End User License Agreement & General sales conditions
End User License Agreement & General sales conditons Odyssee Mobile nv
- Odyssee Mobile nv, with registered office at Stalingradlaan 100, Brussels (1000), Belgium, (hereinafter referred to as “Odyssee”);
- The Company who subscribes to the Service by using it (hereinafter referred to as “End User”);
a) The Service Agreement relates to the Service provided by ODYSSEE related to the software developed by ODYSSEE as set forth in Annex 4 (hereafter “the Software”). This Agreement will enter into force as soon as it is signed.
It is agreed as follows:
Clause 1 – Definitions
The following definitions shall have the following meaning in this Service Agreement:
“Service”: the term Service comprises the Odyssee online software platform, including the offline software components described in Annex 4, identified by Odyssee as part of the Service and put at the End User’s disposal by ODYSSEE under the Conditions set forth herein.
“Use”: as part of the Service, Odyssee puts the use of the Software at disposal of the End User.
“End User”: end user of the Software, or a part thereof, for Use in its enterprise by each and any User (as defined hereafter) after acceptance of the relevant terms of the Service Agreement.
“User”: each and any person and/or employee that is in one way or another part of the End User’s organization or enterprise or who falls under the authority and responsibility of or is authorized by the End User, after acceptance of the relevant clauses of the Service Agreement.
Clause 2 – The Service
- Under the present agreement, ODYSSEE grants a non transferable, non exclusive right to the End User to use the Service worldwide in accordance with the terms and conditions provided herein for Use in its enterprise. All rights that are not expressly granted pursuant to this Service Agreement belong exclusively to Odyssee. If the End User is or becomes a direct competitor of Odyssee it may not use the Service without Odyssee’s express prior written consent. In addition, the End User shall not use the Service to perform functionalities, monitoring, performance, etc. in view of benchmarking or competing activities.
- The End User shall not, completely or partially, use, print, copy, modify, translate or change the Service, safe as expressly provided in the present conditions or admitted by compulsory legal provisions. The End User shall not convert the software that is part of the Service to source code, nor decompile it or analyze it or disassemble or “reverse-engineer” it and any such action or attempted action shall constitute a severe breach of the Service, unless it is expressly authorized by a compulsory legal provision. The applicability of article 6, §1 of the law of June 30, 1994 is expressly excluded.
- The End User shall not use the Service (i) to send messages that can be considered as SPAM or other copies or undesired messages violating the applicable legal provisions, (ii) deliberately stock or send material of an obscene, threatening or illegal nature, including material harming children or violating the privacy of third parties, (iii) deliberately stock or send material containing viruses, worms, Trojan horses or any other harmful computer program or code, file, script or agent, (iv) deliberately interrupt or disturb the integrity and functioning of this Service, including the data that the Service can contain, or (v) attempt to gain unauthorized access to the Service or the related systems or networks.
- The End User is personally and fully responsible for the Use of the Service. The End User authorizes ODYSSEE to mention that he is an End User of the Service and of the Service and the version thereof he uses.
- The database developed by ODYSSEE which comprises End User data can only be accessed by the End User by using the application interface or by requesting the ODYSSEE web services.
Clause 3 – Protection of the data of the End Users
- ODYSSEE uses the most advanced technology available at today’s date for internet security. If the End User uses the programs subject to the Service via an internet browser supporting SSL, a Secure Socket Layer (SSL) technology will authentify his access and completely encrypt the data. This guarantees the End User that his data are safe, secured and only accessible for registered Users that are part of his organization.
- ODYSSEE provides every User of the End User’s organization a unique user’s login and password that must be used each time to log in the programs given in Service.
- ODYSSEE only uses a “cookie” to keep encrypted authentification information during a session. This “cookie” does not contain a user’s login or password of the User. ODYSSEE does not use the “cookies” to keep other confidential user’s data.
- The programs given in Service are hosted in secured Class A datacenter surroundings, and the best technology is used to prevent outsiders from accessing or interfering with the End User’s data.
Clause 4 – End Users information and data
- ODYSSEE is or becomes in no case owner of the data, information or documents put on the software platform by the End User during the Use of the Service. The End User, and not Odyssee, is sole responsible for the accuracy of its own (customer)data, the quality, integrity, legality, reliability and intellectual property or user’s rights thereon or thereof. ODYSSEE is in no case responsible for the removal, modification, adaptation, correction, destruction of these (customer) data, nor for the loss thereof or the impossibility to save (customer) data on/via the Service. In case of termination of this agreement for fault of the End User, including the failure to pay the Service, the End User’s right of access to and Use of the Service will immediately terminate and ODYSSEE shall in no event be obliged to conserve or transfer the End User’s data saved on/via the Service.
Clause 5 – Term
- This Service Agreement commences as from the registration on the Service for the initially convened period (yearly or monthly). The Service Agreement will be tacitly renewed for successive periods unless the End User notifies ODYSSEE in writing by registered mail that it wishes to terminate this Service Agreement with at least 45 days termination notice prior to the beginning of a new contract period for yearly licenses and 20 days termination notice prior to the beginning of a new contract period for monthly licenses. At all times during the course of the Agreement and till 2 weeks after termination of this Agreement as mentioned in this paragraph, Odyssee will provide the web services to End User that allow End User to retrieve his data.
- Odyssee may terminate the Use of the Service forthwith and without compensation to the End User if the End User becomes insolvent, is declared bankrupt or proposes a concordat, stops its activities or is liquidated. Odyssee may also terminate the Service Agreement without compensation to the End User if the End User transfers or attempts to transfer software that is put at its disposal pursuant to a service agreement or other agreement with ODYSSEE without ODYSSEE’s prior written approval. Within two (2) weeks following the end of the Use of the Service in accordance with this Article, the End User will confirm in writing to ODYSSEE that the original and all partial or full copies in any and all forms, of the software, including of the offline components that were put at his disposal, have been destroyed and/or removed from all and any IT carriers, but excluding the backup carriers.
Clause 6 – Protection and Security of the Service
- The End User recognizes that the Service is confidential and protected by ODYSSEE’s intellectual property rights. The present Service Agreement is not a sales agreement and does not confer any ownership right to the End User. The programs and software that are the object/part of the Service, including all intellectual property rights thereon, suggestions, ideas, improvements, feedback, recommendations and all other information reported by the End User or a third Party or questions to ODYSSEE relating to or in connection with the Service only belong to ODYSSEE, except as stated in Article 7.
- The End User shall keep the programs and software that are object/part of the Service confidential and shall not disclose it to third parties except for the Use thereof towards customers and colleagues.
- The End User shall
- put the programs and software that are the object/part of the Service only at the disposal of its Users that need to have access to it to use the programs and software that are the object/part of the Service and that have been informed of ODYSSEE’s property rights on the programs and software that are the object/part of the Service;
- assure that these Users treat the programs and software that are the object/part of the Service confidentially;
- avoid the divulgation or any other form of dissemination of the programs and software that are the object/part of the Service to other persons than those mentioned in (i);
- not allow anybody to make the programs and software that are the object/part of the Service public nor put it at the disposal of
- third parties, and/or
- in no case any department or enterprise of the End User involved in the development or sale of programs, applications or products that are competing with the programs and software that are the object/part of the Service; and
- assure that all persons or entities with any responsibility with respect to the hardware on which the programs and software that are object/part of the Service is installed, including but not limited to the responsible system manager, are aware of the provisions of this article and have undertaken the same confidentially obligation with respect to the programs and software that are the object/part of the Service as the one provided in this paragraph. The End User’s obligations provided in this article apply both during the Service Agreement and for maximum 12 months after the termination thereof.
Clause 7 – Property right
- Rights on and title to the programs and Software that are the object/part of the Service will at all times remain with and be vested in ODYSSEE.
Clause 8 – Remuneration and payment modalities
- The remuneration for the use of the Service will be invoiced in advance according to the chosen license period (yearly/monthly), and payment is to be made at the due date of invoice without discount or compensation, into ODYSSEE’s bank account in Belgium, in accordance with the number of Users that will use the Service, as agreed in accordance with the applicable User’s prices as per Annex 3. An order accepted by Odyssee cannot be revoked and hence results in payment obligations of the related remuneration. Each renewal of the Service Agreement occurs at the conditions applicable to the Service Agreement at the time of the renewal, unless ODYSSEE has notified the End User at least 60 days prior to the renewal of a modification of the applicable conditions, including a price modification. Such notification can occur per e-mail. Notwithstanding an initially convened period mentioned in Annex 3 longer than 12 months, the prices can be adjusted in accordance with the Belgian health index (or a comparable index in the event the Belgian health index will no longer be published) at the end of each 12 months period. The End User shall be liable to pay for all ordered User’s logins, independent of whether the Users are active or not as set forth in Annex 3. During the Service Agreement, the End User can request additional or less User’s logins, and substitution of named personnel of End User by other named personnel shall be considered a zero license cost.
- The following shall apply to additional User’s logins :
- extra User’s logins shall end at the same time as the logins under the existing ongoing Service Agreement,
- the User’s price for the additional Users is the price applicable at the time of the order for the additional users and
- for User’s logins requested during a calendar month, the full month shall be payable.
- The following shall apply to reduction of Users’ logins: the reduction of Users logins will be taken into account at the time of the renewal of the Service Agreement, given the fact this reduction has been communicated 45 days before renewal of yearly licenses and 20 days before renewal of monthly licenses which might lead to price changes as set forth in Annex 3. All price agreements are confidential and the End User undertakes to refrain from divulging them to third parties.
- All invoices of ODYSSEE, other than those for the use of the Service, are payable within 15 Days as per Annex 3, without discount or compensation, into ODYSSEE’s bank account in Belgium. In the event of late payment of any invoice of Odyssee which is not remedied within 20 business days following receipt by End User of a written reminder, ODYSSEE shall be entitled ipso jure and without further notice of default, to terminate the use of the Service. After termination of the use, ODYSSEE will keep the data of the End User saved on/via the Service for 20 business days, in case the End User reactivates the Service. If no reactivation takes place, ODYSSEE will continue, till 2 weeks after these 20 business days, to provide the web services to End User that allow End User to retrieve his data, as set forth in Article 5. After these 2 weeks, ODYSSEE shall in no event be obliged to conserve or transfer the End User’s data saved on/via the Service.
Clause 9 – Default
- If the End User fails to respect its obligations under or the provisions of the present agreement or of the annexes hereof or of an order accepted by ODYSSEE, ODYSSEE shall give prior notice of default to the End User with the request to remedy as yet the failure and the End User must remedy the failure within 10 days following the notice of default. Such default may be notified by email. If the End User fails to remedy after such 10-day period, ODYSSEE shall be entitled to terminate the Use of the Service forthwith, ipso iure, without further notice of default and without any reimbursement or compensation by ODYSSEE and without prejudice of ODYSSEE’s right to the entire compensation of all its damages and/or of all and any or the remedies available to ODYSSEE pursuant to the law, the present agreement, its annexes or the order.
Clause 10 – Stocking and Transfer data
- Each version of the Service has a specific determined data storage capacity and a monthly data transfer quotum that are included in the User’s price of the Service. If the required storage capacity or the monthly data transfer as indicated in Annex 3 is more important than the quota included in the Service, the excess will be charged to the User at the applicable prices at such time. Insofar as possible, ODYSSEE will endeavor to warn the End User if it reaches 90 % of its allocated storage capacity or its monthly data transfer quota. However, the absence of such warning does not affect the End User’s responsibility and liability for all extra used storage space or data transfer. ODYSSEE has the discretionary right to adapt the conditions relating to the allocated storage capacity or data transfer from time to time.
Clause 11 – Guarantee
- ODYSSEE guarantees that all the programs developed by ODYSSEE and to which the Service relate are, at the time of delivery to the End User, the most recent officially released versions of such programs. ODYSSEE does not guarantee that the functions of the programs will satisfy the requirements of the End User, nor that the programs will operate in accordance with the End User’s expectations. Prior to ordering the Service, the End User has studied the programs and their operation and characteristics and accepts full responsibility for the choice of the programs to which the Service relates, for the Use thereof and for the results obtained therewith. Except as expressly provided in the present agreement, ODYSSEE does not give any guarantee of any kind, express or implied and including with respect to the suitability for a specific purpose.
- The End User undertakes to notify immediately to ODYSSEE possible faults or problems.
- If the programs with respect to offline software components to which the Service relates do not correspond to the aforementioned description, the End User’s sole remedy and ODYSSEE only liability will be to replace such programs to which the Service relates by the last officially released version of such program.
- Unless a separate maintenance agreement concluded with ODYSSEE provides for the specific adjustment of the offline software components to certain circumstances, ODYSSEE will not be liable for any malfunctioning or faultive functioning of the programs to which the Service relates caused by the hardware in which it is installed, including without limitation, a modification of the basic software (system software) with which the programs to which the Service relates operate, or by the addition or operation of other computer programs on this hardware.
Clause 12 – Intellectual Property Rights
- Under the following conditions ODYSSEE shall at its own expense take on the End User’s defense against every claim of a third party based upon the allegation that the programs developed by ODYSSEE to which the Service relates and delivered in accordance with the present Conditions would infringe a European patent, copyright, trademark or trade secret and ODYSSEE shall hold the End User harmless for any compensation it would have to pay to third parties following a final judicial decision : (i) the End User must have notified Odyssee immediately in writing of each claim related to infringements of a European patent, copyright, trademark or trade secret and must transmit to Odyssee all available information regarding the claim and related facts and all other useful information for the defense, (ii) the End User must give Odyssee full and exclusive control with respect to the claim, the procedure, defense and/or possible friendly settlement, and (iii) the End User must fully cooperate with Odyssee for all matters related to the defense, the trial and/or the friendly settlement.
- If the Use of the programs to which the Service relates is challenged because it would violate a patent, copyright, trademark or trade secret, or is in ODYSSEE’s discretionary opinion likely to be challenged on such basis, ODYSSEE shall be entitled, in his discretionary choice and at its own expense, to:
- obtain for the End User the right to use the programs to which the Service relates; or
- replace the programs to which the Service relates by similar programs that do not constitute an infringement; or
- modify the programs to which the Service relates in such way that they are equivalent but do not longer constitute an infringement; or
- terminate the agreement and reimburse the compensation paid by the End User for the Use of the Service, pro rata the remaining period.
- ODYSSEE has the same rights and choices if the infringement would be determined by a judicial decision.
Clause 13 – Maintenance, assistance and support for the programs to which the Service relates
- ODYSSEE shall provide maintenance, assistance and support for the Serviced Programs in accordance with the version of the Serviced Software chosen by the End User as specified in Annex 2.
Clause 14 – Transfer or modification