The software is a service platform as described on the WHOMAN information page.

Transcription

1 1 WHOMAN GENERAL TERMS AND CONDITIONS WHOMAN: WHISE: Customer: User(s): WHOMAN Distributor: General Terms: Annexes: The software is a service platform as described on the WHOMAN information page. WHISE N.V. a company duly registered under the laws of Belgium, with registered office at Leuvensesteenweg 775, 1140 Brussels, Belgium and with company number , The entity registered on the WHOMAN order page that enters into a license and service agreement with WHISE with respect to WHOMAN. The person(s) to whom the Customer gives a username and password in the WHOMAN account of the Customer. The official distributor of WHISE who is the principal point of contact for the Customer. The General Terms and Conditions governing the use of WHOMAN by the Customer. Any and all documents referred to in the General Terms. Related Services: The services set forth in Article Applicability The General Terms are applicable to all use by Customer of WHOMAN and to the Related Services offered by WHISE. The Customer s terms and/or those of a third party do not apply. WHISE may from time to time change the General Terms or its Annexes. The Customer has thirty days to protest such changes, after which period the new terms are deemed to have been accepted by the Customer. If the Customer does not accept the new terms, WHISE reserves the right not to extend or renew any licenses and/or Related Services. 2. Orders The Customer may from time to time order licenses and/or Related Services from WHISE. All orders must be placed using the WHOMAN order page. Only the offers on the WHOMAN order page will be treated by WHISE as regular and binding offers. For such licenses and/or Related Services, the applicable fees will be those effective as of the time the order is placed. All prices quoted are net and exclude VAT. Any other offer, as well as all information, drafts, presentations, calculations and/or enclosures issued by WHISE or a WHOMAN Distributor, are to be taken as information only and in no event are they binding to WHISE. 3. Licenses Upon payment of the applicable fees, WHISE grants to the Customer a non-transferable and nonexclusive license to use WHOMAN. According to the license, such use will be exclusively for Customer s sole and unique benefit and in accordance with the intended use of WHOMAN. WHOMAN is separated in a Basic pack, and additional packs. For each pack there is a separated license. Customer acknowledges that WHOMAN is constantly being improved by WHISE. The Customer will only have access to the latest released version of WHOMAN. Each new version or update of WHOMAN will replace as modified version the original or previous version thereof, and henceforth be subject to all rights and obligations as mentioned in the General Terms. During the updates, WHOMAN may temporarily not be available to the Customer. Acquired licenses are effective for the period of one year starting on the date indicated on the WHOMAN order page. The licenses will be automatically renewed each year, unless Customer or WHISE gives a written notice to the other party of its intention not to renew the license at least three months before the ending of a one year term. The expiring of all the Customer s licenses for the Basic pack automatically terminates the use of Customer s WHOMAN website, i-frames, webservices, and additional packs. 4. Server space and transfer of data a. Server space The Customer may order additional server space by ordering and paying for it via the WHOMAN order page. The additional server space will be provided for the period indicated on the WHOMAN order page. The Customer may extend this period by placing a new order on the WHOMAN order page. If the volume of the data stored on the servers of WHISE by Customer exceeds the server capacity which has been paid for by the Customer, the

2 2 Customer will be required to purchase additional server capacity via the WHOMAN order page. If the Customer terminates his use of WHOMAN by not extending his licenses, WHISE will remove the Customer s data stored on its servers. The Customer acknowledges that by not extending his licenses or by refusing to pay for additional server capacity, he takes responsibility for any and all loss of data as a result thereofin case the Customer wishes to avoid data loss by transferring his data to another system, the Customer can ask a copy of his data at least 30 days prior to such transfer. If the applicable fees for the license are paid, WHISE will deliver a complete set of data in a standard format such as csv, xml,... WHISE will deliver the complete set of data free of charge once. WHISE reserves the right to invoice for additional delivery of the complete set of data at the then applicable rates of WHISE. b. Transfer of data The transfer to WHOMAN of Customer s data including data stored with the use of other software is not included in the license fees. In case the Customer wants to have such data transferred to WHOMAN, Customer must contact his WHOMAN Distributor to proceed with such transfer. Any assistance from WHISE that may be needed for the execution of such transfer will be invoiced at the then applicable rates of WHISE for such service. 5. Scope and limitation of the Related Services provided by WHISE WHISE provides the Customer with a software platform that enables the Customer to store data and to perform operations as set forth in the WHOMAN information page. The Related Services provided by WHISE are strictly limited to all reasonable measures to ensure the working and availability of WHOMAN as set forth in the service level information page. WHISE does not screen the text or media content, processed through WHOMAN by the Customer. The Customer is free within the limited scope of its license rights to use and operate WHOMAN according to its intended purpose. As a result, the Customer bears the sole and full responsibility for the content that he processes with the use of WHOMAN. 6. Customer s obligations and liability Customer accepts the complete and unconditional responsibility for any and all operations performed under the accounts of the Users. Customer is responsible for the confidentiality of his accounts, usernames and passwords, for the access to his computer system and for the acts and negligence of any party making use of an account of the Customer. Customer will not allow access to WHOMAN to any person that is not a registered User in WHOMAN. In case Customer finds or suspects any misuse of his account information, Customer will immediately change his passwords. The Customer will comply with (i) all international, national, state and local laws and regulations, and (ii) all internet regulations, policies and procedures. The Customer agrees to never use WHOMAN for illegal purposes or conduct that is otherwise objectionable. The Customer may not process any content that (i) is unlawful, harassing, libellous, abusive, threatening, or harmful of any kind or nature or otherwise objectionable; (ii) he does not have the right to process under any law or under contractual or fiduciary relationships; (iii) infringes any rights of a third party, such as but not limited to patent, trademark, trade secret and copyright rights. The Customer will not use nor display any means, software or routines that might harm other parties or the good functioning of WHOMAN, or disproportionately burden the WHOMAN system. The Customer accepts the full responsibility for his accounts and agrees to defend, indemnify and hold harmless WHISE, its shareholders, directors, officers, employees, agents, distributors, attorneys, parent companies, subsidiaries and affiliates, harmless from and against any and all claims, liabilities, judgments, penalties, taxes, costs and expenses (inc. reasonable attorney fees and costs) arising out of or related to Customer s breach of the General Terms or the Annexes. 7. Data protection The Customer is entitled to process its customers personal data as set forth in Article 2 of the Privacy Directive 95/46/EC (hereinafter Personal Data ) on WHOMAN, strictly in accordance with following terms: - Customer acknowledges that he will comply with all regulations relating to privacy protection that are applicable in the area where he operates. - If necessary, Customer will register the processing of Personal Data with the competent authorities. - With regard to the use of WHOMAN and of the WHISE server by the Customer, including but not limited to the option to pass Personal Data to third parties, WHISE will only act and Customer instructs WHISE to act only as a processor of the Personal Data. - The Customer acknowledges that he acts as a controller and will remain at all times owner of the Personal Data.

3 3 - The Customer accepts full responsibility for the processing thereof and agrees to defend, indemnify and hold harmless WHISE, its shareholders, directors, officers, employees, agents, distributors, attorneys, parent companies, subsidiaries and affiliates, harmless from and against any and all claims, liabilities, judgments, penalties, taxes, costs and expenses (inc. reasonable attorney fees and costs) arising out of or related to Customer s breach of this article. - Customer acknowledges and agrees that WHISE may generate reports based on data processed through WHOMAN. These reports will not contain any Personal Data. 8. WHOMAN Distributors The WHOMAN Distributor of Customer will act as the Customer s primary point of contact. WHISE does not provide direct support to the Customer, but provides second-line support to the WHOMAN Distributors. The Customer will contact its WHOMAN Distributor for all assistance and support. 9. Title to WHOMAN All intellectual property rights in, title to or ownership of WHOMAN shall at all times remain with WHISE. This includes the copyrights on the structure, organization and overall composition of the standard WHOMAN websites. All manuals, documentation and programs, whether available in hard copy or accessible by remote inquiry shall remain confidential and the property of WHISE. Customer shall not use, print, copy, modify, translate or alter WHOMAN in whole or in part. The WHISE and WHOMAN logo s and names are protected trademarks of WHISE. The Customer is not entitled to use, copy, remove or hide these signs without express written approval of WHISE. Customer is not allowed to grant any sub-license or other right with respect to WHOMAN. 10. Confidentiality The Customer acknowledges that all information and/or data that it receives from WHISE in respect of WHOMAN is confidential and represents an important commercial asset of WHISE. The Customer hereby undertakes to keep this confidential information and/or data strictly secret, and in no circumstances and in no way to divulge it and/or to make it known to third parties, and not to use this information and/or data to its own benefit without express written permission from WHISE. The Customer shall only pass the confidential information and/or data to or make it known to those of its employees that absolutely must have this information and/or data to use WHOMAN and the related services. WHISE undertakes a similar confidentiality obligation with respect to the confidential information of the Customer that is processed through WHOMAN. 11. Limitation of liability of WHISE WHISE will provide all reasonable efforts to ensure the proper functioning of WHOMAN as set forth in the service level information page. WHISE represents that WHOMAN is developed in a professional manner and is consistent with generally accepted industry standards. WHISE will continue to improve WHOMAN and warrants that WHOMAN at all times will comply with such standards. However, WHISE does not warrant that WHOMAN is entirely free of small bugs and errors. WHISE provides WHOMAN as it is. WHISE does not warrant that the functions contained in WHOMAN will meet the Customer s performance requirements or that WHOMAN will operate in accordance with the Customer s expectations. The Customer accepts responsibility for the selection of WHOMAN, its use and the results to be obtained there from. WHISE makes no warranty of any kind, express or implied, and the warranty of fitness for a particular purpose is hereby excluded. WHISE can only be held liable for gross negligence ( zware fout, faute grave ). It cannot be held liable when a defect or malfunction of WHOMAN is attributable to (i) a software or hardware defect that was not issued by WHISE, or (ii) the fact that changes or amendments to WHOMAN have been made without its permission, or (iii) if the Customer fails to report immediately any defect together with documentation and information relating to the occurrence of the defect. The Customer understands that WHOMAN is an online application and that all software and data will be run from the WHISE servers that are located in Belgium. WHISE cannot be held liable when a defect or malfunction of WHOMAN is attributable to network or communication issues. WHISE will not be liable to the Customer or third parties for loss of profits or business, loss of data, indirect, consequential or incidental damages, even if WHISE has been advised of the possibility of such losses or damages. For direct damages, if repair in species is not possible, the liability of WHISE toward the Customer shall never exceed an amount equal to the license fees paid by the Customer over the last twelve months. The Customer shall take all necessary measures that can reasonably be expected to limit its damage. The Customer shall indemnify WHISE and hold it harmless against and in respect to any and all claims, damages, losses, costs, expenses, obligations, liabilities, actions, suits, including without limitation, interest and penalties, reasonable attorneys fees and costs and all amounts paid in settlement of any claim, action or suit that may be

4 4 asserted against WHISE or that WHISE shall incur or suffer that arise out of, result from or relate to: (a) the non-fulfillment or breach of any obligation of the General Terms or Annexes; (b) any claim of any nature whatsoever brought by any third party who may suffer damages of any sort as a direct or indirect result of the Customer s activities relating to or in connection with the Customer s use of WHOMAN. 12. Customer website WHOMAN enables Customer to purchase its own WHOMAN website using the WHOMAN order page. The WHOMAN website can be parameterized according to Customer s liking. The WHOMAN Distributor will provide support to Customer to create and parameterize Customer s WHOMAN website. When a Customer opts to create a website that is not a WHOMAN website, such Customer can order web-services or i-frames from the WHOMAN order page to connect its own website with WHOMAN. Customers that opt to use a website that is not a WHOMAN website must be assisted by suppliers with sufficient technological knowledge. 13. Termination for cause In case WHISE notices an action by Customer or lack of action by Customer that might in WHISE s reasonable opinion breach the General Terms or the Annexes, harm directly or indirectly a third party, might otherwise be objectionable or if a third party notifies WHISE of a possible harm, WHISE will contact the Customer in order to remedy the breach or harm caused as soon as possible and in any event within 15 days. In extreme cases or in case the Customer fails to timely remedy his breach or the harm caused, WHISE at its sole discretion may immediately and without notice, without intervention of the court ( de plein droit ), block or remove any content and/or terminate or suspend any Customer license, without any repayment of license fees or other indemnification of Customer and with complete indemnification of WHISE. or delay in transportation or communications, or any act or failure to act by the other party or such other party's employees, agents or contractors. 15. General If any of the provisions of this General Terms and Annexes are held to be or rendered void or unenforceable, the Customer agrees that the same shall not result in the nullity or unenforceability of the remaining provisions, but that Customer and WHISE will use their best efforts to replace such provision with a valid and enforceable provision which will achieve, to the extent possible, the economic, business or other purpose for said void or unenforceable provision. The mere fact that WHISE does not insist upon or enforce strict compliance by the Customer of any provision of the General Terms or Annexes shall not be construed as a waiver or relinquishment of WHISE's rights pursuant to this condition, unless made in writing. The rights and remedies afforded to WHISE pursuant the General Terms and Annexes are in addition to and do not in any way limit any other rights or remedies afforded to WHISE by law. All such rights and remedies are cumulative and may be exercised singularly or concurrently. All notices between WHISE and the Customer shall be written in English and shall be deemed to be given to the Customer if sent by to the address for notices registered via the WHOMAN order page and to WHISE if sent by info@whise.be. 16. Applicable law and venue Any agreement between Customer and WHISE with respect of the use of WHOMAN and the General Terms and Annexes shall be governed by, interpreted and construed in accordance with the laws of Belgium. Venue for any proceeding brought hereunder shall be with the courts residing in Brussels (Belgium). In case WHISE discontinues its services or blocks the Customer s access to WHOMAN on the basis of this provision, Customer will not be entitled to any indemnification from WHISE for the damages suffered as a result thereof. If the Customer unsuccessfully contests WHISE s decision in court, the Customer will reimburse WHISE s legal costs and expenses (incl. all attorney fees and costs). 14. Force Majeure Neither party shall be in default or otherwise liable for any delay in or failure of its performance if such delay or failure arises by any reason beyond its reasonable control, including the elements, earthquakes, floods, fires, epidemics, riots, failures

5 5 WHOMAN INFORMATION PAGE WHOMAN: WHISE Online Management system (WHOMAN), an advanced and intelligent online CRM software specifically developed for the real estate professional. WHOMAN is internet-based. The basic pack provides the Customer with a login and password for the use of the software application. This software contains the following packs: THE BASIC PACK Estates: management of estates, export of advertisements to newspapers and portal sites, history of estates,... Contacts: management of contacts (owners, buyers, prospects,...), history of contacts, preferences of prospects (number of bedrooms wanted, price range, area,...),... Automated matching: the system automatically looks for matches between the criteria of the prospect and the available estates,... Calendar: management of the agenda of the whole staff WHOMAN Website: content management for easily changing / updating text on the WHOMAN websites Administration: management of users, passwords, rights, default settings,... THE ADDITIONAL PACKS MARKETING BOOSTER: The Marketing Booster is pack which gives the possibility for the Customer to do Marketing campaigns to his database of contacts. It contains the following functionalities: o Treatment of refused mails o Layout tool for mails o System to keep database up-todate o A reporting tool o A system to send the mails.