General Terms and Conditions 1 Definitions 2 Applicability and Validity of Proposals 3 Services 4 Maintenance, Support and Hosting 5 Intellectual Property Rights 6 Client Data 7 Financial Conditions 8 Warranty 9 Term and Termination 10 Privacy and Data Protection 11 Confidentiality 12 Non-solicitation 13 Limitation of liability 14 Miscellaneous Rombit Studio
Terms and conditions
1.1 Capitalized terms used in these Terms and Conditions shall have the meaning given to them below:
a) Agreement: the contractual relation between Rombit Studio and the Client, including these general terms and conditions, the Proposal(s) and any annex or schedules.
b) Client: the legal entity specified in the Proposal.
c) Deliverables: the deliverables created or developed specifically for the Client in the provision of the Services, and as set forth in the relevant Proposal.
d) Rombit Studio: Rombit Studio BV, with registered office at Meir 30, 2000 Antwerpen, Belgium and company number 0507.837.956.
e) Proposal: a written document signed between both parties, regardless of its name, specifying the nature, number and other specifics of the services ordered by the Client, and any specific conditions (if any).
f) Background IPR: means any pre-existing samples, data works, documents, software, tools, methodologies, algorithms, or other technologies (including the intellectual property rights vested therein) which are in the possession of, owned or controlled by Rombit Studio prior to the effective date of the agreement or which are not generated in respect of the performance of the Services or which are developed independently of the activities under this Agreement. Background IPR includes all improvements and modifications made thereto during the execution of the Agreement.
g) Services: the professional services as described in the Proposal.
h) Terms and Conditions: the present general terms and conditions.
2.1 These Terms and Conditions apply to all Proposals and to all Services ordered by the Client, unless the parties have entered into a separate master services agreement or framework agreement, in which case the provision of the Services shall solely be governed by the relevant master services agreement or framework agreement. These Terms and Conditions take precedence over all general and special terms and conditions from the Client, even if they state that only those conditions shall apply and even if they were not protested by Rombit Studio.
2.2 Unless otherwise stated in the Proposal, Proposals are valid for twenty (20) days as from the date mentioned in the Proposal. Any quote from Rombit Studio that is not part of a Proposal shall only bind Rombit Studio if it is expressly accepted in writing by Rombit Studio. Neither party shall be bound by a Proposal until executed by a duly authorized representative of both Parties.
3.1 Rombit Studio undertakes to provide the Services in accordance with generally accepted industry standards and shall exercise reasonable care and skill in doing so.
3.2 The Services shall be performed in complete independence and Rombit Studio shall plan its activities as it sees fit (including the right to provide services remotely and to reassign any of the designated resources, unless expressly identified as being key personnel). Any timeframes set forth in the Proposal or specified otherwise, shall be indicative, unless they are expressly agreed to be binding.
3.3 The Client acknowledges that the provision of the Services is at all times is subject to the cooperation of the Client in good faith. In particular, and without prejudice to the generality of the foregoing, the Client shall provide on a timely basis such access, information, approvals, business rules, resources and access to (third party) software and systems as necessary to allow Rombit Studio to provide the Services.
3.4 Rombit Studio shall not be responsible or held liable for any delay or failure in the provision of the Services or Deliverables resulting from the Client’s failure to comply with clause 3.3.
3.5 The scope of the Services may only be changed in mutual agreement and such change(s) shall be documented in writing.
3.6 Unless expressly agreed otherwise in writing, the Services and any Deliverables will be deemed accepted upon delivery.
4.1 If applicable, any maintenance, support or hosting services in respect of the Deliverables shall be provided on a best efforts basis only.
4.2 Unless expressly agreed otherwise, Rombit Studio reserves the right to charge the Client for (i) any maintenance and support services provided by Rombit Studio to keep the Deliverables operational for the Client on a time and material basis (at the then current rates), and (ii) any (third party) hosting costs incurred by Rombit Studio.
5.1 Rombit Studio retains all rights, titles and interests, including any intellectual property rights, in and to its Background IPR and nothing in this Agreement shall convey any title or proprietary right or intellectual property rights in or over de Background IPR to the Client. Except for the limited license granted pursuant to clause 5.2, no other rights in respect of the Background IPR shall be granted or transferred to the Client in connection with this Agreement.
5.2 Subject to the timely and full payment of all fees under the Agreement, Rombit Studio shall assign all rights, titles and interests, including intellectual property rights, in the Deliverable(s) to the Client, however, expressly excluding any Background IPR or third party intellectual property rights incorporated in the Deliverables. To the extent Background IPR is incorporated in the Deliverables Rombit Studio grants the Client a non-transferable, non-assignable, non-exclusive license, without the right to sublicense, to use the Background IPR solely in connection with the Deliverables for the Client’s internal business purposes.
5.3 Rombit Studio at all times reserves the right to (i) use the ideas, concepts, processes and knowhow developed or created by Rombit Studio during the performance of the Agreement; and (ii) to acquire, market, develop, provide or use for itself or others, services or other products that have the same or similar functions to the Services or Deliverables provided to (unless this would result in a breach of Rombit Studio’s confidentiality undertakings under the Agreement).
6.1 Any client data provided to Rombit Studio for the provision of the Services (“Client Data”) shall remain the property of the Client. The Client hereby grants Rombit Studio a non-exclusive license to copy, reproduce, store, export, adapt, edit and translate the Client Data to the extent reasonably required for the execution of the Agreement.
6.2 The Client is solely liable and responsible for the accuracy and correctness of the Client Data and warrants to Rombit Studio that the Client Data shall not infringe (i) the (intellectual property) rights of any third party; or (ii) breach any provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
7.1 The Client shall pay the amounts specified in the Proposal in accordance with this clause 7. Unless otherwise agreed in the Proposal, all service fees are calculated on a time and material basis based on the rates set out in the Proposal.
7.2 Unless expressly agreed otherwise, all payments shall be made by wire transfer to Rombit Studio’s bank account within thirty (30) days from the invoice date.
7.3 Any disputes relating to invoiced amounts must be submitted by registered mail (containing the reasons for such dispute) within fourteen (14) days from the invoice date, failure to do so shall result in the invoice being deemed accepted. The undisputed portion of the invoice must be paid in full.
7.4 All amounts due hereunder are payable in euro (unless agreed otherwise) and are exclusive of VAT, costs and expenses which shall be charged separately by Rombit Studio.
7.5 All amounts due hereunder shall be paid without the right to set off or counterclaim and free and clear of all deductions or withholdings whatsoever, unless the same are required by law, in which case the Client undertakes to pay Rombit Studio such additional amounts as are necessary in order that the net amounts received by Rombit Studio after all deductions and withholdings shall not be less than such payments would have been in the absence of such deductions or withholdings
7.6 Any amounts of undisputed invoices (or parts thereof) that have not been paid on the due date shall automatically and without notice be subject to a late payment interest equal to the rate applicable pursuant to the law of 2 august 2002 (as modified from time to time), which interest shall be compounded daily as of the due date until receipt of full payment. In addition, the Client shall pay all costs incurred by Rombit Studio, as a result of the (extra)judicial enforcement of the Client’s payment obligation under this Agreement, with a minimum of one hundred fifty euro (€150).
8.1 Rombit Studio shall perform the Services with the expertise and independence, skill, care and diligence that can be reasonably expected from a qualified service provider. Save for the foregoing warranty and unless expressly agreed otherwise in writing, Rombit Studio will deliver the Services and the Deliverables “as is”. Rombit Studio does not make any other representations or warranties, express or implied, concerning any matter under this Agreement and, to the maximum extent permitted by applicable law, Rombit Studio disclaims any representations or warranties, express or implied, including (without limitation) any implied warranties of accuracy or completeness of data, fitness for a particular purpose, merchantability, or non-infringement.
9.1 Each Proposal shall commence on the effective date specified therein and shall continue until completion of the Services.
9.2 Either party may immediately terminate (and Rombit Studio may at its sole discretion suspend) the Agreement, in whole or in part without any judicial intervention, without being liable for compensation and without prejudice to its rights to damages and any other rights, remedies and/or claim to which it may be entitled by law, upon providing the other party with written notice of termination if (i) the other party performs a material breach (non-payment by the Client is hereby expressly acknowledged as constituting material breach of the Agreement) to any provision of the Agreement and fails to cure such material breach within thirty (30) calendar days after receipt of written notice of default, or (ii) the other party becomes insolvent, is subject to voluntary or involuntary bankruptcy, insolvency or similar proceeding or otherwise liquidates or ceases to do business.
9.3 Upon expiration or termination of the Agreement, irrespective of the reason, the parties shall, within reasonable time of such termination, return all Confidential Information (except as required to comply with applicable legal or accounting requirements), and the Client shall immediately pay any outstanding amounts hereunder, up to and including the date of termination.
10.1 Each party shall comply with the applicable data protection laws. The Client represents and warrants that it has the legal right to disclose any personal data that it makes available to Rombit Studio. The Client shall inform all data subjects about the processing activities by the Client and/or Rombit Studio (as applicable). Rombit Studio shall process the personal data in accordance with the data processing agreement concluded between the parties.
11.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose confidential and/or proprietary materials relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information”). Each party hereby undertakes, with respect to the Confidential Information (learned during the negotiation and/or performance of the Agreement) to (i) only use it for the performance of the Agreement; and (ii) to keep it secret and not disclose it, to any person other than with the prior written consent of the Disclosing Party, or its agents, employees, professional advisors, subcontractors or consultants where such disclosure is necessary for the performance of the Agreement. The parties shall promptly notify the other party if it becomes aware of any breach of confidence and give the other party all reasonable assistance in connection therewith. The provisions of this clause 11 shall continue in force during five (5) years following the termination of the Agreement. The Client is liable for non-compliance with the obligations mentioned under this 11 by its employees, subcontractors or representatives.
11.2 The provisions of this clause shall not apply (i) to any information which: (a) is published or comes into the public domain other than by a breach of the Agreement or, (b) can be shown to have been known by the Receiving Party before disclosure by the Disclosing Party or, (c) is lawfully obtained from a third party or, (d) can be shown to have been created by the Receiving Party independently of the disclosure and other than as part of the project in scope of this Agreement; or (ii) to the extent that any Confidential Information is required to be disclosed by any law, regulation or by any judicial or governmental order or request.
12.1 The Client will not, without the prior written consent of Rombit Studio, during the term of the Agreement and for two (2) years after termination thereof, hire, employ or otherwise engage, or solicit the services of, any personnel of Rombit Studio or its contractors, involved in the execution of the relevant Proposal, have such employees or contractors work for the Client, or, either directly or indirectly, approach them for this purpose or recommend them for employment to third parties, while such person is employed or engaged by Rombit Studio and during one (1) month thereafter. If the Client breaches this clause 12, the Client will be liable to pay an amount equal to twelve (12) times the monthly gross income of the employee or contractor concerned, without prejudice to Rombit Studio’s right to initiate any legal proceedings and/or to claim additional damages, if Rombit Studio can establish that it has incurred higher losses or damages.
13.1 Subject to the maximum extent permitted under applicable law, Rombit Studio’s total liability arising out of or in connection to the Agreement, for all causes or actions arising in any contract year shall not exceed (i) per event (or series of connected events) an amount equal to all fees (excl. taxes and expenses) paid by the Client hereunder during the month preceding the liability claim; and (ii) and in the annual aggregate per contract year, the total amount of fees (excl. taxes and expenses) paid to Rombit Studio under the Agreement during such contract year.
13.2 To the maximum extent permitted under applicable law, Rombit Studio excludes its liability for any indirect, consequential or special damages arising under the Agreement, including loss of revenue, business, anticipated savings or goodwill, loss or corruption of data, the cost of procuring replacement goods or services, or reputational damage.
13.3 The limitations of liability under this 13 shall operate to the benefit of Rombit Studio’s affiliates and subcontractors to the same extent such provisions operate to Rombit Studio’s benefit. Rombit Studio shall not be held liable for any damages or loss caused by a third party (software, systems or tools).
14.1 Independence: the parties acknowledge that they are independent contractors with respect to the Agreement and that Rombit Studio is not the Client’s agent or partner or in a joint venture with the Client.
14.2 Severability: if any provision of the Agreement is held to be invalid, illegal, or unenforceable (partially or wholly) the other provisions shall nevertheless continue in full force and effect. Each party shall use its best efforts to immediately negotiate a valid replacement provision with equal or similar economic effects.
14.3 Survival: the provisions of the Agreement that are expressly or implicitly intended to survive termination, shall survive any expiration or termination.
14.4 Amendments and entire agreement: the Agreement may be modified or amended only by written agreement executed by a duly authorized representative of both parties hereto. The Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter and supersedes all prior agreements, representations or understandings between the Parties relating to the subject matter.
14.5 Notices: any notice under the Agreement shall in first instance be given by electronic mail to the email addresses specified in the Proposal. All notices given by electronic mail, shall only be valid upon confirmation of receipt expressly given by electronic mail by the receiving party. Notices of termination or of default cannot be given by electronic mail and are to be sent by certified or registered mail to an authorized representative of the other party.
14.6 Publicity: Rombit Studio is entitled to use any (trade)marks of the Client (including the Client’s corporate name) for marketing or promotion purposes.
14.7 Force Majeure: neither party will be responsible or liable for any failure or delay in the performance of its (non-monetary) obligations under the Agreement due to an event, or a series of related events, that is outside the reasonable control of the affected party (including without limitation, social strike or actions, changes to the law, disasters, epidemics or pandemics, explosions, fires, floods, riots, terrorist attacks, wars, unfavorable weather conditions, pandemics, force majeure on the part of Rombit Studio’s subcontractors, failures in goods, equipment, software or materials of third parties, government measures, disruption of internet, data network or telecommunications facilities, unavailability of third party servers, hacker attacks, denial of service attacks, virus or other malicious software attacks, unavailability of personnel, general transportation problems and electricity outages).
14.8 Non-Assignment: the Client shall not assign or otherwise transfer any of its rights or obligations under the Agreement without Rombit Studio’s prior written consent, requested via registered letter. Rombit Studio can assign, subcontract or transfer any of its rights or obligations under the Agreement without the Client’s prior consent.
14.9 Applicable law and jurisdiction: the Agreement shall be governed by and construed in accordance with the laws of Belgium and the parties hereto submit to the exclusive jurisdiction of the courts of Antwerp, department Antwerp. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement.
