1.1
All contracts concluded between PROSOCCER DATA NV, with its registered office at Terlindenweg 36, 1730 Asse and company number BE0837.201.456 (hereafter PSD) and the Licensee are subject to the present terms and conditions, which the Licensee declares to have read and accepted.
Other or contrary terms and conditions of the Licensee, even those stated on its purchase orders or other documents, shall be deemed unwritten. Under no circumstances can PSD's silence be interpreted as an acceptance of other terms and conditions.
1.2.
The following terms will have the meaning shown in the context of these general terms and conditions:
1.3
All Agreements shall be deemed to have been entered into at the registered office of PSD.
2.1
Offers made by PSD are valid for thirty days, unless otherwise indicated by PSD. Quotations are non-binding and without commitment, any changes from the quotation will be settled later.
2.2
The Agreement is established by the Licensee's written confirmation of acceptance of the price quote to PSD and the accompanying signing of the Service Level Agreement by PSD and the Licensee.
Under the Agreement, PSD grants Licensee a worldwide, non-exclusive, non-transferable and non-sublicensable right to install and use the Platform as well as (future) updates and any Platform-related documentation for its own purposes (hereinafter "License").
2.3
The prices included in an offer are stated in Euros and are exclusive of VAT, unless explicitly stated otherwise. Additional services will be charged after written agreement by the Licensee, either in accordance with the offer made by PSD, or at the gross cost price of the materials used (if any) and at an hourly rate of (to be completed) EUR excl VAT
Transport costs will also be charged at EUR (to be completed) per kilometer driven and EUR (to be completed) per hour traveled. Any accommodation and transport costs other than transport by car will be charged in full to the Licensee after prior approval by the Licensee.
With respect to the personal data of the Licensee and the End Users collected by PSD, the Licensee and the End Users expressly consent to the collection and processing of such personal data, given that the collection of such data is necessary for PSD to properly perform the Agreement.
The rights and obligations of PSD and the Licensee under this Article, shall be defined in a separate processor agreement signed by PSD and the Licensee following the formation of the Agreement.
In addition, with respect to the rights and obligations of End Users with respect to the collection and processing of their personal data, PSD refers to its privacy statement as available on PSD's website and submitted to End Users for approval prior to their first use of the Platform.
Provided the signing and thus acceptance of the Agreement, its signatory confirms that he has the necessary authority to be able to validly represent the Licensee, all in all, he confirms - insofar as the Licensee disputes being bound by the Agreement - that he has entered into the Agreement with PSD at least in a personal capacity and therefore will personally fulfill the obligations as contained in the Agreement, if applicable.
5.1.
The service level and related prices of PSD, are different depending on whether the Licensee is a Professional Club or an Amateur Club.
A Sport Association Licensee is equated with a Professional Club for the purposes of these Terms and Conditions.
5.2.
To the extent that the Licensee confirms to be an Amateur Club upon signing the Agreement online, yet PSD upon perusal of the Agreement and subsequent startup of the Platform, determines that the Licensee is indeed a Professional Club and has thus provided erroneous information in this regard, then:
5.3.
If, during the term of the Agreement, the Licensee makes the switch to Professional Sport and thus acquires the status of a Professional Club, PSD will notify the Licensee in writing of the changed service level and related prices for Professional Clubs, whereby these new prices will apply for the first time in the next contract year.
Insofar as the Licensee does not agree with the application of the new prices, the Licensee has the right, within fourteen days of the written notification by PSD, to terminate the Agreement between the parties by registered letter whereby the Agreement will subsequently end at the end of the current contract year. In this case, the Licensee shall owe PSD compensation in accordance with Article 8.4 of these General Conditions.
In the absence of a (correct) termination by the Licensee in application of the foregoing article, the Licensee is deemed to agree to the modified service level and the associated prices.
5.4.
Insofar as the Licensee is a Professional Club but loses access to Professional Sport during the term of the Agreement, PSD's initial contract terms and prices as set out in the Service Level Agreement between the parties will continue to apply regardless of this changed situation on the Licensee's part.
6.1
The Licensee will receive the necessary virtual space to store the data processed when using the Platform (the "Platform Data").
PSD will make backups of the data stored on the Platform on a regular basis. PSD will freely determine the frequency of the backups.
PSD will take all necessary measures to protect Licensee's data from accidental or unlawful destruction, accidental loss, modification, unauthorized publication and access.
In turn, the Licensee must equally take all measures reasonably necessary to protect and preserve the Platform Data.
6.2.
PSD takes all measures reasonably necessary to ensure the proper operation, security and accessibility of its Platform. This refers to preventive and curative measures.
In the event PSD has knowledge of a safety breach, it will immediately inform the Licensee of the actions to be taken.
6.3.
PSD aims to offer a Platform of high quality by carrying out regular maintenance operations and updates to the Platform. These operations will be made within a time period characterized by a general reduced activity, unless circumstances justify a different action. PSD always strives, to the extent possible, to keep the time period mentioned in this article as short as possible. The Licensee acknowledges that PSD will always do everything reasonably within its power in this regard and expressly accepts that maintenance work and updates may, where appropriate, lead to a period of reduced activity, regardless of their duration.
Maintenance work, changes and improvements to the Platform may temporarily affect the accessibility and proper functioning of the Platform. PSD will inform the Licensee of such operations at least 24 hours in advance, to the extent possible and useful.
The period of time during which these actions are taken and the reduced and/or impeded accessibility resulting from this for the Licensee and/or the End Users can under no circumstances give rise to the payment of any compensation to the Licensee.
6.4.
In view of the fact that PSD's obligations under the aforementioned article are always influenced by external factors such as the End Users' own behavior, the fact that the Platform was developed 'as is', the ever-existing risk of viruses, other harmful software, ... thus matters beyond PSD's control, PSD undertakes an obligation of effort with regard to its obligations under the aforementioned article.
In other words, PSD will perform its obligations as a reasonable and diligent person and in accordance with the rules of the art, monitor, adjust where necessary and do everything possible that is reasonably within its power, but PSD in no way guarantees that the efforts it has made will lead with certainty to the result desired by the Licensee.
7.1
The modules of the Platform specifically ordered by the Licensee, the service level that PSD will provide under the Agreement and the renumeration for this will be determined in the Service Level Agreement between the parties.
The fee for the use of the Platform, must be paid annually in advance by the Licensee, this after receiving the invoice from PSD. The Licensee is not entitled to a refund of amounts already paid for the remaining months of the term of the Agreement if, for any reason, the Agreement should be terminated before the scheduled end date.
7.2
To the extent that the Licensee is an Amateur club and wishes to use additional Add-ons/modules, they will be able to purchase them on the Platform and make payment for them directly through the Platform.
The Licensee hereby expressly accepts that the provisions of these General Terms and Conditions and the Service Level Agreement - with the exception of the separately stated price conditions and duration of the Add-on - apply in full to this additional Add-on, so that no separate agreement needs to be signed between the parties in this regard.
Add-ons can only be purchased with the intervention of a person authorized by the Licensee within the Platform to make these purchases. It is the sole responsibility of the Licensee to authorize the appropriate persons for this purpose within the Platform, so that Add-ons ordered additionally cannot be cancelled, even if they were ordered by a person incorrectly authorized by the Licensee.
7.3
Insofar as the Licensee is a Professional Club and wishes to use additional Add-ons/modules, it will contact PSD in this regard so that additional contractual arrangements can be made between the parties tailored to the Licensee.
7.4
If additional services need to be provided by PSD beyond what was stipulated in the Service Level Agreement, these services will be charged in accordance with article 2.3 of these general terms and conditions
7.5
PSD's renumeration in accordance with Article 7.1. and the Service Level Agreement, follows the fluctuations of the Consumer Price Index (Consumer Price Index) and is adjusted each year on the anniversary of the effective date of this Agreement according to the formula:
new fee = base fee x new index/starting index number
The starting index is the "consumer price index", namely the month prior to the month of signing this agreement.
The new index is the "consumer price index" of the month preceding that of the anniversary of the effective date of the agreement.
Any increase or decrease in compensation pursuant to this Article shall accrue to PSD by operation of law, without notice. PSD's failure to timely claim an index adjustment does not constitute a waiver of rights.
7.6
To the extent that for reasons beyond PSD's control (raw material price increases, supplier price increases, ...) PSD's prices stated in the Service Level Agreement in accordance with Article 7.1, should be increased, PSD will notify the Licensee in writing, whereby these new prices will apply for the first time in the next contract year.
Insofar as the Licensee does not agree with the application of the price increase, it has the right, within fourteen days of the written notification on behalf of PSD, to terminate the agreement between the parties by registered letter whereby the Agreement will then end at the end of the current contract year.
In the absence of a (proper) termination by the Licensee in application of the foregoing article, the Licensee shall be deemed to agree to the price increase
7.7
To the extent that a discount is granted between PSD and the Licensee under a barter agreement to the Licensee in exchange for consideration from the Licensee (in any form, e.g., logos on jerseys, advertising panels, posts on social media, etc.), PSD shall first invoice the Licensee in full for its services for payment in accordance with Section 7.1. Under no circumstances may the Licensee make any deductions under the barter agreement.
Subsequently, after the Licensee has correctly delivered the consideration, the Licensee must address an invoice in favor of the discount to PSD, after which PSD will proceed to pay this invoice.
Concrete further agreements on the fulfillment of the barter agreement, will be made by PSD and the Licensee in the Service Level Agreement.
8.1
The duration of the Agreement between PSD and the Licensee regarding the use of the Platform is determined in the Service Level Agreement between the parties, with the Agreement commencing on the date of signing of the Service Level Agreement by PSD and the Licensee.
The Agreement is hereby extended on the anticipated end date of the Agreement - subject to termination by registered letter no later than three months prior to such end date - for the same term each time as initially provided for in the Service Level Agreement.
8.2
Either party may immediately terminate the Agreement, without any term or compensation, in case of serious default or failure of the other party to any of its obligations in the Agreement, which has not been remedied within a period of fifteen days after sending a registered notice.
The parties always consider the following deficiencies to be serious deficiencies:
This list is non-exhaustive, and any serious failure that irreparably damages the trust between the parties to the extent that further cooperation is impossible may be grounds for termination in accordance with Articles 8.2 and 8.3.
8.3
Each Party is entitled to terminate the Agreement immediately (without term or compensation) and without notice in the event that the other Party applies for protection from its creditors, is declared bankrupt, is put into liquidation, or in the event that a provisional administrator, trustee, or sequester is appointed over the other Party.
8.4
In the event of dissolution of the Agreement at the expense of the Licensee, the Licensee shall pay, in addition to any overdue invoices and other amounts, interest and fees still due, a dissolution fee equal to the total amount of the contract years yet to expire until the end of the anticipated remaining term of the Agreement.
8.5
Termination of the Agreement implies that Licensee and End Users will no longer have access to the Platform and its content. However, the deactivation of a user account does not automatically entail the immediate and irrevocable removal of the account and its content. PSD undertakes not to remove this content for a period of at least eighteen months following the termination of the Agreement, this to allow the transition to a possible new supplier of the Licensee, or to allow any return of the Licensee without significant problems. Licensee expressly accepts the foregoing and acknowledges that this period of retention following termination of the Agreement, is in its best interest.
9.1
The use of the Platform requires a registration on behalf of the Licensee/End User. This registration provides access to the Platform. Each Licensee accepts the terms and obligations of this Agreement when registering.
The End User must provide true, accurate, current and complete data. The Licensee is responsible for the correct implementation of this registration requirement. The requirements regarding the data provided also apply for future use. The End User alone is responsible for correcting or deleting outdated data. PSD may refuse a registration in case incomplete, incorrect or insufficient data is provided.
Each user account is strictly individual, personal and unique. A user account may not be transferred to a third party without the express written consent of PSD.
In any case, the Licensee remains exclusively responsible for all actions taken using his user account.
9.2.
Licensee shall not have the right to sell, distribute, sublicense, rent, lease, loan or otherwise transfer the Platform or any part of the software or release the Platform to any third party without the written consent of PSD. To the extent that the Licensee becomes the subject of a merger, demerger or any other similar construction during the term of the Agreement, regardless of whether the Licensee is the acquiring or the party to be acquired, or if the control of the Licensee within the meaning of Article 1:14 of the Belgian code of Companies and Associations changes, PSD shall have the right to address a new commercial proposal to the Licensee (or its legal successor) taking into account the new parameters available. In case the parties cannot reach an agreement, PSD has the right to terminate the agreement with immediate effect and without any compensation to the Licensee, without prejudice to PSD's right to continue the current agreement with the Licensee.
The Licensee and End Users must refrain from acts that have or may have a harmful impact on the proper functioning and security of the Platform and/or on its use. Consequently, the right of use is limited in the sense that use may not violate this Agreement, applicable law, the rights of third parties and generally accepted principles on the Internet.
In any case, the following actions are strictly prohibited:
9.3.
The Licensee and the End Users have the ability to upload digital content on the Platform. The Licensee and the End Users may only use this facility as a normal, prudent and foresighted person placed in the same circumstances would do.
In any case, uploading the following content on the Platform is prohibited:
9.4.
The Licensee acknowledges that data made available by third parties are offered on the Platform for the Licensee's information (e.g. results, calendars, formations, red and yellow card statistics, etc.). The Licensee undertakes on behalf of itself and its End Users not to copy, distribute, adapt or modify in any way these Data. Where appropriate, the Licensee will fully indemnify PSD in the event of any claim in this regard from these third parties.
9.5.
It is the full responsibility of the Licensee to take all necessary measures for the Platform to work on its own equipment. The Platform is fully functional and effective only if the Licensee provides the required and pre-specified hardware, (browser) software and telecommunication facilities. It is the Licensee's responsibility to ensure that the equipment and software used meet the system requirements as clearly communicated by PSD. PSD can in no way be held liable for this.
9.6.
The Licensee expressly undertakes to inform the End Users of their rights and obligations under the Agreement and shall ensure that the End Users will correctly apply the provisions of the Agreement at all times.
9.7.
PSD may take all necessary and reasonable measures if the Licensee, or the End User, violates the provisions of the foregoing Article 9. In doing so, PSD may determine in its sole discretion what measures it deems necessary in relation to the breach committed. To the extent necessary, PSD may grant the Licensee (or End User) temporary or permanent restricted access to certain functionalities or impose a temporary or permanent ban on use.
When circumstances require, these measures may be taken without any prior warning or notification. Under no circumstances shall the Licensee be entitled to a refund or compensation where applicable.
If the Licensee believes that the action taken is inappropriate or unfounded, it must notify PSD within fifteen (15) calendar days after the action is imposed. PSD will consider the arguments without, however, being obliged to undo the initial measures to the extent it deems their enforcement necessary.
10.1.
The Licensee may request support from PSD through various channels, with the content of such support varying depending on the service level agreed between PSD and the Licensee in the Service Level Agreement.
10.2.
Additional support, workshops, ... not provided for in the Service Level Agreement, can be provided by PSD at the request of the Licensee for a fee as set out in article 2.3. of these general terms and conditions.
10.3.
In any case, PSD provides support to Licensee for dysfunctions and incidents related to the Platform.
A dysfunction is any situation where the products or services provided do not (fully) correspond to the agreed functionality and where this has an effect on the proper functioning or accessibility of the Platform. An incident refers to any temporary dysfunction whose effects no longer exist at the time it is reported.
A distinction should be made between two types of dysfunctions:
Licensee certifies that it will report any dysfunction and incident within 24 hours in the manner provided in the Service Level Agreement. PSD is only obligated to repair the dysfunctions reported by the Licensee.
The Licensee must provide a clear description of the dysfunction and the circumstances in which the dysfunction occurs, preferably using a print screen, this so that PSD can provide maximum support and resolve the dysfunction.
An immediate and permanent solution to a dysfunction is not always possible. The Licensee understands and accepts that a solution is not always equivalent to restoration to the original state, given that Platform is offered "as is" and thus there is never an absolute guarantee of the proper functioning, security and accessibility of the Platform.
In view of the foregoing, a dysfunction shall in no way give rise to any refund to Licensee, except in the event that the Platform has become completely unusable due to the dysfunction resulting from a default on the part of PSD without any possibility of repair.
The Licensee expressly acknowledges that the provision of support by PSD in no way implies that PSD must develop new functionality at the request of the Licensee. Insofar as the Licensee has a request regarding a new functionality and PSD wishes to comply with this request, PSD will develop this new functionality after approval of the offer prepared by PSD by the Licensee.
11.1
PSD's invoices must be paid within thirty days of the invoice date, unless PSD expressly deviates.
11.2
In case of non(-timely) payment, the Licensee commits a default.
In this case, interest will be due on any unpaid or late paid invoice from the due date in accordance with the law of 02/08/2002, at least 10% interest per year. In addition, liquidated damages of 10% on the outstanding invoice amount, with a minimum of 125 euros, will also be due.
11.3
In case of non-payment of its invoices, PSD reserves the right to deny access to the Platform to the Licensee and End Users and to make the Platform available again only upon settlement by the Licensee of all amounts due to PSD.
PSD hereby bears no responsibility whatsoever with respect to any damage that the Licensee may suffer as a result of not accessing the Platform.
11.4
The Licensee may not withhold any amount as security and may not exercise any lien or offset on any ground whatsoever.
12.1
If PSD is temporarily prevented from fulfilling its obligations due to force majeure, they will be suspended.
12.2
Force majeure means circumstances which prevent the fulfillment of the commitment, and which cannot be attributed to PSD. This includes strikes, adverse weather conditions, frost, unforeseeable circumstances at suppliers or third parties on which PSD depends.
12.3
If a force majeure situation as referred to in this article lasts longer than three months, both parties are entitled to terminate the Agreement, without any obligation to pay damages in that case. In particular, upon termination of the Agreement in application of the foregoing article, the Licensee shall not be entitled to any refund of the amounts already paid by it under the Agreement.
Any services already provided by PSD but not yet paid for will be charged to the Licensee, if applicable, and must be paid for by the Licensee as if it were a separate contract.
13.1
Under no circumstances will PSD be held liable for indirect, indirect, economic damage or for damage to reputation or loss of profits, from opportunities to contract, etc.
13.2
Considering the fact that PSD's obligations under the Agreement are always influenced by external factors such as the End Users' own behavior, the fact that the Platform was developed 'as is', the ever existing risk of viruses, other malicious software, ... despite PSD's security measures, in any case matters beyond PSD's control, PSD undertakes an obligation of effort regarding its obligations under the Agreement.
In other words, PSD will perform its obligations as a reasonable and diligent person and in accordance with the rules of the art, monitor, adjust where necessary and do everything possible that is reasonably within its power, but PSD in no way guarantees that the efforts it has made will lead with certainty to the result desired by the Licensee.
13.3
By signing the Contract, the Licensee expressly agrees that PSD, in accordance with Article 6.3. §1 of the Civil Code, cannot in any case be held extracontractually liable by the Licensee/End User for the non-fulfillment of a contractual obligation.
Moreover, PSD can only be held liable for damages in cases of intentional misconduct or gross negligence.
By signing the Contract, the Licensee expressly agrees that the auxiliaries of PSD, in accordance with Article 6.3. §2 of the Civil Code, cannot in any case be held extracontractually liable by the Licensee for the non-fulfillment of a contractual obligation of PSD. PSD is in no way liable for damages caused by:
13.4
In case of damages arising from the breach or non-performance of an obligation under the Agreement, respectively, PSD's liability shall be limited to compensating only those damages, whose causal connection to the breach or non-performance of the Agreement, the Licensee can prove.
13.5
The limitations on damages resulting from this article shall – in case of a contractual claim - also apply to PSD's organs, managerial personnel or employees, respectively staff members and/or subcontractors and/or any other auxiliary person of PSD.
13.6
PSD's liability is limited to the ceiling of PSD's third-party insurance policy. Insofar as PSD's BA insurance does not intervene, PSD's liability is in any case limited to 15% of the total contract value of the Agreement. No additional damages may be claimed from PSD.
The Platform and all elements that make up the Platform, including but not limited to texts, graphics, images, source codes, illustrations, videos and all other materials that make the Platform what it is as well as the manner in which these elements are used in the Platform, constitute the intellectual property of PSD and are protected by copyright, trademark and any other intellectual property rights, to the extent applicable and to the extent requested by PSD.
Accordingly, the Licensee and the End Users shall not make their own changes to the sensors, gateway, source codes or any other element of the Platform subject to intellectual property rights.
The Licensee making a Backup or copies of (the contents of) the Platform must include all copyright or other notices in accordance with the aforementioned paragraph.
Regarding the intellectual property of modifications, improvements, ... to the Platform created by the actions of the Licensee during the Agreement, the Licensee confirms that these elements are exclusive and automatic property of PSD in the broadest sense as permitted by applicable law.
Under penalty of forfeiture, the Licensee must submit any complaint or protest regarding PSD's invoices, or any damages in application of Article 13, to PSD by registered mail within 5 business days of the invoice date/damage, stating the necessary explanations.
Any dispute shall be settled by the court having jurisdiction for the place where the registered office of PSD is located, unless one party as first claimant requests the Institute of Arbitration (www.euro-arbitration.org) to designate the Arbitral Tribunal, which shall settle any dispute in accordance with the Standard Dispute Rules. This provision supersedes all conflicting jurisdiction clauses.
Any agreement between PSD and the Licensee shall be governed by Belgian law.
If any provision of these general terms and conditions is held to be invalid or declared null and void, this shall not affect the application of the remaining provisions. The parties shall replace the invalid provision in good faith with a valid provision of as similar purport as possible.