("Term").
16.2. Either Party may terminate for convenience the Agreement, via registered letter with acknowledgement of receipt addressed to the other Party, subject to a notice period of at least one (1) month, unless otherwise stated in the Order. Should this notice be given by the Customer, the latter shall automatically owe a compensation to On-Hertz. This compensation shall be equivalent to thirty (30) percent of the total value of the Order. In addition, any started period with respect to the License Fee (monthly or yearly, as indicated in the Order) remains due to On-Hertz.
This compensation is due without prejudice to the right of On-Hertz to claim a higher amount for the damages that are not covered by this amount.
16.3. If a Party materially defaults ("Defaulting Party") in any of its obligations in the execution of the Agreement, the other Party shall have the right to terminate the Agreement at any time, without notice period or indemnity, by giving written termination notice to the Defaulting Party. The Agreement will automatically be deemed terminated on the day following the date of dispatch of the notification. Before sending the termination notice, a notice of default will be sent by the non-defaulting Party, which will allow the Defaulting Party to remedy its breach capable of remedy for a period of fourteen (14) calendar days following the day after the date of dispatch of the formal notice of default.
If the duration of the Agreement (or its remainder) should be less than fourteen (14) calendar days, the notice period will be equal to three (3) calendar days. If the duration of the Agreement (or its remainder) should be less than three (3) calendar days, no notice period will apply.
16.4. The Customer has the possibility to cancel the Order after its acceptance by On-Hertz at least one (1) week before the Delivery Date as agreed in the Order ("Cancellation Period"). However, should such cancellation occur with respect to an Order already accepted by On-Hertz, the Customer shall automatically owe a compensation to On-Hertz. This compensation shall be equivalent to thirty (30) percent of the total value of the Order.
In case of a cancellation by the Customer after the Cancellation Period, the total value of the Order remains due.
The foregoing compensations are due without prejudice to the right of On-Hertz to claim a higher amount for the damages that are not covered by these amounts.
Article 17. Miscellaneous
17.1. This Agreement does not constitute a partnership agreement, nor does it create a joint venture or agency relationship between On-Hertz and the Customer. Neither Party shall take any action or make any representation to any third party that would be inconsistent with the foregoing sentence. Neither Party shall be liable for the representations, acts, or omissions of the other Party unless expressly provided otherwise under the terms of this Agreement.
17.2. All notices hereunder shall be in writing, addressed to the receiving Party's address as set forth below or to such other address as a Party may designate by notice hereunder, and shall be either (i) delivered by hand, (ii) sent by a nationally recognised overnight courier, (iii) sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) by e-mail:
If to On-Hertz:
Sint-Pancratiuslaan 18, box 8
Contact Person: Benjamin Lardinoit, CEO
If to the Customer to; the address stated in the Order.
All notices shall be deemed to have been given either (1) if by hand, at the time of actual delivery thereof to the receiving Party at such Party's address, as provided above, (2) if sent by overnight courier, on the next business day following the day such notice is delivered to the courier service, (3) if sent by registered or certified mail, on the 5th day following the day such mailing is made, or (4) if sent by e-mail, on the day of transmission.
The Parties hereby agree to notify each other in case either of them changes its address.
17.3. The terms and conditions of this Agreement may be modified or amended only by a written agreement executed by a duly authorised representative of both Parties.
17.4. The Customer may not assign or transfer this Agreement to any third party (excluding its Affiliates) without the prior written consent of On-Hertz. Such consent cannot be unreasonably withheld.
On-Hertz shall be free to transfer or assign (whole or part of) the Agreement to its Affiliates. On-Hertz shall also be free to subcontract performance of this Agreement to its Affiliates, to individual contractors and to third-party service providers without having to obtain the Customer's prior consent, provided that On-Hertz shall remain responsible towards the Customer in respect of such subcontracted services.
On-Hertz may furthermore assign its rights and obligations under this Agreement, without the consent of the Customer, in the event On-Hertz shall hereafter effect a corporate reorganisation, consolidate with, or merge into, any person or legal entity or transfer all or substantially all of its properties or assets to any person or legal entity. This Agreement shall inure to the benefit of and be binding upon On-Hertz its respective successors, executors, administrators, heirs and assigns.
17.5. If one of the Parties fails to enforce one of its rights arising under the Agreement, this shall not, in any case, be regarded as a waiver of such right and as an extension or change of the rights of the other Party.
17.6. 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.
17.7. If a court of competent jurisdiction determines any provision of this Agreement to be unenforceable or invalid, then such provision shall be deemed limited to the extent that such court deems it valid or enforceable and the remaining provisions of this Agreement shall remain in full force and effect.
17.8. The Agreement shall be governed by and construed in accordance with the laws of Belgium, without reference to its conflicts-of-law-rules. Should a dispute arise in the course of the contractual term, then On-Hertz and the Customer will try for a period of 30 days to solve the dispute amicably. If no solution is found within the provided time limit, then the dispute will fall under the exclusive jurisdiction of the Brussels court, notwithstanding any other mandatory provision.