Terms and conditions

Identification of Charp BV

Name & legal form: Charp BV (hereinafter “CHARP” or “we”);

Registered office: Kanunnik De Deckerstraat 20A, 2800 Mechelen;

Enterprise number: 0800.851.893 (registered with the Register of Legal Entities of Antwerp (sub section Mechelen);

VAT number: BE0800.851.893;

Contact person: Geert Bauwens

Tel.: +32 485 73 60 72

Email: geert@charp.be

CHARP’s Services

CHARP provides an all-in-one monitoring solution, consisting of software (the “Software”) and monitoring systems (the “System”), to you (the “CUSTOMER”) to assist in the preservation and protection of artefacts and collections under the management of the CUSTOMER (the “Services”).

Terms and Conditions

CHARP shall provide the Services and access to the Software and System to the CUSTOMER according to (i) the terms and conditions mentioned in the order form to be signed by the CUSTOMER (the “Order Form”) and (ii) the present general terms and conditions, to which the CUSTOMER unconditionally agrees by signing the Order Form. These terms and conditions shall prevail over any and all prior agreements, orally and in writing. In case of any conflict between the terms and conditions of the Order Form and the present general terms and conditions, the Order Form shall prevail. Even if stated otherwise by the CUSTOMER, any terms and conditions of the CUSTOMER shall not apply in the relation between CHARP and the CUSTOMER.

The present general terms and conditions together with the Order Form constitute a legally binding agreement between CHARP and the CUSTOMER (the “Agreement”).

Rights of use

When using the Services and the Software and System, the CUSTOMER must comply with the provisions of the Agreement and with all applicable laws. The CUSTOMER may only access and/or use the Software and System for lawful purposes and for the purposes for which they were intended.

The CUSTOMER agrees to accept sole responsibility for the use of the Software and System and will hold CHARP harmless for all claims, damages and costs regarding the unlawful use or the use in breach of any provision of the Agreement including, but not limited to, reputational damages, attorney fees, etc.

Subject to the compliance with the provisions of the Agreement and unless otherwise agreed upon, CHARP grants the CUSTOMER a personal, non-exclusive, non-transferable, non-sublicensable, revocable and temporary licence (“License”) to access and use the Software and use the System during the term of the Agreement.

Pricing and payment conditions

The CUSTOMER shall pay to CHARP a set-up fee and a yearly fee specified in the Order Form. All prices indicated are without V.A.T. and other taxes, if applicable. Invoices shall be issued in advance and shall be payable within 30 days after invoice date, unless stated otherwise on the invoice. In case of late or non-payment of due invoices by the CUSTOMER, CHARP shall be entitled to suspend the performance of its Services to the CUSTOMER for as long as the invoices are not paid. CHARP shall be entitled to charge the CUSTOMER a late payment interest on the amount of any invoice not paid on its due date of 12% per annum (whereby every started month will be counted as a full month) and a lump-sum compensation of 10% of the amount due with a minimum of 40 EUR. CHARP is entitled to modify its prices upon changes of the costs involved (including but not limited to salaries, overhead costs, resources, energy prices). Any price modification shall be notified in writing to the CUSTOMER at least one month in advance before it becomes applicable.

Restricted use

The CUSTOMER acknowledges that the following use of the Software respectively System is not allowed:

(i) give, sell, rent, lease, timeshare, sublicense, disclose, publish assign, modify, patch, change, alter, market, sell, display, transmit, broadcast, transfer or distribute any portion of the Software or System to any third party, or use the Software or System in any other way as explicitly stated in the Agreement;

(ii) circumvent, disable or otherwise interfere with the technical security measures;

(iii) reverse engineer, decompile or disassemble, decrypt or attempt to derive the source code of, the Software c.q. System, or any components thereof;

(iv) interfere or attempt to interfere with the integrity or proper working of the Software or System;

(v) remove or alter CHARP’s or any third party’s identification, watermark, attribution or copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Software or System;

(vi) use the trademarks or any other Intellectual Property Rights of CHARP without CHARP’s prior written consent;

(vii) use the Software to copy works from other users/third parties without their prior written consent;

(viii) use the Software or System to develop a competing service or product;

(ix) use the Software or System in any unlawful manner in any harmful, irresponsible, or inappropriate purpose, or in breach of any provision of the Agreement;

(x) use the Software or System to create content/works that infringes any intellectual property rights (sensu lato) of CHARP or any other third party.

Warranties and Liability

CHARP BV will use its reasonable efforts to render the Services on the basis of the information provided by the CUSTOMER and to minimise the risk of any inaccuracies, interruptions or malfunctions. CHARP does not undertake that the Services carried out pursuant to this Agreement will lead to any particular result. The Customer uses the Services, the Software and System at its own risk. The Software and System are provided on an “as is” basis.

To the fullest extent permitted by law, CHARP expressly disclaims all warranties of any kind, either expressed or implied, with respect to the Services, the Software and System, the merchantability or fitness of the Services, Software and System for a particular purpose as well as warranties that the use of the Services or Software or System will not infringe any patent, copyright, trademark, or other proprietary rights. CHARP shall not be liable for any failure in performance of the Services, the Software and the System hereunder arising out of causes beyond its control or for damages arising out of use of the deliverables by CUSTOMER. In addition CHARP will not accept any liability for the Services, Software and System in case the CUSTOMER has violated any provision of the Agreement or in relation to (i) problems or failures attributable to any improper or unauthorised installation, maintenance, use, adjustments, repairs or modifications to the Software or System made by the CUSTOMER or any third party, (ii) damage from misuse, neglect, or resulting from anything outside the ordinary use, or from maintaining the Software or System in an improper environment (such as excessive heat or cold), electrical power failures and/or surges, water damage, or resulting from use in combination with any unauthorised third party products.

The liability of CHARP is in any event limited to any direct damages and to a maximum amount equal to the highest of (i) the amount paid by the CUSTOMER under this Agreement and (ii) the amount of insurance cover available under CHARP’s professional liability insurance, at the time a claim is made, except in case of fraud or intentional fault by CHARP. Under no circumstances shall CHARP be liable for any indirect or consequential damages (including, but not limited to damages for loss of revenue, profits, goodwill, use, data or other intangible losses).

CHARP reserves the right to correct errors and perform maintenance operations on the Software and other parts of the Services. CHARP reserves the right to repair or replace any monitoring systems that have been delivered to the CUSTOMER when CHARP deems it required or useful. The CUSTOMER agrees to provide CHARP access to enable such works subject to a prior notification of at least two working days. The CUSTOMER agrees to accept the down time of the Services and System during any such repair or maintenance works without compensation.

If the CUSTOMER encounters any difficulties it must inform CHARP via email within the shortest delay possible and in any case within the next business day via the helpdesk which can be reached via the email address: support@charp.be.

The System is designed to transmit signals through certain communications equipment and Services, including DSL, broadband, LoRaWAN, cellular, and/or wireless equipment (collectively, the "Communications Equipment and Services"). Regardless of the form of Communications Equipment and Services used, the CUSTOMER understands that the Communications Equipment and Services may be interrupted, circumvented, unavailable (for a limited or extended time period) or otherwise compromised, including as a result of equipment designed or used by a third party. The CUSTOMER must confirm that the Communications Equipment and Services are compatible with the System, including when the CUSTOMER makes any changes to the Communications Equipment and Services. Access to, and availability of the Services is dependent on a.o. (i) the used computer, mobile device, wiring, Wi-Fi network, Bluetooth connection, and other related equipment, (ii) the Internet Services provider, and (iii) the mobile device carrier. The CUSTOMER is responsible for the functioning of the CUSTOMER’s Communications Equipment and Services and for all service charges associated with Communications Equipment and Services incurred as a result of using or accessing the Services.

The CUSTOMER has selected the System and Services based on personal considerations. Additional equipment or Services, at additional cost, may provide increased functionality. The CUSTOMER shall provide and maintain adequate power for all equipment relating to the System.

Confidentiality

If either Party discloses its Confidential Information, the other Party shall maintain such information confidential for five (5) years from the date of disclosure. Information provided by one of the Parties to the other shall be deemed confidential if it is marked confidential or confirmed in writing to be confidential. The obligations of confidentiality, with regard to both CHARP and the CUSTOMER, shall not apply to information which (i) was in the possession of the recipient prior to initial receipt hereunder, (ii) is now or later becomes generally available to the public without breach of this Agreement, (iii) is received without restrictions on its use or secrecy from a third party having the right to disclose such information, (iv) the disclosing Party gives the other Party written permission to publish or use or (v) the receiving Party develops independently of any disclosure hereunder.

We use commercially reasonable physical, technical and administrative security measures and safeguards to protect the confidentiality and security of the CUSTOMER’s personal information. However, since the Internet is not a 100% secure environment, we cannot guarantee, ensure, or warrant the security of any information the CUSTOMER transmits to us. There is no guarantee that information may not be accessed, disclosed, altered, or destroyed by breach of any of our physical, technical, or managerial safeguards. It is the CUSTOMER’s responsibility to protect the security of the CUSTOMER’s login information. E-mails and other communications the CUSTOMER sends to us are not encrypted, and we strongly advise the CUSTOMER not to communicate any confidential information through these means.

CHARP will have the right to use the services which it rendered to the CUSTOMER as a reference for future projects and/or tenders and in its communication with third parties in this respect and, subject to the prior approval of the CUSTOMER, has the right to issue press releases, make public announcements, publish advertising materials and any other marketing materials using images of the CUSTOMER’s institution and collection, and the CUSTOMER’s logo or trade name.

Intellectual Property – use of collected data

All intellectual property rights, including, copyrights, patent rights, trademarks, designs, know-how, concepts, images, drawings, (test) models, brands, logos, software, etc. that are provided or used by CHARP in relation to the provision of the Services, whether registered or not, are the property of CHARP (or as the case may be of its partners) (hereinafter: “Intellectual Property Rights”). This entails all Intellectual Property Rights related to the Software and the updates and maintenance thereof and all Intellectual Property Rights related to the System or any part thereof. All information, oral or written, provided by CHARP to the CUSTOMER shall remain the property of CHARP, and the CUSTOMER may only use the information for the purpose for which it was provided. The CUSTOMER shall not provide the information received from CHARP to third parties, in any manner whatsoever, except insofar as may be reasonably necessary, and if so, only after and insofar as an obligation of confidentiality has been agreed.

In the event intellectual property is generated by CHARP in the performance of the Services, the rights pertaining thereto shall be owned by CHARP, unless otherwise agreed in writing between the Parties. For the avoidance of doubt, any and all intellectual property of CHARP existing prior to the date of the Agreement or developed or obtained by CHARP outside the scope of the Agreement, or any improvements or modifications of the foregoing, or intellectual property of a third party, shall not be transferred or licensed to CUSTOMER unless otherwise agreed in writing.

CHARP shall have the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services, Software and System (including, without limitation, information concerning the CUSTOMER’s account and data derived therefrom), and will be free (during and after the term of our Agreement) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic, corrective or benchmark purposes in connection with the Services and other CHARP offerings, (ii) under written consent from the CUSTOMER, to use such information and data for research programs and to share the same with research institutions and partners, and (iii) to disclose, reproduce or otherwise exploit such data solely in aggregate or other de-identified form.

Term

The term of the Agreement is specified in the Order Form (“the Initial Term”). If the Agreement is not terminated by either Party at least three (3) months before the termination of the Initial Term, the Initial Term will automatically be extended for an indefinite term. Should the CUSTOMER wish to terminate the Agreement before the end of the Initial Term, the CUSTOMER shall respect a notice period of three (3) months which starts on the first of the month following the receipt by CHARP of the CUSTOMER’s written notice. CHARP will in that case be entitled to charge a cancellation fee equivalent to: (i) two (2) months (1/6th) of the yearly fee in case of cancellation during the first year of the term of the Agreement, and (ii) one (1) month (1/12th) of the yearly fee in case of cancellation during the second year of the term of the Agreement.

After the Initial Term, each Party may terminate the Agreement subject to a three (3) months’ prior written notice. The notice must be given by registered letter and shall have effect two days after posting as evidenced by the postmark. The CUSTOMER reserves the right, however, in its discretion, to pay in lieu of all or part of the notice period an indemnity to CHARP equal to the compensation due for the notice period or the non-observed pro rata part of this notice period.

CHARP may without any notice period and without any liability to the CUSTOMER terminate the entire Agreement or any part thereof, by giving written notice to the CUSTOMER, (i) if the CUSTOMER defaults in the performance of its payment obligations or other obligations under the Agreement; (ii) in the event of bankruptcy, liquidation, cessation of payments or any kind of insolvency of the CUSTOMER. CHARP cannot be held liable for any delays in the delivery of Services unless caused by its willful misconduct. Provisions of this Agreement which either are expressed to survive its termination or from their nature should survive such termination shall remain in full force and effect after termination.

Processing of personal data

The CUSTOMER agrees that CHARP collects and processes the CUSTOMER personal data (including any contact details or other personal data of any of its employees). CHARP is the controller in relation to this data.

Personal data shall only be used for administrative purposes, for the performance of the Agreement, customer management, accounting, commercial actions, and to comply with legal and regulatory obligations.

The personal data of CUSTOMER that are received by CHARP in connection with the Agreement shall be collected, processed, used and stored in accordance with the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council 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, and repealing Directive 95/46/EC (GDPR).

The CUSTOMER always has the right to access, copy, object to and limit the processing of their personal data. Moreover the CUSTOMER has the right to data portability, withdraw consent as well as the right to erase, restrict or rectify the personal data.

The personal data may be transferred to third parties if this is necessary for performing the purposes of the Agreement. Personal data may also be transferred to recipients located outside of the European Economic Area. Where applicable, CHARP will take appropriate specific measures to guarantee an adequate level of protection of the personal data.

Force Majeure and hardship

In case of force majeure or unforeseen circumstances (“Force Majeure” / “Hardship”), CHARP shall, after notifying the CUSTOMER, have the right to cancel all or part of its Services and access to the Software and System or at the choice of CHARP to suspend the Services and access to the Software and System, without being liable for any compensation.

Without being exhaustive, the following circumstances will be construed as cases of Force Majeure and/or Hardship: technical problems encountered due to any kind of cyberattacks, strikes, lock-outs, acts of war or acts or terrorism, riots, fire, explosion, orders, regulations or instructions from the government or any governmental administration, errors or delays attributable to third parties, pandemics and/or epidemics and any measures taken in that framework.

Notices, Miscellaneous, Applicable law and jurisdiction

All notices must be delivered by means of a registered letter to CHARP BV, Kanunnik De Deckerstraat 20A, 2800 Mechelen, BELGIUM. Any complaints by the CUSTOMER concerning the deliverables must be sent within 8 days as of receipt by CUSTOMER of the concerned delivery.

If one or more provisions of the Agreement are found to be invalid, illegal or unenforceable, in whole or in part, the remainder of that provision and of the Agreement shall not be affected and shall continue in full force and effect. In such event, the parties shall in good faith amend the invalid, illegal or unenforceable provision(s) or any part thereof and/or agree on a new provision in such a way as to reflect insofar as possible the purpose of the invalid, illegal or unenforceable provision(s).

No failure or delay on the part of CHARP to exercise any right or remedy under the Agreement shall be construed or operated as a waiver thereof.

Nothing in this Agreement and no action taken by the Parties pursuant to this Agreement shall constitute or be deemed to constitute a partnership between the Parties, or shall constitute either Party as the agent, employee or representative of the other. This Agreement cannot be assigned in whole or in part in any manner by one Party hereto without the express written consent of the other Party, any attempt to do so being void. This Agreement can only be modified by means of a written document signed by both Parties. A Party to this Agreement shall not be entitled to use the name or logo of the other Party for any purpose, unless (i) legally required, (ii) in relation to references made about the services rendered when pitching for projects and/or tenders or (iii) with the prior approval of the other Party.The Agreement shall be governed by and interpreted in accordance with Belgian law, excluding its conflict of law provisions. In case of a dispute between the Parties, arising out of the performance, the validity or the interpretation of the Agreement, the Parties agree that these disputes shall be subject to the exclusive jurisdiction of the courts of Antwerp (subsection) Mechelen, Belgium.