GENERAL TERMS AND CONDITIONS FOR THE DELIVERY OF SOFTWARE
Agreement: these General Terms and Conditions, the specific terms and conditions of Localyse
LOCALYSE N.V.: with registered offices in Edegem, Prins Boudewijnlaan 41, company number BE0818.285.268
Client: the Client mentioned in the Specific Terms and Conditions.
Manufacturer: the manufacturer of the software mentioned in the Specific Terms and Conditions (Google).
The Manufacturer’s General Terms and Conditions: the general (licence) conditions or EULA of the Manufacturer applicable to the delivered software as well as the Specific Terms and Conditions, which form an integral part of the Agreement.
Order: submission by the Client of the signed Specific Terms and Conditions to Localyse.
Goods: software from the Manufacturer
Party/ies: Localyse or (and) the Client.
2.1. APPLICABLE TERMS AND CONDITIONS – These General Terms and Conditions, together with the Specific Terms and Conditions, the Manufacturer’s Terms and Conditions for software and the Manufacturer’s Specific Terms and Conditions are a complete statement of the rights and obligations of the Parties, and replace all previous Agreements and proposals, both oral and written. The Client confirms that he has received these general terms and conditions and that he accepts them.
The General Terms and Conditions and the Specific Terms and Conditions, as well as the Manufacturer’s Terms and Conditions for software and the Manufacturer’s Specific Terms and Conditions apply to the exclusion of other terms and conditions, even if the Client’s General Terms and Conditions stipulate otherwise.
In the event of conflict between the General Terms and Conditions, the Specific Terms and Conditions the Manufacturer’s Terms and Conditions for software and the Manufacturer’s Specific Terms and Conditions, the General Terms and Conditions shall prevail over the Specific Terms and Conditions, and the Manufacturer’s Terms and Conditions for software and shall prevail over the General Terms and Conditions.
If and insofar as for any reason whatsoever the said terms and conditions of business of the Manufacturer shall be deemed not to apply to the relations between the Client and the Manufacturer, or are declared inapplicable, the provisions of these General Terms and Conditions shall apply undiminished.
Deviations from these General and Specific terms and conditions are only valid if these have been expressly agreed in writing in the relevant quotation or the relevant Agreement. Deviations regarding the (licence) terms of the manufacturer of the hardware and/or software are not permitted.
2.2. FORMATION OF CONTRACT – Localyse shall only bound to execute the contract after receiving an order (i.e. the signed Specific Terms and Conditions) from the Client. This serves as sufficient proof of the order for the acceptance of the terms and conditions and as permission to invoice the Goods and/or Services in question.
2.3. CLIENT – Unless the Client is referred to in another capacity, the Client is irrevocably deemed to be a professional user, acting in the context of his or her professional activities.
3.1. Localyse undertakes to arrange to supply the Goods mentioned in the Specific Terms and Conditions in accordance with the Manufacturer’s Terms and Conditions and the Manufacturer’s Specific Terms and Conditions.
Unless otherwise provided by mandatory law or public policy, Localyse assumes no liability regarding Goods and maintenance services provided by the Manufacturer. The Customer shall only be able to approach the Manufacturer within the limits of the relevant Manufacturer’s Terms and Conditions or the Manufacturer Specific Terms and Conditions. Given that the Manufacturer of the Goods is known by the Customer, Article 4 of the Law on liability for defective products, (W. 02.25.1991, BS 22/03/1991) shall not apply.
3.2. The Client bears full liability for errors or omissions in the Order for Goods. The contractual obligations of Localyse can only be derived from the Specific Terms and Conditions and these General Terms and Conditions. Therefore the Client is responsible for Orders and the suitability of supplied Goods with regard to the results the Client wishes to achieve. Localyse cannot be held liable under any circumstances in the event of incorrect product selection or unsatisfactory product specialisation or descriptions of Goods in the Specific Terms and Conditions.
3.3. The full purchase price is payable in the event of cancellation of the order for Goods.
4.1. The price of the Goods is provided for in the Specific Terms and Conditions. Localyse shall be entitled in all cases to modify these prices for Goods by means of a written notification to the Client if this is the consequence of a price adjustment by the Manufacturer(s) or the result of currency and exchange rates fluctuations.
4.2. The price excludes VAT, charges and taxes, duties, transportation costs (of the Manufacturer), import duties and incidental expenses and all other reasonable costs. Localyse shall not be liable for taxes which the Client is legally obliged to pay. All such taxes will be solely the Client’s financial responsibility.
5.1. The Client shall pay the price as stipulated in the Specific Terms and Conditions prior to the delivery of the Goods.
5.2. Unless agreed otherwise in the Specific Terms and Conditions, the Manufacturer’s software licenses are renewed automatically each year and annually billed accordingly.
5.3. Failure to submit a written protest to an invoice within 8 working days from the date of sending shall constitute irrevocable acceptance of the invoice and the Goods referred to therein.
5.4. The Customer is not entitled to set off or suspend payment nor is the Client entitled to charge Localyse with the costs of third parties.
5.5. Localyse retains full ownership of the Goods until the moment the Client has fully paid the invoice, including interest and penalty clause (retention clause).
All additional costs for the removal of the Goods due to non-payment by the Client shall be borne in full by the Client and shall be due and payable without further notice.
Localyse is entitled to suspend its obligations automatically by sending a simple notification to the Client by registered letter, if the Client fails to meet its obligations under this Agreement. This shall include inter alia disabling the delivered Software.
5.6 The Client undertakes to pay invoices for Goods at the latest 30 calendar days after the invoice date, unless agreed otherwise in the Specific Terms and Conditions. Amendment of the payment period as stated in the Specific Terms and Conditions is only possible if the Manufacturer’s terms and conditions require a shorter payment period.
The expiry of the payment period shall automatically place the Client in default without the need for prior notice. Starting from the expiry of the payment period, contractual late payment interest is due equal to the interest rate as stated in Article 5 of the Law of 2 August 2002 on combating late payment in commercial transactions (BS 7.08.2002), increased by 3%.
Fixed-sum compensation of 15% is moreover due on the first portion of EUR 4,000, 10% on the second portion of EUR 4,000 to EUR 12,500 and 7.5% on sums exceeding EUR 12,500. Judicial recovery costs are not included in this compensation clause.
Localyse reserves the right to claim additional compensation for judicial recovery costs, including reasonable legal fees.
Localyse reserves the right to claim additional compensation if it can prove higher actual loss.
5.6. If Localyse considers the Client to be in financial difficulties, it may – also after concluding the Agreement – request the Client to provide security for payment of Goods not yet delivered. Localyse shall be entitled to suspend performance of the Agreement as long as such security has not been provided. If the Client refuses to meet any such request of Localyse within a reasonable time, Localyse reserves the right to terminate the contract immediately, unilaterally and without any compensation. Localyse reserves the right to claim additional compensation in any such event.
5.7. The Client shall indemnify and hold Localyse harmless from any claim by the Manufacturer against Localyse for unpaid invoices of the Manufacturer of the Goods for whatever reason and the Client shall indemnify Localyse in full for all costs, loss, expenses Localyse incurs as a result, including legal fees.
5.9. If the Special Terms and Conditions provide that affiliated companies of the Client can make use of the delivered Software, the Client shall be jointly and severally liable together with said affiliate company for the performance of the payment- and other obligations resulting from the General and Specific Terms and Conditions.
- Delivery, transfer of risk and title and acceptance:
6.1. Unless stated otherwise in the Specific Terms and Conditions, all Goods are delivered directly by the Manufacturer in question to the Client and/or to a site indicated by the Client. The manufacturer’s General and Specific Terms and Conditions and rates apply to deliveries and are attached hereto. Localyse bears no responsibility with regard to Goods supplied by the Manufacturer supplies.
If applicable, the Client shall make a suitable installation site available for the Goods, which complies with all technical and legal requirements, including regarding soundness and stability of the building. The Client shall have the necessary studies done and shall indemnify and hold Localyse harmless from any liability in this regard.
6.2. The risk of loss, theft or damage to the Goods forming the subject of this Agreement shall pass to the Client as soon as the Goods have actually been placed at the disposal of the Client or any assistant used by the Client.
6.3. Any delivery periods for Goods stated in the Specific Terms and Conditions shall not be binding on Localyse but considered as a mere guideline. Localyse only enters into an obligation to make best efforts to arrange delivery of the Goods or part of the Goods as quickly as possible by the Manufacturer. Partial deliveries are allowed. The partial delivery of an order cannot in any case justify a refusal of the Client to pay for the Goods.
7.1. In the case of supply of Goods the Client shall expressly take cognisance for the Goods it has ordered of the Manufacturer’s warranty conditions, which apply exclusively. The Client recognises and accepts that Localyse cannot be held to any warranty obligations in relation to the Goods supplied.
- Maintenance and Upgrade Agreement:
8.1. If applicable, the Client can enter into a maintenance-upgrade Agreement with Localyse and/or the Manufacturer in relation to the Goods supplied. If no such agreement was agreed upon, any intervention following completion and possibly after the warranty period, if any, are charged on the basis of the then prevailing hourly rates.
- Intellectual property- and licence rights:
9.1. The Client is aware of the licence conditions, the intellectual property rights and the restrictions thereon of the Manufacturer of the Goods ordered, which apply in their entirety. The Client cannot derive any more rights and conditions than those granted by the Manufacturer. The Client shall indemnify and hold Localyse harmless from all expenses, losses, liabilities, damages, costs or expenses Localyse may suffer or incurs as a result of a breach of any (licensing) conditions of the Manufacturer and ensuing claims.
9.2. The Client is solely liable towards the Manufacturer in the event of infringements thereof.
- Restriction on liability of Localyse:
10.1. Any liability that Localyse may incur for the supply of Goods derives from an obligation of best efforts, and the Client will have to provide proper proof of such liability.
10.2. Localyse can only be required to remedy direct damage or loss it has caused by its interventions based on the present Agreement as well as for supply of Goods, but only up to a maximum 10 per cent of the value of the order (excl. VAT) placed by the Client and regardless of whether the claim is instituted on a contractual or non-contractual basis.
The Client shall inform Localyse in writing of any event that could involve its liability or of any harm that the Client might sustain, within the shortest possible time and at the latest within fifteen (15) days counting from the arisal of the event or harm or, at the least, counting from the time when the Client became aware of this, the foregoing to enable uptime group to determine the cause and reasons for the harm within a reasonable time. Failing which, uptime group reserves the right to reject any demand for compensation and to reject any liability.
10.3. The following is excluded from liability:
- payment by Localyse for any indirect or consequential loss including but not limited to, financial or commercial losses, loss of profits, increase in general costs, disruption of planning, loss of expected profit, loss of capital, loss of customers, missed opportunities, loss of data, loss of advantages, damage to and loss of files, etc., that arise from the implementation of the present Agreement;
- loss because of a mistake by the Client;
- compensation for damage that is wholly or partly caused by Software of the Manufacturer;
- all claims directed by third parties against the Client;
- social unrest, strikes, force majeure, acts of third parties and all other circumstances beyond its control.
10.4. The limits on liability in Article 10 will apply to the supply of Goods and remain in effect even in the event that the Client notifies Localyse of a real risk of damage. The Parties recognise that this constitutes a reasonable distribution of risk.
- Breach of contract:
11.1. Localyse reserves the right, without prejudice to its right to compensation, to terminate the Agreement in relation to the supply of Goods automatically with immediate effect without prior notice of default simply by sending the Client a registered letter in the following circumstances:
- a serious breach of contractual obligations (such as late payment) by the Client;
- in the event that the Client has asked to delay payment or is subject to bankruptcy or suspension of payments or its creditworthiness is in doubt or it is evidently insolvent;
- in the event of dissolution or liquidation of the Client’s company;
- in the event that a writ of execution is made on the Client’s Goods at the request of a creditor or in the event of other executory or conservatory measures with regard to the Client’s Goods;
- if the Client refuses to provide requested information or if the Client has provided incorrect and/or false information;
11.2. Either Party may terminate the Agreement if the other party continues to be guilty of a clearly described gross negligence in relation to the obligations deriving from this Agreement within 30 (thirty) days after being placed in default by registered letter on this matter. Extension of the remedial period shall not be refused on unreasonable grounds if the breaching party has commenced remedies during the thirty-day period and continues these in all reasonableness and fairness.
11.3. In the event of breach of contract, the Client shall in any case be required to make immediate payment for all the ordered Goods, without prejudice to Localyse’ right to demonstrate and be compensated for higher actual losses.
- Force Majeure:
12.1 Neither party shall be bound to meet any obligation if prevented from doing so as a consequence of force majeure. Force majeure is also construed as force majeure for suppliers of Localyse, failure to comply with obligations by suppliers whom the Client has imposed on Localyse as well as imperfections in goods, materials and third party software the use of which the Client has imposed on Localyse or events that arise outside the control of one of the Parties, that are not predictable and that cannot be prevented.
12.2 If a situation of force majeure has lasted for more than ninety days, the parties shall be entitled to terminate the Agreement by rescinding it in writing. In that case any performance which has already taken place pursuant to the Agreement shall be settled proportionately without either party being indebted to the other for any other amount thereafter.
- Confidentiality and protection of personal data:
13.1. Confidential information is construed as all information in any form whatsoever (oral, written, graphic, electronic etc.) which has been exchanged between the Parties in the context of this Agreement.
The Parties and their employees shall keep secret confidential information which they have received from the other Party in the implementation of this Agreement. Furthermore, the Parties may only use confidential information in the context of this Agreement. The Parties shall not disclose confidential information to third parties without the written permission of the other Party.
This confidentiality clause shall continue to exist for a period of 1 year after the end of this Agreement, regardless of the cause of the termination of the Agreement.
During the Agreement and following termination or expiry of the Agreement or once the obligations of the Parties are met under the Agreement, the Client shall, at the request of Localyse, return or destroy all the material held at any storage medium that includes confidential information of Localyse, refers to it or is related thereof, as instructed by Localyse, and shall not keep any copies thereof.
13.2. The following are not considered to be confidential information:
- information that has been gained in a lawful manner from a third party which is not bound by any non-disclosure or secrecy obligation;
- information that a Party already knew before it was disclosed to it in the context of this Agreement;
- information that a Party develops itself without breaching this Agreement;
- information that has entered the public domain without the intervention or fault of the Party that received it;
- information that must be disclosed because of a court decision.
13.3. Localyse may also include the Client in its clients list, publish a concise description of the order and use the name and brand of the Client for publicity purposes and PR activities.
13.4. The Client hereby also explicitly recognises and accepts the confidentiality clauses in the Manufacturer’s General Terms and Conditions.
13.5. The Client authorizes Localyse to process the data it receives in connection with the execution of this Agreement. The Client warrants that it will comply with the requirements of the Belgian Law of 8 December 1992 on the protection of privacy in relation to the processing of personal data, since the Client is responsible for the data processing within the meaning of Article 1 § 4 of the aforementioned law. Localyse acts in such cases as merely the processor of personal data.
13.6. Any processing of the data of the Client has the primary objective the management of future and current customers of Localyse, which among other things includes the management of and access to the section of the website(s) specifically reserved for the Clients and the provision and promotion of products and services. The Client can access his data or demand rectification thereof by sending a registered letter to Localyse. Similarly, the Client can provide Localyse notice should the Client no longer wish to receive promotional offers of products and services by telephone, email or post, with particular reference of the aforementioned communication types.
Relation between the Parties
The relationship of Localyse and Client established by this Agreement is that of independent contractors. Localyse is entirely free and independent in performing the Agreement. There is no hierarchical relationship between Localyse (or personnel on which Localyse relies for the execution of the Agreement) and the Client. Nothing in this Agreement shall be construed as a creation of a partnership, joint venture, agency or otherwise as participants in a joint or common undertaking, or allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. Each of the Parties is responsible for the payment of salaries and the related social contributions in so far their respective employees are subject to a permanent employment agreement.
Unless expressly stated otherwise in the Specific Terms and Conditions, Localyse has the right to rely on third parties to carry out its contractual obligations.
This Agreement is exclusively subject to Belgian law. Contrary to the statutory rules on competence of courts, any disputes between the parties shall be heard by the courts of Antwerp. The Client cannot file any claim regarding the services that are supplied more than 6 months after the event that gave rise to that claim or if the Client did not notify Localyse of this within one month after the event occurred.
All written notifications relating to this Agreement, including changes of address, are deemed valid when sent to the above-mentioned address or to the address specified in the Specific Terms and Conditions and are deemed to have been received if sent by registered letter or courier service.
The nullity of one provision in this Agreement shall have no effect whatsoever on the validity of the other clauses, despite the nullity of the disputed clause. The Parties shall make every effort to replace the invalid clause with a valid clause with the same or largely the same economic effect as the invalid clause.
Forfeiture of rights, waiver of rights
The failure of one party to enforce any provision in this Agreement shall in no way affect the right of the party concerned to demand full compliance by the other party. Acquiescence in a breach by the other party of an obligation does not imply a waiver of the rights deriving from that obligation.
Import and Export
The Client warrants to comply with all applicable import and export regulations. Moreover, in case the Client imports or exports itself, it will indemnify Localyse for any liability on the grounds of breach of the applicable import or export regulations. The Client, with the explicit exclusion of Localyse, will be deemed to be the exporter and/or importer in case of imports or exports.
Regardless of the nature of and/or the value of the legal act to be proven, Localyse can at all times prove this by means of the following additional evidence: copies or reproductions in any form whatsoever (carbon copy, photocopies, microfilm, scans, etc.), via data carrier, fax, telex and email. Such evidence has the same evidential value as a private deed drawn up in accordance with the provisions of the Belgian Civil Code.