Rambla Customer Agreement

Updated March 1, 2015

This Rambla Customer Agreement (“Agreement”) is a binding agreement between Rambla BVBA, De Winterstraat 26 Antwerpen Belgium (“Rambla”) and you and, if applicable, the company or other legal entity you represent (collectively, “You” or the “Customer”). This agreement incorporates by reference (1) THE PRIVACY NOTICE (“PRIVACY NOTICE”), (2) THE TERMS OF USE (“TERMS OF USE”) AND (3) THE ACCEPTABLE USE POLICY (“AUP”) which are all available on the Rambla website.

 

By signing an order (“Order”) from Rambla, or by accepting any modification to this Agreement in accordance with section 2 below, you agree to be bound by the terms and conditions of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the legal authority to bind the legal entity to this agreement, in which case “You” shall mean such entity. If you do not have such authority, or if you do not agree with the terms and conditions of this agreement, you may not use the Services.

1. The Rambla Services

Covered by this agreement are all services supplied by Rambla to the Customer, which include, but are not limited to, the Rambla CDN Service, the Rambla Live Service, the Rambla Web Services and Applications, the Rambla Control Panel, the Rambla Media Solutions and any related service developed on Customer’s request or otherwise (referred to collectively in this Agreement as the “Services”).

1.1 CDN Service

Rambla operates a network of interconnected web-servers, together forming a Content Delivery Network (“CDN”) which provides the Customer with content delivery and web hosting services including file upload via FTP, file download via HTTP, on-demand streaming and storage of digital content.

1.2 Live Service

The Rambla Live Service allows the Customer to broadcast live-content, with the intention of this content being streamed over the internet. Depending on the Customer’s needs, the Live Service may include additional hardware components, software components, project management components, custom development components and/or support components.

1.3 Web Services and Applications

Rambla may provide the Customer with access to a number of web services and applications, and related support. These include, but are not limited to: * Rambla Storage Service (“RASS”) * Rambla Transcoding Service (“RATS”) * Rambla Monitoring Service (“RAMS”) * Rambla Stream Enabler (“RASE”)

1.4 Rambla Control Panel

The Rambla Control Panel (“RACP”) is a web application that allows the Customer to easily use the Rambla Services, as well as providing additional information about the Customer’s use of the Rambla Services, including order and billing information.

1.5 Rambla Media Solutions

These are custom services rendered to a Customer in order to facilitate the management, distribution and accessibility of media content, live or otherwise. The solution may include a hardware component, a software component, a project management component, a custom development component and/or a support component.

2. Modifications to this Agreement

Rambla reserves the right, at Rambla’s discretion, to change, modify, add, or remove portions of these Terms or other terms referenced in this Agreement (collectively, “Additional Policies”) at any time by posting a revised version of the Agreement or such Additional Policy on the Rambla Website. It is your responsibility to check these Terms and any Additional Policies periodically for changes. Your continued use of the Rambla Services after the posting of changes constitutes your binding acceptance of such changes. The revised terms shall be effective upon posting, except for Terms with regard to an existing Service which shall be effective upon fifteen (15) days after posting (unless expressly stated otherwise at the time of posting).

3. Term

After the Agreement has been accepted by the Customer, Rambla will generate an email message to the Customer announcing the activation of the Customer’s account (“Activation Email”). The term of the Agreement (“Term”) shall begin at the time this email message is being generated or at the time the Customer starts using the Services, whichever comes first. The Agreement will remain in effect until terminated by You or Rambla in accordance with Section 8.

4. Accounts

4.1 Account Activation

Through the online registration process that leads up to the Agreement, or in any other explicit communication to Rambla, the Customer will provide Rambla with the Customer’s email address (“Customer Email Address”) to which the Activation Email and all subsequent emails concerning the Agreement will be sent.

By starting to use any of the Services, you acknowledge that you are the Primary Customer Contact for this Agreement and that Rambla can use the Customer Email Address to contact the Customer. You agree that Rambla may send information with regard to the Agreement and the Customer’s account to the Customer Email Address and can rely on the instructions of the person listed as the Primary Customer Contact with regard to the Customer’s account, until Customer has provided a written notice changing the Primary Customer Contract or the Customer Email Address.

The Activation Email will contain two sets of credentials for use by the Customer.

4.2 Customer Account

The first set of credentials provides access to the “Customer Account”. They can be used to login to the Rambla Control Panel in order to get access to the order, billing and payment information. They can also be used to create additional “User Accounts”, or to modify or disable existing “User Accounts”. You are responsible for providing Rambla with changes to billing information (such as credit card expiration, change in billing address), which can be done through the Rambla Control Panel, using your Customer Account credentials.

4.3 User Account(s)

The second set of credentials provides access to the initial “User Account”. These credentials provide access to some or all of the Services, except where the credentials of the Customer Account are needed.

4.4. Account Responsabilities

You are fully responsible for all activities that occur under both your Customer Account and any of your User Accounts (collectively your “Accounts”), regardless of whether such activities are undertaken by you or a third party. Therefore, you should contact us immediately if you believe a third party may be using your account credentials, or if your credentials are compromised or stolen. You are responsible for maintaining up-to-date and accurate information (including contact information) for your Accounts. We are not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of Your Content or other data which you submit or use in connection with your Accounts or the Services.

4.5. Free Demo Account

By default, free demo accounts are valid for a one month period and are limited to a total of 20 GB of accumulated traffic. They may only be used for testing purposes. Rambla reserves the right to cancel a free demo account at any time, without prior notice and without giving reasons. Cancellation includes the deletion of all files uploaded to the demo account. The holder of a free demo account is therefore solely responsible for all backups.

5. Payments

5.1. Fees

In consideration of your use of any of the Services, you agree to pay applicable fees in the amounts set forth on the respective Service detail pages on the Rambla Website (including any minimum subscription fees). Fees for any new Service or new Service feature will be effective upon posting by us on the Rambla Website for the applicable Service. We may increase or add new fees for any existing Service or Service feature, or implement fees for any previously free service or free service feature, by giving you 30 days’ advance notice. Such notice will be posted on the Rambla Website on the pricing page. You agree that you are responsible for checking the Rambla Website each month to confirm whether there are any new fees and their effective date(s).

5.2. Payment

Unless otherwise agreed in the Order, your billing cycle will be monthly, beginning on the first day of the month of the Agreement. Fees concerning the use of the Services are payable the first day after the billing cycle is completed: the first day of the next month. The Customer authorizes Rambla to bill all fees to the credit/debit card on the first day after each billing cycle during the Term of this Agreement; otherwise Rambla will invoice the Customer via electronic mail to the Primary Customer Contact listed on the Order. Invoices may be issued on the first day after each billing cycle, or at a time specified in the Order.

All fees payable by you are exclusive of applicable taxes and duties, including, without limitation, VAT and applicable sales tax. You will provide such information to us as reasonably required to determine whether we are obligated to collect VAT from you, including without limitation your VAT identification number. All amounts payable by you under this Agreement will be made without setoff or counterclaim and without deduction or withholding.

Payments are due 10 business days after the invoice date. Payments after this term shall automatically and without notice of default yield an interest of 10%, as well as (also automatically and without notice of default) fixed damages of 10% on the invoice amount (with a minimum of EUR 25).

If the Customer still does not pay the claim after a written demand or notice of default, Rambla can pass on the claim for collection, in which case the Customer shall, in addition to the total amount owed then, be obliged to pay for all in-court and out-of-court expenses, including expenses charged by external experts in addition to the costs determined at law. The Customer shall also owe the expenses incurred by Rambla in regard to unsuccessful mediation if the Customer is ordered by a judgment to pay the outstanding amount in full or in part.

5.3. Pre-payment

Rambla may permit you to make pre-payments for a future period of maximum one (1) year. After each billing cycle, the pre-payment will be debited with the amount that is payable by you, until the pre-payment has been exhausted or expired, in which case the remainder of the fees will be charged to you in accordance with section 5.2. If a pre-payment has not been exhausted after a period of one (1) year, it will automatically expire. In case of expiration, the part of the pre-payment that has not been exhausted is considered to be null and void, without any obligation for Rambla to pay back this part or deduct it from your fees.

6. Authorization and License to Use the Services

Subject to your acceptance of and compliance with this Agreement and with the payment requirements for the Services set forth on the applicable Service detail page on the Rambla Website (as such payment terms may be updated from time to time), we hereby grant you a limited, non-exclusive, non-transferable, non-sublicenseable right and license, in and under our intellectual property rights, to access and use the Services, solely in accordance with the terms and conditions of this Agreement.

6.1. Permitted Uses Generally.

* You may enable access and use of Your Content by your end users in accordance with the terms of this Agreement. “Your Content” means any data or other content that you may (a) provide to us pursuant to this Agreement, (b) make available to any end users in conjunction with the Services, or (c) develop, or use in connection with the Services. You are responsible for all terms and conditions applicable to Your Content. * You may write or develop software, web sites, or other online services or technology (collectively “Applications”) that interface with, the Services. You acknowledge that we may change, deprecate or republish APIs (as defined in Section 9.1 below) for any Service or feature of a Service from time to time, and that it is your responsibility to ensure that calls you make to any Service are compatible with then-current APIs for the Service. You further acknowledge that we may change or remove features or functionality of the Services at any time. * You may make network calls or requests to the Services at any time that the Services are available, provided that, unless otherwise set forth in the Service Terms applicable to any Service, you (or if you build and release an Application, each installed copy of your Application) may not exceed the maximum file size or maximum calls per second limit (if any) set forth in the Service Terms for any particular Service.

6.2. Restricted Uses Generally.

* You may not interfere or attempt to interfere in any manner with the functionality or proper working of the Services. * You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of any part of the Services. * Subject to the terms and conditions of this Agreement, you may generally publicize your use of the Services; however, you may not issue any press release with respect to the Services or this Agreement without our prior written consent.

7. Acceptable Use Policy and Service Term

You may only use the Services in accordance with the AUP and the applicable Service Terms.

8. Termination and/or Suspension

You may terminate this Terms of Use at any time by discontinuing use of any and all parts of the Rambla Services and providing us written notice of termination in accordance with Section 15.

We may suspend your right and license to use any or all Services or terminate this Agreement in its entirety (and, accordingly, cease providing all Services to you), for any reason or for no reason, at our discretion at any time by providing you thirty (30) days’ advance notice in accordance with the notice provisions set forth in Section 15 below.

8.1. Cause

We may suspend your right and license to use any individual Service or any set of Services, or terminate this Agreement in its entirety (and, accordingly, your right to use all Services), for cause effective as set forth below:

8.1.1

Immediately upon our notice to you in accordance with the notice provisions set forth in Section 15 below if: (i) you attempt a denial of service attack on any of the Services; (ii) you seek to hack or break any security mechanism on any of the Services or we otherwise determine that your use of the Services or the Rambla Properties poses a security or service risk to us, to any user of services offered by us, to any third party sellers on any of our websites, or to any of our or their respective customers or may subject us or any third party to liability, damages or danger; (iii) you otherwise use the Services in a way that disrupts or threatens the Services; (iv) you are in default of your payment obligations hereunder and there is an unusual spike or increase in your use of the Services; (v) we determine, in our sole discretion, there is evidence of fraud with respect to your account; (vi) you use any of the Rambla Content (as defined in Section 6.1) or Marks (as defined in Section 6.2) other than as expressly permitted herein; (vii) we receive notice or we otherwise determine, in our sole discretion, that you may be using our Services for any illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party; (viii) we determine, in our sole discretion, that our provision of any of the Services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (ix) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets, failure to continue your business, assignment for the benefit of creditors, or if you become the subject of a voluntary or involuntary bankruptcy or similar proceeding.

8.1.2

Fifteen (15) days following our provision of notice to you in accordance with the notice provisions set forth in Section 15 below if you are in default of any payment obligation with respect to any of the Services or if any payment mechanism you have provided to us is invalid or charges are refused for such payment mechanism, and you fail to cure such payment obligation default or correct such payment mechanism problem within such 15 day period.

8.1.3

Five (5) days following our provision of notice to you in accordance with the notice provisions set forth in Section 15 below if you breach any other provision of this Agreement and fail, as determined by us, in our sole discretion, to cure such breach within such 5 day period.

8.2. Suspension and Termination Effects.

Upon our suspension of your use of any Services, in whole or in part, for any reason, (i) fees will continue to accrue for any Services that are still in use by you, notwithstanding the suspension (including your continued storage of data on the Rambla CDN during the period of suspension); (ii) you remain liable for all fees, charges and any other obligations you have incurred through the date of suspension with respect to the Services; and (iii) all of your rights with respect to the applicable Services shall be terminated during the period of the suspension.

Upon termination of this Agreement for any reason: (i) you remain liable for all fees, charges and any other obligations you have incurred through the date of termination with respect to the Services; (ii) all of your rights under this Agreement shall immediately terminate; and (iii) you shall immediately return, or if instructed by us, destroy all Rambla Confidential Information (as defined in Section 9 below) and any Rambla Properties then in your possession.

8.3. Survival.

In the event this Agreement is terminated for any reason, Sections 5 (with respect to payments that are accrued but unpaid at the time of termination), 6.2, 8.2, 8.3, 8.4 and 10 through 16 will survive any such termination.

8.4. Data Preservation.

8.4.1. In the Event of Suspension Other Than for Cause.

In the event of a suspension by us of your access to any Service for any reason other than a for cause suspension under Section 8.1.1, during the period of suspension, (i) we will not take any action to intentionally erase any of your data stored on the Services and (ii) applicable Service data storage charges will continue to accrue.

8.4.2 In the Event of Termination Other Than for Cause.

In the event of any termination by us of any Service or any set of Services, or termination of this Agreement in its entirety, other than a for cause termination under Section 3.4.1, (i) we will not take any action to intentionally erase any of your data stored on the Services for a period of twenty (20) days after the effective date of termination; and (ii) your post termination retrieval of data stored on the Services will be conditioned on your payment of Service data storage charges for the period following termination, payment in full of any other amounts due us, and your compliance with terms and conditions we may establish with respect to such data retrieval.

8.4.3. In the Event of Other Suspension or Termination.

Except as provided in Sections 8.4.1 and 8.4.2 above, we shall have no obligation to continue to store your data during any period of suspension or termination or to permit you to retrieve the same.

9. Downtime and Security

In addition to our rights to terminate or suspend Services to you as described in Section 3 above, you acknowledge that: (i) your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions; and (ii) we shall also be entitled, without any liability to you, to suspend access to any portion or all of the Services at any time, on a Service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to you or to any of our other customers if the Service were not suspended; or (c) in the event that we determine that any Service is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Suspensions”). Without limitation to Section 11.5, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension. To the extent we are able, we will endeavor to provide you email notice of any Service Suspension in accordance with the notice provisions set forth in Section 15 below and to post updates on the Rambla Websites regarding resumption of Services following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so.

We strive to keep Your Content secure, but cannot guarantee that we will be successful at doing so, given the nature of the Internet. Accordingly, without limitation to Section 4.1 and 4.4 above and Section 11.5 below, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content and Applications. We will have no liability to you for any unauthorized access or use, corruption, deletion, destruction or loss of any of Your Content or Applications.

10. Proprietary rights

Other than the limited use and access rights and licenses expressly set forth in this Agreement, Rambla reserves all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist) or any other technology and software that we provide or use to provide the Services. You further acknowledge that the Services may contain information which is designated confidential by Rambla and that you shall not disclose such information without Rambla’s prior written consent.

Unless you have agreed otherwise in writing with Rambla, nothing in the Terms gives you a right to use any of Rambla’s trade names, trade marks, service marks, logos, domain names, and other distinctive brand features.

Rambla acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content that you submit, post, transmit or display on, or through, the Services, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Rambla, you agree that you are responsible for protecting and enforcing those rights and that Rambla has no obligation to do so on your behalf.

You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Services.

In the event you elect, in connection with any of the Services, to communicate to us suggestions for improvements to the Services (“Feedback”), we shall own all right, title, and interest in and to the same, even if you have designated the Feedback as confidential, and we shall be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to us and agree to provide us such assistance as we may require to document, perfect, and maintain our rights to the Feedback.

During and after the term of the Agreement, with respect to any of the Services that you elect to use, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our customers, end users, vendors, business partners (including third party sellers on websites operated by or on behalf of us), licensors, sublicensees or transferees, any patent infringement or other intellectual property infringement claim with respect to such Services.

11. Representations and Warranties; Disclaimers; Limitation of Liability

11.1 Representations and Warranties

You represent and warrant that you will not use the Services and/or your Application and Your Content: (i) in a manner that infringes, violates or misappropriates any rights of us or any third party; (ii) to engage in spamming or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations; (iii) in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms or other data that is subject to export laws; and/or (iv) in a way that is otherwise illegal or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.

You represent and warrant: (i) that you are solely responsible for the development, operation, and maintenance of Your Content, including without limitation, the accuracy, security, appropriateness and completeness of Your Content and all product-related materials and descriptions; (ii) that you have the necessary rights and licenses, consents, permissions, waivers and releases to use and display Your Content; (iii) that Your Content (a) does not violate, misappropriates or infringes any rights of us or any third party, (b) does not constitutes defamation, invasion of privacy or publicity, or otherwise violates any rights of any third party, or (c) is not designed for use in any illegal activity or to promote illegal activities, including, without limitation, use in a manner that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (iv) that Your Content does not contain any unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code (collectively “Harmful Components”); and (v) to the extent to which you use any of the Marks, that you will conduct your business in a professional manner and in a way that reflects favorably on the goodwill and reputation of Rambla.

You represent and warrant that you will not use, and will not authorize any third party to use, any Public Software in connection with the Services in any manner that requires, pursuant to the license applicable to such Public Software, that any Rambla Services be (a) disclosed or distributed in source code form, (b) made available free of charge to recipients, or (c) modifiable without restriction by recipients. With respect to any Feedback, you represent and warrant that such Feedback, in whole or in part, contributed by or through you, (i) contains no third party software or any software that may be considered Public Software and (ii) does not violate, misappropriate or infringe any intellectual property rights of any third party. “Public Software” means any software, documentation or other material that contains, or is derived (in whole or in part) from, any software, documentation or other material that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models, including, but not limited to software, documentation or other material licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (i) GNU’s General Public License (GPL), Lesser/Library GPL (LGPL), or Free Documentation License, (ii) The Artistic License (e.g., PERL), (iii) the Mozilla Public License, (iv) the Netscape Public License, (v) the Sun Community Source License (SCSL), (vi) the Sun Industry Standards License (SISL), (vii) the BSD License and (viii) the Apache License.

You represent and warrant that: (i) the information you provide in connection with your registration for the Services is accurate and complete; (ii) if you are registering for the Services as an individual, that you are at least 18 years of age and have the legal capacity to enter into this Agreement; and (iii) if you are registering for the Services as an entity or organization, (a) you are duly authorized to do business in the country or countries where you operate, (b) the individual clicking “Accept” on this Agreement and completing the registration for the Services meets the requirements of subsection (ii) above and is an authorized representative of your entity, and (c) your employees, officers, representatives and other agents accessing the Services are duly authorized to access the Services and to legally bind you to this Agreement and all transactions conducted under your account.

11.2. Disclaimers

THE RAMBLA SERVICES AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY US OR OUR LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS”. WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. WE AND OUR LICENSORS DO NOT WARRANT THAT THE SERVICE OFFERINGS WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE DATA YOU STORE WITHIN THE SERVICE OFFERINGS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. WE AND OUR LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS, INCLUDING THOSE THAT AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY PAYMENT SERVICES. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

11.3 Limitation of Liability

NEITHER WE NOR ANY OF OUR LICENSORS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER FOR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

12. Indemnity

You agree to indemnify, defend and hold us, our affiliates and licensors, each of our and their business partners (including third party sellers on websites operated by or on behalf of us) and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys fees), arising out of or in connection with any claim arising out of (i) your use of the Services and/or Rambla Properties in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, Additional Policies, and/or applicable law, (ii) Your Content, or the combination of either with other applications, content or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion and/or marketing of Your Content, (iii) your violation of any term or condition of this Agreement or any applicable Additional Policies, including without limitation, your representations and warranties, or (iv) you or your employees’ or personnel’s negligence or willful misconduct.

13. Confidentiality

You shall not disclose Rambla Confidential Information during the Term or at any time during the three (3) year period following the end of the Term. As used in this Agreement, “Rambla Confidential Information” means all nonpublic information disclosed by us, our business partners or our or their respective agents or contractors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Rambla Confidential Information includes, without limitation, (i) nonpublic information relating to our or our business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs (including, but not limited to, any information about or involving one of our so-called beta tests or a beta test product that you obtain as a result of your participation in such beta test), (ii) third-party information that we are obligated to keep confidential, and (iii) the nature, content and existence of any discussions or negotiations between you and us. Confidential Information does not include any information described in Section 9.2 or any information that you are required to disclose by law.

Notwithstanding any other provision in this Agreement, you shall not have any confidentiality obligation to us under Section 9.1 above, with respect to any information provided or made available by us hereunder, and we shall not have any confidentiality or non-use obligation to you hereunder with respect to any information, software application, data or content provided or made available by you hereunder that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the receiving party.

If you and we are parties to a separate non-disclosure agreement (“Stand-Alone NDA”) and there is a conflict between the terms of the Stand-Alone NDA and the terms of this Section 9, the terms of the Stand-Alone NDA shall control.

14. Disputes

This Agreement shall be governed by and construed in accordance with the Belgian laws without regard to conflict of law principles thereof. The exclusive forum for any disputes arising out of or related to this Agreement shall be the Antwerpen Courts. YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE AND OUR SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

15. Notices

15.1. To You.

Except as otherwise set forth herein, notices made by us to you under this Agreement that affect our customers generally (e.g., notices of updated fees, etc.) will be posted on the Rambla Website. Notices made by us under this Agreement for you or your account specifically (e.g., notices of breach and/or suspension) will be provided to you via the Customer Email Address. It is your responsibility to keep your email address current and you will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not you actually receive the email.

15.2. To Us.

For notices made by you to us under this Agreement and for questions regarding this Agreement or the Services, you may contact Rambla as follows: info@rambla.be and/or RAMBLA bvba De Winterstraat 26 2140 Antwerpen

15.3. Language.

All communications and notices to be made or given pursuant to this Agreement shall be in the English or Dutch language.

16. Miscellaneous Provisions

16.1. Third Party Activities.

If you authorize, assist, encourage or facilitate another person or entity to take any action related to the subject matter of this Agreement, you shall be deemed to have taken the action yourself.

16.2. Severability.

If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.

16.3. Waivers.

The failure by us to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision thereafter. All waivers by us must be in writing to be effective.

16.4. Entire Agreement.

This Agreement incorporates by reference all policies and guidelines posted on the Rambla Website, including all Additional Policies, and constitutes the entire agreement between you and us regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between you and us, whether written or oral, regarding such subject matter.


 
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