MAIN SERVICE AGREEMENT


ORANGE BUTTON MANUFACTURER LICENSE

 

The following terms and conditions shall apply to any Manufacturer Licensee (as defined below) or User (as defined below) using Orange Button in accordance with the Orange Button Manufacturer License.

Article 1 – Definitions:

In this main service agreement the following words and expressions shall have the following meanings unless the context requires otherwise:

“Agreement”: means this Implementation – and Manufacturer License Agreement and all attachments thereto.
 
“BIM”: Building Information Modeling.
 
“BIM Database”: means any data and information derived from the implementation and usage of Orange Button and/or the Orange Button BIM Solu-tions.
 
“BIM Project”: means any project by which Orange Button and/or the BIM Database has been used.
 
“Consultancy Fees”: means the fees as payable by Manufacturer to Orange Button Inter-national for consultancy services as rendered by to 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, im-plementation, business activities, products, services, which is iden-tified 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 has entered into an end user license agreement with Orange Button International for the use of the Orange Button Platform 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.
 
“Field Of Application”: means the field of application of Orange Button BIM Solutions within the Orange Button Platform in accordance with the input, data and information as defined by Manufacturer.
 
“Implementation Fees”: means the fees as payable by Manufacturer to Orange Button Inter-national for the implementation of Manufacturer 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 appli-cation 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 busi-ness 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 to-gether with any related extension, renewal or reinstatement of such rights, and (viii) any license to any of the foregoing.
 
“License Fee”: means the yearly license fee as payable by Manufacturer to Orange Button International for the Manufacturer License in accordance with article 4 of this Agreement and at the rates and terms as speci-fied in the applicable Order Form. 
 
“Manufacturer License”: means the license as granted by Orange Button International to Manufacturer to use Orange Button and the Orange Button Plat-form in accordance with this Agreement.
 
“Manufacturer Licensee”: means any company (or person) who has obtained and paid an Orange Button Manufacturer License from Orange Button Interna-tional.
 
“Manufacturer Portal”: means the online account of Manufacturer to login to the Orange Button Platform and consisting of features and functionalities to perform data analysis; manage Manufacturer specific Orange But-ton BIM Solutions; define Field Of Application; manage compo-nents, users, contracts, apps, activities and settings.
 
“Orange Button”: means the “Orange Button software” from Orange Button International.
 
“Orange Button BIM Solutions”: means Manufacturer specific BIM objects; with an unique solution name; for a specific installation type, insulation type and construc-tion type; in a round and/or squared opening; with a description; se-lected firestop component; unique URL; applicable in defined countries and as implemented by Orange Button International for Manufacturer.
 
“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 BIM Solutions”: means specific Orange Button BIM Solutions as implemented by Orange Button International for Manufacturer.
 
“Orange Button Platform”: means the platform of Orange Button International which enables End-Users to perform BIM firestop design services – with firestop products and systems of Manufacturer Licensee – 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 Manufacturer Licensee and Orange Button International for the im-plementation or licensing of BIM Solutions. Each Order Form shall be deemed incorporated into, and governed by, the terms and con-ditions of this Agreement.
 
“Solutions”: means the function to automatically load firestop products and – systems in a BIM Project.
 
“Term”: means the term of this Agreement as set out in article 3 of this Agreement. 
 
“Territory”: means the world with the explicit exception of The Netherlands.

Article 2 – Orange Button Manufacturer License

2.1          By accepting these terms and conditions and upon fulfilment of the payment obligations by Manufacturer Licensee Orange Button International grants to Manufacturer Licensee under the terms and conditions as set out in this Manufacturer License Agreement a non-exclusive and non-transferable Manufacturer License to integrate its manufactured firestop products and – systems in the Orange Button Platform enabling End-Users to offer BIM firestop design services with Manufacturer Licensee firestop products to its customers using Orange Button within the Territory.

2.2          Manufacturer 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 Manufacturer Licensee is not entitled to grant any sub-license with regard to the Orange Button to any third party.

2.3          The Orange Button Manufacturer License as granted by Orange Button International to Manufacturer Licensee shall at all times be subject to this main service agreement and 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 Manufacturer Licensee fully complies with its obligations towards Orange Button International and this main service agreement.

2.4          Manufacturer Licensee is aware and agrees that Orange Button International shall implement Orange Button BIM Solutions for Manufacturer Licensee.

2.5          The Manufacturer Licensee acknowledges and agrees that that solely Manufacturer Licensee shall define the Field Of Application of the Orange Button BIM Solutions as implemented by Orange Button International for Manufacturer Licensee and that Manufacturer Licensee shall solely be responsible for the input and/or processing of all data and information in the predefined variables of the Orange Button BIM Solutions.

2.6          Orange Button International shall upon request support Manufacturer Licensee with processing of data and information in the predefined variables of the Orange Button BIM Solutions and shall charge for its services rendered Consultancy Fees.

Article 3 – Term  

3.1          Manufacturer Licensee agrees and is aware that the term for the Orange Button Manufacturer License shall be at least a License Year.

3.2          Upon the expiration of first License Year, the Manufacturer 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 – Manufacturer License fee

4.1             The Manufacturer Licensee acknowledges that the Manufacturer License Fee payable to Orange Button International for a Manufacturer License is specified in the applicable Order Form.

4.2             Orange Button International shall send and invoice to Manufacturer Licensee the first instalment upon signing of the applicable Order Form. Manufacturer 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             Manufacturer 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 Manufacturer Licensee the applicable invoices. Manufacturer Licensee shall pay these invoices to Orange Button within 14 (fourteen) days.

Consultancy Fees

5.3             If Manufacturer Licensee wishes that Orange Button International provides consultancy services to Manufacturer Licensee, than Orange Button International shall charge Consultancy Fees to Manufacturer (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 Manufacturer Licensee take place outside The Netherlands, Manufacturer Licensee shall also pay all (business class) travel and (four star) hotel costs of all employees of Orange Button International.

Article 6 – Limitations of use

6.1             Parties agree and are aware that Manufacturer Licensee is entitled to use the Orange Button Platform and/or its BIM Database and everything related thereto for BIM Projects only and that Manufacturer Licensee is prohibited from distributing any data resulting from the use of Orange Button, the Orange Button Platform and/or the BIM Database in any other way.

6.2             In the event of any breach of an obligation under this Article 6 Manufacturer 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 Manufacturer Licensee is considered a violation of this article 6 by Manufacturer Licensee itself.

6.3             Manufacturer 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 Manufacturer 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 Manufacturer 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 Manufacturer 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 Manufacturer License for any reason whatsoever shall not relieve Manufacturer 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 Manufacturer 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 Manufacturer 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             Manufacturer 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 Manufacturer 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 Manufacturer 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 Manufacturer                    Licensee, the liability for damages as caused by Orange Button International towards Manufacturer                    Licensee is in any event limited to a maximum of the License Fee which Orange Button International has received from Manufacturer Licensee with regard to Orange Button Manufacturer 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 Manufacturer 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 Manufacturer Licensee in the sense as set out above, must be filed within one (1) month after discovery of damages, in default of which Manufacturer Licensee forfeits its rights to claim damages from Orange Button International.

9.5             Orange Button International shall not liable towards Manufacturer 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             Manufacturer 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 Manufacturer Licensee not fully comply with its obligations towards Orange Button International as set out in Orange Button Manufacturer License.

Article 10 – Intellectual Property and BIM Database

10.1           Manufacturer Licensee and User acknowledge that all Intellectual Property Rights related to – and/or arising from the use of – Orange Button are exclusively owned by Orange Button International. It is expressly not the intention of Manufacturer Licensee or Orange Button International to transfer any Intellectual Property Rights related to – or arising from Orange Button Manufacturer License to Manufacturer 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 Orange Button and/or the BIM Database are exclusively owned by Orange Button International. Manufacturer Licensee is aware and agrees that by using the Orange Button data of Manufacturer 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 BIM Database.

10.3           Manufacturer Licensee shall not use Orange Button and/or any Intellectual Property Rights related to – and/or arising from the use of – the Orange Button and/or the BIM Database (or parts thereof) after the expiry or termination (beëindiging in Dutch) of Orange Button Manufacturer License (for whatever reason).

10.4           Manufacturer Licensee shall always use the trademark Orange Button in connection with any communication about Orange Button and Manufacturer Licensee shall not remove any reference to Orange Button from any form or document.

10.5           In the event of any breach of an obligation under this clause 10 Manufacturer 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 Manufacturer Licensee is considered a violation of this article 10 by Manufacturer Licensee itself.

Article 11 – Relations and employees Orange Button Group

11.1           Manufacturer Licensee, is prohibited to directly or indirectly, for themselves and / or for others, independent or otherwise during the Term of Orange Button Manufacturer License and for a period of five (5) years after termination (beëindiging in Dutch) of Orange Button Manufacturer License (of whatever cause), or any other company or person directly or indirectly related to

  1. to approach any employee of the Orange Button Group, in order to persuade them to terminate any (employment) agreement with Orange Button Group;
  2. 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 Manufacturer Licensee, or any other company or person directly or indirectly related to Manufacturer Licensee.

11.2           In the event of any breach of an obligation under this clause 11, Manufacturer 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 Manufacturer Licensee is considered a violation of this article 11 by Manufacturer Licensee itself.

Article 12 – Confidentiality

12.1      Manufacturer Licensee shall during the Term of Orange Button Manufacturer 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        Orange Button International processes personal data of its Users. This concerns name, address, and email address. The processing of personal data takes places in the following situations: 

  1. Formation and execution of an agreement with an Manufacturer Licensees; 
  2. Administrative processing; to offer and/or deliver services to Manufacturer Licensees; 
  3. Invoicing; should payment fail, Orange Button International may pass on the claim for collection, to a debt collection company; 
  4. To make a personal account of User on the website of Orange Button International; 
  5. to provide manufacturers with a manuafacturer license agreement with insight into the use of their firestop solutions
  6. To control, analyze, maintain, optimalize and secure services and to detect and deter misuse and/or fraud of services; 
  7. To determinate strategic analyses and reports of our services; and/or 
  8. 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 Orange Button being the purpose for which the personal data is collected. 

13.2        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. 

13.3        All our 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, 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. 

13.4        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 Users. 

13.5        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. 

13.6        Orange Button International has taken adequate technical and organizational measures to secure the personal data of its 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. 

13.7        Orange Button International shall not provide personal data of its 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. 

13.8        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           Orange Button Manufacturer License and these terms and conditions constitute the whole agreement between Orange Button International and Manufacturer 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 Manufacturer License supersedes any previous agreements between the Parties.

14.2           No amendment to or modification of Orange Button Manufacturer License is effective unless it is in writing, identified as an amendment to Orange Button Manufacturer 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 Manufacturer Licensee relating to the Orange Button Manufacturer 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 Manufacturer Licensee relating to the Orange Button Manufacturer License solely the District Court of Rotterdam, The Netherlands, will be competent, without prejudice to the right to appeal with the competent Dutch courts.

Headquarters

Leeuwenhoekstraat 48
2652 XL Berkel en Rodenrijs
The Netherlands