Introduction
By subscribing to the VibeNet Enterprise services (hereinafter referred to as the “Services”) provided by ExoVibe BV and its affiliates (collectively, “VIBENET”) in relation with the VibeNet Enterprise Edition (hereinafter referred to as the “Software”), hosted on VIBENET’s cloud platform (hereinafter referred to as the “Cloud Platform”) or on-premise (hereinafter referred to as “Self-Hosting”), you (hereinafter referred to as the “CUSTOMER”) are agreeing to be bound by the following terms and conditions (hereinafter referred to as the “Agreement”).
1. Term of the Agreement
The duration of this Agreement (hereinafter referred to as the “Term”) shall be specified in writing at the conclusion of this Agreement, beginning on the date specified at the conclusion. It is automatically renewed for an equal Term unless either Party provides written notice of termination minimum 30 days before the end of the Term to the other Party.
2. Definitions
User | Any user account indicated as active, inactive or invited in the Software, with access to creation and/or edition mode. Deactivated, not invited or archived user accounts and accounts used by external people or systems who only have limited access to the Software through the portal facilities (hereinafter referred to as “portal Users”) are not counted as Users. |
App | An App is a specialized group of features available for installation and/or use in the Software. |
VibeNet Partner | A VibeNet Partner is a third-party company or individual, chosen by CUSTOMER, and working with CUSTOMER for their VibeNet related services. The Customer can decide at any time to work with a different VibeNet Partner, or to work with VIBENET directly, subject to prior notice. |
Extra Module | An Extra Module is a directory of source code files, or a set of Python-based customizations created in a database that adds features or changes the standard behavior of the Software. It may be developed by CUSTOMER, by VIBENET, by a VibeNet Partner on behalf of CUSTOMER, or by third parties, but implementations of extra modules are solely done by VIBENET. |
Covered Extra Module | A Covered Extra Module is an Extra Module for which CUSTOMER chooses to pay a maintenance fee in order to get support, upgrades and bug fixing services. |
Bug | Any failure of the Software or of a Covered Extra Module that results in a complete stop, error traceback or security breach, and is not directly caused by a defective installation or configuration, is considered a Bug. Non-compliance with specifications or requirements will be considered as Bugs at the discretion of VIBENET e.g. when the Software does not produce the results or performance it was designed to produce, or when a country-specific feature does not meet legal requirements anymore. |
Covered Versions | Unless specified otherwise, the Services provided under this Agreement are applicable only to the Covered Versions of the Software, which include the 3 most recently released major versions. |
Subscription Plan | A Subscription Plan defines a set of Apps, features and hosting solutions covered by this Agreement, and is defined in writing at the conclusion of this Agreement. |
3. Access to the Software
CUSTOMER can use the Software hosted on the Cloud Platform or choose the Self-Hosting option. The Cloud Platform is hosted and fully managed by VIBENET and accessed remotely by CUSTOMER. With the Self-Hosting option, CUSTOMER instead hosts the Software on computer systems of their choice that are not under the control of VIBENET.
For the duration of this Agreement, VIBENET gives CUSTOMER a non-exclusive, non-transferable license to use (execute, modify and execute after modification) the VibeNet Enterprise Edition software, under the terms set forth in Appendix A: VibeNet Enterprise Edition License.
CUSTOMER agrees to take all necessary measures to guarantee the unmodified execution of the part of the Software that verifies the validity of the VibeNet Enterprise Edition usage and collects statistics for that purpose, including but not limited to the running of an instance, the number of Users, the installed Apps, and the number of lines of code of Covered Extra Modules.
VIBENET commits not to disclose individual or named figures to third parties without the consent of CUSTOMER, and to deal with all collected data in compliance with its official Privacy Notice.
Upon expiration or termination of this Agreement, this license is revoked immediately, and the Customer agrees to stop using the VibeNet Enterprise Edition software and the Cloud Platform. Should CUSTOMER breach the terms of this section, CUSTOMER agrees to pay VIBENET an extra fee equal to 300% of the applicable list price for the actual number of Users.
4. Services
4.1 Bug Fixing Services
For the duration of this Agreement, VIBENET commits to making all reasonable efforts to remedy any Bug of the Software and Covered Extra Modules submitted by CUSTOMER through the appropriate channels e.g. via the App’s ‘Give Feedback’ module, via the website's contact form or via the email address of the support team (support@exovibe.com), or when working with a VibeNet Partner, the channels provided by the partner, and to start handling such submissions within 3 business days.
As soon as the Bug is fixed, an appropriate remedy will be communicated to CUSTOMER. If CUSTOMER is using a Covered Version, they will not be asked to upgrade to a more recent Covered Version of the Software as a remedy to a Bug.
When a Bug is fixed in any Covered Version, VIBENET commits to fixing the Bug in all more recent Covered Versions of the Software.
Both Parties acknowledge that as specified in the license of the Software and in the 7.3 Limitation of Liability section of this Agreement, VIBENET cannot be held liable for Bugs in the Software or in Covered Extra Modules.
4.2 Security Services
Self-Hosting
For the duration of this Agreement, VIBENET commits to sending a security update (hereinafter referred to as the “Security Advisory”) to CUSTOMER for any security Bug that is discovered in the Covered Versions of the Software, excluding Extra Modules, at least 2 weeks before making the Security Advisory public, unless the Bug has already been disclosed publicly by a third party. Security Advisories include a complete description of the Bug, its cause, its possible impacts on the CUSTOMER’s systems, and the corresponding remedy for each Covered Version.
CUSTOMER understands that the Bug and the information in the Security Advisory must be treated as Confidential Information as described in 6.4 Confidentiality during the embargo period prior to the public disclosure.
Cloud Platform
VIBENET commits to apply the security remedies for any security Bug discovered in a version of the Software hosted on the Cloud Platform, on all systems under its control, as soon as the remedy is available, without requiring any manual action of CUSTOMER.
4.3 Upgrade Services
For the duration of this Agreement, CUSTOMER can submit upgrade requests through the appropriate channels e.g. via the App’s ‘Upgrade’ module, via the website's contact form or via the email address of the support team (support@exovibe.com), in order to convert a database of the Software from any Covered Version of the Software to a more recent Covered Version (hereinafter referred to as the “Target Version”).
For the Cloud Platform, upgrade requests can be submitted directly via the App’s ‘Upgrade’ module or from the control panel of the Cloud Platform, and do not require any data upload. For Self-Hosting, upgrade requests must include a copy of CUSTOMER’s database and the associated data.
The Upgrade Service is provided through a platform in order to allow CUSTOMER to perform unattended upgrades once a previous version of the CUSTOMER’s database has been successfully prepared for upgrade for a Covered Version.
The Upgrade Service is limited to the technical conversion and adaptation of the CUSTOMER’s database to make it compatible with the Target Version, the correction of any Bug directly caused by the upgrade operation and not normally occurring in the Target Version, and the conversion of the source code and data of Covered Extra Modules for the Target Version.
It is the responsibility of CUSTOMER to verify and validate the upgraded database in order to detect Bugs, to analyze the impact of changes and new features implemented in the Target Version, and to convert and adapt for the Target Version any third-party extensions of the Software that were installed in the database before the upgrade e.g. non-converted Extra Modules. CUSTOMER may submit multiple upgrade requests for a database, until an acceptable result is achieved.
4.4 Cloud Hosting Services
For the duration of this Agreement, when CUSTOMER chooses to use the Cloud Platform, VIBENET commits to providing at least the following services:
- Choice between multiple hosting regions (minimum 3) e.g. Europe, Americas, etc.;
- Hosting in Tier-III data centers or equivalent, with 99.9% network uptime;
- Grade A SSL (HTTPS) Encryption of communication;
- Fully automated, verified backups and, if requested, replicated/distributed in multiple regions;
- Disaster Recovery Plan that is tested regularly.
The details of the Cloud Hosting Services are described on the Service Level Agreement webpage.
4.5 Support Services
Scope
For the duration of this Agreement, CUSTOMER may open an unlimited number of support tickets free of charge, exclusively for questions regarding Bugs, see 4.1 Bug Fixing Services, or guidance with respect to the use of the standard features of the Software and Covered Extra Modules.
Other assistance requests, such as questions related to training, consultancy, development or customizations may be covered through the purchase of a separate service agreement. In case it’s not clear if a request is covered by this Agreement, the decision is at the discretion of VIBENET.
Availability
Tickets can be submitted via the App’s ‘Give Feedback’ module, via the website's contact form or via the email address of the support team (support@exovibe.com), or when working with a VibeNet Partner, the channels provided by the partner, subject to local opening hours.
4.6 VibeNet Partner
For bug fixes, support and upgrade services, CUSTOMER may either work with a VibeNet Partner as the single point of contact, or work with VIBENET directly.
If CUSTOMER decides to work with a VibeNet Partner, VIBENET will subcontract services related to the Covered Extra Modules to the VibeNet Partner, who becomes the single point of contact of CUSTOMER. The VibeNet Partner may contact VIBENET on behalf of CUSTOMER for second-level assistance with regard to standard features of the Software.
If CUSTOMER decides to work with VIBENET directly, services related to Covered Extra Modules are provided, if and only if, CUSTOMER is hosted on the VibeNet Cloud Platform.
5. Charges and Fees
5.1 Standard Charges
The standard charges for the Software subscription and the Services are based on the number of Users and the Subscription Plan used by CUSTOMER and specified in writing at the conclusion of the Agreement.
When during the Term, CUSTOMER has more Users or uses features that require another Subscription Plan than specified at the time of conclusion of this Agreement, CUSTOMER agrees to pay an extra fee equivalent to the applicable list price, at the time of the deviation from the specified number of Users or Subscription Plan, for the additional Users or the required Subscription Plan, for the remainder of the Term.
5.2 Covered Extra Module Charges
In addition, services for Covered Extra Modules are charged based on the number of lines of code in these modules. When CUSTOMER opts for the maintenance of Covered Extra Modules, the charge is a monthly fee per 100 lines of code, rounded up to the next hundred, as specified in writing at the conclusion of the Agreement. Lines of code will be counted with tokei in the Software and include all text lines in the source code of those modules, regardless of the programming language (Python, JavaScript, XML, etc.), excluding blank lines, comment lines and files that are not loaded when installing or executing the Software.
When CUSTOMER requests an upgrade for each Covered Extra Module that has not been covered by a maintenance fee, VIBENET may charge a one-time extra fee for each missing month of coverage.
5.3 Renewal Charges
Upon renewal as covered in section 1. Term of the Agreement, if the charges applied during the previous Term are lower than the most current applicable list price, these charges will increase by up to 15%.
5.4 Taxes
All fees and charges are exclusive of all applicable federal, provincial, state, local or other governmental taxes, fees, or charges (hereinafter collectively referred to as “Taxes”). CUSTOMER is responsible for paying all Taxes associated with purchases made by CUSTOMER under this Agreement, except when VIBENET is legally obliged to pay or collect Taxes for which CUSTOMER is responsible.
6. Conditions of Services
6.1 Customer Obligations
CUSTOMER agrees to:
- pay VIBENET any applicable charges for the Services of the present Agreement, in accordance with the payment conditions specified at the signature of this contract;
- immediately notify VIBENET when their actual number of Users exceeds the number specified at the conclusion of the Agreement, and in this event, pay the applicable additional fee as described in section 5.1 Standard Charges;
- take all measures necessary to guarantee the unmodified execution of the part of the Software that verifies the validity of the VibeNet Enterprise Edition usage, as described in 3. Access to the Software;
- appoint 1 dedicated customer contact person for the entire duration of the Agreement;
- provide written notice to VIBENET 30 days before changing their single point of contact to work with another VibeNet Partner, or to work with VIBENET directly.
When CUSTOMER chooses to use the Cloud Platform, CUSTOMER further agrees to:
- take all reasonable measures to keep their user accounts secure, including by choosing a strong password and not sharing it with anyone else;
- make reasonable use of the Hosting Services, to the exclusion of any illegal or abusive activities, and strictly observe the rules outlined in the Acceptable Use Policy.
When CUSTOMER chooses the Self-Hosting option, CUSTOMER further agrees to:
- take all reasonable measures to protect CUSTOMER’s files and databases and to ensure CUSTOMER’s data is safe and secure, acknowledging that VIBENET cannot be held liable for any data loss;
- grant VIBENET the necessary access to verify the validity of the Software usage upon request e.g. if the automatic validation is found to be inoperant for the CUSTOMER.
6.2 No Soliciting or Hiring
Except where the other Party gives its consent in writing, each Party, its affiliates and representatives agree not to solicit or offer employment to any employee of the other Party who is involved in performing or using the Services under this Agreement, for the duration of the Agreement and for a period of 12 months from the date of termination or expiration of this Agreement. In case of any breach of the conditions of this section that leads to the termination of said employee toward that end, the breaching Party agrees to pay the other Party an amount of EUR (€) 30.000,00 (thirty thousand euros).
6.3 Publicity
Except where notified otherwise in writing, each Party grants the other a non-transferable, non-exclusive, royalty free, worldwide license to reproduce and display the other Party’s name, logos and trademarks, solely for the purpose of referring to the other Party as a customer or supplier, on websites, press releases and other marketing materials.
6.4 Confidentiality
Definition of “Confidential Information”:
All information disclosed by a party (hereinafter referred to as the “Disclosing Party”) to the other party (hereinafter referred to as the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. In particular any information related to the business, affairs, products, developments, trade secrets, know-how, personnel, customers and suppliers of either Party should be regarded as confidential.
For all Confidential Information received during the Term of this Agreement, the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own similar Confidential Information, but not less than reasonable care.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure, to the extent permitted by law.
6.5 Data Protection
Definitions
“Personal Data”, “Controller”, “Processing” take the same meanings as
in the Regulation (EU) 2016/679 and the Directive 2002/58/EC, and any
regulation or legislation that amends or replaces them (hereafter referred to
as “Data Protection Legislation”).
Processing of Personal Data
The Parties acknowledge that CUSTOMER’s database may contain Personal Data, for which CUSTOMER is the Controller. This data will be processed by VIBENET when CUSTOMER instructs so, by using any of the Services that require a database e.g. the Cloud Hosting Services or the Database Upgrade Service, or if CUSTOMER transfers their database or a part of their database to VIBENET for any reason pertaining to this Agreement.
This data processing will be performed in conformance with Data Protection Legislation. In particular, VIBENET commits to:
- only process the Personal Data when and as instructed by CUSTOMER, and for the purpose of performing one of the Services under this Agreement, unless required by law to do so, in which case VIBENET will provide prior notice to CUSTOMER, unless the law forbids it;
- ensure that all persons within VIBENET authorized to process the Personal Data have committed themselves to confidentiality;
- implement and maintain appropriate technical and organizational measures to protect the Personal Data against unauthorized or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure;
- forward promptly to CUSTOMER any Data Protection request that was submitted to VIBENET with regard to the CUSTOMER’s database;
- notify CUSTOMER promptly upon becoming aware of and confirming any accidental, unauthorized, or unlawful processing of, disclosure of, or access to the Personal Data;
- notify CUSTOMER if the processing instructions infringe applicable Data Protection Legislation, in the opinion of VIBENET;
- make available to CUSTOMER all information necessary to demonstrate compliance with the Data Protection Legislation, allow for and contribute reasonably to audits, including inspections, conducted or mandated by CUSTOMER;
- permanently delete all copies of CUSTOMER’s database in possession of VIBENET, or return such data, at CUSTOMER’s choice, upon termination of this Agreement, subject to the delays specified in VIBENET’s Privacy Notice.
With regard to points d. to f., CUSTOMER agrees to provide VIBENET with accurate contact information at all times, necessary to notify CUSTOMER’s Data Protection responsible.
Subprocessors
CUSTOMER acknowledges, and agrees, that in order to provide the Services, VIBENET may use third-party service providers (hereinafter referred to as “Subprocessors”) to process Personal Data. VIBENET commits to only using Subprocessors in compliance with Data Protection Legislation. This use will be covered by a contract between VIBENET and the Subprocessor that provides guarantees to that effect. VIBENET’s Privacy Notice provides up-to-date information regarding the names and purposes of Subprocessors currently in use by VIBENET for the execution of the Services.
6.6 Termination
In the event that either Party fails to fulfil any of its obligations arising herein, and if such a breach has not been remedied within 30 calendar days from the written notice of such breach, this Agreement may be terminated immediately by the non-breaching Party.
Further, VIBENET may terminate the Agreement immediately in the event CUSTOMER fails to pay the applicable fees for the Services within 21 days following the due date specified on the corresponding invoice, and after minimum 3 reminders.
Surviving Provisions: The sections 6.4 Confidentiality, 7.2 Disclaimers, 7.3 Limitation of Liability and 8. General Provisions will survive any termination or expiration of this Agreement.
7. Warranty, Disclaimer and Liability
7.1 Warranties
VIBENET owns the copyright and confirms that all the software libraries required to use the Software are available under a license compatible with the license of the Software.
For the duration of this Agreement, VIBENET commits to using commercially reasonable efforts to execute the Services in accordance with the generally accepted industry standards provided that:
- CUSTOMER’s computing systems are in good operational order and, for Self-Hosting, that the Software is installed in a suitable operating environment;
- CUSTOMER provides adequate troubleshooting information and, for Self-Hosting, any access that VIBENET may need to identify, reproduce and address problems;
- all amounts due to VIBENET have been paid.
CUSTOMER’s sole and exclusive remedy and VIBENET’s only obligation for any breach of this warranty is for VIBENET to resume the execution of the Services at no additional charge.
7.2 Disclaimers
Except as expressly provided herein, neither Party makes any warranty of any kind, whether express, implied, statutory or otherwise, and each Party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law. VIBENET does not warrant that the Software complies with any local or international law or regulations.
7.3 Limitation of Liability
To the maximum extent permitted by law, the aggregate liability of each Party together with its affiliates arising out of or related to this Agreement will not exceed 50% of the total amount paid by CUSTOMER under this Agreement during the 12 months immediately preceding the date of the event giving rise to such claim. Multiple claims shall not enlarge this limitation.
In no event will either Party or its affiliates be liable for any indirect, special, exemplary, incidental or consequential damages of any kind, including but not limited to loss of revenue, profits, savings, loss of business or other financial loss, costs of standstill or delay, lost or corrupted data, arising out of or in connection with this Agreement regardless of the form of action, whether in contract, tort or otherwise, even if a Party or its affiliates have been advised of the possibility of such damages, or if a Party or its affiliates’ remedy otherwise fails in its essential purpose.
7.4 Force Majeure
Neither Party shall be liable to the other Party for the delay in any performance or failure to render any performance under this Agreement when such failure or delay finds its cause or causes in a case of force majeure, such as governmental regulations, fire, strike, war, flood, accident, epidemic, embargo, appropriation of plant or product in whole or in part by any government or public authority, or any other cause or causes, whether of similar or different nature, beyond the reasonable control of such Party as long as such cause or causes exist.
8. General Provisions
8.1 Governing Law
This Agreement and all Customer orders will be subject to Belgian law. All disputes arising out of or in connection with this Agreement or any customer order, for which no amicable settlement can be found, will be subject to the exclusive jurisdiction of the Courts of Belgium in Brussels.
8.2 Severability
In case any one or more of the provisions of this Agreement or any application thereof shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement and any application thereof shall be in no way thereby affected or impaired. Both Parties undertake to replace any invalid, illegal or unenforceable provision of this Agreement with a valid provision having the same effects and objectives.