1.1. These general terms and conditions (the General Terms and Conditions) apply to all orders concluded between Eforge BV, a company with its registered office at Blokkestraat 41 bus 1.1, 8550 Zwevegem, and registered with the Crossroads Bank for Enterprises under number 0808.554.782 (Robaws), and the legal entity or natural person identified as the customer in an order form (the Customer), except when they are (partially) replaced by specific contractual agreements expressly agreed upon between Robaws and the Customer. Robawsand the Customer are hereinafter collectively referred to as the Parties and individually as a Party.
1.2. These General Terms and Conditions, the applicable order form (Order Form), and the Data Processing Agreement (if applicable) attached as an annex to the General Terms and Conditions, together with the documents referred to therein, constitute the Agreement. In the event of any conflict, the following descending order of precedence shall apply: (i) the Order Form, (ii) the Data Processing Agreement, and (iii) the General Terms and Conditions.
1.3. The Parties expressly declare that other standard terms and conditions, such as the Customer's general terms and conditions or purchase conditions, are not applicable.
2.1. Solution and Authorized Users - The Solution refers to the 'Software as a Service' platform offered by Robaws, which provides the Customer and designated authorized users for whom the Customer pays (the Authorized Users) with access to and the ability to use the following components: (i) the computer program or computer application 'Robaws,' accessible via the internet on Robaws' remote servers (the Software), including links to external software; and (ii) the accompanying documentation of the Software, particularly the written or electronic materials that provide information and instructions for using the Software (the Documentation).
2.2. Robaws assigns a personal user account and corresponding personal login credentials to each Authorized User. A user account may only be used by a single natural person and may not be shared among multiple individuals. The Customer shall register each natural person using the Solution as an Authorized User. Only the Customer and the Authorized Users are responsible for protecting and securing the login credentials (including the username and password).
2.3. The Customer selects one of the three (3) packages (each a Package) of the Solution: (i) the Starter Package; (ii) the Go Package; or (iii) the Pro Package, as specified in the Order Form. Each Package has specific functionalities, which are explained on the Robaws website and in the Documentation. All Authorized Users will fall under the chosen Package, and the fee will be the same for each of the Authorized Users, regardless of their use of the Solution.
2.4. Robaws may offer additional functionalities for an additional fee (Add-Ons), which the Customer can add to the chosen package. If the Customer uses Add-Ons, they are considered part of the Solution for these General Terms and Conditions.
2.5. During the Term, the Customer may add additional Authorized Users themselves. For each of these additional Authorized Users, an additional fee will be due on a pro rata basis in accordance with Article 5.3 of these General Terms and Conditions.
2.6. For clarification, the Solution includes only links to external software and not the external software itself. The licenses for this external software and related fees shall be directly negotiated and paid by the Customer to the respective external software provider, without any involvement or intervention from Robaws. Robaws assumes no responsibility for the proper functioning of this external software.
2.7. The Customer acknowledges that using the Solution requires an internet connection and the use of a modern web browser (such as the most recent version of Google Chrome). Without these, the Customer may not be able to use the Solution, or its functionality may be limited.
2.8. If the Customer wishes to access and use the digital work order app 'Wappy', this must be specified in the Order Form. If the Customer uses Wappy, this 'Software as a Service' will also be considered as Software under these General Terms and Conditions, with the understanding that the number of Authorized Users for Wappy and the subscription duration (per month/year) may differ.
2.9. Use of the Solution - The Customer is granted a personal, limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Solution, limited to its Authorized Users during the Term of the Agreement. The Customer may only use the Solution for the purposes as described in the Documentation or on the Robaws website and may not further commercialize the Solution.
2.10. An Authorized User is only entitled to access and use the Solution on one chosen device at a time. If an Authorized User wishes to use the Solution on multiple devices (simultaneously), an additional cost must be paid (unless it is included in the respective license), which may be equivalent to the cost of an extra Authorized User.
2.11. Robaws may update the Solution from time to time at its discretion but will not remove any primary functionality of the Solution without prior notice to the Customer. In the case of a change in primary functionality that is materially detrimental to the Customer, the Customer may terminate the Agreement with a notice period of fifteen (15) calendar days.
2.12. Any use of the Solution beyond the scope of the access and usage rights granted under this Agreement or in violation of the terms of this Agreement gives Robaws the right to suspend the rights granted under these rights and/or terminate the Agreement due to material breach by the Customer. In the latter case, Robaws has the right to retain the fees already paid and claim the fees due for the remaining duration of the Agreement.
2.13. Robaws will regularly perform maintenance on the Software with the aim of improving or expanding its operation and/or access.
2.14. Usage Restrictions of the Solution - The Customer shall comply with all laws, rules, and regulations applicable to the use of the Solution. The Customer shall not (directly or indirectly):
(i) copy, adapt, modify, translate, alter, or create derivative works based on the Solution or any other intellectual property of Robaws without the express consent of Robaws;
(ii) exceed the parameters as set forth in the applicable Order Form without Robaws' authorization;
(iii) assign, sell, resell, sublicense, rent, lease, time-share, distribute, or otherwise transfer the rights granted to the Customer under this Agreement to third parties;
(iv) modify the Solution, especially the source code (or underlying ideas, algorithms, structure, or organization) of the Software, decompile, subject to reverse-engineering, disassemble, or otherwise attempt to derive the source code (unless and to the extent such activities are expressly permitted under applicable law);
(v) use the Solution to generate unsolicited email advertisements or spam;
(vi) disrupt the integrity or performance of the Solution;
(vii) attempt to gain unauthorized access to the Solution or its associated systems or networks or perform unauthorized penetration testing on the Solution;
(viii) use the Solution in a manner that infringes upon the intellectual property rights, publishing rights, or privacy rights of Robaws or third parties, or to store or transmit defamatory, libelous, or otherwise unlawful data;
(ix) use automated, electronic, or manual processes with high volume to access the Solution, search it, or collect information from the Solution (including but not limited to robots, spiders, or scripts); or
(x) alter, remove, or obscure copyright notices, digital watermarks, ownership notices, or other communications in the Solution.
2.15. Services - Robaws provides additional services or support related to the delivered Solution, particularly certain services for implementation, training, maintenance, updates, and customer support (the Services). The Services, which may be provided for a fee, include the implementation of the Solution and training in accordance with one of the three (3) implementation packages as included in an Order Form.
Additional Services, such as extra training, are subject to additional fees as agreed upon between the Parties. Unless otherwise expressly agreed upon between the Parties, Robawsdoes not provide custom services.
2.16. Customer Data - All data, information, and materials provided by the Customer and/or its Authorized Users to Robaws during the term of the Agreement (Customer Data) shall remain the exclusive property of the Customer and/or its Authorized Users, respectively. The Customer grants Robaws a non-exclusive, royalty-free license to use the Customer Data for the purpose of providing the Solution and the Services.
2.17. The accuracy, quality, integrity, legality, reliability, suitability, and copyright of all Customer Data are the sole responsibility of the Customer. Only the Customer is responsible for the protection and security of its login credentials for accessing the Solution, including but not limited to usernames and passwords.
2.18. Robaws may collect, use, and disclose quantitative data derived from the use of the Solution for industry analysis, benchmarking, marketing, analytics, and other business purposes. This collected, used, and disclosed data will be in an aggregated form only and will not identify the Customer and its Authorized Users.
3. INTELLECTUAL PROPERTY RIGHTS
3.1. All intellectual property rights belonging to a Party prior to the Agreement shall remain the property of that Party. The Solution, including but not limited to all underlying data, software, platforms, algorithms, codes, technology, applications, (website) designs, know-how, techniques, methods, materials, systems, and other products and/or services to be provided, including all modifications, improvements, and derivatives thereof, and all intellectual property rights associated therewith, are the property of Robaws and/or its affiliated companies, which hold all rights, claims, and interests related thereto.
3.2. Robaws reserves the right, in any case, to use suggestions, ideas, improvements, requests, feedback, recommendations, or other know-how used or developed in connection with the Agreement, to the extent they do not include Customer Data.
3.3. To the extent that the Customer acquires any right, title, or interest in any intellectual property owned by Robaws, the Customer hereby assigns all of its rights, titles, and interests in such intellectual property to Robaws.
4.1. All information disclosed orally or in writing by one party (the Disclosing Party) to the other party (the Receiving Party) that is designated as confidential or which must reasonably be assumed to be confidential given the nature of the information and the circumstances of disclosure (the Confidential Information), in particular all information relating to the activities, affairs, products, developments, trade secrets, know-how, personnel, customers, and suppliers of both Parties, shall be treated as confidential. The Confidential Information of the Disclosing Party shall be used by the Receiving Party solely for the performance of the Agreement and shall not be disclosed to any third party other than to the Receiving Party's employees and agents who need to know such information for the performance of the Agreement.
4.2. With respect to all Confidential Information received during the term of this Agreement, the Receiving Party shall exercise the same degree of care as it uses to protect the confidentiality of its own similar Confidential Information, but in no event less than reasonable care.
4.3. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by law, provided that the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure, to the extent legally permitted.
5. PAYMENT TERMS
5.1. The customer may test the Solution free of charge for a maximum of fourteen (14) calendar days (in demo version). After this period, payment by the Customer is required for access to and use of the Solution in the full version (i.e., non-demo version) in accordance with Article 2 of this Agreement.
5.2. At the beginning of each subscription period (the start of the month for a monthly subscription; the start of the year for an annual subscription), the Customer shall pay to Robaws the fees as described in the relevant Order Form for the use of the Solution (the Subscription Fee). For the provision of Services, the Customer shall pay the fees as described in the relevant Order Form, which are generally invoiced prior to the provision of the Services (the Service Fee) (the Subscription Fee and Service Fee together are referred to as the Fees).
The Fees are exclusive of VAT and other taxes and (local) levies. The Fees shall be paid in the currency specified in the Order Form.
5.3. The Customer acknowledges and agrees that Robaws has the right to charge pro rata additional costs and fees if (i) the Customer adds an additional Authorized User and/or; (ii) an Authorized User uses the Solution on multiple devices and/or; (iii) the Customer notifies Robaws that they wish to "upgrade" the relevant Solution package (i.e., switch from the Starter package to the Go package or the Pro package; or switch from the Go package to the Pro package).
5.4. The Customer acknowledges and agrees that it is not possible to reduce the number of Authorized Users during the current term (monthly or annual term) of the Agreement. The Customer acknowledges and agrees that it is not possible to "downgrade" the relevant Solution package (i.e., switch from the Pro package to the Go package or the Starter package; or switch from the Go package to the Starter package).
5.5. If the Customer terminates the Agreement prematurely before Services have been delivered for which an Order Form has already been entered into between the Parties, payment for these Services shall remain due from the Customer.
5.6. Robaws may increase the Fees each year (at any time) based on a change in labor costs or external (third-party) costs (including but not limited to wages, energy costs, material costs, and third-party licenses such as hosting services). Furthermore, Robaws reserves the right to propose price increases in order to offer improvements in product quality, improvements in service standards, or other substantial improvements to the Solution provided under the Agreement. If the Customer does not agree with the change in prices, the Customer must terminate the current Solution subscription in a timely manner, within one (1) month of receiving notice of the price change from Robaws.
5.7. Invoices from Robaws are due and payable within fifteen (15) calendar days from the invoice date (unless otherwise specified in the applicable order form).
5.8. For each undisputed payment not received from the Customer by the due date, Robaws may charge late payment interest at the legally permissible maximum rate. The Customer shall pay all reasonable collection costs, including attorney's fees and collection agency fees. Any disputed amounts must be reported to Robaws within eight (8) calendar days of receipt of an invoice by the Customer, specifying the basis for the dispute by the Customer and the amount in question. If an amount is not disputed within these eight (8) calendar days, it shall be deemed accepted by the Customer. In any case, the undisputed portion of the invoice shall be paid as set forth above.
5.9. Robaws is entitled to suspend access to and use of the Solution without prior notice in case of non-timely (full) payment until the entire amount due is paid.
6. REPRESENTATIONS AND WARRANTIES
6.1. Robaws Shall perform its obligations under the Agreement in good faith, in accordance with applicable professional standards. All obligations of Robaws under this Agreement are best efforts obligations.
6.2. During the Term of the Agreement, Robaws warrants that: (a) the Software will perform substantially in accordance with the Documentation; and (b) Robaws will employ industry-standard practices to detect viruses, worms, Trojan horses, or other unintended malicious or destructive code in the Software. The foregoing warranties do not apply if the failure of the Software results from negligence, errors, or misuse of the Software (including use not in accordance with the Documentation) by the Customer, the Authorized Users, or any third party other than Robaws.
6.3. Except as expressly set forth in this Article 6 and to the maximum extent permitted by applicable law, the Solution is provided "as is." The express warranties set forth in this Article 6 are the only warranties provided by Robaws with respect to the Solution, the Services, or any materials or services provided by Robaws in connection with this Agreement. Robaws makes no other and hereby disclaims all other warranties, guarantees, representations, or conditions, whether written, oral, express, or implied, including, but not limited to, any implied warranties or conditions of non-infringement, merchantability, fitness for a particular purpose, suitability, usability, accuracy, completeness, performance, or any particular use, misuse, or inability to use the Solution.
7.1. Robaws shall defend and indemnify the Customer against claims by third parties alleging that the Solution provided under this Agreement infringes upon the intellectual property rights of such third party. The Customer shall promptly notify Robaws of any such third-party claims and provide Robaws with all necessary powers and authorities to handle and defend the claims.
7.2. The above obligations of Robaws for defense and indemnification shall not apply if a claim arises out of or relates to: (i) unauthorized use of the Solution by the Customer, (ii) modification, adaptation, or conversion of the Solution by the Customer or a third party, (iii) use of the Solution by the Customer in combination with other products or services, or (iv) Robaws's compliance with specifications, requirements, or requests of the Customer.
7.3. If the Solution becomes, or Robaws reasonably believes it is likely to become, the subject of a third-party intellectual property infringement claim (as described in Article 7.1), Robaws may, at its sole discretion: (i) modify the allegedly infringing part of the Solution to make it non-infringing while preserving equivalent functionality; (ii) obtain for the Customer a license to continue using the Solution in accordance with this Agreement; or (iii) terminate the relevant Order Form or the Agreement and pay the Customer an amount equal to a pro-rata portion of the Fees paid to Robaws under this Agreement for that portion of the Solution that is the subject of such infringement.
7.4. The foregoing constitutes Robaws's entire liability and the Customer's sole remedies regarding any third-party infringement claims.
8.1. In no event shall Robaws be liable for any special, incidental, punitive, indirect, exemplary, or consequential damages, including, but not limited to, lost revenues, lost profits, replacement goods, loss of technology, loss of documents or calculations, loss of rights or services, loss of data, documents, or communications, or interruption or loss of use of services, software, or equipment (including due to hacking), even if Robaws has been advised of the possibility of such damages, whether arising under contract, negligence, strict liability, or otherwise.
8.2. Robaws makes efforts to ensure that no errors occur when using the Solution (e.g., in calculations, scheduling, quotations, and inventory management), but cannot be held liable if, despite these efforts, the use of the Solution results in an incorrect calculation. The Customer shall verify calculations within the Solution on a random basis and shall notify Robaws if an error is found.
8.3. To the extent permitted by applicable law, Robaws's total liability arising out of or related to the Agreement, whether based on contract, warranty, tort (including negligence, product liability, or any other theory), or otherwise, shall in no event exceed the total amount (excluding taxes) paid by the Customer to Robaws during the twelve (12) months immediately preceding the date on which the relevant damaging event occurred.
9. DURATION AND TERMINATION
9.1. This Agreement shall enter into force at the moment the Customer first accesses the Solution and shall remain in effect for the applicable term specified in the Order Form (the Initial Period) and any subsequent extensions (each, an Extension) (the Initial Period and the Extensions together forming the Duration). Upon expiration of the Initial Period or an Extension, the Agreement and the applicable Order Form shall automatically renew for the same duration as the then-current duration of the Initial Period or Extension (being either one month or one year), unless the Agreement is terminated (in accordance with Article 9).
9.2. The Customer may, at any time, notify Robaws in writing of its desire to terminate the Agreement and the applicable Order Form. The Agreement shall then terminate at the end of the ongoing Initial Period or Extension. In other words, if the Agreement includes a monthly cancelable subscription, the Agreement shall terminate at the end of the ongoing subscription month (for example, if the monthly subscription started on March 15, 2023, it shall end on April 14, 2023); if the Agreement includes an annual subscription, the Agreement shall terminate at the end of the ongoing contract year (i.e., if the annual subscription started on March 15, 2023, it shall end on March 14, 2024).
9.3. Prior to an Extension of the Agreement in accordance with Article 9.1, the Customer may modify the Package for the upcoming extension (including downgrading to a less comprehensive Package) through license management in the Software itself or by notifying Robaws in writing at [email protected].
9.4. In the event that either Party fails to meet any of its obligations under this Agreement, and if such breach is not remedied by the breaching Party within thirty (30) calendar days after written notice of such breach is given to the breaching Party, this Agreement and/or any applicable Order Form may be terminated immediately by the non-breaching Party.
9.5. Upon termination or expiration of the Agreement, (i) the Customer shall promptly pay Robaws all Fees and other amounts due under this Agreement for the entire Duration; (ii) the Customer shall no longer have the right to access or use the Solution; and (iii) the Customer shall promptly return or destroy all Confidential Information of Robaws in its possession or under its control.
9.6. If the Customer wishes to export Customer Data from the Software, this must be done before the termination of the Agreement. Exceptionally, upon request and for an additional fee, the Customer may export the Customer Data processed with the Solution for up to thirty (30) days after the termination or expiration of the Agreement.
9.7. The provisions of this Agreement that are expressly or implicitly intended to remain in effect after termination, including but not limited to Articles 3, 4, 6, 8, 9, and 11 of this Agreement, shall remain in force after the termination or expiration of this Agreement.
10. DATA PROTECTION
10.1. If and to the extent that Robaws processes personal data in the context of delivering the Solution, i.e., information related to an identified or identifiable natural person, of the Customer and/or Authorized Users, the Parties shall enter into a Data Processing Agreement and append it as an annex to this Agreement.
11.1. Force Majeure - In no event shall either Party be liable to the other Party for the non-fulfillment of any obligation under this Agreement when such non-fulfillment is due to a case of force majeure, including but not limited to natural disasters, floods, fires, civil unrest, acts of terrorism, strikes or labor issues, computer, network, internet, or telecommunication disruptions, cyberattacks, or any other cause or causes, of a similar or different nature, beyond the reasonable control of a Party, as long as such cause or causes exist. The Parties acknowledge and accept that non-payment obligations can never be attributed to force majeure.
11.2. Imprévision - In the event that an event occurs beyond the reasonable control of a Party (including events that existed or were foreseeable on the date of this Agreement) that substantially makes the performance of obligations under this Agreement significantly more onerous and/or adverse to a Party, the Parties agree that the terms of this Agreement shall remain in force.
11.3. Publicity - Robaws reserves the right to mention the Customer in its references, unless the Customer explicitly requests otherwise. The Customer grants Robaws permission to use its name in reference publications in commercial brochures and to display its logo (i) on the Robawswebsite, (ii) during trade shows or other events aimed at presenting or promoting Robaws' products and services, and (iii) through all other media contributing to the same purpose.
11.4. Notices - All notices, requests, consents, demands, and other communications hereunder shall be in writing, addressed to the (email) address of the receiving Party as specified in the Order Form or otherwise as communicated by the respective Party in accordance with this Agreement.
11.5. Amendments - The terms and conditions of this Agreement can only be modified or amended through a written agreement signed by a duly authorized representative of both Parties, provided that Robaws, acting reasonably, can unilaterally amend the General Terms and Conditions after notifying the Customer, including to comply with applicable laws. The Customer should regularly consult the most recent version of the General Terms and Conditions. If the changes to the General Terms and Conditions materially alter the Customer's rights or obligations, Robaws will make reasonable efforts to notify the Customer of this within a reasonable period in advance. If the Customer does not agree with the proposed changes, the Customer can terminate the Agreement. The Customer is deemed to have accepted the changes if the Customer does not notify Robaws to the contrary before the effective date of the changes.
11.6. Assignment - Neither Party may assign rights or obligations under this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld, provided that Robaws may assign or transfer this Agreement to a successor in the event of a sale or merger, such assignment or transfer to be effective upon written notice to the Customer.
11.7. Subcontracting - The Customer acknowledges and accepts that Robaws may use subcontractors to perform its obligations under the Agreement. Robaws is entirely liable for the acts and omissions of these subcontractors as it is for its own acts and omissions under this Agreement.
11.8. Applicable Law and Jurisdiction - This Agreement, Order Forms, and all Customer orders are subject to Belgian law. Any disputes arising from or in connection with this Agreement, an Order Form, or a Customer order fall under the exclusive jurisdiction of the courts of Ghent (inKortrijk).