SaaS Agreement Froomle Personalization Platform

Terms and conditions
‍Attachment 1 – Availability SLA
‍‍Attachment 2 – Maintenance and Support SLA
‍‍Attachment 3 – Implementation Services‍
‍Data Processing Addendum

Terms and Conditions

Froomle NV, a public limited liability company organized and existing under the laws of Belgium, with registered office at 2600 Antwerpen, Posthofbrug 6-8 and filed with the Register of Legal Entities in Antwerp, division Antwerp under number 0654.854.720 duly and validly represented by VERPROO BV (represented by Koen Verstrepen) in his capacity of Managing Director, and FIELINGOE BV (represented by Bart Goethals) in his capacity of Managing Director, is a software firm specialized in the design, development and operation of software and the thereto related services and, in this respect, the provision of subscriptions to the software as a service (“SaaS”) product “FROOMLE PERSONALISATION PLATFORM”.

Hereinafter referred to as “Froomle”,

The customer may be any natural person or legal entity which enters into a contractual relationship of whichever nature with Froomle in connection with his or its trading, business, artisanal or professional activity

Hereinafter referred to as the “Customer”.

Froomle and the customer are hereinafter collectively referred to as the “Parties” and each individually as a “Party”.

Subject to these terms and conditions (the “Terms and Conditions”), Froomle is willing to provide a right to use the “FROOMLE PERSONALISATION PLATFORM” web-based application, adapt it to the Customer’s specific needs and offer related services, such as, for example, implementation, support and maintenance, hosting, and consulting services.

Article 1 – Definitions

Except to the extent expressly provided otherwise, all words and definitions defined in these Terms and Conditions shall bear the following meaning:

“Acceptance Criteria”    The Hosted Services conforming in all material respects with the Documentation and/or the Hosted Services being free from Hosted Services Defects.

“Acceptance Period”    A period of 5 (five) Business Days following Provisional Delivery in accordance with article 6 or any repeated making available of the Hosted Services to the Customer for the purposes of testing in accordance with article 6, or such other period or periods as the Parties may agree in writing.

“Acceptance Tests”    A set of tests designed to establish whether the Hosted Services meet the Acceptance Criteria, providing that the exact form of the tests shall be agreed and documented by the Parties acting reasonably in advance of the first Acceptance Period.

“Affiliate”    An entity that Controls, is Controlled by, or is under common Control with the relevant entity.

“Agreement”    The Personalization Project Proposal, the Terms and Conditions and the Attachments.

“Attachment”    Any attachment attached to the main body of this Agreement.

“Business Day”    Any weekday other than a bank or public holiday in Belgium.

“Business Hours”    The hours of 09:00 to 18:00 CET on a Business Day.

“Confidential Information”    Any and all information that is disclosed (orally, in writing, by electronic delivery, or otherwise) by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) prior to or
during the term of this Agreement (or to which the Receiving Party otherwise gains access as a result of this Agreement) relating to the business of the Disclosing Party, including without limitation business plans and models, financial information, market research, Customer and supplier information, proprietary software and methods, and information concerning proprietary inventions and technologies.

“Control”    The legal power to control (directly or indirectly) the management of an entity.

“Consulting Services”    Additional services provided to the Customer - such as, but not limited to - extra assistance, guidance and advice, responding to requests outside of scope, testing services outside of scope, training services, workshops, custom reporting and data science.

“Customer Data”    All data, works and materials, uploaded to or stored on the Hosted Services by the Customer, or transmitted by the Hosted Services at the instigation of the Customer or Froomle, or supplied by the Customer to Froomle for uploading to, transmission by or storage on the Hosted Services, or generated by the Hosted Services as a result of the proper use of the Hosted Services by the Customer and Froomle.

“Customer Personal Data”    Personal data that is processed by Froomle on behalf of the Customer in relation to this Agreement.

“Custom development”    A customization of the Hosted Services made through the development of software.

“Data Protection Laws”    Means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Customer Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679).

“Documentation”    The documentation for the Hosted Services produced by Froomle and delivered or made available by Froomle to the Customer, including the integration handbook.

“Effective Date”    The date of execution of this Agreement.

“Expenses”    The travel, accommodation and other expenses that are reasonably necessary for, and incurred by Froomle exclusively in connection with the performance of Froomle's obligations under this Agreement.

“Fees”    The amounts due to Froomle for the delivery of Services under this Agreement, as defined in the Personalization Project Proposal.

“Final Delivery”    Acceptance in accordance with article 6.

“Force Majeure Event”    An event, or a series of related events, that is outside the reasonable control of the Party affected including, but not limited to, failures of the internet or any public telecommunications network, hacker attacks, virus or other malicious software attacks or infections, power failures, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars.

“Hosted Services Defect”    A defect, error or bug in the Hosted Services having a material adverse effect on the operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of: (i) any act or omission of the Customer or any person authorized by the Customer to use the Hosted Services; (ii) any use of the Hosted Services contrary to the Documentation or any improper use of the Hosted Services, whether by the Customer or by any person authorized by the Customer; (iii) a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or (iv) an incompatibility between the Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Documentation.

“Hosted Services”    The FROOMLE PERSONALISATION PLATFORM web-based application and the underlying platform, as specified in the Documentation, which will be made available by Froomle to the Customer as a service via the internet in accordance with this Agreement.

“Implementation Services”   The setup, implementation and integration of the Hosted Services in accordance with the provisions of Attachment 4.

“Initial Period”    The initial period as indicated on the Personalisation Project Proposal.

“Intellectual Property Rights”    All patent rights, trademarks, designs and models, copyrights, rights in databases, proprietary rights in know-how, including trade secrets and any other form of legally protectable intellectual or industrial property rights under any jurisdiction whatsoever.

“Maintenance and Support Services”    The general maintenance of the Hosted Services, including corrective maintenance, the application of Software Updates and Software Upgrades and general support services in accordance with Attachment 2.

“Personalization Project Proposal”    Will mean the Personalization Project Proposal that may be signed between Froomle and the Customer, detailing the Customer-specific terms.

“Provisional Delivery”    The making available of the Hosted Services to the Customer for the purposes of integration and testing in the Customer’s environment.

“Remedy Period”    A period of 30 (thirty) Business Days following the Customer giving to Froomle a notice that the Hosted Services have failed the Acceptance Tests, or such other period as the Parties may agree in writing.

“Services”    Any services that Froomle provides to the Customer under this Agreement.

“Software Update”    A release of Hosted Services which corrects Hosted Services Defects or otherwise amends the Hosted Services, but which does not constitute a Software Upgrade. A Software Update will be indicated by the software version going from, for instance, “x.1 to x.2.”. Software Updates also include all, but are not limited to, patches, as provided by Froomle at its sole discretion.

“Software Upgrades”    A new version of the Hosted Services, usually consisting of several bundled improvements, adjustments and reviews. A Software Upgrade will be indicated by the software version going, for instance, from “1.x.x to 2.0”, as provided by Froomle at its sole discretion.

“Term”    The term of this Agreement.

Article 2 – Application

2.1.  The conclusion of an Agreement with Froomle shall entail the full and unconditional acceptance of these Terms and Conditions.
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2.2  The application of the Terms and Conditions of Froomle shall exclude the application of any other (general or particular) terms and conditions of the Customer.
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2.3   Froomle reserves the right to revise these Terms and Conditions at any time in accordance with economic and legal needs. The revised Terms and Conditions shall be communicated to the Customer, after which the Customer may terminate the Agreement with Froomle, without payment of any compensation, provided that a registered letter is sent to Froomle within the term of 8 (eight) calendar days after the revised Terms and Conditions have been notified to the Customer.

Article 3 - Agreement & scope

3.1  The offers of Froomle shall be without obligation and shall not bind it as such. Offers shall be valid for a period of 30 (thirty) days following the date on which the offer was sent to the Customer.
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3.2  Orders from a Customer not confirmed in writing by Froomle shall not be binding for Froomle.
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3.3  An Agreement shall only be concluded by and between Froomle and the Customer by the signing of an Personalization Project Proposal, incorporating these Terms and Conditions.
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3.4  The Terms and Conditions contain the general contractual framework for the Services that may be provided by Froomle to the Customer with regard to the Hosted Services, consisting of:
> A right to use the Hosted Services;
> A right to receive Services in relation to the Hosted Services.
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3.5  Each Personalization Project Proposal mentions the specific terms agreed upon with regard to the relevant subject and applies in addition to these Terms and Conditions. In the event of a conflict or a conflict of interpretation between these Terms and Conditions and the Personalization Project Proposal, the latter will apply.

Article 4 - Term

4.1  This Agreement shall come into force upon the Effective Date.
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4.2 After the Initial Period, set out in the Personalization Project Proposal, the Agreement shall be renewed tacitly for subsequent periods of equal duration, unless either Party shall have terminated the Agreement in writing at the latest 3 (three) months prior to the end of the then current period.

Article 5 – Implementation Services

5.1  Froomle shall use reasonable endeavors to provide the Implementation Services in accordance with Attachment 4.

5.2  The implementation of the Hosted Services shall be performed in close cooperation between the Parties.

5.3  The Customer will be required to provide Customer Data to Froomle in accordance with the guidelines in the Documentation, following which Froomle will commence the provision of the Implementation Services.

5.4  The Customer acknowledges that a delay in the Customer performing its obligations in this Agreement may result in a delay in the performance of the Implementation Services by Froomle.

5.5  Subject to any written agreement to the contrary, any Intellectual Property Rights that may arise out of the performance of the Implementation Services, or any software tools and libraries used by Froomle during implementation, shall remain the exclusive (intellectual) property of Froomle.

Article 6 – Acceptance procedure

6.1  During each Acceptance Period, the Parties shall carry out the Acceptance Tests.

6.2  Acceptance Tests will be performed in a testing environment after Provisional Delivery by Froomle.

6.3  Froomle shall provide to the Customer, at the Customer's cost and expense, all such assistance and co-operation in relation to the carrying out of the Acceptance Tests as the Customer may reasonably request.

6.4  Before the end of each Acceptance Period, the Customer shall give to Froomle a written notice specifying whether the Hosted Services have passed or failed the Acceptance Tests. If the Customer fails to give Froomle written notice in this respect, the Hosted Services shall be deemed to have passed the Acceptance Tests which qualifies as Final Delivery by Froomle.

6.5  If the Customer confirms that the Acceptance Tests have been passed, this will result in Final Delivery.

6.6  If the Customer notifies Froomle that the Hosted Services have failed the Acceptance Tests, then the Customer must provide to Froomle, at the same time as the giving of the notice, written details of the results of the Acceptance Tests including full details of the identified failure(s).

6.7  If the Customer notifies Froomle that the Hosted Services have failed the Acceptance Tests, and:
a) Froomle agrees with the Customer that the Hosted Services have not passed the Acceptance Tests, then Froomle must provide correcting services and make available the corrected Hosted Services to the Customer before the end of the Remedy Period for a further round of Acceptance Tests; or
b) otherwise, then the Parties must meet as soon as practicable and in any case before the expiry of the Remedy Period and use their best endeavors to agree whether the Hosted Services have or have not passed the Acceptance Tests, appropriate a plan of action reasonably satisfactory to both Parties, and record any agreement reached in writing.

Article 7 – Right of use

7.1  Upon the completion of the Implementation Services and the Acceptance procedure, Froomle grants to the Customer a worldwide, non-exclusive right to use the Hosted Services for the internal business purposes of the Customer in accordance with the Documentation, and for the duration of the Term.

7.2  The right of use granted by Froomle to the Customer is subject to the following limitations:
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a) the Hosted Services may only be used by the officers, employees, agents and subcontractors of either the Customer or an Affiliate of the Customer;
b) the right of use is linked to the Traffic Tier (volume based) as agreed upon in the Personalization Project Proposal.

7.3  Except to the extent expressly permitted in this Agreement or required by law, the right of use granted by Froomle to the Customer is furthermore subject to the following prohibitions:
a) the Customer may not sub-license its right to access and use the Hosted Services;
b) the Customer must not permit any unauthorized person to access or use the Hosted Services;
c) the Customer must not use the Hosted Services to provide services to third parties;
d) the Customer must not make any alteration to the Hosted Services, except as permitted by the Documentation.

7.4  The Parties acknowledge and agree that Attachment 1 (availability SLA) shall govern the availability of the Hosted Services.

7.5  The Customer must not use the Hosted Services in any way that is unlawful, illegal, or fraudulent.

7.6  The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services.

7.7  For the avoidance of doubt, the Customer has no right to access the software code (including object code and source code), either during or after the Term.

Article 8 – Custom development

8.1  Parties may agree that Froomle shall design, develop and implement Custom Development(s) to the Hosted Services in accordance with a specification and project plan agreed upon in writing by the Parties (i) in an additional Personalization Project Proposal, or (ii) as Consulting Services, at the then current hourly rate of Froomle on a “time and materials” basis.

8.2  All Intellectual Property Rights relating to the Custom development(s) shall, as between the Parties, be the exclusive property of Froomle (unless the Parties agree otherwise in writing).

8.3  From the time and date when a Custom development is first delivered or otherwise made available to the Customer by Froomle, the Custom development shall form part of the Hosted Services, and accordingly from that time and date the Customer's rights to use the Custom development shall be governed by article 7.

8.4  The Customer acknowledges that Froomle may make any Custom development available to any of its other customers or any other third party at any time.

8.5  The Customer acknowledges and agrees that Froomle is the only Party who is allowed to design, develop and implement Custom developments to the Hosted Services.

Article 9 – Maintenance and Support Services

9.1  Froomle shall provide the Maintenance and Support Services in accordance with the standards of skill and care reasonably expected from a service provider in the industry.

9.2  Froomle shall provide the Maintenance and Support Services in accordance with Attachment 2 (Maintenance and Support SLA).

9.3  Froomle may suspend the provision of the Maintenance and Support Services if any amount due to be paid by the Customer to Froomle under this Agreement is overdue, and Froomle has given to the Customer at least 8 (eight) Business Days’ written notice, following the amount becoming overdue, of its intention to suspend the Maintenance and Support Services on this basis.

Article 10 – Consulting Services

10.1  Parties may agree that Froomle can provide Consulting Services outside the scope of the Agreement (i) at the then current hourly rate of Froomle on a “time and materials” basis or, (ii) in accordance with the provisions in this respect in an additional Personalization Project Proposal.

Article 11 – Customer obligations

11.1    Save to the extent that the Parties have agreed otherwise in writing, the Customer must provide to Froomle, or procure for Froomle:
a) access to the Customer's systems as may be reasonably required by Froomle to enable Froomle to perform its obligations under this Agreement;
b) reasonable assistance in diagnosing Hosted Services Defects or any security issues relating to the Hosted Services;
c) to not request, permit or authorize anyone other than Froomle to provide any Services in respect of the Hosted Services, unless agreed otherwise in writing;
d) the implementation of guidelines provided in the Froomle Documentation.

Article 12 – Customer Data

12.1  The Customer hereby grants to Froomle a non-exclusive license to copy, distribute and adapt the Customer Data to the extent reasonably required for the performance of Froomle's Services and the exercise of Froomle's rights under this Agreement, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers in this respect.

12.2  The Customer warrants to Froomle that the Customer Data will not infringe the Intellectual Property Rights of any third party, and will not breach the provisions of any law, statute or regulation.

12.3  Froomle shall create a back-up copy of the Customer Data at least every Business Day and shall ensure that each such copy is sufficient to enable Froomle to restore the Hosted Services to the state they were in at the time the back-up was taken for a period of 7 (seven) days as from the latest back-up copy.

Article 13 – No assignment of Intellectual Property Rights

13.1  Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from Froomle to the Customer, or from the Customer to Froomle.

Article 14 – Fees

14.1  The Customer shall pay the Fees to Froomle in accordance with this Agreement, the Personalization Project Proposal and any additional Personalization Project Proposal.

14.2  All amounts stated in or in relation to this Agreement are exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to Froomle.

14.3   The Customer expressly agrees that Froomle will be entitled to adjust (in plus or in minus) the fees that are agreed upon, when after signing of the Personalization Project Proposal one or more objective factors that affect the cost price (being: salary costs, social security contributions, prices of materials, prices of commodities or prices of energy) have increased or decreased demonstratively, even if this occurs as a result of foreseeable circumstances. If applicable, Froomle will inform the Customer of the price adjustment, The price can only be revised up to a maximum of 80% of the final price.

Article 15 – Expenses

15.1  The Customer shall reimburse Froomle in respect of any Expenses, providing that Froomle obtains the prior written authorization of the Customer before incurring any Expenses exceeding such limitations as may be agreed upon in writing by the Parties from time to time.

15.2  Froomle must collect and provide evidence of all Expenses and must retain such evidence for the duration of the Term and for a period of 30 (thirty) Business Days following the end of the Term.

15.3  Within 15 (fifteen) Business Days following receipt of a written request from the Customer to do so, Froomle must supply to the Customer such copies of the evidence for the Expenses in the possession or control of Froomle as the Customer may specify in that written request.

Article 16 – Payments

16.1  Froomle shall issue invoices for the Fees to the Customer 30 (thirty) days prior to the start of the corresponding period, as set out in the Personalization Project Proposal.

16.2  The Customer must pay the Fees to Froomle within the period of 30 (thirty) days following the receipt of an invoice issued in accordance with this article 16.

16.3  The Customer must pay the Fees by using such payment details as are mentioned on the related invoice.

16.4  If the Customer does not pay any amount due to Froomle under this Agreement:
a) the relating invoice will, without prior notice of default, bear interest at the rate of 1% per month, as well as a contractual indemnity set at 10% of the total amount invoiced, with a minimum of 250 EUR;
b) all other claims against the Customer that are not yet due, will become due without prior notice;
c) Froomle can refuse to deliver any Services until the amount due has been paid in full, including any interest and contractual indemnity; and
d) Froomle can require payments in advance for any Services to be provided.

Article 17 – Confidentiality obligations

17.1  The Parties acknowledge that in the course of this Agreement, the Parties may become privy to Confidential Information which is disclosed by the other Party.

17.2  The Receiving Party will keep all Confidential Information confidential. The Receiving Party will not disclose Confidential Information to any other person and will not use Confidential Information for any purposes other than for the purposes of this Agreement. The Receiving Party will safeguard the Confidential Information to the same extent that it safeguards its own confidential and proprietary information and in any event with not less than a reasonable degree of protection.

17.3  The Receiving Party agrees to disclose Confidential Information only on a "need-to-know" basis to employees and independent contractors.

17.4  The Receiving Party agrees that before any of its subcontractors and/or agents may be given access to Confidential Information, each such subcontractor and/or agent will agree to be bound by a confidentiality undertaking comparable to the terms of this Agreement. Notwithstanding the return of any Confidential Information, the Receiving Party and its subcontractors and/or agents will continue to hold in confidence all Confidential Information, which obligation will survive any termination of this Agreement.

17.5  In the event the Receiving Party is requested or required to disclose, by court order or regulatory decision, any of the other Party’s Confidential Information, the Receiving Party will provide the other Party with prompt written notice so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. The Receiving Party will furnish only that portion of the Confidential Information which is legally required.

17.6  Within 10 (ten) Business Days upon (i) the termination of this Agreement or (ii) the Disclosing Party’s reasonable earlier request at any time, the Receiving Party will destroy or return to the Disclosing Party (at its option) any and all of Disclosing Party’s Confidential Information and will purge all copies and traces of the same from any storage location and/or media.
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17.7  Confidential Information will not include any information that the Receiving Party can establish:
a) prior to receipt from the Disclosing Party, in the possession of or rightfully known by the Receiving Party without an obligation to maintain its confidentiality;
b) at the time of use or disclosure by the Disclosing Party was generally known to the public without violation of this Agreement and not as a result of any action or inaction of the Receiving Party;
c) is disclosed to the Receiving Party by a third party not in violation of any obligation of confidentiality; or
d) is independently developed by the Receiving Party without the participation of employees or other individuals who have had access to Confidential Information of the Disclosing Party.

Article 18 – Publicity

18.1  Neither Party may make any public disclosures relating to this Agreement or the subject matter of this Agreement (including disclosures in press releases, public announcements and marketing materials) without the prior written consent of the other Party, such consent not to be unreasonably withheld or delayed.

18.2  Froomle will however always be allowed to communicate that Customer is a customer of Froomle on its commercial documentation, without having to obtain the Customer’s prior written consent thereto.

Article 19 – Data protection

19.1  Each Party shall comply with the Data Protection Laws with respect to the processing of Customer Personal Data.

19.2  The Customer warrants to Froomle that it has the right to disclose all Customer Personal Data that it does in fact disclose to Froomle under or in connection with the Agreement.

19.3  The Customer shall only supply to Froomle, and Froomle shall only process, in each case under or in relation to the Agreement, the Customer Personal Data in accordance with the provisions of the Data Processing Addendum.

Article 20 – Warranties

20.1  Froomle warrants to the Customer that:
a) Froomle has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
b) Froomle will comply with all applicable legal and regulatory requirements applying to the exercise of Froomle's rights and the fulfilment of Froomle's contractual obligations.

20.2  Froomle warrants to the Customer that:
a) the Hosted Services will conform in all material respects with the Documentation;
b) the Hosted Services will incorporate security features reflecting the requirements of good industry practice.

20.3  Froomle warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any third party.

20.4  If Froomle reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with this Agreement infringes any third-party Intellectual Property Rights, Froomle may at its own cost and expense:
a) modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
b) procure for the Customer the right to use the Hosted Services in accordance with this Agreement.

20.5  Froomle provides no other warranty. In particular, Froomle provides no warranties of any kind in relation to:
a) the merchantability and/or fitness of the Hosted Services for a particular purpose;  
b) the compatibility of the Hosted Services with the software and/or the hardware of the Customer and/or any third-party;
c) the expectation of the Customer that the Hosted Services will satisfy or may be customized to satisfy all or any of Customer’s specific requirements, except if explicitly agreed otherwise;
d) the uninterrupted or error-free use of the Hosted Services by the Customer, regardless of whether such warranty would otherwise be imposed by contract, statute, course of dealing, custom and usage, or otherwise.

20.6  The Customer warrants to Froomle that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.

20.7  All of the Parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.

20.8  The Customer acknowledges that complex software is never wholly free from defects, errors and bugs, and subject to the other provisions of this Agreement, Froomle gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.

20.9  The Customer acknowledges that complex software is never entirely free from security vulnerabilities, and subject to the other provisions of this Agreement, Froomle gives no warranty or representation that the Hosted Services will be entirely secure.

20.10  The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Documentation, and Froomle does not warrant or represent that the Hosted Services will be compatible with any other software or systems.

Article 21 – Limitations and exclusions of liability

21.1  Nothing in this Agreement will:
a) limit or exclude any liability for death or personal injury resulting from negligence;
b) limit or exclude any liability for fraud or fraudulent misrepresentation;
c) limit any liabilities in any way that is not permitted under applicable law; or
d) exclude any liabilities that may not be excluded under applicable law.

21.2  Neither Party shall be liable to the other Party in respect of any losses arising out of a Force Majeure Event.

21.3  Neither Party shall be liable to the other Party in respect of any loss of revenue or income, loss of use or production, loss of business, contracts or opportunities, loss or corruption of any data, database, special, indirect or consequential loss or damage.

21.4  The aggregate liability of Froomle to the Customer under this Agreement in respect of any event or series of related events shall not exceed the total amount paid and payable by the Customer to Froomle under this Agreement in the 6 (six) month period preceding the commencement of the event or events.

Article 22 – Force Majeure Event

22.1  If a Force Majeure Event gives rise to a failure or delay in either Party performing any obligation under this Agreement, that obligation will be suspended for the duration of the Force Majeure Event.

22.2  A Party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that Party performing any obligation under this Agreement, must:
a) promptly notify the other Party, and
b) inform the other Party of the period for which it is estimated that such failure or delay will continue.

22.3  A Party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

Article 23 – Termination

23.1  Neither Party may terminate the Agreement without cause unless in accordance with article 4.2.

23.2  Either Party may however terminate this Agreement immediately by giving written notice of termination to the other Party if:
a) the other Party commits any material breach of this Agreement, and the breach is not remediable,
b) the other Party commits a material breach of this Agreement, and the breach is remediable but the other Party fails to remedy the breach within the period of 30 (thirty) days following the giving of a written notice to the other Party requiring the breach to be remedied.

23.3   Either Party may terminate this Agreement immediately by giving written notice of termination to the other Party if:
a) the other Party:
i. is dissolved;
ii. ceases to conduct all (or substantially all) of its business;
iii. is or becomes insolvent or is declared insolvent;
b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed to any of the assets of the other Party;
c) an order is made for the winding up of the other Party, or the other Party passes a resolution for its winding up.

Article 24 – Subcontracting and assignment

24.1  Froomle will be entitled to use the services of subcontractors for the performance of any Services under this Agreement. In such case, Froomle will remain liable towards the Customer for the performance of these services, except if agreed otherwise.

24.2  Neither Party will be entitled to assign any right or obligation under this Agreement without the prior written consent of the other Party, which will not be unreasonably withheld or delayed.

24.3  Notwithstanding any other provision of this Agreement, the Customer acknowledges and agrees that Froomle may subcontract to any reputable third-party hosting business the hosting of the Hosted Services and the provision of Services in relation to the support and maintenance of elements of the Hosted Services.

Article 25 – Miscellaneous

25.1  Waiver
The failure of either Party at any time to insist upon strict performance of any of the terms and conditions in this Agreement will not be deemed a waiver of its right at any time thereafter to insist upon strict performance.

25.2  Notices
All notices, demands or consents required or permitted under this Agreement will be in writing. Notice will be sent to the Parties at the addresses set forth on the signature page of this Agreement, or at such other address as will be given by either Party to the other in writing.

25.3  Entire agreement
This Agreement, along with the Attachments, is the complete agreement of the Parties and cancels and supersedes all prior and contemporaneous agreements, negotiations, understandings and proposals, whether oral or in writing, between them relating to the subject matter hereof.

25.4  Modification
This Agreement may be modified only by a written agreement duly executed by all Parties. No amendment, modification or waiver of any provision of this Agreement, nor consent to any departure by any Party, will in any event be effective unless the same will be in writing and signed by both Parties, and then such amendment, modification, waiver or consent will be effective only in the specific instance and for the specific purpose for which it was given.

25.5  Severability
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction, such provision will be severed and the remainder of the provisions of this Agreement will continue in full force and effect as if this Agreement has been executed with the invalid, illegal or unenforceable provision eliminated. The Parties will immediately commence negotiations in good faith to remedy this invalidity.

Article 26 – Law and jurisdiction

26.1  This Agreement shall be governed by and construed in accordance with Belgian Law.

26.2  Any disputes relating to this Agreement shall be subject to the exclusive jurisdiction of the courts of Antwerp, division Antwerp (Belgium).

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Last modified on April 19, 2024.
FROOMLE NV
Posthofbrug 6-8
2600 Antwerp
Belgium
Company number: 0654.854.720
‍info@froomle.com