Definitions

Capitalized terms used in these Terms and Conditions shall have the meaning given to them below:

• Agreement: the contractual relation between Made by Rombit and the Client, including these general terms and conditions, the Proposal(s) and any annex or schedules.

• Background IPR: means any pre-existing samples, data works, documents, software, tools, methodologies, algorithms, or other technologies (including the intellectual property rights vested therein) which are in the possession of, owned or controlled by Made by Rombit prior to the effective date of the agreement or which are not generated in respect of the performance of the Services or which are developed independently of the activities under this Agreement. Background IPR includes all improvements and modifications made thereto during the execution of the Agreement. 

• Client: the legal entity specified in the Proposal.

• Deliverables: the deliverables created or developed specifically for the Client in the provision of the Services, and as set forth in the relevant Proposal.

• Proposal: a written document signed between both parties, regardless of its name, specifying the nature, number and other specifics of the services ordered by the Client, and any specific conditions (if any).

• Made by Rombit: Made by Rombit BV, with registered office at Meir 30, 2000 Antwerpen, Belgium and company number 0507.837.956.

• Services: the professional services as described in the Proposal.

• Terms and Conditions: the present general terms and conditions.

Applicability and Validity of Proposals

These Terms and Conditions apply to all Proposals and to all Services ordered by the Client, unless the parties have entered into a separate master services agreement or framework agreement, in which case the provision of the Services shall solely be governed by the relevant master services agreement or framework agreement. These Terms and Conditions take precedence over all general and special terms and conditions from the Client, even if they state that only those conditions shall apply and even if they were not protested by Made by Rombit.

Unless otherwise stated in the Proposal, Proposals are valid for thirty (30) calendar days as from the date mentioned in the Proposal. Any quote from Made by Rombit that is not part of a Proposal shall only bind Made by Rombit if it is expressly accepted in writing by Made by Rombit. Neither party shall be bound by a Proposal until executed by a duly authorized representative of both Parties.

Services

Made by Rombit undertakes to provide the Services in accordance with generally accepted industry standards and shall exercise reasonable care and skill in doing so. For the avoidance of doubt, this is an obligation of means (“middelenverbintenis”) and cannot be construed as an obligation of results ("resultaatsverbintenis”).

The Services shall be performed in complete independence and Made by Rombit shall plan its activities as it sees fit (including the right to provide services remotely and to reassign any of the designated resources, unless expressly identified as being key personnel). Any timeframes set forth in the Proposal or specified otherwise, shall be indicative, unless they are expressly agreed to be binding.

The Client acknowledges that the provision of the Services is at all times is subject to the cooperation of the Client in good faith. In particular, and without prejudice to the generality of the foregoing, the Client shall provide on a timely basis such access, information, approvals, business rules, resources and access to (third party) software and systems as necessary to allow Made by Rombit to provide the Services.

Made by Rombit shall not be responsible or held liable for any delay or failure in the provision of the Services or Deliverables resulting from the Client’s failure to comply with clause 3.3.

The scope of the Services may only be changed in mutual agreement and such change(s) shall be documented in writing.

If the Client requests a change in the timing agreed in a Proposal (such as, but not limited to the start date) or requests to pause or suspend the project for a certain amount of time, less than thirty (30) days before the start of any scheduled work, Made by Rombit reserves the right to charge an amount equal to fifty percent (50%) of all work that was scheduled during such delayed timing or suspension, in addition to the total price of the Proposal.

Unless expressly agreed otherwise in writing, the Services and any Deliverables will be deemed accepted upon delivery.

Maintenance, Support and Hosting

If applicable, any maintenance, support or hosting services in respect of the Deliverables shall be provided on a best efforts basis only.

Unless expressly agreed otherwise, Made by Rombit reserves the right to charge the Client for (i) any maintenance and support services provided by Made by Rombit to keep the Deliverables operational for the Client on a time and material basis (at the then current rates), and (ii) any (third party) hosting costs incurred by Made by Rombit. 

Intellectual Property Rights

Made by Rombit retains all rights, titles and interests, including any intellectual property rights, in and to its Background IPR and nothing in this Agreement shall convey any title or proprietary right or intellectual property rights in or over de Background IPR to the Client. Except for the limited license granted pursuant to clause 5.2, no other rights in respect of the Background IPR shall be granted or transferred to the Client in connection with this Agreement

Subject to the timely and full payment of all fees under the Agreement, Made by Rombit shall assign all rights, titles and interests, including intellectual property rights, in the Deliverable(s) to the Client, however, expressly excluding any Background IPR or third party intellectual property rights incorporated in the Deliverables. To the extent Background IPR is incorporated in the Deliverables Made by Rombit grants the Client a non-transferable, non-assignable, non-exclusive license, without the right to sublicense, to use the Background IPR solely in connection with the Deliverables for the Client’s internal business purposes.

Made by Rombit at all times reserves the right to (i) use the ideas, concepts, processes and knowhow developed or created by Made by Rombit during the performance of the Agreement; and (ii) to acquire, market, develop, provide or use for itself or others, services or other products that have the same or similar functions to the Services or Deliverables provided to (unless this would result in a breach of Made by Rombit’s confidentiality undertakings under the Agreement).

Client Data

Any client data provided to Made by Rombit for the provision of the Services (“Client Data”) shall remain the property of the Client. The Client hereby grants Made by Rombit a non-exclusive license to copy, reproduce, store, export, adapt, edit and translate the Client Data to the extent reasonably required for the execution of the Agreement.

The Client is solely liable and responsible for the accuracy and correctness of the Client Data and warrants to Made by Rombit that the Client Data shall not infringe (i) the (intellectual property) rights of any third party; or (ii) breach any provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.

Financial Conditions

The Client shall pay the amounts specified in the Proposal in accordance with this clause 7. Unless otherwise agreed in the Proposal, all service fees are calculated on a time and material basis based on the rates set out in the Proposal. Unless agreed otherwise in the Proposal, Made by Rombit may charge an advance payment of thirty percent (30%) of the total price set out in the Proposal.

Unless expressly agreed otherwise, all payments shall be made by wire transfer to Made by Rombit’s bank account within thirty (30) days from the invoice date.

Any disputes relating to invoiced amounts must be submitted by registered mail (containing the reasons for such dispute) within fourteen (14) days from the invoice date, failure to do so shall result in the invoice being deemed accepted. The undisputed portion of the invoice must be paid in full.

All amounts due hereunder are payable in euro (unless agreed otherwise) and are exclusive of VAT, costs and expenses (such as but not limited to travel and accommodation expenses, if applicable) which shall be charged separately by Made by Rombit.

All amounts due hereunder 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 Made by Rombit such additional amounts as are necessary in order that the net amounts received by Made by Rombit after all deductions and withholdings shall not be less than such payments would have been in the absence of such deductions or withholdings.

Any amounts of undisputed invoices (or parts thereof) that have not been paid on the due date shall automatically and without notice be subject to a late payment interest equal to the rate applicable pursuant to the law of 2 august 2002 (as modified from time to time), which interest shall be compounded daily as of the due date until receipt of full payment. In addition, the Client shall pay all costs incurred by Made by Rombit, as a result of the (extra)judicial enforcement of the Client’s payment obligation under this Agreement, with a minimum of one hundred fifty euro (€150).

Warranty

Made by Rombit shall perform the Services with the expertise and independence, skill, care and diligence that can be reasonably expected from a qualified service provider. Save for the foregoing warranty and unless expressly agreed otherwise in writing, Made by Rombit will deliver the Services and the Deliverables “as is”. Made by Rombit does not make any other representations or warranties, express or implied, concerning any matter under this Agreement and, to the maximum extent permitted by applicable law, Made by Rombit 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.

Term and Termination

Each Proposal shall commence on the effective date specified therein and shall continue until completion of the Services.

Either party may immediately terminate (and Made by Rombit may at its sole discretion suspend) the Agreement, in whole or in part without any judicial intervention, without being liable for compensation and without prejudice to its rights to damages and any other rights, remedies and/or claim to which it may be entitled by law, upon providing the other party with written notice of termination if (i) the other party performs a material breach (non-payment by the Client is hereby expressly acknowledged as constituting material breach of the Agreement) to any provision of the Agreement and fails to cure such material breach within thirty (30) calendar days after receipt of written notice of default, or (ii) the other party becomes insolvent, is subject to voluntary or involuntary bankruptcy, insolvency or similar proceeding or otherwise liquidates or ceases to do business.

In case of early termination of the Agreement other than for a breach by Made by Rombit, Made by Rombit will have the right to claim a flat fee compensation (“forfaitarire schadevergoeding”) equivalent to the higher of:

• fifty percent (50%) of all amounts still to be invoiced; 

• all amounts for all work schedule in the four (4) weeks after termination.

The foregoing shall be without prejudice to the explicit right of Made by Rombit to claim higher rewards of compensation if these can be proven Made by Rombit.

Upon expiration or termination of the Agreement, irrespective of the reason, the parties shall, within reasonable time of such termination, return all Confidential Information (except as required to comply with applicable legal or accounting requirements), and the Client shall immediately pay any outstanding amounts hereunder, up to and including the date of termination.

Warranty

Each party shall comply with the applicable data protection laws. The Client represents and warrants that it has the legal right to disclose any personal data that it makes available to Made by Rombit. The Client shall inform all data subjects about the processing activities by the Client and/or Made by Rombit (as applicable). Made by Rombit shall process the personal data in accordance with the data processing agreement concluded between the parties.

Confidentiality

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose confidential and/or proprietary materials relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information”). Each party hereby undertakes, with respect to the Confidential Information (learned during the negotiation and/or performance of the Agreement) to (i) only use it for the performance of the Agreement; and (ii) to keep it secret and not disclose it, to any person other than with the prior written consent of the Disclosing Party, or its agents, employees, professional advisors, subcontractors or consultants where such disclosure is necessary for the performance of the Agreement. The parties 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 therewith. The provisions of this clause 11 shall continue in force during five (5) years following the termination of the Agreement. The Client is liable for non-compliance with the obligations mentioned under this 11 by its employees, subcontractors or representatives.

The provisions of this clause shall not apply (i) to any 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 in scope of this Agreement; or (ii) to the extent that any Confidential Information is required to be disclosed by any law, regulation or by any judicial or governmental order or request.

Non-solicitation

The Client will not, without the prior written consent of Made by Rombit, during the term of the Agreement and for two (2) years after termination thereof, hire, employ or otherwise engage, or solicit the services of, any personnel of Made by Rombit or its contractors, involved in the execution of the relevant Proposal, have such employees or contractors work for the Client, or, either directly or indirectly, approach them for this purpose or recommend them for employment to third parties, while such person is employed or engaged by Made by Rombit and during one (1) month thereafter. If the Client breaches this clause 12, the Client will be liable to pay an amount equal to twelve (12) times the monthly gross income of the employee or contractor concerned, without prejudice to Made by Rombit’s right to initiate any legal proceedings and/or to claim additional damages, if Made by Rombit can establish that it has incurred higher losses or damages.

Limitation of liability

Subject to the maximum extent permitted under applicable law, Made by Rombit’s total liability arising out of or in connection to the Agreement, for all causes or actions arising in any contract year shall not exceed (i) per event (or series of connected events) an amount equal to all fees (excl. taxes and expenses) paid by the Client hereunder during the month preceding the liability claim; and (ii) and in the annual aggregate per contract year, the total amount of fees (excl. taxes and expenses) paid to Made by Rombit under the Agreement during such contract year.

To the maximum extent permitted under applicable law, Made by Rombit excludes its liability for any indirect, consequential or special damages arising under the Agreement, including loss of revenue, business, anticipated savings or goodwill, loss or corruption of data, the cost of procuring replacement goods or services, or reputational damage.

The limitations of liability under this 13 shall operate to the benefit of Made by Rombit’s affiliates and subcontractors to the same extent such provisions operate to Made by Rombit’s benefit. Made by Rombit shall not be held liable for any damages or loss caused by a third party (software, systems or tools).

Miscellaneous

Independence: the parties acknowledge that they are independent contractors with respect to the Agreement and that Made by Rombit is not the Client’s agent or partner or in a joint venture with the Client.

Severability: if any provision of the Agreement is held to be invalid, illegal, or unenforceable (partially or wholly) the other provisions shall nevertheless continue in full force and effect. Each party shall use its best efforts to immediately negotiate a valid replacement provision with equal or similar economic effects.

Survival: the provisions of the Agreement that are expressly or implicitly intended to survive termination, shall survive any expiration or termination.

Amendments and entire agreement: the Agreement may be modified or amended only by written agreement executed by a duly authorized representative of both parties hereto. The Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter and supersedes all prior agreements, representations or understandings between the Parties relating to the subject matter.

Notices: any notice under the Agreement shall in first instance be given by electronic mail to the email addresses specified in the Proposal. All notices given by electronic mail, shall only be valid upon confirmation of receipt expressly given by electronic mail by the receiving party. Notices of termination or of default cannot be given by electronic mail and are to be sent by certified or registered mail to an authorized representative of the other party.

Publicity: Made by Rombit is entitled to use any (trade)marks of the Client (including the Client’s corporate name) for marketing or promotion purposes.

Force Majeure: neither party will be responsible or liable for any failure or delay in the performance of its (non-monetary) obligations under the Agreement due to an event, or a series of related events, that is outside the reasonable control of the affected party (including without limitation, social strike or actions, changes to the law, disasters, epidemics or pandemics, explosions, fires, floods, riots, terrorist attacks, wars, unfavorable weather conditions, pandemics, force majeure on the part of Made by Rombit’s subcontractors, failures in goods, equipment, software or materials of third parties, government measures, disruption of internet, data network or telecommunications facilities, unavailability of third party servers, hacker attacks, denial of service attacks, virus or other malicious software attacks, unavailability of personnel, general transportation problems and electricity outages).

Non-Assignment: the Client shall not assign or otherwise transfer any of its rights or obligations under the Agreement without Made by Rombit’s prior written consent, requested via registered letter. Made by Rombit can assign, subcontract or transfer any of its rights or obligations under the Agreement without the Client’s prior consent.

Applicable law and jurisdiction: the 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 courts of Antwerp, department Antwerp. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement.