MBRELLA – TERMS AND CONDITIONS (Version 01.08.2023)
INTRODUCTION
These terms and conditions can be easily accessed and downloaded on the Platform in English. A French and Dutch version can be requested by sending an e-mail at hello@mbrella.eu. 

These terms and conditions are subject to periodic updates, and any revised version shall supersede all previous terms and conditions. Upon modification, the Employer must explicitly accept the updated Terms and Conditions to be bound by them.

These terms and conditions govern the use of the Platform and any related Services provided by Mbrella. They shall apply to (i) all commercial agreements entered into between Mbrella and an Employer; and (ii) to all the Mobility Managers and Qualifying Employees or other end users authorized by the Employer to use the Platform and/or Services at the expense of the Employer (with the exception of Articles 6 and 10 and such other articles that do not apply given their context), in addition to any general or special conditions which might be applicable to any kind of product or service offered directly or indirectly on the Platform regardless of whether they are offered by Mbrella or third parties. 

If you have any questions about these terms and conditions or their implementation please contact Mbrella by e-mail at hello@mbrella.eu.

Article 1: Definitions and interpretation 
1.1. For the purposes of this Agreement, the terms used with capital letters shall have the following meaning:
‍Agreement: the present terms and conditions, any Sales Order, and any other written document entered into between the Parties, setting out the terms and conditions under which Mbrella shall enable the Employer and/or its Mobility Managers and Qualifying Employees to use the Platform.
‍Business Day: a day (other than a Saturday, Sunday or public holiday) from 9 AM to 6 PM (Brussels CET).
‍Confidential Information: all information, data, reports, intellectual property, know-how and trade secrets, in whatever form, disclosed by or on behalf of one Party to the other Party in connection with the 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 such, including the information relating to the disclosing Party’s businesses, operations, finances, planning, facilities, products, techniques and processes, inventions, products, processes, technical methods, formulas, projects, developments, plans, research data, financial data, personal data, software, client listings, suppliers listings and any other data relating to clients or the knowledge of existence of clients or the prospects of the concerned Party (and its affiliated companies in the case of Mbrella). Confidential Information of Mbrella shall expressly include all information related to the Platform (including its source code), Services and the Documentation.
‍Mobility Data: all data proprietary to or held by the Employer, Mobility Manager, and/or Qualifying Employee which is made available or provided by them to Mbrella during the performance of the Agreement (including any personal data) or which is the outcome (including all advice, data, and reports) of the usage of the Platform and/or Services. For the avoidance of doubt, the Mobility Data shall not contain any Intellectual Property Rights related to or vested in the Platform, Services and/or Documentation.
‍Documentation: any documentation relating to the use of the Platform and/or the Services as made available by Mbrella from time to time. 
‍Effective Date: the date on which the Employer, Mobility Manager or Qualifying Employee has subscribed to the Platform by accepting these terms and conditions.
‍Employer: the legal entity or natural person with whom Mbrella entered into the Agreement as to enable (some of) its staff members or employees to use the Platform and/or Services, at its expense.
‍Force Majeure: an unforeseen event beyond the reasonable control of the affected Party, to the extent such an event prevents or delays the affected Party from fulfilling its obligations under this Agreement and the affected Party is not the direct or indirect cause of such an event and is unable to prevent or remove such an event, including, natural disasters, riots, war, national or local emergencies, government measures, epidemics or pandemics, economic disputes, fire, explosions, failures in goods, equipment, disruption of internet, data network or telecommunication facilities, unavailability of third party servers, software or materials, hacker attacks, virus or other malicious software attacks or infections, unavailability of personnel, electricity outages, and delays in or bankruptcy of Mbrella’s subcontractors.
‍Hosting Partner: Amazon Web Services or such other provider of hosting services Mbrella might contract in the future, as will be notified to the Employer, Mobility Manager and Qualifying Employees from time to time. 
‍Intellectual Property Rights: patents, utility models, designs (whether or not capable of registration), chip topography rights, database rights and other like protection, copyrights, trademarks, trade names, trade dress, trade secrets (including ideas), computer software programs (including source code), data(bases), knowhow, inventions and/or any other industrial and/or intellectual property rights, and applications, divisions, continuations, renewals, re-exams and reissues thereof.
‍License Fee: any and all amounts due by the Employer to Mbrella to use the Platform and related Documentation, as set forth in Article 3 and to receive the general maintenance and support services, as set forth in Article 7 (in the event of a paying Subscription Plan). 
‍Mbrella: a private limited liability company incorporated under Belgian law, having its registered office at rue du Belvédère/Belvédèrestraat 29, 1050 Brussels (Belgium), registered with RLE Brussels under company number 0776.753.432, hello@mbrella.eu.
‍Mobility Benefit: any legal or extra-legal benefit related to mobility that can be granted by an Employer to a Qualifying Employee within the framework of their employment relationship (for example: a bike kilometer allowance, a mobility payment card, a public transport subscription, etc.) and made available on the Mbrella Platform.  
‍Mobility Budget: the monthly budget allocated by the Employer to each Qualifying Employee to book and purchase Mobility Benefits.
‍Mobility Manager: the natural person(s) linked to the Employer and selected by the Employer, who has specific access to the Platform and can manage all Qualifying Employees' access to the Platform.
‍Onboarding Fee: the fee due by the Employer to Mbrella in consideration for the Onboarding Services, as set forth in the Sales Order.
‍Onboarding Services: the initial mandatory registration of the Employer, the set-up of the Mobility Manager and Qualifying Employee accounts and the one-time onboarding training services concerning the usage of the Platform (in order to become acquainted with the features of the Platform), as set forth in the Sales Order. For the avoidance of doubt, in the event the Employer is using a free Subscription Plan, Onboarding Services are only provided (in consideration for the applicable Onboarding Fee) if specifically requested by the Employer.
‍Party: Mbrella, the Employer, Mobility Manager or the Qualifying Employees individually (and together the “Parties”). 
‍Platform: the online internet platform called Mbrella, developed, maintained and managed by Mbrella, which aims at offering its users a tool allowing Employers, Mobility Managers and Qualifying Employees to handle their Mobility Benefits, Mobility Budgets, expenses, and to manage their public transportation transcriptions.
‍Qualifying Employee: any natural person linked to the Employer (typically an employee, agent, representative or other staff member) by an in force and not terminated contract, who has been authorized by said Employer to (i) use the Platform via its personal user account (in accordance with its user role); and (ii) who benefits from Mobility Benefits and/or a Mobility Budget, both at the Employer’s expense. Each Qualifying Employee must have accepted these terms and conditions in order to use and access the Platform.
‍Sales Order: the written or electronic document or form agreed to by the Employer and Mbrella, indicating the nature, the number of, and other specifics of the Subscription Plan and the scope of the Services ordered by the Employer, including any specific conditions under which such offer is made including the applicable fees and other costs.
‍Service Fee: any and all amounts due by the Employer to Mbrella in consideration for the Services.
‍Services: the consultancy, enhanced support, additional onboarding sessions and training, provision of mobility template policies, the inclusion or development of additional functionalities or features and/or any other professional services provided by Mbrella to the Employer, including the services described in Article 6.
‍Subscription Plan: the subscription plan effectively used by the Employer that includes the License (as defined in Article 3).

1.2. Interpretation
1.2.1. The singular shall include the plural and vice versa.
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1.2.2. Where in this Agreement a French or Dutch term is given in italics or in italics and in brackets after an English term, and there is any inconsistency between the French or Dutch and the English, the meaning of the French or Dutch term shall prevail.
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1.2.3. The words “for example”, “such as”, “include”, “including”, “includes” and all forms and derivations thereof shall mean including but not limited to.
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1.2.4. The titles and headings used in this Agreement are only inserted to facilitate the reading of this Agreement and do not express in any way the intended understanding of the Parties. They shall not be taken into account for the interpretation of this Agreement.
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1.2.5. References to Articles and paragraphs in this Agreement are references to the Articles and paragraphs of this Agreement unless otherwise specified.
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1.2.6. English legal jargon/terminology used in this Agreement intends to describe Belgian legal concepts only and the consequences or meaning of said legal jargon/terminology under English law or any other foreign law shall be disregarded.
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‍Article 2: Purpose and scope of the Agreement
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2.1. The Agreement sets out the principles and modalities of the commercial partnership and/or the usage right of the Platform (as applicable) between the Parties, as well as the Parties’ respective rights and undertakings related thereto. 

2.2 These terms and conditions will be made available to the Employer, Mobility Managers and Qualifying Employees, at least before the conclusion of the Agreement. By accepting these terms and conditions, either by clicking a box indicating acceptance or by executing a Sales Form or other document referring to these terms and conditions, the aforementioned parties acknowledge that they have read, understood, and agree to be bound by the Agreement. If a person signs or agrees to this Agreement on behalf of an Employer, this person warrants that he/she has the authority and mandate to legally and validly bind the Employer he/she represents. The Client expressly acknowledges and agrees that the Agreement may be executed and signed through electronic signature technology (including by clicking on a button stating “I accept”). To the extent that the Agreement is executed or signed electronically, the electronic signature is the legally binding equivalent to their handwritten signature. 
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2.3 In case of any discrepancies between the wording of the Mbrella website and these terms, these terms and conditions shall prevail. In the event of any discrepancies between the wording of these terms and conditions or any Sales Order, the Sales Order shall prevail as to its subject matter.
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2.4 These Terms will only be modified upon mutual agreement in writing between the Parties. Notwithstanding the foregoing, Mbrella reserves the right to revise or update these terms and conditions from time to time for objective reasons such as technical requirements, updates or innovations. Mbrella will inform the Employer, Mobility Managers and Qualifying Employees about the changes in writing (including by Platform notice, email or any other form of communication) prior to the coming into force of such amendments or changes. Changes will apply fourteen (14) business days after they have been notified. If the Employer does not agree to the changes, they have the right to stop using the Platform and/or Services and cancel their account without charge within fourteen (14) business days after notification of the new terms. In such an event, the Employer will be entitled to a pro-rata refund of the already paid monthly or annual fee.
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2.5 The Employer, Mobility Managers and Qualifying Employees understand and agree that its continued use of the Platform and/or Services after notification of modification of the terms and conditions constitutes acceptance of those changes. In no event shall the continued use of the Platform and/or Services by the Employer be construed as continued under the former terms and conditions.

‍Article 3: License‍

3.1. Principle
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3.1.1. Mbrella shall grant the Employer, and its authorized Mobility Managers and the Qualifying Employees a personal, restricted, revocable, non-exclusive, non-transferrable, non-assignable and non-sublicensable license, for the term of the Agreement, to access and use the Platform and related Documentation, for its internal business purposes, in accordance with the Subscription Plan indicated in the Sales Order, the terms and conditions of the Agreement and the Documentation (the “License”). The Licenses granted under the Agreement are restricted to the scope expressly set forth therein, and there are no implied Licenses.
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3.1.2. The Employer and the Mobility Managers shall have access to aggregated information in relation with each Qualifying Employees’ Mobility Benefits, Mobility Budget and detailed information on their expenses (such as the date, the service used or the amount spent) (the “Mobility Reports”). Each Qualifying Employee shall have access to their own Mobility Benefits, Mobility Budget and expenses, both personal and professional.
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3.2. Onboarding Services, registration and accounts
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3.2.1. In consideration for the Onboarding Fee, Mbrella shall provide the Onboarding Services. For the avoidance of doubt, any additional training required by the Employer (such as subsequent onboarding sessions or the provision of additional training materials) shall be provided by Mbrella in accordance with Article 6.
  
3.2.2. Mobility Managers and Qualifying Employees shall not be able to use the Platform before being validly registered. 

3.2.3. Upon completion of the registration process by the Mobility Managers and/or Mbrella (as applicable and agreed upon between the Parties), the Mobility Managers and Qualifying Employees shall be enabled to use the Platform via their (personal) user accounts. The creation of additional accounts for a new Mobility Manager and/or Qualifying Employee shall in principle be done instantaneously upon completion of the registration process.
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3.2.4. All Qualifying Employees wishing to use the Platform and, more generally, each person accessing the Platform, shall be requested to accept Mbrella’s terms and conditions upon first use of the Platform.

3.2.5. It is highly recommended to not share login and account details. Mbrella is not liable for any losses or damages incurred as a result of account details being shared by the Employer, Mobility Managers or Qualifying Employees.

3.3. Mobility Benefits

‍3.3.1. Each Qualifying Employee is allocated Mobility Benefits and/or a Mobility Budget as decided and allocated solely by the Employer. The Employer can modify directly on the Platform or, should it not be available, can request Mbrella, at any time, to modify the allocated Mobility Benefits and/or Mobility Budget for each Qualifying Employee; and/or remove access to the Platform for an existing Qualifying Employee.
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3.4. License restrictions
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3.4.1. The Parties acknowledge that there are different Subscription Plans and packages which vary in scope (such as in terms of the number of active users (i.e. Mobility Managers and Qualifying Employees), functionalities, price and/or transactions) as described on the website of Mbrella and the applicable Sales Order, and that the use of the License granted under Article 3 is limited to the Subscription Plan as specified in the applicable Sales Order.

3.4.2. Within the limits of applicable law, the Employer, Mobility Managers and Qualifying Employees are, with respect to the Platform and Documentation, not permitted to and shall not allow any third party to: (i) make it available to, sell, rent, sublicense, lease, distribute, or otherwise transfer it to any third parties; (ii) adapt, alter, translate or modify it in any manner; (iii) (attempt to) decompile, reverse engineer, disassemble, or otherwise derive or determine the source code (or the underlying ideas, algorithms, structure or organization) thereof; (iv) alter, remove, or obscure any copyright notice, or other notices included therein; (v) intentionally distribute any virus, or other items of a destructive or deceptive nature; (vi) use it for any unlawful, infringing, harmful, defamatory or fraudulent purpose or activity; (vii) remove or in any manner circumvent any technical or other protective measures; or (viii) make back-up copies thereof. The aforementioned Parties shall report to Mbrella in writing any infringement on these usage restrictions without undue delay upon becoming aware of it.

‍Article 4: Links to third party materials 

4.1. The Platform or Documentation may contain links to third party materials, websites and/or applications. This Agreement does not grant the Employer, Mobility Managers and Qualifying Employees any right to use such third party materials, and use of these may require acceptance of additional licensing terms or terms and conditions issued by the relevant third party.
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4.2. Unless expressly stated otherwise, these third party materials are not under Mbrella’s control and Mbrella assumes no responsibility for examining and/or evaluating the content, accuracy, completeness, legality, decency, quality or any other aspect of such third party materials, and disclaims any liability arising out of their usage.

‍Article 5: Hosting 

5.1. The Platform will be hosted on the servers of the Hosting Partner. The servers of the Hosting Partner are located within the European Economic Area, specifically in Ireland. The Employer, Mobility Managers and Qualifying Employees acknowledge that the hosting services shall be subject to the applicable terms and conditions of the Hosting Partner (as may be amended from time to time) that will be made available by Mbrella or the Hosting Provider (as applicable) and represent and warrant that they shall accept such Hosting Partner terms and conditions. The Client shall indemnify and hold harmless Mbrella for any non-compliance with such terms.

5.2. Mbrella does not warrant that the Platform shall be available on an uninterrupted basis, however, it shall, to the best of its abilities, try to ensure the undisturbed usage of the Platform. The Employer, Mobility Managers and Qualifying Employees agree that the Platform may be unavailable during periods of maintenance undertaken by Mbrella or the Hosting Partner. To the extent reasonably possible, Mbrella shall notify Customer of any planned maintenance. Mbrella shall not be responsible for any non-availability of the Platform to the extent due to any Hosting Partner or third-party service provider.

‍Article 6: Professional services

6.1. The Client may request Mbrella to perform certain Services and Mbrella may in its sole discretion agree to provide such Services. In such case, a Sales Order shall specify the scope of the Services and the applicable Services Fees. Any timelines included in the Sales Order or otherwise specified shall be deemed to be indicative only and shall not bind Mbrella unless expressly agreed to be binding. Each Sales Order shall reference these terms and conditions, which shall be incorporated therein by reference.

6.2. Additionally, it is expressly understood, acknowledged and agreed that the Employer may provide any suggestions or feedback to improve or enhance the Platform and/or Services. In such event, the Employer grants Mbrella a worldwide, non-exclusive, perpetual, irrevocable, royalty free license to freely use such feedback for its own purposes.

‍Article 7: Maintenance and support 
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7.1. Mbrella reserves the right to make, in its sole discretion, changes and updates to the functionalities of the Platform from time to time without any prior notification to the Employer, Mobility Managers or Qualifying Employees, provided that Mbrella shall not remove or reduce any material functionalities of the Platform without prior notification, unless such functionalities are replaced with an equivalent or improved functionality.

7.2. Mbrella shall, to its best ability and to the extent commercially reasonable, provide normal and basic tech support services during Business Days. If the Employer, Mobility Manager or any Qualifying Employee encounters an incident or has a technical or functional question or problem, he/she may notify Mbrella of such incident via the helpdesk on the Platform or by sending an email to the Mbrella support desk: email support@mbrella.eu. Mbrella undertakes to make all commercially reasonable efforts to answer any requests and to provide a solution or workaround within a reasonable time.

7.3. Incidents caused by one of the following are not included in the License Fee, however the Employer may request Mbrella to provide support regarding such incidents for which Mbrella may charge an additional Service Fee (i) abuse or misuse of the Platform; (ii) modifications to the Platform not performed by or with the consent of Mbrella; (iii) incorrect installation of a fix by a third party; (iv) incorrect configuration not performed by or with the consent of Mbrella; and/or (v) the use of incorrect data or data structures.

‍Article 8: Independence

8.1. Each Party is operating, and will continue to operate, on its own behalf, in its own name, with its own trade name, for its own account and at its own risks and nothing in the Agreement is intended or shall be construed to authorize either Party to create or assume any liability or indebtedness of any kind in the name of or on behalf of the other Party or to act for or be responsible for the performance of the other Party in any manner whatsoever. No employment, partnership, temporary partnership, joint venture or agency exists between the Parties as a result of the Agreement.

‍Article 9: Collaboration between the Parties

9.1. Each Party warrants that it has the right to perform its obligations under the Agreement and to grant the other Party the rights set forth in the Agreement and shall execute its rights and obligations in good faith, with respect for the other Party’s interests.

9.2. The Employer acknowledges and agrees that in order for Mbrella to be able to provide the Platform and perform the Services in a proper, timely and efficient manner, the Employer must cooperate with Mbrella by, at no cost for Mbrella, making available on a timely basis any relevant information and by providing timely and appropriate access to the Employer’s resources and systems, as necessary to allow Mbrella to adequately perform the Services (which may be further determined in a Sales Order). 

9.3. Mbrella shall not be responsible for any obligation existing between the Employer and its Mobility Managers and Qualifying Employees.

‍Article 10: Price and payment terms

10.1 In consideration for the License, the Employer shall pay the applicable License Fee, which shall, at the end of each billing cycle (as set forth in Article ‎10.5‎ below), unless the Client has opted to an upfront billing cycle, be invoiced and construed in accordance with the Subscription Plans and in particular in accordance with the number of effectively active users during said billing cycle (i.e. Mobility Managers and Qualifying Employees) as indicated on the website of Mbrella and as confirmed in the Sales Order.

10.2. For the avoidance of doubt, as long as the Employer is using a free Subscription Plan, no License Fee will be charged for the usage of the Platform. As soon as the Employer upgrades to a paying Subscription Plan, Mbrella will start charging the corresponding License Fee to the Employer and will start a billing cycle on the day of the upgrade. Additionally, in the event the Employer is using a free Subscription Plan, Onboarding Services are only provided (in consideration for the applicable Onboarding Fee) if specifically requested by the Employer.
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10.3. If the Employer has opted to pay the Subscription Plan, fully and upfront, and later wishes to subscribe to additional option(s) or to upgrade his Subscription Plan before the end of the billing cycle, Mbrella will make an appropriate adjustment of the fees on a pro-rata basis for the period until the end of the billing cycle and an invoice will be generated for the pro-rata amount.

10.4. If the Employer wishes to downgrade his Subscription Plan before the end of the billing cycle, the downgraded Subscription Plan will be applicable as from the next billing cycle. No credit or refund will be granted for an ongoing billing cycle.

10.5. License Fees shall be invoiced in monthly or yearly arrears. Yearly Subscription Plans shall be payable by credit card, SEPA Direct Debit or wire transfer (at the Employer’s discretion and as specified in the Sales Order). Monthly Subscription Plans are payable by credit card or SEPA Direct Debit, as specified in the Sales Order. License Fees shall be payable within thirty (30) calendar days following the date of invoice.

10.6. In consideration for any requested Services, the Employer shall pay the Services Fee (which may either be a fixed fee or can be computed on a time and material basis, calculated on the then current rates of Mbrella) as will be further specified in the Sales Order.

10.7. The Onboarding Fees and Services Fees, may be invoiced separately from the License Fee, and shall be a one-off payment, payable within thirty (30) calendar days following the date of invoice, and shall be paid in accordance with the payment method for the License Fee.

10.8. Mbrella reserves the right to modify any fees or prices. In the event of a price adjustment, Mbrella shall provide written notice to the Employer three (3) months prior to the change taking effect and such alteration must receive explicit acceptance from the Employer. Should the Employer decline to accept the proposed price change, they shall have the right to terminate the agreement without incurring any penalties or liabilities.

10.9. If such change would result in lower prices or otherwise works towards the Employer’s advantage (but not in case the lower prices result from higher government levies or taxes), the Employer may request its fees and amounts due to be adapted as from the date of the Employer’s request by sending an e-mail to hello@mbrella.eu. Such requests will not lead to any reimbursement of already paid fees or amounts under the Agreement. It may however, at Mbrella’s sole discretion, lead to the extension of the Subscription Plan.

10.10. Mbrella reserves the right to revise the License Fees for its Subscription Plans and the prices and fees for all additional Services requested by the Employer, from time to time, on the basis of the Agoria digital index which is linked to the hourly salaries published by the employers’ federation Agoria (or any other equivalent index in the event the Agoria index is no longer available), using the following formula: 
P = P0 * [0.2 + 0.8 * (S/S0)], whereby:

“P” stands for the revised fee/price;
"P0" stands for the price/fee on the Effective Date;
“S0” shall be the national average reference salary for the Digital sector as published by Agoria ("Reference Salary")  on the Effective Date (or, if this index is no longer published, the index replacing it or failing  such index by another index reflecting the increases of labor cost);
“S” shall be the Reference Salary at the moment of revision; and
"S/S0" shall be referred to as "Index”.

10.11. Any dispute regarding an invoice must be notified (together with any appropriate information supporting the Employer’s position) to Mbrella in writing within fifteen (15) calendar days of the invoice being received (failure of which shall result in the invoice being deemed irrevocably accepted by the Employer). The undisputed portion shall be paid as provided herein.

10.12. Any amount that has been left unpaid at the due date of payment will be increased automatically and without prior notice of default, with a conventional interest of 10% per month or year (as applicable) or the maximum permitted under the Act of 2 August 2002 on late payment interests in commercial transactions, calculated on a daily basis as from the due date up to the full payment completion date. The Employer will also be liable to pay a fixed indemnity for loss and administrative costs on a flat rate basis of ten percent (10%) of the unpaid invoice, with a fixed minimum of EUR fifty (€50) per invoice. Mbrella may also charge the Employer for the expenses Mbrella reasonably incurs in connection with any debt collection or enforcement efforts, in accordance with the applicable law. In this event, all amounts which are outstanding but are not yet due by the Employer, shall become immediately due; and Mbrella shall be entitled to suspend any of its obligations under the Agreement, without incurring any liability, until full payment of the amount due has been received.

10.13. All fees and amounts due to Mbrella under the Agreement shall be paid (i) in Euros; (iii) shall be exclusive of any VAT or other taxes, duties, levies and currency exchanges; and (iii) without the right to set off or counterclaim. Unless expressly agreed otherwise, no discounts are granted.

10.14. Credit card and SEPA Direct Debit payments are processed through the secured facilitator Stripe. Online payments are executed via a closed security system (SSL), through which the Employer’s bank details are always encrypted when they are sent via the Internet.

‍Article 11: Confidentiality

11.1. Without prejudice to Article 14.4, neither Party shall disclose to third parties and/or use any received Confidential Information, without the prior written permission of the disclosing Party, except to its affiliates, subcontractors, suppliers, agents and advisors working on the execution of the Agreement on a need to know basis, provided that such third parties are bound by confidentiality obligations similar to those contained in the Agreement.

11.2. Each Party shall only use any Confidential Information for the strict purpose of executing its rights and obligations under this Agreement.

11.3. Confidential Information (as defined) shall not, however, include information which the Party can establish:
- is in the public domain at the time of disclosure or later becomes part of the public domain without breach by the Party of the confidentiality obligations contained herein; or
- was rightfully in the possession of the Party prior to disclosure hereunder; or
- was or is disclosed to the Party by a third party who is not, to the best of the receiving Party’s knowledge, bound by any obligation of confidentiality to the other Party; or
- was or is independently developed by the Party without use or reference to the Confidential Information.

11.4. If and to the extent required, the Parties shall have the right to disclose Confidential Information of the other Party in accordance with a judicial or other governmental order but shall inform the other Party prior to it, so that it can seek a protective order, unless the receiving Party is legally prohibited from doing so. The receiving Party shall reasonably cooperate with the disclosing Party to obtain such a protective order.

11.5. Each Party shall use appropriate efforts no less restrictive than used for the Party’s protection of its own Confidential Information and trade secret information, but, in any event no less than reasonable efforts, to safeguard the confidential nature of the Confidential Information of the other Party and to keep it secure. The Parties shall promptly notify each other if they become aware of any breach of confidentiality.

11.6. The obligations set out in this Article shall enter into force as from the start of the negotiation of the Agreement and shall survive during five (5) years after termination or expiry of the Agreement.

‍Article 12: Personal data

12.1. If and to the extent Mbrella is provided access to and processes any personal data in the execution of the Agreement, Mbrella shall do so: 
- with respect of the Mobility Managers and Qualifying Employees or any other natural person implicated in the performance of this Agreement in compliance with Mbrella’s privacy policy, available here, on the Mbrella website and Platform, and, as the case may be, in accordance with article 8 of the Belgian Royal Decree of 21 March 2019 implementing the law of 17 March 2019 regarding the introduction of a mobility budget and with articles 3, 8 and 10 of the Royal Decree of 21 March 2019 implementing said law;
- with respect to the Employer in accordance with the data processing agreement concluded between the Employer and Mbrella.

12.2. The Parties shall comply with all applicable legal requirements regarding privacy and data protection, more in particular with the Belgian and European data protection laws, including the General Data Protection Regulation of 27 April 2016 (the “GDPR”). In particular, the Employer represents and warrants to Mbrella that it has a valid legal ground to process such personal data and to disclose such personal data to Mbrella in accordance with applicable law. The Employer undertakes to sufficiently inform all data subjects about such processing activities by the Employer and/or Mbrella (as applicable) and shall defend Mbrella against any claim by a data subject.

‍Article 13: Mobility Data

13.1. Any Mobility Data (including the Mobility Reports) uploaded or provided to Mbrella for the purposes of executing the Agreement, shall remain the property of the Employer, Mobility Managers and/or Qualifying Employees (as applicable).

13.2. The Employer, Mobility Managers and Qualifying Employees hereby grant Mbrella a non-exclusive, royalty-free, worldwide, sublicensable, transferable license to use, copy, reproduce, display, store, export, adapt, or edit the Mobility Data to the extent reasonably required for the performance of Mbrella’s obligations under the Agreement (including, after being aggregated and anonymized to enhance and improve the Platform and/or Services).

13.3. The Employer, Mobility Managers and/or Qualifying Employees (as applicable) shall be solely liable and responsible for the accuracy and completeness of the Mobility Data. In particular, they represent and warrant that the Mobility Data (i) does not include any inappropriate or indecent content; (ii) does not include any malware or any other elements that could result in harm to the Platform or natural persons; (iii) shall not infringe the Intellectual Property Rights or other legal rights of any third party; (iv) shall not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law. Mbrella shall not be liable for (i) damages or liability resulting from incorrect Mobility Data inputted in the Platform; and (ii) any action or decision from the Employer, Mobility Manager or Qualifying Employee, based on the output from the Platform.

13.4. Unless explicitly agreed otherwise, the Employer is solely responsible for the safety and security of the Mobility Data and for making the necessary back-ups in order to avoid loss and/or corruption of the Mobility Data, including the storage of the Mobility Reports.

‍Article 14: Intellectual Property Rights and marketing

14.1. Mbrella shall at all times retain and be the exclusive owner of all rights, titles, interests, Intellectual Property Rights, and any other proprietary and/or industrial rights, vested in or related to its Confidential Information, the Platform, Services and Documentation (including any new versions, updates, customizations, enhancements, modifications amendments, improvements, modifications or derivative works thereof) (the “Mbrella IPR”). For the avoidance of doubt, any and all Intellectual Property Rights developed or created in the course of the Agreement shall vest in Mbrella upon their creation.

14.2. Under no circumstances shall the Agreement involve a transfer of Intellectual Property Rights between the Parties. Except for the limited license granted pursuant to Article 3, no other rights in respect of the Mbrella IPR shall be granted or transferred to the Employer, Mobility Managers, or Qualifying Employees in connection with this Agreement.

14.3. The Employer, Mobility Managers, and Qualifying Employees agree (i) to use the Mbrella IPR only as expressly permitted in this Agreement and subject to the general obligation to comply with applicable laws, (ii) not to remove any intellectual property notices (such as any trademarks or copyright notices) in the Mbrella IPR, (iii) not to sell, transfer, rent, lease, grant access to or sublicense the Mbrella IPR to any third party, (iv) not to alter or modify the Mbrella IPR, (v) not to reverse engineer, disassemble, decompile or attempt to derive source code from the Mbrella IPR, (vi) not to prepare derivative works from the Mbrella IPR; (vii) and shall not use the Mbrella IPR for commercial purposes.

14.4. Each Party can use the trademark(s), trade name(s) and logos of the other Party for marketing and communication purposes relating to the Agreement, provided that said use is not able to harm in any way whatsoever the image and commercial reputation of the other Party or the Platform and can, in its own name and on its own behalf, make publicity on, press release of and reference to the existence of the Agreement and the nature of the cooperation between the Parties. Said use and communications can be realized without a prior written approval of the other Party to the extent it is done without disclosure of the details regarding the Agreement or the execution thereof and without impairing public order and morals and the commercial reputation of the other Party.

14.5. Each Party can request the other Party to stop any use or communication that is, in its reasonable opinion, contrary to the above mentioned.

‍Article 15: Indemnification

15.1. Mbrella will be given prompt written notice of any third party claim on an alleged or actual infringement on the Platform, the Services and/or Documentation made available by Mbrella, and will be granted the right to control and direct the defense and settlement of such a claim. The Employer, Mobility Managers and Qualifying Employees agree to reasonably cooperate with Mbrella in the defense and settlement of such a claim. In the event the Platform, Services and/or the Documentation, or any part thereof, in Mbrella’s reasonable opinion, is likely to or become the subject of a third-party infringement claim, Mbrella shall have the right, at its sole discretion, to: (i) modify the (allegedly) infringing part of the Platform, Services and/or the Documentation so that it becomes non-infringing; or (ii) obtain a license for the Employer, Mobility Managers and Qualifying Employees to continue using the Platform, Services and/or Documentation in accordance with the Agreement.

15.2. In case any alleged or actual Intellectual Property Rights infringement is arising, the Employer, Mobility Manager and Qualifying Employee shall immediate cease the use of the Platform, Services and/or Documentation. In case this obligation is neglected, Mbrella may at its sole discretion terminate the Agreement with immediate effect and without any compensation or indemnification.

15.3. The Employer hereby agree to indemnify and hold harmless Mbrella from each and every demand, claim, loss, liability, or damage of any kind whatsoever, that it may incur arising out of, any claim which is made by any third party with respect to the Employer’s, Mobility Managers’ or Qualifying Employees’ (i) breach or violation of any provision of the Agreement; (ii) fraud, willful misconduct or gross negligence; or (iii) violation of any third party Intellectual Property Rights or any other rights of such third party.

15.4. Mbrella shall have no liability for any claim which is based upon the Employer’s, Mobility Managers’, Qualifying Employees’ or any third party’s (i) unauthorized use of the Platform, Services and/or Documentation; (ii) modification of the Platform, Services and/or Documentation; or (iii) failure to integrate or install any corrections to the Platform, Services and/or Documentation issued by Mbrella, if Mbrella indicated that such update or correction was required to prevent a potential infringement.

‍Article 16: Warranties and representations

16.1. The Employer, Mobility Managers and Qualifying Employees acknowledge and agree that the Platform, Services and/or Documentation are provided “as is”. Except for the foregoing warranty and to the maximum extent permitted by applicable law, Mbrella does not make any representations or warranties, express or implied, concerning any matter under this Agreement (including the Platform, Services and Documents) and Mbrella disclaims any representations or warranties, express or implied, including (without limitation) any implied warranties of accuracy or completeness of data, fitness for a particular purpose, merchantability, non-infringement and/or that the Platform and/or Services will be provided uninterrupted or error-free.

16.2. The Employer, Mobility Manager and Qualifying Employees acknowledge and agree that the Platform, Services and/or Documentation may contain recommendations and advice and that the implementation of such advice might differ greatly depending on the exact context and situation. Unless expressly agreed otherwise, the Employer shall bear full responsibility for the use and/or implementation of such recommendations and advice and Mbrella cannot be held liable for any damage suffered by the Employer, Mobility Managers and/or Qualifying Employees (or any other third party) as a result of the implementation of any advice and recommendations.

16.3. Additionally, the Employer acknowledges and agrees that any Mobility Benefits and Mobility Budgets are granted in accordance with its internal business policies, it being understood that Mbrella does not interfere with, is not affected by and does not bear any responsibility for the grant of the Mobility Benefits and/or Mobility Budget which are merely facilitated by the Platform. The Employer is solely responsible to ensure (i) that its Qualifying Employees are entitled to a mobility budget under applicable law regarding the introduction of a mobility budget (and to what extent); (ii) its compliance with applicable law and in particular any tax and social (security) legislation). 

‍Article 17: Liability

17.1. The Employer or Mbrella shall defend, indemnify and hold the other, and its affiliates, harmless from any and all liabilities, damages, losses, costs and expenses (including attorneys’ fees) which arise from any wrongful execution or breach of the Agreement.

17.2. Neither Party shall under any circumstances be liable for any indirect or consequential damages, expenses, costs or other losses incurred by the other Party or its affiliate(s) arising under or in connection with the Agreement, such as loss and/or corruption of data, loss of goodwill and reputational damage.

17.3. Mbrella shall not be liable for any event of Force Majeure or any technical problem, breakdown, temporary unavailability or the malfunctioning of the Platform and/or Services that might arise and the consequences thereof. The execution of the obligation that cannot be carried out due to Force Majeure, will be suspended for the duration of the Force Majeure.

17.4. Mbrella shall in no case whatsoever be liable for any damages, expenses, costs or other losses resulting from the actions or omissions of third parties involved in the execution of this Agreement or resulting from the wrongful (or out of scope) use of the Platform, Services and/or Documentation.

17.5. The Employer undertakes to hold Mbrella and its affiliates harmless from any and all liabilities, damages, losses, costs and expenses (including attorneys’ fees) which arise from the actions or omissions of its Qualifying Employees and Mobility Managers or from a failure to properly select said parties.

17.6 To the maximum extent permitted under applicable law, Mbrella’s aggregate liability arising out of or in connection with the Agreement shall, whether in contract, warranty, tort or otherwise, per event (or series of connected events) and in the annual aggregate per contract year, in any event not exceed the higher of the following two amounts (i) the fixed amount of EUR ten thousand (€ 10.000) (for free Subscription Plans) or the amount equal to the License Fees paid by the Employer under the Agreement during the contract year in which the event giving rise to the liability claim arose (for paying Subscription Plans); or (ii) the amount paid out by Mbrella’s insurance in respect of such claim or event.

17.7. The limitation of liability provided in this Article shall not apply in cases of intentional misconduct, fraud or gross negligence by Mbrella, committed in relation with the performance of this Agreement. 

‍Article 18: Term and termination

18.1. This Agreement shall become effective on the Effective Date and shall remain in force during the initial term, which shall either be one (1) month or one (1) year, as indicated in the Sales Order. After the initial term, the Agreement shall automatically and tacitly renew for consecutive renewal terms (equally long as the initial term) unless (i) either Party notifies the other Party in writing of its intent not to renew the Agreement at least fifteen (15) days (in the event the initial term is one (1) month) or three (3) months (in the event the initial term is one (1) year) before the end of the initial term or the then current renewal term; or (ii) unless terminated earlier in accordance with this Article 18. However, in the event a free Employer Subscription is used, the Agreement may be terminated immediately.

18.2. Upon expiry or termination of the Agreement, the Employer’s, Mobility Managers’ and Qualifying Employees’ accounts shall be deactivated, meaning that the Platform and related Services will be unavailable in whole or in part and that the Employer therefore may not have access to the Mobility Data uploaded to or available on the Platform. Deactivation does not mean that the account, and the associated Mobility Data, will be immediately and irrevocably removed. The Employer, Mobility Managers and/or Qualifying Employees shall be responsible to download and make the necessary back-ups of the Mobility Data in accordance with Article 13.

18.3. This Agreement may be terminated with immediate effect by written notice by the non-defaulting Party, without incurring any liability and without prejudice to the right of indemnification of the non-defaulting Party or any other rights, remedies and/or claim to which it may be entitled under applicable law of, in the event that (i) the other Party commits a material breach and fails to remedy such breach within thirty (30) Business Days after having been given written notice of default; or (ii) the other Party is declared bankrupt, is dissolved, or goes or is put into liquidation (otherwise than solely for the purpose of amalgamation or reconstruction) or if a receiver is appointed over any part of such other Party’s business or if any event occurs which under the laws of any jurisdiction has a similar or analogous effect to any of the above events.

18.4. Mbrella shall, without prejudice to any other rights or remedy available, be entitled to immediately terminate the Agreement (or alternatively suspend the access to the Platform and/or the provision of the Services) by giving written notice, in the event the Employer, Mobility Manager and/or Qualifying Employees infringe (i) the terms of the Agreement or the Documentation; or (ii) Mbrella’s Intellectual Property Right or Confidential Information, or breaches its obligations under the applicable data protection legislation.

18.5. Termination of this Agreement shall be without prejudice to the rights and obligations of the Parties which have accrued up to the date of termination. The Employer acknowledges and agrees that in the event the Agreement is terminated early, regardless of the reason for such termination, any upfront payments made pursuant to this Agreement are final and non-refundable and the Employer shall not be entitled to a refund whatsoever. For the avoidance of doubt, termination will in no event relieve the Employer of its obligation to pay any fees due and payable to Mbrella for the period prior to the effective date of termination.

18.6. Upon termination of the Agreement, for whatever reason (i) the Employer shall promptly pay Mbrella all fees and other amounts earned by or due to Mbrella pursuant to the Agreement up to and including the date of termination, and (ii) all user rights granted to the Employer, Mobility Managers and Qualifying Employees pursuant to the Agreement, including the right to use the Platform and/or Services shall automatically terminate; (iii) the Employer, Mobility Managers and Qualifying Employees shall, at Mbrella’s sole discretion, return or delete (at Mbrella’s sole discretion and certify such deletion) all Mbrella IPR (including the Platform and Documentation) in its possession or under its control (including any copies thereof); and (iv) each Party shall return or delete (at the owner’s discretion and certify such deletion) the other Party’s Confidential Information in its possession or under its control. Points (iii) and (iv) shall not apply to the extent retention is required to comply with any applicable legal or accounting record keeping requirements.

18.7. The provisions of the Agreement that are expressly or implicitly intended to survive termination shall survive any expiration or termination of the Agreement.

‍Article 19: Miscellaneous‍
19.1. Entire Agreement and general terms and conditions

‍The Agreement forms the entire agreement between the Parties relating to the subject matter hereof and supersedes all prior communications, written or oral, between the Parties. 

19.2. Notices 

‍Any notice in connection with this Agreement must be in writing and shall be validly given with respect to each Party if sent by registered mail or by an internationally recognized courier company, shall be effective upon receipt and shall be deemed to have been received upon delivery (if by hand) (or on the first business day following the date of sending (mentioned on the receipt) if sent by registered mail).

19.3. Severability

‍If one or several provisions of the Agreement shall (in whole or in part) be held to be void, illegal, or unenforceable, this nullity, illegality or unenforceability shall not affect the validity, the legality or the enforceability of the other provisions (or remaining portion thereof). Each Party shall negotiate diligently and in good faith a valid provision replacing the void, illegal or unenforceable provision.
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19.4. Waiver

‍The default or the delay of a Party to avail itself of a right or a faculty given by the Agreement or a breach of the other Party cannot, in any case, be considered as or have the effect of a definitive waiver of that Party to avail itself of that right or that breach subsequently. Any obligation under the Agreement may be waived only by a written document signed by the Party entitled to the benefits of such provision. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or conditions, whether or not similar.

19.5. Assignment

‍The Employer, Mobility Managers and the Qualifying Employees may not assign or transfer any rights and/or obligations under the Agreement to any third party.

19.6. Applicable law and disputes

‍The Agreement shall be governed by and construed in accordance with the laws of Belgium, without giving effect to any laws of conflict.Every dispute related to the conclusion, the validity, the interpretation or the performance of the Agreement, or of contracts or subsequent transactions that might result from it, as well as any other dispute concerning, or related to, the Agreement, with no exception, will be submitted to the exclusive jurisdiction of the courts of Brussels.
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