NORRIQ License Terms
1 General Provisions
1.1 By installing, having installed, subscribing to, or making use of the Supplier’s Software, the Customer accepts to be bound by these License Terms.
2 Definitions
2.1 The following definitions shall apply to this Agreement and to any other agreement between the Parties in which these terms are directly or indirectly incorporated or referred to:
“Customer” means any legal entity or natural person that has entered into an agreement with the Supplier regarding the use of the Supplier’s Software, regardless of the basis on which such agreement is founded.
“Supplier” means NORRIQ Belgium NV.
“Party” means the Supplier or the Customer.
“Parties” means the Supplier and the Customer.
“Agreement” means these License Terms, including all annexes, license orders and any amendments or modifications thereto.
“Confidential Information” means:
(i) all information provided during the Subscription Term by or on behalf of a Party to the other Party (whether in writing, orally or by any other means), which at the time of disclosure has been designated as “confidential” or which ought reasonably to have been considered confidential by the receiving Party;
(ii) the Customer Data; and
(iii) the Supplier’s software code, including but not limited to object code, intermediate code, source code and associated documentation.
“Customer Data” means all data, works and materials that:
(i) are uploaded by the Customer to or stored within the Software;
(ii) are transmitted through the Software at the request of the Customer;
(iii) are provided by the Customer to the Supplier for the purpose of uploading to, transmission through, or storage within the Software; or
(iv) are generated by the Software as a result of the Customer’s use thereof.
“Documentation” means the documentation developed by the Supplier in relation to the Software, which is delivered or made available to the Customer, including user manuals and documentation relating to installation and security.
“Effective Date” means the date on which the Customer accepts the Agreement or the date on which the Software is made available to the Customer, whichever occurs first.
“Force Majeure” means an event, or a series of related events, beyond the reasonable control of the affected Party, including but not limited to: failures of internet or public telecommunications networks, hacking, denial-of-service attacks, viruses or other malicious software, power outages, third-party labor disputes, changes in legislation or regulations, natural disasters, explosions, fire, pandemics, floods, riots, terrorist attacks or war.
“Hardship” means a situation that arises after the conclusion of the Agreement, whereby the performance of one or more contractual obligations has become excessively onerous for a Party, to such an extent that the maintenance of the Agreement in its unmodified form cannot reasonably be required of that Party.
“Intellectual Property Rights” means all intellectual property rights worldwide, whether or not registrable, registered or unregistered, including applications and rights to apply for registration, including but not limited to: copyrights and neighboring rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademark rights (including service marks), passing off rights, rights relating to unfair competition, patents, utility models and design rights.
“Updates” means all updates, upgrades, patches, hotfixes, modifications or general maintenance of the Software made available by the Supplier.
“Order” means the purchase of licenses, as specified in an order or order confirmation.
“Fees” means:
(i) the fees as specified in the Order; and
(ii) all other fees agreed upon by the Parties in writing from time to time.
“Software” means the software as specified in the Order and in the associated Documentation, including all Updates made available by the Supplier at its sole discretion, as well as all software, systems, locally installed agents and connectors that interact with the Software and are offered by the Supplier in connection therewith.
“Reused Code” means Software provided by the Supplier against a one-time fee and for which no recurring subscription charges are levied.
“Services” means all services provided or to be provided by the Supplier to the Customer under this Agreement.
“Subscription Term” means the period during which the Customer subscribes to the Software, as specified in the Order, commencing on the Effective Date.
“User” means an employee, agent, consultant, contractor or supplier of the Customer who has been authorised by the Customer to use the Software, solely for the Customer’s internal use and in accordance with the terms of this Agreement.
3 Term
3.1 This Agreement shall enter into force on the Effective Date.
3.2 The Agreement shall remain in force for an indefinite period, unless and until it is terminated in accordance with Article 7.
4 Access and Use
4.1 Subject to the timely payment of all applicable Fees as specified in the Order, the Supplier grants the Customer, for the duration of the Subscription Term, a non-exclusive, non-transferable right to access and use the Software and the associated Documentation, solely for the Customer’s internal business purposes, in accordance with the provisions of this Agreement, the Documentation and within the scope as set out in the Order.
4.2 The Customer undertakes to use the Software correctly and in good faith, in accordance with the Documentation, any specific instructions of the Supplier and the provisions of this Agreement. The Customer shall be responsible for all acts and omissions of its Users in connection with the use of the Software.
4.3 Except to the extent expressly permitted under this Agreement, the Customer’s right of use shall be subject to the following restrictions:
(i) The Customer shall not sublicense its access or use rights to the Software;
(ii) The Customer shall not grant access to the Software to unauthorized third parties, nor allow them to use the Software;
(iii) The Customer shall not publish or distribute any content or material derived from the Software;
(iv) The Customer shall comply with this Agreement and shall ensure that all Users who use the Software on behalf of the Customer also act in accordance with these terms;
(v) The Customer shall not use the Software in a manner that causes or may cause damage to the Software, disrupts or may disrupt its availability or accessibility, harms the reputation of the Supplier, infringes the rights of third parties, or is in any way unlawful.
(vi) The Customer shall not make any modifications, distortions or alterations to the Software without the prior written consent of the Supplier.
4.4 The Supplier shall be entitled to temporarily suspend or permanently terminate access to the Software if any payment owed by the Customer under this Agreement remains outstanding.
4.5 All materials and information made available by the Supplier to the Customer shall remain the exclusive property of the Supplier. The Customer shall return such materials and information immediately upon termination of this Agreement and shall not retain any copies, unless retention is required by law.
5 Use of Software with Online Services
5.1 Certain functionalities of the Software require a connection to Online Services hosted on the Microsoft Azure cloud computing platform, or on another cloud platform. The Supplier shall not be responsible for any downtime, interruption, limitation or error in such Online Services arising from Microsoft Azure (or any other such platform), nor for any other disruption beyond the reasonable control of the Supplier.
6 Force Majeure and Hardship
6.1 The Supplier shall not be liable for any Force Majeure Event or Hardship. Such a situation shall not be considered a failure to perform obligations under this Agreement.
7 Termination
7.1 This Agreement shall remain in force until terminated in accordance with the provisions of this Agreement.
7.2 Either Party may terminate this Agreement by providing written notice to the other Party, subject to a notice period of ninety (90) days, unless otherwise agreed in writing.
7.3 Either Party shall have the right to terminate this Agreement with immediate effect, without any claim for damages and without prior judicial intervention, by means of a registered letter, if the other Party commits a material breach of its obligations under this Agreement, which – if capable of remedy – has not been remedied within fifteen (15) days of receipt of a written notice of default by the aggrieved Party. This shall be without prejudice to any other rights and remedies. A “material breach” shall in any event, but not exclusively, include:
(i) permitting the use of the Software by unauthorized third parties;
(ii) making unauthorized modifications or alterations to the Software;
(iii) failure to pay amounts invoiced by the Supplier.
7.4 Either Party shall be entitled to terminate this Agreement with immediate effect by written notice to the other Party, if the other Party:
(i) is dissolved;
(ii) ceases or substantially ceases its business activities;
(iii) is unable to pay its debts as they fall due; or
(iv) becomes insolvent or is declared bankrupt.
7.5 Upon termination or expiry of this Agreement:
(i) the Customer’s right to access and use the Software shall lapse, and the Customer shall immediately cease all use of the Software;
(ii) the Customer shall, within thirty (30) days of written request, return or destroy all Documentation and all tangible Confidential Information in its possession or control that is not incorporated in the Software.
8 Payment and Price Adjustments
8.1 The Supplier shall invoice the Customer in accordance with the terms as set out in the Order concluded between the Parties.
8.2 The Customer shall be obliged to pay all Fees to the Supplier in accordance with the payment and invoicing terms stated on the invoice.
8.3 In the event of late payment, the Supplier shall be entitled to charge statutory interest from the due date in accordance with the Act of 2 August 2002 on combating late payment in commercial transactions. In addition, the Supplier shall be entitled to a fixed compensation of 10% of the outstanding invoice amount, with a minimum of 150,00 EUR. Furthermore, in such event, all outstanding invoices shall become immediately due and payable, and the Supplier reserves the right, without further notice of default or judicial intervention, to suspend further performance until all outstanding amounts have been settled. For the purpose of determining the amounts due and the dispatch of invoices, the Supplier’s records and systems shall serve as sufficient proof, without prejudice to the Customer’s right to prove the contrary.
8.4 All Fees shall be determined upon acceptance of these License Terms and shall be adjusted annually as of 1 January, by a minimum of 2%, based on the highest percentage change in the wage index for the IT and information services sector or the net price index published by Statbel.
8.5 In addition to the annual adjustment referred to in Article 8.4, the Supplier shall be entitled during the Subscription Term to request an immediate adjustment of the Fees where it can be demonstrated that the Supplier’s costs, of whatever nature, in connection with the provision of the Services have increased. This includes, but is not limited to, additional costs charged by subcontractors for licenses, hosting and similar services that form part of the service delivery.
9 Support
9.1 The Customer shall not be entitled to consulting, error recovery support or any other form of support, unless expressly agreed in a separate written agreement between the Parties.
10 Data Protection
10.1 The Customer warrants and shall indemnify the Supplier that it has the legal right to disclose all personal data that it provides to the Supplier in the context of or in connection with this Agreement. The Customer further warrants that the processing of such personal data by the Supplier for the agreed purpose, as set out in this Agreement, shall not infringe applicable data protection and privacy legislation.
11 Intellectual Property Rights
11.1 This Agreement grants the Customer solely a license and expressly does not imply any transfer of (intellectual) property rights. The Customer shall obtain a non-exclusive, non-transferable right to use the Software for the duration as set out in this Agreement. The Supplier shall at all times remain the exclusive owner of all intellectual property rights and know-how relating to the Software.
11.2 The Customer shall not be permitted to copy the Software, except for back-up and archiving purposes, and only with the prior express written consent of the Supplier. Nor shall the Customer be permitted to translate, adapt, modify or otherwise alter the Software without the prior written consent of the Supplier.
11.3 All intellectual property rights relating to improvements, updates, modifications and derivative works of the Software shall vest exclusively in the Supplier, even if such modifications have been made or carried out by the Customer.
11.4 The Customer shall retain all rights, title and interest in its Customer Data. Nothing in this Agreement shall be construed as transferring any rights in the Customer Data to the Supplier, except for the rights expressly granted under this Agreement. The Customer hereby grants the Supplier a limited, non-exclusive right to process and use the Customer Data for the sole purpose of providing and improving the Software.
12 Transferability
12.1 The Customer shall not be entitled to transfer its rights or obligations under this Agreement to third parties without the prior written consent of the Supplier.
13 Acknowledgements and Limitation of Liability
13.1 The Customer acknowledges that complex software is never entirely free from defects and that the Supplier, save for express provisions in this Agreement, makes no warranty or representation that the Software shall be entirely free from such defects.
13.2 The Customer further acknowledges that complex software is never entirely free from security vulnerabilities, and that the Supplier, save for express provisions in this Agreement, provides no warranty that the Software shall be entirely secure.
13.3 The maximum aggregate liability of the Supplier under or in connection with this Agreement, regardless of the legal basis, shall be limited to the lower of:
(i) the amount paid by its insurer; or
(ii) the total amount paid by the Customer to the Supplier in the twelve (12) months preceding the claim for damages.
13.4 The Supplier shall not be liable for indirect damages, including but not limited to loss of profit, revenue, goodwill, data, or any other consequential damages, regardless of the cause. This limitation shall remain in force after termination of the Agreement.
13.5 Without prejudice to mandatory legal provisions, the Supplier shall not be held liable for damages arising from:
(i) Change of Circumstances (as referred to in Article 5.74 of the Belgian Civil Code) or Force Majeure Events;
(ii) incorrect, incomplete or untimely information or data provided by the Customer and/or Users;
(iii) use of the Software in breach of this Agreement or the instructions of the Supplier.
14 Confidentiality
14.1 The Customer acknowledges and accepts that the Software and the associated Documentation contain valuable proprietary rights and trade secrets of the Supplier and/or its suppliers, consisting of confidential information, creative concepts, technical know-how, ideas and expressions. The Customer undertakes to treat the Software and Documentation as strictly confidential and to take appropriate measures to ensure that its Users likewise treat them as such, in accordance with the provisions of Article 21 of the Supplier’s General Terms and Conditions.
14.2 The Customer’s confidentiality obligations under this Article shall remain in full force and effect after the termination of this Agreement or of any license granted hereunder, regardless of the reason for termination.
15 Updates
15.1 The Customer shall be entitled to receive and install Software Updates as provided for under this Agreement.
15.2 The Supplier shall use its best endeavors to further develop and maintain the Software, including but not limited to resolving errors, adding new or improved functionalities, and adapting the Software for compatibility with new versions of third-party standard software with which the Supplier’s Software is designed to operate. Such changes shall be made at the Supplier’s sole discretion.
15.3 The Supplier shall at all times be entitled, at its sole discretion, to carry out Updates to the Software. Updates may involve scheduled maintenance and temporary unavailability of the Software but may also be implemented without prior notice.
15.4 The Customer shall be solely responsible for the installation and implementation of Updates. The Supplier may provide assistance in this regard, subject to remuneration on a time and materials basis.
15.5 The Customer acknowledges that Updates may not be compatible with its existing hardware, third-party applications, or customer-specific customizations or modifications of the Software.
15.6 The use of Updates shall be at the Customer’s own risk. The Customer shall install, test and validate each Update in a comparable test environment prior to implementation in a production system.
15.7 The Supplier shall not provide Updates for Reused Code.
16 Usage Logs
16.1 The Supplier shall maintain usage logs for the purpose of the performance, monitoring and improvement of the Software and the Services provided to the Customer, insofar as this is necessary for compliance with this Agreement. The Supplier shall not process any personal data in this regard.
17 Breach
17.1 In the event of a material breach of this Agreement by the Customer, the Supplier shall be entitled, without prior judicial intervention and with immediate effect, to:
(i) terminate the Agreement in whole or in part;
(ii) suspend or cease the provision of the Services under this Agreement;
(iii) claim damages for the loss suffered as a result of the breach.
17.2 The Customer shall not be entitled to claim any damages in connection with the Supplier’s decision to exercise any of its rights under this Article 17.
18 Severability
18.1 The nullity, invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remaining provisions. The Parties agree that any invalid or unenforceable provision shall by operation of law and automatically be replaced by a valid and enforceable provision that most closely approximates the economic and legal purpose of the original provision, within the limits of applicable law.
19 Governing Law and Disputes
19.1 This Agreement shall be governed by and construed in accordance with Belgian law.
19.2 The Parties undertake to attempt to resolve any disputes arising out of or in connection with this Agreement in the first instance through good faith negotiations with a view to reaching an amicable settlement. Failing such settlement, any dispute shall be submitted to the exclusive jurisdiction of the competent courts of the judicial district of Limburg, division Hasselt.