Terms and Conditions
Last modified: May 24, 2018 (All versions)
Welcome to the Rogerthat websites (including https://rogerth.at and http://www.rogerthat.net and sites that redirect to any of the afore
listed) (the “Website”) or Rogerthat mobile application
(including Onze Stad App and RogerThat) (the “App”) . The
Website and the App are made available to you subject to your
unconditional acceptance of all the terms, conditions, and notices
set forth and referenced on the Website or through the App , and in
these Terms and Conditions (including (without being exhaustive) the
Privacy Policy), as may be modified or complemented from time to time
as set forth herein (collectively “the Agreement”).
Please read the Agreement carefully, as it sets forth the legally
binding terms and conditions for your use of the Website, the App and
the services, features, content, applications and widgets available
on or through the Website or otherwise offered by Mobicage NV,
including through means of the App (collectively the
"Services"). For the purposes of the Agreement, references
to the Website shall include references to the App and references to
Services shall include services made available by Mobicage NV whether
through the Website, the App or otherwise.
The terms “Mobicage”,
“we”, “us”, “our” refer to
Mobicage NV, a limited liability company incorporated under Belgian
law, having its registered office at Antwerpse Steenweg 19, 9080
Lochristi, Belgium, VAT-BE-0835.560.572. The term “you”
refers to the user visiting the Website and/or registering on the
Website and/or accessing or using the Services.
1. Your unconditional consent
By visiting, accessing or using the Website
and/or the Services or by registering on the Website, you
unconditionally agree to be bound by the Agreement.
If you do not agree to any part of the
Agreement, please do not visit, access or use the Website and
Services.
Be sure to return to this page periodically to
review the most current version of the Agreement. We reserve the
right at any time, at our sole discretion, to change or otherwise
modify the Agreement, and your continued access to or use of the
Website and/or Services shall signify your acceptance of the updated
or modified Agreement.
2. Your membership and registration
You may browse the Website and view its
content without registering, but as a condition to using certain
aspects of the Services you are required to register with Mobicage.
By registering to our Website and as a
condition to you using the Services, you warrant that (i) you are
providing current, complete, accurate and true information, (ii) if
you have a Website account, you will safeguard your account
information and will supervise use of your account by anyone other
than yourself, and (iii) that you are legally competent and legally
authorised to register for an account and use the Services. You agree
to keep your contact information accurate and up to date.
You shall not:
- provide any false personal information,
create an account on behalf of anyone other than yourself, or
impersonate another individual when creating an account;
- use another person’s personal data
(e.g. name, photograph), ID or password without such person’s
permission, or use the Website or the Services while impersonating
another person;
Without prejudice to any other remedies or
sanctions available to us, Mobicage is at liberty to cancel or
suspend your account at any time at its discretion, without
justification or prior warning and without liability on
Mobicage’s part.
3. Your account security
You are solely responsible for the
consequences of using the Website and the Services.
You are solely responsible for safeguarding
your account information (incl. any passwords or access codes that
you use to access or use the Services) and for any activities or
actions by anyone using your account. You will not share your
passwords or access codes, let anyone else access your account
unsupervised or do anything else that might jeopardize the security
of your account.
You must notify Mobicage immediately of any
breach of security or unauthorized use of your account. Although
Mobicage will not be liable for your or anyone else’s damages
and losses caused by any unauthorized use of your account, you will
be liable for all damages and losses suffered by Mobicage or third
parties due to such unauthorized use and you will fully indemnify
Mobicage in this respect.
4. Your use of the Website and the Services
Subject to your compliance with the Agreement,
Mobicage hereby grants you permission to use the Website and the
Services, provided that:
- you will use the Website and the Services
solely for your personal and non-commercial use, except as expressly
permitted otherwise by Mobicage;
- you will not use the Website or the Services
in an irregular manner or for any unlawful purpose;
- you will at all times use the Website and
the Services in strict compliance with the Agreement and applicable
law;
- you will use the Website and the Services as
a normal, careful and reasonable human being;
- you will not access, monitor or copy any
content or information of the Website using any robot, spider,
scraper, or other automated means or any manual process for any
purpose without our express written permission;
- you will not take any action that imposes or
may impose an unreasonable or disproportionately large load on our
infrastructure, nor engage in any activity that interferes with or
disrupts our servers and networks;
- you will not publish or link to malicious
content intended to damage or disrupt another user’s browser or
computer or to compromise a user’s privacy;
- you will not create serial accounts for
disruptive or abusive purposes. Mass account creation for the afore
listed purposes, or resulting in the afore listed purposes (or any
other breach of the Agreement) may result in suspension of all
related accounts;
- you may not use the Services for the purpose
of spamming (i.e. sending unsolicited bulk messages). What
constitutes spamming will be determined by Mobicage in its reasonable
discretion;
- you may not (try to) hack Mobicage or the
account of other users;
- you may not engage in username squatting
(i.e. the bad faith registration of a legal name other than your own,
or of a name that is otherwise commonly used to identify a person
(e.g. nicknames), other than yourself, as a user name). Mobicage
shall determine in its sole discretion what actions it considers to
constitute username squatting;
- you will not deep-link to any portion of the
Website for any purpose without our express written permission, nor
frame, mirror, or otherwise incorporate any part of the Website into
any other website without our prior written permission;
- you will not (attempt to) duplicate,
transfer, give access to, copy or distribute any part of the Website
or Services in any medium without Mobicage’s prior written
authorization;
- to the maximum extent such prohibition is
permitted under applicable law and except as expressly agreed
otherwise by Mobicage, you will not (attempt to) reverse engineer the
software or communication protocol underlying the Website or
Services, nor write any software that imitates (or allows to imitate)
the communication protocol or interfaces (or allows to interface)
with the servers, nor will you translate, alter, modify, decompile,
disassemble or otherwise create derivate works of any part of the
Website, the Services and/or the (underlying) software or
communication protocol;
Accounts engaging in any of these actions (or
any other breach of the Agreement) may be investigated for abuse.
Without prejudice to any other remedies or sanctions available to us,
Mobicage is at liberty to cancel or suspend your account at any time
at its discretion, without justification or prior warning and without
liability on Mobicage’s part.
The Services that Mobicage provides are always
evolving and the form and nature of the Services that Mobicage
provides may change from time to time without prior notice. In
addition, Mobicage may discontinue the Website or stop (permanently
or temporarily) providing the Services or any feature within the
Services to you or to users generally without prior notice, at its
discretion and without liability. Mobicage also reserves the right to
impose limits on use and storage at it sole discretion at any time
and without prior notice.
The Services of Mobicage are free of charge to
the extent expressly specified on the Website and subject to such
restrictions as may be set out on the Website or otherwise notified
by Mobicage. Service Users are subject to the “Terms and
Conditions for Service Users” specified below, in addition to
the other terms and conditions of the Agreement.
5. Content posted by you
For the purposes of the Agreement,
“Content” shall mean any information, text, graphics,
photo’s or other materials, including any feedback, comments,
suggestions or ideas contained in such material, added, created,
uploaded, submitted, distributed, posted or otherwise made available
on the Website or otherwise to Mobicage, by users of the Website and
the Services, including yourself.
Mobicage takes no responsibility and assumes
no liability in respect of any Content provided by you. If you do not
agree to the related terms and conditions set out in the Agreement,
please do not provide us with any Content. You shall be solely
responsible for the Content you provide and for obtaining the
necessary authorizations to make the Content available through the
Website or otherwise to Mobicage and to have such Content used by
Mobicage as set forth herein. You shall be solely responsible for any
consequences related to the use of your Content by Mobicage, other
users and our third party partners. You shall ensure that any Content
that you post or submit on the Services or otherwise make available
strictly complies with the terms of the Agreement. You should only
provide Content that you are comfortable sharing with others as your
Content may be accessed or viewed by others. You agree not to share
Content that is confidential and/or proprietary without having
obtained the necessary authorisations and you acknowledge and agree
that any Content you provide shall be deemed non-confidential.
You warrant that you have obtained the
necessary authorizations to make available any Content and to have it
used by us for the purposes set out herein. You also warrant that the
Content you make available is otherwise compliant with the
requirements set out in the Agreement, and you acknowledge and agree
that we are under no obligation to verify such compliance of any
Content you make available. We cannot be held responsible or liable
towards you, including in respect of third-party claims made against
you, based on any Content made available by you. You agree to
promptly notify us (info@mobicage.com) upon becoming aware that any of the warranties
set out herein are not or no longer true.
You are in any event (without being
limitative) prohibited from making available on the Website or
otherwise through the Services (i) any unlawful, threatening,
harassing, libelous, slanderous, defamatory, abusive, hateful,
offensive, obscene, or pornographic material or content, or other
material or content that may be embarrassing to any person or entity
or that may violate rights of publicity and/or privacy or that may
otherwise violate any applicable law; (ii) any Content that
infringes, misappropriates or violates any copyright, database
rights, trademark, patent right or other proprietary right of any
third party; we ask that you please reference or cite sources
appropriately and refrain from any plagiarism; (iii) Content that
would constitute, encourage or provide instructions for a criminal
offense, violate the rights of any party, or that would otherwise
create liability or violate any local, national or international law;
(iv) private information of any third party, including, without
limitation, surname, addresses, phone numbers, email addresses,
social security numbers and credit card numbers; or (v) viruses,
corrupted data or other harmful, disruptive or destructive files,
including by posting Content that causes pop-ups or attempts to
install software, or otherwise impacts the Website, the Services
and/or its users with malicious code.
Mobicage takes no responsibility and assumes
no liability for any Content made available by you or any third
party, or for any loss of or damage thereto, nor does Mobicage assume
any liability for mistakes, defamation, slander, libel, omissions,
falsehoods, obscenity, pornography or profanity you may encounter in
the Content. Mobicage makes no guarantees or representations as to
the validity, completeness, truthfulness, accuracy, reliability or
legal status of any Content. Your use of the Website and the Services
is at your own risk. As a provider of interactive services, Mobicage
is only acting as an intermediary, a repository of the Content, and
is not liable for any statements, representations or Content provided
by its users in any public forum or other interactive area. Although
Mobicage has no obligation to screen, edit or monitor any of the
Content posted to or distributed through any interactive area,
Mobicage reserves the right, and has absolute discretion, to remove,
screen or edit without notice any Content posted or stored on the
Website or otherwise through the Services at any time and for any
reason, and you are solely responsible for creating backup copies of
any Content you post or store on the Website or otherwise through the
Services at your sole cost and expense.
Any user opinions submitted on the Website or
otherwise through the Services represent the individual users’
opinions and do not represent, nor can they be considered to
represent, Mobicage’s opinions or an endorsement,
recommendation, or approval of any such opinion.
While we expect you to show proper
consideration for other’s privacy and for topics that may be
considered objectionable or inflammatory (e.g. politics, religion),
Mobicage shall determine, at its sole discretion, what Content is
appropriate in respect of the Website and the Services. Without
prejudice to any other remedies and sanctions available to us,
Mobicage reserves the right at all times, at its discretion, without
having to provide any justification and without liability, to:
(i) remove, suspend, block, edit or modify any
Content, without notice to you;
(ii) to access, read, retain, copy and
disclose any Content as Mobicage deems necessary to (i) satisfy any
applicable law, regulation, legal process, governmental request,
court or legal order, (ii) enforce the Agreement, including
investigation of potential violations thereof, (iii) detect, prevent,
or otherwise address fraud, security or technical issues, (iv)
respond to user support requests, or (v) protect the rights and
property of Mobicage or any third party and to protect the safety and
security of the Website, the Services and their users.
6. Mobicage’s use of Content
By making available Content on the Website or
otherwise through the Services, you hereby grant Mobicage a
worldwide, non-exclusive, irrevocable, royalty-free, perpetual,
sub-licensable, transferable and assignable license to (i) process,
adapt, transmit, distribute, (publicly) display, and perform the
Content through the Website (including without limitation for
promoting and distributing part or all of the Services), and (ii) use
the name that you submit in connection with such Content.
You acknowledge and agree that Mobicage may
freely modify or adapt your Content in order to transmit, display or
distribute it over computer networks and in various media and/or make
changes to your Content as are necessary to conform and adapt that
Content to any requirements and limitations of any networks, devices,
services or media, or otherwise.
You further acknowledge that, when you delete
your Content, it will be removed from the Website and the Services,
but that any removed Content may persist in backup copies at or under
the control of Mobicage or with users who have previously accessed or
downloaded your Content. However, Mobicage
will only share your Content in accordance with Mobicage’s Privacy Policy in effect from time to time.
7. Intellectual Property Rights
The Website, the Services, and the information
they contain are provided to you at no charge, solely for your
personal and non-commercial use (except as expressly permitted
otherwise by Mobicage). All information made available on the Website
by Mobicage is provided for information purposes only.
All rights, title and interest in the Website
and the Services, including any intellectual and industrial property
rights (e.g. copyright and database rights (non-exhaustive list))
therein, are and shall remain the exclusive property of Mobicage.
All rights, title and interest in the content
of the Website and the Services (other than the Content which is
governed by Section 6 (Mobicage’s use of the Content) hereof),
including any intellectual and industrial property rights therein,
are and shall remain the exclusive property of Mobicage or its
licensors (as applicable).
Mobicage shall own all right, title and
interest, including any intellectual and industrial property rights,
in the Mobicage (and its product and services related) trademarks,
trade names, company name, service marks, logos, domain names and
other Mobicage distinctive brand features.
Nothing contained in the Agreement shall be
construed as, nor shall your use of the Website or the Services
result in, conferring by implication or otherwise, any license or
right to the Website, the Services or their content (other than the
Content which is governed by Section 6 (Mobicage’s use of the
Content) hereof), except for the restricted user rights set forth
herein. The Website, the Services and their content may not be
reproduced or distributed, whether in whole or in part, in any way,
without the express prior consent of Mobicage, except that you may
reproduce such material for your purely personal, non-commercial use,
provided that you do not modify such materials in any way, that you
reference the Website as the source of the materials and that you
keep intact all notices on any copies of the materials.
Any software that is made available for
download from the Website (the "Software") is the
copyrighted work of Mobicage or its licensors. Your use of such
Software is governed by the terms of the end user license agreement,
if any, which accompanies, or is included with, the Software (the
"License Agreement"). You may not install or use any
Software that is accompanied with or includes a License Agreement
unless you first agree to the terms of the License Agreement. For any
Software made available for download on the Website not accompanied
by a License Agreement, we hereby grant to you a restricted,
personal, non-exclusive, non-transferable, non-assignable,
non-sub-licensable, revocable license to use the Software solely to
the extent necessary for viewing and otherwise using the Website and
the Services in accordance with the Agreement and for no other
purpose. Except for the restricted user rights expressly set forth
herein, you shall not be granted any rights in the Software. Please
note that all Software, including, without limitation, all HTML code
and Active X controls contained on the Website, is owned by Mobicage
or its licensors, and may be protected by intellectual property
rights. Any reproduction or redistribution of the Software is
expressly prohibited, and may result in severe civil and criminal
sanctions including penalties. Without limiting the foregoing,
copying or reproduction of the Software to any other server or
location for further reproduction or redistribution is expressly
prohibited. The Software is warranted, if at all, only in accordance
with the terms of the License Agreement.
You agree that any software or materials which
may be made available by Mobicage hereunder subject to an open source
license (“Open Source Software”) shall be and shall
remain subject to the terms and conditions of the original providers.
Open Source Software licenses for components of the Services released
under an open source license constitute separate written agreements.
To the extent the Open Source Software licenses conflict with the
terms of the Agreement, the Open Source Software license shall govern
your agreement with Mobicage hereunder for the specific included Open
Source Software components of the Services.
Mobicage reserves all rights not expressly
granted in and to the Website, the Services and their content.
For any questions or requests with respect to
the reproduction of any part of the Website, the Services or their
content, please contact info@mobicage.com. If you are aware of infringement of our rights in
the Website or the Services, or of our brand, please let us know by
mailing us at the above email address. If you believe in good faith
that material hosted by us infringes your (intellectual or
industrial) property rights, please proceed to the IPR Infringement
Complaint Policy (specified below) and follow the instructions set
forth therein.
8. IPR Infringement Complaint Policy
This IPR infringement complaint policy (the
“IPR Infringement Complaint Policy”) is an integral part
of the Agreement.
(i) Infringement notification
If you believe in good faith that the Website,
the Services, or Content hosted by us infringe your intellectual
property rights (“IPR”), please provide the written
information requested below. The procedure outlined below is to be
used exclusively for notifying Mobicage that your IPR has been
infringed.
Please provide the following information in
the following format:
1. A clear identification of the copyrighted
work or other intellectual property you claim to have been infringed.
2. A clear identification of the material you
claim is infringing the copyrighted work or other intellectual
property, and information that will allow us to locate that material
on the Website, the Services or the Content, such as a link to the
infringing material.
3. Your contact information so that we can
reply to your complaint, preferably including an email address and
telephone number.
4. Include the following statement: "I
have a good faith belief that the material that is claimed as IPR
infringement is not authorized by the IPR owner, its agent, or the
law."
5. Include the following statement: "I
hereby confirm, acting in good faith, that the information in this
notification is accurate and that I am the IPR owner of, or am
authorized to act on behalf of the IPR owner in respect of, an
exclusive right that is allegedly infringed."
6. The notice must be signed by the person
authorized to act on behalf of the owner of an exclusive right that
is allegedly infringed.
Notices of claims of IPR infringement in
accordance with this IPR Infringement Complaint Policy should be
emailed to info@mobicage.com,
with the message “Infringement Notification” in the
header of the email.
We suggest that you consult your legal advisor
before filing a notice or counter-notice. Also, please note that we
may hold you liable for damages and costs (including legal costs and
attorneys fees) suffered or incurred by us as a result of you making
a false claim of IPR infringement.
We will review and address all notices that
comply with the requirements set out above.
(ii) Repeat infringer policy
Mobicage adopts a policy of terminating, at
Mobicage's sole discretion, users or account holders who are
deemed to be repeat infringers. Mobicage may also, at its sole
discretion, limit access to the Website and/or suspend or terminate
the accounts of any users who infringe any third party’s IPR,
whether or not there is any repeat infringement.
9. Privacy Policy
For information regarding Mobicage’s
treatment of personal data, please review Moibcage’s current
Privacy Policy at Mobicage Privacy
Policy which is
hereby incorporated by reference; your acceptance of this Agreement
constitutes your acceptance and agreement to be bound by
Mobicage’s Privacy Policy.
10. Warranty Disclaimer
Save to the extent required by applicable law,
Mobicage does not accept any fiduciary duty to you. You access and
use the Website and the Services is at your own risk.
The Website and Services are made available to
you “as is” and “as available”, without
warranty of any kind, for your information and personal use only
(except as expressly permitted otherwise by Mobicage). To the fullest
extent permitted by applicable law, Mobicage, its officers,
directors, employees, and agents disclaim all warranties, express or
implied, in connection with the Website, the Services and their
content, including the Content, and your use thereof. Mobicage makes
no warranties or representations regarding the accuracy, currency,
availability, suitability or completeness of the content available on
the Site and through the Services, and to the maximum extent
permitted under applicable law, Mobicage disclaims all warranties
that the Website and Services are free from viruses or other harmful
components, and the implied warranties of merchantability, fitness
for a particular purpose, title and non-infringement. Mobicage does
not make any warranty (i) that the Website and Services shall meet
your requirements or expectations, (ii) that the Website and Services
shall be available on an uninterrupted, timely, secure or error-free
basis, (iii) that the results that may be obtained from the use of
the Website and Services shall be accurate and reliable, and (iv)
regarding the quality of the Website and the Services. In particular
(without being exhaustive), Mobicage assumes no liability or
responsibility for any:
- errors, mistakes, or inaccuracies of content
(including Content),
- personal injury or property damage, of any
nature whatsoever, resulting from your access to and use of our
Website and Services,
- any unauthorized access to or use of our
servers and/or any content, including Content, personal information
and/or financial information, stored therein,
- any interruption or cessation of
transmission to or from our Website or Services,
- any bugs, viruses, trojan horses, or the
like which may be transmitted to or through our Website or Services
through the actions of any third party, including users, and/or
- any errors or omissions in any content or
for any loss or damage of any kind incurred as a result of the use of
any content, including Content.
Mobicage does not warrant, endorse, recommend,
guarantee, or assume responsibility for any product or services
advertised or offered by a third party through the Website, the
Services or any hyperlinked website or featured in any user
submission or other advertising, and Mobicage will not be a party to
or in any way be responsible for monitoring any transaction between
you and third-party providers of products or services.
The above disclaimer does not affect legal
rights which cannot be excluded under applicable law.
11. Limitation of Liability
To the maximum extent permitted under
applicable law, Mobicage hereby excludes its, its affiliates’,
its officers’, directors’, employees’, and
agents’ liability to you and any third parties for any direct,
indirect, incidental, special, punitive, or consequential damages
whatsoever resulting from (your access to and use of) the Website,
the Services and their content (including the Content), including
(without being limitative) loss of data, loss of revenue or profit,
loss of anticipated savings, reputational damage.
Mobicage in particular (without being
limitative) does not accept any liability resulting from any:
- errors, mistakes, or inaccuracies of content
(including Content),
- personal injury or property damage, of any
nature whatsoever, resulting from your access to and use of our
Website and/or Services,
- any unauthorized access to or use of our
secure servers and/or any content (including Content), personal
information and/or financial information stored therein,
- any interruption or cessation of
transmission to or from our Website or Servers,
- any bugs, viruses, Trojan horses, or the
like, which may be transmitted to or through our Website and Services
by any third party (including users), and/or
- any errors or omissions in any content or
for any loss or damage of any kind incurred as a result of your use
of any content (including Content).
- in general, your access to, display of,
submission of any Content on, your reliance on, or use of the Website
or the Services, or resulting from the delay or inability to access,
display or submit any Content on or use the Website or the Services.
12. Indemnification
You agree to defend, indemnify and hold
harmless Mobicage, its affiliates, officers, directors, employees and
agents, on a full indemnity basis and at Mobicage’s first
request, from and against any and all claims, damages, obligations,
losses, liabilities, costs or debt, fines, penalties and expenses
(including but not limited to attorney's fees) arising from: (i)
your use of and access to the Website or Services in breach of the
Agreement; (ii) your violation of any applicable law or any term of
the Agreement; (iii) your violation of any third party right,
including without limitation any copyright, property, or privacy
right; or (iv) any claim that Contents you posted caused damage to a
third party. This defence and indemnification obligation will survive
the Agreement and your use of the Services. Mobicage reserves the
right to assume the exclusive defence and control of any matter
subject to indemnification by you hereunder, in which event you will
assist and cooperate with Mobicage in asserting any available
defences, at your expense.
13. Terms and Conditions for Service Users
The present section contains the specific terms that apply to Service Users which are
an integral part of the Agreement if you are a Service User (as
defined herein).
“Service Use” shall mean (and
Service User shall be construed accordingly) use of the Services
(including Mobicage proprietary tools and applications as may be
licensed to the Service User) for connecting with third parties other
than for one’s personal use, and/or servicing third parties
(regardless of whether or not such services are charged for by the
Service User).
Such Service User may be subject to a separate
agreement to be concluded between the Service User and Mobicage
(“the Contract”), on-line or otherwise, at
Mobicage’s option. In the event of a conflict between these
Terms and Conditions and the Contract, the latter shall prevail.
You may request Mobicage to be granted a free
trial in respect of the Service Use. Such free trial is to be applied
for on-line, on the Website, through means of the designated forms.
If granted by Mobicage, such free trial shall be confirmed by email,
setting out the details and modalities of the free trial (e.g. the
term of the free trial, the number of permitted users). Any such free
trial shall be subject to the following additional terms and
conditions, which shall form an integral part of the Agreement:
(i) Any such free trial granted by Mobicage
shall consist of a restricted, personal, non-exclusive, revocable,
non-transferable, non-assignable license, without the right to
sublicense, to use the Services for the purposes of Service Use,
subject to the terms and conditions set forth in the Agreement
(“the License”). The extent of the License is as
expressly granted, and there are no implied licenses or licenses
granted by waiver, estoppel or otherwise under the Agreement.
(ii) You may not transfer, assign or
sublicense the License, in whole or in part, without Mobicage’s
express written consent. Any such assignment, transfer or
sublicensing without Mobicage’s written consent shall be null
and void.
(iii) You undertake to keep accurate business
records of your Service Use of the Services for as long as you are
entitled to use them as per the terms of the Agreement. You shall
retain those records for at least three years after any termination
of your right to use the Services (or such longer period as may be
required under applicable law). You shall provide Mobicage with such
information and documentation regarding your use of the Services as
reasonably requested by Mobicage. You acknowledge and agree that
Mobicage may monitor your use of the Services. Mobicage and/or its
agents may audit your use of the Services (including by performing
site inspections) upon reasonable notice (except where such notice
would defeat the purpose of the audit), during normal business hours.
If such inspection, or a monitoring as per the above, shows that you
acted in breach of the Agreement, without prejudice to any other
rights and remedies available to Mobicage, you shall promptly take
such actions as reasonably requested by Mobicage. The Parties shall
each bear their own cost related to any such review and inspection,
provided that in the event of a breach by you as determined by such
review or inspection, all costs related to such review and inspection
shall be borne by you, without prejudice to any other rights and
remedies available to Mobicage hereunder.
(iv) In addition to the provisions of these
Terms and Conditions, you shall be subject to the following
provisions:
· You shall be fully responsible for
your activities in respect of the Services, and for your users’
use of the Services made available by and through you.
· You shall fully comply with the
Agreement and you shall ensure that your users fully comply with the
Agreement to the extent applicable to them.
· You shall fully comply with all
applicable laws and regulations and shall be solely responsible for
obtaining all necessary permits and authorisations required to
perform your business activities pursuant to the License.
· You shall allow your users to easily
remove or disconnect from the Services made available by you through
means of Mobicage’s proprietary application and shall obtain
all required consent from your users as required under applicable
law.
· We shall provide you with all rights
necessary to use the Services, except as may be expressly stipulated
or notified otherwise. Any rights granted by Mobicage shall be
restricted, personal, non-exclusive, revocable, non-assignable,
non-transferable user rights, without the right to sublicense, and
except for the limited user rights granted to you under the
Agreement, Mobicage shall retain all rights, title and interest to
the Services and its proprietary tools and applications.
· You may not sell, transfer, or
sublicense our code, APIs, or tools to anyone, nor encumber any of
the foregoing. You shall not share your API or SIK key with any third
party.
· We do not guarantee that the Services
will always be available or fully-functioning.
· You may use your name and logo, and
customize the background of the Services, subject always to the
conditions and restrictions set out in these Terms and Conditions.
You shall not infringe any third party rights (e.g. (without being
exhaustive) copyright and database rights) or otherwise engage in any
unfair trade practices or unfair competition as a result of so
customising the Services, and you shall indemnify and hold Mobicage
harmless in this respect on a full indemnity basis at
Mobicage’s first request.
· You shall keep the Services spam-free
and shall not engage in any spamming yourself. You shall indemnify
and hold Mobicage harmless in this respect on a full indemnity basis
at Mobicage’s first request.
· Mobicage (and its licensors, as
applicable) shall own all rights, title and interest, including any
(applications for) intellectual and industrial property rights and
the right to apply for registration of such rights, in any changes,
additions, or improvements to, and in derivatives of the Services,
whether developed by or on behalf of Mobicage or by you or on your
behalf.
· You shall provide best efforts to
ensure satisfactory transactions with your users and you shall
refrain from any acts or omissions which could reflect unfavourably
on the Services, Mobicage and/or its reputation.
· In the event of a (suspected) breach
of any of your obligations hereunder, without prejudice to any other
rights and remedies available to Mobicage, Mobicage shall be
entitled, at its discretion, to suspend or terminate the License
without liability on Mobicage’s part.
· You shall indemnify Mobicage, on a
full indemnity basis and at Mobicage’s first request, against
any damages, losses, costs (including legal costs and
attorneys’ fees) and liabilities suffered and incurred by
Mobicage, including as a result of any third-party claim, resulting
from any breach by you or your users of the terms set forth in the
Agreement. This defence and indemnification obligation shall survive
the Agreement and your use of the Services hereunder. Mobicage
reserves the right to assume the exclusive defence, control and
settlement of any matter subject to indemnification by you hereunder,
in which event you shall assist and cooperate with Mobicage in
asserting any available defences, at your expense.
For the purposes of Article 28 of Regulation
(EU) 2016/679 (General Data Protection Regulation), the terms of this
Agreement constitute the data processing contract between the Service
User as the data controller and Mobicage as the data processor. The
Service User hereby instructs Mobicage to process the data as
described in the terms of this Agreement.
By agreeing to this Agreement, you as a
Service User grants Mobicage a general authorization in the meaning
of Article 28 (2) of Regulation (EU) 2016/679 to engage processors
for the purposes of providing the Services. Mobicage will inform the
Service User of changes in such processors in accordance with the
procedure of modifying this Agreement as stipulated in section 20 of
this Agreement.
For a list of processors, see Mobicage’s
Privacy Policy.
Mobicages provides the platform where the
Service User, as the data controller, can collect, store, organize,
transfer and communicate personal data of data subjects determined by
the Service User. The Website (including the App) has been designed
to work as a mobile communication platform, to the extent not
regulated by the terms of this Agreement, the Service Users decides
how they use Website.
Mobicage will process data on behalf of the
Service User until the termination of the Services in accordance with
the terms of this Agreement. Upon termination, Mobicage will delete
all Service User’s data, including Personal Data as well as
existing copies unless if required otherwise under applicable laws.
Mobicage ensures that persons authorised to
process the Personal Data have committed themselves to
confidentiality or are under an appropriate statutory obligation of
confidentiality. Mobicage takes all measures required pursuant to
Article 32 of Regulation (EU) 2016/679. Mobicage undertakes to make
available to the controller all information necessary to demonstrate
compliance with their obligations and to allow for and contribute to
audits, including inspections, conducted or mandated by the Service
User as the data controller.
In the event of a (suspected) breach of any of
your obligations hereunder, without prejudice to any other rights and
remedies available to Mobicage, Mobicage shall be entitled, at its
discretion, to suspend or terminate your Contract, without liability
on Mobicage’s part. Upon Contract termination, you shall
promptly return or destroy, at Mobicage’s option and at your
expense, all material made available to you by Mobicage in respect of
the Service Use. You shall indemnify Mobicage, on a full indemnity
basis and at Mobicage’s first request, against any damages,
losses, costs (including legal costs and attorneys’ fees) and
liabilities suffered and incurred by Mobicage, including as a result
of any third-party claim, resulting from any breach by you or your
users of the terms set forth in the Agreement. This defence and
indemnification obligation shall survive the Agreement and your
Service Use hereunder. Mobicage reserves the right to assume the
exclusive defence and control of any matter subject to
indemnification by you hereunder, in which event you shall assist and
cooperate with Mobicage in asserting any available defences, at your
expense.
14. Assignment
The Agreement, and any obligations, rights and
licenses granted hereunder, may not be transferred or assigned by
you, but may be assigned by Mobicage without restriction.
15. Suspensions of Services
Without prejudice to any other rights and
remedies available to Mobicage, in case of a breach of one or more of
your obligations under the Agreement, Mobicage has the right to
temporarily or permanently restrict or deny access to your account
with immediate effect and without any right for you to compensation
or any liability on Mobicage’s part.
16. Termination of the Agreement
Mobicage may discontinue all or any part of
the Website or the Services, or terminate your access to all or any
part of the Website or the Services, at any time, with or without
cause, with or without notice, effective immediately or otherwise,
which may result in the forfeiture and destruction of all information
associated with your membership. If you wish to de-activate/terminate
your account, please send an email to info@mobicage.com, explicitly requesting for your account to be
deactivated, which request is to be accompanied with a signed copy of
an official means of identification (e.g. identity card or passport).
All provisions of the Agreement which explicitly or by their nature
are intended to survive termination shall survive termination,
including, without limitation, intellectual property rights
provisions, warranty disclaimers, indemnity and limitations of
liability related provisions.
17. Applicable Law and Jurisdiction
The Agreement is exclusively governed by and
construed in accordance with the laws of Belgium, excluding its
conflict of law principles. Any dispute in connection with or arising
from the Agreement shall be finally adjudicated by the competent
courts of Ghent, Belgium.
You agree to bring any claim or cause of
action arising out of or related to the Website, the Services or this
Agreement, to the extent permitted hereunder or under mandatory
applicable law, within one (1) year from the date on which the cause
of action arose, failure of which shall result in such claim or such
cause of action being permanently barred.
18. Entire agreement and Severability
The Agreement constitutes the entire agreement
between you and Mobicage concerning the Website and the Services. If
any provision of the Agreement is deemed invalid by a court of
competent jurisdiction, the invalidity of such provision shall not
affect the validity of the remaining provisions of the Agreement,
which shall remain in full force and effect, and the invalid or
unenforceable provision shall be deemed superseded by a valid,
enforceable provision which most closely matches the intent of the
original provision. You acknowledge and agree that a printed copy of
the Agreement and of any notice given in electronic or written form
shall be admissible in judicial or administrative proceedings
relating to the Agreement to the same extent as other business
documents and records originally generated and maintained in printed
form.
19. Waiver
No waiver by Mobicage of any term of the
Agreement shall be deemed a further or continuing waiver of such term
or any other term, and Mobicage's failure to assert any right or
provision under these Terms and Conditions shall not constitute a
waiver of such right or provision.
20. Modification of Terms and Conditions
Mobicage reserves the right to amend the
Agreement at any time. We therefore encourage and urge you to
regularly check the Agreement for any changes. Your access to the
Website and/or use of the Services following any amendment of the
Agreement will signify your acceptance of its revised terms.
21. Miscellaneous
Mobicage shall not be liable for any failure
to perform its obligations hereunder where such failure results from
any cause beyond Mobicage's reasonable control, including,
without limitation, mechanical, electronic or communications failure
or degradation (including "line-noise" interference). No
agency, partnership, joint venture, or employment relationship is
created as a result of the Agreement or you accessing the Website
and/or using the Services.
22. Language
Where Mobicage makes available a translation
of the English language version of the Agreement, you agree that the
translation is provided for your convenience only and that the
English language versions of the Agreement will govern your
relationship with Mobicage and that, in the event of any
contradiction or discrepancy between the English language version of
the Agreement and a translation, the English language version shall
take precedence.
23. Contact
You may contact Mobicage at info@mobicage.com, except where specific contact details have been
provided in the Agreement in respect of specific matters, in which
case such contact details are to be used.