GENERAL TERMS AND CONDITIONS OF SERVICE
The capitalised terms below are defined in clause 1.1 or elsewhere in these GTCS.
In the event that you accept to enter into the Agreement on behalf of another individual or legal body, you represent and warrant that you have full power and authority to legally bind such individual or legal body.
These GTCS may be amended by the Supplier (as defined below) from time to time and you are therefore invited to review them periodically. You will be notified at least thirty (30) calendar days in advance in case of substantial change(s) to these GTCS and will have the possibility to terminate the Agreement according to clause 17.1 in case you do not agree to such changes (with reasonable objection).
1. Definitions and Precedence
Unless explicitly indicated otherwise, capitalized terms used in these GTCS shall have the meaning set forth in this clause 1 or elsewhere in these GTCS, it being understood that the singular shall include the plural and vice versa.
Additional Services: the services that may be provided by the Supplier in the future other than the Services and that the Customer may order in the future against the purchase of Credit Units as set forth in clause 6.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services, as further described in clause 2(d).
Business Day: any day which is not a Saturday, Sunday or public holiday in Belgium.
Confidential Information: has the meaning set forth in clause 1.
Credit Pack: the pack of several Credit Units as may be specified in the Schedule in the future.
Credit Pack Price: the price of a Credit Pack as may be specified in the Schedule in the future.
Credit Price: the total price to be paid by the Customer for the future purchase of Credit Packs requested in a Subscription Order, as set forth in the Order Confirmation.
Credit Unit: the credit unit that the Customer may purchase in the future to order Additional Services as specified in clause 6.
Credit Unit Price: the price of a Credit Unit as may be specified in the Schedule in the future.
Customer: the individual or legal body subscribing to the Services or on behalf of which the Services are subscribed and who is acting for professional purposes.
Customer Account: the personal account of the Customer created by filling in the online subscription form available on the Website.
Customer Data: the data (including but not limited to Data) inputted by the Customer, Authorised Users, or the Supplier on the Customer’s behalf for the purpose of using or facilitating the Customer’s use of the Services and the Additional Services as the case may be.
Data: any Personal Data of which the Customer is the Data Controller and which is processed by the Supplier as Data Processor in the framework of the use of the Services and Additional Services as the case may be, including, without limitation the Authorised Users’ and the Customer’s clients’ Personal Data.
Data Controller, Data Processor, Personal Data and Processing: as set out in the Data Protection Legislation.
Data Protection Legislation: (i) any directly applicable EU regulations (including but not limited to Regulation (EU) 2016/679 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 (General Data Protection Regulation – GDPR)), (ii) any delegated act in relation to the GDPR, any EU Member States laws and decrees supplementing and/or executing the GDPR as well as (iii) any similar applicable legislations from countries outside of the European Union.
Effective Date: the date that Customer accepts these GTCS during the online subscription procedure.
Email Address: any valid electronic address indicated by the Customer Account or a Subscription Order.
Normal Business Hours: 9.00 a.m. to 5.00 p.m. local BE time, each Business Day.
Order Confirmation: the confirmation of a Subscription Order, the Subscription Fees, the subscription period and – in the future – the Credit Price as the case may be, as provided during the online subscription procedure.
Order Receipt Email: the email sent by the Supplier to the Email Address confirming (i) the starting of the Free Trial as defined in clause 3, and/or (ii) the receipt of the Subscription Order and payment, and containing a summary of the Customer’s Subscription Order.
Services: the SweepBright services consisting in the management of the Customer’s real estate agents’ business flows such as property intake, the matching of leads & listings and the follow-up of buyers/sellers and landlords/tenants, provided in the form of SaaS through the Software made available by the Supplier to the Customer under the Agreement via the Website (or such other website that may be notified to the Customer by the Supplier from time to time) and the SweepBright App, as more particularly described on the Website.
Software: the mobile and cloud-based software platform SweepBright developed by and belonging to the Supplier that the Supplier makes available to the Customer as part of the Services through the Website (or such other website that may be notified to the Customer by the Supplier from time to time) and the SweepBright App.
Subscription Fees: the monthly or yearly subscription fees, as applicable, payable by the Customer to the Supplier for the determined number of User Subscriptions, as specified in the Schedule.
Subscription Order: any order placed by the Customer on the Website requesting the Services for monthly or yearly periods, and – in the future – Credit Units and/or Credit Packs to order Additional Services.
Supplier: SweepBright NV, a Belgian limited liability company, having its registered offices at Mechelsesteenweg 271 bus 1.1, 2018 Antwerp, Belgium and registered with the Crossroads bank for enterprises under company number 0638.784.491.
SweepBright App: the iOS application for smartphones and tablets through which the Software is made available. An Android version of the SweepBright App may be made available in the future.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 1 which entitle a determined number of Authorised User(s) to access and use the Services, and the Additional Services as the case may be, in accordance with the Agreement.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
Website: the Supplier’s website available at the address sweepbright.com.
1.2 PrecedenceIn the event of a conflict between these GTCS and the Order Confirmation if any, the conflict shall be solved according to the following priority order: (a) Order Confirmation, (b) GTCS . For the purpose of the foregoing, an omission shall not of itself be considered to give rise to any conflict or inconsistency.
2. Scope of the Agreement – Free Trial
2.1 To subscribe to the Services, the Customer must create a Customer Account. The Customer agrees to provide such contact and other information as requested by the Supplier in the course of the creation of the Customer Account and other registration process or thereafter (the “Account Data"). The Customer represents and warrants that the Account Data it provides to the Supplier is true and accurate. The Supplier may verify the accuracy of the Account Data, as it deems appropriate. The Supplier may request the Customer to provide further data as reasonably necessary for authentication purposes. The Customer shall maintain and update the Account Data to keep it current, complete and accurate.
2.2 The Supplier hereby agrees to provide the Services to the Customer against the payment of the Subscription Fees under the provisions of the Agreement, which the Customer accepts. The Supplier further agrees to provide those Additional Services that may be ordered in the future by the Customer, if any, against the payment of Credit Units under the provisions of the Agreement. The Services are made available solely for use on the devices and through the operating systems that are approved by the Supplier.
2.3 Notwithstanding clause 2.2, upon creation of the Customer Account and provided that the Customer provides full and valid contact details during its registration, the Customer is entitled to access the Services on a free basis (“Free Trial”) for a period of 15 calendar days, as specified during the registration process, starting from the registration (“Free Trial Period”). By submitting full and valid contact details, the Customer agrees to the Free Trial and to the application of the GTCS thereto. The Customer will receive an Order Receipt Email. At the expiration of the Free Trial Period, the Customer Account will be deactivated unless the Customer places a Subscription Order for User Subscriptions subject to the applicable Subscriptions Fees which will be then invoiced to the Customer on a monthly or yearly basis, as applicable, for the use of the Services. In the absence of any Subscription Order at the expiration of the Free Trial Period, the Supplier will deactivate the Customer Account and any and all Customer Data, if any, will be suppressed. The Free Trial can only be used once per Customer and is limited to the Services. For the avoidance of doubts, during the Free Trial Period, all of the provisions of the Agreement shall apply, save as follows: (a) the Customer shall have no obligation to pay the Subscription Fees in respect of the Free Trial Period; and (b) the Customer may terminate the Agreement immediately by giving written notice to the Supplier at any time before the end of the Free Trial Period, in which case no liability to pay any fees will arise.
2.4 When the Customer places a Subscription Order for User Subscriptions and/or whenever the Customers places a Subscription Order for Credit Units and/or Credit Packs, the Customer must confirm such Subscription Order in the Order Confirmation and pay the Subscription Fees (except for the Free Trial Period) and/or the Credit Price, as the case may be. The Customer will receive subsequently an Order Receipt Email. This Order Receipt Email only constitutes an acknowledgment of the receipt of the Subscription Order and shall not be part of the Agreement.
3. User Subscriptions
3.1 Subject to the Customer purchasing the User Subscriptions in accordance with clause 12.1, the restrictions set out in this clause 3 and the other provisions of these GTCS, the Supplier hereby grants to the Customer a non-exclusive, personal, non-transferable right to permit a number of Authorised Users corresponding to the number of purchased User Subscriptions to use the Services during the duration of the Agreement solely for the Customer’s internal business operations.
3.2 In relation to the Authorised Users, the Customer undertakes that:
(a) the maximum number of Authorised Users that it authorises to access and use the Services shall not exceed the number of User Subscriptions it has purchased from time to time;
(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;
(c) each Authorised User shall keep secure and confidential login information for its use of the Services;
(d) it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within five (5) Business Days of the Supplier’s written request at any time;
(e) it shall permit the Supplier to audit the Customer’s use of the Services in order to control that the number of Authorised Users does not exceed the number of purchased User Subscriptions and to verify the accuracy of the list of Authorised Users referred to in clause 3.2(d). Such audit may be conducted, at the Supplier’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
(f) if any of the audits referred to in clause 3.2(e) reveals that the Customer has underpaid the Supplier, the Customer shall pay to the Supplier an amount equal to such underpayment and purchase the missing User Subscriptions in accordance with clause 12.1, within 10 Business Days of the date of the relevant audit; and
(g) if any of the audits referred to in clause 3.2(e) reveals that the Services are accessed by anyone other than the Authorised Users or, more generally, that the Customer’s use of the Services and/or the Additional Services as the case may be is not compliant with the Agreement, the Supplier may, at its sole discretion and without prejudice to its right to claim damages, deactivate the litigious access(es) or terminate the Agreement pursuant to clause 17.2(a).
3.3 The Customer shall not access, store, distribute or transmit any Viruses, or any content during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activities;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
(f) causes damage or injury to any person or property;
and, upon reception of any complaint with respect to the above, the Supplier reserves the right, without liability to the Customer, to disable the Customer’s access to and to supress any content that breaches the provisions of this clause 3.3.
3.4 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under these GTCS, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services and/or Additional Services in order to develop a product or service which competes with the Services and/or Additional Services; or
(c) use the Services and/or Additional Services in an unreasonable way when no specific usage limitation is provided for in these GTCS (e.g. in terms of number of active property listings, data storage space usage or number and volume of e-mailings). The Supplier reserves the right to limit or suspend the Services in case of dishonest usage or usage constituting an abuse of right; or
(d) use the Services and/or Additional Services to provide services to third parties other than the Customer’s clients and contacts; or
(e) subject to clause 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Additional Services available to any third party except the Authorised Users; or
(f) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Additional Services other than as provided under this clause 3.
3.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or Additional Services and, in the event of any such unauthorised access or use, promptly notify the Supplier.
3.6 The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or affiliated company of the Customer.
4. Additional User Subscriptions
4.1 Subject to clause 4.2 and clause 4.3, the Customer may, from time to time, purchase additional User Subscriptions and the Supplier shall grant access to the Services and Additional Services as the case may be to such additional Authorised Users in accordance with the provisions of the Agreement.
4.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall place a Subscription Order for User Subscriptions.
4.3 The Customer shall pay to the Supplier the relevant fees for such additional User Subscriptions as set out in the Schedule and, if such additional User Subscriptions are purchased by the Customer part way through the then current monthly or yearly period, such fees shall be pro-rated for the remainder of the then current monthly or yearly period.
4.4 In case the addition of one or more User Subscriptions implies that the Customer can benefit of reduced Subscription Fees per Authorized User based on the new total number of User Subscriptions, such reduced Subscription Fees will only apply as from the next monthly or yearly subscription period.
5.1 The Supplier shall, during the term of the Agreement, provide the Services to the Customer in accordance with the provisions of the Agreement.
5.2 The Supplier shall use commercially reasonable endeavours to make the Services available with a monthly uptime percentage of at least 98%, except for:
(a) planned maintenance carried out outside Normal Business Hours,
(b) unscheduled maintenance performed during or outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer reasonable advance notice and
(c) downtime caused by factors outside of the Supplier’s or its suppliers’ reasonable control, including any Force Majeure Event (as defined below) or Internet access or related problems beyond the demarcation point of the Supplier or its supplier(s). In the event the Supplier does not meet such percentage, the Customer will not be eligible any indemnification.
5.3 No back-up of the Customer Data, inputted and stored by the Customer through the Services and Additional Services as the case may be shall be provided by the Supplier under the Agreement. The Customer may however, at any time, save on its own IT infrastructure a copy of such Customer Data. Upon termination of the Agreement for whatever cause pursuant to clause 17, the Supplier shall not provide any services or assistance whatsoever to the Customer with respect to the migration of the Customer Data to any Customer’s or third party platform software or system.
5.4. Provided that the Customer pays the Subscription Fees for the Services, email and in-app support is included at no additional cost. The Supplier accepts email and in-app support questions 24 hours per day x 7 days per week, in French and English languages only. Email and in-app questions can be submitted through the help widget/chat in the lower right hand corner of your web app or at email@example.com. Email and in-app responses by the Supplier are provided during Normal Business Hours only. The Supplier attempts to respond to email and in-app support questions within 2 Business Days; in practice, the Supplier’s responses are generally much faster. The Supplier does however not promise or guarantee any specific response time. Issues resulting from the Customer’s use of SweepBright API’s or modifications to code are outside the scope of support. The Supplier will only provide support for integrations which are listed in-app as being supported by the Supplier.
During the Free Trial, in the absence of Subscription Fee, limited support is available to the Customer through the SweepBright help library available at: http://get.sweepbright.help.
The Supplier may discretionary limit or deny the Customer access to support when the Customer acts, or has acted, in a way that results or has resulted in misuse of support or abuse of the Supplier agents.6. Additional Services and Credit Units
6.1 In addition to the Services, the Customer may order in the future, when available, Additional Services from time to time. In order to do so, the Customer will have to purchase Credit Packs at the Credit Pack Price as will be specified in the Schedule. Credit Units will be non-refundable and non-transferable.
6.2 The Additional Services and the Credit Units necessary to obtain such Additional Services will be described in the Schedule. The Supplier may suppress, add or modify Additional Services and/or the Credit Units necessary to obtain such Additional Services from time to time.7. Data Processing and Personal Data protection
7.1 The parties acknowledge that where Data Protection Legislation applies, the following provisions of this clause 7 shall apply.
7.2 Processing of the Data by the Supplier as Data Processor
(a) The parties agree that the Customer acts as the Data Controller and the Supplier as the Data Processor with the respect to the Processing of Data in the framework of the use by the Customer of the Services, and the Additional Services as the case may be.
(b) The Supplier shall only process the Data to the extent necessary for the proper performance of the Services (or the Additional Services, as the case may be), to comply with its obligations under the Agreement or as instructed in writing by the Customer. The Supplier shall not carry out any other processing of the Data nor allow any third party to process the Data, except to the extent necessary for the proper performance of the Services, as instructed in writing by the Customer or to enable sub-processing of Data by authorized sub-processors (subject to prior general or specific written authorisation of the Customer) pursuant to the Data Protection Legislation.
The Customer hereby specifically authorizes the Supplier to engage the following sub-processors:
Sendgrid Inc. (a Delaware Company) – 1801 California Street Suite 500, Denver, CO 80202
FullContact Inc. (a Delaware Company) – 1755 Blake St., Suite #450 Denver, CO 80202
Amazon Web Services, Inc., (a Delaware corporation) – 410 Terry Avenue North Seattle, WA 98109-5210
The Customer hereby generally authorizes the Supplier to engage any other sub-processor to the extent necessary for the proper performance of the Services provided that the Supplier informs the Customer of any intended changes concerning the addition or replacement of sub-processors. The Customer will have the possibility to object to such addition or replacement on the basis of objective grounds.
The Supplier shall ensure that the same data protection obligations as set out in this clause 7.2 shall be imposed on sub-processors by way of an agreement, in particular providing sufficient guarantees to implement appropriate technical and organisational security measures.
(c) The parties acknowledge and agree that compliance with the Data Protection Legislation in relation to any Processing of Data by the Customer (as well as by the Supplier, on behalf of the Customer) for the purposes envisaged by the Services and the Additional Services as the case may be is the sole responsibility of the Customer, acting as Data Controller under the Data Protection Legislation. The Supplier agrees that any Processing of Data by the Supplier or any sub-processor in respect of which the Supplier or any sub-processor acts as Data Processor on behalf of the Customer shall be carried out in accordance with the Data Protection Legislation provided it is in accordance with the Services.Where a sub-processor fails to fulfil its obligations under Data Protection Legislation, the Supplier shall remain fully liable to the Customer for the performance of such sub-processor’s obligations.
(d) The Supplier may only transfer the Data outside the European Economic Area (“EEA”) in compliance with the Data Protection Legislation or under instruction by the Customer. In accordance with clause 8.1, the Customer acknowledges that the servers used by the Supplier to provide the Services may be Amazon and SendGrid servers located outside of the EEA. The Supplier has entered into the necessary contractual clauses with Amazon and SendGrid to enable such transfer. The Customer further acknowledges and agrees that, when it instructs the Supplier to send or make available such Data to a third party, it is solely responsible for authorising third parties to access Data and that the Supplier has the obligation to transfer Data to such authorised third parties as part of the Services. The Customer shall be solely liable and responsible for ensuring that transfers of Data to authorised third parties occur in compliance with the Data Protection Legislation or other applicable privacy and personal data protection legislations.
(e) The Supplier shall ensure the reliability of any employee, agent or contractor of the Supplier or any sub-processor and that they are subject to confidentiality obligations.The Supplier shall also take appropriate technical and organisational measures against:
unauthorised or unlawful processing of the Data; and
accidental loss or destruction of, or damage to, the Data, so that, having regard to the state of technological development and the cost of implementing any measures, the measures taken ensure a level of security appropriate to:
the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage in relation to the Data; and
the nature of the Data to be protected.Without limitation to the foregoing, the Customer shall, upon reasonable request from the Supplier, take and implement technical and organisational measures suggested by the Supplier to maintain appropriate function and security of the Services.
(f) The Supplier
(i) shall co-operate fully and promptly with the Customer in case of any notice of non-compliance with the Data Protection Legislation or an access request of a data subject (as defined under the Data Protection Legislation) with respect to the Data, and
(ii) shall provide to the Customer all reasonable assistance and copies of and access to Data required by the Customer, in dealing with any such notice or access request, and shall not provide copies of or information about any of the Data to any individual without the written permission of the Customer (except in case of legal obligation of the Supplier to do so).
(g) The Supplier permits the Customer, or an appropriate auditor or inspector appointed by the Customer and to whom the Supplier has no reasonable objection, once per quarter and within seven (7) Business Days’ prior notice, to inspect the Supplier data processing systems and facilities used by the Supplier in Processing the Data solely for the purpose of controlling that the Supplier is complying with its obligations under these GTCS. The Customer acknowledges and agrees that, in case the Supplier uses the hosting services of a third party, the audit right of this clause 7.2(g) shall be limited to providing the information that is reasonably available from such third party hosting services provider. In carrying out any audit in accordance with this clause 7.2(g) the Customer shall comply (and shall ensure that any appointed auditor and inspector complies) with any reasonable security or access procedures notified in writing by the Supplier to the Customer as well as with the confidentiality obligations under clause 14.
(h) To assist the Customer in complying with the Data Protection Legislation, if requested, the Supplier shall provide to the Customer full details of its technical and organisational security measures, and any other information reasonably required by the Customer in relation to the processing of the Data by the Supplier, as are relevant to such compliance and subject to the confidentiality obligations under clause 14. In case of any Data breach (which is a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Data transmitted, stored or otherwise processed), the Supplier shall, without delay, notify the Customer of such breach. The notification must, at least, describe the nature of the Data breach including where possible, the categories and approximate number of Data Subjects concerned and the categories and approximate number of Data records concerned, describe the likely consequences of the Data breach, describe the measures taken or proposed to be taken to address the Data breach, including, where appropriate, measures to mitigate its possible adverse effects.
(i) Without prejudice to clause 16, as between the parties, the Supplier shall indemnify, keep indemnified and hold harmless the Customer against any claims, loss, damage, cost or expense (including without limitation legal costs on an indemnity basis) which the Customer receives, incurs, suffers or becomes liable for exclusively as a result of the Supplier’s breach of this clause 7.2. The Customer remains fully and solely liable for compliance with the Data Protection Legislation with respect to the Processing of any Data or as otherwise outlined in clause 7.2(j).
(j) The Data and any intellectual property or other rights subsisting in it is and shall remain at all times the property of the Customer. The Customer shall also be the owner of any new Data collected or generated during the performance of the Services (the “New Data”) and the Supplier hereby assigns with full title guarantee to the Customer all intellectual property rights in the New Data (if any) for the full terms during which those rights and any renewals or extensions subsist. The Supplier shall have a royalty free non-exclusive licence to process the Data (including the New Data) only for the purpose of performing the Services in accordance with the Agreement. For the avoidance of doubts, the Supplier shall have the right to use and process anonymised properties' data (i.e. data relating to properties that do not identify any individual or company and that cannot be linked to any individual or company, thus excluding any and all Data and New Data ) contained in the Customer's listings.
(k) The Supplier shall ensure that any copies of Data in the possession of the Supplier are promptly returned to the Customer or destroyed (at the Customer’s option) upon the Customer’s notice when they are no longer required for the performance of the Supplier’s obligations under this Agreement, and the Supplier shall delete existing copies unless Data Protection Legislation requires storage of the Data.
(l) The Customer warrants that the Data were collected in compliance with the Data Protection Legislation and that it is entitled under the Data Protection Legislation to permit Supplier to process the Data in accordance with these GTCS. This includes, but is not limited to, obtaining a valid consent for the processing of Data in order to send electronic direct marketing communications and providing the Data Subjects with the mandatory information under the Data Protection Legislation.
7.3 Processing of Personal Data by the Supplier as Data Controller
(a) By accessing, subscribing to and using the Services, the Customer (if it is an individual) or Authorised Users (the “Individuals”) acknowledge that the Supplier will collect and process certain Personal Data relating to them, such as the first and last names, email address, professional telephone number, choice of language, the company to which they belong (as the case may be), login information, access rights and log files (the “Individual’s Personal Data”). The Individuals acknowledge that the Individual’s Personal Data may be collected and processed by the Supplier as Data Controller for the purposes of creating, identifying, verifying and managing the Customer Account, setting the preferred language, controlling the Customer’s and Authorised Users’ access rights, contacting and answering the Customer’s and Authorised Users’ queries, correcting assignments of access and functions, identifying use/misuse of the Services and, more generally, for the purpose of providing the Services and Additional Services as the case may be. The Supplier relies on the necessity to execute the Agreement to which the Customer or the Individual is party as legal basis for processing for the purposes described above. The Supplier will not use the Individual’s Personal Data for other purposes.
(b) In addition to the general purposes specified in clause 7.3(a), the Supplier may process the Individual Personal Data for direct marketing purposes, including by email (subject to the Individual’s prior consent where necessary).
(c) The Individuals acknowledge that the Supplier may disclose the Individual’s Personal Data to its sub-contractors for the purposes described in clause 7.3(a), both inside and outside the European Economic Area. Such sub-contractors include email delivery services provider, payment processing services, providers of websites, and applications as well as hosting providers. The Individuals acknowledge that this may involve transfers of the Individual’s Personal Data to countries that do not provide an adequate level of protection. Appropriate contractual measures will be taken to ensure the security of the Individual’s Personal Data in compliance with the Data Protection Legislation. A copy of those appropriate contractual measures can be provided upon request.
(d) Steps will be taken to ensure that the Individual’s Personal Data are accurate, kept up to date and not kept for longer than is necessary. In particular, the Customer Account will be deactivated upon termination of the Agreement for whatever cause pursuant to clause 17 or after the expiration of the Free Trial Period as the case may be, and the Individual’s Personal Data will be suppressed within six (6) months from such deactivation. Measures will also be taken to safeguard against unauthorised or unlawful processing and accidental loss or destruction or damage to the Personal Data.
(e) The Individuals are entitled to access the Personal Data relating to them, as collected and processed by the Supplier as Data Controller, and request the modification or suppression of the Individual’s Personal Data if it is incorrect or unnecessary. The Individual also has the right to ask for the restriction of the processing or to object to the processing as well as the right to data portability (as the case may be).
When applicable, the Individual has the right to withdraw consent at any time, without affecting the lawfulness of processing based on consent made prior to such withdrawal.
The Individual may exercise these rights by sending an email to the Supplier at firstname.lastname@example.org, together with a copy of her/his identity card or other identification document. In addition, the Individuals may object to the processing of such Individual’s Personal Data for direct marketing purposes at any time, free of charge and without having to provide a justification by following the abovementioned procedure.
The Individual also has a right to lodge a complaint with a supervisory authority (in particular in the Member State of the European Union of its usual place of residence, place of work or the place where the violation occurred) if the Individual considers that the processing of its own Individual’s Personal Data infringes the Data Protection Legislation.
(f) Cookies may be used on some areas of the Website. A cookie is a small text file that is sent on your computer or other device and stored on your hard drive or device memory. We are using the following cookies to keep records of your visits, to better tailor your future visits to your preferences and generally to improve your navigational experience. In using these cookies, we deliver a more personalized experience on the Website. You can refuse, delete or block cookies at any time, although some functionalities of the Website requiring the use of the cookie might no longer be available to you.
8.1 The Supplier may not sub-contract the performance of its obligations as Data Processor related to the Processing of Data as provided in clause 7.2 to any third party located outside the European Economic Area without the prior written consent of the Customer and without acting in accordance with the provisions of this clause 8.
8.2 Without prejudice to clause 8.1, the Supplier may sub-contract the performance of its obligations under the Agreement to any third party without the consent of the Customer.
8.3 The Supplier shall remain fully responsible and liable towards the Customer for the performance of the sub-contracted part of the Services and Additional Services in accordance with the Agreement.
8.4 In case the Customer’s consent is required under clause 8.1, the Supplier must notify the Customer of the identity of any proposed sub-contractor and, upon request from the Customer, provide written evidence that the proposed sub-contractor is capable of complying with all relevant Data Processor obligations of the Supplier set out in clause 7.2 to be sub-contracted, and if relevant and required by the Customer, details of the proposed sub-contractor’s technical and organisational security measures, and any other information reasonably required by the Customer in relation to the Processing of the Data by the proposed sub-contractor.
8.5 In case of sub-contracting of the performance of Supplier’s obligations as Data Processor related to the Processing of Data as provided in clause 7.2, the Supplier must enter into a written agreement with any such sub-contractor on terms governing the Processing of Data which are no less stringent than those set out in clause 7.2.
9. Third party providers
9.1 The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties (e.g. via third-party websites and/or platforms) and that it does so solely at its own risk. The Customer is therefore responsible for ensuring compliance with all applicable laws, including Data Protection Legislation, when using, and/or subscribing to, a third-party website. The Supplier makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, products or services, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website and/or platform is strictly between the Customer and the relevant third party. The Supplier does not endorse or approve any third-party website and/or platform nor the content of any of the third-party website and/or platform linked to or made available via the Services or the Additional Services.
9.2 Without prejudice to clause 9.1, the Customer may develop a link (using an Application Programming Interface (“API”) as an Additional Service) between its Customer Account and the Customer’s own website. The use of the API is subject to those Additional Terms provided when downloading the API or upon installation. In addition, the Customer may choose to link its Customer Account to its account on selected third-party platforms so that each listing published through the Services can directly be published on such third-party platforms. In accordance with clause 9.1, the Supplier is not responsible for any of these third-party platforms or their content.
10. Supplier’s obligations
10.1 The Supplier undertakes to perform the Services and the Additional Services in accordance with the Agreement and with reasonable skill and care.
10.2 The Supplier shall not be deemed non-compliant with the provisions of clause 10.1 in case of incomplete, incorrect or non-performance of the Services and/or Additional Services which is caused by the Customer’s or Authorised Users’ use thereof that contrary to the Supplier’s instructions, or modification or alteration of the Services and/or Additional Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents.
10.3 Except in the case referred to in clause 10.2, the Supplier shall, at its expense, use all reasonable commercial endeavours to correct any non-performance of the Services and/or Additional Services, or provide the Customer with an alternative means to achieve the expected performance under the Agreement. This constitutes the Customer’s sole and exclusive remedy for any breach of clause 10.1. Notwithstanding the foregoing, the Supplier:(a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; nor that the Services, the Additional Services and/or the information available in the FAQs or knowledge base or otherwise obtained by the Customer through the Services or the Additional Services will meet the Customer’s requirements; and(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including without limitation the Internet, and the Customer acknowledges that the Services and Additional Services may be subject to limitations, delays and other problems inherent to the use of such communications networks and facilities.
10.4 The Supplier warrants that it has the rights necessary for the performance of its obligations under the Agreement.10. Customer’s obligationsThe Customer shall:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to the Agreement; and
(ii) all necessary access to such information as may be required by the Supplier;
in order to perform the Services and the Additional Services;
(b) comply with all applicable laws and regulations with respect to its activities under the Agreement, including Data Protection Legislation;
(c) ensure that it has secured all applicable authorisations before listing a new property using the Services;
(d) carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
(e) ensure that the Authorised Users use the Services, and the Additional Services as the case may be, in accordance with the Agreement and shall be responsible for any Authorised User’s breach thereof;
(f) shall where specifically agreed for the purposes of allowing the Supplier to perform its obligations under the Agreement, provide the Supplier with necessary access and or permissions; and
(g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Software, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the Internet.
12. Charges and payment
12.1 When creating its Customer Account, the Customer shall provide to the Supplier valid, up-to-date and complete contact details and any other relevant valid, up-to-date and complete billing details.
12.2 The Customer shall pay anticipatively to the Supplier the Subscription Fees on a monthly or yearly basis, as applicable (starting at the end of the Free Trial Period) for the User Subscriptions in accordance with this clause 12 and the Schedule.
12.3 The Customer shall pay to the Supplier the Credit Pack Price for the purchased Credit Pack(s) (if any) in accordance with this clause 12 and the Schedule.
12.4 All amounts and fees stated or referred to in the Agreement:
(a) shall be payable in EUR (for Customers in euro zone countries), GBP (for Customers in the UK) or USD (for Customers in all other countries), as specified in the invoice;
(b) are, subject to clause 16.4(b), non-cancellable and non-refundable;
(c) are exclusive of value added tax (V.A.T.), which shall be added at the applicable rate (where applicable).
12.5 The Supplier shall be entitled to change the Subscription Fees, the Additional Services costs and/or the Credit Pack Prices upon thirty (30) calendar days’ prior notice to the Customer and the Schedule shall be deemed to have been amended accordingly. The Supplier will have the possibility to terminate the Agreement according to clause 17.1 in case it does not agree to such changes.
12.6 In case of non-payment of any sum due, and without prejudice to any other rights and remedies of the Supplier:
(a) the Supplier may, without liability to the Customer, disable the Customer Account and access to all or part of the Services and/or Additional Services and the Supplier shall be under no obligation to provide any or all of the Services and/or Additional Services until full payment of all sums due; and
(b) interest shall accrue on such due amounts at an annual rate of ten percent (10%), commencing on the due date and continuing until fully paid, whether before or after judgment.
13. Proprietary rightsThe Customer acknowledges and agrees that the Supplier and/or its licensors own all industrial, intellectual and other property rights in the Software, the Application Programming Interface (API), the Services, the Additional Services and the Website. Except as and to the extent expressly stated in these GTCS, no rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other industrial or intellectual rights in respect of the Software, the API, the Services, the Additional Services or the Website are granted to the Customer.
14.1 All information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) in the framework of the provision of the Services and the Additional Services as the case may be is deemed to constitute “Confidential Information”. The confidentiality obligations set forth in this clause 14 shall not apply to the Confidential Information that the Receiving Party can prove:
(a) is or becomes publicly known other than through a wrongful act of the Receiving Party;
(b) is in the Receiving Party’s lawful possession before the disclosure without any obligation to keep it confidential;
(c) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure;
(d) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information, which independent development can be shown by written evidence; or
(e) is required to be disclosed by applicable law, by any court of competent jurisdiction or by any competent regulatory or administrative body; or
(f) is necessary to establish the rights of the Receiving Party under the Agreement, including disclosure in confidence to the Receiving Party’s legal advisors only.
14.2 The Receiving Party shall, both for the duration of the Agreement and afterwards for a period of three (3) years, (i) keep the Disclosing Party’s Confidential Information confidential and, unless required by applicable law and (ii) not disclose the Disclosing Party’s Confidential Information to any third party without the prior written approval of the Disclosing Party or as necessary to perform its obligation under the Agreement, or use the Disclosing Party’s Confidential Information for any purpose other than the performance the Receiving Party’s obligations under the Agreement. Without prejudice to the generality of the foregoing, the Customer accepts that the Supplier discloses certain Confidential Information of the Customer to the Supplier’s sub-contractors for the purpose of providing the Services and Additional Services as the case may be.
14.3 The Receiving Party shall use the same degree of care, but no less than a reasonable degree of care, as it uses to protect its own confidential information of a like nature, to prevent the unauthorized disclosure, publication or dissemination of the Disclosing Party’s Confidential Information.
14.4 The Receiving Party shall not be responsible for any loss, destruction, alteration or disclosure of the Disclosing Party’s Confidential Information caused by any third party.
14.5 The Customer acknowledges that details of the Services and Additional Services, and the results of any performance tests of the Services and Additional Services constitute the Supplier’s Confidential Information.
14.6 The Supplier acknowledges that the Data constitutes Confidential Information of the Customer.
15.1 The Customer shall, subject to clause 16, defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Additional Services, provided that:(a) the Customer is given prompt notice of any such claim;(b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and(c) the Customer is given sole authority to defend or settle the claim.
15.2 The Supplier shall, subject to clauses 15.5 and clause 16, defend the Customer, its officers, directors and employees against any claim that the Services or Additional Services, to the exclusion of the Customer Data, infringes any patent, copyright, trade mark, database right or right of confidentiality existing at the Effective Date, and shall indemnify the Customer for any amounts awarded against the Customer in a final judgment or settlement of such claims, provided that:
(a) the Supplier is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and(c) the Supplier is given sole authority to defend or settle the claim.
15.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services or Additional Services, replace or modify the Services or Additional Service so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on two (2) Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
15.4 In no event shall the Supplier, its officers, directors, employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:(a) a modification of the Services or Additional Services by anyone other than the Supplier; or(b) the Customer’s use of the Services or Additional Services in a manner contrary to the instructions given to the Customer by the Supplier or the Agreement; or(c) the Customer’s use of the Services or Additional Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
15.5 The foregoing states the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s officers’, directors’, employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality or other industrial or intellectual property right.
16. Limitation of liability
16.1 Notwithstanding anything to the contrary contained in the Agreement, this clause 16 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its officers, directors, employees, agents and sub-contractors) to the Customer in respect of:(a) any breach of these GTCS or the Agreement;(b) any use made by the Customer of the Services and Additional Services or any part of them; and(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
16.2 Except as expressly and specifically provided in the Agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Additional Services and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services and the Additional Services, or any actions taken by the Supplier at the Customer’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute are, to the fullest extent permitted by applicable law, excluded from the Agreement; and(c) the Services and Additional Services are provided to the Customer on a “AS IS” and a “AS AVAILABLE” basis.
16.3 Nothing in the Agreement excludes the liability of the Supplier:(a) for death or personal injury caused by the Supplier’s negligence; or(b) for fraud or fraudulent misrepresentation.
16.4 Notwithstanding anything else to the contrary contained in the Agreement, but subject to clause 16.2 and clause 16.3 of the GTCS:
(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data, information of Customer Data, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement; and
(b) the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising out of or in connection with the performance, non-performance or contemplated performance of its obligations under the Agreement and/or the provision of Services or the Additional Services shall not exceed an amount corresponding to the total amount of Subscription Fees paid by the Customer under the Agreement for the User Subscriptions during the three (3) months’ period (for monthly subscriptions) or the one (1) year period (for yearly subscriptions) immediately preceding the date on which the claim arose. The existence of more than one claim will not enlarge or extend this limit.
17. Term and termination
17.1 The Agreement is entered into force on the Effective Date for the Free Trial Period (if any) and for a one month or one year period thereafter, as specified in the Subscription Order. The Agreement will then be automatically renewed for additional periods of one month or one year (as applicable), except in case either party notifies to the other party its intention not to renew the Agreement, without cause, by giving a written notice of termination to the other party at least thirty (30) calendar days’ (in case of monthly subscription) or ninety (90) calendar days’ (in case of yearly subscription) prior to the end of the then current monthly or yearly (as applicable) period. The Customer may also terminate the Agreement in case it does not agree (with reasonable objection) with substantial changes to these GTCS notified by the Supplier by giving a written notice of termination to the Supplier. The Customer may serve such termination notice by sending an email to email@example.com. The Supplier may serve such notice by sending an email to the Email Address.
17.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Agreement without liability to the other if:
(a) the other party commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within thirty (30) calendar days’ of that party being notified in writing of the breach; or
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder; or
(d) a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or
(e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
(f) the other party ceases, or threatens to cease, to trade; or
(g) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
17.3 On termination of the Agreement for whatever cause:
(a) all rights and licences granted under the Agreement shall immediately terminate, subject to the right of the Customer to export a copy of the Customer Data within ten (10) calendar days after the effective date of the termination of the Agreement;
(b) the Receiving Party shall return to the Disclosing Party or destroy (with written certification of compliance therewith), at the Disclosing Party’s discretion, any Confidential Information as well as any copy thereof that is the possession of the Receiving Party;
(c) the Supplier may destroy the Customer Data in its possession not earlier than ten (10) calendar days after the effective date of the termination of the Agreement; and
(d) the accrued rights of the parties as at termination of the Agreement, or the survival after such termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
18. Force majeure
The Supplier shall have no liability to the Customer under the Agreement if it is prevented from or delayed in performing its obligations thereunder, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, act of terrorism, embargo, or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of the Supplier’s suppliers or sub-contractors (“Force Majeure Event”), provided that the Customer is promptly notified of such Force Majeure Event, its severity and its likely impact on the Supplier’s ability to perform its obligations under the Agreement after becoming aware of the commencement of the relevant Force Majeure Event. Notwithstanding the foregoing, the Supplier shall use all reasonable endeavours to continue to perform its obligations under the Agreement for the duration of such Force Majeure Event.
19. WaiverAny failure or delay by either party in exercising any right under the Agreement, in whole or in part, or any reaction or absence of reaction by either party in the event of violation by the other party of one or more provisions of the Agreement shall not operate or be interpreted as a waiver (whether express or implied, in whole or in part) of any of its rights under the Agreement or under said provision(s), nor shall it preclude the further exercise of any such rights. Any waiver of a right must be express and in writing.
20.1 If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
20.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
21. Entire agreement
21.2 Each of the parties acknowledges and agrees that in entering into the Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Agreement or not) relating to the subject matter of the Agreement, other than as expressly set out in the Agreement.
22.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
22.2 Subject to any restrictions on sub-contracting herein contained, the Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
22.3 Without limiting the generality of clause 22.2, the Supplier is free to assign or transfer the Agreement as a whole or any of its rights and/or obligations under the Agreement, whether to its affiliates or to third parties, in the form and under the structure the Supplier deems appropriate. Clause 22.2 is applicable to any type of transfer of rights or obligations under the Agreement, be it as an individual asset or as part of a transfer of universality or of branch of activities, and notably, without limitation, in the event of merger, scission, contribution of universality or of branch of activities, winding up, bankruptcy or transformation of the Supplier.
22.4 Subject to any restrictions on assignment herein contained, the provisions of the Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective heirs, legal representatives, successors and permitted assigns.
23. No partnership or agencyNothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
24.1 Except where expressly otherwise indicated in a specific clause, all notices and other forms of communication required under the Agreement must be in writing and delivered or transmitted to the recipient in person through a reputable courier service, by fax with a confirmation sheet, by registered mail or by email (with acknowledgement of receipt) to the address indicated below:
to the Customer: at the physical address or e-mail address indicated in the Customer Account;
to the Supplier: SweepBright NV, Mortselsesteenweg 204, 2540 Hove, Belgium – e-mail: firstname.lastname@example.org.
24.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not during Normal Business Hours, at 9 a.m. on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax or email shall be deemed to have been received at the time of transmission (as shown by the acknowledgement of receipt).
25. Governing law and jurisdictionThe Agreement shall be governed by and construed in accordance with the laws of Belgium, and no effect shall be given to any other choice of law or any conflict-of-laws rules or provisions (Belgian, foreign or international) that could cause the laws of any jurisdiction other than Belgium to be applicable.The Customer agrees that any dispute concerning the validity, the interpretation, the performance or the termination of the Agreement and/or the Services or Additional Services, shall be submitted to the exclusive jurisdiction of the courts of Antwerp, Belgium.
SweepBright is located in: Belgium - Mortselsesteenweg 204, 2540 HoveGTCS Version 5.1 – Last updated: 1 March, 2022.