a. Introductory provisions
1. Scope of application
These provisions apply to any agreement concluded between Emixis S.A., BE 0426.340.140, Av. Van Volxem, 79, B-1190 Brussels (hereinafter “Emixis” ) and its clients (hereinafter the “Client” or the “User” or the “Reseller”) in regard to the products and services provided by EMIXIS, as well as, in general, to all their business relationships. If applicable they are completed by special conditions.
These provisions can only be modified by expressed and written agreement of Emixis. They are deemed as agreed by the Client or User or Reseller at the time of each product order, ruling out Client’s or User’s or Reseller’s own general or special conditions. The latter only binding EMIXIS if they have been expressly agreed in writing by EMIXIS, therefore EMIXIS’s tacit agreement shall not be assumed in any case. Prior to his order, the client will gather all necessary advice and will ensure that the Software, Hardware and/or Service that he is planning to order correspond to his requirements and to the anticipated use. EMIXIS assumes no responsibility for any error of choice or assessment by the client and/or the suitability of the Software, Hardware and/or Services for the purposes required by the client.
According to the client’s order, the contract provisions cover granting a Software licence (b.), supplying the Hardware associated with granting said licences (c.) and/or Services provided by EMIXIS (d.). Parts (a.) and (e.) include the introductory and common provisions applicable in all cases. The titles and subdivision of these provisions are purely indicative.
For application of this document, the meaning of the following terms is understood as:
- Software: Emixis Software contains different elements (aidoo mobile, modis, track&trace, sync agent, Securysat, Admin Tool, Webservice, Firmeware and others) for which all rights, including the producer right, belong exclusively to EMIXIS, as well as other elements developed by third parties (e.g. mapping data).
- Publisher or Software Producer: EMIXIS and/or its beneficiary or beneficiaries.
- Reseller: the reseller or other indirect supplier of the Software and/or Hardware, as well as associated Services (e.g. installation, configuration).
- User: the user of Software’s who, by using it, confirms by default his acceptance of all provisions of this General Terms and Conditions of Sale.
- Client: a legal business or public entity which uses the Software, Hardware or Services of Emixis. Client can be a single User or an entity employing or contracting with multiple Users.
- Contract: the contract for (i) a Software licence, (ii) provision of Hardware and/or (iii) provision of Services.
- Working day: work days of the week, except Saturdays, Sundays and Belgian legal bank holidays.
- Hardware: the computer hardware, electrical or other hardware product purchased by the Client or User from EMIXIS as part of the Contract (e.g. GPS unit, Dallas Key reader, connectivity, etc.).
- Services: the miscellaneous and various services provided by EMIXIS, such as project consultancy, Software maintenance, training, remote support, etc.
Any order from the client is binding by default. The Client’s and Reseller’s representatives, commercial staff or intermediaries are assumed to irrefutably have the powers required to commit the Client and Reseller. Any order, for which the invoice is sent to a third party by the ordering party, makes the ordering party and the third party jointly and severally responsible for the execution of all the obligations herein.
Representatives, commercial staff, agents or intermediaries of Emixis have no authority to bind the latter at any time, except by written approval of a manager or director duly authorised to this effect, including the timing of Software, Hardware or Service delivery by Emixis. EMIXIS reserves the right to renounce an order that has not been the subject of proper approval, or to approve it at any time.
b. Software Licence
By using all or part of the Software, the client undertakes to respect the terms of the Contract. Unsealing the unwrapping an envelope containing any media and/or clicking on the “I accept” button when installing and/or downloading any Software, update, upgrade or addition, constitutes use of the Software. The Publisher grants the User, who accepts a licence or licences for use of the Software, according to the terms of the Contract and legal provisions in effect.
The Software is offered as part of a subscription package, apart from exceptions (e.g. sale) in which case these provisions apply mutatis mutandis. The fees associated with using the Software are due on a monthly, quarterly or annual basis. The subscription starts when the Reseller or EMIXIS provides License activation codes to either the Client or the User. The first invoice, containing License activation codes, will be sent to the Client or the Reseller before or after the codes are activated.
6. Property rights
Unless otherwise stipulated in the Contract, Emixis remains the owner of all property rights and/or rights of use in the fullest sense related to the Software and any existing copies, in particular those arising from copyright of the Software and sui generis right attributed to the database producer. Emixis only authorises the User to use the Software in accordance with the terms of the Contract. Any right that has not specifically been granted by this Contract is reserved by Emixis. However, the User is authorised (a) to make a copy of the Software exclusively for the purposes of backup and archiving or (b) transfer the Software onto a single medium, provided that the original is only kept for backup or archiving purposes. The client is prohibited from copying the Software’s manual(s), as well as the printed media that accompany the Software except for personal and limited use.
The Client or the User can be the owner of their data and the physical media where such data is stored, but has no property rights whatsoever to the Software.
7. Client’s exclusions and responsibilities
It is strictly prohibited for the Client or the User to sell, rent, loan the Software or make it available to third parties, in particular competitors of EMIXIS, in any way whatsoever (for example, electronically, through on-line services or by transmission on-line), for a fee or free of charge, whether for profit or not, and/or to be party to any such actions. Reverse engineering, disassembling, decompiling or any similar techniques are totally forbidden. In no case will EMIXIS and/or its suppliers be held responsible for any losses or damages caused by an act of reverse engineering, disassembling, decompiling or any similar technique.
8. Individual nature of the User licence
The User’s rights and obligations under this contract are not transferable.
9. Publisher/Reseller’s responsibilities
Neither Emixis, nor its Resellers, can be held responsible (whether this be on a contractual, negligence or other basis):
(i) for any impossibility to use third party equipment or access data, loss or corruption of data, loss of anticipated business, profits, turnover or savings, work interruption (whether these damages are direct or indirect);
(ii) for any indirect, incidental or consequential damage or loss, of any sort, arising from using or impossibility of using the Software, including in the cases where Emixis or Reseller have been advised of the possibility of such damages or losses.
Neither Emixis, nor his Resellers can be held responsible for installation of the Software.
10. Retention of data and respect of privacy
The data is retained on-line for a period of three months on Emixis’ servers, unless otherwise agreed in writing. The User is responsible for retaining its data in the longer term. The User is therefore requested to regularly back-up data using available reports.
The data generated by using the Software according to the Client’s instructions, temporarily stored by Emixis, is the Client’s exclusive property. The Client remains fully and solely responsible for such data, in particular in regard to the protection of privacy and any possible exploitation of the data generated.
11. Limited guarantee
Emixis does not guarantee error free operation of the Software. The Client and the User are advised that calculation errors may occur when using the Software, due to, for example, local conditions and/or incomplete data or data not taken into account. Any defect unknown to EMIXIS which could affect the software is not covered by the guarantee. The client undertakes to maintain the delivered Software at the best update level, the cost of acquiring new versions being at its expense except provision to the contrary.
Within the maximum limits authorised by the law in effect, the Publisher and its Resellers are offering the Software AS IS WITH ALL ITS DEFECTS and hereby decline any other express, implied or regulatory guarantee or condition, whether implicit or not, in particular and without limitation, (possible) implicit representations and/or guarantees, obligations or conditions of satisfactory quality, use for a particular purpose, reliability or availability, accuracy or exhaustiveness of responses, results, professional efforts, absence of viruses and absence of negligence for the Software, and the supply or absence of supply of support or other services, information, software and contents connected with the Software, of the results of use of the Software. The Software is not covered by any guarantee or condition of quiet enjoyment, quiet possession, and exclusivity in regard to the Client or of non-infringement.
12. Duration and end of the licence
Any licence is granted for duration of 1 or 2 years, as specified by in the conditions on the invoice. Each party can terminate the Contract at the end of this initial period by providing 3-months written notice sent by registered post. In the absence of advanced notice as specified herein at the end of the each contractual period, the Software licence with be renewed automatically for a further period of one year and successively for each year after. The Publisher has the right to terminate the Contract without any prior notice or court intervention, if the Client or the User performs activities which are is in violation of article 6, 7 and/or 8 above, without prejudice to the Publisher’s right to claim damages.
The right of use is terminated automatically as of date if expiry of the Licence. The Client or the User or the Reseller decline all rights to any compensation from the Publisher for termination of this Contract, for any reason whatsoever.
13. Final termination of use
Neither the User, nor the Client, nor the Reseller has the right to claim any compensation from the Publisher due to temporary or final termination of the use or license of the Software, for any reason whatsoever.
c. Supply of Hardware
14. Delivery of Hardware
EMIXIS is responsible only for delivery of the Hardware explicitly specified on the order confirmation or signed Contract.
Unless otherwise agreed in writing, delivery times are only given by way of indication. Delay in hardware delivery or service delivery does not give the User or the Client or the Reseller any right to cancellation of an order or right to any compensation whatsoever, except in case of voluntary breach by EMIXIS.
EMIXIS reserves the right to carry out partial deliveries, considering such as many partial sales. In no case will such partial delivery be able to justify refusal to pay by the Client, or the User, or the Reseller for the products delivered. When circumstances make the execution of the delivery impossible – in particular in all cases of force majeure such as strikes, lock-out, accident, bad weather, blockade, importation or exportation bans, suspension of production or delivery by the manufacturer, etc. -, EMIXIS reserves the right to deliver products equivalent to those stated in the order or to cancel its obligations to the Client, the User or the Reseller all without any compensation whatsoever. Unless otherwise agreed in writing, the expenses for delivery, pick-up and return of the Hardware installed are to be borne by the Client, the User or the Reseller. The Hardware is transported strictly at the risk of the Client or the Reseller, even if the good are sold franco (free delivery) or FOB.
Unless otherwise agreed in writing and in advance, goods sold must be picked up by the client no later than 14 days after they become available for delivery. Failure to pick up the goods within that period or within a period specifically agreed in writing by Emixis gives Emixis the right to either invoice, without further notice, the Client or the Reseller and demand full payment for the goods or consider the sale as cancelled automatically. In the first case, the Hardware will be stored for the account and risk of the Client or Reseller in Emixis’ warehouse and Emixis has the right to invoice the Client or the Reseller all additional storage and associated expenses. In the second case, the Client or the Reseller will pay Emixis fixed indemnity equal to 30% of the total amount as indicated on the Client’s or Reseller’s order to Emixis.
15. Payment Guarantee and Suspension of Delivery
Regardless of the payment terms agreed upon confirmation of order, Emixis reserves the right to claim from the Client or Reseller at any time, that is to say either before or during the delivery of Hardware, a bank warranty to ensure that the purchaser is able to fulfil its payment obligations. In case that the Client or the Reseller has not provided such warranty, Emixis, at its sole discretion, has the right to suspend any subsequent delivery. Similarly, a bank guarantee may be required for any orders and, as such, future deliveries may be suspended as long as the Client or the Reseller has not fulfilled its payment obligations relating to deliveries already made.
16. Acceptance of Hardware
If the delivered and/or installed Hardware is damaged or incomplete, in case of error or any other lack of compliance with the specifications as published by Emixis, the Client or the Reseller may refuse the Hardware or not accept it only by written notice. Any claim relating to the Hardware delivered must be sent to EMIXIS in writing within ten (10) working days following reception of the Hardware, the notice must include reasons for the claim and reference number of shipping document.
Once this time elapsed, the Hardware will be deemed as accepted by the Client or Reseller and no claims will be taken into consideration by Emixis. No return of products will be accepted without the prior written agreement of EMIXIS or the Reseller concerned. Only products in good condition can be returned or exchanged.
17. Installation of the Hardware
The physical installation of Hardware (e.g. in vehicles) is carried out by service providers independent of Emixis. All procedures and conditions of Hardware installations are to be agreed to and concluded directly between the independent service provider and the Client or the Reseller. Emixis declines any and all responsibilities associated with such services provided by independent service providers.
18. Hardware Guarantee and claims
The guarantee of Hardware sold is limited to that granted by Emixis, which is deemed to be well known by the Client or the Reseller. It is assumed that the Client and Reseller have full knowledge about the guarantee prior to concluding the Contract, and, if applicable, have full knowledge about the guarantee extension program available via special agreement.
Unless otherwise provided, any GPS unit is warranted for a period of one (1) year or two (2) years from its first installation, as specified on the invoice. Peripheral equipment (Dallas key reader, LCD, cables, etc.) is guaranteed for a period of six (6) months from the date of first installation. The warranty is limited in all cases to repair or outright exchange of defective products – the choice between repair or exchange is at the sole discretion of Emixis. The Hardware guarantee excludes any and all compensation or indemnity from Emixis to the Client, the Reseller or third parties, except in the case of wilful misconduct of Emixis. All labour, installation and travel costs related to interventions under warranty are included. Relative to peripheral equipment costs of labor, shipping, and in case of travel a fixed-price travel package will be billed to the Customer or the Reseller or for Products under guarantee.
The warranty does not cover the following cases:
(i) damage caused by accident , theft , vandalism , fire , lightning , frost , excessive cold, heat or humidity outside , dumping or the prolonged immobilization of equipment that does not correspond to its normal use,
(ii) the failure or malfunction of the hardware environment , software , telecom , electrical, etc. . ,
(iii) the equipment can be connected to the power supply of a vehicle, in such case the guarantee excludes changes made to the installation environment, such as power surges related to charging the battery of the vehicle, opening the case , the installation of additional equipment on the vehicle ( radio , CB, fridge , etc. . ), failure of a fuse, etc. ,
(iv) maintenance of equipment , normal wear and tear or replacement parts programmed by the manufacturer and related maintenance,
(v) the addition or connection of additional equipment or software not included in the Contract,
(vi) modification of products delivered ( e.g. opening the case ) made without the prior written consent of Emixis,
(vii) any damage resulting from use of energy, use or installation not in accordance with the manufacturer’s instructions,
(viii) an intentional act or negligence of the user or a third party ( e.g. a staff member of client ),
(ix) failure related to the result of a virus or any other device pre-programmed with a similar effect,
(x) Emixis assumes no responsibility whatsoever for malfunctioning of GPS, GSM, GPRS or Internet or other networks, they are not the responsibility of Emixis.
In case when an anomaly or defect is identified but such cannot be confirmed by Emixis as manufacturing or material malfunction under warranty or when the support intervention occurs out of warranty, the full costs of intervention will be charged to the Client or Reseller.
The granting of guarantee assumes that the Hardware is used in good faith, under the terms of the offer or the normal conditions of use mentioned in catalogues, manuals, and other Emixis published materials, etc., which are available to the client. In case of doubt, it is the Client’s or the User’s or the Reseller’s responsibility to prove that the equipment has been used in good faith to activate the warranty. Ipso facto void the warranty in case of any modification of Hardware or dependent items any time during or after the initial installation, by any person not authorized by Emixis.
19. Limitation of Liability
EMIXIS declines any responsibility whatsoever for accessory damage associated with installation and use of the Hardware (battery discharges, electrical interference, etc.). The SIM card cannot be removed from the GPS unit and cannot be used in a terminal and/or a service other than those supplied by EMIXIS, specific penalties will apply to particular rates and flat-rates.
20. Retention of title
Any Hardware delivered remains the property of EMIXIS until the total payment due, including transportation and interest, is received by Emixis. Until the above mentioned payment has not occurred in total, the Client and the Reseller are expressly prohibited from disposing of the Hardware delivered, and in particular from transferring its ownership, using it as collateral or allocating it to a security or lien of any sort. Insofar as required, the preceding clause is deemed to be reiterated prior to each delivery. Furthermore, the Client and the Reseller undertake to advise EMIXIS immediately by registered letter of any seizure carried out by a third party.
d. Provision of Services
21. Purpose and duration
Any order for provision of Services with EMIXIS only generates obligations of due care, with express exclusion of any obligation for result.
The duration of Services contracts is set in the special conditions. In the absence of notification notified by registered letter within the time limits stipulated in the special conditions or three months before the anticipated expiry, contracts concluded for a determined duration are tacitly renewed by periods of one year.
Any claim relating to the Services provided must be sent to EMIXIS in writing within five working days of the date of the services. Once this time has elapsed, the services will be deemed as finally approved by the Client and no claim will any longer be taken into consideration.
e. Common provisions
The prices shown on the price lists and offers from Emixis are purely indicative and can be modified at any time. In case of a price increase for the Hardware delivered or services given by a third party after concluding the contract, EMIXIS has the right to pass on this increase, by registered letter, to the Client or the Reseller. This resulting increase will be deemed accepted by the Client and the Reseller five working days after the date of sending such notification, except if Emixis receives an opposition letter from the Client or the Reseller by registered post and within the same time as stated herein. Should the Client or Reseller fail to agree, EMIXIS has the right to unilaterally cancel the Contract by registered letter and without any compensation whatsoever.
All prices are net, ex works from EMIXIS’s registered office, excluding VAT, expenses and other taxes. The Hardware travels at the client’s risk, even in the case of products sold or delivered free (i.e.franco).
Any deposits paid by the Client or the Reseller against any outstanding order shall count towards the total amount of the order. They are a beginning of execution of the contract and not a deposit whose abandonment would allow the Client to be released from its obligations under this Contract.
24. Terms of payment
All EMIXIS invoices are payable in full, net and without discount, at EMIXIS’s registered office, subject to other payment terms detailed on case by case basis and specified on the invoice.
In the absence of payment of all, or part, of an invoice, the remaining amount due is increased as of right and without any prior official notification by interest of 12% per year, for any month being due. Furthermore, any invoice unpaid when due will be automatically increased as of right and without any prior notification by a flat-rate and irreducible compensation of 15%, with a minimum of EUR 125. Lastly, failure to pay an invoice on its due date, may indicate the Client’s or the Reseller’s insolvency and as such Emixis has the right to accelerate maturity and require payments of all open invoices that Emixis has outstanding with the Client or the Reseller at that time. In addition, delay or failure of payment of outstanding invoice gives Emixis the right to suspend all its obligations under this Contract and terminate all or some of the existing Client’s and Reseller’s Contracts by providing a written notice via registered post but without any indemnity whatsoever.
Any claim relating to an invoice must be sent by registered mail within five working days of receipt, which is presumed to take place within 7 working days of the date shown by the invoice. At the expiration of this period, no claim will be admissible. A claim shall in no case justify a suspension of payment. The right to terminate as per Article 1794 of the Civil Code is not applicable.
25. Suspension, Resolution.
Non-payment of overdue invoices gives Emixis the right to Emixis right to suspend or terminate, without notice all current orders and suspend or terminate all current subscriptions which apply to the unpaid invoices. In addition, the non- payment of an invoice constitutes ipso jure and without notice annulment of the sale of Hardware property to which the invoice relates. The Client or Reseller is required to return the equipment without delay and expense to Emixis. If the buyer fails to return the goods to Emixis, Emixis reserves the right to seize the goods direct or through third parties In the event that a sale would be revoked in whole or in part as a result of any negligence or breach of the buyer, the buyer will pay Emixis all costs incurred and fixed loss indemnity equal to 30% of the selling price of goods that associated with such revocation. In addition, compensation is due to Emixis without prejudice to claim reimbursement of all expenses that will be incurred to repossess the goods and return them to their original state. Further, interruption or termination of subscription services does not in any case result in a refund or payment of damages to the Client, User or Reseller
26. General limitation of liability
To the fullest extent permitted by the laws in force, except in cases of gross negligence or wilful misconduct, the total liability of Emixis and its Resellers arising from this Contract is expressly limited to the price actually paid by the Client or the User, if necessary, calculated over a period of 1 complete year. This limitation of liability, an essential commitment of Emixis, applies regardless of whether the acts or negligence are those of Emixis or those of its subcontractors, irrespective of the applicable liability regime including, but not limited to, contractual liability, tort, strict liability, no-fault liability, product liability, hidden effects liability, etc.
27. EMIXIS compensation
The Client and the Reseller undertakes to guarantee and compensate EMIXIS, its representatives, employees, partners, and/or any third parties, against any damage, claim or demand from third parties following use of the Software, Hardware and/or Services. This guarantee covers compensation that would possibly be due for legal expenses up to a reasonable extent.
For the entire duration of the Contract and for a period of six months following its termination, the client is prohibited from (attempting to) employing directly or indirectly EMIXIS staff members, under penalty of an irreducible compensation of EUR 30,000 per staff member concerned, without prejudice to compensation for a greater prejudice, if applicable.
The fact that one party has not relied on a specific right or temporary has not exercised a right does not imply renouncing this right.
The invalidity of any clause or part of a clause in this Contract shall not affect the other provisions or parts of clauses and the provisions or part of a clause concerned shall be replaced whenever possible by a valid provision of equivalent economic effect. The appendices attached to this Contract are an integral part of it. The English version is purely indicative. The French version of the Contract prevails.
29. Applicable law – court with jurisdiction
This Contract, and any dispute related to this contract and/or the use of the Software, Hardware, Services or other, is subject exclusively to Belgian law. Any dispute arising from this Contract will be heard in the courts of Brussels, Belgium, who have exclusive jurisdiction to hear these disputes.