Terms & conditions

BMI LEISURE

General & Scope

The present BMI Leisure terms and condi­tions, together with its Annexes, are applicable to each Order Form executed between BMI Leisure and the Client and to all Software, Hardware and Services rendered by BMI Leisure to the Client.
The Client agrees to waive its own general and special terms and condi­tions, even where it is stated therein that only those condi­tions may apply and even if such terms and condi­tions were not protested by BMI Leisure.

Defin­i­tions

Capitalised notions used throughout these Terms and Condi­tions shall have the meaning given to them below, unless stated otherwise:
Agreement means the entire contractual relation between BMI Leisure and the Client, consisting of (i) the Terms and Condi­tions, (ii) the relevant Order Forms and (iii) the Annexes.
Account means the person­alised log-in creden­tials with which the User accesses the Software.
Annex means any annex, schedule, appendix or other comple­mentary document which forms a part of the Agreement.
Business Day means any weekday other than a bank or public holiday in Belgium.
Business Hours means the hours of 08:30 to 17:30 CET on a Business Day.
BMI Leisure: means Business & Marketing Improvement NV, a company organized and existing under the laws of Belgium having its regis­tered office in Molseweg 160, 2440 Geel (Belgium) and regis­tered with company number BE0562.755.594.
BMI Leisure Dedicated Instance means hosting services purchased by BMI Leisure which are used by the Client to access the Software.
Client means the legal entity entering into contractual relations with BMI Leisure, as identified on the Order Form.
Client Data means all data propri­etary to or held by the Client which is processed by BMI Leisure as described in the Agreement and as a result of the Client using the Software.
Client Personal Data means all Personal Data propri­etary of or held by the Client.
Confi­dential Infor­mation of a Party means the infor­mation of such Party disclosed to the other Party during the negoti­ation of this Agreement and the cooper­ation between both Parties under this Agreement, whether in written, oral, electronic or other form and which (i) is explicitly marked as confi­dential or propri­etary, (ii) should reasonably be considered confi­dential, or (iii) is tradi­tionally recog­nized to be of a confi­dential nature, regardless of whether or not it is expressly marked as confi­dential, and including but not limited to all material, papers, databases, drawings, diagrams, calcu­la­tions, figures, proce­dures, processes, business method­ologies, contracts (including these Terms & Condi­tions), financial, technical and legal infor­mation, budgets, sales marketing, public relations, adver­tising and commerce plans, ideas, strategies, projec­tions, business plans, strategic expansion plans, products and product designs. For the avoidance of doubt, Confi­dential Infor­mation shall include the Software (in object code and source code form).
Customized Services means the delivery of specific project services, specif­i­cally agreed between Parties and as further specified in a Statement of Work.
Data Processing Agreement means the document attached to these Terms and Condi­tions in Annex 1 setting out the terms and condi­tions governing the processing of Personal Data under the Agreement.
Data Protection Laws means all relevant regulation, national or inter­na­tional, concerning privacy and data protection, including but not limited to the General Data Protection Regulation (“GDPR”).
Deliv­erable means any concrete output of a task or activity that BMI Leisure is obligated to deliver under this Agreement.
Documen­tation means the infor­mation provided by BMI Leisure to the Client in documentary form, including without limitation the description of the Software and user manual.
Effective Date means the date of last signature of the Agreement.
Fees means any and all amounts payable by the Client to BMI Leisure under the Agreement.
Force Majeure means a temporary or permanent inability of a Party to fulfil its oblig­a­tions, resulting from unavoidable, unfore­seeable and external facts and circum­stances reasonably beyond the control of that Party. Shall in any case be considered Force Majeure (without being exhaustive): war or war risk, insur­rection or public revolt, fire caused by an outside calamity, an import or export embargo imposed by the government, internet failure, hosting failure, floods, explosion, weather condi­tions, strike or social action and all other circum­stances generally qualified as a Force Majeure.
Hardware means any physical devices and materials, such as servers and timing systems provided by BMI Leisure to Client, if and where applicable, as set out in the Order Form. All Hardware shall be considered Third Party Materials.
Hosting means the storage of data on a server or a computer so that it can be accessed over the internet.
Imple­men­tation Services means the services provided by BMI Leisure online or on premise with respect to the instal­lation and setup of the Software and the Hardware, which shall be detailed in the relevant Order Form(s).
Intel­lectual Property Rights means all intel­lectual or indus­trial property right or equiv­alent, whether regis­tered or unreg­is­tered, including but not limited to: (i) copyright (including moral rights), patents, database rights and rights in trade­marks, logos, designs, other artwork, know-how and trade secrets and other protected undis­closed infor­mation; and (ii) appli­ca­tions for regis­tration, and the right to apply for regis­tration, renewals, exten­sions, contin­u­a­tions, divisions, reissues, or improve­ments for or relating to any of these rights.
Invoice Date means the date indicated on the invoice from which the payment term will be calcu­lated.
Instal­lation Date means the date on which the Imple­men­tation Services are executed by BMI Leisure.
License and Support Fee means the fee paid by the Client to BMI Leisure as deter­mined in the Order Form for access to the respective Modules, as deter­mined in clause 3, and the provision of Support Services, provided by BMI Leisure in accor­dance with the Service Level Agreement.
Mainte­nance Services means the works needed from time to time to ensure a correct functioning of the Software.
Module means any of the specific modules which are available for use within the Software and to which the Client can subscribe by means of paying the License and Support Fee and purchasing a One-off Regis­tra­tions Package or a Recurring Regis­tra­tions Package.
Module subscription means the applicable subscription to the Software by the Client and which shall consist of a monthly subscription to the agreed Module(s) which shall be detailed in the relevant Order Form(s), together with the level of the subscription (“Premium”, ​“Pro”, etc.). The notion ​“Subscribe” and ​“Subscribed” shall be inter­preted accord­ingly.
Order Form means a written document signed by both Parties, regardless of its entitlement (e.g. ​“quotation” or ​“product order”), indicating the nature, number and other specifics of the Services and Software subscribed to by the Client, including the specific condi­tions under which such order is made, and which forms an integral part of the Agreement.
One-off Regis­tra­tions Package means the specific bundle purchased by Client for a certain number of Regis­tra­tions, which can be used across the Modules, which shall be detailed in the relevant Order Form(s).
Party means a party to this Agreement.
Personal Data has the meaning given to it in article 4 (1) of the General Data Protection Regulation.
Purchase Order means the agreement between BMI Leisure and any Third Party in which Third Party Materials are acquired.
Regis­tration means the regis­tration of a new unique entry in the Client’s database in the Software, which can be used across the Modules (subject to the terms of the relevant Order Form)
Renewed Term shall have the meaning attributed to it in clause 17 of these Terms and Condi­tions.
Services means the profes­sional services delivered by BMI Leisure to the Client as further detailed on the Order Form and the applicable Statement of Work (if applicable), including – amongst others – Customized Services, Imple­men­tation Services and Training Services.
Service Fees means the Fees due by the Client to BMI Leisure for and as a counterpart of BMI Leisure’s delivery of the Services to the Client under the Agreement.
Service Level Agreement / ​“SLA” means the service level agreement added as an Annex to these Terms & Condi­tions.
Software means the BMI Leisure on premise or SaaS software for the enter­tainment business, as made available by BMI Leisure to its customers and which is subdi­vided in different Modules.
Source Code means the set of instruc­tions and state­ments written by a programmer using a computer programming language.
Statement of Work or SOW means documents that Parties may enter into from time to time describing the Services that BMI Leisure is to provide in connection with the Software.
Recurring Regis­tra­tions Package means the applicable data management package in the form of a prede­fined number of Regis­tra­tions by the Client, calcu­lated and revised on an annual basis in accor­dance with clause 18. which can be used across the Modules, which shall be detailed in the relevant Order Form(s)
Subscription Fees means the sums payable by the Client to gain access to the respective Modules, which will be grouped in a License & Support fee
Support Services are the support services described as such in the Service Level Agreement.
Taxes shall have the meaning attributed to it in clause 16.8 of these Terms and Condi­tions
Third Party Materials means Hardware products for which BMI Leisure is solely acting as a reseller.
Term shall have the meaning attributed to it in clause 17 of these Terms and Condi­tions.
Terms and Condi­tions means the present BMI Leisure terms and condi­tions including, where relevant, its Annexes.
Territory means the territory as defined in the Order Form.
Third Party means any natural or legal person who is not a Party to the Agreement.
Training Services means the services provided by BMI Leisure with respect to the training of the personnel of the Client which shall be detailed in the relevant Order Form(s).
Third Party Supplier shall have the meaning attributed to it in clause 8.1 of these Terms and Condi­tions
Third Party Warranty shall have the meaning attributed to it in clause 8.1 of these Terms and Condi­tions
User means an individual within the organ­i­sation of the Client that is allowed by the Client to access and use the Software .

Right to access the Modules

In consid­er­ation of the Client’s compliance with the provi­sions as set out in this Agreement (including timely payment of all Fees), BMI Leisure grants the Client a personal, restricted, non-exclusive, non-trans­ferrable and non-assignable, renewable and revocable, worldwide license to access and use (through its Users) the Modules as specified in the Order Form.
Any such access and use by the Client and its User(s) shall be strictly subject to the terms as set out in these Terms and Condi­tions and in the remainder of this Agreement.
The right to access and use the Modules as set out in this clause 3 is granted only for the modules to which the Client has subscribed
For the avoidance of doubt, if Client wishes to add new Modules within the Software, a new Order Form shall be agreed, including an amended License and Support Fee (adapted to the new Modules).

One-Off Regis­tra­tions Packages and the Recurring Regis­tra­tions Packages

Any access to and use of one or more Module(s) requires the purchase of (i) a certain One-Off Regis­tra­tions Package of limited Regis­tra­tions or (ii) a Recurring Regis­tra­tions Package for Regis­tra­tions, as specified in the relevant Order Form in accor­dance with clause 18.
Any additional One-Off Regis­tra­tions Packages or Recurring Regis­tra­tions Packages (in terms of number of Regis­tra­tions) shall require the completion of a new Order Form.

Use of the Modules

All access to and use of the Modules shall at all times be in accor­dance with (a) the applicable Documen­tation; (b) the provi­sions of the Agreement; and © any reasonable instruction of BMI Leisure in relation to the use of such Modules.
Access to and use of the specific Modules is only permitted for Users identified by the Client.
The Client explicitly agrees (and shall procure that its Users) not to, directly or indirectly (including, without limitation through the actions of any affiliate, agent, subcon­tractor, User or, in general, any Third Party): (i) use the Software other than in accor­dance with the Modules’ intended purpose and for the Client’s internal business purposes, (ii) distribute, sell, lease, commer­cialize, rent, display, license, subli­cense, transfer, provide, disclose, or otherwise make available to, or permit the use of, or access to, the Software, in whole or in part, to any Third Party, whether or not related to the Client, except as expressly permitted in the Agreement or otherwise, (iii) modify the Software or develop any deriv­ative works based on the Software or any Confi­dential Infor­mation of BMI Leisure, (iv) use the Software except as expressly autho­rized herein, (v) decompile, disas­semble, translate, reverse engineer or attempt to recon­struct, identify or discover, copy, create deriv­ative works based upon the Source Code of the Software (unless permitted by law), under­lying ideas, under­lying user interface techniques or algorithms of the Software by any means whatsoever (except to the extent such restriction is prohibited under applicable law), or disclose any of the foregoing, (vi) encumber or suffer to exist any lien or security interest on the Software, (vii) take any action that would cause the Software, or the Source Code to be placed in the public domain, (viii) use the Software in any computer environment not expressly permitted under this Agreement, (ix) work around any technical limitation in the Software, (x) make (backup) copies of the Software (unless permitted by law or elsewhere in this Agreement), (xi) remove propri­etary notices (including copyright notices) of BMI Leisure.
The Client shall comply with all applicable laws relating to the use of the Software. The Client or the User must not use the Software: (a) in any way that is unlawful, illegal, fraud­ulent or harmful, or (b) in connection with any unlawful, illegal, fraud­ulent or harmful purpose or activity.
The Client shall use reasonable endeavours, including reasonable security measures relating to Account access details, to ensure that no unautho­rised person may gain access to the Software using an Account.
The right to access and use the Modules within the Module Subscription is expressly restricted to the rights, limita­tions and other terms set forth in the Agreement and the Client shall not be able to invoke any alleged implied rights which are not expressly set out under the Agreement.
The Client acknowl­edges and agrees that any access to and use of the Software outside the scope of the respective Module Subscription and / or in breach of the terms as set forth in this Agreement (unless such access and / or use has been expressly approved in writing by a duly autho­rized repre­sen­tative of BMI Leisure), shall entitle BMI Leisure to immedi­ately terminate (or alter­na­tively, at BMI Leisure’s option, suspend) one or more Module Subscrip­tions entire Agreement for material breach by the Client, without any formal­ities being required and without prejudice to any other right or remedy available to BMI Leisure pursuant to this Agreement or under applicable law. For the avoidance of doubt, termi­nation under this clause 5.7 shall also terminate all Module Subscrip­tions .

Delivery of the Services and Accep­tance

BMI Leisure shall make the respective Modules available to the Client on the Instal­lation Date as indicated in the Order Form or relevant SOW, provided the then outstanding License and Support Fee and Service Fee has been paid correctly.
Any Deliv­erable delivered by BMI Leisure under this Agreement shall be accepted in accor­dance with the terms of the relevant SOW.
In any case shall the Deliv­er­ables be deemed accepted if (i) the Client proceeds to use any of the content included in such Deliv­er­ables, or if (ii) the Client does not give notice of rejection within ten (10) days after delivery of the Deliv­erable.

Evolution and Avail­ability of the Software

BMI Leisure may period­i­cally update and improve the Software. Updated versions of the Software will be made available to the Client via automatic updates and upgrades or via new releases (if applicable). BMI Leisure reserves the right to make opera­tional or technical changes to the Software, and to modify, add or remove certain function­al­ities.
BMI Leisure shall use all reasonable endeavours to maintain the avail­ability of the Software to the Client
Client acknowl­edges that in order to ensure a correct functioning of the Software, Mainte­nance Services are needed from time to time. BMI Leisure shall carry out such Mainte­nance Services at its sole discretion and shall use all reasonable endeavours to minimise the impact on the Client’s day to day business. Where practi­cable, BMI Leisure shall give to the Client prior written notice of scheduled Mainte­nance Services that are likely to affect the avail­ability of the Software or are likely to have a material negative impact upon the Software. BMI Leisure shall not be liable for costs incurred by the Client as a result of any non-avail­ability of the Software due to Mainte­nance Services for which prior written notice has been given.

Third Party Materials (Hardware)

Third Party Materials are subject to the delivery condi­tions, guarantees, mainte­nance condi­tions and any other contractual terms (“Third Party Warranties”) of the supplier concerned (“Third Party Supplier”). By signing an Order Form, the Client explicitly accepts the applic­a­bility of the specific condi­tions for Third Party Materials. The Client shall, where possible, address any claims exclu­sively to the Third Party Supplier in view of obtaining the repair of any visible and/​or hidden defects in the Third Party Materials in accor­dance with such third party warranties.
The Third Party Materials are shipped Ex Works (INCOTERMS latest version) via FedEx or such other third party appointed by BMI Leisure. The delivery of the Third Party Materials shall occur at the Client’s risk and cost. Any applicable customs costs shall be borne by the Client. BMI Leisure shall arrange minimum insurance during trans­portation of the Third Party Materials under the applicable FedEx (or such other third-party delivery service) insurance condi­tions. If and to the extent explicitly requested by Client, the Third Party Materials are shipped without any insurance (at the full risk of the Client). If and to the extent explicitly requested by Client, Client will be respon­sible for the shipment of the Third Parry Materials, in which case the shipment and delivery of the Third Party Materials shall fully occur at the Client’s risk and cost.
If the Purchase Order for Third Party Materials do not allow the Client to address the Third Party Supplier directly, the defects must be notified to BMI Leisure, and BMI Leisure will undertake its reasonable efforts to have the defects corrected.
The Client acknowl­edges and agrees that, to the extent permitted by applicable law, BMI Leisure does not accept oblig­a­tions, nor provide any warranties, with respect to the Third Party Materials in addition to the Third Party Warranties.
To the extent the Third Party Supplier provides BMI Leisure with the possi­bility to transfer any Third Party Warranties to the Client, BMI Leisure will transfer these Third Party Warranties to the Client. The Client shall, where possible, exclu­sively direct itself to the Third Party Supplier for the execution of any Third Party Warranties.

Intel­lectual Property Rights

BMI Leisure is and remains the sole and exclusive propri­etary owner of all Intel­lectual Property Rights related to the Software, the Services and the Documen­tation (including any new versions, updates, customiza­tions, enhance­ments, modifi­ca­tions or improve­ments made to the Software or Documen­tation). Nothing in the Agreement shall convey any title or propri­etary right or Intel­lectual Property Rights in or over the Software, the Services and the Documen­tation to the Client or any Third Party. The Client shall not in any way acquire any title, rights of ownership, copyright, intel­lectual property rights or other propri­etary rights of whatever nature in the Software, the Services or Documen­tation. The Client agrees not to remove, suppress or modify in any way any propri­etary marking, including any trademark or copyright notice, on or in the Software, or visible during its operation, or on media or on any Documen­tation. The Client shall incor­porate or reproduce such propri­etary markings in any permitted back-up or other copies.

Client Data

All Client Data shall remain property of the Client.
The Client hereby grants to BMI Leisure a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Client’s Data to the extent reasonably required for the perfor­mance of BMI Leisure’s oblig­a­tions and the exercise of BMI Leisure’s rights under this Agreement. The Client also grants to BMI Leisure the right to sub-license these rights to its hosting, connec­tivity and telecom­mu­ni­ca­tions service providers to the extent reasonably required for the perfor­mance of BMI Leisure’s oblig­a­tions and the exercise of BMI Leisure’s rights under this Agreement, subject always to any express restric­tions elsewhere in this Agreement.
The Client warrants to BMI Leisure that the Client’s Data when used by BMI Leisure in accor­dance with this Agreement will not infringe the Intel­lectual Property Rights or other legal rights of any Third Party, and will not breach the provi­sions of any law, statute or regulation, in any juris­diction and under any applicable law.

Third Party equipment and Hosting

The Client expressly acknowl­edges that the operation of the Software may require that the Client has or obtains, at Client’s sole cost and expense, appro­priate hardware, networks, operating systems, data trans­mittal lines with appro­priate commu­ni­cation software, environ­ments and/​or other Third Party software, as further detailed in the Order Form. Where these are not agreed to be delivered by BMI Leisure, they shall be the sole respon­si­bility of the Client.
The Software shall be hosted, as deter­mined in the Order Form, on a BMI Leisure Dedicated Instance or on premise.

Control of the Regis­tra­tions

BMI Leisure has the right to monitor and inspect the usage and amount of Regis­tra­tions of the Software by the Client under a Recurring Regis­tra­tions Package or a certain One-Off Regis­tra­tions Package.
Audit
BMI Leisure has the right to perform audits at any time during Business Hours upon reasonable notice, in order to inspect the Client’s compliance with the license grant. Any such audit shall not unrea­sonably interfere with the normal business opera­tions of the Client. The Client under­takes to make available all useful documen­tation and provide all reasonable access and assis­tance to enable BMI Leisure, as applicable, to perform the audit.
Such audit shall be under­taken at BMI Leisure’s cost, unless in the event of the Client’s non-compliance with this Agreement as deter­mined by the audit, in which case the Client shall pay the costs of such audit within fifteen (15) days of notice of the audit results. The Client agrees that BMI Leisure shall not be respon­sible for any of the Client’s costs incurred in cooper­ation with the audit.

Support Services

Subject to timely payment of all Fees, the Support Services will be performed on a best efforts basis as set out in the SLA (as annexed) and subject to the required access to the premises or network of the Client.

Services

If Parties have agreed to the provision of certain Services (including but not limited to the Imple­men­tation Services or Training Services), the following provi­sions will apply.
BMI Leisure shall provide the Services in complete indepen­dence and shall plan its activ­ities as it sees fit. This indepen­dence consti­tutes an essential element of the Agreement, without which the Parties would not have concluded it. In no case shall the Agreement be inter­preted as an employment contract between the Client and BMI Leisure or its employees.
The Services shall be provided by BMI Leisure through desig­nated persons, identified in the Order Form.
The Client will promptly inform BMI Leisure of any delay or particular problem in connection with the perfor­mance of the Services.
The Client acknowl­edges and agrees that in order for BMI Leisure to effec­tively perform the Services in a proper, timely and efficient manner, the Client must cooperate with BMI Leisure by (i) making available on a timely basis management decisions, infor­mation, and approvals; and (ii) at no cost to BMI Leisure, providing timely and appro­priate access to the Client facil­ities, personnel, equipment, resources and systems, and any relevant infor­mation and documen­tation (to be accurate and complete) as necessary to facil­itate perfor­mance of the Profes­sional Services.
BMI Leisure shall be entitled to reassign or remove any of its resources assigned at BMI Leisure’s sole discretion.
BMI Leisure shall provide the Services in accor­dance with generally accepted industry standards and shall exercise reasonable care and skill in doing so.

Fees & Payment Terms

The License and Support Fee and recurring regis­tra­tions packages shall be invoiced and payable upfront on a three-month basis, unless otherwise agreed between the Parties.
The invoicing of the License and Support Fee and recurring regis­tra­tions package shall start on the prior of (i) the Instal­lation Date and (ii) maximum six (6) months after the signature date of the relevant Order Form.
The One-Off Regis­tra­tions Packages shall be invoiced and be payable 100 % upfront.
The Fees for any one-time Imple­men­tation Services or Training Services shall be invoiced and for 100% be payable upfront, 50 % at the moment of signature of the relevant Order Form and 50 % on the Instal­lation Date.
Hardware shall be invoiced and payable upfront before delivery.
The Services Fees will be invoiced monthly or tri monthly or in accor­dance with invoicing milestones as specified in the relevant Statement of Work.
During the Term, BMI Leisure reserves the right to annually revise the Fees on either the 1^st of January or the 1^st of July, on the basis of the PC-200 index by applying the following formula: p = P0 * I, whereby: p = the revised price; P0 = the initial price as deter­mined in the most recent quarterly invoice; I = the PC-200 index as deter­mined by the Federaal Planbureau of Belgium, with a weighting factor of 0.8. The Fees will be revised for the first time on the one (1) year anniversary of the Effective Date Such price adjustment shall become effective on either the 1^st of January or the 1^st of July after the mentioned revision and BMI Leisure shall inform the Client thereof at least one (1) month prior to the price adjustment becoming effective. In the event the Client does not agree to such price increase, the Client may terminate the Agreement in accor­dance with this Agreement. The Client’s continued use of the Software or the Hardware after such price revision will constitute acknowl­edgment and accep­tance of the modified Fees.
Taxes. Client agrees to pay any sales, use, value-added taxes and any other applicable tariffs or duties, whether domestic or foreign, imposed directly or indirectly (“Taxes”) upon BMI Leisure, its personnel or subcon­tractors, or their properties (including their equipment, materials, and supplies), the Deliv­er­ables or any portion thereof, or the Fees set forth hereunder. Taxes do not include any taxes imposed on BMI Leisure’s net income. Client will reimburse BMI Leisure for any Taxes paid by BMI Leisure or, prior to payment, provide BMI Leisure with valid tax exemption certifi­cates. If Client is required by law to make any tax deduction, withholding or payment from any amount paid or payable by Client to BMI Leisure under this Agreement, the amount paid or payable to BMI Leisure shall be grossed-up to the extent necessary to ensure that BMI Leisure receives and retains, free of liability, a net amount equal to the amount that BMI Leisure would have received.
All invoices are payable within thirty (30) calendar days after the Invoice Date. If a Client disputes an invoice (or any portion thereof), the Client must notify BMI Leisure in writing of the nature of such dispute within five (5) Business Days, after the Invoice Date. Failure to notify BMI Leisure within such period shall result in the invoice deemed accepted by the Client. The undis­puted portion of the invoice shall be paid as set forth in the Agreement. For the avoidance of doubt, any impact from defects to the Third Party Materials on the provision of the Services or the Software, cannot be grounds to dispute any invoice.
Payments made by the Client to BMI Leisure under the Agreement shall be final and non-refundable.
All Fees payable to BMI Leisure under the Agreement shall be paid without the right to set off or counter­claim and free and clear of all deduc­tions or withholdings whatsoever unless the same are required by law, in which case the Client under­takes to pay BMI Leisure such additional amounts as are necessary in order that the net amounts received by BMI Leisure after all deduc­tions and withholdings shall not be less than such payments would have been in the absence of such deduc­tions or withholding.
Invoices shall be sent in PDF-format to the Client’s email address, specified in the Order Form.
Any amounts of undis­puted invoices that have not been paid within thirty (30) days after the Invoice Date shall automat­i­cally and without notice be subject to a late payment interest equal to the highest amount allowable under the applicable law. The interest shall be compounded daily as of the due date until receipt of full payment by BMI Leisure. In addition, the Client shall pay all costs incurred by BMI Leisure as a result of the (extra)judicial enforcement of the Client’s payment oblig­ation under this clause.

Term of the Agreement

The Agreement is entered into for an indef­inite term (the ​“Term”) until a Party provides a written notice to terminate of six (6) months to the other Party.

Term of the Recurring Regis­tra­tions Packages

Each term of the Recurring Regis­tration Fee Package shall start on the Effective Date as indicated in the relevant Order Form and shall continue for one (1) year. On the anniversary of the Effective Date, the Regis­tra­tions under each Recurring Regis­tra­tions Package shall be calcu­lated by BMI Leisure. In case of usage of the specific Recurring Regis­tra­tions Package is less than 50% or more than 150%, the Recurring Regis­tra­tions Package will automat­i­cally be adapted to – respec­tively – a Recurring Regis­tra­tions Package with a pricing model for – respec­tively –less or more Regis­tra­tions.

Termi­nation

BMI Leisure may, at its sole discretion, suspend the services or terminate the Agreement, partially or wholly, by written notice to the Client, if the Client fails to pay to BMI Leisure any amount due under the Agreement and the Client fails to cure such failure to pay, and if no payment plan has been agreed between 2 parties, within twenty (20) days from the date of the expiration of the invoice. BMI Leisure will provide a written notice of default within a reasonable time.
Either Party may immedi­ately terminate the whole or any portion of the Agreement without any judicial inter­vention, without being liable for compen­sation and without prejudice to its rights to damages and any other rights, remedies and/​or claim to which it may be entitled by law, upon providing the other Party with written notice of termi­nation if: (i) the other Party performs a material breach to any provision of the Agreement and fails to cure such material breach within thirty (30) calendar days after receipt of written notice of the material breach, (ii) the other Party becomes insolvent, is subject to voluntary or invol­untary bankruptcy, insol­vency or similar proceeding or otherwise liqui­dates or ceases to do business, or (iii) the other Party breaches clause 5 (Use of the Modules), clause 9 (Intel­lectual Property Rights) or clause 24 (Confi­dential Infor­mation).
For the avoidance of doubt, termi­nation by BMI Leisure under these clauses 19.1 and 19.2 shall also immedi­ately terminate all then-running Recurring Regis­tra­tions Packages- and on-going One-Off Regis­tra­tions Packages of Regis­tra­tions.
Moreover, except as provided under clauses 23.4, no Fees shall be refunded by BMI Leisure due to termi­nation of the Agreement under any circum­stances by any Party.

Effects of Termi­nation

Upon termi­nation of the Agreement: (i) the Client’s right to use the Software will , automat­i­cally cease and all licenses granted to the Client pursuant to the Agreement shall automat­i­cally terminate; (ii) each Party will return, within reasonable time of such termi­nation or expiration, all Confi­dential Infor­mation, except as required to comply with any applicable legal or accounting record keeping requirement; (iii) BMI Leisure will return all Client Data stored in the Software, subject to the condition that invoices are paid in full; (iv) the Client shall promptly pay BMI Leisure all Fees and other amounts due to BMI Leisure in respect of the Software, up to and including the date of termi­nation, except in case of termi­nation triggered by a material breach proven to be attrib­utable to BMI Leisure.

Warranties

The Client acknowl­edges that the Software and Services are provided ​“as is” and BMI Leisure makes no additional warranties, implied or express (including warranties of merchantability and fitness for a particular purpose).
BMI Leisure shall not be respon­sible for any error or non-conformity of the Software if the same is attrib­utable to: (a) the Client’s or any Third Party’s actions (including specific devel­op­ments, con and customi­sa­tions required by the Client), services, software or equipment not provided by BMI Leisure under or pursuant to this Agreement; (b) any changes, modifi­ca­tions, updates, alter­ations or enhance­ments to the Software not provided by BMI Leisure under or pursuant to this Agreement, or caused by the incorrect use, abuse, neglect, improper instal­lation or operation, accident miscon­fig­u­ration and/​or alter­ation, or corruption of the Software or by the use of the Software with other computer programs or on equipment or with services which BMI Leisure did not approve; © any inaccu­racies, delays, inter­rup­tions, or errors occurring as a result of incorrect data or data which does not conform to required input formats; (d) the Software being used or subject to actions by the Client or its Users, in deviation of the stipu­la­tions or provi­sions set out in the latest version of the Documen­tation and this Agreement or in any way which is not compatible with the Software’s normal use.

Privacy And Data Protection

Each Party shall comply with the Data Protection Laws with respect to the processing of the Client Personal Data. The Client warrants to BMI Leisure that it has the legal right to disclose all Personal Data that it does in fact disclose to BMI Leisure under or in connection with this Agreement and that the Client has obtained suffi­cient consent from all data subjects concerned (if applicable).
The Client shall only supply to BMI Leisure, and the BMI Leisure shall only process, in each case under or in relation to this Agreement, the Personal Data of data subjects falling within the categories specified in the Data Processing Agreement as concluded between the Parties and as attached hereto.
If any changes or prospective changes to the Data Protection Laws result or will result in one or both Parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the Parties shall use their best endeavours promptly to agree such varia­tions to this Agreement as may be necessary to remedy such non-compliance.

Infringement Claims by Third Parties

BMI Leisure shall indemnify and defend the Client against any claims brought by Third Parties to the extent such claim is based on an infringement of the Intel­lectual Property Rights of such Third Party by the Software in the Territory.
Claims resulting out any of the following are excluded from clause 23.1 : (i) the Client’s unautho­rized use of the Software; (ii) the Client’s or any Third Party’s modifi­cation of the Software; (iii) the Client’s failure to use the most recent version of the Software made available to the Client; (iv) the Client’s failure to integrate or install any correc­tions to the Software issued by BMI Leisure, if BMI Leisure indicated that such update or correction was required to prevent a potential infringement, or (v) Client’s use of the Software in combi­nation with any non-BMI Leisure Software or services.
The indemnity oblig­ation under this section shall be condi­tional upon the following: (i) the Client promptly notifies BMI Leisure in writing of any such claims; (ii) the Client grants BMI Leisure sole control of the defense and settlement of such claim; (iii) the Client fully cooperates with BMI Leisure upon request; (iv) the Client makes no admission as to BMI Leisure’s liability in respect of such claim, nor does the Client agree to any settlement in respect of such a claim without BMI Leisure’s prior written consent.
If, in BMI Leisure’s reasonable opinion, the Software is likely to become the subject of a Third Party claim, BMI Leisure shall, at its sole discretion, have the right to: (i) modify parts of the Software so that they become non-infringing, provided equiv­alent function­ality is preserved; (ii) obtain for the Client a license to continue using the Software in accor­dance with the Agreement; or (iii) terminate the relevant license and pay to the Client an amount equal to a pro-rata portion of the License and Support Fee.
The Client acknowl­edges and agrees that the foregoing states the entire liability and oblig­ation of BMI Leisure and the sole remedy of the Client with respect to any infringement or alleged infringement of any Intel­lectual Property Rights caused by the Software or any part thereof.

Confi­dential Infor­mation

Parties shall treat all Confi­dential Infor­mation received from the other Party as confi­dential, keep it secret and shall not disclose it to any Third Party, other than its agents, employees, advisors or consul­tants where such disclosure is necessary for the perfor­mance of the Agreement and only in case such agents, employees, advisors or consul­tants are bound by a confi­den­tiality oblig­ation at least as strict as included in the Agreement.
Confi­dential infor­mation disclosed in the execution of this Agreement shall not be used for any purpose other than as required for the perfor­mance of either Parties’ oblig­a­tions under the Agreement.
Both Parties shall take suffi­cient measures to maintain the confi­den­tiality of all Confi­dential Infor­mation. Parties in particular agree that they: (i) shall not copy or otherwise exploit any component of the Confi­dential Infor­mation other than as herein provided, nor make any disclo­sures with reference thereto to any Third Party; (ii) shall promptly notify the other Party if it becomes aware of any breach of confi­den­tiality and give the other Party all reasonable assis­tance in connection with the same.
For the purposes of this section, shall not be considered Confi­dential Infor­mation, infor­mation that: (i) is published or comes into the public domain other than by a breach of the Agreement, (ii) can be proven to have been known by the receiving Party before disclosure by the disclosing Party; (iii) is lawfully obtained from a Third Party other than by a confi­den­tiality breach of such Third Party; or (iv) can be shown to have been created by the receiving Party indepen­dently of the disclosure.
If and to the extent required in accor­dance with a judicial or other govern­mental order, the receiving Party may disclose Confi­dential Infor­mation, provided that the receiving Party (i) gives the disclosing Party reasonable notice prior to seek a protective order or equiv­alent, unless the receiving Party is legally prohibited from doing so; (ii) reasonably cooperates with the disclosing Party in its reasonable efforts to obtain a protective order or other appro­priate remedy; (iii) discloses only that portion of the Confi­dential Infor­mation that it is legally required to disclose; and (iv) uses reasonable efforts to obtain reliable written assur­ances from the applicable judicial or govern­mental entity that it will afford the Confi­dential Infor­mation the highest level of protection available under applicable law or regulation.
The oblig­a­tions set out in this clause shall enter into force as from the start of negoti­a­tions between the Parties and shall survive during five (5) years after the termi­nation or expiration of the Agreement. The confi­den­tiality oblig­a­tions in the Agreement replace any prior non-disclosure agreement signed between the Parties.

Limitation of Liability

BMI Leisure shall have no oblig­ation to indemnify the Client in respect of any claim arising from the Agreement unless such claim exceeds two thousand five hundred (2,500) euro.
Subject to the maximum extent permitted under applicable law, BMI Leisure’s liability under the Agreement shall: (i) per event (or series of connected events) not exceed the Fees paid by the Client to BMI Leisure under the Agreement for a period of twelve (12) months prior to the date of the event (or last of the series of connected events) giving rise to the claim.
BMI Leisure shall under no circum­stances be liable to the Client for any indirect, punitive, special conse­quential or similar damages (including damages for loss of profit, lost revenue, loss of business, loss or corruption of data, loss of customers and contracts, loss of goodwill, the cost of procuring replacement goods or services, and reputa­tional damage) whether arising from negli­gence, breach of contract or of statutory duty or otherwise howsoever, and third parties’ claims. Each Party shall have the duty to mitigate damages. The exclu­sions and limita­tions of liability under this clause shall operate to the benefit of BMI Leisure’s affil­iates and subcon­tractors to the same extent such provi­sions operate to the benefit of BMI Leisure.
BMI Leisure cannot be held liable in any way, neither contrac­tually nor extra-contrac­tually, for discon­tinuing an older release of the Software or for damages caused by the wrongful (or out of scope) use of the Software.

Miscel­la­neous

Entire agreement – The Agreement consti­tutes the entire agreement and under­standing between the Parties with respect to the subject matter hereof and super­sedes all prior oral or written agree­ments, repre­sen­ta­tions or under­standings between the Parties relating to the subject matter hereof. No statement, repre­sen­tation, warranty, covenant or agreement of any kind not expressly set forth in the Agreement shall affect, or be used to interpret, change or restrict, the express clauses of the Agreement.
Waiver – The terms of the Agreement may be modified or amended only by written agreement executed by a duly autho­rized repre­sen­tative of both Parties hereto. The terms of the Agreement may be waived only by a written document signed by both Parties. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent.
Sever­ability – If any provision of the Agreement is deter­mined to be illegal, void, invalid or unenforceable, in whole or in part, the remaining provi­sions shall never­theless continue in full force and effect. The provi­sions found to be illegal, invalid or unenforceable shall be enforceable to the full extent permitted by applicable law. Each Party shall use its best efforts to immedi­ately negotiate in good faith a valid replacement provision with an equal or similar economic effect.
Survival – Expiration, termi­nation or cancel­lation of the Agreement shall be without prejudice to the rights and liabil­ities of each Party which have accrued prior to the date of termi­nation, and shall not affect the contin­uance in force of the provi­sions of the Agreement which are expressly or by impli­cation intended to continue in force, including, without limitation, the provi­sions relating to Intel­lectual Property Rights, Confi­dential Infor­mation and Limitation of Liability.
Assignment – BMI Leisure may assign, transfer and/​or subcon­tract the rights and oblig­a­tions under the Agreement to any Third Party. The Client shall not assign or otherwise transfer any of its rights or oblig­a­tions under the Agreement without BMI Leisure’s prior written consent. BMI Leisure’s consent should be requested by regis­tered letter, disclosing the identity of the prospective trans­feree. 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 assignees.
Force Majeure – Neither Party will be respon­sible or liable for any failure or delay in the perfor­mance of its oblig­a­tions under the Agreement arising out of or caused by Force Majeure. In the event of Force Majeure, the Party shall inform the other Party at least within reasonable time about the nature of the Force Majeure and the fact that it wants to rely on this clause. The Party must, within reasonable time, provide the other Party with the evidence of the existing of the Force Majeure, the date when the Force Majeure comes or has come into effect, and also when it will have ceased to exist. In case of Force Majeure, the Party is obligated to mitigate damage, and must use its best efforts to keep the conse­quences to a minimum. In the event of failure to comply with the above­men­tioned procedure, the Party shall be prevented to rely on the Force Majeure event and the Force Majeure clause.
Publicity – BMI Leisure shall have the right to use any trade­marks, logos or other marks of the Client (including the Client’s corporate name) for client refer­ences on BMI Leisure’s website, social media announce­ments and sales presen­ta­tions. Upon both Parties explicit consent, they shall jointly issue a press release in which they announce the partnership between the Client and BMI Leisure.
Relationship between the Parties – The relationship between BMI Leisure and the Client is that of independent contractors. Neither Party is agent for the other and neither Party has any authority to make any contracts, whether expressly or by impli­cation, in the name of the other Party, without that Party’s prior written consent for express purposes connected with the perfor­mance of the Agreement.
Notices – Any notice required to be served by the Agreement shall in first instance be given by electronic mail. Notices given to the Client shall be done to the email address set out in the Order Form (or in case no email address is available via post to the Client’s regis­tered address). Notices to BMI Leisure shall be done by email to administration@​bmileisure.​com. All notices given by electronic mail, shall only be valid in case confir­mation of receipt was expressly given by electronic mail by the receiving Party. In case no confir­mation of receipt was given by BMI Leisure within five (5) Business Days, all notices can be done in writing and served by personal delivery, regis­tered letter, facsimile trans­mission (confirmed by regis­tered letter) addressed to either Party at its address given in the Order Form or to such other address as a Party may designate by notice hereunder. All notices shall be deemed to have been given either (i) if by hand, at the time of actual delivery thereof to the receiving Party at such Party’s address, (ii) if sent by overnight courier, on the next Business Day following the day such notice is delivered to the courier service, or (iii) if sent by regis­tered or certified mail, on the fifth (5^th) Business Day following the day such mailing is made.
Conflict – In case of conflict between the provi­sions of the contractual documents executed between the Parties, the first document shall prevail on the latter: (i) the Order Form, (ii) the Terms and Condi­tions (iii) the annexes, unless explicitly agreed otherwise in written between the Parties.
Inter­pre­tation – The terms of the Agreement shall be inter­preted as follows (unless the context shall otherwise require or permit): (i) Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted; (ii) Words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and incor­porate; and each case vice versa; (iii)The headings or captions to the clauses are for ease of reference only and shall not affect the inter­pre­tation or construction of the Agreement.
Language – The Agreement is entered into in the English language only; which language shall be controlling in all respects. Furthermore, all commu­ni­ca­tions and notices made or given pursuant to the Agreement shall be in the English, French or Dutch.
Applicable law and juris­diction – The Agreement shall be governed by and construed in accor­dance with the laws of Belgium and the Parties hereto submit to the exclusive juris­diction of the courts of Antwerp, division Turnhout. The United Nations Convention for the Inter­na­tional Sale of Goods shall not apply to the Agreement.