“Account” means an account enabling a person to access and use the Services;
“Agreement” means jointly the Order, the Terms and Conditions and any Schedules (if applicable) as concluded between the Parties;
“Business Day” means any weekday other than a bank or public holiday in Belgium;
“Business Hours” means the hours of 09:00 to 17:30 CET on a Business Day;
“Client” means the legal entity identified in the Order which signs the Order;
“Client-induced Incident” means an Incident caused by (a) any act or omission of the Client, an End-Customer or any person authorized by the Client to use the Platform or Services; (b) any use of the Platform or Services contrary to the Documentation, whether by the Client, an End-Customer or by any person authorized by the Client; (c) a failure of the Client or an End-Customer to perform or observe any of its obligations in this Agreement; (d) an incompatibility between the Platform or Services and any other system, network, application, program, hardware or software not specified as compatible in the Documentation; (e) abuse or misuse of the Platform or Services by the Client or an End-Customer; (f) caused by any modification or addition to the Platform or Services or the configuration that is performed without prior written consent of Expect Me, or (g) the failure of any supporting (Third Party or Client’s) hardware and/or software;
“Client Data” means all data, works and materials: uploaded to or stored on the Platform by the Client or the End-Customer; transmitted by the Platform at the instigation of the Client or the End-Customer; supplied by the Client or the End-Customer to Expect Me for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Services by the Client or the End-Customer;
“Client Personal Data” means any Personal Data that is processed by Expect Me on behalf of the Client in relation to this Agreement, but excluding data with respect to which Expect Me is a data controller;
“Confidential Information” of a Party means the information of such Party, whether in written, oral, electronic or other form, and which (i) is explicitly marked as confidential or proprietary, or (ii) should reasonably be considered confidential or is traditionally recognized to be of a confidential nature, regardless of whether or not it is expressly marked as confidential, including but not limited to, information and facts concerning business plans, customers, prospects, personnel, suppliers, partners, investors, affiliates or others, training methods and materials, financial information, marketing plans, sales prospects, client lists, inventions, program devices, discoveries, ideas, concepts, know-how, techniques, formulas, blueprints, software (in object and source code form), documentation, designs, prototypes, methods, processes, procedures, codes, and any technical or trade secrets, including all copies of any of the foregoing or any analyses, studies or reports that contain, are based on, or reflect any of the foregoing. The Confidential Information of Expect Me shall include the Services and Platform, without limitation hereto. The Confidential Information of the Client shall include, without limitation, the Client Data;
“Data Protection Laws” means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Client Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679);
“Documentation” means the technical and functional information that Expect Me contingently makes available to its customers from time to time;
“Effective Date” means the date of execution of this Agreement, as included in the Order;
“End-Customer” means any individual in their capacity of guests of the Client, to whom the Services and Platform will be made available by the Client, and who will be able to use the Services and Platform as an end user, e.g. the End-Customer of the Platform and Services available.
“Expect Me” means Expect Me BV, a company organized and existing under the laws of Belgium having its registered office at 2550 Kontich, Groeningenlei 16 and with company number 0758.7976.43, provider of the Services and owner of the Platform;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the Party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any Third Party, social strikes or actions, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Hosting Partner” means Microsoft (or such other provider of hosting services Expect Me might contract in the future as will be notified to the Client from time to time);
“Incident” means an incident, error or bug in the Platform having an adverse effect on the appearance, operation, functionality or performance of the Services. “Client-Induced Incident” shall not constitute an Incident under the scope of this definition;
“Implementation Fee” means the implementation fee specified in the Order in respect of the Services needed for the implementation and set-up of the Platform by Expect Me for the Client, payable as stated in the Order;
“Initial Term” means the initial period for which the Agreement is being concluded, as set out in the Order. The Initial Term starts on the Effective Date;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Maintenance Services” means the general maintenance of the Platform and Services, and the application of Updates and Upgrades;
“Object Code” means software as assembled or compiled on magnetic or electronic binary form on software media that is readable and usable by machines but not generally readable by humans without reverse assembly, reverse compiling or reverse engineering;
“Order” means the order as agreed upon between the Client and Expect Me, including any Schedules.
“Party” means a party to this Agreement;
“Personal Data” has the meaning given to it in the General Data Protection Regulation (Regulation (EU) 2016/679);
“Platform” means the platform managed by Expect Me and used by Expect Me to provide the Services, including the application and database software for the Services, the system and server software used to provide the Services;
“Professional Services” means additional professional services in addition to the Services, requested by the Client from Expect Me and provided by Expect Me, including but not limited to the provision of training services and the creation of customizations of the Platform or Services. The Professional Services will be provided at a rate as set out in the Order, namely the Professional Services Fee;
“Professional Services Fee” means the professional services fee specified in the Order in respect of the Professional Services;
“Schedule” means any schedule attached to the Order of this Agreement;
“Services” means Expect Me’s SaaS software and implementation, as specified in the Order, which will be made available by Expect Me to the Client as a service via the internet in accordance with this Agreement;
“Subscription Fee” means the subscription fees due by the Client in exchange for the Platform and Services, calculated as a fee per room per month, as specified in the Order;
“Support Services” means the support in relation to the use of the Services, which will include customer services;
“Supported Web Browser” means Google Chrome, Safari, and Firefox (or such other web browser Expect Me might support in the future as will be notified to the Client from time to time);
“Term” means the term of this Agreement, being the Initial Term and any Renewal Term;
“Terms and Conditions” means these Terms and Conditions including any Schedules;
“Third Party”: a natural or legal person, a government agency, a service or other body, not being a Party to this Agreement or an End-Customer;
“Update” means a hotfix, patch or minor version update to the Platform;
“Upgrade” means a major version upgrade of the Platform.
2. Platform and Services
2.1 Expect Me shall create an Account for the Client and shall provide to the Client login details on or promptly following the Effective Date in order to access the Platform. The moment whereupon the Client can effectively use the Services and Platform, depends on the implementation onboarding project as agreed upon between the Parties.
2.2 Expect Me hereby grants to the Client a personal, restricted, non-assignable, worldwide, non-exclusive, non-transferable license to use the Services by means of a Supported Web Browser (i) for the internal business purposes of the Client, and (ii) to make the Platform and Services available to its End-Customers, during the Term and as set out in the relevant Documentation.
2.3 The Client is entitled to use its license in order to service its End-Customers, but only in accordance with the provisions set out in the Agreement. Under no circumstances shall the Client grant its End-Customers access to its Account(s). The Client can provide access to its End-Customers to use the Platform by generating a personalized link to provide access to the Platform, on which the End-Users can use the Services.
2.4 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the license granted by Expect Me to the Client under this Agreement is subject to the following prohibitions. The Client must not and shall procure that its End-Customers shall not: (a) sub-license, hire, assign, distribute, transfer, sell, lease, rent charge or otherwise deal in or encumber its right to access and use the Services and/or the Platform; (b) permit any unauthorized person to access or use the Services; (c) use the Services to provide services to Third Parties other than the End-Customers; (d) republish or redistribute any content or material from the Services; (e) make back-up copies of the Platform or the Object Code behind the Services or the Platform.
2.5 The Client acknowledges to comply with all applicable laws relating to the use of the Services.
2.6 For the avoidance of doubt, the Client has no right to access the software code (including Object Code, intermediate code and source code) of the Platform, either during or after the Term.
3. Professional Services
3.1 In addition to the Services and Platform, the Client can require additional Professional Services from Expect Me through electronic mail as set out in article 19.4 of these Terms and Conditions.
3.2 Expect Me shall provide the Professional Services in complete independence and shall plan its activities as it sees fit. This independence constitutes an essential element of this Agreement, without which the Parties would not have concluded it. In no case shall this Agreement be interpreted as an employment contract between the Client and the person or persons assigned by Expect Me.
4. Client Cooperation and warranties
4.1 The Client acknowledges that the successful delivery of Services is dependent on, among other things, Expect Me being able to have access to the necessary Client information and resources for the proper execution of this Agreement. Client will fully cooperate and timely provide Expect Me, at no cost, with all relevant information, documentation, decisions and data which is reasonably necessary.
4.2 Resources. Client will provide timely and appropriate access to the Client facilities, personnel, equipment, resources and systems, reasonably necessary for Expect Me to execute its obligations under the Agreement and as necessary to facilitate performance of the Services and the Professional Services.
4.3 Content. Client will provide information for inclusion on the Platform, such as descriptions, photos or other material, the general amenities and services of Client, Products made available for bookings including daily inventory, availability and prices, details and rate conditions (including all applicable taxes, levies, surcharges and fees), any applicable policies (including cancellation, deposit and no-show policies) and any other relevant information and restrictions, (the “Content”). The provision of such Content shall comply with the formats and standards provided by Expect Me.
4.4 Accuracy. Client warrants that Content shall at all times be true, accurate, complete and not misleading. Client is at all times responsible to inform Expect Me of any extraordinary events or situations (such as renovation or construction of client products ) and updating Content on a daily basis. Expect Me reserves the right to edit or exclude any Content on becoming aware that it is incorrect or incomplete or in violation of the terms and conditions under this Agreement.
4.5 Trademarks & Intellectual Property Rights. Client warrants that it fully owns the trademarks and intellectual property rights to any Content provided and that none of the Content will infringe any trademarks, copyrights or other property rights of any third party. Content shall remain the sole and exclusive property of Client; provided, however, that Client hereby grants Expect Me a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, transferable license to use and modify Content as it deems necessary for the proper execution of this Agreement and providing the Services hereunder. Content may be edited, modified and subsequently translated to other languages by Expect Me for display on the Platform, as well as used for marketing and advertisement purposes.
4.6 Contractual Relationship. By making a Booking through the Platform, a direct contract (and therefore legal relationship) is created solely between Client and End-Customer. Client is bound to accept an End-Customer as its contractual party and to handle the Booking in compliance with Content provided and displayed at the time the Booking was made. Any complaints or claims in respect to the Booking and its consumption, services rendered or offered by Client or specific requests made by End-Customer are to be dealt with by Client, without mediation by or interference of Expect Me. Expect Me is not responsible for and disclaims any liability in respect of such claims. Expect Me may at all times and at its sole discretion (i) offer Client (support) services to End-Customer, (ii) act as intermediate between Client and End-Customer, or (iii) otherwise assist an End-Customer in its communication with or actions against the Client.
4.7 Compliance. Client warrants it has full right, power and authority to enter into and perform all obligations under this Agreement. Furthermore, Client warrants that it shall comply with the law and all relevant and applicable legal, fiscal and regulatory requirements from time to time in force and shall be solely responsible for obtaining and maintaining all permits, licenses, governmental authorizations, registrations, consents and approvals necessary at and from relevant authorities for conducting, carrying out and continuing its operations and business, making Products available for booking and performing all obligations under this Agreement. The Client is fully and solely responsible for the content of the information and Content provided to Expect Me. The Client warrants that the Content, and Expect Me’s access to and processing of the Content in the context of the provision of the Platform in accordance with this Agreement, do not violate any laws or regulations and/or any third party rights. In particular, the Client represents and warrants that no information is distributed through the Platform that in any manner: (i) violates any applicable, local, state, national, regional or international law, statute, ordinance or regulations; (ii) is illegal, criminal, deceptive, fraudulent or any other action that is unlawful, or invasive of others privacy; or (iii) adversely or negatively affects or reflects Expect Me’s name, reputation or goodwill.
4.8 Recommendations. Expect Me may make recommendations in connection with this Agreement. Client is fully and solely responsible for reviewing and evaluating the appropriateness of these recommendations, as well as any decisions made, or actions taken by Client in response to such recommendations.
5. Client Data
5.1 The Client hereby grants to Expect Me a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Client’s Data to the extent reasonably required for the performance of Expect Me’s obligations and the exercise of Expect Me’s rights under this Agreement. The Client also grants to Expect Me the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of Expect Me’s obligations and the exercise of Expect Me’s rights under this Agreement, subject always to any express restrictions elsewhere in this Agreement.
5.2 The Client warrants to Expect Me that the Client’s Data when used by Expect Me in accordance with this Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
6. Security and Usage
6.1 The Client shall use reasonable endeavors, including reasonable security measures relating to Account access details, to ensure that no unauthorized person may gain access to the Services using an Account.
6.2 Expect Me shall use all reasonable endeavors to maintain the availability of the Services to the Client, but does not guarantee 100% availability.
6.3 The Client must not use the Services: (a) in any way that is unlawful, illegal, fraudulent or harmful, or (b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
7. Usage Control
Expect Me has the right to monitor and inspect the usage of the Services and the Platform by the Client. If such inspection shows that the Client has underpaid the amount of fees due to Expect Me, without prejudice to any other rights and remedies available to Expect Me, the Client shall promptly pay the amount of such underpayment to Expect Me together with any applicable late payment interest.
8. Intellectual Property Rights
8.1 Expect Me is and remains the sole and exclusive owner of the Platform, the Services and Documentation and all related Intellectual Property Rights. Nothing herein shall convey title or any proprietary rights in or over the Platform, Services or Documentation to the Client or any Third Party. The Client shall not in any way acquire any title, rights of ownership, copyright, Intellectual Property Rights or other proprietary rights of whatever nature in the Platform or Services, including any materials provided under Professional Services or in any copies of it.
8.2 The Client agrees not to remove, suppress or modify in any way any proprietary marking, including any trademark or copyright notice, on or in the Platform or Services, or visible during its operation, or on media or on any Documentation. Client shall incorporate or reproduce such proprietary markings in any permitted backup or other copies.
8.3 Any and all Intellectual Property Rights developed or created in the course of the provision of the Professional Services shall vest in Expect Me upon their creation.
9. Third Party Infringement Claims
9.1 Expect Me will be given prompt written notice of any Third Party claim on an alleged or actual infringement by the Services, Professional Services or the Platform or other material made available by Expect Me, and will be granted the right to control and direct the defense and settlement of such a claim. The Client shall be entitled to participate in such proceedings at its own cost. Expect Me shall keep the Client regularly informed of the status of the proceedings and/or settlement negotiations. The Client agrees to reasonably cooperate with Expect Me in the defense and settlement of such a claim. In the event the Services or the Platform or such other material as referenced above, in Expect Me’s reasonable opinion, are likely to become or actually become the subject of a claim of infringement as set out above, Expect Me shall have the right, at its option and expense, to (i) modify or replace the (alleged) infringing material so that it becomes non-infringing while preserving substantially equivalent functionality; or (ii) obtain for the Client the right to continue to use, market and distribute such material as per the terms of this Agreement.
9.2 Client shall indemnify, defend and hold Expect Me and its affiliates harmless from and against any damages, losses, costs and expenses (including reasonable attorneys’ fees) suffered or incurred by Expect Me arising out of Client’s infringement of any Third Party’s intellectual property rights.
9.3 Expect Me shall have no liability for any claim which is based upon (i) Client’s or End-Customer’s unauthorized use of the Services or Platform, (ii) Client’s, End-Customer’s or any Third Party’s modification of any of the Services or Platform, or (iii) Client’s or End-Customer’s use of the Services or Platform in unauthorized or incompatible combination with any non-Expect Me products or services.
10.1 Each Party shall treat as confidential and keep secret all Confidential Information relating to the other Party and shall not disclose to any Third Party, other than its agents, officers, employees, professional advisors, insurers, subcontractors or consultants where such disclosure is necessary, any Confidential Information learned during the negotiation and performance of the Agreement. Confidential Information disclosed under this Agreement shall not be used by the recipient thereof for any purpose other than as required for the performance of its obligations under the Agreement.
10.2 Both Parties shall take precautions to maintain the confidentiality of the Confidential Information and in particular the Parties covenant that they: (a) shall not copy or otherwise exploit any component of the Confidential Information other than as herein provided, nor make any disclosures with reference thereto to any Third Party, (b) shall promptly notify the other Party if it becomes aware of any breach of confidence and give the other Party all reasonable assistance in connection with the same.
10.3 The provisions of this article shall not apply to any secret or information which: (a) is published or comes into the public domain other than by a breach of the Agreement or, (b) can be shown to have been known by the receiving Party before disclosure by the disclosing Party or, (c) is lawfully obtained from a Third Party or, (d) can be shown to have been created by the receiving Party independently of the disclosure and other than as part of the project.
10.4 The restrictions in this article do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation or by any judicial or governmental order or request.
10.5 The provisions of this article shall continue in force during five (5) years following the termination of this Agreement.
11. Payment Terms
11.1 The Subscription Fee, Implementation Fee and Professional Services Fee will become payable as set out in the Order and the Terms and Conditions. All payments under this Agreement shall be done by bank transfer, wireless transfer, credit card (via online payment management tools) or any other agreed payment method (using such payment details as notified by Expect Me to the Client from time to time).
11.2 Invoices shall be sent in PDF-format to the Client’s email address, specified in the Order, or in writing to the Client’s physical address if specifically requested by the Client.
11.3 Client agrees to make all payments due to Expect Me under the provisions of this Agreement within thirty (30) days of the date of invoice and in euro, unless Parties have agreed otherwise in writing. In event of late payment, all Client payment obligations to Expect Me will immediately become due and payable.
11.4 All fees payable to Expect Me under this Agreement shall be paid without the right to set-off or counterclaim and free and clear of all deductions or withholdings whatsoever, unless the same are required by law, in which case the Client undertakes to pay Expect Me such additional amounts as are necessary in order that the net amounts received by Expect Me after all deductions and withholdings shall not be less than such payments would have been in the absence of such deductions or withholding. Sums stated to be payable under this Agreement do not include any applicable value added tax or other taxes, which shall be additionally charged to the Client. The Client is responsible for payment of all general, state or local import, usage, value-added, withholding or other taxes associated with the supply or use of the Services or Platform. The Client shall promptly reimburse Expect Me for any such taxes or duties paid by Expect Me.
11.5 The amount of any invoice which has not been paid within thirty (30) days from the invoice date shall automatically be subject to a late payment interest equal to the legal interest rate of the Act of 2 August 2002 on late payment interests in commercial transactions, which interest shall be compounded daily as of the due date until receipt of full payment by Expect Me. In addition, Client shall pay all costs incurred by Expect Me, as a result of the (extra)judicial enforcement of the Client’s payment obligation under this article, with a minimum of 150 EUR. If Client fails to pay any outstanding amounts within sixty (60) days from receipt of a written default notice, Expect Me shall be entitled to suspend its obligations and the Client’s rights hereunder until receipt of payment of such outstanding amounts.
11.6 Each invoice made by Expect Me shall be deemed to have been accepted by the Client if it is not disputed by registered letter sent to Expect Me wherein the reason for the dispute is explained, and this within thirty (30) days after the invoice date of that specific invoice.
11.7 In the event the use of the Platform, Services or Professional Services give rise to additional costs and/or expenses for the Client from third parties (including but not limited to software integration costs), such costs are exclusively the Client’s responsibility and cannot be claimed from Expect Me.
12. Limitation of Liability
12.1 The limitations and exclusions of liability set out in this article and elsewhere in this Agreement govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
12.2 Neither Party shall be liable to the other Party in respect of any losses arising out of a Force Majeure Event.
12.3 Subject to the maximum extent permitted by applicable law, Expect Me’s liability under this Agreement in respect of each event (or series of connected events) shall not exceed the Subscription Fees paid by the Client to Expect Me under the present Agreement for a period of twelve (12) months prior to the date of the event (or last of the series of connected events) giving rise to the claim.
12.4 Under no circumstances shall Expect Me be liable to the Client and/or End-Customer for any indirect, punitive, special consequential or similar damages (including damages for loss of profit, anticipated savings, lost revenue or income, loss of use or production, loss of business, loss or corruption of data, loss of database or software, loss of customers and contracts, loss of goodwill, the cost of procuring replacement goods or services, and reputational damage) whether arising from negligence, breach of contract or of statutory duty or otherwise howsoever, and Third Parties’ claims. Each Party shall have the duty to mitigate damages.
13.1 The Agreement shall commence on the Effective Date and shall continue in effect for the Initial Term and shall thereafter automatically and tacitly renew for successive Renewal Terms, unless written notice of non-renewal is given by either Party at least one (1) month (or any other notice period as agreed upon between the Parties in the relevant Order) prior to the expiration of the Initial Term or any (subsequent) Renewal Term.
13.2 Expect Me may terminate this Agreement and/or user rights granted hereunder by written notice to the Client, if the Client fails to pay to Expect Me any amount due hereunder and the Client fails to cure such failure to pay within sixty (60) days from the date of such notice. The Client acknowledges and agrees that any use of the Services or Platform outside the scope of the license as set forth in the Agreement, unless such use has been expressly approved in writing by a duly authorized representative of Expect Me, shall entitle Expect Me to immediately terminate (or alternatively, at Expect Me’s option, suspend) one or more of the licenses granted hereunder and/or the Agreement for material breach by the Client, without any formalities being required and without prejudice to any other right or remedy available to Expect Me pursuant to this Agreement or under applicable law.
13.3 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 thirty (30) days from the date of receipt of such notice by the breaching Party, provided that Expect Me shall be entitled to terminate the Agreement (or alternatively suspend the Services and/or user rights granted hereunder) on giving written notice in the event the Client breaches the license terms hereunder or infringes Expect Me’s Intellectual Property Rights. For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement: (i) a Force Majeure Event; (ii) a fault or failure of the Client’s computer systems or networks; (iii) any breach by the Client of this Agreement; or (iv) scheduled maintenance carried out in accordance with this Agreement.
13.4 Either Party may terminate the 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, insolvency or similar proceeding or otherwise liquidates or ceases to do business.
13.5 Upon termination of the Agreement for whatever reason the Client shall promptly pay Expect Me all fees and other amounts earned by or due to Expect Me in respect of the Services and use of the Platform, up to and including the date of termination, including (non-exhaustive list) the full Subscription Fees, Implementation Fee and Professional Services Fees.
14.1 Expect Me shall provide the Maintenance Services to the Client during the Term.
14.2 Expect Me shall where practicable give to the Client at least 10 Business Days’ prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Services or are likely to have a material negative impact upon the Services.
15. Support Services
15.1 As of the Effective Date and in consideration of the timely payment by the Client of the Subscription Fees, Implementation Fee and Professional Services Fees, as the case may be, Expect Me shall provide Support Services in Dutch and English in relation to the Services and Platform as set out in the Order.
The Client acknowledges and agrees that the Services and the Platform are provided “as is”. Except for the foregoing warranty and to the maximum extent permitted by applicable law, Expect Me does not make any representations or warranties, express or implied, concerning any matter under this Agreement (including the Services and the Platform) and Expect Me disclaims any representations or warranties, express or implied, including (without limitation) any implied warranties of accuracy or completeness of data, fitness for a particular purpose, merchantability, or non-infringement.
17.2 The Client acknowledges that the Hosting Services will be performed in dedicated the Hosting Partner’s datacentres. The warranties set out in the Hosting Terms are not applicable in case the non-conformity with the service level terms and conditions is due to accident, misuse or use in any other way which is not compatible with the Hosting Terms or the present Agreement. Expect Me and the Hosting Partner do not give any other warranties and reject all other explicit, inexplicit or legal warranties, including warranties in respect of merchantability, fitness for a particular purpose, adequate quality, title or non-infringement. Expect Me shall in no event provide any warranty in respect of the Hosting Services.
17.3 The Client on behalf of its users gives the Hosting Partner the permission to process all Personal Data as contemplated by this Agreement.
17.4 The maximum liability of Expect Me and the Hosting Partner for all claims in respect of the Hosting Services, is limited to only direct damages and will in no event exceed the amount of the Subscription Fees paid by the Client to Expect Me during the past six (6) months prior to the event which gave rise to the claim. These limitations are applicable regardless to the determined liability based on breach of contract, risk liability, breach of terms of warranty or any other legal ground and to the extent permitted by applicable law.
18. Privacy and Data Protection
18.1 Each Party shall comply with all applicable legal requirements regarding privacy and data protection, more in particular with the General Data Protection Regulation of 27 April 2016 (“GDPR”) with respect to the processing of personal data (as defined in the GDPR).
18.2 The Client represents and warrants to Expect Me that it has the legal right to disclose any personal data that is available to Expect Me under or in connection with this Agreement (including, but not limited to, any personal data that might be disclosed by the End-Customer while using the Services and the Platform) and that the Client has a valid legal ground to process such personal data and to disclose such personal data to Expect Me in accordance with applicable law. The Client undertakes to sufficiently inform all data subjects about such processing activities by the Client and/or Expect Me (as applicable) in accordance with applicable law.
18.3 Expect Me shall use Client’s personal data in accordance with the Data Processing Agreement as concluded between the Parties and as attached hereto or otherwise referenced in the Order.
18.4 If any changes or prospective changes to the Data Protection Laws result or will result in one or both Parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the Parties shall use their best endeavours promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance.
19.1 Severability – If any provision of this Agreement is held to be unenforceable, the other provisions shall nevertheless continue in full force and effect. Each Party shall use its best efforts to immediately negotiate in good faith a valid replacement provision with an equal or similar economic effect.
19.2 Survival – The provisions of this Agreement that are expressly or implicitly intended to survive termination, shall survive any expiration or termination of this Agreement.
19.3 Waiver and entire agreement – This Agreement may be modified or amended only by written agreement executed by a duly authorized representative of both Parties hereto. This Agreement may be waived only by a written document signed by the Party entitled to the benefits of such waiver. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given and shall not constitute a continuing waiver or consent. This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior oral or written agreements, representations or understandings between the Parties relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement shall affect, or be used to interpret, change or restrict, the express clauses of this Agreement.
19.4 Notices – Any notice required to be served by this Agreement shall in first instance be given by electronic mail to the email addresses set out in the Order. All notices given by electronic mail, shall only be valid in case confirmation of receipt was expressly given by electronic mail by the receiving Party. In case no confirmation of receipt was given by the receiving Party within five (5) Business Days, all notices can be done in writing and served by personal delivery or registered letter, addressed to either Party at its address given in the Order or to such other address as a Party may designate by notice hereunder. All notices shall be deemed to have been given either (i) if by hand, at the time of actual delivery thereof to the receiving Party at such Party’s address, (ii) if sent by overnight courier, on the next Business Day following the day such notice is delivered to the courier service, or (iii) if sent by registered or certified mail, on the 5th Business Day following the day such mailing is made.
19.5 Publicity – Expect Me shall have the right (unless otherwise indicated in the Order) to use any trademarks or other marks of the other Party (including the other Party’s corporate name) for marketing or promotion purposes, such as (but not limited hereto) client references on Expect Me’s website and sales presentations.
19.6 Interpretation – In this Agreement (unless the context shall otherwise require or permit):
(a) Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted; (b) Words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and incorporate; and each case vice versa; (c) The headings or captions to the articles are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
19.7 Relationship between the Parties- The relationship between Expect Me and the Client is that of independent contractors. Neither Party is agent for the other and neither Party has any authority to make any contracts, whether expressly or by implication, in the name of the other Party, without that Party’s prior written consent for express purposes connected with the performance of this Agreement.
19.8 Neither Party will be liable for any delay in performing, or failure to perform, any of its obligations under this Agreement due to a Force Majeure Event. If a Party refers to a Force Majeure Event, he must immediately (at least within five (5) Business Days) inform the other Party of the nature of the Force Majeure Event, stating the date when the Force Majeure Event comes or has come into effect, and also when it will have ceased to exist. In this case, the Party must use its best efforts to keep the consequences to a minimum.
19.9 Non-Assignment – Client shall not assign or otherwise transfer any of its rights or obligations under this Agreement without Expect Me’s prior written consent. Expect Me’s consent should be requested by registered letter, disclosing the identity of the prospective transferee. Subject to any restrictions on assignment herein contained, the provisions of this Agreement shall inure to the benefit of and shall be binding upon the Parties hereto and their respective heirs, legal representatives, successors and assignees.
19.10 Language – The Agreement is in the English language only, which language shall be controlling in all respects. Furthermore, all communications and notices made or given pursuant to the Agreement shall be in the English or Dutch language.
20. Special Terms and Conditions
The Parties undertake to comply to the additional Special Terms and Conditions, if applicable, as set out in the Order.
21. Applicable law and jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of Belgium and the Parties hereto submit to the exclusive jurisdiction of the competent courts of Antwerp (Antwerp division). The United Nations Convention for the International Sale of Goods shall not apply to this Agreement.
About this Data Processor Agreement
This Data Processing Agreement supersedes and replaces all previous agreements made in respect of Processing Personal Data and data protection. Parties agree that Expect Me is a Processor and the Client is a Controller in respect of all Services provided by Expect Me related to the Agreement. The aforementioned indication of the Parties as Controller and Processor is consistent with the terms and definitions given within the GDPR. By means of this Data Processor Agreement (hereafter the “DPA”) Parties wish to lay down their specific agreements in respect to Processing Personal Data within the framework of the Agreement.
Regarding the interpretation of this DPA, the definitions as concluded in the Agreement and in the GDPR will also apply to this DPA, unless this DPA expressly deviates from those definitions.
“Consent” of the Data Subject means any freely given, specific, informed and unambiguous indication of the Data Subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the Processing of Personal Data relating to him or her;
“Controller” or “Data Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data (i.e. the Client);
“(Personal) Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed;
“Data Subject” a natural person who is identified or identifiable by the Personal Data. an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
“GDPR” Regulation (EU) 2016/679 of the European Parliament and of 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);
“Personal Data” means any information relating to an identified or identifiable natural person as defined in the GDPR;
“Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection,recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;
“Processor” means a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Controller (i.e. Expect Me);
“Subcontractor”: refers to any third party that is involved in the Processing of Personal Data by the Processor;
“Supervisory Authority”: refers independent government body who is responsible for monitoring the application of GDPR;
“Third Party”: a natural or legal person, a government agency, a service or other body, not being the Data Subject, neither the Controller nor the Processor, nor the persons authorized under direct authority of the Controller or the Processor to process the Personal Data;
2. Object of this DPA
2.1 This DPA determines the conditions of the Processing by the Processor, on a self-employed basis, of the Personal Data communicated by or at the initiative of the Controller and in the context of the Agreement; this Processing will exclusively take place for the benefit of the Controller and for the purpose as defined by the Controller.
2.2 The nature and purpose of the Processing, a list and the type of Personal Data as well as the categories of the Data Subjects, taking into account the Services to be performed, are detailed in the Data Processing Details.
2.3 The Processor will only process the Personal Data according to the documented instructions of the Controller, and will not use these Personal Data for its own purpose.
The Controller warrants that it shall not issue instructions, directions or requests to the Processor which would require the Processor and/or its Sub-processor(s) to violate any obligations imposed by applicable mandatory national law to which the Processor and/or its Sub-processor(s) are subject. In particular, the Controller guarantees that it shall comply with all applicable data protection legislation and herby guarantees expressly that the content, use and instructions for the Processing of Personal Data referred to in this DPA are not unlawful so that the protection of the rights of Data Subjects is ensured and so that the Processing activities do not infringe the rights of third parties. The Controller shall indemnify the Processor against all claims related thereto.
2.4 If the Processor is legally obliged to proceed with any Processing of Personal Data, the Processor, unless this would violate applicable mandatory rules, will inform the Controller of such obligation.
3. Compliance with Data Protection Regulations
The Controller and the Processor are obliged to comply with their obligations under applicable legislation (but possibly also codes of conduct, standard contractual clauses, other related regulations).
4.1 This DPA is applicable to every Processing of Personal Data executed in the context of the Agreement.
4.2 This DPA applies as long as the Processor processes Personal Data made available by the Controller in the context of the Agreement. This DPA ends automatically upon termination of the Agreement; the provisions of this DPA that are either expressly or implicitly (given their nature) intended to have effect after termination of the DPA shall survive the end of the Agreement as regards the Personal Data communicated by or at the initiative of the Controller in the context of the Agreement.
5. Technical and organizational protection measures
The Processor and Controller offer adequate guarantees with regard to the implementation of appropriate technical and organizational measures so that the Processing complies with GDPR requirements and that the protection of the Data Subject’s rights is guaranteed.
6. Records of processing activities
Each Party and, where applicable, their representatives, shall maintain a register of the processing activities under their responsibility. Each such register shall contain at least all legally required data.
7. Data Protection Officer
If required by law, the Controller and/or the Processor will appoint a Data Protection Officer. The name and the contact details of the Data Protection Officer (or any other person responsible for privacy related matters) can be found in the Data Processing Details.
8. Storage of Personal Data
8.1 The Processor will not keep the Personal Data any longer than as required for Processing of such Personal Data in the context of the Agreement. The Controller will not instruct the Processor to store any Personal Data longer than necessary. The agreed storage period can be found in the Order (Data Processing Details).
8.2 Unless storage of the Personal Data is mandatory under Union or Member State law, the Processor shall, within a reasonable period after the end of the Processing services, at the option of the Controller, either erase all Personal Data or return it to the Controller and delete existing copies.
9.1 The Controller and the Processor shall take all appropriate technical and organizational measures as referred to in Article 32 GDPR to ensure a level of security appropriate to the risk. The measures taken by the Processor are available on request.
9.2 The Processor shall, taking into account the nature of the Processing and the information available, assist the Controller in ensuring compliance with the obligations resulting from Articles 32 to 36 GDPR. The Controller will reimburse the Processor for services rendered in the context of providing assistance in fulfilling the aforementioned obligations according to Article 17 “Costs” of this DPA.
9.3 Only those agents of the Processor who are involved in the Processing of Personal Data may be informed about the Personal Data. The Processor ensures that persons authorized to process the Personal Data are committed to confidentiality by contract or are under an appropriate statutory obligation of confidentiality.
9.4 The Processor may only provide Personal Data to Third Parties with the prior written approval of the Controller.
10. Data Subject’s rights
10.1 Taking into account the nature of the Processing, the Processor shall use best efforts, by taking appropriate technical and organizational, to promptly inform the Controller of any request made by a Data Subject with regard to the Personal Data the Processor and/or its Sub-processor(s) processes on behalf of the Controller, without giving any consequence to such request unless explicitly authorized by the Controller to do so and to assist the Controller in the fulfillment of its obligation to respond to requests from Data Subjects.
10.2 For all services performed by the Processor in the context of the treatment of such requests from Data Subjects, the Controller will pay the Processor in accordance with Article 17 “Costs” of this DPA.
11. Duty to notify
11.1 Upon becoming aware of a Personal Data Breach the Processor shall notify the Controller thereof without undue delay. This notification shall at least include following information, to the extent practicable:
a. The nature of the Personal Data Breach;
b. The categories of Personal Data that are affected;
c. The categories and approximate number of Data Subjects concerned;
d. The categories and approximate number of personal data records concerned;
e. The likely consequences of the Personal Data Breach;
f. Measures taken or proposed to be taken to address the Personal Data Breach, including, where appropriate, measures to mitigate its possible adverse effects.
11.2 At the request of the Controller, the Processor will cooperate with the investigation and elaboration of the measures necessary in case of any Breaches.
11.3 The Parties will keep each other informed of any new developments with regard to any Breach and of the measures they take to limit its consequences and to prevent the repetition of such Breach.
11.4 It is the responsibility of the Controller to report any Breach to the Supervisory Authority or the Data Subject, as required.
12.1 The Controller expressly authorizes the Processor to engage Subcontractors for the processing of Personal Data. The Controller grants a proxy to the Processor to decide with which Subcontractor(s) the Processor cooperates. The Processor shall keep a list of all Subcontractors engaged, which can be consulted by the Controller upon simple request. The Controller can only refuse a Subcontractor proposed by the Processor on the basis of a well-founded justification submitted in writing.
12.2 The Processor will conclude a separate subcontracting agreement with each Subcontractor.
12.3 In this subcontracting agreement, the same data protection obligations as set out in this DPA shall be imposed on the Subcontractor.
12.4 In the event the Subcontractor fails to fulfill its data protection obligations, the Processor shall remain fully liable to the Controller for the performance of the obligations of that Subcontractor in accordance with Article 19 of this DPA.
13. Transfers of Personal Data
13.1 Unless specifically requested otherwise by Controller, the Processing of Personal Data will exclusively take place within the EEA.
13.2 The Processing or transfer of Personal Data outside the EEA can only occur with the specific prior written consent of the Controller and/or in compliance with applicable legislation. The Processor can sign standard contractual clauses, codes of conduct or any other instruments adopted by the European Commission, which ensures that the transfer of Personal Data to a country outside the EEA complies with appropriate safeguards as required by the GDPR.
13.3 Such consent of the Controller is not required when the transfer of Personal Data to countries outside the EEA is mandatory under EU or Member State law provisions.
14. Data Protection Impact Assessment
14.1 When a ‘Data Protection Impact Assessment’ or a ‘prior consultation’ is required according to Article 35 and 36 GDPR, the Controller will implement such assessment. At the request of the Controller, the Processor will assist in this assessment as well as in the compliance with any required measures, as reasonably required in carrying out such an assessment;
14.2 The Controller will reimburse the Processor for the services so rendered in relation to this assessment and the compliance with any required measures in accordance with Article 17 “Costs” of this DPA.
15. Audit – inspection
15.1 Each Party shall allow the other Party and its authorized auditors to perform audits regarding the compliance by a Party with its obligations under this DPA and the applicable legislation in respect of data protection.
15.2 Each Party shall use its best efforts to cooperate with those audits and to make available to the other Party all information necessary to prove compliance with the obligations of such Party. A Party shall immediately inform the other Party if, in its opinion, an instruction infringes the applicable legislation. In case the audit requires more than four (4) hours of services of the Party which is being audited, the auditing Party will compensate the services provided on a time and material basis (at standard rates applicable at that moment in time).
15.3 Upon the performance of any such audit, the confidentiality obligations of the Parties with respect to Third Parties must be taken into account. Both the Parties and their auditors must keep the information collected in connection with an audit secret and use it exclusively to verify the compliance by the other Party with this DPA and the applicable laws and regulations in respect of data protection.
15.4 The Controller and the Processor and where applicable their representatives, shall cooperate, upon request, with the Supervisory Authority in the performance of its tasks.
16.1 The services to be performed under this Agreement for which the Processor may charge the Controller, will be charged on the basis of the hours worked and the applicable standard hourly rates of the Processor. The Processor will invoice these amounts on a monthly basis.
16.2 Payment by the Controller to the Processor for the services under this Agreement will take place in accordance with the provisions in the Agreement.
17. Notice of default
When the Processor fails to comply with its obligations under this DPA, the Controller shall first send a registered notice of
default (in compliance with article 17.4 “Notices” of the Terms and Conditions). This notice shall clearly mention the defaults that occurred, and, if redress is possible, a proposal of remedial measures and a reasonable term for their implementation.
18.1 Limitations of liability in the Terms and Conditions are applicable to this DPA and all services provided in respect of this DPA.
18.2 The Processor is in any case only liable for the damage caused by Processing if it (a) did not comply with its specific obligations of the GDPR, or (b) acted outside or in violation of the lawful instructions of the Controller.
19. Other provisions
The provisions of the Terms and Conditions concerning changes, completeness of the agreement, applicable law and competent court are applicable to this DPA.