Pexip Engage License Policy
By concluding the Sales Agreement with PEXIP, you (the “Customer”) have indicated that you have read and that you understand and agree with the terms and conditions of PEXIP’s license policy regarding the Application and Services of PEXIP as set forth below (the “License Policy”), which forms an integral part of the Sales Agreement (together: the “Agreement”).
1. DEFINITIONS
Defined terms in the Sales Agreement equally apply to this License Policy. In addition, capitalized terms shall have the meaning as set out below (in so far as these are compatible with the defined terms in the Sales Agreement):
Application
The online appointment scheduling software developed and marketed by PEXIP;
Applicable Privacy Legislation
The (supra)national privacy legislation applicable to the processing of personal data by the Customer or PEXIP within the scope of the Agreement, such as, but not limited to: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (‘General Data Protection Regulation’), Directive 2002/58/EC of the European Parliament and Council of 12 July 2002, concerning the processing of personal data and the protection of privacy in the electronic communications sector (‘e-privacy directive’) and the Belgian implementation thereof;
Data Processing Policy (“DPP”)
The policy applicable to the Customer that sets out the terms and conditions under which PEXIP, when acting as processor (cfr. Article 14.2), may process personal data on behalf of the Customer within the scope of the Agreement, and which forms an integral part of the Agreement;
End User
Any individual authorised by the Customer to access and use the Application on behalf of the Customer (such as, but not limited to: employees of the Customer);
Sales Agreement
The agreement between PEXIP and the Customer that includes the commercial terms and conditions regarding the use and provision of the Application and related Services, of which (among others) this License Policy forms an integral part;
Services
All services provided by PEXIP to the Customer as part of the Agreement, including but not limited to:
(i) providing a right of access to the Application;
(ii) use of the Application Programming Interfaces (‘API’s’) developed by PEXIP;
(iii) integrate and operate the Application on the website owned, leased or controlled by the Customer;
(iv) integrate the Application with any application owned, leased or controlled by the Customer;
(v) all support and service levels related to the Application (as described in PEXIP’S Service Level Policy or “SLP”);
Service Level Policy (“SLP”)
The policy applicable to the Customer that sets out the performance and quality standards and safeguards, which the Customer can expect from PEXIP with regard to the use of the Application and related Services provided by PEXIP, and which forms an integral part of the Agreement;
Website
2. SUBJECT MATTER / APPLICABILITY
2.1. This License Policy constitutes all terms and conditions under which the Customer shall be granted a license to access and use the Application, including its agreed functionalities and corresponding Services, and supersedes any prior agreements and/or policies in relation to the subject matter of the License Policy, whether written or oral
3. ACCESS TO AND USE OF APPLICATION & SERVICES
3.1. The Customer is granted a personal, limited, non-exclusive, non-assignable and non-transferable access right to the Application (subject to correct and timely payment of the applicable service fees as set out in the Sales Agreement).
3.2. The Application is provided to the Customer “AS-IS”. The Customer shall not base its reliance on the Application upon the development of any future functionality, features or data connectivity.
3.3. All Services provided by PEXIP are considered as best effort obligations.
4. CUSTOMER OBLIGATIONS
4.1. The Customer shall only access and use the Application in accordance with the License Policy, in particular with the guidelines on acceptable use of the Application as described in License Agreement - Annex 1. The Customer shall furthermore use its best endeavours to prevent or terminate any unauthorized access to or use of the Application. If the Customer discovers such unauthorized access and/or use, it shall notify PEXIP immediately, which is entitled to take all necessary or useful measures to remedy such access and/or use.
4.2. The Customer shall ensure its End Users use the Services in accordance with the License Policy, in particular with the guidelines on acceptable use of the Application as described in License Agreement - Annex 1. The Customer and its End Users shall not access the Application in a manner intended to avoid incurring fees.
4.3. The Customer shall be solely responsible for procuring, maintaining and securing its network connection(s) to the Application.
5. UPDATES & AVAILABILITY
5.1. PEXIP aims to provide a high-quality Application by performing regular maintenance activities and updates. These operations shall be effected within a timeframe that is characterized by a general reduced activity, unless the conditions justify otherwise. The timeframe during which these operations are performed can never count for any calculation of deficient accessibility and operation. The ‘Maintenance window(s)’ are provided in the Service Level Policy (SLP).
5.2. The right of access to and use of the Application includes the best effort obligation for PEXIP to keep the data of the Customer available at all times and take all necessary measures to protect the data of the Customer against unintentional or unlawful destruction, unintentional loss, modifications, unauthorized publication and access.
6. COMPLIANCE
6.1. In so far as applicable and in so far it relates directly to the Application, PEXIP shall provide the Customer and the End User with all reasonable assistance and aid in order to enable compliance with its general regulatory obligations. The End User shall at all times remain ultimately responsible to comply with the regulations and must notify PEXIP as soon as reasonably possible after having become aware of the change to be made.
6.2. The foregoing does not preclude PEXIP from its own obligation to stay informed of regulatory changes, in so far as reasonably possible.
7. SERVICE FEE
7.1. For the Services performed for the Customer, the fee as described in the Sales Agreement is due.
7.2. Insofar these fees/prices are based on payroll costs, cost of components, social security contributions and government taxes, insurance premiums, costs of materials, exchange rates and/or other costs applicable at the time, and in the event of an significant increase of one or more of these price factors, PEXIP shall be entitled to increase its prices accordingly and in accordance with the legally permitted standards.
8. PAYMENT
8.1. Fees due shall be communicated to the Customer through electronic invoicing by PEXIP. PEXIP’s invoices are payable to PEXIP’s designated bank account at the latest thirty (30) days after the issuance date on the invoice. All fees - unless specifically stated otherwise in the Sales Agreement - do not include VAT or any other levies or taxes.
8.2. Invoices can be disputed via email within seven (7) business days after their receipt and stating (i) the invoice date, (ii) the invoice number and (iii) a detailed justification.
8.3. If the Customer fails to pay in full any invoice by the due date then the Act of August 2nd, 2002 on combating late payment in commercial transactions shall apply. Furthermore, all other invoices - for which a particular instalment term has been agreed on - shall become immediately payable (without previous notice of default) and PEXIP shall be entitled to suspend or postpone its obligations (after prior notification).
8.4. Non-payment by the Customer for a period of two (2) months shall be considered as a material breach in accordance with Article 9.2.
8.5. Partial payments by the Customer shall only be accepted by PEXIP with all reservations and without any unfavorable acknowledgement.
9. TERM & TERMINATION OF THE AGREEMENT
9.1. TERM
9.1.1. The total term of this License Policy, including subsequent renewals (‘renewed terms’), shall be as provided in the Sales Agreement. In case the Sales Agreement does not stipulate a term, the Agreement shall continue in effect for one (1) year and shall automatically be renewed for subsequent terms of one (1) year, unless either Party gives notice of termination to the other Party at the latest three (3) month before the end of the (renewed) term.
9.2. GROUNDS FOR TERMINATION
9.2.1. Either Party may terminate the Agreement per registered mail for material breach, automatically and without definitive court decision if the other Party has committed a material breach and fails to remedy such breach within fifteen (15) days of written notice of default by the claiming Party. The following events are considered a material breach:
(i) repeated failure to pay invoices for which payment is due;
(ii) failure to comply with the (best effort) performance of the Services for an extended duration;
(iii) unauthorized or illegal use of the Services;
(iv) confidentiality / non-solicitation infringement (cfr. Article 12); and,
(v) intellectual property infringement (cfr. Article 13).
9.2.2. The Agreement may be terminated if an insolvency event occurs, i.e. a Party ceases to pay its debts or ceases its activities, files for bankruptcy, liquidation of the legal entity or enters proceedings in receivership or judicial composition proceedings.
9.3. CONSEQUENCES
9.4. PEXIP shall never be obligated to refund the Customer any fees if the Customer terminates the Agreement during a definite term (without the termination being the result of a material breach of PEXIP). Furthermore, the Customer is still be obligated to pay all future fees set out in the Agreement
9.5. Regardless of the cause, the termination of the Agreement shall:
(i) render the Services inaccessible for the Customer and its End Users; and,
(ii) oblige each Party to discontinue its use and to return the confidential information and proprietary materials
of the other Party.
9.6. The termination of the Agreement, for whatever reason, shall not prejudice the rights acquired by the Customer and/or PEXIP at the date of termination.
10. LIABILITIES
10.1. PEXIP’s liability shall always be assessed in the light of the best efforts obligation to which PEXIP has committed, unless when PEXIP has committed to an obligation of result in the Agreement. The liability of PEXIP is in any case limited to the mandatory liability imposed by law.
10.2. PEXIP’s liability for Services is limited to the invoice value of the Services delivered by PEXIP to the Customer under the Agreement during the twelve (12) month period preceding the date on which the applicable liability claim arose.
10.3. PEXIP is not liable for any claim from the Customer for indemnification for:
(i) defects that are caused directly or indirectly by an act of the Customer or a third party, regardless of whether they were caused by a fault, negligence or carelessness;
(ii) damage caused by all incorrect or inadequate use of the Application (including use incompatible with the
applicable legislation and/or regulations);
(iii) damage caused by the further use of the Application after a problem has been found;
(iv) damage caused by force majeure or hardship (cfr. Article 11); and,
(v) indirect and consequential damage, such as, but not limited to: loss of profit, loss of savings, loss of revenue, loss caused by business interruption or damage to third parties.
10.4. The Customer shall hold PEXIP harmless against all claims from third parties arising from the incorrect or unlawful use of the Services under the Agreement. It shall cover all damages such as compensations or legal costs (including reasonable lawyer’s fees) providing that PEXIP has informed the Customer as soon as reasonably possible of any claim arising from that matter
10.5. The 'Customer’ acknowledges that they cannot hold the directors, representatives, shareholders or employees liable on an extra-contractual basis (neither directly, jointly, nor in solidum with PEXIP). However, this does not apply if the damage suffered results from an infringement of physical or psychological integrity or if the damage is the result of an intentional fault aimed at causing harm.
11. FORCE MAJEURE & HARDSHIP
11.1. The following are conventionally considered as cases of force majeure or hardship: all circumstances which were reasonably unforeseeable at the time of concluding the Agreement, are unavoidable, and:
(i) create the inability on the part of PEXIP to carry out the Agreement; or,
(ii) make the performance of the Agreement much harder or more difficult than normally anticipated (financially or otherwise).
11.2. Cases of force majeure or hardship give PEXIP the right to temporarily suspend the performance of its obligations under the Agreement, without PEXIP being liable for any damages.
11.3. A situation of force majeure that continues beyond three (3) months shall entitle either Party to terminate the Agreement with immediate effect by simple written notification to the other Party, without judicial intervention and without any liability
12. CONFIDENTIALITY & NON-SOLLICITATION
12.1. All information marked as confidential or reasonably to be considered confidential, disclosed by a Party to the other Party prior to concluding the Agreement as well as during the performance of the Agreement (such as, but not limited to: commercial, legal, fiscal, social, technical and organizational nature, business and trade secrets, price lists, customer and supplier data, personal data, financial information and drafts and signed contracts) shall be treated with the utmost secrecy.
12.2. The receiving Party shall:
(i) not use, reproduce, or allocate the confidential information in any manner or for any other purpose than the performance of the Agreement;
(ii) not engage in, nor authorize others to engage in, the reverse engineering, disassembly or the
decompilation of any of the confidential information; and,
(iii) not derive any commercial benefit from the confidential information.
12.3. The disclosing Party shall remain at any moment the sole owner of its confidential information. Except as expressly set forth herein, nothing in the Agreement shall grant to the receiving Party any rights to or interest in the confidential information and no implied licenses are granted.
12.4. The Customer undertakes not to directly or indirectly hire any person employed or contracted by PEXIP up to one (1) year after termination of the Agreement (for any reason whatsoever).
12.5. A breach of this article shall be considered a material breach as described in Article 9.2 and allow the damaged Party to immediately terminate the Agreement for cause and claim damages.
13. INTELLECTUAL PROPERTY
13.1. PEXIP
13.1.1. All registrations of the trade names/trademark PEXIP, or any other trade name/trademark that includes the name PEXIP, or under which the Services are sold, shall be made in the name of PEXIP. The Customer shall not use PEXIP’s company name, PEXIP’s Services names or PEXIP’s Services trademarks as part of the Customer’s name or in any manner capable of misrepresenting the relationship between the Customer and PEXIP. The Customer shall not alter, remove or tamper with the brands, trademarks, or other means of identification on the Services.
13.1.2. The Customer explicitly acknowledges that PEXIP shall own and retain all (intellectual) property rights (whether specifically developed for the Customer or not) with respect to the Application (including all copies, modifications, extensions and derivative works thereof), such as, but not limited to: authorship rights, patents, design rights, know how, ideas, concepts, methods, processes, technologies, know-how, inventions, domain names and database rights (excl. the data owned and uploaded by the Customer or its End Users) or any other form of intangible thought process.
13.1.3. PEXIP shall be entitled to use and/or commercialize any ideas, input, feedback received from the Customer, which may serve to improve and/or expand the Application.
13.1.4. PEXIP shall defend, indemnify and hold the Customer harmless against any claims, actions, suits, damages, costs and expenses (including reasonable legal fees) that result out of an (alleged) infringement of third party intellectual rights because of (the use of) the Application. The Customer shall notify PEXIP as soon as reasonably possible about the content of the claim. PEXIP may choose to undertake one of the following actions, after consultation with the Customer, and at its own expense:
(i) obtain the right for the Customer to continue using the Application;
(ii) replace the Application with software that is not subject to infringement; or,
(iii) modify the Application to stop the infringement.
14. PRIVACY
14.1. PEXIP AS CONTROLLER
14.1.1. The collection by PEXIP of personal data of the Customer and/or its personnel/staff shall take place in accordance with the provisions of PEXIP’s privacy policy, available on the Website. In such event, PEXIP acts as controller.
14.2. PEXIP AS PROCESSOR
14.2.1. The Customer acknowledges that – with regard to the processing of all data collected via and/or processed through the Application – PEXIP shall act as processor and in accordance with the Data Processing Policy, available on the Website. The Customer shall cover all necessary legal/privacy related documentation in relation to the End Users, as provided by/in accordance with Applicable Privacy Legislation.
15. PUBLICITY
15.1. By concluding the Agreement – and accepting this License Policy accordingly – the Customer has explicitly agreed that PEXIP may use the name and logo of the Customer for reference purposes on the Website or other commercial channels, documents and materials.
15.2. PEXIP shall only place a testimonial, blurb or any other informational, promotional or commercial text about or by the Customer on the Website after having received prior written approval by the Customer with relation to both the placement and content of the text.
15.3. The Customer may withdraw its consent given proper reason to use its name and logo or any kind of text, whatever the purpose of such use. In such case, PEXIP shall immediately upon receiving written notice of the withdrawal delete its name, logo and any other information published
16. NETTING
16.1. In accordance with the stipulations of the Law on Financial Collateral dated 15 December 2004, PEXIP and the Customer shall automatically and legally compensate and offset each other for all current and future debts.
17. MISSCELAENOUS
17.1. If one or more provisions of the Agreement are found to be invalid, illegal or unenforceable, in whole or in part, the remainder of that provision and of the Agreement shall remain in full force and effect as if such invalid, illegal or unenforceable provision had never been contained herein. Moreover, in such event, the Parties shall negotiate to replace the invalid provision by an equivalent provision in accordance with the spirit of the Agreement. If the Parties do not reach an agreement, then the competent court may mitigate the invalid provision to what is (legally) permitted.
17.2. The Agreement and the corresponding rights and obligations that exist in respect of the Parties, cannot be transferred, directly or indirectly, without the prior written consent of the other Party.
17.3. (Repeatedly) non-enforcement by a Party or by both Parties of any right or provision of the Agreement, can only be regarded as a toleration of a certain state, and does not lead to forfeiture.
18. GOVERNING LAW & JURISDICTION
18.1. This License Policy, including its Annexes, shall governed by the law and subject to the jurisdiction clause as provided in the Sales Agreement.
18.2. If the Sales Agreement does not contain a clause regarding the governing law and/or the jurisdiction, the following will apply: The License Policy is governed by and must be interpreted in accordance with Belgian Law. The Parties shall endeavour, to the extent possible, to reach an amicable solution to any disputes that might arise between them concerning the validity, the interpretation or the execution of this License Policy. If the Parties are unsuccessful in finding an amicable solution, they shall be free to submit their dispute to the competent courts of Ghent, which shall have exclusive jurisdiction.
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ANNEXES
Annex 1 – Acceptable use of the Application
Annex 1 – Acceptable Use of Application
1. GENERAL
By accessing the Application, the Customer and End Users (for the purpose of this Annex I, each identified as (a) “User(s)”) shall be responsible for (non-limited):
(i) creating and managing their account(s);
(ii) ensuring no false or misleading information is being used for the account;
(iii) all use or abuse made of the account; and,
(iv) the safe handling, storage, confidentiality and proper use of the accounts.
Users shall:
(i) apply all reasonable techniques, practices and/or technology (e.g. use of strong passwords that are regularly changed) to prevent unauthorized access to the Application by another user or third party;
(ii) notify PEXIP promptly of any such unauthorized access, and immediately employ all means to stop the misuse; and,
(iii) not allow any other party, or share with any party, access to the Application through its own account.
In case other users or third parties have access to (the personal data in) the Application, the Users are liable for the transactions which occur as a result of that use.
2. RESTRICTIONS TO THE RIGHT OF USE
By using the Application, the Users understand that data and personal information of data subjects are to be processed by PEXIP, whereby they represent and warrant to own or have obtained all rights, consents or permissions necessary (in a privacy compliant manner) to allow PEXIP the processing of such data and/or information.
Users may not use the Application to transmit, distribute, or store material in a manner that PEXIP believes:
(i) modifies, alters, tampers with, or otherwise creates derivative works of the Application;
(ii) reverse engineers, disassembles, or decompiles the (infrastructure of the) Application;
(iii) is in violation with human rights – including children’s rights – or contributes to criminal or unethical activities;
(iv) is abusive, deceptive, pornographic, obscene, defamatory, slanderous, offensive, or otherwise inappropriate;
(v) violates the Applicable Privacy Legislation;
(vi) violates or otherwise encroaches on the rights of others, including, but not limited to, infringing or misappropriating any privacy, intellectual property, proprietary right of another (such as, but not limited to: publishing, uploading or otherwise distributing any material protected by intellectual property rights without having the necessary rights or consent to do so);
(vii) advocates or induces illegal activity;
(viii) stalks, harasses, bullies or harms anyone;
(ix) interferes with or adversely affects the Application or use of the Application by other customers;
(x) uses or launches any high volume automated means (including robots, spiders, scripts or similar data gathering or extraction methods) to access the Application and any other accounts, computer systems, or networks connected thereto;
(xi) monitors or crawls a system so that such system is impaired or disrupted;
(xii) conducts denial of service attacks;
(xiii) intentionally interferes with the proper functioning of any system, including any deliberate attempt to overload a system by any means;
(xiv) operates network services like open proxies, open mail relays, or open recursive domain name servers;
(xv) uses (manual or electronic) means which infringes any use limitations placed on a system, such as access and storage restrictions;
(xvi) distributes, publishes, sends, or facilitates unsolicited mass emailing, promotions, advertising, or solicitations, including commercial advertising and informational announcements;
(xvii) alters or obscures mail headers or assume a sender's identity without the sender's explicit permission;
(xviii) collects or replies to messages if those messages violate this License Policy; and,
(xix) is in general to be considered abnormal use of the Application.
3. EXCESSIVE USE
The User shall, to the extent that it is in its reasonable control, refrain from abnormal or abusive behavior. This given the risk of harmful network or system overload of the Application and Services. This clause only applies to all use of the Application outside the scope of the Agreement, as using the Application as intended shall never be considered excessive use.
PEXIP shall, in case of excessive use (attributable to actions or omissions by User or by outside factors over which User has no control), inform the User about the problematic behavior and demand the User to take the necessary steps to reduce its use. PEXIP and the User shall enter into discussions in order to find a solution upon written request of PEXIP, if the overload is of a structural nature. User shall provide reasonable cooperation to remedy the problem, provided it is within its control to do so.
4. REMEDIES
PEXIP can take all necessary and reasonable measures when the User acts in violation of the License Policy, the applicable law, the rights of third parties or general accepted rules of conduct of the internet. PEXIP preserves a large margin of appreciation to sanction a violation, in proportion to the violation. PEXIP can apply a temporary or permanent limitation of access to certain functionalities or a temporary or permanent restriction from the right of use.
Whatever the situation, the above-mentioned measures can only be taken with prior warning and/or prior notice and the grant of a remedial period. The User does not have the right to ask reimbursements or damages for measures taken in due course.
If the User finds that the action taken is inappropriate or unfounded, he must bring this to the notice of PEXIP within fifteen (15) calendar days after taking the action. PEXIP shall take these arguments into account upon assessment without being obliged to nullify the original action(s). The User has no right to request a refund or compensation for the measures taken in any case of a termination or suspension, unless the measures are inappropriate and unfounded in which case the User reserves the right to claim for damages that resulted out of the inappropriate and unfounded measures.