General Terms and Conditions

Date of last revision: October 2022
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1 Definitions

1.1 “Agreement” means these Revend General Terms & Conditions, the Order Form and the Data Processing Agreement;
1.2 “Customer Data” means all information, materials and data provided or submitted by the Customer to Revend in the course of utilizing the Software;
1.3 “Device” means any physical or virtual environment, node, server, computer, or other digital workstation, electronic, cellular or smartphone, handheld computer, tablet PC, or computing equipment that runs, accesses, or utilizes the services of the Software.
1.4 “Documentation” means the user guides and manuals for the installation and use of the Software, whether provided in electronic, physical media, hard copy, or other form, and which may be modified by Revend from time to time in its sole discretion.
1.5 “End User Data” means the user data relating to the End User’s use of the Software: (i) Personal Data consisting of login details, IP address, e-mail address and (ii) any relevant technical user statistics (such as, without limitation, UUID of installation, wait times, browser version, location, library version, URL, operation system, screen resolution, time stamp, application version and the feature/section/subsection of the Software used by the End User).
1.6 “Hot Fix” means unreleased Software which has not been processed through a full QA cycle and which is designed to correct a specific defect in the Software.
1.7 “Intellectual Property Rights” means any and all now known or hereafter existing (i) patents, trade marks, service marks, trade secrets, rights associated with works of authorship, including copyrights and moral rights, design rights, know how, trade and business names, domain names, database rights, rental and lending rights and any other intellectual or industrial property or similar right throughout the world (whether registered or unregistered) and (ii) registrations, any applications for registration, renewals, extensions, continuations, divisions, reissues or improvements relating to any of these rights and the right to apply for, maintain and enforce any of the preceding items, in each case in any jurisdiction throughout the world.
1.8 “License Certificate” means a document included with the Software that may provide, among other things, specific information regarding capacity, name of Customer and the Customer Sites where the Software is licensed for use, Device identification and Named Users.
1.9 “License Fee” means the periodic license fee as specified in the Order Form payable by the Customer in consideration for the Customer’s use of the Software.
1.10 “License File” means a component of the Software that enables one or more components of the Software (for example, authorization keys) and that may also specify, among other things, the location of the designated Device(s) and the Customer. The License File also specifies the license parameters for the Software. Certain components of the Software may be licensed hereunder without a License File. For the avoidance of doubt, it is specified that such components are also licensed under the provisions of this EULA.
1.11 “Named User” means an individual person within the Customer’s organization who is registered and granted access by Customer in accordance with this EULA.
1.12 “Order Form” means the order form by which particular Software is ordered by or for Customer and by which Revend is advised of the location of the designated Device(s) and/or (ii) any order confirmation that may be issued by Revend acknowledging receipt or acceptance of, an order by Customer for particular Software. For the avoidance of doubt, this Order Form may be included in the Agreement.
1.13 “Personal Data” means any information relating to an identified or identifiable natural person as determined by the applicable data protection legislation.
1.14 “Pre-Production Release” means Software which has not completed Revend’s formal release requirements and includes beta software and Hot Fixes.
1.15 “Proof of Value License” means the license granted to the Customer in exchange for joining Revend’s first cohort of users.
1.16 “Replaced License” means a License File and/or License Certificate that has been replaced or is superseded by another License File and/or License Certificate for the purpose of direct substitution.
1.17 “SLA” means the service level agreement as published by Revend from time to time.
1.18 “Software” means the Revend software provided by Revend as specified in the Order Form in object code (machine-readable) form only for which Customer is granted a license hereunder, the Documentation relating thereto and any Updates thereof.
1.19 “Term” means the term as described in the Order Form or, if applicable, this Agreement.
1.20 “Update” means: (i) supplemental programs for the Software, if and when developed and distributed by Revend in its sole discretion, that may contain bug fixes or improved program functions for the Software; and (ii) a subsequent release of the Software, if and when developed by Revend in its sole discretion, which Revend generally makes available for under the license. An Update shall not include options or future software products that are licensed by Revend under a separate license.

2 Applicability

This Agreement constitutes the entire agreement between the Parties and annuls and replaces all previous written proposals and agreements relating to the subject hereof, with the exclusion of any confidentiality agreement concluded between the Parties. The present Agreement replaces and excludes any terms and conditions of either Party unless otherwise agreed upon in writing by the Parties.
In the event of conflict or difference between the terms of this Agreement and the Order Form, the Order Form shall prevail.
In the event of conflict or difference between the terms of this Agreement and a confidentiality agreement concluded between the Parties, the confidentiality agreement shall prevail.

3 Cancellations and adjustments

Cancellation, adjustments or adaptations by the Customer are not possible, unless with the explicit and written consent of Revend thereto.  In case Revend accepts the cancellation of an order, the Customer shall pay a compensation to Revend equal to all outstanding invoices and 50% of the amounts, which have not yet been invoiced by Revend, notwithstanding the right of Revend to claim higher damages.  In case Revend accepts an adjustment or adaptation, the Customer shall compensate Revend for all costs incurred with regard to this adjustment or adaptation.
Suspension of the execution of the Agreement on behalf of the Customer is not possible, unless with the explicit and written consent of Revend.  The Customer shall notify Revend in writing and at least 3 months in advance of its request to suspend the execution of the Agreement.  In case Revend accepts the suspension, the Customer shall pay a compensation to Revend equal to 50% of the total amount, which was normally due by the Customer if the execution of the Agreement was not suspended.
The restart of the execution of the Agreement is only possible with the explicit and written consent of Revend thereto. The Customer shall notify Revend in writing and at least one month in advance of its intention to restart the execution of the Agreement.  
If the suspension remains for a period longer than 4 months, Revend reserves the right to terminate the Agreement without prior notice to the Customer or recourse to a court, notwithstanding the right of Revend to claim additional compensation.

4 Prices, invoices and payment

Revend shall invoice the Customer in accordance with the prices as set out in the Order Form.  The prices in the Order Form are only applicable for this Project and do not indicate the prices for other, even similar projects.
All prices are in Euro and exclusive of VAT.  Prices for packaging, transport, duties, charges, taxes and other costs are not included and will be borne by the Customer, unless explicitly stated otherwise in writing.
All amounts due will be invoiced yearly, at the start of the year of delivery.  All invoices are payable within thirty (30) days as of the date of invoice.
If Revend does not receive the payment of the Customer at the due date, the following shall apply automatically and without formal notice:

- A late payment interest of 10 % per year shall be payable on the outstanding balance;

- The Customer shall pay a fixed indemnity of 10 % of the invoice amount, with a minimum of € 3000, notwithstanding the right of Revend to prove higher damages;

- The Customer shall be held to pay all judicial and extrajudicial collection costs, including but not limited to costs for lawyers and other advisors;

- All amounts due under this Agreement shall become immediately payable, regardless of the payment terms agreed;

- Revend is entitled to suspend the execution of this Agreement or to terminate this Agreement with immediate effect, without prior notice;

- Revend is entitled to withdraw all granted Software licenses.

Partial payment will be charged in accordance with the following order: (1) collection costs; (2) indemnity; (3) interests; (4) principal sums.
Revend and the Customer shall compensate and set off all current and future debts towards each other, in accordance with the Belgian law of 15 december 2004 on the financial securities.  This means that in the permanent relation between Revend and the Customer only the largest net debt shall remain after the aforementioned automatic set off.
The Customer engages to fulfill and pay all of its VAT and other fiscal obligations and debts.  If Revend is held liable for the non compliance of the Customer with its obligations in this regard, the Customer shall, fully and at its own cost, defend and safeguard Revend, notwithstanding the right of Revend to recover the incurred damages from the Customer.

5 Confidentiality

Each party agrees that during the Term and for a period of ten (10) years after its termination for any reason whatsoever, all code, inventions, know-how, business, technical and financial information or any other confidential or property information it obtains (as the “Receiving Party”) from the other party (as the “Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, Documentation or technical information provided by or on behalf of Revend (or its agents), performance information relating to the Software, and the terms of this Agreement shall be deemed Confidential Information of Revend without any marking or further designation necessary. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information to any third parties except to its employees, officers, directors, contractors and affiliates that have a reasonable demonstrable legitimate need to know such information in light of the Receiving Party’s rights and obligations hereunder, subject to each of them committing in writing to adequate confidentiality obligations prior to any such disclosure and subject to any other restrictions set forth herein. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (d) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable in addition to whatever other remedies it might have at law. Upon termination of this Agreement for any reason whatsoever, or the Disclosing Party’s earlier written request, the Receiving Party shall promptly destroy or return to the Disclosing Party all Confidential Information of the Disclosing Party in its possession or under its control and shall certify in writing its compliance with the foregoing
This obligation of confidentiality continues, even after termination of this Agreement, until all Confidential Information has fallen in the public domain, through no act or omission of the receiving Party.
In the event the receiving Party breaches this Agreement, the Receiving Party will indemnify the disclosing Party against and hold it harmless from any losses, damages and expenses (including, without limitation, court costs and reasonable attorney’s fees), suffered by the Disclosing Party as a result of such a breach.
The unauthorized disclosure or use of any Confidential Information may cause immediate and irreparable injury to the Disclosing Party which could not be adequately compensated by monetary damages. Each party therefore authorizes the other party to seek any temporary or permanent injunctive relief necessary to prevent such disclosure or use, or threat of disclosure or use.
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6 Intellectual Property Rights

All data received by Revend in connection with this Agreement are and will remain the sole and exclusive property of the Customer.  This Agreement explicitly does not provide for any transfer of any rights with regard to this data.  Upon termination of this Agreement, all stored personal data shall be deleted or returned as set out in the Parties’ Data Processing Agreement. Data, as mentioned under this paragraph, shall fall within the scope of “Confidential Information” as set out in article 5.
The execution of this Agreement does not entail a transfer of any intellectual, industrial or other property rights from Revend to the Customer.  The fees paid by the Customer do not include any fee for the transfer of such rights. Subject to these restrictions, Customer is entitled to make one (1) copy of the Software solely for backup or archival purposes, and is entitled to make a reasonable number of copies of the Documentation for use by Customer in connection with its authorized use of the Software. All Intellectual Property Rights notices will be reproduced in such copies.
All intellectual property rights to the Software, documentation, knowhow or other information used or created by Revend, its employees, consultants or subcontractors in the execution of this Agreement remains the sole property of Revend or its licensors.  
Revend cannot be held liable for any breach of other intellectual property rights, due to the use of the Software and/or other services provided by Revend.  The Customer recognizes and guarantees that Revend does not breach intellectual property rights or other rights of the Customer or any third party.
If a claim is made by a third party based on the allegation that the Software and/or services delivered by Revend are in breach of any intellectual property rights of such third party, or the use of such Software and/or services is illegal in any other way, the Customer (1) shall promptly notify Revend in writing of such claim; (2) will enable Revend to conduct the defense against such claim in its full discretion; and (3) will fully support Revend in its defense.
The costs of such proceedings will be borne by the Customer.

7 Warranty

7.1 Limited Warranty
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During the Term, Revend shall make all commercially reasonable efforts to remedy any errors in the Software that have a material impact on the functioning of the Software in accordance with the Documentation (“Defect”), within a reasonable period of time or in accordance with the specifications and under the conditions as set out in the SLA. If Revend indicates that it will not be able to correct a Defect within a reasonable period of time, Revend and the Customer shall enter into good faith discussions on the necessary next steps to be taken.
Revend shall remedy any Defects free of charge unless (i) the Software or any part thereof has been developed at Customer’s instructions; (ii) the Defects result from Customer’s and/or End User’s improper use of the Software; (iii) the Defects result from any other causes not solely attributable to Revend (including but not limited to the Customer’s technology or infrastructure); (iv) the Defects result from Customer’s and/or End User’s failure to use the most recent version of the Software made available by Revend or (v) the Defects result from Customer’s, the End User’s or any third party’s modification of the Software without the prior written consent of Revend. In all events under (i) through (v), Revend shall charge such repair costs on a time and materials basis at its then current rates.

7.2 Pre-production Releases

Revend may provide Customer from time to time with a Pre-Production Release of the Software. All such Pre-Production Releases are provided strictly on an “as-is” basis and Revend disclaims all warranties, express or implied, for all Pre-Production Releases.

8 Indemnification

8.1 Infringement
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Customer agrees to defend, indemnify, and hold harmless Revend (and its officers, directors, employees and agents) from and against any Third Party claims, actions or demands (including, without limitation, costs, damages and reasonable legal and accounting fees) which result from any Customer Data infringing the rights of any Third Party (including infringement of intellectual property).
Revend shall defend or settle, at its expense and in its sole discretion, any suit or proceeding against Customer brought by third parties to the extent such claim is based on an infringement of the Intellectual Property Rights of such third party by the Software and/or Documentation and excluding any claims resulting from (i) the Customer or End User’s unauthorized use of the Software and/or Documentation, (ii) the Customer’s, the End User’s or any third party’s modification of any of the Software and/or the Documentation, (iii) the Customer’s or End User’s use of the Software in combination with any non-Revend products, or the Software having been developed to the Customer’s design, materials, ideas, data or other information, provided by or on behalf of the Customer.
Such indemnity obligation shall be conditional upon the following: (i) Revend is given prompt written notice of any such claim; (ii) Revend is granted sole control of the defense and settlement of such a claim; (iii) upon Revend’s request, the Customer fully cooperates with Revend in the defense and settlement of such a claim, at Revend’s expense; and (iv) the Customer makes no admission as to Revend’s liability in respect of such a claim, nor does the Customer agree to any settlement in respect of such a claim without Revend’s prior written consent. Provided these conditions are met, Revend shall indemnify the Customer for the damages and costs incurred by the Customer as a result of such a claim, as awarded by a competent court of final instance, or as agreed to by Revend pursuant to a settlement agreement.
In case Revend believes, in its sole discretion, that the Software is likely to or become the subject of a third-party infringement claim as per this Section, Revend may at its sole expense and option, either (i) procure the right to continue to use the Software in accordance with the provisions set forth herein, or (ii) replace the (allegedly) infringing part of the Software, or modify the Software so that it becomes non-infringing, or (iii) terminate this Agreement and any Order Form and refund to the Customer a pro rata portion of the License Fees paid to Revend hereunder for that portion of the Software which is the subject of such infringement. (less reasonable depreciation for any period of use).
The foregoing states the entire liability of Revend for any Intellectual Property Rights infringement by the Software, the Documentation or any part thereof.
The indemnity obligation under the preceding paragraph shall not apply to any Open Source Component, or any use of Software in conjunction with any other product in a combination not furnished by Revend. As to any such use in such combination, or any improper or unauthorized use, installation, or operation of the Software, Revend assumes no liability whatsoever for any infringement of the Intellectual Property Rights of a third party and Customer will hold Revend harmless against any infringement claims arising therefrom (including, but not limited to reasonable attorney’s fees).
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8.2 Open Source Components
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The indemnity obligation under the preceding paragraph shall not apply to any Open Source Component, or any use of Software in conjunction with any other product in a combination not furnished by Revend. As to any such use in such combination, or any improper or unauthorized use, installation, or operation of the Software, Revend assumes no liability whatsoever for any infringement of the Intellectual Property Rights of a third party and Customer will hold Revend harmless against any infringement claims arising therefrom (including, but not limited to reasonable attorney’s fees).

9 Software licenses

9.1 License
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In consideration of the timely and full payment of the License Fee by Customer and subject to End User’s compliance with its obligations under the EULA, Revend grants to Customer a personal, restricted, non-transferable, non-exclusive, non-assignable, worldwide and limited license without the right to sublicense to use the Software during the Term for the Customer’s internal business purposes in accordance with the Documentation, this EULA, Order Form and the Agreement, if any.
All Software licenses granted to Customers are provided under the then current Revend EULA, as applicable from time to time. All rights not expressly granted to the Customer are reserved by Revend and its licensors.
All rights granted under this Agreement are personal to the Customer, and, except if stated otherwise in the EULA or the Agreement, the Customer does not have the right to assign or transfer any of its rights or duties to any third party (including, for the avoidance of doubt, companies under control by or common control with the Customer), or expand or modify the scope of the License in any way whatsoever.  

9.2 Replaced License

License Files and/or License Certificates may be replaced for various purposes as agreed to by Revend and Customer. A Replaced License must be removed from any Device and its original License File or License Certificate must be destroyed or archived and clearly marked as “Inactivated” so that it cannot be used. A Replaced License includes but is not limited to:
(i) Functional Upgrades – when a license with a certain capacity and functionality is replaced by a license with greater capacity or a different functionality. For example, a Starters license with basic features is replaced by a more advanced enterprise-level User license;
(ii) Lost/Stolen/Failed Keys – when a license key is lost, stolen, or fails and a replacement license key is provided. If a lost/stolen key is found/recovered, it must be destroyed.

10 Audit

At Revend’s written request, and with a maximum of one time per year, Customer will furnish Revend with a signed certification verifying that the Software is being used in accordance with the provisions of this Agreement. Revend may audit Customer’s or End User’s use of the Software with a maximum of one time per year. Any such audit will be conducted during regular business hours at Customer’s facilities and will not unreasonably interfere with Customer’s business activities. If an audit reveals that the Software is being used contrary to the terms and conditions of this Agreement, then Customer will be invoiced for the additional License Fees consistent with Customer’s actual use of the Software in accordance with Revend’s then current price list for the Software, which amount will be immediately due and payable. In addition, any costs relating to such audit shall be solely borne by the Customer. This assessment of additional License Fees will be without prejudice to any other remedies Revend may have for breach of this Agreement, including without limitation, the provisions about the termination of this Agreement.

11 Term and termination

The term of this Agreement shall be set out in the Order Form.
In case the term is not indicated in the Order Form, it will take effect from the signature by both Parties and shall remain valid for an initial term of three (3) years and, after this, will autorenew for a period of one (1) year on the anniversary of the agreement. Both Parties can terminate the renewal taking into account a notice period of one (1) month before the autorenewal is in effect. 
Each Party shall be entitled to terminate this Agreement by registered letter, without further recourse to the court and without further notice, if the other Party is in material breach of its obligations under this Agreement and such breach has not been rectified within thirty (30) days after receiving a notification hereto by registered letter, unless such notification is unworkable in the given circumstances.
In the event of any change in the situation of the Customer, such as, but not limited to conversion, merger and acquisition, transfer, suspension of payment, bankruptcy, judicial arrangement, liquidation, cessation of activities or any other circumstance which might damage the solvency of the Customer, Revend reserves the right:

(1) to suspend the execution of this Agreement until the date the Customer provides Revend with an adequate guarantee for its payment; or

(2) to consider this Agreement as terminated, as from the date of sending of the termination, without prior notice to the Customer or recourse to a court, notwithstanding the right of Revend to claim additional compensation.

12 Force majeure and hardship

Revend shall not be liable for any failure in the execution of this Agreement due to force majeure or hardship.  In case of force majeure or hardship, Revend has the right (1) to temporarily suspend the execution of its obligations; or (2) to terminate the Agreement by registered letter; and/or (3) to invite the Customer to renegotiate this Agreement.
For the execution of this Agreement, force majeure and hardship are considered as, without being limited hereto: acts of any governmental body, war, insurrection, sabotage, terrorism, embargo, fire, flood, storm or other acts of God, strike, lock - out or labor disturbances, internet system unavailability of components not controlled by Revend, virus attacks, unavailability of or interruption or delay in telecommunications, or hackers, failure of third party software, power outages, delays in supply, export ban, , sickness or accidents, breakdown of plant or machinery, etc.

13 Orderly transition - Escrow

In the event of expiration or termination of this Agreement, Revend agrees to provide its reasonable cooperation in the orderly transition of the services provided by Revend to the Customer or a third party, including but not limited to provision of reports, files and similar media necessary for continuation of the services transferred, continuation of the services at reducing levels if necessary during a transition period and at reduced levels if services are transferred in part.  
At request of either Party, an escrow can be negotiated.

14 Limitation of liability

Notwithstanding and except for the amounts which may be payable by an insurance company for physical injury and damage to property, the total compensation for which Revend may be liable with regard to the services provided and by virtue of its contractual and/or extra contractual liability, may not, under any circumstances, exceed the total invoice amount of the last 12 months before the event giving rise to the damages has occurred.Revend shall not, in any circumstance, be liable for indirect losses or damages.  As indirect losses or damages will be considered, without being limited hereto: financial or commercial losses, loss of earnings, increased overhead costs, disruption of planning, loss of anticipated profits, customers or savings.This limitation of liability does not affect the liability of Revend regarding the services levels as laid down in the SLA.

15 Privacy

Each Party will and will ensure that its personnel and (sub)contractors will, at all times, comply with its/their respective obligations under any applicable data protection legislation and the Data Processing Agreement agreed between the Parties in relation to all Personal Data that is processed under this Agreement.  In connection with and for the purpose of the performance of the Software under this Agreement, Revend will process Personal Data in accordance with the provisions of the General Data Protection Regulation (“GDPR”).
The Customer authorizes Revend to file all personal data obtained in the execution of this Agreement in an automated database.  These data can be used by Revend in the execution of the contractual relationship with the Customer.
The Customer explicitly authorizes Revend to data mine the personal data obtained in the execution of this Agreement.
The Customer warrants that it has obtained all necessary rights in respect of any personal
data in this respect.

16 Applicable law and escalation procedure

This Agreement is governed by Belgian law.
The Parties hereby undertake to apply the CEPANI Rules of Mediation to all disputes arising out of or in relation with this Agreement.
Should the mediation fail, the dispute shall be finally settled under the CEPANI Rules of Arbitration by one or more arbitrators appointed in accordance with those Rules.  The seat of the arbitration shall be Antwerp.  The arbitration shall be conducted in English.

17 Amendments

Revend may update or modify this Agreement from time to time, including incorporated agreements (such as the Data Processing Agreement) for following reasons (i) applicable law, including but not limited to, a change of such law advice or order based on applicable law, (ii) minor changes to the Software, (iii) technical reasons, (iv) operational requirements, or (v) changes that are advantageous to the Customer.

If a revision meaningfully reduces the Customer’s rights, Revend will use reasonable efforts to notify the Customer (by, for example sending an email to the Customer, posting on Revend’s website or in the Software itself). Customer must notify Revend within ten (10) calendar days of Revend’s notice of the modifications that Customer do not agree with such changes, and Revend (at Revend’s option and as Customer’s exclusive remedy) may either: (i) permit Customer to continue under the prior version of this Agreement until the start of Customer’s next renewed term  or (ii) allow Customer to terminate this Agreement and receive a pro-rated refund based on the unused portion of Customer’s term under this Agreement.  

In any event, any continued use of the Software after the moment the modifications take effect, constitutes Customer’s acceptance of the modifications.