Terms of Service

July 1, 2016


Terms of Service

July 1, 2016

THE SOFTWARE CONTAINS OPEN SOURCE SOFTWARE such as “NodeJS”, “MongoDB”, “JAVASCRIPT” as distributed UNDER THE MIT LICENSE. The Licensee understands and agrees that the open source Application shall remain subject to the terms and conditions under which it is provided. THE OPEN SOURCE APPLICATION IS PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OF ANY KIND. Taglayer DISCLAIMS EXPLICITLY ALL OTHER WARRANTIES, SUCH AS EXPRESS, IMPLIED OR STATUTORY WARRANTIES WITH REGARD TO THE OPEN SOURCE APPLICATION. Software that is not licensed as open source, or software that is custom created by taglayer remains in full property of taglayer. No intellectual property rights are transferred to licensee. IF YOU HAVE QUESTIONS OR CONCERNS ABOUT OUR TERMS AND CONDITIONS, PLEASE CONTACT US AT [email protected]

1. THE TERMS AND CONDITIONS (“T&C”) IS A LEGAL AGREEMENT BETWEEN THE CUSTOMER AND TAGLAYER ALLOWING THE CUSTOMER THE RIGHT TO USE THE SOFTWARE AND SERVICES. The T&C govern the right of the Licensee to use the Software, the selected functionalities and our corresponding services. 2. The Customer accepts the terms stipulated herein by accepting the T&C, thereby entering it into force. PLEASE READ THE PRESENT TERMS AND CONDITIONS AND ALL ACCOMPANYING INFORMATION CAREFULLY BEFORE YOUR ACQUISITION OF OUR APPLICATION. THESE DOCUMENTS SET FORTH THE LEGALLY BINDING TERMS THAT GOVERN YOUR RIGHT TO USE THE APPLICATION. THE LICENSEE IS NOT ENTITLED TO MAKE USE OF THE APPLICATION and is CONSTRAINED TO remove it from his possession if the Licensee does not agree to these terms. 3. In this Agreement, the following terms should be understood as follows: “Software”: The cloud-based software that is made available to Licensee in the context of the implementation of the Agreement. “TAGLAYER”: A company incorporated and existing under the laws of Belgium, with its registered office at B-2900 Schoten, Columbuslei 10 and registered under Enterprise number BTW-BE 0649.465.874. “Customer”: Any natural or legal person that purchases or intends to purchase the Application under the terms of this Agreement (hereinafter also referred to as ‘you’ or ‘your’). “Data Subject”: Any natural person whose data is being processed within the functionality of the software. 4. TAGLAYER reserves the right to unilaterally revise or update the Agreement at any time and at its sole discretion. Any revision will take effect upon the posting of the updated terms on the website. The Customer understands and agrees that a continued use of the Application after publication of any changes to the Agreement constitutes acceptance of those changes. It is your responsibility to check the Agreement regularly for changes. 5. This Agreement constitutes the entire agreement between the parties with regard to the possession and use of the Application, hereby superseding any prior oral or written agreements between the parties regarding the subject matter herein. Any addition or deviation from this Agreement is only valid to the extent that a mutual agreement is reached and recorded in writing. 4. If any provision of this Agreement is shown to be unlawful, invalid or otherwise unenforceable for any reason whatsoever, it shall be deemed severed from the Agreement and shall not affect the validity, legality and enforceability of the remaining provisions of this Agreement. Any unlawful, invalid or unenforceable provision shall be amended to achieve as closely as possible the common intentions of the parties as expressed in the original term, to the extent permitted by applicable law. TAGLAYER reserves the right of first initiative to change the invalid or inapplicable clauses unilaterally.

License and services
1. The licensed Application TAGLAYER is software used for the purpose of personalising websites and mobile applications. The Application consists of several functionalities, including possible custom-made functionalities, as agreed with the Licensee upon purchase. TAGLAYER may impose additional conditions and instructions on the use of certain functionalities. Right of use/installation of the Software 2. In consideration for payment of the Licence Fee and subject to the Terms and Conditions of this Agreement, TAGLAYER hereby grants the Licensee a worldwide, non-exclusive, non-transferrable and non-sublicensable right to install and apply the Software and any related documentation that accompanies the Application, for your own purposes (“License”). Any other use or exploitation not explicitly granted to Licensee in this Agreement shall not be allowed without written consent from TAGLAYER. 3. Customer acknowledges that the Software is constantly being improved by TAGLAYER. The Customer will only have access to the latest released version of the Software. Each new version or update of the Software will replace as modified version the original or previous version thereof, and henceforth be subject to all rights and obligations as mentioned in this Agreement. During the updates, the Platform may temporarily not be available to the Partner. 4. The Licensee may not reverse-engineer, disassemble or decompile, or attempts in any other way to investigate and derive source code or structural framework of the Application, except and only to the extent as provided for by applicable law. The Licensee is not entitled to modify or create any derivative works of the Application or documentation. Neither is the Licensee entitled to sell, assign, distribute, (sub-)license, rent, lease, lend out or in any other way transfer any portion of the Application or any rights granted hereto, or to disclose the Application to a third party without the prior written consent of TAGLAYER. 5. TAGLAYER pursues the continuous accessibility of the Application to its best efforts. TAGLAYER has applied all technical, non-technical and organizational measures that are necessary and reasonable to ensure this commitment. Interruptions and failures are always recovered within short term, if possible. These commitments should be understood as being an obligation of means. The Licensee can rely on support from TAGLAYER if confronted with questions or comments regarding the accessibility. Free users of TAGLAYER are not entitled to full support. We kindly refer you to our FAQ online. 6. TAGLAYER has applied all technical, non-technical and organizational measures that are necessary and reasonable to ensure the proper operation and safe nature of our Application. Both preventive as remedial measures are foreseen. TAGLAYER will inform the Licensee immediately about any potential risks and subsequent required action, to the extent that this is possible and necessary. For our online services depend on several external factors, such as the Internet and third parties, it is not possible for TAGLAYER to provide absolute guarantees about the proper functioning and safety. The above-mentioned commitments should be understood as being an obligation of means. The Licensee acknowledges and accepts that our Application can never be completely free of imperfections and that not all deficiencies can be repaired. 7. If the Licensee acts contrary to the terms and obligations, the applicable rules of law, the rights of third parties or generally accepted Internet behavior rules, TAGLAYER reserves the right to take all reasonable and appropriate measures. This includes the monitoring of the gathered date with the TAGLAYER-Software. TAGLAYER decides unilaterally whether or not to take punitive and remedial measures and the scope of that measure. Monitoring and data processing 8. For the functioning of the Platform, a software code (snippet) needs to be placed on the Tracking Property. This snippet will enable TAGLAYER to gather customer data on the Tracking Property and provide Displays on the Displaying Property. The correct installation of the snippet and the enabling of the display of the information generated by TAGLAYER is to be performed by the Partner. The Partner acknowledges that the Platform cannot operate correctly in case the snippet is not placed properly. If the snippet is not or incorrectly placed, TAGLAYER cannot be held accountable for incomplete information. 9. TAGLAYER performs an active monitoring and data processing on the data gathered with the software, with the objective to analyse the performance and to improve the efficiency of the website. For the providing of Displays, The Partner will provide access to the Tracking Property and all required assistance to enable TAGLAYER to crawl the Tracking Property. The initial installation and configuration of the Platform is included in the License fee. TAGLAYER is entitled to use crawlers to check and punish misuse and abuse. 10. Taglayer shall process and store the gathered data on a cloud-hosted virtual space available for storage of data, information and other files ("content"). The Purchaser can rely on TAGLAYER to have taken all reasonable steps that protect the added contents against accidental or unlawful destruction or accidental loss, modification, unauthorized disclosure and access. TAGLAYER, furthermore, provides a regular back-up of the content stored at our Application. A regular back-up should be understood as at least one back-up per day. Although TAGLAYER is free to determine the frequency of this back-up. 11. TAGLAYER may require the Licensee to use third party services in order to optimize the efficient use of the application. TAGLAYER is a mere intermediary party and therefore is not responsible for the proper functioning of the (software) products, services and any other act of such recommended third party suppliers. Maintenance and updates

Availability commitment: TAGLAYER will use commercially reasonable efforts to make the Platform available with a Monthly Uptime of at least 99% over the course of each calendar month. In the event that TAGLAYER does not meet the Availability Commitment described in this agreement for a given calendar month, Partner is entitled to a reimbursement inversely proportional to the Monthly Uptime for the month as stipulated by the following table:

12. TAGLAYER aims to provide a high-quality Application by performing regular maintenance activities and updates of the Application. These operations will be effected within a timeframe that is characterized by a general reduced activity, unless the conditions justify otherwise. The timeframe during which these operations are performed can never count for any calculation of deficient accessibility and operation. 13. Maintenance operations, modifications and improvements of the Application may have a temporary impact on the accessibility and proper functioning of the Application. TAGLAYER will inform the Licensee about such actions at least 24 hours in advance, to the extent possible or useful. The timeframe during which these operations are performed can never count for any calculation of deficient accessibility and operation. Support 14. TAGLAYER provides support to the Licensee with regard to Application dysfunctions and incidents. A dysfunction is every situation precluding the proper operation and accessibility of the Application. An incident is a temporary dysfunction whose effects no longer exist at the time of notification. We distinguish two types of dysfunctions: A dysfunction due to a lack of technical or software knowledge. A dysfunction caused by a technical or software defect. 15. TAGLAYER expects the Licensee to report any dysfunction and incident without undue delay via email: [email protected] TAGLAYER will only correct the reported dysfunctions. The Licensee must provide a clear description of the dysfunction and the conditions under which the dysfunction appears, preferably with a print-screen. 16. The support is provided by employees of TAGLAYER or by a designated third party. Support is only provided during the office hours, i.e. from Monday to Friday between 09u00 and 17u00. Support will not be provided on public and prior-announced holiday-periods. Free users of TAGLAYER are not entitled to this kind of support. We kindly refer you to our FAQ online. 17. Our support will process each new reported dysfunction within a reasonable timespan and no later than 48 working hours upon acceptance by our helpdesk. 18. Support is only provided by means of distance communication, such as telephone, email or 'remote assistance'. The Licensee shall provide all necessary and reasonable cooperation in order to make a fast solution available. The support does not cover on site intervention, except otherwise agreed upon. 19. An immediate and permanent solution for a dysfunction may not always be possible. The Licensee understands and accepts that a solution is not always equivalent to a restoration of the original condition. A deficiency does not give rise to a monetary refund.

Restrictions to the use of the Application 1. The Licensee is only allowed to use the Application for the initially intended purposes only, as described by TAGLAYER. The Licensee has no right to use the Application for purposes other than described in this Agreement and the accompanying information. 2. The Licensee is not allowed to use the Application for actions and behaviours that are contrary to applicable legal provisions, morality or public order, the rights of third parties and the provisions of this Agreement. These include, among others, but not exclusively, the following actions and conducts: Use the Application in the course of criminal or fraudulent activities; Data mining; Advertising; Use the Application for unauthorised web scraping, spamming (sending large amounts of e-mail with the same content and/or posting messages with similar content in large numbers of newsgroups on the Internet); Use the Application for unauthorised or unwanted breaches of computer systems, including hacking and similar unauthorised actions; 3. TAGLAYER reserves the right to take all reasonable and appropriate measures if the Licensee is in breach with these Terms & Conditions or any known obligations, the applicable legislation, the rights of third parties or generally accepted Internet code of conduct. TAGLAYER retains a broad margin of choice about taking punitive and remedial action and the scope of that measure, such as a temporary or permanent limitation of access to certain functionalities. Measures can be taken without prior warning and/or prior notice.

The License Fee 1. The License Fees for the Application as a Service which the Licensee purchases under this agreement will be identified in the Purchasing agreement and/or as indicated on our website www.taglayer.com. Additional services are provided at Licensee’s request. All Fees are presented exclusive of VAT and/or other taxes and charges. All Fees are presented in EURO and should also be paid in EURO. 2. TAGLAYER may at any time adjust the applicable fees and rates. The Licensee will be informed of any price changes within at least 30 days prior to the review. The revision is only possible under a services agreement with a fixed term period of which at least twelve (12) months has elapsed since the start or since the most recent revision. The Licensee is deemed to agree to the adjustment unless if the Licensee terminates the agreement by means of a registered letter at the latest to thirty (30) days after entry into force of the new rates. A review based on the consumer price index is not regarded as a price adjustment within the meaning of this clause. 3. The applicable fees and rates shall be the subject of a yearly automatic indexation on the basis of the Agoria index, in accordance with article 57 of the law of March 30th 1976. The calculation is done according to the formula:

Being understood as:
‘Pnew’ = The new customised prevailing prices or rates; ‘Pold’ = The prices or rates applicable at the time of signing the agreement; ‘Agorianew’ = The reference wage cost at the time of Pnew. ‘‘Agoriaold’ = The reference wage cost at the time of Pold. Reference wage cost: As published by Agoria, sector Gent (category +10 employees) The payment

4. All our invoices are payable to account number BE81 7340 4116 8324, unless otherwise stated on the invoice. In case of deficient payment at due date, an interest at 1% per year is charged in combination with a compensation for damages set at 10% of the invoiced amount, with an absolute minimum of €250. These compensations will be due automatically and without the requirement of a prior registered letter. TAGLAYER preserves the right to claim compensation for other damages due to this deficient payment. 5. The Licensee must indicate his complaints regarding invoices towards TAGLAYER in writing and within ten (10) days after receipt of the invoice. The written notification must state the invoice date, invoice number and a detailed description of the complaint. 6. A deficiency upon payment is considered as a weighty shortcoming to one or more essential obligations of this Agreement, as discussed in article 5.2 of this agreement.

1. This agreement is effective from the date of signature by the Licensee. The license granted by this agreement is valid for an unlimited period of time, starting from the moment of activation of the Application. The Licensee has the right to terminate the agreement at the expiration of each month. The Licensee who wishes to terminate the agreement must notify TAGLAYER explicitly at least one week prior to the expiration, by means of a registered letter or by means of the electronic termination form on our website. The agreement will be automatically extended with a month, at the end of each license-period in the absence of a proper termination by the Licensee. By the automatic extension of the agreement, the credit account of Licensee will be automatically credited. 2. Either party may at any time, temporarily or immediately, suspend or terminate the execution of this Agreement if that party is faced with a weighty shortcoming to one or more essential obligations of this Agreement that is attributable to the other party. A prior notification via registered letter, thereby granting the other party a reasonable timeframe to comply with its obligations is required, if such timeframe is still useful. The termination shall be without prejudice to the other rights of the party that terminates the agreement, including the right to claim compensation for the damages suffered as a result of breach of the obligations. 3. TAGLAYER has the right to terminate the License Agreement immediately unilaterally and without further ado if the Licensee does not longer meet the requirements of the license Agreement for a period of two months or more due to a situation of bankruptcy or debt settlement. TAGLAYER will notify the defaulting Licensee by way registered letter of his use. Both parties will remain obliged to fulfil all its obligations until the receipt of the letter. 4. The termination of the agreement implies that the Licensee no longer has access to the Application and his content. 5. TAGLAYER has the liberty to change, expand, limit or terminate our Application and all accompanying services at any time. The use of this right demands no prior notice to the Licensee and does not give rise to any claim regarding compensation. 6. The Licensee is not entitled to a reimbursement of the amount already paid for the remaining month of the term of the original agreement if this License Agreement would take an end before the due date, for any reason whatsoever.

1. TAGLAYER and/or his licensors and suppliers retain all intellectual property rights with regard to the Application and all associated developments. These intellectual property rights refer to the copyrights, Application and database protection rights as defined under the Belgian Copyright Act of 30 June 1994, the Belgian Application Protection Act of 30 June 1994 and the Belgian Database Protection Act of 31 August 1998 with regard to the Application and all preparatory work and other materials used in the development and delivery of the Application. 2. There is absolutely no transfer of intellectual property rights under this Agreement. The Licensee should be at all time aware of these intellectual property rights and should therefore refrain from any violations as they may lead to his liability. The Licensee is not allowed to remove, alter or obscure any references that indicate the intellectual property rights of TAGLAYER. 3. All gathered data and the results of the processing activities by TAGLAYER and its Software remain the (intellectual) property of TAGLAYER. Under no circumstances is the Licensee entitled to demand access to the data of TAGLAYER.

1. TAGLAYER is only liable for any him attributable major or repeated minor contractual and/or non-contractual breach, including any obligation of warranty, caused in the performance of its obligations under this Agreement. This liability is limited to direct damages resulting from the breach. The liability of TAGLAYER can never exceed the total amount of license fees that are actually invoiced under this Agreement during three (3) months prior to the breach, and is in any case limited to a absolute maximum of € 1000. 2. TAGLAYER is not liable for damages in connection with, or arising out of: Failure due to negligence, lack of knowledge, improper use or failure to follow the instructions from TAGLAYER; Any breach of the Licensee’s obligations under this License; The presence of viruses on the system or through the Internet or delivered downloaded data or Application. 3. TAGLAYER is not liable for any indirect damages. Indirect damages must be understood as any form of consequential damages, such as lost profits, financial or commercial loss, increased overall costs, increased personnel costs, damages due to loss of clients and suchlike damages. This list is not exhaustive. TAGLAYER is not liable for any damages due to the destruction and/or loss of data and/or documents. Abovementioned restrictions are not valid in case of fraud or wilful misconduct. 4. Any claims regarding liability must be notified to TAGLAYER within two (2) weeks after occurrence of the damage. A failure of notification will leave the claim without result. 5. Both parties must preserve each other from any third party-claims that occur in the execution of the Agreement if these breaches cannot be attributed to the other party. This duty of preservation includes the duty to inform and provide all necessary measures to rebut claims but also indemnify any incurred damages due to the claim.

1. TAGLAYER is not obliged to fulfil its obligations in case of force majeure. Force majeure concerns any situation in which the execution of this Agreement is, wholly or partly, prevented due to a situation that was previously unforeseeable or, if foreseeable, insurmountable. In that case, all obligations of TAGLAYER arising from this Agreement shall be wholly or partially suspended for the duration of the force majeure situation. TAGLAYER is not liable for any damages due to the force majeure. 2. Either party has the right to terminate this Agreement immediately, unilaterally and without further ado by means of a registered letter, if the force majeure is of permanent nature or persists for more than ninety (90) days.

1. TAGLAYER gathers metadata and no personal information in the execution of this Agreement. The Licensee hereby expressly provides his consent to process the information that is gathered during the purchase and/or activation of the Application. TAGLAYER will only process this information for the provision of the Application and additional services. TAGLAYER is entitled to use this information for internal use, including the spread of own commercial and non-commercial communications. No personal information is transferred to third parties, except in the cases permitted by law or if TAGLAYER is obliged by court order. Each act of processing personal information shall be in compliance with the applicable statutory regulations. 2. The Licensee is eligible as a Data Controller in accordance with Privacy Law because he (indirectly) processes personal data by means of the Application. The Licensee determines the data that will be processed via the Application, and this data may include third party personal data. The Licensee is, consequently, responsible for the lawfulness of processing of this personal data. TAGLAYER is a mere data processer with regard to the processing operations as described in this clause. 3. For more information regarding the processing of information, we kindly refer you to the Data Processing Agreement, which will be provided as an Annex to these General Conditions.

1. Not claiming a right by one of the parties under this agreement despite eligibility does not constitute a waiver of rights. 2. The Belgian law is exclusively applicable to this Agreement. The applicability of the Vienna Convention on Contracts for the International Sale of Goods is expressly excluded. All disputes arising from this Agreement and the related agreements will be submitted to the competent court in the district where TAGLAYER is established. Parties are committed to resolve disputes as much as possible in mutual consent. 3. TAGLAYER may transfer the rights and obligations under this Agreement to a third party, at any time. This third party will be the sole and full responsible for the further implementation of the Agreement. This can be done without the consent of the Licensee and the End-Users, and without giving rise to any compensation. 4. If the operation or the validity of one of the abovementioned terms is compromised, this does not affect the operation or the validity of the remaining terms of this agreement. In this case, TAGLAYER has the right to modify the compromised term to a valid one. The headings we use in our term are always just illustrative. No rights can be derived from this. Customer states that it is prepared to act as reference for the new customers, prospects and partners of TAGLAYER. TAGLAYER can use the Partner’s name and logo in its presentations, publications and on its company’s website.

1. It’s clear, our Application is one drafted by and for Licensees. We set high standards for ourselves and therefore appreciate any remark to help improve our Application. We kindly ask you to send any comments, questions and tips to [email protected]