Rods&Cones Terms and Conditions

Rods&Cones Terms and Conditions

Unless otherwise agreed between the Parties, these Terms and Conditions apply to the licensing of the Rods&Cones software (including any demo versions of Rods&Cones software) and all services provided by Rods&Cones BV, Rods&Cones Sales BV, Rods&Cones USA LLC (hereafter called Rods&Cones) to the Customer, in particular with respect to the Rods&Cones software. Together with the Quotation Agreement and Annexes, these Terms and Conditions shall constitute the entire Agreement between the Parties. In case of conflicts between these General Terms and Conditions and the Quotation Agreement, the terms of the Quotation Agreement will prevail.

Last update: 12-09-2022

1. Definitions

In this Agreement, the following definitions will apply unless inconsistent with the context or otherwise specified.

• “Additional Services” means services delivered by Rods&Cones that are not within the scope of the Setup Services, Configuration Services, Hosting Services, or Helpdesk Services, but may be delivered by Rods&Cones at the request of the Customer, as described in clause 3.6;

• “Affiliate” of a Party means in relation to a Party (i) any entity under the control of such Party; and (ii) any entity controlling such Party; and (iii) any other entity under the Control of a Controlling entity under (ii);

• “Agreement” means, collectively, these Terms and Conditions, the Quotation Agreement and all Annexes;

• “Annex” means any section of the Agreement entitled “Annex”;

• “Manager app” means the Customer’s central panel to manage the Rods&Cones Instance;

• “Confidential Information” shall have the meaning as set forth in clause 9.1;

• “Configurations” means the configuration, parameterization and other activities in respect of Rods&Cones that differentiate one Rods&Cones Instance from another Rods&Cones Instance. Configurations may include the integration of Rods&Cones with CRM system or user management systems. Configurations can be implemented either by Rods&Cones, or (where applicable) the Customer. Unless otherwise agreed, any Configurations required by the Customer and performed by Rods&Cones shall be charged as Additional Services;

• “Configuration Services” means the services provided by Rods&Cones to apply and implement the Configurations requested by the Customer, as described in clause 3.2;

• “Control” (and derivatives of this term) means with regard to an entity, the power to direct or cause the direction of the management and policies of an individual or entity, whether through the ownership of voting securities, by contract or otherwise;

• “Customer” means the party so identified in the “Customer details” section of the Quotation Agreement;

• “Data Protection Legislation” means General Data Protection Regulation (GDPR), Health Insurance Portability and Accountability Act (HIPAA) and any national implementations that apply to the Parties’ processing of personal data;

• “Effective Date” means the date this Agreement is signed by both Parties (as evidenced by the dates of signature indicated in the Quotation Agreement);

• “Error” means a substantial, verifiable and reproducible non-conformity of the Rods&Cones Instance with the User Guide;

• “Error Correction” means either the provision of a workaround, the temporary correction of the Error, or the correction of the Error via delivery of a new version, without materially reducing the functionality of the affected Rods&Cones Instance;

• “Force Majeure” means any cause beyond a Party’s reasonable control, such as acts from authorities, war, fire, flood, explosion or civil commotion, telecom breakdowns (including “denial of service” attacks and similar unavailability of internet connections), strikes, failure of a third party, software bugs in third party software, industrial action, etc.;

• “First Line Support” means the support provided to assist Users and/or Managers with the use of the Rods&Cones Instance. Front End Support will typically include answering basic questions, and guiding users through the functionality of the software. The Quotation Agreement specifies whether Front End Support Services shall be provided by Rods&Cones or Customer;

• “HCP” is a healthcare professional, for instance a surgeon or nurse;

• “Helpdesk” means the point of contact that Rods&Cones makes available for answering questions regarding the use of the Rods&Cones Instance. The Helpdesk can also be used by the Customer for Error reporting and the follow-up of Error Corrections;

• “Helpdesk Services” means the services provided by Rods&Cones with respect to the Helpdesk, as described in clause 3.3;

• “Hosted Data” means any electronic data (including lists, images, accounts of Customers, accounts of Users, etc.) stored in a Rods&Cones Instance, after being uploaded by the Customer or a User;

• “Hosting Services” means the Services described in clause 3.2;

• “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malware, malicious code, files, scripts, agents or programs;

• “Manager” means a staff member of the Customer, or any other person appointed by the Customer to manage the Customer’s Rods&Cones Instance;

• “Manager app”: is the software component that allows management of the Instance, amongst others creating, editing and deleting users and viewing analytics data;

• “Party” means either Rods&Cones or the Customer, while “Parties” means both Rods&Cones and the Customer;

• “Quotation Agreement” means the service subscription agreement by which Rods&Cones is making the Services available to the Customer.

• “Replacement Fee” is a fee to replace hardware in a subscription as defined in the Quotation Agreement;

• “Rods&Cones Service” means Rods&Cones’ proprietary remote assistance technology. Rods&Cones Service contains a hardware and software component;

• “Rods&Cones Instance” means an instance of the Rods&Cones application that is set up, customized and configured for the Customer in accordance with and within the limits of this Agreement, together with all Hosted Data;

• “Second Line Support” means support services with respect to the Rods&Cones Instance aimed to restore the service as soon as possible when the system is down;

• “Setup Fee” means the one-time fee to be paid by the Customer to Rods&Cones for the initial setup and configuration of the Rods&Cones Instance;

• “Setup Services” means the services that relate to the initial setup of the Rods&Cones instance: creation of enterprise account in the Rods&Cones Manager app, uploading the initial user list;

• “Services” means the services provided by Rods&Cones to the Customer. The Services consist of Hosting Services, Configuration Services, Services, Helpdesk Services and/or Additional Services;

• “Source Code” means the human readable form of software programs;

• “Standard Rates” means Rods&Cones’ standard pricing for all Additional Services delivered by it or other services to which the standard pricing applies. The Standard Rates that apply at the Effective Date are set forth in the Quotation Agreement;

• “Subscription” means the license accorded to the Customer for using Rods&Cones Service, as described in clause 2;

• “Subscription Fees” means the fees to be paid by the Customer for the use of the Rods&Cones Service and the provision of Hosting and Helpdesk Services during one month. The amount of the Subscription Fees and the Subscription Term shall be set forth in the Quotation Agreement;

• “Subscription Term” means the duration of the Subscription;

• “Term” means the term of this Agreement, as calculated from the Effective Date;

• “Terms and Conditions” means the present document, entitled “Terms and Conditions”;

• “Third Line Support” means support services with respect to the Rods&Cones Instance that are not handled by First Line and Second Line Support (for example, due to the complexity involved). Third Line services shall always be provided by Rods&Cones;

• “Training Services” means the services provided by Rods&Cones for training the Managers and Users of Customers in using the Rods&Cones platform and its tools;

• “Unit” means a set of hardware, composed of the smart glass, the pocket unit, the hardware and the peripherals;

• “User” means an end-user of Rods&Cones, who may under the supervision & authorization of the Customer use the Rods&Cones Instance;

• “User Guide” means the user’s guide for Rods&Cones, accessible through the online help function and the online Frequently Asked Questions, as updated from time to time;

• “Working Day” means all days except Saturdays, Sundays, public holidays in Belgium and the Netherlands. Working Days extend from 9:00 to 17:00 CET;

2. Rods&Cones Subscription

2.1. Rods&Cones grants to the Customer a non-exclusive, worldwide, non-transferable right to use the Rods&Cones Instance as described in the User Guide, and to enable the Managers and Users to access and use the Rods&Cones Instance during the Term.

2.2. The Rods&Cones Subscription set out in this section 0 may be subject to additional restrictions (for example, with respect to the number of Users), which will be set forth in the Quotation Agreement.

2.3. The Customer shall not have the right to receive the Source Code of Rods&Cones Service.

2.4. The Customer acknowledges that Rods&Cones Service and all copyrights, trade secrets and other right, title and interest therein, are the sole property of and vest in Rods&Cones and that the Customer shall gain no right, title or interest in Rods&Cones by virtue of this Agreement other than the non-exclusive right of use granted in this clause 2. The Customer specifically acknowledges Rods&Cones’ exclusive right to ownership of any modification, translation or adaptation of Rods&Cones and any other improvement or development based thereon, irrespective of whether it is developed on behalf of, supplied to, installed at or paid for by the Customer.

2.5. Users shall be able to access and use the Rods&Cones Instance as described in the Quotation Agreement.

2.6. Rods&Cones shall at all times remain the owner of the Hardware. Customer agrees to use the hardware with due care and will be liable for any damage to or loss of the Hardware. All deliveries of Hardware and the relevant logistics services will be made in accordance with the logistics services as described in clause 7. The Hardware is rented, not sold and remains the property of Rods&Cones. Customer shall at all times take all necessary measures to indicate that the Hardware is not its property and to protect it in any reasonable way against any measure of seizure of forced payment. Any labels affixed by Rods&Cones declaring ownership must at no time be removed; in case of removal, whatever the cause, such label shall be re-affixed without any delay. Customer will at all times treat the hardware with due care and will monitor compliant use of the Hardware. The Hardware can only be used in accordance with the DUser Guide provided by Service Provider. Any damages resulting from non-conform use of the Hardware shall be Customer’s sole responsibility. In the event any piece of Hardware is lost or broken, a Replacement Fee shall be due by Customer. Upon expiry or termination of the Agreement, the Hardware shall be returned to Service Provider.

3. Services relating to Rods&Cones

3.1. Setup Services – Unless otherwise indicated in the Quotation Agreement, and provided that the Customer in a timely manner delivers all requested information to Rods&Cones, Rods&Cones shall perform the initial setup of the Rods&Cones Instance.

3.2. Hosting Services – Unless if otherwise indicated in the Quotation Agreement, Rods&Cones shall make the Rods&Cones Instance available to the Customer and the Users. The Hosting Services shall consist of storing the Hosted Data, serving Rods&Cones page requests and web service invocations, and maintaining and updating Rods&Cones.

3.3. Helpdesk Services – To the extent agreed in the Quotation Agreement, Rods&Cones shall provide the Helpdesk Services, as further described in the Quotation Agreement.

3.4. Additional Services – Following the Customer’s request or following Rods&Cones’ observation that a particular service is not covered by this Agreement, Rods&Cones may provide the Customer with other, Additional Services which relate to Rods&Cones. The Customer expressly agrees that Rods&Cones is not obliged to deliver any Additional Services, and that the delivery of the Additional Services is subject to prior written acceptance of both Parties, and may also be subject to other or additional terms and conditions. The Additional Services shall be charged separately on a time-and-material base, at the Standard Rates, unless otherwise agreed by the Parties.

4. Use of the Rods&Cones Instance

4.1. The Customer shall use the Rods&Cones Instance and shall ensure that its Managers and the Users use the Rods&Cones Instance in accordance with the terms, conditions and limitations set forth in this Agreement and shall ensure that its Managers and Users shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make its Rods&Cones Instance available to any third party, unless explicitly allowed by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws (such as the EU GDPR); (iii) interfere with any laws concerning data privacy and shall always obtain an effective consent statement from the affected patient in surgery, said consent shall cover the pertinent requirements and aspects of data protection; (iv) do anything that would compromise a patient’s safety including but not limited to positioning the panOR and/or panOR pod above the sterile field; interfere with the physicians relationship with patients; direct an HCP or do anything that may be construed as practicing medicine, nursing or any other medical activity for which medical certification is required; provide advice, information or consent related to products for a purpose outside the scope of any approved indications for use; (v) be present during the surgery without  having been provided training programs and being aware of all applicable governmental laws and regulations; (vi) deliberately send or store Malicious Code; (vii) interfere with or disrupt the integrity or performance of the Rods&Cones Instance, or the data contained therein

4.2. The Customer acknowledges and accepts that it is responsible for the actions and omissions performed by itself, its employees, its designees, its Managers and the Users making use of the Rods&Cones Instance. The Customer shall ensure that said persons shall be informed of the relevant provisions of the Agreement, and shall comply with the relevant provisions of the Agreement. The Customer shall inform Rods&Cones of any (suspected) non-compliance it becomes aware of.

4.3. The Customer warrants that the Rods&Cones Instance is used in accordance with all applicable local, state, federal, national and international legislation and, in general, in a responsible manner, exclusively for admissible purposes and without breach of the rights of third parties. Without prejudice to clause 4.1, the Customer shall ensure that the Managers and the Users comply with the terms of this Agreement (e.g., by contractually imposing the relevant terms of this Agreement upon the Managers and the Users).

4.4. The Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Hosted Data.

4.5. The Customer shall be responsible for determining which of its employees or designees will have access to the Manager app.

4.6. The Customer acknowledges, accepts and warrants that (i) it acts as a professional, and not as a consumer; and (ii) all of the Users who use a Rods&Cones Instance, act as a professional, and not as a consumer.

4.7. The Customer warrants that the Manager shall be allowed and shall be competent to undertake the tasks and obligations assigned by this Agreement to the Managers.

4.8. The Customer shall prevent unauthorized access to, or use of, the Rods&Cones Instance (in particular through Manager accounts), and notify Rods&Cones promptly of any such unauthorized access or use.

4.9. The Customer shall protect the confidentiality of all its Rods&Cones usernames and passwords, and shall notify Rods&Cones promptly if any username or password is lost or would otherwise get exposed. The Customer shall be responsible and liable for all uses of its usernames and passwords whether or not any such use was authorized by the Customer.

4.10. Without prejudice to clause 11, the Customer warrants that the collection and processing of Hosted Data and the access to and use of the data available in the Manager app shall comply with all Data Protection Legislation.

4.11. In the event a Manager or a User does not comply with the terms and conditions of this Agreement or the terms and conditions made available on the Rods&Cones Instance, Rods&Cones shall be allowed to prohibit this Manager or User the access to and usage of the Rods&Cones Instance.

4.12. During the Term, the Customer shall have the right to use the logo and trade name of Rods&Cones and Rods&Cones to (i) indicate that Customer uses Rods&Cones; (ii) indicate that the Customer is a customer of Rods&Cones ; or (iii) promote or provide information on Rods&Cones, subject to the conditions that the use of the logo or trade name (a) does not jeopardize the reputation, image and goodwill of Rods&Cones , and (b) does not lead to any confusion about the fact that Rods&Cones is owned and operated by Rods&Cones ; and (c) does not lead to any confusion about the fact that Rods&Cones and the Customer are two independent parties with a separate legal identity; and (d) complies with any additional usage requirements provided by Rods&Cones to the Customer.

4.13. In order to allow Rods&Cones to carry out its support obligations efficiently and effectively, the Customer shall organize a central point of contact within its organization, and staff this central point of contact with qualified personnel. The Customer shall report any Errors immediately on detection through the Helpdesk, in a well-documented way. At Rods&Cones’ request, the Customer shall render assistance, as reasonably requested for the diagnosis, the reproduction and correction of the Error.

4.14. The Customer acknowledges that it is solely responsible for the choice, purchase and operation of the hardware, software and/or telecommunication services required to connect with the Rods&Cones Instance and use the Rods&Cones Instance. Such hardware, software and/or telecommunication services need to meet the minimum requirements defined by Rods&Cones. The Customer is responsible for the installation and related costs of purchasing and/or licensing such hardware, software and/or telecommunication services. Rods&Cones is not responsible for hardware, software, products and services of third parties, such as telecommunication equipment, operating systems and internet browsers.

4.15. The Customer hereby agrees to defend, indemnify and hold harmless Rods&Cones and its Affiliates against any and all damage, loss, costs, expenses, third party claims or demands (including claims of Users) arising out of the use by the Customer, its employees, its designees, Managers and/or the Users of the Rods&Cones Instance in a manner that does not correspond with this Agreement or, in general, all applicable laws, decrees and other legal instrument.

4.16. The Customer represents, warrants and covenants that (1) It has and shall have the unrestricted right to disclose any information it submits to Rods&Cones, free of all claims of third parties; and (2) Such disclosures do not and shall not breach or conflict with any confidentiality provisions of any agreement to which the Customer or the Personnel are a party.

5. Warranties

5.1. Rods&Cones warrants that: (i) it will perform the Services in a good and workmanlike manner; (ii) the Rods&Cones Instance shall function substantially in accordance with the User Guide, it being understood that small deviations from the User Guide will not constitute a breach of this warranty. The Customer recognizes, however, that all software may from time to time contain errors; and (iii) it shall use reasonable efforts to maximize the availability of the Rods&Cones Instance. The Customer recognizes, however, that this availability is subject to a variety of interdependent factors (such as the availability of telecommunication links, the interaction between software of various parties, network congestion on the Internet, etc.), which are substantially out of the control of Rods&Cones.

5.2. If the Rods&Cones Instance do not perform as warranted, Rods&Cones shall undertake to correct the Errors. However, Rods&Cones does not warrant that the Rods&Cones Instance will be error free or will perform in an uninterrupted manner. Rods&Cones cannot guarantee that the Services will meet the Customer’s specific expectations, objectives or requirements.

5.3. The Customer acknowledges that the access to and use of the Rods&Cones Instance may be suspended from time to time due to unanticipated or unscheduled downtime. To the extent possible, Rods&Cones shall schedule planned downtime outside Working Days.

5.4. Rods&Cones may suspend the (access to the) Rods&Cones Instance without involvement of a judge and without liability if (i) the Rods&Cones Instance is being used in breach of the Agreement; (ii) there is an internal or outside attack on Rods&Cones’ IT systems; (iii) Rods&Cones is required by law to suspend the Service delivery; or (iv) there is another event for which Rods&Cones reasonably believes that the suspension of the Rods&Cones Instance is necessary to protect its IT systems or customers.

5.5. Rods&Cones will use commercially reasonable efforts to give the Customer advance notice of such suspension, unless it determines, in its reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect Rods&Cones or its other customers from imminent and significant operational or security risk.

5.6. Rods&Cones warranties do not cover interventions not assignable to Rods&Cones such as, but not limited to: (i) Errors resulting from erroneous, improper, non-authorized or unsupported use of Rods&Cones ; (ii) Errors resulting from a fault of the Customer, a Manager or a User; (iii) Errors resulting from the interfacing of Rods&Cones with other software from third parties, unless approved in writing by Rods&Cones.

5.7. Unless explicitly agreed otherwise in writing by the Parties, any deadlines and timeframes for delivery of Services (for example, initial or additional Configurations) shall be considered as indicative, and shall not bind Rods&Cones, and shall not be of the essence.

5.8. Without the approval of Customer and provided that a similar functionality is kept or an improved functionality is guaranteed, Rods&Cones shall have the right at any moment to (i) activate a new or improved version of the Rods&Cones Instance; (ii) add additional functionality to the Rods&Cones Instance; (iii) to modify internal or external functioning of the Rods&Cones Instance, provided similar functionality is kept; or (iv) move its servers or networks to other locations or data centers, within the European Union. Rods&Cones shall undertake best efforts to ensure when performing such actions, that the impact on the use for Customer and its Users is limited.

5.9. This clause 5 constitutes Rods&Cones’ only warranty concerning the Services and is made expressly in lieu of all other warranties. Except as otherwise provided in this clause and to the fullest extent permissible under applicable law, Rods&Cones makes no warranties, express or implied, regarding any matter, including fitness for a particular purpose, merchantability and/or non-infringement.

5.10. Without prejudice to the generality of clause 5.9, Rods&Cones makes no warranties for any legal documents it may make available to the Customer for use by the Customer on the Rods&Cones Instance towards the Users (e.g., a disclaimer, terms of use or privacy policy). Any such documents are mere templates, which are provided for convenience by Rods&Cones. The Customer shall be responsible for the legal validity and compliance of such documents.

5.11. Customer will inspect and test goods upon reception for visible errors or missing components. 5 working days after delivery, the goods are deemed to be accepted as complete and in working condition.

6. Fees

6.1. The Customer shall pay to Rods&Cones the fees indicated in the Quotation Agreement. All payment obligations are non-cancelable and fees paid are non-refundable.

6.2. The Additional Services shall be charged at the Standard Rates. The Standard Rates shall be subject to change from time to time by reference to increased cost of production, commercialization, promotion, etc. Rods&Cones will provide the Customer with sixty (60) days’ written notice prior to the effective date of the new Standard Rates.

6.3. The Subscription Fees can be changed by Rods&Cones at any time, subject to Rods&Cones communicating the change to the Customer at the latest three (3) months before the change would become effective. If the Customer does not agree with the proposed change, the Customer can terminate this Agreement for convenience, by sending a registered letter at the latest two (2) months before the change would become effective. In the absence of such termination by the Customer, the adapted rates will be deemed accepted by the Customer. The Parties agree that the Subscription Fees that are already paid in advance by the Customer, will not be impacted by the increase as set forth in this clause.

6.4. Without prejudice to clause 6.3, the Subscription Fees shall be automatically increased by the inflation rate as indicated by the Consumer Price Index  at each renewal of the Agreement pursuant to clause 8.2, unless otherwise agreed in the Quotation Agreement.

6.5. Subject to the Customer’s consent, any other expenses incurred by Rods&Cones (such as travel expenses, out-of-pocket expenses, etc.) shall be invoiced to and paid separately by the Customer. Rods&Cones shall provide the Customer with proof of such expenses.

6.6. Except as otherwise provided, all fees are quoted and payable in EUR, and do not include any sales, use, excise, import or export, value added or similar tax (collectively “taxes”). Customer and/or User is responsible for paying all taxes associated with its purchases hereunder, excluding taxes based on Rods&Cones’ net income or property. If Rods&Cones has the legal obligation to pay or collect taxes for which Customer and/or User is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer and/or User, unless Customer and/or User provide Rods&Cones with a valid tax exemption certificate authorized by the appropriate taxing authority.

6.7. Unless otherwise agreed in the Quotation Agreement, all invoices are payable within thirty (30) days, calculated as from the invoice date. In case of late payment, a monthly interest of 1% will be charged automatically and without prior notice.

6.8. In the event of any failure of the Customer to timely make the payments indicated above, then Rods&Cones: (i) can demand that all outstanding invoices become due at once; (ii) can suspend the provision of any Service and/or the Rods&Cones Subscription, until all outstanding invoices have been paid; (iii) without in any way affecting its other rights hereunder.

6.9. Complaints concerning invoices must be submitted within eight (8) days upon receipt of the invoice. After this eight day period, the invoice will be deemed accepted.

7. Logistic services

7.1. New subscriptions

7.1.1. All transportation costs and customs fees (including but not limited to customs tax, customs storage, broker fees…) are at the customer’s expense. Our delivery services are FedEx, DHL or UPS and will be shipped from our central warehouse, based in Amsterdam, Netherlands.

7.1.2. For shipments out of the EU, customs or import fees might apply. By default, Rods&Cones will issue a commercial invoice, representing the actual value of the hardware. Other documents (if required) will be issued by Rods&Cones depending on the country specific customs requirements. For regions outside of the EU or US, the customer will be required to provide its import tax ID number during the purchasing process. Once the Hardware arrives in the destination country, the freight carrier customs handling department will contact the importer (Customer) to pay the customs fees. Upon settlement of the payment, the hardware will be subsequently released from customs and be transferred to the destination address in the country. Import taxes might vary from country to country based on the value represented in the commercial invoice. Rods&Cones (shipper) will not pay import taxes. These will be entirely covered by the customer (consignee).

7.2. Returns End of Subscription

7.2.1. The hardware and software remains the property of Rods&Cones. If a Customer opts to end the Subscription, the hardware is returned to Rods&Cones by Customer in good state and decontaminated. Rods&Cones will check the state of the returned units and any missing, damaged or non-functioning components will be invoiced according to the replacement fees. Customer will use its freight carrier to return the Hardware to Rods&Cones and all customs fees will be covered by the (“shipper”). Packages whereby customs fees are assigned to Rods&Cones (“consignee”) will be returned to the shipper.

7.2.2. If Customer fails to return the hardware before or at the Subscription end date, Rods&Cones reserves the right to charge the Replacement Fee to the Customer.

7.3. Returns Break-fix

7.3.1. In case Hardware is not working as expected, Customer notifies Rods&Cones and Rods&Cones will always set up a diagnostic call to evaluate if the Hardware failure falls within customer’s liability. Typically, failures that are caused by uncareful use (for instance broken screen of mobile phone or smart glasses or physical damage on charging case) are within Customer’s liability. Software issues or devices not powering up are typically outside the Customer’s liability. During the diagnostics call, Rods&Cones will try to solve the issue, and when the issue cannot be resolved, the customer is requested to send the damaged hardware back to Rods&Cones.

7.3.2. In case the failure is determined and agreed to be within the customer liability, the customer will be required to use his own internal freight carrier to return the Hardware to Rods&Cones. In this event all customs fees will be covered by the customer (“shipper”) and once the goods are returned to Rods&Cones, an invoice will be issued to the customer. Once payment has been settled, Rods&Cones will ship the replacement device at the customer’s expense.

7.3.3. Hardware failures whereby the Hardware failure lays outside the Customer’s liability, Rods&Cones will request the customer to send the faulty Hardware back and will ship a replacement device in parallel. In this case, all transport costs and customs fees will be covered by Rods&Cones.

7.4. Lost-Stolen

7.4.1. In the event Hardware is reported to Rods&Cones as either lost or stolen, Rods&Cones has the right to invoice the customer the Replacement Fee and the shipment costs. Once the payment has been settled, Rods&Cones will ship a new item to replace the missing item. Any transportation costs and import taxes will be at the Customer’s expense.

7.5. Hardware Upgrade

7.5.1. When new Hardware is available that substantially improves the Hardware available to Customer, Rods&Cones will send the Hardware and may request the customer to return the legacy Hardware. All customs fees and transportation fees for the Hardware upgrade are at expense of Rods&Cones. This counts for both shipment of the new device and return of the legacy device. If the customer fails to return the legacy Hardware within 1 month, Rodes&Cones reserves the right to charge a Replacement Fee.

8. Term and termination

8.1. Unless otherwise indicated in the Quotation Agreement, Agreement comes into force on the Effective Date, with an initial period of twelve (12) months.

8.2. Unless otherwise indicated in the Quotation Agreement, Agreement shall be tacitly renewed with subsequent periods that shall be equal to the duration of the initial period set forth in clause 8.1, except if one of the Parties terminates this Agreement by registered letter with a notice period of three (3) months before the expiry of the then current Subscription Term.

8.3. Each Party can terminate this Agreement with immediate effect without intervention of a judge by written notice to the other Party, if the other Party commits a material breach of this Agreement and — in the case of a breach capable of remedy — fails to substantially remedy it within forty (40) calendar days of receipt of a written notice from the Party not in default specifying the breach and containing a warning of an intention to terminate if the breach is not remedied within the forty (40) calendar days grace period.

8.4. Each Party may terminate this Agreement without intervention of a judge with immediate effect on written notice: (i) if a receiver, administrator or similar officer is appointed over all or any part of the assets or undertaking of the other Party; (ii) if the other Party makes any arrangement for the benefit of its creditors; or (iii) if the other Party goes into liquidation save for the purposes of a genuine amalgamation or reconstruction.

8.5. Notwithstanding the foregoing and without prejudice to Rods&Cones’ other rights assigned to it by law or by this Agreement, Rods&Cones shall have the right to suspend and/or terminate this Agreement, in whole or in part, immediately without intervention of a judge, upon written notice to the Customer in the event that the Customer: (i) exceeds the scope of the Rods&Cones Subscription grants as set forth in clause 2; (ii) does not comply with the provisions set forth in clause 4; (iii) breaches any of its obligations of confidentiality set forth in clause 9; or (iv) breaches the assignment provisions laid down in clause 13.4.

8.6. Upon suspension of this Agreement in accordance with clause 8.5, the Customer’s access and license rights (including any sublicenses) with respect to Rods&Cones shall be temporarily terminated, during the period of the suspension; and the fees will continue to accrue.

8.7. After termination of this Agreement (i) all rights granted by Rods&Cones hereunder shall be terminated; (ii) each Party shall return or destroy (or provide a certificate of having destroyed) the other Party’s Confidential Information; (iii) the Customer shall remove all copies of all software provided or owned by Rods&Cones from the Customer’s systems; (iv) Rods&Cones shall, upon request by Customer made within thirty (30) days after the effective date of termination, provide the Customer with limited access to the Rods&Cones Instance, for the sole purpose of enabling the Customer to make a copy of the Hosted Data. After such thirty (30) days period, Rods&Cones shall have no obligation to maintain or provide any Hosted Data (v) Customer will return all Hardware to Rods&Cones within 1 month after terminating the agreement.

8.8. Termination shall not relieve the Customer of the obligation to pay any fees accrued or payable to Rods&Cones prior to the effective date of termination. In case Customer does not return the Hardware within 1 month after termination, Rods&Cones is entitled to invoice the Replacement Fee.

9. Confidentiality

9.1. “Confidential Information” means all confidential information of a Party (“Disclosing Party“) disclosed to the other Party (“Receiving Party“) in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall include: the terms and conditions in the Quotation Agreement, business and marketing plans, technology and technical information, product designs and business processes. Confidential Information shall not include: (i) information that is, or becomes, generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) information known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) information developed independently by the Receiving Party without breach of any obligation owed to the Disclosing Party; and (iv) information received from a third party without breach of any obligation owed to the Disclosing Party.

9.2. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.

9.3. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care).

9.4. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

10. Protection of Hosted Data

10.1. Rods&Cones undertakes reasonable industry standard efforts to maintain appropriate administrative, physical, and technical safeguards to protect the Hosted Data against accidental or unlawful destruction, accidental loss, alteration, unauthorized disclosure and unauthorized access.

10.2. The Customer acknowledges that Rods&Cones’ responsibility set out in clause 10.1 does not extend to any of the Customer’s data that is hosted outside the Rods&Cones Instance. Accordingly, the Customer shall bear sole responsibility for the adequate security, protection and backup of any such data.

10.3. The Customer accepts that (i) Rods&Cones qualifies as a “hosting provider”, as defined by article 14 of the EU E-commerce Directive (2000/31/EC) and “data processor” ; (ii) Rods&Cones does not have the obligation to monitor the Hosted Data; (iii) Rods&Cones has the right to remove at any moment and without prior warning any Hosting Data which, in Rods&Cones’ reasonable opinion, is illegal or infringes (or is likely to infringe) upon the rights of third parties; (iv) Rods&Cones has the right to remove at any moment and without prior warning any Hosting Data at the request of competent authorities.

11. Data protection

11.1. The Customer shall be “data controller” and Rods&Cones shall be the “data processor” (as defined in Data Protection Legislation) in relation to the processing of any “personal data” contained in the Hosted Data. Accordingly, Rods&Cones shall only process such personal data (i) in accordance with the instructions received from the Customer, which may be specific instructions or instructions of a general nature as set forth in this Agreement: (ii) to the extent, and in such manner, as is necessary for the provision of the Services, or as is required by law or any regulatory body.

11.2. Each Party shall comply with its respective obligations under Data Protection Legislation, and shall not undertake any action that would cause the other Party to breach any of the Data Protection Legislation obligations. In particular, the Customer shall ensure that: (i) all instructions given by it to Rods&Cones in respect of the Hosted Data will be in compliance with applicable Data Protection Legislation; (ii) it has obtained all rights and permissions to process the Hosted Data outside the European Union and (iii) it has all required consents, licenses and approvals to use, disclose and/or transfer the personal data included in the Hosted Data and/or the personal data available in the Manager app.

12. Risk allocation

12.1. The parties total aggregate liability under this Agreement, whether for breach of contractual obligations, in negligence or tort, shall never exceed the payments received on annual basis from Customer with a limit of 50,000 (fifty thousand) EUR. Rods&Cones shall in no event be liable for any indirect, punitive or consequential damages of any kind (such as, without limitation, loss of profits, loss of use, loss of customers, business interruption, loss of data, cost of cover, etc.), regardless of the form of action whether in contract, third party claims, extra-contractual liability or otherwise, even if it has been advised of the possibilities of such damage.

12.2. Nothing in this Agreement shall exclude or limit either Party’s liability for fraud or willful misconduct.

13. Miscellaneous

13.1. Force Majeure – Neither Party shall be liable to the other for any delay in, or failure of, the performance of its obligations under this Agreement arising from Force Majeure. The Party affected by Force Majeure shall as soon as practicable, send to the other a written notice setting out the circumstances of the event and its anticipated effect, and shall use all reasonable endeavors to minimize the effect of any such circumstances. If any delay or stoppage arising out of an event of Force Majeure continues for a continuous period of six (6) months, either Party may terminate this Agreement with immediate effect on giving written notice to the other, and neither Party shall be liable to the other for such termination.

13.2. Waiver – A failure or delay of any Party to enforce at any time any of the provisions hereof, or the failure to exercise any right which is provided therein or to require at any time performance of any of the provisions thereto, shall in no way be construed to be a waiver of such provisions of this Agreement by such Party in the event of a continuation or repetition of the circumstances which gave rise to such right.

13.3. Enforceability – Should any clause of this Agreement be found to be invalid or unenforceable, such clause (or part thereof) shall be deemed severed from this Agreement, and the other clauses thereof shall remain in full force and effect, as if this Agreement had been executed without the offending clause appearing. In such a case, the Parties shall negotiate in good faith and on a commercially all reasonable efforts basis to agree alternative or amended valid, legal and enforceable clauses with the same economic effect as intended by the parties hereto.

13.4. Assignment– This Agreement is personal to the Customer and neither this Agreement nor any of the Customer’s rights or obligations hereunder shall be assigned, sublicensed, sold or otherwise transferred by the Customer without the prior written consent of Rods&Cones. Rods&Cones reserves the right to assign all or part of this Agreement at any time to any Affiliate that can sufficiently execute the obligations under this Agreement, subject to providing the Customer a written notice of such assignment.

13.5. Relationship of the Parties – The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship.

13.6. References and logo – During the Term and a period of five (5) years after the Term, Rods&Cones may use the Customer’s name and logo on its website and in press releases, brochures, financial reports and other promotional materials in any media indicating that Customer is or was a customer of Rods&Cones. During the Term, the Customer accepts to display the Rods&Cones logo on the Rods&Cones Instance.

13.7. Log files – The Customer accepts the server log files of the Rods&Cones Instance as legal proof of all transactions, visits and access requests with respect to the Rods&Cones Instance.

13.8. Notices – All notices under this Agreement shall be in writing, and shall be deemed to have been given upon: (i) personal delivery; (ii) the third day after mailing; or (iii) the third day after sending by email confirmed by a letter. Notices to Rods&Cones shall be addressed to the attention of its CEO. Notices to Customer shall be addressed to Customer’s signatory of this Agreement.

13.9. Survival – The clauses of this Agreement that by their nature may reasonably be presumed to survive any termination or expiration of this Agreement (in particular, without limitation, clauses 4.12, 5.9, 9 and 12), shall survive any termination or expiration hereof.

13.10. Governing law and jurisdiction– This Agreement and all respective rights and obligations of the Parties shall be governed by and shall be construed in accordance with the laws of Belgium for contracts signed by Rods&Cones BV, laws of Netherlands for contracts signed by Rods&Cones Sales BV, and laws of USA for contracts signed by Rods&Cones USA LLC (excluding its conflicts of laws rules). Should any dispute arise between the Parties out of or in connection with this Agreement, the Parties will endeavor to resolve the dispute in good faith by senior level negotiations. If the dispute is not resolved within thirty (30) days through such negotiations, each Party shall have the right to submit the unresolved issue to the Turnhout courts for contracts signed by Rods&Cones BV, courts of Amsterdam for contracts signed by Rods&Cones Sales BV, and courts of Florida for contracts signed by Rods&Cones USA LLC, which shall have exclusive jurisdiction to settle any such dispute, controversy or claim which may arise in connection with this Agreement.

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