1. SCOPE OF APPLICATION
1.1 These general terms and conditions govern the use of the Platform, for which the Customer has purchased a license (including access details) through the Website (hereinafter referred to as the "Platform General Terms and Conditions").
1.2 These Platform General Terms and Conditions form an integral part of and need to be read in conjunction with the terms and conditions of sale of the Seller. All issues that are not explicitly governed by these Platform General Terms and Conditions shall be governed by the general terms and conditions of sale. Unless specified otherwise, all words mentioned with capital letters in these Platform General Terms and Conditions shall have the same meaning as defined in the general terms and conditions of sale. In case of any discrepancy between these Platform General Terms and Conditions and the general terms and conditions of sale, these Platform General Terms and Conditions shall prevail.
2. DEFINITIONS
2.1 "Software": the computer programs which are developed and owned by or licensed to the Seller.
2.2 "License": the rights defined in article 2 of this Agreement.
2.3 "User": any natural person or legal entity that has an account on this Website.
2.4 "Intellectual Property Rights" shall mean all the possible intellectual, industrial and other property rights (either registered or not), including – without being limited hereto – copyrights, related rights, trademarks, trade names, logo's, design rights or applications for design registration, patents, patent applications, domain names, knowhow and rights regarding databases, computer programs and semiconductors.
2.5 "Platform" shall mean the platform through which the Software is made available to the Customer and the User(s), which also includes a mobile application (“App”).
2.6 "Standard Maintenance" shall mean maintenance and support performed by the Seller or any third party appointed thereto by the Seller in order to fix an error or bug on the Platform, including but not limited to updates and upgrades.
2.7 "Website" shall mean the following webpage https://id-trust-medical.eu.
2.8 "Seller" means the limited liability company "ID – Trust – Medical", a company duly established and existing in accordance with Belgian Law, having its registered office at 3000 Leuven, Diestsevest 43/0001, registered in the register of legal entities under number and known to the VAT – administration under number.
3. LICENSE AND INTELLECTUAL PROPERTY
3.1 The Software, the Website, the Platform (including the App) and all elements they contain are and remain property of the Seller and/or its licensors and are protected by the Intellectual Property Rights of the Seller and/or its licensors.
3.2 The Seller and/or its licensors shall be the sole and exclusive owner of all the Intellectual Property Rights regarding all new developments, improvements and information related to or in the field of the intellectual property of the Software, the Website and the Platform (including the App).
3.3 The Seller hereby grants the User as of the conclusion of an agreement, and in accordance therewith, a non-exclusive, non - transferrable and revocable license to use the Software (and the Intellectual Property Rights on the Software, in as far as necessary for the use of the Software and/or the Platform (including the App)) to register and consult data and test results, follow – up on its improvement and consult the evaluation of their results/position towards the benchmarking group.
3.4 The Seller may – without being obliged thereto – provide the User with updates and upgrades, in the form of new versions of the Software. The Seller reserves the right to cease the support of other versions than the most recent version of the Software that was made available to the User, and this, without prior notice and without recovery of charges from the Seller.
3.5 Nothing herein is intended or shall be deemed or implied to constitute a sale or assignment of the (Intellectual Property) Rights in the Software by the Seller.
4. USER IDENTITY
4.1 The access to the Platform (including the App) will be linked to the e-mail address of the specific User, who will receive a password from the Seller in order to be able to enter the Platform (including the App).
4.2 All information relating to the User identity, including the password, is confidential. The User shall take all reasonable measures to prevent unauthorised parties from obtaining information relating to the User identity, including the password, provided to the User.
4.3 The User will strictly comply with all provisions of these Platform General Terms and Conditions.
5. OBLIGATIONS OF THE USER
5.1 The User undertakes to use the Software and/or Intellectual Property Rights of the Software, as well as the data generated by the Software for legal purposes only.
5.2 The User undertakes to respect all Intellectual Property Rights regarding the Software and all elements they contain.
5.3 It is explicitly prohibited to the User:
- to modify, adapt, make error corrections to, create derivative works of, distribute, duplicate, copy, display, send, publish, sell, assign, lease, pledge, loan, rent, deliver or otherwise transfer (the Intellectual Property Rights in) the Software, or permit third parties to do so;
- to allow access to the Software and/or to the Intellectual Property Rights in the Software to any unauthorised parties, irrespective of whether such access is provided with or without any direct or indirect consideration;
- to use (the Intellectual Property Rights in) the Software for illegal or other purposes as set out in this Platform General Terms and Conditions;
- to use (the Intellectual Property Rights in) the Software in any manner that might prejudice the Seller's, its licensors' and/or any other party's rights;
- to use any errors in the Software and/or in the Intellectual Property Rights in the Software – whether or not such errors are known to the Seller and/or its licensors – to its own advantage or to the advantage of any third parties;
- to decompile, disassemble or reverse engineer the Software;
- to use the Software other than for the applicable license period;
- to remove, obscure or fail to reproduce in any copyright, trademark or other proprietary rights notice contained in the Software.
5.4 In the event the User detects a (potential) error or misstatement in the Software and/or in the Intellectual Property Rights of the Software, he shall immediately inform the Seller thereof in writing.
5.5 The User shall take all reasonable measures to prevent any infringement of the Seller's and her licensors' Intellectual Property Rights.
5.6 In the event the User detects a potential infringement of the Seller's and/or her licensors' Intellectual Property Rights, he shall immediately inform the Seller thereof in writing.
5.7 The User is not entitled to assign, pledge or otherwise dispose of its rights or obligations under this Platform General Terms and Conditions to a third party without the prior written consent of the Seller.
5.8 The Seller is entitled to assign, pledge or otherwise dispose of its rights or obligations under this Platform General Terms and Conditions to a third party, also in the case it transfers its entire business (or any part thereof) to a third party.
5.9 The User is not authorized to provide sub-licenses, unless otherwise agreed upon by the Seller and the User.
6. THE SELLER'S COMMITMENTS
6.1 The Seller's commitments are limited to the execution, to its best efforts, of its obligations as described in the written agreement between the Seller and the User or, in absence thereof, in the order confirmation by the Seller.
6.2 Unless Parties have agreed otherwise, the commitments of the Seller are limited to (1) providing access to the Platform (including the App) and the Software, and (2) taking all reasonable measures to keep the Platform (including the App), including the data on the Platform (including the App) available to the User. In this regard, the Seller shall perform maintenance to the Platform (including the App), whenever necessary. In case the performance of such maintenance has a negative impact on the availability of the Platform (including the App), the Seller shall try, to its best efforts, to limit the impact for the User as much as possible.
6.3 The Seller is not obliged to remedy any error or bug in the Software, whether or not reported by the User. Nor shall the Seller be obliged to answer such notice of the User.
6.4 Backups are made on regular intervals to guarantee restore activities whenever defects occur.
6.5 The Seller shall take all reasonable measures to secure the Platform (including the App) from unauthorized access, hacking, viruses, etc.
6.6 Notwithstanding the foregoing provisions, the Seller does not give any guarantees regarding the compatibility of the Platform (including the App) and the User's computer systems or mobile devices, the availability and accessibility of the Platform, nor the data on the Platform (including the App) and can under no circumstances be held liable for any such unavailability, inaccessibility, or any other event disrupting the use of the Software and/or the Intellectual Property Rights of the Software, unless in case of fraud.
7. PRICE AND COSTS
7.1 All prices exclude VAT and are, except as provided otherwise, expressed in Euros.
7.2 Standard Maintenance is included in the license fee. All other (maintenance) services performed by or on behalf of the Seller are considered as additional and will be charged at the applicable hourly rate. Except as provided otherwise, all prices relating to delivery of services apply to performances on business days between 9.00 a.m. and 5.30 p.m. Higher prices apply on Saturdays, Sundays and public holidays, outside office hours and/or in the event the Seller's or its subcontractor/supplier's employees perform more than 8 working hours on 1 day.
7.3 Currency fluctuations, increases in prices of materials, auxiliary materials and raw materials, wages, salaries, social security charges, costs imposed by the government, levies and taxes, server or communication duties, or insurance premiums, arising during the term of the agreement entitle the Seller to increase the agreed price accordingly.
8. SUBCONTRACTING
8.1 The Seller has the right to have a part of the agreed services performed by a subcontractor or supplier.
8.2 In the event the Seller performs its activities as a subcontractor, the Seller has a right to direct action towards the principal, amounting to the sum that the latter is due to the contracting party - main contractor at the time of initiation of the direct action.
8.3 In the event the Seller performs its activities as a subcontractor, the Seller also has a right of pledge with regard to all of the contracting party - main contractor's debts originating in the services agreement relating to the activities that the Seller performed as a subcontractor.
8.4 The right of direct action and the right of pledge, mentioned in articles 9.2 and 9.3 of these Platform General Terms and Conditions, do not solely relate to the debts concerned, but also to its accessories, such as (without being limited thereto): interests and other possible compensation from penalty clauses.
9. VALIDITY OF THE INTELLECTUAL PROPERTY RIGHTS
9.1 The Seller remains the exclusive proprietor of all Intellectual Property Rights it possesses with regard to the delivered products and/or services, including the Platform (which includes the App) and the Software. As such, the Seller and/or its licensors are free and exclusively entitled to apply for patents and/or any other protection of the intellectual property regarding the Platform (including the App) and/or the Software. The User guarantees towards the Seller that the data he supplies do not infringe third party Intellectual Property Rights or other rights.
9.2 The User hereby recognizes the validity of the Intellectual Property Rights regarding the Software and/or the Platform (including the App) and shall refrain from denying, challenging or attacking such validity and from assisting any other party in denying, challenging or attacking such validity by furnishing information or advice or otherwise.
9.3 In case any third party denies, challenges or attacks the validity of any Intellectual Property Rights regarding the Software and/or the Platform (including the App), the User shall inform the Seller without any delay.
10. LIABILITY
10.1 The Seller is not responsible for the use of the Software/Platform (including the App) and/or the Intellectual Property Rights in the Software/Platform (including the App) by the User.
10.2 The Software/Platform (including the App) is provided to the User "as is", without any explicit or implicit guarantees of any nature, express or implied, including – without being limited thereto – the warranties of accuracy, correctness, reliability, recency, fitness for a particular purpose, title and non-infringement or result of use.
10.3 The User is solely and exclusively responsible for obtaining, configuring and maintaining all computer hardware, software, and other equipment and services necessary for the use of the Software/Platform by the User.
10.4 The Seller's liability is limited to the responsibility imperatively imposed on it by the applicable law and is under all circumstances limited to the lowest of the following amounts: (1) the amount invoiced by the Seller over the last 6 months; and (2) the amount the Seller can recover under the insurance policies taken out by the Seller.
10.5 The Seller will under no circumstances be held liable for any indirect damages (including – without being limited thereto – loss of profits), damages caused by the User and/or third parties, damages resulting from incorrect or inadequate use of the Software/Platform (including the App) and/or damages resulting from non-compliance by the User with statutory and/or other obligations.
10.6 The Seller will under no circumstances be held liable for any damages resulting from the User's failure to comply with its obligations under theses Platform General Terms and Conditions, and among others – without being limited thereto – to retrieve and verify all required and useful information, nor for any damages resulting from incorrect and/or incomplete information that was provided to the User by any third party. The test results provided through the Software/Platform (including the App) are only an indication of the skills and knowledge of the User. The performance of procedures and surgeries remains the sole responsibility of the specific User. As such, the Seller nor its licensor can be held liable for any (negative) consequences of a procedure or surgery.
10.7 The Seller will not be liable for any loss or damages suffered by the User and/or any third party as a result of any failure or refusal by the Seller and/or its licensors to give effect to, or for any failure or delay by the Seller in receiving, accessing, processing or accepting any communication sent to the Seller or for any loss or damages suffered as a result of the operational failure, malfunction, interruption, change, amendment or withdrawal of the Software.
10.8 Without prejudice to the aforementioned, the Seller, its licensors and providers make no representation, warranty or condition that:
- the Software/Platform (including the App) will be compatible with the devices and related equipment and software of the User;
- the Software/Platform (including the App) will be available or will function without interruption or will be free of errors or that any errors will be corrected;
- the Software/Platform (including the App) will meet the requirements of the User;
- the information contained in the Software/Platform (including the App) will be accurate, complete, sequential or timely;
- certain or any results may be obtained through the use of the Software/Platform (including the App);
- the use of the Software/Platform (including the App) will be free of viruses, Trojan horses, worms or other destructive or disruptive components.
11. INDEMNIFICATION
11.1 The User shall indemnify the Seller and hold it harmless from and against any and all claims and procedures, including claims and procedures initiated by third parties, that might arise or result from any action or omission by the User, in violation of the agreement between the Seller and the User, the order confirmation by the Seller, these Platform General Terms and Conditions, and/or any other (statutory) obligations of the User.
11.2 The User shall compensate the Seller for all damages, including judicial and other costs, occurring in relation to its defence regarding the claims and/or procedures mentioned under article 11.1 of these Platform General Terms and Conditions.
12. FORCE MAJEURE AND HARDSHIP
12.1 The Seller is not liable for any shortcoming in the performance of any obligation caused by force majeure or hardship.
12.2 In case of force majeure or hardship the Seller may, without prior notice of default or recourse to a court of law and without any right of recourse for the User with regard to the Seller, at its discretion: (1) temporarily suspend performance of its obligations; (2) dissolve the agreement between the Seller and the User by registered letter and without recourse to a court of law; and/or (3) invite the User to renegotiate the agreement between the Seller and the User.
If the User does not participate in good faith in the renegotiation, the Seller may, in accordance with article 17 of the Platform General Terms and Conditions of the Seller, request the judicial tribunal to determine new contractual conditions and/or order the User to pay compensation.
12.3 By force majeure and hardship are understood, among others (this list is purely given as an example): unavailability and/or scarcity of certain materials, currency fluctuations, increases of prices for materials, wages, salaries, social taxes, costs imposed by the government, levies and taxes, server and communication costs, import and export duties, insurance premiums, exceptional weather conditions, strikes, mobilisation, wars, disease or accidents, communication and information technology breakdowns, government measures, export bans, delays in deliveries, transport and/or travel obstacles, including lack or withdrawal of transport facilities, export obstacles, import obstacles, breakdowns, traffic jams, etc.
13. FORFEITURE OF RIGHTS
If the Seller fails, even repeatedly, to enforce any right, this can only be deemed toleration of a certain situation and will not result in forfeiture of rights.
14. TERM AND TERMINATION
14.1 The License is granted for a period of one (1) year and shall be automatically renewed for consecutive periods of one (1) year, unless the License fee was not paid.
14.2 Notwithstanding article 14.1 of these Platform General Terms and Conditions, the Seller shall have the right at any time during the duration of this agreement to terminate it forthwith by sending a written notice to this effect to the User by registered mail, without any notice period, if the User breaches any of their obligations under these Platform General Terms and Conditions notwithstanding a written request from the Seller to refrain from such a breach, and, if possible, to prevent such a breach or breaches from occurring in the future and to rectify the situation, and the User fails to comply with such a request within a period of thirty (30) days after receipt of that request.
15. CONFIDENTIALITY
15.1 Any documents, information, models and drafts or designs of any nature provided to the User during the negotiations on and/or the execution of the agreement between the Seller and the User and/or that are mentioned in any possible document from the Seller, including order confirmations and delivery notes from the Seller, must be treated as confidential. Upon first request, the aforementioned documents must be returned to the Seller.
15.2 Such documents, information, models and drafts or designs remain the property of the Seller and shall not be disclosed to third parties or copied or used directly or indirectly, wholly or partially, for purposes other than those for which they are intended, except with the express written consent of the Seller.
15.3 The obligation to observe confidentiality also continues after the end of the agreement between the Seller and the User, at least until the documents, information, models and drafts or designs in question have entered the public domain without the fault of the User.
16. (PERSONAL) DATA
16.1 The data generated by the Software/uploaded on the Platform (including via the App) by the User or any third party shall be processed in accordance with the Platform privacy policy.
17. DISPUTES
17.1 Any disputes between the parties shall as much as possible be settled amicably and in accordance with Belgian Law. In case the parties do not reach an agreement within a period of thirty (30) days after the negotiations have started, the dispute shall be settled in negotiations between the management of each party, which managers shall have the necessary proxy to bind the company.
17.2 If the dispute is not settled within a period of thirty (30) days after the negotiations between the managers of the parties have started, the dispute shall be finally settled by the competent courts of the registered office of the Seller.
Last updated: 20 September 2019