Buildbase Product Agreement

1. Agreement & scope 

1.1 This Agreement contains the general contractual framework for the Services that may be provided by STROUWI to the Customer with regard to the Product, consisting of: – The grant of a right to use the Product (subscription); – Setup Services; and – Maintenance and Support Services. 

1.2 If the Customer wishes to have Custom Implementation Services or PREMIUM Support Services performed by STROUWI, a separate Custom Implementation Services Agreement (Attachment 2) and/or PREMIUM Support Services Agreement (Attachment 3) will be signed. 

2. Setup of the Product and Hosting Services 

2.1 STROUWI shall use all reasonable endeavours to ensure that the Setup Services are provided in accordance with the timetable set out in Attachment 

1. 2 2.2 The Customer acknowledges that a delay in the Customer performing its obligations under the Agreement may result in a delay in the performance of the Setup Services and STROUWI will not be liable to the Customer in respect of any failure to meet the timetable to the extent that failure arises out of a delay in the Customer performing any of its obligations which is in breach of this Agreement. 

2.3 The Customer acknowledges and agrees that STROUWI will set up, monitor and maintain the infrastructure using third party services (the Hosting Services), such as, for example, Amazon Web Services or Microsoft Azure, on behalf of the Customer in accordance with Attachment 4.

3. Subscription 

3.1 Right to use 

STROUWI grants to the Customer a non-exclusive and non-transferable right to use the Product as described in Attachment 1, in accordance with the provisions of this Agreement and for the Customer’s own internal purposes and business operations exclusively during the Term of this Agreement. 

3.2 Customer restrictions 

The Customer may not: • copy, translate, modify, adapt, decompile, disassemble, reverse engineer the Product in whole or in part, except as and to the extent specifically authorized by applicable law; • create derivative works on the basis of the Product, modify the design of the databases that underlie the Product or perform Updates using update queries not supplied by STROUWI; • transfer the Product as a whole or in parts to the IT-environment of third parties without the consent in writing of STROUWI; • at any time deposit as security, assign, sub-license, sublease, sub-host, sell or give away control of any portion of the Product, without STROUWI’s written consent. 

3.3 Title and ownership 

Nothing in this Agreement will create the transfer of title or Intellectual Property Rights to the Product, Documentation and related assets by STROUWI to the Customer. 

3.4 Protection & modifications 

STROUWI is authorized to take technical measures to protect the Product against unauthorized use and/or copying. STROUWI is authorized to replace or modify the source code of the Product in order to adjust it to the evolution of the Product. 

3.5 Open source software 

The Customer acknowledges and agrees that the Product contains elements of open source software subject to the thereto applied open source licenses as listed in Attachment 6. 

4. Support and Maintenance 

4.1 Maintenance Services 

STROUWI shall provide the Maintenance Services to the Customer during the Term. 3 STROUWI shall provide the Maintenance Services with reasonable skill and care and in accordance with the provisions of this clause. STROUWI shall where practicable give to the Customer at least 10 working days prior written notice of Maintenance Services that are likely to affect the availability of the Product or are likely to have a material negative impact on the Product. 

4.1.1 Updates 

STROUWI shall give to the Customer written notice of any security Update to the Product and at least 10 working days prior written notice of any non-security Update to the Product. STROUWI shall apply Updates to the Product as follows: (a) third party security Updates shall be applied to the Product following release by the relevant third party, providing that STROUWI may -acting reasonably- decide not to apply any particular third party security Update; (b) STROUWI’s security Updates shall be applied to the Product following the identification of the relevant security risk and the completion of the testing of the relevant Update; and (c) other Updates shall be applied to the Product in accordance with any timetable notified by STROUWI to the Customer or agreed by the parties from time to time. 

4.1.2 Upgrades 

STROUWI shall produce Upgrades at its sole discretion. STROUWI shall give to the Customer prior written notice of the application of an Upgrade to the Product as follows: (a) at least 12 months for “Breaking” Upgrades that change the API interface of the Product without being compatible with previous versions; (b) at least 20 Business Days in line with the roadmap of STROUWI for all other Upgrades. STROUWI shall apply each Upgrade to the Product within any period notified by STROUWI to the Customer or as otherwise agreed by the parties in writing. 

4.2 Support Services 

STROUWI shall provide the Support Services to the Customer during the Term. STROUWI shall provide the Support Services with reasonable skill and care on a best effort basis. Support Services will be 2nd line support. 1st line support will be provided by the Customer team involved. STROUWI shall respond promptly to all requests for Support Services made by the Customer through the Service Desk (article 4.3), on Business Days and during Business Hours. If so requested, STROUWI will provide Support Services in accordance with and subject to the the provisions of the PREMIUM Support Services Agreement in Attachment 3. 

4.3 Service Desk 

Parties agree that all contacts in relation to the Product and this Agreement will be communicated through the Service Desk. 

5. Customer obligations 

5.1 In order to respect the provision of Services under this Agreement, the Customer will: 4 • make sure that the System Requirements (both software and hardware requirements) are met and tested before the Setup Services are initiated, including but not limited to the systems the Product will integrate with, the authentication systems the Product will use and the network components that allow integration between the Product and the Customer IT-environment, if so required; • grant its co-operation to the Setup Services and Custom Implementation Services by providing all useful and requested data, timely approvals or information to STROUWI; • take full responsibility for keeping third party hardware and software versions under the control of the Customer, aligned to the minimum System Requirements; • cooperate fully with STROUWI in diagnosing Incidents, notifying Incidents to STROUWI as it/they arise(s) and if possible supplying STROUWI with a reasonably documented, reproducible example of such Incident through the Service Desk. 

5.2 If any data or other input required under the terms of this Agreement from the Customer for the Setup Services, for the provision of Custom Implementation or Support Services on the Product, is not available to STROUWI or not available in good time or if the Customer does not fulfil its obligations in a material way that directly impacts STROUWI’s ability to provide the Services, STROUWI will be entitled to suspend the execution of Services. 

6. Excluded matters 

6.1 STROUWI will have no obligation to provide Services for: • a Product that has been modified, repaired altered or merged with unauthorized software by the Customer or third parties; • use of the Product other than in accordance with the Documentation and/or for a purpose for which it was not designed; • Customer’s failure to implement STROUWI’s reasonable instructions in respect of solutions to Bugs previously advised by STROUWI. 

6.2 Any service which is provided by STROUWI as a result of any of the foregoing will be considered as additional Services and charged on a time & materials basis in accordance with the usual rates of STROUWI or subject to the signing of a separate agreement. 

7. Fees 

7.1 The Fees for the Product and Services provided under this Agreement are listed in Attachment 1 and fall due on the agreed Payment Milestones. Fees related to the hosting and managed infrastructure (Attachment 4) and Fees for Custom Implementation (Attachment 2) or PREMIUM Support Services (Attachment 3) are separately charged in accordance with the provisions of the concerning Attachment. 

7.2 STROUWI will not charge any additional fees for Software Updates, supplied by STROUWI for the Product during the Term. The cost for the use of such Software Updates is included in the Fees. 

8. Payment terms & taxes 

8.1 The Customer agrees to pay all valid invoices issued by STROUWI at the Payment Milestones mentioned in the relevant Attachment to this Agreement. Except if explicitly agreed otherwise in such Attachment, STROUWI’s invoices must be paid by the Customer within thirty (30) calendar days, starting on the invoice date to the account number as mentioned on the relevant invoice. 5 

8.2 In case of any overdue payment, the relating invoice will, without prior notice of default, bear interest at the (applicable) statutory interest rate for late payment within the meaning of Article 1 of Directive 2011/7/EU of 16 February 2011 on combating late payment in commercial transactions (as amended from time to time) as implemented in applicable national law, as of the date on which the invoice was due. In addition, in case of any overdue payment: – STROUWI can refuse to deliver any Services until the amount owed has been paid in full, including any interest due thereon; – STROUWI can pursue any other remedies available under applicable law. 

8.3 Unless explicitly agreed otherwise, all amounts are net of taxes. All taxes which are or may be levied in the future by a government authority in respect of the Services provided by STROUWI under this Agreement, will be borne by the Customer. 

9. Limited warranty 

9.1 STROUWI warrants that the Product conforms in all material respects to STROUWI’s published Documentation in effect on the Signature Date. 

9.2 STROUWI provides no other warranty, whether express or implied, in relation to the Product, except for the mandatory legally provided warranties. In particular, STROUWI provides no warranties of any kind in relation to: • the merchantability and/or fitness of the Product for a particular purpose; • the compatibility of the Product with the software and/or the hardware of third parties; • the expectation of the Customer that the Product will satisfy or may be customized to satisfy all or any of Customer’s specific requirements, except if explicitly agreed otherwise in writing; • the uninterrupted or error-free use of the Product by the Customer, regardless of whether such warranty would otherwise be imposed by contract, statute, course of dealing, custom and usage, or otherwise. 

9.3 If STROUWI supplies or assists in supplying to the Customer any hardware or non-STROUWI software during or after Setup Services, the Customer acknowledges that any warranty is provided solely by the relevant third party vendor, and not by STROUWI in whatever way. Hence, the Customer will address any warranty or other claim directly to the relevant third party. 

10. Term and Termination 

10.1 The Agreement will commence on the Signature Date and will remain in force and effect for an initial period as agreed upon in the Attachment 1 (the “Term”). Subsequently, the Agreement will be automatically renewed for renewal periods of 1 (one) year, unless the Agreement is terminated by either Party providing written notice thereof at the latest 3 (three) months before the end of the then current period. 

10.2 Despite the above, the parties will be entitled, without prejudice to their other rights or remedies, to terminate the Agreement at any time and with immediate effect by notice by registered letter to the other party if (“Termination for cause”): – said party is in breach of any of its obligations under the Agreement and either that breach is incapable of remedy or the concerning party has failed to remedy that breach within thirty (30) days after receiving written notice requiring it to do so; or – a court order is made for the winding up of said party; 6 – an effective resolution is passed for the winding up of said party (other than for the purposes of amalgamation or reconstruction); – said party has a receiver, manager, administrative receiver or administrator appointed in respect of it; or – said party is unable to pay its debts as they fall due or its assets are worth less than its liabilities on a balance sheet basis. Such immediate termination of the Agreement will automatically cause the immediate termination of any separate agreement in respect of Custom Implementation Services or PREMIUM Support Services in place. 

10.3 Upon early termination of the Agreement by either party due to the other party’s breach of the Agreement, the party not in breachmay require the payment of damages by the party in breach. In case of the Customer being in breach such damages will be proportionate to the remaining Fees, without prejudice to any other indemnity exceeding this amount. 

10.4 Upon expiry or termination of the Agreement: – the Customer’s right to receive and use the Product and/or Services under the Agreement will cease automatically; – each party will immediately return to the other all property and materials belonging to that party, including all Confidential Information; – all amounts due from the Customer to STROUWI hereunder will be paid immediately. 

10.5 Any termination of the Agreement will not affect any accrued rights or liabilities of either party, nor will it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly, or by implication, intended to come into force or continue in force on or after termination. 

11. Relationship between the parties 

11.1 The relationship between the parties is that of independent contractors. Nothing in the Agreement will constitute, create or give effect to a joint venture, employer/employee relationship, partnership or other co-operative entity between the parties. 

12. Limitation of liability 

12.1 Neither party will be liable to the other or any other party for any indirect or consequential economic losses or damages, including, but not limited to, loss of profits, loss of revenue, loss of data or loss of goodwill, howsoever arising out of or in connection with the performance of Services under this Agreement. 

12.2 To the full extent permitted by applicable law, STROUWI’s total liability for direct damages to the Customer in respect of the Agreement will not exceed the amount of the Fees paid by the Customer for the last six (6) months, but never exceeding a total amount of EUR 50.000 (Fifty Thousand Euros).

13. Intellectual Property Rights 

13.1 All Intellectual Property Rights in either party’s materials, information or data provided by that party to the other party under this Agreement will be and remain vested in that party. The other party will have no rights in respect thereof save for any rights granted to it by that party under this Agreement. 

13.2 All Intellectual Property Rights in the Product and all signs and logos used in the Product will be and remain vested in STROUWI at all times. The Customer will have no rights in respect thereof save for any rights granted to it by STROUWI under this Agreement. 7 

13.3 All Intellectual Property Rights created in the delivery of Services to the Customer will, as between the parties, be the exclusive property of STROUWI. 13.4 The Customer acknowledges that STROUWI may make the result of any such Services available to any of its other customers or any other third party, except for any code or functionality that contains Confidential Information of the Customer as described in clause 15. 

14. Indemnity for breach of third party rights 

14.1 Without prejudice to clause 12, STROUWI will indemnify the Customer against any direct damages which may be awarded against it by an enforceable court decision, as a result of the Product being held to infringe an Intellectual Property Right of a third party, provided that: – the Customer shall notify STROUWI promptly by e-mail, upon learning that a claim might be asserted; – STROUWI has sole control over the defense of the claim and of any negotiations for its settlement or compromise; – the Customer takes no action that is contrary to STROUWI’s interests. 

14.2 If a claim, as described in this clause, may be or has been asserted, the Customer will permit STROUWI, at the latters option and expense, to: – procure the right to continue using the Product; – replace or modify the Product to eliminate the infringement while providing functionally equivalent performance; or – return the Product and refund to the Customer a pro rata share of Fees that the Customer has actually paid for the period that the Product is/was not usable. 

14.3 STROUWI will have no indemnity obligation whatsoever to the Customer under this clause if the Intellectual Property Rights infringement claim results from: – a correction or modification of the Product not provided by STROUWI; – the failure to promptly respond to suggested Updates, which would resolve the infringement; – the use of the Product by the Customer in a manner not consistent with this Agreement, the Documentation or the reasonable instructions of STROUWI; or – the combination of the Product with other software not agreed upon by STROUWI. 

15. Confidentiality 

15.1 The parties acknowledge that they may become privy to Confidential Information which is disclosed by the other party. 

15.2 The Receiving Party will keep all Confidential Information confidential. The Receiving Party will not disclose Confidential Information to any other person, and will not use Confidential Information for any purposes other than for the purposes of the Agreement. The Receiving Party will safeguard the Confidential Information to the same extent that it safeguards its own confidential and proprietary information and in any event with not less than a reasonable degree of protection. 

15.3 The Receiving Party agrees to disclose Confidential Information only on a “need-to-know” basis to employees and independent contractors. 8 

15.4 The Receiving Party agrees that before any of its subcontractors and/or agents may be given access to Confidential Information, each such subcontractor and/or agent will agree to be bound by a confidentiality undertaking comparable to this Agreement. Notwithstanding the return of any Confidential Information, the Receiving Party and its subcontractors and/or agents will continue to hold in confidence all Confidential Information, which obligation will survive any termination of the Agreement. 

15.5 In the event the Receiving Party is requested or required to disclose, by court order or regulatory decision, any of the other party’s Confidential Information, the Receiving Party will provide the other party with prompt written notice so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. The Receiving Party will furnish only that portion of the Confidential Information which is legally required. 

15.6 Within ten (10) business days upon (i) the termination of the Agreement or (ii) the Disclosing Party’s reasonable earlier request at any time, the Receiving Party will destroy or return to the Disclosing Party (at its option) any and all of Disclosing Party’s Confidential Information, and will purge all copies and traces of the same from any storage location and/or media. 

15.7 Confidential Information will not include any information that the Receiving Party can establish: • prior to receipt from the Disclosing Party, was in the possession of or rightfully known by the Receiving Party without an obligation to maintain its confidentiality; • at the time of use or disclosure by the Disclosing Party was generally known to the public without violation of this Agreement and not as a result of any action or inaction of the Receiving Party; • is disclosed to the Receiving Party by a third party not in violation of any obligation of confidentiality; or • is independently developed by the Receiving Party without the participation of employees or other individuals who have had access to Confidential Information of the Disclosing Party. 

15.8 Any infringement by the Receiving Party of its confidentiality obligations will entitle the Disclosing Party to claim payment of a EUR 25,000.00 (Twenty Five Thousand Euros) lump sum, without prejudice to the Disclosing Party’s right to claim higher damages if the Disclosing Party can prove the existence of such higher damages. 

16. Data Protection 

16.1 Each party shall, at all times, comply with its respective obligations under the General Data Protection Regulation 2016/679, as amended, and any further implementation or replacement of that law (“Data Protection Legislation”). The word “Process” and the expression “Personal Data”, when used in this clause shall have the meaning assigned thereto in the Data Protection Legislation. 

16.2 STROUWI shall process Personal Data provided to it pursuant to this Agreement and the Data Protection Agreeement (Attachment 5) in accordance with the Data Protection Legislation. 

17. Subcontracting and assignment 

17.1 STROUWI will be entitled to use the services of subcontractors for the performance of any Services under this Agreement. In such case, STROUWI will remain liable towards the Customer for the performance of these Services. 9 

17.2 Neither party will be entitled to assign any right or obligation under this Agreement without the prior written consent of the other party, which will not be unreasonably withheld or delayed. 

18. Force majeure 

18.1 If the performance of the Agreement by either party, or of any obligation thereunder (with the exception of payment obligations), is prevented, restricted or interfered with by reason of war, revolution, civil commotion, riot, fire, flood, disaster, acts of public enemies, blockade or embargo, strikes, epidemic, any law, order, proclamation, regulation, ordinance, demand or requirement having a legal effect of any government or any judicial authority or representative of any such government, or any other act whatsoever, which is beyond the reasonable control of the party affected, such party will, upon giving prior written notice to the other party, be excused from such performance to the extent of such prevention, restriction, or interference, provided that the party so affected will use its best efforts to avoid or remove such causes of non-performances, and will continue performance thereunder with the utmost dispatch whenever such causes are removed; provided, however, that the nonexcused party may terminate the Agreement if such non-performance continues uncured for thirty (30) calendar days. 

19. Miscellaneous 

19.1 Compliance with laws and regulations 

Both parties will, for their own accounts, comply with the laws and regulations of the public authorities relating to this Agreement and pay all fees or other expenses in this respect. 

19.2 Waiver 

The failure of either party at any time to insist upon strict performance of any of the provisions under this Agreement will not be deemed a waiver of its right at any time thereafter to insist upon strict performance. 

19.3 Notices 

All notices, demands or consents required or permitted under this Agreement will be in writing. Notice will be sent to the parties at the addresses set forth above, or at such other address as will be given by either party to the other in writing. 

19.4 Headings Section 

headings used herein are for reference only and will not be used to construe the provisions of this Agreement. The plural will be deemed to include the singular, and the singular will be deemed to include the plural. 

19.5 English language 

All communications by STROUWI under this Agreement, will be in English. 

19.6 Applicable law and jurisdiction 

The Agreement will be governed by and construed under the laws of Belgium. Each party submits to the exclusive jurisdiction of the competent courts of Antwerp, division Antwerp, for the purposes of any dispute arising hereunder. 

20. Definitions and interpretation 

20.1 Definitions 

For the purposes of this Agreement, the following terms will have the meanings specified or referred to in this clause: 10 

“1st line support” will mean a role in Incident management, where generally the staff involved has less technical skills or has less experience with the Product than those of 2nd line support. In reference to this Agreement, the Customer team will perform Incident diagnosis and triage of the Tickets before sending them to the Service Desk. 

“2nd line support” will mean a role in Incident management, where generally the staff has greater technical skills or has more experience with the product than those of first-Line. In reference to this Agreement, the STROUWI team will perform Incident diagnosis and be responsible for resolution after the Customer has triaged the tickets arriving at the Service Desk and resolving any issues within their area of responsability. 

“Agreement” will mean the framework agreement between the parties incorporating the Attachments. 

“Attachment” will mean any attachment to the Agreement, forming an integral part thereof, and incorporating the terms and conditions of this Agreement. 

“Bugs” will mean any mistake, problem, or malfunction which causes an incorrect or inadequate functioning of the Product without such Incident being caused by third party interference or dependencies. 

“Business Day” will mean Monday through Friday, excluding Belgian public holidays. 

“Business Hours” will mean 9:00 a.m. – 6:00 p.m. on a Business Day, CET. 

“Confidential Information” will mean any and all information that is disclosed (orally, in writing, by electronic delivery, or otherwise) by one party (“Disclosing Party”) to the other Party (“Receiving Party”) prior to or during the term of the Agreement (or to which the Receiving Party otherwise gains access as a result of the Agreement) relating to the business of the Disclosing Party, including without limitation business plans and models, financial information, market research, Customer and supplier information, proprietary software and methods, and information concerning proprietary inventions and technologies. The Product, Documentation and this Agreement and its Attachments, including the amount of fees to be paid hereunder, are agreed to be Confidential Information of STROUWI. 

“Customer” will mean the party receiving the Product and Services as defined in the preamble of this Agreement. 

“Customer Data” will mean all data which is received, stored, or transmitted on or through the Product, including personal data which will be processed in accordance with the provisions of the Data Processing Agreement (Attachment 5). 

“Custom Implementation Services” will mean the Services related to definition, engineering, testing and deployment of custom components for the Product, configuration or help with configuration, technical support during integration for third-party system integrators, training and project management subject to the provisions of the Custom Implementation Services Agreement. 

“Documentation” will mean any (a) publications relating to the use of the Product, such as reference manuals, user guides, systems administrator and technical guides; or any (b) written materials prepared by STROUWI describing the infrastructure setup, platform, software requirements or any technical specifications relating to the functionality of the Product, installation specifications, and other technical requirements specified for the operation of the Product, as made available by STROUWI to the Customer. 

“Fees” will mean all fees, related to the Product and the Services provided by STROUWI as agreed upon in the Attachments to the Agreement. 

“Hosting Services” will mean the managed infrastructure services provided in accordance with clause 2.3 and Attachment 4. 

“Incident” will mean that the operation of the Product deviates from the (expected) standard as provided for in the Agreement and any related Documentation. 11 

“Intellectual Property Rights” will mean all patent rights, trademarks, designs and models, copyrights, softwarerights, rights in databases, proprietary rights in know-how, including trade secrets and other confidential information, and any other form of legally protectable intellectual or industrial property rights under any jurisdiction whatsoever. 

“Maintenance Services” will mean the Services related to the maintenance of the Product under this Agreement. 

“Payment Milestone” will mean a specific moment or event as defined in the Attachments to the Agreement, triggering payment date of certain Fees. 

“Product” will mean the “Buildbase” application, consisting of (i) the managed infrastructure and (ii) the software which will be made available by STROUWI to the Customer as a service via the internet in accordance with this Agreement. 

“Resolution” will mean the delivery of a deliverable that resolves a Bug in a testing environment. 

“Services” will mean, amongst others, the configuration, setup, development, maintenance, monitoring, hosting and support services supplied by STROUWI to the Customer with regard to the Product. 

“Service Desk” will mean the internal support organization of STROUWI that serves as a single point of contact for all requests. 

“Set Up services” will mean the Services related to the creation of the Customer within the Product, set up of the Microsoft Azure hosting services in accordance with Attachment 4 and set up of the required user roles and user role mapping. “Signature Date” will mean the moment the Agreement is signed. 

“Software Update” will mean a release of the Product which corrects faults and Bugs or otherwise amends the Product, but which does not constitute a Software Upgrade; a Sofware Update will be indicated by the Product version going from, for instance, “x.1 to x.2.”. 

“Software Upgrade” will mean a new version of the Product, usually consisting of several bundled improvements, adjustments and reviews. A Software Upgrade will be indicated by the Product version going, for instance, from “1.x.x to 2.0.” 

“Support Services” will mean any services related to the support of the Product under this Agreement or in accordance with the provision of a PREMIUM Support Services Agreement. 

“System Requirements” will mean, the minimum hardware and software requirements, including devices, operating system versions and general equipment requirements to run the Product, as listed in Attachment 1 and the Documentation, or notified otherwise by STROUWI to the Customer. 

“Ticket” will mean an Incident logged in the Service Desk. “Ticket Status” will mean the current status of a specific Ticket, such as for example, open, feedback, acknowledged, in progress, etc… as described in the PREMIUM Support Services Agreement. 

20.2 Interpretation 

The titles and headings included in this Agreement are for convenience only and do not express in any way the intended understanding of the parties. They will not be taken into account in the interpretation of this Agreement. The Attachments to this Agreement form an integral part thereof and any reference to the Agreement includes the Attachments and vice versa.