General Terms &
Conditions

Last update August 2018

General Terms & Conditions

Last update August 2018

1) Applicability – acceptance of these terms and conditions

These general terms and conditions (the “Te r m s a n d C o n d i t i o n s”) shall apply to all Quotations and agreements provided and entered into by Roger bvba, having its registered office at Sint-Pietersdoorn 10, B-9150 Kruibeke and registered with the Crossroads Bank for Enterprises under company number 0653.822.560 (hereinafter “Roger”) and the Customer, except when other contractual arrangements are expressly made between Roger and the Customer. The general terms and conditions of the Customer are not applicable and are therefore expressly excluded, even if such general terms and conditions would contain a similar clause. In the event of any conflict or inconsistency between the provisions of these Terms and Conditions and the provisions of any Agreement, the provisions of the latter shall prevail. The Customer acknowledges that he has previously been informed of these Terms and Conditions and has accepted all provisions thereof. Roger reserves the right to modify unilaterally and at any time these Terms and Conditions. In any event, Roger will notify any such amendments or changes in writing (including without limitation by e-mail) to the Customer (the “Notification”) prior to the coming into force of such amendments or changes. Any such amendments or changes will be effective as of the date specified in the Notification. The designated person, officer, director, employee, or any other person who represents or acts on behalf of the Customer towards Roger, is deemed to have the necessary mandate to legally and validly bind the Customer. Roger and the Customer may individually be referred to as a “Party” and jointly as the “Parties” in these Terms and Conditions. The definitions as set forth in Article 13 shall apply to these Terms and Conditions, unless the context necessarily requires otherwise

2) Quotations

Quotations shall remain valid for a period of thirty (30) calendar days following the Quotation date and are exclusive of VAT and other taxes, unless explicitly stated otherwise. Quotations are only considered to be binding for Roger upon approval in writing by the Customer and Roger.

3) Grant of Licences

3.1. Use of the Platform

a) Subject to the Terms and Conditions set forth herein and the timely payment of the Fees by the Customer, Roger grants the Customer a renewable, personal, restricted, non-exclusive, non-transferable, non-assignable license, without the right to sublicense during the Term to access and use the Platform for the Customer’s internal business purposes in accordance with the Documentation (the “License”).

b) Subject to the timely payment of the Fees by the Customer, Roger will grant to the Employees a non-exclusive, personal, restricted, non-sublicensable and non-transferable license to use the Mobile Application in accordance with the Mobile Application Terms. The Customer acknowledges and agrees that Roger can only grant a license and shall only deliver access to those Employees that have accepted the Mobile Application Terms.

c) Roger reserves the right to make, in its sole discretion, changes and updates to the functionalities of the Roger Technology from time to time without any prior notification to the Customer, provided that Roger shall not change any material functionalities of the Roger Technology without prior notification to the Customer.

3.2. Restrictions 
The Customer is not allowed to use the Platform or any part thereof in a manner not expressly authorized by Roger. Within the limits of the applicable law, the Customer is not permitted to (i) make the Platform available or sell or rent the Platform to any third parties; (ii) adapt, alter, translate or modify in any manner the Platform; (iii) sublicense, lease, rent, loan, distribute, or otherwise transfer the Platform to any third parties; (iv) decompile, reverse engineer, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Platform, except and only to the extent that such activity is expressly permitted by any applicable mandatory law notwithstanding this limitation; (v) alter, remove, or obscure any copyright notice, digital watermarks, proprietary legends or other notice included in the Platform; (vi) intentionally distribute any virus, or other items of a destructive or deceptive nature or use the Platform for any unlawful, invasive, infringing, defamatory or fraudulent purpose; or (vii) remove or in any manner circumvent any technical or other protective measures in the Platform.

3.3. License by the Customer to Roger By uploading, providing or otherwise using any Customer Content on or through the Platform, Customer grants Roger a non-exclusive, royalty-free, worldwide, sublicensable, transferable and fully paid up license to use, copy, store, modify, transmit and display the Customer Content to the extent necessary to perform its obligations under this Agreement, in particular to provide, exploit and maintain the Platform. Roger reserves the right, but is not in any manner obliged, to review and remove any Customer Content which is deemed to be in violation with the provisions of the Agreement or otherwise inappropriate, any rights of third parties or any applicable legislation or regulation

4) Services – support

4.1.Services Roger shall provide the Services, if any, as specified in the Quotation and in consideration for the Service Fee. 4.2.SupportIn consideration for the Support Fee, Roger will provide the Support services to the Customer as specified in the Quotation. Roger will make all reasonable efforts to respond as quickly as possible to any questions.

5) Financial Terms

5.1.Invoicing
a) During the Term and as a consideration for the License, the Customer agrees to pay the License Fee.
b) The License Fees may be subject to an annual adaptation on January 1st of every year. The License Fees may be increased by a percentage equivalent to the aggregate percentage increase in the Agoria “refertelonen landsgemiddelde” index or if the Agoria index is no longer published, the index replacing it or failing such index by another index reflecting the increases of labour cost. A negative index shall have no impact on the Fees. Roger has no obligation to inform the Customer prior to such adaptation.
c) All Fees shall be invoiced by Roger in accordance with this Article 5 or according a specific schedule as agreed upon by the Parties in the Quotation.5.2.Paymenta)Immediately following the approval in writing by the Customer of a Quotation submitted by Roger, Roger shall deliver an invoice to the Customer consisting of an advance amount equal to twenty-five percent (25%) of the License Fees. Such advance amount due is payable by the Customer within [5] calendar days following the receipt of such invoice. The remaining !2
seventy-five percent (75%) of the License Fee due shall be invoiced by Roger immediately following grant of access to the Platform to the Customer by Roger. This amount due is payable within [30] calendar days following the date of such invoice. All payment obligations are non-cancellable and all amounts paid are non-refundable.b)Any Support Fees or Service Fees shall be invoiced on a monthly basis and are payable within 30 calendar days following the date of invoice.
d)In the event the Customer disputes any portion of an invoice, the Customer shall notify Roger of such disputed amount and the basis for the Customer’s dispute within fifteen (15) calendar days from the invoice date (failure of which shall result in the invoice being irrevocably deemed accepted by the Customer), together with any appropriate information supporting the Customer’s position, and the undisputed portion shall be paid as provided herein. d)In the event any sums due remain completely or partially unpaid on the due date, the following shall apply automatically and without any formal notice being required: (i) all amounts not paid when due shall bear a late payment interest of (a) [1%] per month or (b) the rate specified in the Belgian law on the fight of arrears during commercial transactions of 2 August 2002 and (ii) a lump sum indemnity amounting to 10% of the sums remaining unpaid with a minimum of EUR [50] shall be charged to the Customer. As a consequence thereof, all amounts due shall become immediately payable, regardless of the agreed payment terms and additionally and Roger shall be entitled to suspend the Customer’s access to the Platform and/or the provision of the Services until the full payment of the unpaid sums

6) Confidentiality – Customer content

6.1.ConfidentialityAll software, plans, documents, know-how, data and other information relating to a Party’s business, technology, products or services or other proprietary or confidential information provided by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) under these Terms and Conditions shall be considered and treated as confidential (the “Confidential Information”). The Confidential Information remains at all times the property of the Disclosing Party. The Receiving Party shall (i) only use such Confidential Information for the purposes of complying with its obligations under these Terms and Conditions; (ii) store such Confidential Information with at least the same level of care applied when storing its own Confidential Information, and in no case with a less than reasonable level of care; and (iii) not disclose such Confidential Information to any third party. 6.2.Customer Content and Personal Dataa) The Customer is fully and solely responsible for the content of the Customer Content. The Customer warrants that the Customer Content, and Roger’s access to and processing of the Customer Content in the context of the provision of the Platform in accordance with these Terms and Conditions, do not violate any laws or regulations and/or any third party rights. b) If, and to the extent, Roger is provided access to any Personal Data and/or must process any Personal Data on the Customer’s behalf when performing its obligations under these Terms and Conditions, the Parties record their intention that the Customer shall act as “data controller” and Roger shall act as “data processor”, as specified in the Data Protection Act and in any such case: a)Roger shall only process any Personal Data to the extent necessary to provide the Customer access to the Platform; b)Roger acts exclusively on behalf of and upon the lawful instructions of the Customer; c)the Customer acknowledges and agrees that the Personal Data may be transferred or stored in any country of the European Union, in order to carry out Roger’s obligations under these Te r m s a n d C o n d i t i o n s ; !3
d)the Customer shall ensure that the Customer is entitled to transfer the relevant Personal Data to Roger so that Roger may lawfully use, process, store and transfer the Personal Data in accordance with these Terms and Conditions; e)the Customer shall ensure that the relevant third parties have been informed of, and have signed the appropriate legal mechanisms to be able to carefully execute such use, processing, storage and any lawful instructions reasonable given by the Customer from time to time; f)the Customer acknowledges and agrees that the Personal Data shall be shared with Roger’s employees, representatives, officers, directors, agents, advisors, affiliates, subcontractors and consultants who have a need to know such data for the purpose of providing technical support for the Roger Technology; g)Roger and the Customer shall each take the appropriate technical and organizational measures which are required to protect the Personal Data against accidental or unauthorized destruction, accidental loss, as well as against any modification of or access to, and any other unauthorized processing of the Personal Data; c) Unless explicitly agreed otherwise, the Customer is solely responsible for the safety and security of the Customer Content, and for making the necessary back-ups in order to avoid loss and/or corruption of the Customer Content. In case of loss or corruption of the Customer Content due to the Deliverables, Roger is only obliged to provide the Customer with the most recent available back-up, if any. Under no circumstances shall Roger be obliged to input or reconstruct any lost or corrupted Customer Content.

7) Ownership

7.1.Roger IPR Roger and its licensors shall at all times retain all titles, interests and rights, including but not limited to any IPR, in and to the Roger Technology and the Services. All rights in and to the Roger Technology not expressly granted to the Customer in this Agreement are reserved by Roger. No license is granted to the Customer except as to use of the Platform as expressly stated herein.

7.2.Customer IPRThe Customer is and shall remain the sole owner of all the rights, titles and interests to Customer Content and of any and all IPR pertaining thereto. Nothing contained in these Terms and Conditions shall be construed to confer upon Roger any right, title or interest in or to any such Customer Content or IPR thereto or any right, by license or otherwise, to make, or permit others to make any use thereof other than as expressly permitted by the Customer.

8) Liability

8.1.Direct damages. Without prejudice to and without limiting Articles 8.2 or 10, Roger’s aggregate liability arising out of or in connection with these Terms and Conditions, the Roger Technology and/or the Services, whether in contract, warranty, tort or otherwise, shall not exceed 100% of the License Fees (excluding taxes) paid to Roger by the Customer during the preceding twelve (12) month period. Nothing in this Agreement shall limit or exclude Roger’s liability resulting from (i) its gross negligence; (ii) its willful misconduct; (iii) any fraud committed by Roger or (iv) the indemnification obligation as set forth in Article 10.

8.2.Indirect damages. In no event shall Roger be liable for any indirect damage and/or consequential damage, such as but not limited to loss of profit, loss of income, loss of anticipated savings, loss of opportunity, loss of customers, claims of customers or other third parties, damage as a result of loss and/or corruption of data, loss of goodwill and reputational damage.

9) Warranties

9.1.Warranty by the Customer. The Customer warrants that it owns all necessary rights in or to the Customer Content and the provided Customer Content shall not (i) infringe any IPR of third parties; (ii) misappropriate any trade secret; (iii) be deceptive, defamatory, obscene, pornographic or unlawful; (iv) contain any viruses, intended to damage the Platform; or (v) otherwise violate the rights of a third party. The Customer agrees and acknowledges that Roger is not obligated to make a back up of any Customer Content. Any use of the Platform in violation of these representations and warranties by the Customer constitutes unauthorized and improper use of the Platform.

9.2.Disclaimer. Unless otherwise agreed upon by Roger in writing and to the maximum extent permitted by applicable law, Roger makes no representations or warranties regarding the condition or functionality of the Roger Technology or any part thereof, its suitability for use, or that the Roger Technology will be uninterrupted or error-free. Without limiting the foregoing, the Roger Technology and any information or content relating thereto is provided “AS IS” without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability, or fitness for a particular purpose. However, Roger undertakes to make all commercially reasonably efforts to remedy any bugs reported by the Customer with a reasonable period of time.

11) Term and termination 

11.1.These Terms and Conditions shall enter into force and shall take effect as from the Effective Date and shall remain in effect for a period of one year (the “Initial Term”). The Agreement will automatically renew for successive one-year periods (each a “Renewal Term”) beginning at the end of the Initial Term, unless either Party provides notice of termination [three (3)]months before the end of the Initial Term or the then current Renewal Term, as applicable. 11.2.Either Party may terminate these Terms and Conditions by giving at least three (3) months notice prior to the end of the Initial Term or the then current Renewal Term, or unless otherwise terminated early in accordance with the provisions of these Terms and Conditions. 11.3.Roger may immediately terminate these Terms and Conditions (or alternatively, in its sole discretion, suspend the access to the Platform) due to material breach on giving written notice in the event the Customer breaches the terms of use of the Platform as set out in Article 3 or infringes Roger’s IPR. Roger may also suspend the access to the Platform if the Customer fails to pay to Roger any amount due hereunder and fails to cure such failure to pay within ten (10) calendar days from the date of a written payment default notice from Roger. 11.4.Either Party may terminate this Agreement by written notice to the other Party if the other Party materially breaches this Agreement and fails to cure such breach within sixty (60) calendar days from receipt of a default notice. 11.5.Either Party may terminate this Agreement by written notice to the other Party, effective as of the date of delivery of such notice, if the other Party becomes the subject of a voluntary or involuntary bankruptcy 11.6.Upon termination of this Agreement for whatever reason (i) the Customer shall promptly pay Roger all Fees and other amounts earned by or due to Roger pursuant to these Terms and Conditions, up to and including the date of termination, (ii) all user rights granted to the Customer pursuant to this Terms and Conditions, including the rights to use the Platform as per Article 3, shall automatically terminate and the Customer shall return the Documentation and any Confidential Information in its possession or under its control.

12) Miscellaneous 

12.1.Assignment. The Customermay not assign or transfer these Terms and Conditions or any rights or obligations to any third party. Roger shall be free to (i) transfer or assign (part of) its obligations or rights under these Terms and Conditions to one of its affiliates and (ii) to subcontractor performance or the support of the performance of these Terms and Conditions to its affiliates, individual contractors and to third party service providers without prior notification to the Customer. 12.2.Entire Agreement – Successors – Severability – Waiver. These Terms and Conditions issued hereunder constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements (with the exception of the Agreement, if any), whether oral or written, between the Parties with respect to such subject matter. These Te r m s a n d C o n d i t i o n s s h a l l b i n d a n d i n u r e t o t h e b e n e f i t o f t h e Pa r t i e s h e r e t o a n d t h e i r respective successors and assigns. The provisions of these Terms and Conditions are severable and if any one or more such provisions shall be determined to be invalid, illegal or unenforceable, in whole or in part, the validity, legality and enforceability of any of the remaining provisions or portions thereof shall not in any way be affected thereby. Any failure to enforce any provision of these Terms and Conditions shall not constitute a waiver thereof or of any other provision. 12.3.Publicity. Use by one Party of the other Party’s name, logo, trade name or trademarks in any public announcements or for promotional, advertising or other purposes, shall require the other Party’s prior written approval (such approval not to be unreasonably withheld). 12.4.Te r m i n a t i o n . The provisions of these Terms and Conditions that are expressly or implicitly intended to survive termination shall survive any expiration or termination of these Terms and Conditions, including but not limited to Articles 6, 7, 8, 9, 10,11.6 and 12.4. 12.5.Force Majeure. A Party shall not be liable for delays or failure to perform its obligations under these Terms and Conditions, if such delay or failure is caused by Force Majeure. “Force !6
Majeure” is any event beyond the reasonable control of one of the Parties that affects the execution of its obligations under these Terms and Conditions, including but not limited to, natural disasters, riots, war and military operations, national or local emergencies, actions or omissions of the government, economic disputes of whatever nature, actions of employees, fire, flooding, lightning, explosions, collapses, the reduced or non-functioning of networks, systems and equipment of third parties. The Parties explicitly agree that any non-payment by the Customer of the Fees, shall not qualify as Force Majeure. The Party invoking Force Majeure, must immediately notify the other Party in writing of these circumstances. The execution of the obligation that cannot be carried out due to Force Majeure, will be suspended for the duration of the Force Majeure and must be resumed as soon as the Force Majeure has disappeared. The Party invoking the Force Majeure, must also notify the other Party of the cessation of these circumstances. 12.6.Independence. No employment, partnership, temporary partnership, joint venture or agency form exists between the Parties as a result of these Terms and Conditions.12.7.Applicable law and jurisdiction. The Agreement is governed by and will be interpreted in accordance with Belgian law, without giving effect to any laws of conflict. Any dispute with respect to the validity, interpretation or execution of the Agreement will be finally settled by the competent courts of Antwerp, section Antwerp.

12) Miscellaneous 

“Agreement” means any specific agreement entered into between Roger and the Customer with regard to the use of the Platform and/or the provision of any Services by Roger;“Article”: shall mean an article of these Terms and Conditions; “Customer”: shall mean the legal entity or physical person with whom Roger has entered into an agreement for the use of the Platform and/or the provision of Services;“Customer Content”: means the set of data, documents and any and all other content or materials belonging to the Customer that is supplied or made available to Roger in the course of the execution of the Deliverables;“Data Protection Act”: means the Belgian Act of 8 December 1992 on privacy protection in relation to the processing of personal data, and its executing decrees and implementing orders;“Documentation” shall mean any documentation provided by Roger relating to the use of the Platform; “Employees” means the employees and consultants which are employed by the Customer and who are invited by the Customer to use the Mobile Application; “Fees” means the (i) License Fees, the (ii) Support Fee and (iii) the Service Fee, if applicable;“Implementation Services” means (i) the Strategic Implementation Services and (ii) Technical Implementation Services; “Initial Term” shall have the meaning as set forth in Article 11.1;“Intellectual Property Rights (IPR)”: means any and all now known or hereafter existing (a) rights associated with works of authorship, including but not limited to copyrights, copyrightable works (including but not limited to mask work rights) and moral rights; (b) trademarks, trade dress, trade names, corporate names or service mark rights; (c) trade secret rights and other confidential information (including but not limited to ideas, information, improvements, specifications, drawings, programmer notes, discoveries and proposals); (d) patents, patent disclosures, and inventions (whether patentable or not) know-how and industrial property rights; (e) logos, layout design rights, design rights, database sui generis right, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; whether registered or not, (f) computer software programs (including but not limited to source code and object code), data, databases and documentation thereof and (g) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world; !7
“License”: shall have the meaning as set forth in Article 3.1; “License Fees”: means any and all amounts due by the Customer to Roger in consideration for the License as specified in the Quotation;“Mobile Application” means the mobile Roger application for internal company communication which can be used by the Employees of the Customer; “Mobile Application Terms” mean the terms and conditions governing the use of the Mobile Application; “Personal Data”: has the meaning as specified in the Data Protection Act; “Platform” means the online Roger platform through which the Customer can create and manage internal communication; “Quotation”: means a form of quotation submitted by Roger to the Customer for the use of the Platform and/or any Services in which these Terms and Conditions are or are deemed to be incorporated; “Renewal Term” shall have the meaning as set forth in Article 11.1; “Roger Technology” means (i) the Platform and (ii) the Mobile Application; “Service Fee” means any and all amounts due by the Customer to Roger in consideration for the Services;“Services”: means the consultancy services to be provided by Roger to the Customer as mutually agreed by the Parties; “Support” means the support services to be provided by Roger to the Customer; “Support Fee” means the fees payable by the Customer to Roger for the provision of Support; and “Te r m” means the Initial Term or, as the case may be, the Renewal Term.