1. OVERVIEW
In this Agreement, the following terms are to be understood as follows:
- Contract : the contract resulting from all the contractual documents exchanged between the parties, which include these General Conditions, prices and tariffs, purchase orders, and quotes.
- Application : Mobilar’s cloud-based software Application made available to the Licensee within the framework of this Agreement’s implementation.
- Mobilar : A company incorporated under Belgian law, with its head office at Galileilaan 15, 2845 Niel (Belgium), and with company number VAT-BE 0779.489.327.
- Licensee : Any natural or legal person purchasing or wishing to purchase the Application under the terms and conditions set out in this Agreement.
- End-user : Any natural person using the Application on behalf of the Licensee and in accordance with the rights granted to the Licensee.
Mobilar reserves the right to revise or update the Terms and Conditions periodically. Each revision shall take effect as soon as the new Terms and Conditions are accepted by the licensee. The End User understands and accepts that continued use of the Application after the publication of the new Terms and Conditions implies consent to the changes. You are responsible for periodically reviewing the Terms and Conditions.
This Agreement includes the entire agreement between the Parties with regard to the Application’s possession and use. It serves to replace any previous agreement between the Parties regarding this matter. Any derogation from or addition to this Agreement shall only be valid to the extent that a mutual written agreement is reached.
2. OBJECT OF THE AGREEMENT
Mobilar grants the Licensee the non-exclusive right to use the software (or service or SaaS) of Mobilar for for the duration agreed between parties in accordance with the provisos set out in this Agreement and the order form or the price quotation.
Mobilar, is an Application which Mobilar makes available to the Licensee to assess the skills of the workforce and to tie this to the training curriculum.
This Agreement governs the Licensee’s right to use the Application and its functionalities and services. The Licensee may grant the right of use to End Users at its responsibility. The rights and obligations under this agreement also apply to the End User. The Licensee is liable for the acts, conduct and all actions relating to the Application for any person to whom it has directly or indirectly granted access to the Application. Mobilar may refuse an End User should there be convincing reasons to do so.
2.1 Usage rights
Pursuant to payment by the License fee and subject to the terms and conditions of this Agreement, Mobilar grants the Licensee and End Users a non-transferable, non-exclusive, worldwide usage right to the Mobilar Application that cannot be sub-licensed. Any other use or operation not expressly conferred on the Licensee and End User in this Agreement shall not be permitted without the express written consent of Mobilar.
The Licensee shall not reverse engineer, disassemble or decompile, or in any way attempt to obtain the source code or structural framework of the Application, except and solely where permitted by the relevant legislation. The Licensee shall not be entitled to modify the Application or make any derivative work. Nor is the Licensee entitled to sell, grant, distribute, (sub)license, rent, lease, loan or transfer the Application in whole or in part or to do such for rights granted it in any manner whatsoever. Nor may it disclose the Application to a third party without the prior written consent of Mobilar.
3. OBLIGATIONS OF THE END-USER
3.1 Registration
Every End User must register his or her user account in order to use the Application. The End User is presumed to have given a correct, truthful, current and complete representation. Depending on the End User’s capacity, it may be absolutely essential that certain information be provided. This obligation is applicable to both the initial creation of the User Profile and its future use. It is the sole responsibility of the End User to correct or delete obsolete information.
Each User Profile is strictly individual, personal, and confidential. A user profile is not transferable to third parties without the express permission of Mobilar. The End User is exclusively responsible for all User Profile-related actions and is likewise required to safeguard the User Profile’s confidentiality, including login data. Any violation of confidential nature must be reported to Mobilar so that the necessary measures can be taken.
Mobilar does not actively monitor the User Profiles created but reserves the right to take appropriate measures in cases where this is required.
3.2 Restrictions on usage rights
The usage is restricted in the sense that this use may not conflict with the Terms and Conditions, applicable law, third party rights, and generally accepted principles with regard to the internet. The following actions are therefore also absolutely prohibited:
- The End User’s use of software programs purposed for the collection and acquisition of data is prohibited. These programs include spiders, crawlers, robots and analogous software, but this is, of course, not an exhaustive list;
- Using the Application and its data to spam, send chain letters, junk mail and/or analogous alternatives is prohibited;
- Stalking and or the attempt to persuade End Users of political and/or religious convictions is prohibited;
- Naturally, unauthorised access to user profiles that belong to other Users is prohibited;
- Use of false identification and/or false data during registration is prohibited.
Should End-Users be able to obtain private information via the Application, Mobilar can in no way whatsoever countenance content bearing the following characteristics:
- Any form of content that can be considered inappropriate and/or unlawful. Content that is illegal, unlawful, harmful, misleading, threatening, insulting, excessively obscene, child pornography, offensive, racist and/or content generally contrary to public order and common decency that has already been deemed as inappropriate. This content does not necessarily need to be in conflict with applicable law or the rights of third parties to be considered inappropriate;
- Content that includes sensitive personal data as defined by the General Data Protection Regulation (GDPR), namely personal data revealing political opinions, trade union membership, religious or philosophical beliefs, racial origin or ethnic, as well as data relating to health, genetic or biometric data processed solely to identify a human being or data relating to a person's sex life or sexual orientation;
- Content that includes personal data of one or more persons without the explicit consent of the person(s) concerned as defined by the General Data Protection Regulation GDPR). Consult the data processing agreement for more detailed information on the responsibilities of a controller and a processor of personal data;
- Dissemination of content that results in damage to other Application Users. This includes a ban on the spread of malicious software such as computer viruses, malware, worms, trojans, and cancelbots;
- Content that violates the intellectual rights and portrait rights of other Users and/or third parties;
- Content resulting from, referring to and/or encouraging perpetration of criminally sanctionable offences;
- Content that is entirely irrelevant in view of the Application’s objective.
The Mobilar Application is exceptionally and solely suited to assess employees' skills and operate with that data, in the broadest sense of the term. Mobilar forbids the Licensee from using Mobilar Application for any form not intended by Mobilar.
3.3 Excessive use
The End User must refrain from making any use of the Application and the additional services that are significantly higher than the use by an average End User: known as excessive use. Excessive use must be avoided due to the risk of damaging the network or causing a system overload of the Application and services. In case of excessive use, Mobilar shall inform the End User of this and take the necessary steps to reduce use. In the event that the overload is of a structural nature, the Parties shall enter into mediation to seek a solution should Mobilar make a written request to this effect. Mobilar reserves the right to suspend its obligations by virtue of these Terms and Conditions to guarantee the usage quality of other End Users.
3.4 Remedies
Mobilar reserves the right to take all reasonable and appropriate measures should the End User act in violation of the user terms and conditions and obligations are known to it, applicable legal rules, third party rights, or generally accepted rules of internet conduct. Mobilar retains a wide margin of discretion regarding the taking of sanctions and remedial measures and the scope of these measures.
Mobilar has, among other things, the option to temporarily and/or permanently suspend the right of use, as well as to delete a User Profile. In addition, Mobilar can limit the End User’s general access to and access to functionalities of the Application, either fully or in part and either temporarily or permanently. The deletion of a User Profile may imply the (future) deletion of all content added. These measures may be taken without prior warning and/or notification should the situation so require. The User shall under no circumstances be entitled to claim repayment or compensation for the measures taken.
Should the End-User be of the opinion that Mobilar has taken these measures in error, Mobilar shall include these arguments in its assessment without being obliged to nullify the original measures.
4. MOBILAR’S OBLIGATIONS
4.1 Proper functioning, security, and accessibility
You can be assured that Mobilar offers a user-friendly Application that is safe for every user. Mobilar guarantees uninterrupted availability of the software. Mobilar has taken all the technical, non-technical and organisational measures reasonable and necessary to guarantee this commitment. To the greatest extent possible, interruptions and outages are always repaired in short order. These obligations qualify as an obligation of means.
Mobilar is entitled to at all times limit and/or temporarily interrupt access to the Application, in part or in full, without the need to provide any advance notice. Mobilar shall, in principle, only do this if circumstances so warrant, but this is not an absolute condition.
The Licensee can rely on the proper functioning and secure nature of Mobilar. Within the limits of what it can do, Mobilar has also at this level taken all the technical, non-technical, and organisational measures necessary and reasonable to guarantee this proper functioning and secure nature. In addition to preventive measures, Mobilar also takes all reasonable and possible remedial measures as soon as the proper functioning and secure nature of Mobilar is jeopardised. Mobilar undertakes to take all possible, reasonable measures with regard to the data uploaded in order to protect against accidental or unlawful destruction, accidental loss, editing, unauthorised disclosure, and other such access. Mobilar guarantees that the Licensee shall be immediately informed of the potential risks and actions to be taken.
The Licensee declares him or herself to be aware of the specified hardware, (browser) software, and ICT resources required to properly gain access to the services. The equipment and software used must comply with Mobilar’s system requirements. The Licensee is solely responsible for taking all possible measures to obtain access to the service. The Licensee can only use the software and services for lawful purposes and within the scope of the original objective of this agreement.
The Licensee is the sole party fully liable for any data content processed using the software. Mobilar does not monitor or take cognisance of the data added. Should the software be used to process data that is not in accordance with the original objectives, Mobilar is entitled to temporarily or permanently suspend the service provision immediately and without prior notice of default, without this affecting the further implementation of this agreement.
4.2 Support
Mobilar guarantees the Licensee support by providing information and advice on the use of the software and/or certain functionalities.
The support is to be requested by direct contact, email, or telephone. Mobilar guarantees that it shall send an acknowledgment of receipt within 30 minutes of the request.
This support is only guaranteed during working hours, from 9 a.m. to 6 p.m. CET on working days. Working days are understood to be Monday through Friday, with the exception of Belgian national public holidays.
4.3 Application content
The content of the Application is mainly added by the Licensee and/or authorised third parties, whether or not through automated processes. The Application may therefore qualify as User Generated Content (UGC). Mobilar takes the utmost precautions with regard to data appearing on the Application so that it may qualify as complete, correct, up-to-date, and accurate. However, Mobilar cannot give absolute guarantees regarding the quality and quantity of information on the Application and are therefore not liable for (direct and indirect) damage that the Licensee suffers as a result of the information on the Application. This concerns an obligation of means on the part of Mobilar, in which all necessary and reasonable measures are taken. Mobilar is not obliged to check content prior to installation or to carry out extensive posterior checks.
Should any content on the Application constitute a violation of the Terms and Conditions, applicable legislation and/or a violation of the rights of third parties and/or is simply found to be unacceptable, Mobilar kindly requests that the Licensee you notify Mobilar as soon as possible. Mobilar will quickly take the appropriate measures by making (full or partial) changes, supplements, or deletion.
The Licensee and/or authorized third party uploading content to the Application is responsible for always uploading this content to the relevant and applicable web page, always in a language that is understandable to the other Application Users and that this content is not in any way misleading. The Application includes downloadable content, and every download from the Application shall, at all times, take place at the Licensee’s own risk and sole responsibility. Mobilar is not liable for any possible damage caused by these downloads and the further use of these data.
5. INTELLECTUAL PROPERTY
Creativity deserves to be protected, as does the Application and its content. This protection is provided through intellectual property rights and is granted to all entitled parties, i.e. Mobilar and third parties. Content is meant to be understood as the very broad category of photos, videos, audio, text materials, ideas, notes, sketches, articles, and so forth. All this content is protected by copyrights, software rights, database rights, drawing, and design laws, and other applicable intellectual and other property rights. The technical nature of the Application itself is protected by copyright, software rights, and database rights. Every trade name used in the Application is equally protected by the applicable trade name rights or trademark rights. Mobilar requests that Licensee’s refrain from making use of and/or amending the intellectual property rights as described in this Article without the consent of the entitled party. Any Licensee and/or authorized third parties uploading content to the Application is responsible for the intellectual property rights attached hereto. The Licensee undertakes to in no way have its actions constitute an infringement of the intellectual property rights of any other party. Should the Licensee commit a violation in the area of intellectual property rights, these can under no circumstances be attributed to Mobilar. The Licensee is therefore fully liable for any actual or legal consequences. Once again, Mobilar requests Licensee’s cooperation in reporting any violations of intellectual property to us so that Mobilar can take appropriate action. Notification may be sent to info@mobilar.be
6. FEES AND TERMS OF PAYMENT
Right of use and the provision of service is granted subject to payment of a monthly or annual fee to Mobilar. The rates and prices are as stated in the annex and always exclude VAT.
Based on the Agoria Index, these rates and prices are indexed automatically on the expiry of each annual period for contracts that run for more than a year time.
All invoices issued by the Provider shall be payable within thirty (30) days of the invoice date. In the event of non-payment on the due date, late payment interest in the amount of the legal interest rate for late payment in commercial transactions (2016: 8.5%) applies. After sending a formal notice, a lump sum compensation of 10% of the invoice amount is also due, with an absolute minimum of 150 euros. This shall not affect the right of the Provider to request compensation for the additional costs associated with the non-payment. Should the Licensee have a late payment of more than two (2) months, Mobilar is entitled to suspend its service provision without delay. Should the object of this agreement constitute a transfer of any form of ownership, the delivered products remain the exclusive property of Mobilar until payment has been made in full by the Licensee. Should it prove necessary, the Licensee shall undertake to designate third parties for the retention of title.
7. DURATION AND TERMINATION
The license agreement commences for the duration of one year at the time that the purchase order is signed or the price quotation is signed and accepted unless there is an express and written agreement with the Mobilar to the contrary. Except in the event of termination, the license agreement is always automatically extended for a period equal to that of the initial duration of the contract. At the end of the contract, the Licensee may terminate it by notification by letter, in which case this notification must be sent to Mobilar at least one (1) month before the expiration of the term of the contract; otherwise, the contract will be extended for a period equal to that of the initial contract. Notification can also be sent by e-mail provided that Mobilar confirms receipt of such e-mail.
Mobilar also has the possibility of terminating this agreement with immediate effect should the Licensee fail to observe any provision of this Agreement and on condition that Mobilar sent the Licensee notice of default by registered letter to enable the latter to remedy his or her failure within fifteen (15) days after this notice of default was sent.
Mobilar’s maintenance task also ends if the Agreement is terminated. The Licensee shall compensate Mobilar for any damage arising from a breach of the license agreement.
This Agreement shall be ended automatically in the event of the Licensee’s bankruptcy, dissolution or liquidation.
Mobilar may decide to temporarily block usage rights and services at any time and with immediate effect, should there be a good reason for doing so, such as a breach of this agreement or legal obligations. Legitimate blocking does not give rise to any form of repayment, compensation, or extension of the original useful life. The suspension also does not affect the Licensee’s obligations under this agreement nor does it affect Mobilar’s right to immediate termination.
Termination of the agreement means that the Licensee’s access to the software and its processed data is deactivated. Mobilar undertakes not to delete this data for at least sixty (60) calendar days following the deactivation.
8. LIABILITY AND INDEMNITY
Mobilar is liable for any major or minor contractual and/or extra-contractual failure attributable thereto caused during the performance of its obligations under this agreement. This liability is limited to the direct damage resulting from the failures. However, Mobilar’s liability can at no time exceed the value of the services provided as invoiced in the last six (6) months prior to the claim.
Mobilar is under no circumstances liable for any form of indirect damage as a result of the aforementioned failure. Indirect damage must be understood to mean at least the following damages, without this list being exhaustive: any form of consequential loss, lost profits, financial or commercial losses, increase in general costs, increased personnel costs, damage due to loss of clients, etc. Mobilar can also not be held responsible for any form of damage linked to the destruction or loss of data or documents.
Mobilar may use third parties to provide its services. Any breach of this agreement which may be attributable to these third parties is in the principle of force major / foreign cause.
Any damage related to the use of Mobilar to the Licensee’s suggested state of affairs, equipment, or software of third parties and damage related to the Licensee’s engagement of suppliers suggested by Mobilar is explicitly excluded.
Should, due to a contractual or extra-contractual failure, the licensee compromise Mobilar’s liability, he needs to take all necessary steps to compensate Mobilar for all possible losses.
The Licensee is responsible for taking the necessary measures to protect the confidential nature of the received user data of the Mobilar Application (e.g. Password, Username).
9. FORCE MAJEURE
Mobilar is not bound to fulfil its obligations in the event of force majeure and/or external cause. Force majeure is any situation where an external cause, force majeure, or accident prevents a party from fulfilling its obligation. This means that it must concern an unforeseeable and unavoidable event, independent of Mobilar’s intent, and which constitutes an insurmountable obstacle to the fulfillment of the obligation or commitment.
In that case, all Mobilar obligations arising from this agreement are partially or fully suspended for the duration of the situation, without this giving rise to any form of compensation or compensation for damages.
As soon as it appears that the force majeure and/or external cause is of a permanent nature and lasts for more than ninety (90) days, each party is entitled to terminate the agreement unilaterally, with immediate effect and by registered letter. In this event, work that has already been delivered by Mobilar is charged proportionally to the Licensee.
10. CONFIDENTIALITY
Parties agree that any confidential information that comes to their knowledge pursuant to this agreement shall remain confidential at all times. Confidential information is this information, which is communicated to the other party in writing and which is clearly indicated as confidential or which must reasonably be regarded as confidential.
Any breach of confidentiality jeopardizes the liability of the party in breach. The party in breach also has the obligation to indemnify the other party against any damage, including legal action, which is the result of the breach.
11. PROCESSING OF PERSONAL DATA
While it may not always be apparent, in a sense, the use of the Application implies the processing of personal data. By registering, the Licensee agrees that Mobilar may process its provided data in accordance with Mobilar’s Privacy Statement. If Mobilar invokes the data subject’s consent as a justification, this shall be requested. The data obtained on registration is necessary for the proper functioning of Mobilar services. Mobilar considers the declaration of incorrect or false personal data to be an infringement of the present Terms and Conditions. Every Licensee may be assured that Mobilar always takes the utmost care in the processing of personal data and provides clear and correct information in this regard. For more information on Mobilar’s privacy policy, please consult Mobilar’s Privacy Statement.
Licensees who add information and append data to the Application are aware that these data may qualify as personal data within the meaning of the Belgian Law of 30 July 2018 on the protection of natural persons with regard to the processing of personal data and within the meaning of the European Regulation of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. Consequently, there must be a valid legal basis for the processing of personal data. The applicable legal grounds are set out in Mobilar’s Privacy Statement.
12. DISCLAIMER
These Terms and Conditions shall be governed and interpreted exclusively in accordance with Belgian Law. Should there be any dispute regarding the execution of this agreement, the parties are expected to do everything possible to seek an amicable settlement. In the absence of an amicable solution, the dispute may be submitted to a center for arbitration and mediation (such as CEPINA) or a competent court. Disputes fall under the jurisdiction of the Courts of the Judicial District of Brussels.
Mobilar may transfer or outsource its rights or obligations under this agreement to a subsidiary or a third party engaged for that purpose. Such a third party shall be fully liable for the continued execution of the agreement. This may take place without the Licensee’s permission and without any compensation for damages.
Derogations from this agreement are only valid insofar as these have been made by mutual agreement between the parties and are laid down in writing. Deviations from one or more provisions of these Terms and Conditions of Use shall not affect the functioning of the other provisions of these Terms and Conditions of Use.
The nullity or invalidity of a provision or of part of a provision of these terms and conditions has no impact on the operation of the other provisions. The disputed provision is regarded as self-contained and inapplicable. Mobilar has the prerogative of replacing the provision in question with a valid provision of similar effect.
