MAIN SERVICE AGREEMENT
ORANGE BUTTON ENTERPRISE LICENSE
The following terms and conditions shall apply to any Enterprise Licensee (as defined below) using Orange Button in accordance with the Orange Button Enterprise License.
Article 1 – Definitions:
In these terms and conditions the following words and expressions shall have the following meanings unless the context requires otherwise:
“Agreement”: means the Order Form together with these general terms and conditions.
“API Integration Fees”: means the fees as payable by Enterprise Licensee to Orange Button International for the API integration as provided by Orange Button International.
“BIM”: Building Information Modeling.
“BIM Database”: means any data and information derived from the implementation and usage of the Enterprise Licensee Platform.
“BIM License”: means the license for End-Users to access the Enterprise Platform in accordance with terms and conditions of the Orange Button BIM License.
“BIM Projects”: means any project by which Orange Button has been used.
“BIM Solutions” means specific BIM Objects; with an unique solution name; for a specific installation type, insulation type and construction type; in a round and/or squared opening; with a description; selected fire-stop component; unique URL; applicable in defined countries and as implemented by Orange Button International for Enterprise Licensee.
“Consultancy Fees”: means the fees as payable by Enterprise Licensee to Orange Button International for consultancy services as rendered by Orange Button International.
“Confidential information”: means all information (verbally or in hardcopy and/or electronic form) with regard to Orange Button and all information that relates to the other Party’s past, present, and future research, implementation, business activities, products, services, which is identified by a Party as confidential or would be treated as confidential by a reasonable person given the nature of the information or the circumstances surrounding its disclosure or access.
“End Users”: means any company (or person) who is entitled by Enterprise Licensee to access the Licensee Platform in order for End-User to select and offer BIM firestop design services to customers.
“End-User Licensee”: means any company (or person) who has obtained and paid an Orange Button BIM, Office or Field License from Orange Button International.
“Enterprise API” means an Application Programming Interface (API) which upon login and key security is used to manage the BIM Solutions in the BIM Database on the Licensee Platform with data from the database of the Enterprise Licensee.
“Enterprise License”: means the license as granted by Orange Button International to Enterprise Licensee to use Orange Button and the Enterprise Licensee Platform in accordance with this Agreement.
Enterprise Licensee”: means any company (or person) who has obtained and paid an Orange Button Enterprise License from Orange Button International.
“Enterprise Order Form” means the Order Form of Orange Button International by which Enterprise Licensee orders the Enterprise License and setting out additional licenses (BIM License, Office License and Field License) for End-Users to gain access to the Enterprise Platform as ordered by Enterprise Licensee.
“Field License” means the license for End-Users to access the Enterprise Platform in accordance with terms and conditions of the Orange Button Field License.
“Implementation Fees”: means the fees as payable by Enterprise Licensee to Orange Button International for the implementation of Enterprise Licensee specific Orange Button BIM Solutions by Orange Button International.
“Intellectual Property Rights”: means all intellectual property rights with regard to – and as vested in Orange Button, including any of the following rights to: (i) any work protected by copyright (ii) any trademark for which an application may have been filed or not (including but not confined to any word, figurative or shape mark), (iii) any design or drawing which has been registered or not, or for which an application has been filed, (iv) any neighboring rights, (v) any know-how or business secret, (vi) other intellectual property rights with regard to -and as vested in Orange Button and/or any right created through use, and any similar rights which exist in another jurisdiction together with any related extension, renewal or reinstatement of such rights, and (viii) any license to any of the foregoing.
“Licensee Platform” means the platform as customized by Orange Button International which enables End-Users to perform BIM firestop design services -with firestop products and systems of Enterprise Licensee to customers.
“License Fee”: means the yearly license fee as payable by Enterprise Licensee to Orange Button International for the Enterprise License in accord-ance with the rates and terms as specified in the applicable Order Form.
“Maintenance Fees”: means the fees as payable by Enterprise Licensee to Orange Button International for the maintenance of the Enterprise API by Orange Button International.
“Office License” means the license for End-Users to access the Enterprise Platform in accordance with terms and conditions of the Orange Button Office License.
“Orange Button”: means the “Orange Button software” of Orange Button International.
“Orange Button Group”: means Orange Button International, and any other company or person directly or indirectly related to one of these companies and/or its shareholders.
“Orange Button Platform”: means the platform of Orange Button International which enables
End-Users to perform BIM firestop design services to customers.
“Order Form”: means a written agreement, executed by both Parties, that sets forth the specific details of the products, services, fees, payment terms, and any other terms and conditions mutually agreed upon by the Enterprise Licensee and Orange Button International.
“Term”: means the term of this Agreement as set out in article 3 of this Agreement.
Article 2 – Orange Button Enterprise License
2.1 By accepting these terms and conditions and upon fulfilment of the payment obligations by Enterprise Licensee Orange Button International grants to Enterprise Licensee a non-exclusive and non-transferable Enterprise License.
2.2 Orange Button International shall as part of the Enterprise License:
(a) customize the “Orange Button Platform” for Enterprise Licensee into a Licensee Platform in order for Licensee to enable End-Users to perform BIM firestop design services – with only firestop products and systems of Enterprise Licensee – to customers; and
(b) integrate the Enterprise API for Enterprise Licensee.
2.3 In order for Enterprise Licensee to grant End-Users access to the Licensee Platform Enterprise Licensee shall as part of the Enterprise License purchase a pre-agreed number of the following End-User licenses:
(a) Orange Button BIM Licenses;
(b) Orange Button OFFICE Licenses; and
(c) Orange Button FIELD Licenses.
2.4 Enterprise Licensee agrees and is aware of the scopes and limitations of the Orange Button BIM License, Orange Button OFFICE License and Orange Button FIELD Licenses.
2.5 Orange Button International is responsible for maintenance, updates & compatibility, performance monitoring & bug fixes, security & compliance, customer support & enhancements with regard to the Enterprise API.
2.6 Orange Button International shall ensure that the End-Users shall also have access to the Licensee Platform.
2.7 Enterprise Licensee is not entitled to transfer any rights and obligations as set out in the Orange Button License and/or these terms and conditions to any third party and Enterprise Licensee is not entitled to grant any sub-license with regard to the Orange Button to any third party.
2.8 The Enterprise License as granted by Orange Button International to Enterprise Licensee shall at all times be subject to the terms and conditions as set out herein, shall be limited to the sole extent required for the purpose for which this license is granted and shall remain in effect only and as long as the Enterprise Licensee fully complies with its obligations towards Orange Button International.
Article 3 – Term
3.1 Enterprise Licensee agrees and is aware that the term for the Orange Button Enterprise License shall be at set out in the Enterprise Order Form.
3.2 Upon the expiration of first License Year, the Enterprise License shall automatically renew for an additional License Year unless terminated by either Party with a written notice taking into account a notice period of at least thirty (30) days prior to the end of the applicable License Year.
Article 4 – License fees
Enterprise License fee
4.1 The Enterprise Licensee acknowledges that the Enterprise License Fee payable to Orange Button International for an Enterprise License is specified in the applicable Order Form.
4.2 Orange Button International shall send and invoice to Enterprise Licensee upon signing of the applicable Order Form. Enterprise Licensee shall pay this part of the License Fee to Orange Button International within fourteen (14) days after the invoice date.
Office License fee
4.3 The Enterprise Licensee acknowledges that the Office License fee payable to Orange Button International for Office Licenses are specified in the applicable Order Form.
4.4 Orange Button International shall send and invoice to Enterprise Licensee upon the commencement date of the Office Licenses. Enterprise Licensee shall pay this part of the License Fee to Orange Button International within fourteen (14) days after the invoice date.
Field License Fee
4.5 The Enterprise Licensee acknowledges that the Field License fee payable to Orange Button International for Field Licenses are specified in the applicable Order Form.
4.6 Orange Button International shall send and invoice to Enterprise Licensee upon the commencement date of the Field Licenses. Enterprise Licensee shall pay this part of the License Fee to Orange Button International within fourteen (14) days after the invoice date.
BIM License fee
4.7 The Enterprise Licensee acknowledges that the BIM License fee payable to Orange Button International for BIM Licenses are specified in the applicable Order Form.
4.8 Orange Button International shall send and invoice to Enterprise Licensee upon the commencement date of the BIM Licenses. Enterprise Licensee shall pay this part of the License Fee to Orange Button International within fourteen (14) days after the invoice date.
Article 5 – General fees
Implementation Fees
5.1 Enterprise Licensee agrees to pay Orange Button International a fee for the implementation of specific Orange Button BIM Solutions. The amount of the fee shall be as specified in the applicable Order Form and shall be payable for each implementation of a BIM Solution.
5.2 Orange Button International shall send to Enterprise Licensee the applicable invoices. Enterprise Licensee shall pay these invoices to Orange Button within 14 (fourteen) days.
Consultancy Fees
5.3 If Enterprise Licensee wishes that Orange Button International provides consultancy services to Enterprise Licensee, than Orange Button International shall charge Consultancy Fees to Enterprise Licensee (depending on the place where the services have to be provided).
5.4 Parties agree that should the consultancy services as to be provided to Enterprise Licensee take place outside The Netherlands, Enterprise Licensee shall also pay all (business class) travel and (four star) hotel costs of all employees of Orange Button International.
API Integration Fees
5.5 Enterprise Licensee agrees to pay Orange Button International a fee for the integration of Enterprise API. The amount of the fee shall be as specified in the applicable Order.
5.6 Orange Button International shall send to Enterprise Licensee the applicable invoices. Enterprise Licensee shall pay these invoices to Orange Button within 14 (fourteen) days.
Maintenance Fees
5.7 Enterprise Licensee agrees to pay Orange Button International a fee for maintenance, updates & compatibility, performance monitoring & bug fixes, security & compliance, customer support & enhancements with regard to the Enterprise API. The amount of the fee shall be as specified in the applicable Order.
5.8 Orange Button International shall send to Enterprise Licensee the applicable invoices. Enterprise Licensee shall pay these invoices to Orange Button within 14 (fourteen) days.
Article 6 – Limitations of use
6.1 Parties agree and are aware that Enterprise Licensee is solely entitled to use the 3D representation of BIM Solutions resulting from the use of the Enterprise Licensee Platform and/or its BIM Database for BIM Projects only.
6.2 In the event of any breach of an obligation under this Article 6 Enterprise Licensee shall forfeit towards Orange Button International an immediately due and payable penalty of € 20,000,00 (in words: twenty thousand euros), plus € 5,000,00 (in words: five thousand euros) for each day that the applicable violation continues, without prejudice to Orange Button International’s right to full compensation of all damages as suffered by Orange Button International in this regard. A violation by an Customer of any legal entity or person affiliated with Enterprise Licensee is considered a violation of this article 6 by Enterprise Licensee itself.
6.3 Enterprise Licensee shall indemnify and hold Orange Button International harmless from and against any and all responsibility or liability which Orange Button International may incur, suffer or sustain should a Customer or User or Enterprise Licensee not fully comply with its obligations towards Orange Button International as set out in this clause 6.
Article 7 – Termination
7.1 Either Party shall be entitled to terminate (“ontbinden” in Dutch) the Orange Button Enterprise License, without prejudice to its other rights and remedies forthwith on written notice in the event that the other Party:
- commits a material breach of the terms of Orange Button Enterprise License not remedied within
30 (thirty) days and after receipt of a written notice thereof; or - shall cease to carry on its business or shall have a liquidator, receiver or administrative receiver
appointed to it or over any part of its undertaking o assets or - shall pass a resolution for its winding up (otherwise than for the purpose of a bona fide scheme of
solvent amalgamation or reconstruction where the resulting entity shall assume all of the liabilities of it) or a court of competent jurisdiction shall make an order, or - shall enter into any voluntary arrangement with its creditors, or
- shall be unable to pay its debts as they fall due, or similar arrangement in any jurisdiction.
7.2 Termination (beëindigen in Dutch) of Orange Button Enterprise License for any reason whatsoever shall not relieve Enterprise Licensee of its obligation to make prompt payment in full of any and all amounts owed to Orange Button International which are accrued and outstanding as of the date of termination (beëindiging in Dutch) and shall not relieve either Party from any other liability or obligation which has previously accrued as of such date.
7.3 Parties agree that the rights and obligations as set out in these terms and conditions that by their nature would be expected to survive expiration or termination of the Orange Button Enterprise License, shall survive such expiration or termination (beëindiging in Dutch). Such rights and obligations include, but are not limited to Intellectual Property rights, Confidentiality, governing law and jurisdiction.
Article 8– Force Majeure
8.1 Orange Button International shall be liable for failure to perform or delay in performing any obligation towards Enterprise Licensee, if such failure or delay is caused by any circumstances beyond its reasonable control, including but not limited to acts of god, war, civil commotion, industrial dispute, hacking and or all other forms of cybercrime.
8.2 Enterprise Licensee agrees that Orange Button International shall use its best endeavours to protect Orange Button, the BIM Database and all related information and documentation with regard thereto against hacking and/or any other forms of cybercrime and Enterprise Licensee agrees that Orange Button International shall not be liable for any damages as a result thereof except in the case of intent or gross negligence on the part of Orange Button International.
Article 9 – Limitation of liability and indemnity
9.1 Orange Button International shall not be liable for any failure in the performance of its obligations under Orange Button Enterprise License, with the exception of tort or gross negligence of Orange Button International.
9.2 Should a court of law determine that Orange Button is liable for damages as incurred by Enterprise Licensee, the liability for damages as caused by Orange Button International towards Enterprise Licensee is in any event limited to a maximum of the License Fee which Orange Button International has received from Enterprise Licensee with regard to Orange Button Enterprise License over the period of twelve (12) months before the applicable defect.
9.3 The total liability of Orange Button International for each separate event is for all Enterprise Licensees and End-User Licensees together limited to an amount of € 100.000,– with the exception of gross negligence or tort.
9.4 Any claim of Enterprise Licensee as set out in this clause 9, must be filed within one (1) month after discovery of damages, in default of which Enterprise Licensee forfeits its rights to claim damages from Orange Button International.
9.5 Orange Button International shall not liable towards Enterprise Licensee, its Users or its Customers for any consequential damage for example but not excluding, loss of profit, lost savings, loss of goodwill, loss due to business interruption, damages as a result of claims of customers or any third party and/or loss of data.
9.6 Enterprise Licensee shall indemnify and hold Orange Button International harmless from and against any and all responsibility or liability which Orange Button International may incur, suffer or sustain should Enterprise Licensee not fully comply with its obligations towards Orange Button International as set out in Orange Button Enterprise License.
Article 10 – Intellectual Property and BIM Database
10.1 Enterprise Licensee and End-User acknowledge that all Intellectual Property Rights related to – and/or arising from the use of – Enterprise Licensee Platform and/or Orange Button are exclusively owned by Orange Button International. It is expressly not the intention of Enterprise Licensee or Orange Button International to transfer any Intellectual Property Rights related to – or arising from Orange Button to Enterprise Licensee.
10.2 Parties are aware and agree that all Intellectual Property Rights and data resulting from – and/or arising from the further development of the Enterprise Licensee Platform, Orange Button and/or the BIM Database are exclusively owned by Orange Button International. Enterprise Licensee is aware and agrees that by using the Orange Button data of Enterprise Licensee is generated and stored by Orange Button international. Orange Button International is during and after the Term entitled to use this data and/or any information from the Enterprise Licensee Platform and/or the BIM Database.
10.3 Enterprise Licensee shall not use Orange Button and/or any Intellectual Property Rights related to – and/or arising from the use of – Enterprise Licensee Platform, Orange Button and/or the BIM Database (or parts thereof) after the expiry or termination (beëindiging in Dutch) of Orange Button Enterprise License (for whatever reason).
10.4 In the event of any breach of an obligation under this clause 10 Enterprise Licensee shall forfeit towards Orange Button International an immediately due and payable penalty of € 10,000,00 (in words: ten thousand euros), plus € 1,000,00 (in words: one thousand euros) for each day that the applicable violation continues, without prejudice to Orange Button International’s right to full compensation of all damages as suffered by Orange Button International in this regard. A violation by an underlying shareholder of any legal entity or person affiliated with Enterprise Licensee is considered a violation of this article 10 by Enterprise Licensee itself.
Article 11 – Relations and employees Orange Button Group
11.1 Enterprise Licensee, is prohibited to directly or indirectly, for themselves and / or for others, independent or otherwise during the Term of Orange Button Enterprise License and for a period of five (5) years after termination (beëindiging in Dutch) of Orange Button Enterprise License (of whatever cause), or any other company or person directly or indirectly related to
a. to approach any employee of the Orange Button Group, in order to persuade them to terminate any (employment) agreement with Orange Button Group;
b. to employ direct or indirect, assign direct or indirect, any person, employee (or future employee), of the Orange Button Group, or any freelancer on assignment working for any company or person being part of the Orange Button Group, in order for this person to perform any kind of activity or render any service for Enterprise Licensee, or any other company or person directly or indirectly related to Enterprise Licensee.
11.2 In the event of any breach of an obligation under this clause 11, Enterprise Licensee shall forfeit towards Orange Button International an immediately due and payable penalty of € 50,000,00 (in words: fifty thousand euros), plus € 5,000,00 (in words: five thousand euros) for each day that the applicable violation continues, without prejudice to Orange Button International’ s right to full compensation of all damages as suffered by Orange Button International in this regard. A violation by a User, an underlying shareholder of any legal entity or person affiliated with Enterprise Licensee is considered a violation of this article 11 by Enterprise Licensee itself.
Article 12 – Confidentiality
12.1 Enterprise Licensee shall during the Term of Orange Button Enterprise License and after termination (beëindiging in Dutch) or expiry thereof:
- keep confidential, and shall not disclose to any third party for any reason, any Confidential Information of Orange Button International without the prior written consent of Orange Button International at its sole discretion; and
- protect the confidentiality of Orange Button International’s Confidential Information in the same manner that it protects the confidentiality of its own similar confidential information, but in no event using less than a reasonable standard of care.
12.2 Each Party warrants that:
- the Party and its employees will use the Confidential Information of the disclosing Party solely in accordance with the terms hereof and will not appropriate it for its own use;
- the Party will maintain the confidentiality and security of the Confidential Information during the term, any extension thereof, and/or after termination of Orange Button Manufacturer License;
- the Party will restrict access to the Confidential Information to those of its personnel (including such personnel employed by its affiliates);
- the Party and its employees and/or authorized subcontractors will not disclose any Confidential Information of the disclosing Party in any manner whatsoever; and assistance in obtaining an order protecting the information from public disclosure.
- If a Party receives a subpoena or other validly issued administrative or judicial process requesting Confidential Information of the other Party, it will promptly notify the other Party of such receipt and tender to the other Party the defense of such subpoena or process. If requested by the other Party, the receiving Party will reasonably cooperate (at the expense of the other Party) in opposing such subpoena or process. To the extent the subpoena or process is ultimately not quashed or limited, the receiving Party will then be entitled to comply with such request (as may have been limited as part of the contestation process) to the extent permitted by law.
Article 13 – Privacy Policy
13.1 Enterprise Licensee is aware and agrees that Enterprise Licensee is responsible for complying with applicable law and regulations regarding the processing of personal data of End-Users.
13.2 Orange Button International processes personal data of its End-Users. This concerns name, address, and email address. The processing of personal data takes places in the following situations:
- Formation and execution of an agreement with an Manufacturer Licensees;
- Administrative processing; to offer and/or deliver services to Manufacturer Licensees;
- Invoicing; should payment fail, Orange Button International may pass on the claim for collection, to a debt collection company;
- To make a personal account of User on the website of Orange Button International;
- to provide manufacturers with a manuafacturer license agreement with insight into the use of their firestop solutions
- To control, analyze, maintain, optimalize and secure services and to detect and deter misuse and/or fraud of services;
- To determinate strategic analyses and reports of our services; and/or
- If User visits one of our (mobile) websites, our servers may (automatically) save information such as URLs, IP-addresses, browsertypes, languages, data and times of the visits.
- In the aforementioned situations the name, address, and email address are necessary for the execution of the agreement.
- In the aforementioned situations the personal data, i.e. e-mail address, are provided optionally for which processing User provides permission.
- In aforementioned situations Orange Button International has a legitimate interest to process personal data.
The provided personal data shall solely be processed by Orange Button International for the purpose of the execution of license agreements with regard to the use Orange Button being the purpose for which the personal data is collected.
13.3 End-User shall at all times have the option whether or not to disclose personal data. However, for the use of a number of services it is requested to disclose personal data to Orange Button International. If the input of details is required, Orange Button International shall inform User which data are necessary to be able to use its services.
13.4 All End-Users have certain rights under the GDPR legislation to manage their own personal data:
- Right of access and information;
- Right of rectification;
- Right of erasure;
- Right to object the processing of his/her personal data;
- Right of data portability; and
- Right of restriction of processing
In addition, End-User may withdraw the consent he/she has given to the processing of his data at any time. Furthermore, User has the right to complain about our data processing activities to a data protection authority. In cases User wishes to invoke one or more of these rights, he/she may contact Orange Button International.
13.5 Notwithstanding the below mentioned, only persons authorized by Orange Button International for the
security and/or processing and/or maintenance of IT-structure have access to personal data of End-Users.
13.6 If, for the purposes as set out in this privacy policy, Orange Button International involves a controller, such as postal services and payment services, we close an agreement with such controller to ensure that the controller offers sufficient assurance with regard to technical and organizational safety measures.
13.7 Orange Button International has taken adequate technical and organizational measures to secure the personal data of its End-Users against loss or unlawful processing, amongst which (i) storage of personal data in a secured database with encrypted passwords and secured backups and (ii)payment orders to Orange Button International through secured payment systems.
13.8 Orange Button International shall not provide personal data of End-Users to third parties unless set out in this and/or unless this is necessary for the execution of its services, on the basis of a statutory provision or in case of an emergency if this is, in the reasonable opinion of Orange Button International, in the interest of its Users. This includes legitimate requests of authorities, summons or court orders, acts to investigate or prevent damages or fraud, or acts to guarantee the safety of Orange Button.
13.9 Apart from the use of cookies, Orange Button International does not collect any data automatically. Orange Button International does not process sensitive personal data. The personal data shall solely be stored during the period which shall be necessary for the execution of the purposes as set out above, unless applicable laws prescribe longer retention periods in which case the personal data shall be stored for the period as prescribed by the applicable laws.
Article 14 – Whole Agreement
14.1 The Order Form of Enterprise Licensee and these terms and conditions constitute the whole agreement between Orange Button International and Enterprise Licensee and there are no promises, terms, conditions, obligations, representations or warranties, oral or written, expressed or implied, other than those contained herein. Orange Button Enterprise License supersedes any previous agreements between the Parties.
14.2 No amendment to or modification of Orange Button Enterprise License is effective unless it is in writing, identified as an amendment to Orange Button Enterprise License and signed by an authorized Representative of each Party.
Article 15 – Governing law and jurisdiction
15.1 Any conflict or dispute between Orange Button International and Enterprise Licensee relating to the Orange Button Enterprise License shall be governed solely by the laws of The Netherlands, excluding its conflict of laws principles.
15.2 For any conflict or dispute between Orange Button International and Enterprise Licensee relating to the Orange Button Enterprise License solely the District Court of Rotterdam, The Netherlands, will be competent, without prejudice to the right to appeal with the competent Dutch courts.