Terms and Conditions

1. Services and Statement of Work

1.1 Gladiator Media BVBA, with registered office at Keizerstraat 2H, 9112 Sinaai and registered at the Crossroads Bank for Enterprises under company number BE 0504 965 073 (“Gladiator”) shall provide professional services to the Customer, and the Customer shall receive and pay for such professional services as described in the Order, which is incorporated into these Terms as if fully set forth herein (the “Services”), and outlined in a statement of work, price quotation, or other written document mutually signed by the parties describing the tasks or services to be provided (each an “Order). The cost for Services under each Order shall be specified in the applicable Order or a quote from Gladiator. 

1.2 The Order and these Terms form the entire agreement between the parties (the “Agreement”), superseding all prior or contemporaneous understandings, agreements, negotiations, representations, warranties, and communications, both written and oral. No terms and conditions specified or preprinted on the Customer’s purchase order or other document shall add to or modify the Order or the Terms. Such terms and conditions do not affect either party’s responsibilities to the other party as outlined herein. In case of any conflict between these Terms and an Order, these Terms shall govern unless the Order explicitly states that the terms and conditions of the Order shall control.

1.3 The provision of Services to the Customer does not constitute acceptance of any of the Customer’s terms and conditions and does not serve to modify or amend these Terms or any Order.

1.4 Changes in scope – Change control.  Either Party may request changes to an Order or the Services by submitting a written request form to the other Party in a form to be agreed between the Parties. The Parties shall cooperate and negotiate in good faith to reach agreement on the specifics of the requested change, including the scope and nature of the requested change, the impact on the Services the related fees and the time period in which such change will be implemented. The Customer will respond within (ten) 10 business days of receipt of a quote from Gladiator. Neither Party shall be bound by a requested change request until approved in writing by both Parties. 

1.5 Cooperation Customer. Customer acknowledges that Gladiator’s ability to fulfill its obligations in relation to the performance of the Services is dependent upon Customer’s timely cooperation with Gladiator as well as the accuracy and completeness of any information and data that the Customer provides to Gladiator. Customer acknowledges and agrees that in the event of any changes to the scope of the Services, or should any agreed assumptions prove incorrect or should any Customer dependencies not be met, the Fees and timeline for delivery of the Services as specified in this Agreement may be impacted.

 

2 Fees

2.1 Fees. For all Services performed by Gladiator, Customer will pay Gladiator the fees that are contemplated under the Order (the "Service Fees").

2.2 Taxes. The Service Fees exclude value added tax, sales tax, use tax, service tax, all other duties and/or taxes or other similar charges imposed on Gladiator or Customer by any tax authority (other than taxes imposed on Gladiator’s income) which shall be charged separately by Gladiator and paid by Customer. All such charges, duties and/or taxes shall be identified in the invoice as a separate item.

2.3 Expenses. Customer agrees to pay for reasonable out-of-pocket costs and expenses incurred in performing services, provided that Gladiator has: (i) obtained Customer's prior written consent; and (ii) submitted supporting documentation of such expenses.

2.4 Invoices – Payment Terms. For time and material engagements, Gladiator will invoice Customer monthly for services performed by Gladiator and expenses incurred. Unless otherwise agreed in writing, Gladiator will invoice the fees prior to start of the Services. Invoices are payable in euro within 30 days from the invoice date. If Customer fails to pay any sums when due, Gladiator shall be entitled to interest on the amount due compounded daily at the rate of 1,5% per month calculated from date due and shall also be entitled to recover all costs including reasonable expenses, legal fees and cost of collection. Without prejudice to any other rights or remedies Gladiator may have, in the event Customer fails to pay any undisputed amount within fourteen (14) days of the due date for payment, Gladiator may suspend performance of its obligations under this Agreement without incurring any liability whatsoever until such payment is made.

2.5 Disputes of Invoices. In the event Customer disputes any portion of an invoice, the Customer shall notify Gladiator of such disputed amount and the basis for Customer’s dispute within fifteen days from the invoice date (failure of which shall result in the invoice being deemed accepted by Customer), together with any appropriate information supporting Customer’s position, and the undisputed portion shall be paid as provided herein. Without prejudice to any other rights or remedies Gladiator may have, in the event Customer fails to pay any undisputed amount within fourteen (14) days of the due date for payment, Gladiator may suspend performance of its obligations under this Agreement without incurring any liability whatsoever until such payment is made.

 

3. Intellectual Property Rights

3.1 Pre-existing IP. All copyright and other intellectual property rights existing prior to the Effective Date (“Pre-existing IP”) shall vest in their originator absolutely. Gladiator Pre-existing IP shall include the proprietary tools, methodologies, materials, know-how, processes, technologies, modules, components, programs, analysis, frameworks developed or used by Gladiator prior to the Effective Date or developed independently from this Agreement, including enhancements and improvements to the aforementioned tools and materials which Gladiator develops in the course of performing the Services. Customer warrants that it is able to grant to, and hereby grants Gladiator for the term of this Agreement a non-exclusive, world-wide, royalty-free license to use Customer’s Pre-existing IP, without limitation, any third party intellectual property rights) to the extent necessary for Gladiator to perform its obligations under this Agreement. Customer shall indemnify Gladiator and keep Gladiator at all times fully and effectively indemnified against any breach of this Section 3.1.

3.2 Generic IP. Gladiator shall own all generic or non-Customer specific intellectual property rights created, prepared, produced or developed by Gladiator under or in connection with the Services provided pursuant to this Agreement, (including, without limitation, all right, title and interest in any ideas, concepts, know-how, techniques, code, materials, designs, methods, systems, software, programming, documentation and other deliverable and derivative works of the deliverables (on whatever media) (“Generic IPR”). Subject to timely payment of the Fees, Customer shall be granted a personal, restricted, non-exclusive, non-assignable, non-transferable license, without the right to sublicense, to use the Generic IPR for its internal business purposes. 

3.3 Deliverables. Subject to timely payment of the Fees, Gladiator assigns all intellectual property rights created, prepared, produced or developed by Gladiator specifically for the Customer under or in connection with the Services provided pursuant to this Agreement (and, for the avoidance of doubt excluding any Generic IP or Pre-existing IP) (the “Deliverables”). To the extent Deliverables contain any Gladiator Pre-Existing IP or Generic IP, Customer shall be granted a personal, restricted, non-exclusive, non-transferable, non-assignable license, without the right to sublicense, to use such Gladiator Pre-Existing IP or Generic IP to the extent necessary to be able to use the Deliverables and provided such Gladiator Pre-Existing IP and Generic IP at all times remains embedded in the Deliverables. 

3.4 In the event that, notwithstanding the prohibition herein, Customer or any employee or agent of Customer modifies, improves or creates derivative works of the Deliverables Gladiator shall own all right, title and interest in and to such derivative works of the Deliverables and Customer hereby agrees to assign and hereby assigns – at no cost - to Gladiator any rights in such derivative works of the Services to Gladiator and agrees to secure any additional confirmations, assignments or other instruments as may be necessary to vest title to any such derivative works of the Services in Gladiator as contemplated by this Section.

3.5 Gladiator shall be free to use the ideas, concepts, methodologies, processes and know-how developed or created by Gladiator in the course of performing the Services.

 

4. Warranties

4.1 Gladiator shall fulfill its obligations in relation to the performance of the Services using reasonable care and skill and in accordance with good industry practice.

4.2 Save as expressly provided in this Section 4, all other conditions, warranties, terms, undertakings and representations of any kind whatsoever, express or implied, whether by statute, common law or otherwise, in respect of the Services are hereby excluded by Gladiator to the fullest extent permitted by law and Gladiator shall have no other obligation, duty or liability whatsoever in contract, tort, statute or otherwise to Customer.

 

Confidentiality

5.1 Each party shall protect against any unauthorized disclosure of the information and data of the other party (or its agents or subcontractors) which is indicated to be confidential or proprietary or which by its nature is confidential or proprietary (“Confidential Information”) by using the same degree of care as it takes to preserve and protect its own confidential information but in no event shall this be less than a reasonable degree of care.

5.2 The receiving party agrees that disclosure and receipt of the Confidential Information shall oblige the receiving party not to use (and to procure that its employees, agents, representatives and any other third parties do not use) the Confidential Information except to perform its obligations hereunder.

5.3 A receiving party shall not be required to treat as confidential any information which is already in its possession, which becomes publicly available other than as a result of any breach of this Agreement by the receiving party, which is independently developed by it, or which is lawfully obtained from any third party without restriction on disclosure. Nothing in this Section shall prevent a party from disclosing confidential information where ordered to do so by a court or a statutory or regulatory body with power to order such disclosure.

 

6. Term and Termination

6.1 This Agreement shall commence as of the Effective Date and shall continue for an undefined term.

6.2 Notwithstanding anything herein to the contrary, either Party may terminate this Agreement upon thirty (30) days written notice. Customer agrees to pay Gladiator Services performed up to the effective date of termination, at the agreed upon rates set forth in the applicable Order. Notice of termination of any Order shall not be considered notice of termination of this Agreement unless specifically stated in the notice.

6.3 Without prejudice to any other rights or remedies which either Party may have against the other for the breach or non-performance of any of the terms of this Agreement, the whole or any part of this Agreement may be terminated by either party forthwith on notice in writing to the other party: (i) if the other party commits a material breach of this Agreement which either cannot be remedied or is not remedied within thirty (30) days after written notice requiring that it be remedied; or (ii) if the other party enters into liquidation, receivership, bankruptcy or other insolvency procedure, whether compulsorily or voluntarily, or the Party is unable to pay its debts within the meaning of the applicable laws of the jurisdiction other than for the purposes of reconstruction or amalgamation.

6.4 Upon termination of this Agreement Customer shall return to Gladiator all information and property (and all copies thereof) on any media belonging to Gladiator or received from any third party by Gladiator which is in Customer’s possession or under its control and shall confirm in writing to Gladiator that it has complied in all respects with this Section 6.4.

 

7. Limitation of Liability

7.1 Subject to Section 7.2 and 7.3 below, the aggregate liability of Gladiator to Customer arising out of any act, omission, event or circumstance or series of acts, omissions, events or circumstances relating to this Agreement or with respect to the matters contemplated herein shall in no circumstances exceed an amount equal to 100% of the Service Fees (excl. taxes and expenses) paid to Gladiator under an Order.

7.2 Nothwithstanding anything to the contrary set out in the Agreement, Gladiator shall not be liable towards the Customer for any indirect, consequential, punitive, or special damages arising pursuant to this Agreement, including loss of revenue or profits, loss of business, contracts, goodwill or anticipated savings, damages due to business interruption, loss o corruption of data or reputational damage.

7.3 Nothing in this Agreement shall operate to exclude or restrict a Party’s liability for: (i) death or personal injury resulting from its negligence; or (iii) any other liability to the extent prevented from being excluded by applicable law.

 

8. General

8.1 Subcontracting. Gladiator shall be entitled to subcontract delivery of the Services to its affiliates and to individual consultants engaged by Gladiator pursuant to a professional services agreement, without having to obtain the Customer’s prior consent.

8.2 Amendment. This Agreement may be amended or modified only by written agreement of a duly authorized representative of both Parties

8.3 Waiver, Survival. Any failure to enforce any provision of the Agreement shall not constitute a waiver thereof or of any other provision. The provisions of this Agreement which are expressly or implicitly intended to survive termination of the Agreement, including Sections 3, 4, 5, 7 where relevant, shall survive any termination or expiration of this Agreement.

8.4 Governing Law and jurisdiction. This Agreement shall be exclusively governed by and construed in accordance with the laws of Belgium without regard to its conflict of law principles. Any dispute arising hereunder which cannot be amicably settled between the Parties within a reasonable period from the dispute arising, shall be submitted to the exclusive jurisdiction of the courts of Ghent (section Dendermonde).