By subscribing to the Bankonite Communications services (the “Services”) provided by Bankonite and its affiliates (collectively, “Bankonite”) in relation with Bankonite Communications Edition (the “Software”), hosted on Bankonite’s Cloud platforms (the “Cloud Platform”) or on-premises (“Self-Hosting”), you (the “Customer”) are agreeing to be bound by the following terms and conditions (the “Agreement”).
1 Term of the Agreement
The duration of this Agreement (the “Term”) shall be specified in writing on conclusion of this Agreement, beginning on the date of conclusion. It is automatically renewed for an equal Term, unless either party provides a written notice of termination minimum 30 days before the end of the Term to the other party.
Any user account indicated as active in the Software, with access to creation and/or edition mode. Deactivated user accounts and accounts used by external people (or systems) who only have limited access to the Software through the portal facilities (known as “portal Users”) are not counted as Users.
An “App” is a specialized group of features available for installation in the Software
- Covered Extra Module
A Covered Extra Module is an Extra Module for which the Customer chooses to pay a maintenance fee in order to get support, upgrade and bug fixing services.
Is considered a Bug any failure of the Software or of a Covered Extra Module that results in a complete stop, error traceback or security breach, and is not directly caused by a defective installation or configuration. Non-compliance with specifications or requirements will be considered as Bugs at the discretion of Bankonite (typically, when the Software does not produce the results or performance it was designed to produce, or when a country-specific feature does not meet legal accounting requirements anymore).
- Covered Versions
Unless specified otherwise, the Services provided under this Agreement are applicable only to the Covered Versions of the Software, which include the 3 most recently released major versions.
- Subscription Plan
A Subscription Plan defines a set of Apps, features and hosting solutions covered by this Agreement, and is defined in writing at the conclusion of this Agreement.
3 Access to the Software
The Customer can use the Software hosted on the Cloud Platform, or choose the Self-Hosting option. The Cloud Platform is hosted and fully managed by Bankonite , and accessed remotely by the Customer. With the Self-Hosting option, the Customer instead hosts the Software on computer systems of their choice, that are not under the control of Bankonite.
The Customer agrees to take all necessary measures to guarantee the unmodified execution of the part of the Software that verifies the validity of the Bankonite Communications usage and collects statistics for that purpose, including but not limited to the running of an instance, the number of Users, the installed Apps, and the number of lines of code of Covered Extra Modules.
Upon expiration or termination of this Agreement, this license is revoked immediately and the Customer agrees to stop using the Bankonite Communications software and the Cloud Platform.
Should the Customer breach the terms of this section, the Customer agrees to pay Bankonite an extra fee equal to 500% of the applicable price.
4.1 Bug Fixing Service
For the duration of this Agreement, Bankonite commits to making all reasonable efforts to remedy any Bug of the Software and Covered Extra Modules submitted by the Customer through the appropriate channel , and to start handling such Customer submissions within 2 business days and it’s chrgable.
4.2 Security Updates Service
For the duration of this Agreement, Bankonite commits to sending a “Security Advisory” to the Customer for any security Bug that is discovered in the Covered Versions of the Software (this excludes Extra Modules), at least 2 weeks before making the Security Advisory public, unless the Bug has already been disclosed publicly by a third party. Security Advisories include a complete description of the Bug, its cause, its possible impacts on the Customer’s systems, and the corresponding remedy for each Covered Version.
5 Charges and Fees
5.1 Standard charges
The standard charges for the Bankonite Communications subscription and the Services are based on the 1st year free the Subscription Plan used by the Customer, and specified in writing at the conclusion of the Agreement.
When during the Term, the Customer has more Users or uses features that require another Subscription Plan than specified at the time of conclusion of this Agreement, the Customer agrees to pay an extra fee equivalent to the applicable list price (at the time of the deviation from the specified maintenance month).
When the Customer requests an upgrade, for each Covered Extra Module that has not been covered by a maintenance fee for the last 12 months, Bankonite may charge a extra fee for each missing month of coverage.
5.2 Renewal charges
as per the agreement, 1st year is free and the renewal charge for website maintenance is 3000+GSt/Yearly hosting and renewal charge extra.
All fees and charges are exclusive of all applicable federal, provincial, state, local or other governmental taxes, fees or charges (collectively, “Taxes”). The Customer is responsible for paying all Taxes associated with purchases made by the Customer under this Agreement, except when Bankonite is legally obliged to pay or collect Taxes for which the Customer is responsible.
6 Conditions of Services
6.1 Customer Obligations
The Customer agrees to:
pay Bankonite any applicable charges for the Services of the present Agreement, in accordance with the payment conditions specified at the signature of this contract ;
take all measures necessary to guarantee the unmodified execution of the part of the Software that verifies the validity of the Bankonite, as described in 3 Access to the Software ;
appoint 1 dedicated Customer contact person for the entire duration of the Agreement
When the Customer chooses the Self-Hosting option, the Customer further agrees to:
take all reasonable measures to protect Customer’s files and databases and to ensure Customer’s data is safe and secure, acknowledging that Bankonite Communications cannot be held liable for any data loss;
- Definition of “Confidential Information”:
All information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or 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. In particular any information related to the business, affairs, products, developments, trade secrets, know-how, personnel, customers and suppliers of either party should be regarded as confidential.
For all Confidential Information received during the Term of this Agreement, the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own similar Confidential Information, but not less than reasonable care.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure, to the extent permitted by law.
6.3 Data Protection
“Personal Data”, “Controller”, “Processing” take the same meanings as in the Regulation (EU) 2016/679 and the Directive 2002/58/EC, and any regulation or legislation that amends or replaces them (hereafter referred to as “Data Protection Legislation”)
Processing of Personal Data
The parties acknowledge that the Customer’s database may contain Personal Data, for which the Customer is the Controller. This data will be processed by Bankonite when the Customer instructs so, by using any of the Services that require a database (e.g. the Cloud Hosting Services or the Database Upgrade Service), or if the Customer transfers their database or a part of their database to Odoo SA for any reason pertaining to this Agreement.
This processing will be performed in conformance with Data Protection Legislation. In particular, Odoo SA commits to:
(a) only process the Personal Data when and as instructed by the Customer, and for the purpose of performing one of the Services under this Agreement, unless required by law to do so, in which case Odoo SA will provide prior notice to the Customer, unless the law forbids it ;
(b) ensure that all persons within Bankonite authorised to process the Personal Data have committed themselves to confidentiality ;
(c) implement and maintain appropriate technical and organizational measures to protect the Personal Data against unauthorized or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure ;
(d) forward promptly to the Customer any Data Protection request that was submitted to Bankonite with regard to the Customer’s database ;
(e) notify the Customer promptly upon becoming aware of and confirming any accidental, unauthorized, or unlawful processing of, disclosure of, or access to the Personal Data ;
(f) notify the Customer if the processing instructions infringe applicable Data Protection Legislation, in the opinion of Odoo SA;
(g) make available to the Customer all information necessary to demonstrate compliance with the Data Protection Legislation, allow for and contribute reasonably to audits, including inspections, conducted or mandated by the Customer;
With regard to points (d) to (f), the Customer agrees to provide Odoo SA with accurate contact information at all times, as necessary to notify the Customer’s Data Protection responsible.
In the event that either Party fails to fulfill any of its obligations arising herein, and if such breach has not been remedied within 30 calendar days from the written notice of such breach, this Agreement may be terminated immediately by the non-breaching Party.
Further, Bankonite may terminate the Agreement immediately in the event the Customer fails to pay the applicable fees for the Services within 21 days following the due date specified on the corresponding invoice, and after minimum 3 reminders.
- Surviving Provisions:
The sections “6.2 Confidentiality”, “7.2 Disclaimers”, “7.3 Limitation of Liability”, and “8 General Provisions” will survive any termination or expiration of this Agreement.
7 Warranties, Disclaimers, Liability
Bankonite owns the copyright or an equivalent 1 on 100% of the code of the Software, and confirms that all the software libraries required to use the Software are available under a licence compatible with the licence of the Software.
For the duration of this Agreement, Bankonite commits to using commercially reasonable efforts to execute the Services in accordance with the generally accepted industry standards provided that:
the Customer’s computing systems are in good operational order and, for Self-Hosting, that the Software is installed in a suitable operating environment;
the Customer provides adequate troubleshooting information and, for Self-Hosting, any access that Bankonite may need to identify, reproduce and address problems;
all amounts due to Bankonite have been paid.
The Customer’s sole and exclusive remedy and Bankonite’s only obligation for any breach of this warranty is for Bankonite to resume the execution of the Services at no additional charge.
External contributions are covered by a Copyright License Agreement that provides a permanent, free and irrevocable, copyright and patent licence to Bankonite.
Except as expressly provided herein, neither party makes any warranty of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law.
Bankonite does not warrant that the Software complies with any local or international law or regulations.
7.3 Limitation of Liability
To the maximum extent permitted by law, the aggregate liability of each party together with its affiliates arising out of or related to this Agreement will not exceed 50% of the total amount paid by the Customer under this Agreement during the 12 months immediately preceding the date of the event giving rise to such claim. Multiple claims shall not enlarge this limitation.
In no event will either party or its affiliates be liable for any indirect, special, exemplary, incidental or consequential damages of any kind, including but not limited to loss of revenue, profits, savings, loss of business or other financial loss, costs of standstill or delay, lost or corrupted data, arising out of or in connection with this Agreement regardless of the form of action, whether in contract, tort or otherwise, even if a party or its affiliates have been advised of the possibility of such damages, or if a party or its affiliates’ remedy otherwise fails of its essential purpose.
7.4 Force Majeure
Neither party shall be liable to the other party for the delay in any performance or failure to render any performance under this Agreement when such failure or delay finds its cause in a case of force majeure, such as governmental regulations, fire, strike, war, flood, accident, epidemic, embargo, appropriation of plant or product in whole or in part by any government or public authority, or any other cause or causes, whether of like or different nature, beyond the reasonable control of such party as long as such cause or causes exist.
8 General Provisions
8.1 Governing Law
This Agreement and all Customer orders will be subject to Belgian law. Any dispute arising out of or in connection with this Agreement or any Customer order will be subject to the exclusive jurisdiction of the Nivelles Business Court.
In case any one or more of the provisions of this Agreement or any application thereof shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement and any application thereof shall be in no way thereby affected or impaired. Both parties undertake to replace any invalid, illegal or unenforceable provision of this Agreement by a valid provision having the same effects and objectives