CHEQROOM General Terms and Conditions

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The following terms and conditions apply to all business relationships between (1) Checkroom NV, a limited public liability company having its registered offices at Nieuwewandeling 62, 9000 Gent, with the VAT no. BE0504.999.915, (hereafter named as “we”, “us” or “CHECKROOM”) and (2) the customer (hereafter named as “you” or “Customer”).

These general terms and conditions (the “GT&Cs”, and, collectively, together with the Commercial Order, CHECKROOM’s Data Processing Agreement, and – where applicable- the SLA, the “Agreement”) govern Customer’s use of the CHECKROOM’s proprietary software and related services, features, content, programs or applications (web-based or mobile) created by CHECKROOM (the “SaaS-platform”).

Dissenting, conflicting or additional customer terms and conditions, even if acknowledged, are not part of the Agreement unless their validity is expressly agreed upon. In the event of a conflict or inconsistency between these GT&Cs and those of an individual quote or specific agreement drafted and agreed upon by CHECKROOM, the terms of the latter shall prevail.

By creating an Account or using the SaaS-platform, the Customer agrees to these GT&Cs. If a User accepts and/or executes on behalf of the Customer (being the employer or another entity) the User represents and warrants that he or she is authorized to do so and that he/she has the full legal authority to bind the Customer to these GT&Cs. If the User does not have such legal authority, or does not agree with the GT&Cs; the Customer may not use the SaaS-platform and the Service.

We may amend our GT&Cs at any time. Amendments shall become effective one month after publication by means of a written notification. If the Customer does not wish to accept the amendments to these GT&Cs, he has the right to terminate the agreement by registered letter on the date on which the amended terms and conditions take effect. After entry into force, the Customer is deemed to have tacitly accepted the amendments. The latest copies of our GT&Cs will be posted on our website (https://www.cheqroom.com/), Therefore, it is important for you to periodically review our GT&Cs to make sure you still agree to them.

The last update to our GT&Cs was posted on June 1, 2020.

Definitions

“Account”: shall mean the account for the use of our SaaS-platform granted to the Customer;

“Commercial Order”: means the offer as agreed upon between the Customer and CHECKROOM, as set out on the cover page, titled “Commercial Order”.

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

“Content”: all text, information, graphics, audio, video, and data offered through our SaaS-platform, whether free to all or part of our Service;

“Custom Products”: products specifically developed for a Customer;

“Customer Data”: all content, data or information provided, submitted, or made available through the Service by the Customer or User;

“Customizations” mean Customer-specific adaptations, additions, or enhancements of the standard SaaS-platform specifically developed by CHECKROOM as per the terms agreed in the Commercial Order, which is not considered as part of the standard SaaS-platform.

“Intellectual Property Rights”: means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, copyrightable or mask work rights, neighboring rights and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, rights to know-how and trade secrets, and industrial property rights; (e) layout design rights, design rights, topographic right (f) Internet domain names, (g) rights to software and computer software programs (including but not limited to source code and object code), rights to data, database sui generis right and documentation thereof; and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; whether registered or not and (h) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.

“Professional Services” mean development, implementation and integration services (including, but not limited to Customisations) or such other services in relation to the SaaS-platform, or development of Custom Products as may be agreed between Customer and CHECKROOM from time to time and set out in the Commercial Order.

“SaaS-platform”: CHECKROOM’s proprietary software and related services, features, content, programs or applications (web-based or mobile) created by CHECKROOM;

“Service”: represents the collective functionality and features as offered through our SaaS-platform to our Users;

“Terms of Use”: refers to the terms and conditions governing the use of our SaaS-platform by the Users;

“User”: represents any user of our SaaS-platform who has an Account.

Limited License

Subject to these GT&Cs and timely payment of the due fees CHECKROOM grants you a non-exclusive, non-transferable, revocable license to access and use our SaaS-platform strictly in accordance with our GT&Cs. Your use of our SaaS-platform is solely for the purposes stated within our GT&Cs and/or Commercial Order and there are no implied licenses; any other use is a violation of this license and will result in the revocation of the license.

The Customer shall not:

  1. make back-up copies of the SaaS-platform or Professional Services without CHECKROOM’s authorization;
  2. arrange or create derivative works based on the SaaS-platform or Professional Services without CHECKROOM’s express written consent;
  3. assign, distribute, sub-license, hire, transfer, sell, lease, rent, charge or otherwise deal in or encumber the SaaS-platform, or use the SaaS-platform on behalf of any third party or make them available to any third party, nor allow or permit a third party to do any of the same;
  4. copy, duplicate, reverse engineer, reverse compile, disassemble, record or otherwise reproduce the SaaS-platform or Professional Services or any part of them except as expressly provided in these GT&Cs;
  5. remove or alter any copyright or other proprietary notice on any of the SaaS-platform or Professional Services.

The usage rights of the SaaS-platform and any usage restriction are set out in the Commercial Order or Terms of Use. The Customer is obliged to report to CHECKROOM in writing any infringement on these usage rights within ten (10) days after the infringement takes place. For a period of thirty (30) days after the occurrence of the infringement, Customer has the right to regularize the situation, without incurring any penalty.

Legal Compliance

You agree to comply with all applicable domestic and international laws, statutes, ordinances, and regulations regarding your use of our SaaS-platform.

Term, Billing and Payment

You will receive the Service free of charge for the first fifteen (15) days. Thereafter, you will be charged a yearly service fee. CHECKROOM offers annual (1 year), biennial (2 years) or triennial (3 years) subscriptions only.

Your subscription will be renewed automatically after expiration of the subscription period (1, 2 or 3 years respectively), until either you or us explicitly cancel the Service.

You will be billed a non-refundable fee in advance based on your subscription plan (1, 2 or 3 years). There will be no refunds or credits for partial years of Service, upgrade/downgrade refunds, Account cancellations, or refunds for years unused with an open Account. If you have any questions about charges made to your Account, please contact us immediately. If the charges were made in error, we will credit your Account for the appropriate amount. We have a zero tolerance policy for chargebacks. Any Customer who disputes a credit card payment through a card issuer that is found to be valid will be permanently banned from the use of the Service.

For any change in your service fee, we will automatically charge your credit card that you provided or bill you via other payment methods for the new rate on your next billing cycle.

You must provide us with accurate billing information and keep this information up to date.

By subscribing to the Service you give us the right to charge your credit card, or bill you via other payment methods, for fees connected with the Service such as renewal fees or fees for Professional Services.

We reserve the right to change prices for the Service and any connected extra services at any time upon a 21-day notice from us. Such notice may be provided at any time by posting the changes to the Service itself.

You will pay any and all applicable international, federal, state, and local sales, use, value-added, excise, duty, and any other taxes, fees, or duties not based on our net income that are assessed on or as a result of the Service. Any such taxes, fees, and duties collected by us from you on behalf of a governmental agency shall not be considered a part of, a deduction from, or an offset against, payments due to us for the Service.

All prices are stated in U.S. Dollars unless otherwise stated.

Professional Services and Customizations

Upon request of the Customer, and for the duration of these GT&Cs and Commercial Order, CHECKROOM can provide Professional Services to the Customer. Professional Services will be upfront agreed (unless otherwise agreed in these GT&Cs) in the Commercial Order. Unless stated differently in the particular Commercial Order, all Professional Services are charged on Time and Material basis, for an 8 hours business day.

In the event Customizations are ordered the acceptance procedure for such Customization shall be set forth in the Commercial Order, indicating the acceptance criteria.

CHECKROOM does not ensure that any Customizations or Professional Services on the current SaaS-platform, shall remain compatible with any new release, version or hotfix of the SaaS-platform, which is used or will be used by Customer. To the extent that one or more Customizations (or Professional Services) are not fully compatible with any new release or version of the SaaS-platform, CHECKROOM can agree to make changes as may be required to make them compatible with such new release or version. Such changes will be subject to a separate Commercial Order duly signed by both Parties.

Intellectual Property

CHECKROOM exclusively owns and retains all right, title, interest in and to all Intellectual Property Rights in or pertaining to its SaaS-platform, the Service, Professional Services (including but not limited to Customizations and Custom Products), its website and all the documentation and materials pertaining or relating thereto (including any copies and portions thereof), whether in machine-readable or printed form, including, without limitation, (i) all software and materials which are related to the SaaS-platform, the Service, its website, (ii) all modifications and customizations to, and derivative works, compilations or collective works of, the SaaS-platform, and (iii) all related technical know-how. The Customer agrees to be bound by and observe the proprietary nature of the SaaS-platform. The Customer agrees not to remove, suppress or modify in any way any proprietary marking, including any trademark or copyright notice, on or in the SaaS-platform, or visible during its operation, or on media or on any documentation. The Customer shall incorporate or reproduce such proprietary markings in any permitted back-up or other copies.

All Customer Data, is the sole property and responsibility of the person who originated such Customer Data. The Customer shall indemnify and hold CHECKROOM harmless for any claims in relation to the Customer Data. The Customer represents that all Customer Data provided by any User is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You acknowledge that all content, including Customer Data, accessed by you using the Service is at your own risk and you shall be solely responsible for any damage or loss to you or any other party resulting therefrom. We do not guarantee that any content the Customer or its Users access on or through the SaaS-platform and/or Service is or will continue to be accurate. You hereby represents and warrants that the Customer Data does not include any inappropriate content, malware or any other elements that could result in harm to the SaaS-platform and/or Service or to third parties.

By submitting any Customer Data to the SaaS-platform, you hereby grants us a worldwide, non-exclusive, royalty-free, sub-licensable and transferable license to use, aggregate, reproduce, distribute, display, and perform such Customer Data in connection with the Service and our (and our successors’ and assigns’) businesses. The latter includes the right for CHECKROOM to use data derived from your use of the SaaS-platform, including but not limited to, information regarding the performance of Customer’s network, applications and/or systems, data about transactions in Customer’s network, and in general any data generated as a result of Customer’s use of the SaaS-platform (hereinafter: “Derived Data”), however solely for purposes of operating, maintaining and improving the SaaS-platform and/or Service or, if compiled into non-identifiable aggregate data, for CHECKROOM’s sales and marketing purposes.

Our SaaS-platform may contain our service marks or trademarks as well as those of our affiliates or other companies, in the form of words, graphics, and logos. Your use of our SaaS-platform does not constitute any right or license for you to use such service marks/trademarks, without the prior written permission of the corresponding service mark/trademark owner. Our SaaS-platform is also protected under international copyright laws. The copying, redistribution, use or publication by you of any portion of our SaaS-platform is strictly prohibited. Your use of our SaaS-platform does not grant you ownership rights of any kind in our SaaS-platform.

Confidentiality

Each party must treat the Confidential Information received from the other with the strictest confidentiality, in the same way it would treat its own Confidential Information, and not below an adequate level of protection. No party shall disclose to any third party, other than its employees, agents or consultants where such disclosure is necessary, any Confidential Information learned during the negotiation and performance of these GT&Cs. Confidential Information disclosed under a Commercial Order shall not be used by the recipient thereof for any purpose other than as required for the performance of its obligations under these GT&Cs and/or Commercial Order. The Customer Data will be treated in the strictest confidence and will be regarded as Confidential Information.

Customer shall take precautions to maintain the confidentiality of the Confidential Information and in particular the Customer covenants that it: (i) shall not copy or otherwise exploit any component of the Confidential Information other than as herein provided, nor make any disclosures with reference thereto to any third party; (ii) shall ensure that all copies of the Confidential Information (made in accordance with the provisions of these GT&Cs) contain a permanently legible reproduction of CHECKROOM’s copyright notice and a confidentiality notice.

The provisions of this article shall not apply to any secret or information which: (i) is published or comes into the public domain other than by a breach of the GT&Cs or, (ii) can be shown to have been known by the receiving Party before disclosure by the disclosing Party or, (iii) is lawfully obtained from a third party or, (iv) can be shown to have been created by the receiving Party independently of the disclosure and other than as part of the project.

If a receiving Party becomes aware that it will be required, or is likely to be required, to disclose Confidential Information in order to comply with applicable laws or regulations or with a court or administrative order, it shall, to the extent it is lawfully able to do so, prior to any such disclosure, notify the disclosing Party and comply with the disclosing Party’s reasonable instructions to protect the confidentiality of the information.

Publicity

Subject to any express written objections on his part, the Customer authorizes CHECKROOM to use for its own business promotion:

In case of disagreement notified after publication of a document drawn up in accordance with this clause and regardless of the media, the Customer will only require its destruction if it bears the costs of modification and editing for identical replacement, with the exception of fulfilling its request.

Linking to Our SaaS-platform

You may provide links to our SaaS-platform, provided (a) that you do not remove or obscure, by framing or otherwise, any portion of our SaaS-platform, (b) your website does not engage in illegal or immoral activities, and (c) you discontinue providing links to our SaaS-platform immediately upon request by us.

Warranty Disclaimer

CHECKROOM reserves the right to change any and all Content and features of our SaaS-platform, at any time without notice. All Services, including but not limited to annual subscription plan fees to the Service, are subject to change upon 21 days notice from us. Such notice may be provided at any time by posting the changes to our website or the SaaS-platform itself. Our SaaS-platform may be temporarily unavailable from time to time for maintenance or other reasons. CHECKROOM assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, Content. CHECKROOM is not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer or mobile phone equipment, website, failure of email or players on account of technical problems or traffic congestion on the Internet or any combination thereof, including injury or damage to anyone’s computer, mobile phone, or other hardware or website, related to or resulting from using, uploading, or downloading materials in connection with our SaaS-platform. Under no circumstances will CHECKROOM be responsible for any loss or damage, including any loss or damage or personal injury or death, resulting from anyone’s use of our SaaS-platform, or for any interactions between Users of our SaaS-platform, whether online or offline.

Our SaaS-platform is provided “as-is,” “as available,” with “all faults”, and all warranties, express or implied, are disclaimed (including but not limited to the disclaimer of any implied warranties of merchantability and fitness for a particular purpose). Our saas-platform is not claiming to be a complete patent database. CHECKROOM is not liable for the incompleteness of the data. Our SaaS-platform may contain bugs, errors, problems or other limitations. CHECKROOM, including all our affiliates, have no liability whatsoever for your use of our SaaS-platform, other than as specified in our GT&Cs. CHECKROOM cannot guarantee and does not promise any specific results from use of our SaaS-platform. CHECKROOM does not represent or warrant that our SaaS-platform is accurate, complete, reliable, current or error-free or that it is free of viruses or other harmful components. therefore, you should exercise caution in the use and downloading of any such content and use industry-recognized programs to detect and remove viruses. All responsibility or liability for any damages caused by viruses somehow attributed to our SaaS-platform is disclaimed. without limiting the foregoing, you understand and agree that you use our Saas-platform at your own risk and that you will be solely responsible for your use thereof and any damages to you, your mobile device or computer system, or other harm of any kind that may result. We, as well as all of our affiliates, are not liable for any indirect, special, incidental or consequential damages (including damages for loss of income, business, profits, litigation, or the like), whether based on breach of contract, breach of warranty, tort (including negligence), product liability or otherwise, even if advised of the possibility of such damages. The negation and limitation of damages set forth above are fundamental elements of the basis of the bargain between you and CHECKROOM. Our SaaS-platform would not be provided without such limitations. No advice or information, whether oral or written, obtained by you from us through our SaaS-platform shall create any warranty, representation or guarantee not expressly stated in our GT&Cs.

Limitation of Liability

Neither party shall be liable to the other for any, indirect, consequential, incidental, exemplary, special or punitive damages (including lost profits and lost business), arising out of or related to this Agreement, even if it has been advised or is aware of the possibility of such damages, and regardless of whether arising in tort (including negligence), contract, or other legal theory. In any event, the liability of one party to the other for any reason and upon any cause of action shall be limited to an amount equal to the total amount of fees paid by Customer during the twelve (12)-month period immediately preceding the event giving rise to such claim.

Indemnification

You agree to indemnify, defend and hold harmless CHECKROOM and our partners, agents, officers, directors, employees, subcontractors, successors, assigns, third party suppliers of information and documents, attorneys, advertisers, product and service providers, and affiliates, from any liability, loss, claim and expense, including reasonable attorney’s fees, related to your violation of our GT&Cs or your use of our SaaS-platform.

CHECKROOM will be given prompt written notice of any third-party claim on an alleged or actual infringement by our SaaS-platform or other material made available by CHECKROOM, and will be granted the right to control and direct the defence and settlement of such a claim. The Customer shall be entitled to participate in such proceedings at its own cost. CHECKROOM must keep the Customer regularly informed of the status of the proceedings and/or settlement negotiations. Customer agrees to reasonably cooperate with CHECKROOM in the defence and settlement of such a claim. In the event our SaaS-platform or such other material as referenced above, in CHECKROOM’s reasonable opinion, are likely to become or actually become the subject of a claim of infringement as set out above, CHECKROOM shall have the right, at its sole option and expense, to (i) modify, replace the (alleged) infringing material so that it becomes non-infringing while preserving substantially equivalent functionality or create a workaround; or (ii) obtain for the Customer the right to continue to use, market and distribute such material as per the terms of these GT&Cs or (iii) to discontinue the Customer’s access to the SaaS-platform and its Services and refund the Customer pro rata for Service Fees the Customer might have already paid for the remaining part of the term.

In case any alleged or actual Intellectual Property Rights infringement relating to our SaaS-platform is arising, the Customer shall immediately cease the use of our SaaS-platform. In case the Customer neglects this obligation, CHECKROOM may at its sole discretion terminate the GT&Cs with immediate effect and without any compensation or indemnification due by CHECKROOM whatsoever.

CHECKROOM shall have no liability for any claim which is based upon (i) Customer’s unauthorized use of our SaaS-platform, (ii) Customer’s or any third party’s modification of any of our SaaS-platform, (iii) Customer’s failure to integrate or install any corrections to the SaaS-platform issued by CHECKROOM, if CHECKROOM indicated that such update or correction was required to prevent a potential infringement, (iv) Customer’s use of the SaaS-platform in unauthorized or incompatible combination with any non-CHECKROOM’s products or services.

Termination

CHECKROOM may terminate these GT&Cs or suspend the Service, Professional Services and/or user rights granted hereunder by written notice to the Customer if you fail to pay CHECKROOM any amount due hereunder or violate these GT&Cs and you fail to cure such failure to pay or breach within thirty (30) days from the date of such notice. The Customer acknowledges and agrees that any use of the SaaS-platform outside the scope of the license as set forth in these GT&Cs, unless such use has been expressly approved in writing by a duly authorized representative of CHECKROOM, the misuse of system resources or when CHECKROOM reasonably suspects that you are using our SaaS-platform to break the law or infringe third party rights, shall entitle CHECKROOM to immediately terminate (or alternatively, at CHECKROOM’s discretion, suspend) one or more of the licenses granted hereunder and/or the GT&Cs for material breach by the Customer, without any formalities being required and without prejudice to any other right or remedy available to CHECKROOM pursuant to these GT&Cs or under applicable law.

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

You may terminate these GT&Cs at any time. If you terminate the Service before the end of your current subscription period, your cancellation will take effect immediately and you will not be charged for the following billing cycle.

You understand that if you terminate these GT&Cs, you will lose access to our Service and SaaS-platform and any Customer Data you have provided. You understand that we are not required to provide you with copies of such Customer Data nor continue to maintain copies of such Customer Data on our SaaS-platform.

Arbitration & Dispute Settlement

Any legal controversy or legal claim arising out of or relating to our GT&Cs and/or our SaaS-platform shall be settled by:

Preferred clause

Belgian courts in accordance with Belgian law (preferred clause); or

First alternative

binding arbitration in accordance with the arbitration rules of the International Chamber of Commerce (ICC), whereby the Belgian courts have exclusive jurisdiction to rule on the validity of any IPR-claims; or

Second alternative

binding arbitration in accordance with the arbitration rules of Delaware (US) Statelaw, whereby the Belgian courts have exclusive jurisdiction to rule on the validity of any IPR-claims.

Preliminary relief. We may seek any interim or preliminary relief from a court of competent jurisdiction within Ghent (East-Flanders, Belgium), necessary to protect the rights or property of you and us pending the completion of arbitration or dispute.

Arbitration. With regards to arbitration, each party shall bear one-half of the arbitration fees and costs, but the arbitrator may award arbitration fees and costs, including reasonable attorney fees, to the prevailing party. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. Lastly, judgment on the arbitration award may be entered into any court having jurisdiction thereof.

Any cause of action by you with respect to our SaaS-platform, must be instituted within one (1) year after the cause of action arose or be forever waived and barred.

General Terms

Applicable law. Our GT&Cs shall be treated as though it were executed and performed in Ghent (East-Flanders, Belgium) and shall be governed by and construed in accordance with the laws of Belgium, without regard to conflict of law principles. Any cause of action by you with respect to our SaaS-platform must be instituted within one (1) year after the cause of action arose or be forever waived and barred.

Severability. Should any part of our GT&Cs be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. To the extent that any Content in our SaaS-platform conflicts or is inconsistent with our GT&Cs, our GT&Cs shall take precedence.

No waiver. Our failure to enforce any provision of our GT&Cs shall not be deemed a waiver of such provision nor of the right to enforce such provision.

Survival. The rights of CHECKROOM under our GT&Cs shall survive the termination of our GT&Cs.

Non-Assignment. Customer shall not assign or otherwise transfer any of its rights or obligations under these GT&Cs without CHECKROOM’s prior written consent. CHECKROOM’s consent should be requested by registered letter, disclosing the identity of the prospective transferee. Subject to any restrictions on assignment herein contained, the provisions of these GT&Cs shall inure to the benefit of and shall be binding upon the Parties hereto and their respective heirs, legal representatives, successors and assignees.

Force majeure. CHECKROOM will not be liable for any failure or delay in the performance of our obligations with respect to the Service and/or the SaaS-platform if such failure or delay is due to causes beyond our control, including but not limited to force majeure, war, strikes, lockouts, riots, epidemics, fire, line of communication failures, power outages, earthquakes, other catastrophes, unauthorized access to our information technology systems by third parties or for any other reason if our failure to comply with the obligations falls outside our reasonable control.

Special terms and conditions. If the Customer wishes to modify and negotiate deviating terms and conditions to these GT&Cs, the Customer shall have to pay an additional legal fee of 1.000 Euros (excl. VAT). In such case, CHECKROOM undertakes to comply to the additional special terms and conditions, if applicable, as set out in the Commercial Order if and to the extent required by regulatory requirements.