Appdate BV (hereinafter the Appdate), having its registered offices at Da Vincilaan 1, 1930 Zaventem and with VAT number BE 0785.747.807, is a cloud services provider.
By purchasing a Subscription (as defined below), the Client accepts these General Terms and Conditions (hereinafter the GT&C) which shall govern your procurement of the Services by Appdate.
The individual accepting the GT&C on behalf of a company or other legal entity (Client) represents and warrants that he or she has full authority to bind the Client to this Agreement.
If you are consumer (meaning a natural person who acts for purposes outside his trade, business, craft or profession) please contact the Appdate customer service, you cannot purchase any Services under this GT&C.
Terms beginning with a capital letter in the GT&C, whether used in the singular or the plural, will have the meaning given to them hereafter.
Client: means the legal entity that orders the Services from Appdate and with whom Appdate has concluded the Contract.
Client Content: any data (in electronic form) collected through the Services or uploaded to the Services by Client (including its end-users) for the purpose of using the Services or facilitating the Client's use of the Services.
Contract: means the entirety of contractual documents constituting the agreement between the Service Supplier and the Client, including the GT&C and the Subscription.
Day: means a calendar day.
Feedback: means any suggestion or idea for improving or otherwise modifying any of Provider's products or services.
Free Trial: means a free plan of the Service offered to Client for testing purposes at no charge for a limited period, with limited features and functionalities, and subject to the license metrics as determined at Appdate's sole discretion.
Price: means the compensation paid or payable by the Client to Appdate for the provision of the Services in accordance with the Subscription.
Intellectual Property Rights: means all industrial and intellectual property rights including, but not limited to, patents, trademarks, trade names, service marks, domain names, copyrights, schematics, industrial models, inventions, know-how, trade secrets, computer software programs, all rights to apply or register such elements worldwide and other intangible proprietary information.
Subscription: means a subscription plan to the Services offered to Client for purchase against payment of the Price and as further described on Appdate's website.
Party or Parties: means the Client and/or Appdate, as applicable.
Reseller: means a party authorized by Appdate to resell Paid Subscriptions for the Appate Services.
Service(s): means the provision of the Izzygo application.
The purpose of the GT&C is to set out all the rules applicable to the provision of the Services ordered by the Client from Appdate.
The contractual documents are:
If and to the extent that there is any conflict between the provisions of the documents constituting the Contract, the conflict shall be resolved in accordance with this order of precedence:
By purchasing the Subscription, the Client waives all its general or specific terms and conditions, whenever and in whatever form these are communicated, even when these state that they apply exclusively and even when Appdate did not expressly reject their applicability.
4.1 Paid Subscriptions
The Service can be subscribed to, based on different subscription plans as provided on Appdate's or Microsoft's website. Subscriptions are offered for purchase and can be ordered via the Microsoft marketplace. Client's selected Subscription shall be identified in the online order confirmation page.
4.2 Free Trial
New clients can also order a Free Trial with Appdate.
4.3 Sales through Reseller
Any purchase made through a Reseller is subject to, and Appdate's obligations and liabilities to Client are governed by, this Agreement. However, when the Services are purchased via a Reseller, such purchase will be subject to the Reseller's payment terms and article 8 of these GT&C will not apply.
Appdate can suspend or terminate Client's subscription if Client fails to pay Reseller within the payment term as determined by Reseller.
The following must be established by Client's Reseller:
5.1 Acceptable use of the Services
The Client is granted a limited, non-transferable, right to access and use the Services for the duration of the Subscription, in accordance with the Subscription parameters.
The Client shall not:
If Appdate suspects any breach of the requirements of this Section 5.1, including without limitation by users, Appdate may suspend Client's access to the Services without advanced notice, in addition to such other remedies as Appdate may have.
5.2 Unauthorized access
Client shall take reasonable steps to prevent unauthorized access to the Services, including without limitation by protecting its passwords and other log-in information. Client shall notify Appdate immediately of any known or suspected unauthorized use of the Services or breach of its security and shall use best efforts to stop said breach.
5.3 Compliance with laws
In its use of the Services, Client shall comply with all applicable laws, including without limitation privacy/security laws.
5.4 Users and access to the Services
Client is responsible and liable for:
6.1 Effective Date
The Subscription shall enter into force on either of the following:
It is agreed that any document and/or communication containing approval of the Subscription, reaching Appdate in whatever format, shall constitute proof of agreement and shall be binding on the Client.
6.2 Duration
Unless otherwise specified in the Subscription, services are subscribed to for an initial term of one (1) year from the Effective Date. Subscriptions shall be automatically extended for additional contract years Renewal Period, unless a Party has notified the other Party by e-mail at least thirty (30) Days before the end of the then-current subscription term Term that it does not wish to extend the subscription to the Services.
7.1 Termination for cause
Without prejudice to Appdate's other rights and remedies under applicable law and under the GT&C, in the event of a breach by the Client of the Contract, Appdate shall have the right, without compensation being due to:
Without excluding any other events being considered a breach of the Contract, the Parties agree that the following examples of events shall be considered as an irremediable material breach by the Client:
7.2 Free Trial expiration
Notwithstanding the above, Free Trial subscriptions are entered into for a period defined in Appdate's sole discretion. The Free Trial will automatically expire and not be renewed upon expiry of that period.
7.3 Termination for convenience
Each Party can terminate the agreement with a prior notice of sixty (60) Days prior to the expiry date of Client's Subscription term.
7.4 Effects of termination
In the event of expiry or termination of the Agreement, the right of use granted to the Client in respect of the Services hereunder shall immediately cease and the Client shall, upon the effective date of such expiry or termination:
Articles 7, 8, 9, 11, 12, 13, 14 and 15 as well as every provision which by their nature extend beyond the termination of the Contract shall remain in force notwithstanding the termination of the Contract.
8.1 Prices
In consideration of the provision of Services, the Client agrees to pay Appdate the Prices as set out it the Subscription. Unless otherwise stated in the Subscription, the Prices are defined in euros and are exclusive of VAT and charges.
8.2 Modalities for invoicing per type of Service
Appdate shall invoice the Client in accordance with the payment schedule and provisions set out in the Contract. The invoicing address is the address of the Client's registered office, unless otherwise stated by the latter.
The Client has a ten (10) Days period following the date on which the invoice has been sent to oppose to the said invoice. In the event of a disputed invoice, the Client shall deliver a written statement to Appdate listing all the disputed items and providing a reasonably detailed description of each disputed item. Amounts which are not disputed as mentioned above, shall be deemed accepted and shall be paid.
Subscriptions will be invoiced upfront to the Client by Appdate.
8.3 Payment terms
Unless otherwise stated in the Subscription, the invoices are payable thirty (30) Days from date of the invoice.
8.4 Payment default
Without prejudice to any damages, failure by the Client to pay an invoice on its due date will automatically result in:
Appdate (or its licensors, where applicable) owns all right, title and interest, including all Intellectual Property Rights in and to the Services.
The Contract does not convey any rights of ownership in or related to the Services or the Intellectual Property rights owned by Appdate (or its licensors, where applicable) other than the use rights explicitly provided in these GT&C. The Client acknowledges that it has no rights whatsoever to access the Services in source code form. Any trademarks used by Appdate or its licensors within or associated with the Services, are trademarks of Appdate or third parties, and no right or license is granted to the Client to use them. The Client is not allowed to remove or change any Intellectual Property Rights, including logos and trademarks in the Services and any documentation provided to the Client in relation to the Services.
The Client (or its licensors in the event applicable) shall be the sole and exclusive owner of all (rights related to the) Client Content including any modification of such Client Content.
During and after the Subscription term, the Client grants to Appdate a non-exclusive, worldwide, royalty-free, perpetual right and license to extract and use, adapt, display, process, perform and distribute any Client Content at Appdate's sole discretion, for any purpose, including but not limited to:
The Client may choose to submit Feedback to Appdate which Appdate may, in connection with any of its products or services, freely use, copy, disclose, license, distribute and exploit in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. Nothing in this Contract limits Appdate's right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
With regard to the processing of personal data in relation to the Contract, Each Party represents and warrants to the other Party that it will strictly comply with applicable data protection legislations, including 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) - GDPR.
Appdate may process personal data in connection with (the execution of) these GT&C. Further, Appdate continuously strives to improve and personalise its Services and to do so, Appdate processes usage data by using analytics techniques. Such processing activities are carried out in accordance with Appdate's privacy policy and where applicable, relevant cookie policy.
If and to the extent Appdate processes Personal Data as a processor in the sense of article 4 GDPR, this will be done based on the provisions of the data processing agreement that can be added by Appdate in an Annex DPA to the Contract.
Each Party shall respect the strictest confidentiality regarding the existence and content of the Contract and the information or data, documented or not, that is exchanged to perform the Services Confidential Information.
The receiving Party shall in particular:
Notwithstanding the foregoing, the receiving Party may disclose Confidential Information of the disclosing Party to its employees or third parties who are directly involved in and need to know such Confidential Information for the purpose of the provision or use of the Services. The receiving Party has or agrees to put in place confidentiality terms no less onerous than those set out in the Contract. The receiving Party assumes full responsibility for the acts or omissions of such person or entity.
Neither Party will be required to protect the confidentiality of a piece of information or data for which it can provide proof that:
This article shall survive five (5) years after the termination of this agreement. Notwithstanding, at the end of this period, this Section 9 shall continue to apply to trade secrets that the disclosing Party has provided to the receiving Party for as long as the trade secrets retain their secret character. For clarification, any violation of this article by the receiving Party shall not remove the secret nature of these trade secrets.
Force Majeure means any event which is beyond the reasonable control of a Party and which impacts the execution of its obligations under the Agreement, including, but not limited to, natural disasters, epidemics, pandemics, extreme weather conditions, fire, riots, war and military operations, national or local emergency situations, acts or negligence of the government, economic disputes of any nature whatsoever, strikes, unannounced labour actions, fire, flooding, lightning, explosions, collapses, disruptions in traffic, the reduced or non-functioning of networks, systems or equipment of third parties as well as any act of negligence of a person or entity which is outside of the reasonable control of a Party. For the avoidance of doubt, failure by Client to correctly or timely pay the Price shall not be excused by a Force Majeure event.
Appdate shall not be liable due to delay or failure to comply with its obligations under the Agreement, if this delay or failure was the result of Force Majeure. In such a case, Appdate may suspend or terminate Client's access to the Services by giving Client a prior written reasonable notice to the extent possible. In such case, Price for the Services until the termination date will be due on a pro rata basis.
13.1 Extent of compensation
Each Party is liable for the consequences resulting from their faults, errors or omissions, and the faults, errors or omissions of their sub-contractors causing direct damages to the other Party. Accordingly, Appdate may not under any circumstances be held liable for the Client's or third parties' indirect or unforeseeable loss or damage, including any loss of earnings, loss, inaccuracy or corruption of files or data, business loss, loss of turnover or profit, loss of customers, loss of opportunity, the cost of obtaining a replacement product, service or technology, relating to or arising from the non-performance or incorrect performance of the Services.
Except in case of gross negligence of wilful misconduct, the amount of Appdate's liability is strictly limited to the Subscription Price excluding VAT actually paid by the Client during the last 12 months, on the date that the event in cause occurs, in respect of the Subscription in question.
13.2 Compliant delivery of the third-party providers, such as Microsoft
Appdate is not liable for:
13.3 Appdate's limits of liability
The Client will be solely liable for compliance with the laws, regulations and other imperative or legislative provisions, whether national or international, in terms of Client Content.
The Services are not personalized or customized to fit the Client's particular needs and Appdate makes no promises, guarantees or assurances to that extent. There is no warranty that the Services will be free of error, that access will be continuous or uninterrupted, that any information provided or used with the Services will be secure, accurate, complete or timely, or that any content will be preserved or maintained without loss.
Unless otherwise provided by applicable law, Appdate is not liable for injuries or any material damage resulting from the Client or any user's use of the Services. Client herewith explicitly agrees to defend and hold Appdate harmless of any claims in this regard.
To the extent permitted by law, each Party expressly acknowledges that damages caused in the performance of the Agreement by the other Party and/or its auxiliaries, directors, associates, employees or subcontractors, shall only lead to contractual liability, even if the event at the origin of the damages constitutes a tort.
The Contract expresses the entirety of the obligations and the agreement between the Parties and replaces all other agreements, written or verbal, regarding its purpose.
The Parties undertake to perform the Contract, the terms of which they have decided freely, in all points, and to give each clause of the Contract its full effect.
The Parties shall act in good faith, in accordance with the Belgian Civil Code, from the Effective Date until after the expiry or termination of the Contract and/or Subscription, if circumstances so require.
Except where explicitly provided otherwise herein and to the extent permitted by law, Appdate may update or modify the Contract from time to time, for specific reasons, including but not limited to:
If a revision meaningfully reduces the Client's rights, Appdate will use reasonable efforts to notify the Client (by, for example sending an email to the Client, posting on Appdate's website or the Service itself). The Client must notify Appdate within fifteen (15) Days of Appdate's notice of the modifications that the Client does not agree with such changes, and Appdate (at Appdate's option and as the Client's exclusive remedy) may either:
If a stipulation in the GT&C and/or the Contract is declared null and void, the other stipulations shall remain in force. The Parties will then seek to adopt a new stipulation with the closest economic effect than the clause declared null and/or void.
If one Party fails to demand enforcement of any clause in the GT&C, this shall not under any circumstances be interpreted as a waiver of their rights under the GT&C.
Appdate reserves the right to transfer all or part of its obligations to any third party of its choice.
Each Party acts in its own name and on its own account. It does not have the power or authorisation to commit the other Party in any way whatsoever. None of the provisions of the Contract may be interpreted as creating a mandate, subsidiary, relationship of agent or employee to employer between the Client and Appdate.
Unless otherwise stated by the Client, the latter expressly authorises Appdate to use the Client's name and/or brand as a commercial reference, and to reproduce them on its promotional documents, to the exclusion of any other use.
The Contract is governed by Belgian law, except for any conflict-of-laws rules or provisions (Belgian, foreign or international), that would cause applying the laws of any country other than Belgium.
The Parties will attempt to resolve amicably any dispute between them regarding the formation, interpretation, performance, expiry or termination of the Contract. Failing this, the dispute will be brought before the competent court in Brussels.