General terms and conditions for the delivery of software

Localyse BV
Klipperaak 201 – 2411ND Bodegraven
+31 (0) 172-255500
VAT: NL8204.69.221.B01
KVK-number: 30255131

Annex 1

1. Definitions:

1.1. Agreement: these General Terms and Conditions, the Specific Terms and Conditions of Localyse and the General Terms and Conditions of the Manufacturer, including the general (license) terms of the Manufacturer, the End User License Agreement of the provider of the Google software (Annex II a) and the Specific Terms and Conditions of Google (Annex II b);

1.2. Basic price: the basic price as mentioned in the Specific Terms and Conditions and which must be paid by the Client in accordance with clause 4.3. of these General Terms and Conditions.

1.3. Client: the Client as mentioned in the Specific Terms and Conditions.

1.4. Data Protection Regulation: (a) Regulation (EU) 2016/679 of the European Parliament and of the Council from 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and the repeal of Directive 95/46/EC (“General Data Protection Regulation” or “GDPR”), (b) all other applicable laws and regulations and official binding recommendations of the relevant data protection authorities that affect the processing of personal data and privacy as established in the countries where the data originate and/or are processed and (c) any changes to or the replacement of the previous legislation, if applicable;

1.5. Goods: the Manufacturer’s software and/or hardware and/or license keys.

1.6. Localyse: Localyse BV with registered office at Klipperaak 201 – 2411ND Bodegraven Netherlands and KVK-number 30255131.

1.7. Manufacturer: the manufacturer of the Goods mentioned in the Specific Terms and Conditions.

1.8. Order: a final order of Goods and/or services placed by the Client under this Agreement. The Client can place an order by submitting the signed Specific Terms and Conditions to Localyse, by selecting additional Goods in the Google Cloud Console or by accepting a valid offer of Localyse.

1.9. Party/Parties: Localyse or (and) the Client.

1.10. Specific Terms and Conditions: the written agreement subject to these Terms and Conditions between Localyse and the Client describing the specific modalities regarding this Agreement, such as, but not limited to, an accepted offer, an order form, a statement of work, …

1.11. The Manufacturer’s Terms and Conditions: the general (license) conditions, the End User License Agreement of the provider applicable to the delivered software as well as the Specific Terms and Conditions of Google and all other terms.

2. General:

2.1. APPLICABLE TERMS AND CONDITIONS – These General Terms and Conditions, together with the Specific Terms and Conditions and the Manufacturer’s 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, except otherwise agreed between the Parties. These conditions form an integral part of this Agreement and are applicable to all Orders. The Client confirms that he has received these General Terms and Conditions and that he accepts them. By installing, downloading, using or activating the Goods via the Google Cloud Console, the Client accepts the applicability of these General Terms and Conditions, the Special Terms and Conditions as well as the Terms and Conditions of the Manufacturer. This Agreement shall always apply to the delivery of Goods between the Parties, unless the Parties have agreed otherwise.

This Agreement shall always apply, to the exclusion of other terms and conditions, even if the Client’s general terms and conditions stipulate otherwise or in case the terms and conditions of the Client are mentioned on an offer and/or order . In no event shall Localyse accept the Client’s terms and conditions implicitly or tacitly.

In the event of conflict between the General Terms and Conditions, the Specific Terms and Conditions and the Manufacturer’s Terms and Conditions, the following hierarchy shall apply:

  1. The Manufacturer’s Terms and Conditions
  2. The Specific Terms and Conditions
  3. The General Terms and Conditions

If, and insofar as, for any reason whatsoever the Manufacturer’s Terms and Conditions are considered inapplicable or are declared inapplicable in the relations between the Client and the Manufacturer, the provisions of these General Terms and Conditions shall apply in full.

Deviations from this Agreement are only valid if expressly agreed in writing between the Parties in an offer or agreement. Deviations regarding the Manufacturer’s Terms and Conditions are not possible.

2.2. FORMATION OF THE AGREEMENT – Localyse shall only be bound to execute the Agreement after receiving an Order from the Client and after receipt of the payments, as agreed in the Specific Terms and Conditions. This serves as sufficient proof of the Order and as proof of acceptance of the modalities of this Agreement, also as permission to invoice the Goods and/or services in question.

2.3. CLIENT – Unless the Client is referred to as acting in another capacity, the Client is irrevocably deemed to be a professional user, acting in the context of his or her professional activities.

3. Subject:

3.1. Localyse undertakes to deliver the Goods as mentioned in the Specific Terms and Conditions in accordance with the Manufacturer’s Terms and Conditions.

Except in case of other mandatory laws or laws of public order, Localyse assumes no liability regarding Goods and maintenance services provided by the Manufacturer. The Client shall only be able to address the Manufacturer within the limits of the relevant Manufacturer’s 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. 25.02.1991, BS 22.03.1991) shall not apply.

3.2. The Client bears full liability for errors and/or omissions in the Order of 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 solely responsible for its Orders and the suitability of the delivered Goods with regard to the results the Client wishes to achieve. Localyse shall not be liable under any circumstances in the event of an incorrect selection of Goods or an unsatisfactory product specialisation or descriptions of the Goods in the Specific Terms and Conditions.

3.3. In the event of an Order cancellation the Client is obliged to  pay the full purchase price of the Goods, except otherwise stated in the Manufacturer’s Terms and Conditions.

4. Price:

4.1. The price of the Goods is stated in the Specific Terms and Conditions. Localyse is in all cases entitled to modify these prices by means of a written notification to the Client, in so far if the price modification is the consequence of a price adjustment by the Manufacturer(s) or the result of a currency and exchange rate fluctuation.

4.2. All prices are exclusive VAT, charges, taxes, duties, transportation costs (of the Manufacturer), import duties and incidental expenses as well as all other reasonable costs. Localyse shall not be liable for taxes which the Client is legally obliged to pay.

4.3. For some Goods a Basic price will be charged. In so far a Basic price is due, this Basic price will be included in the Specific Terms and Conditions and must always be paid by the Client, regardless of the Client’s consumption.

5. Invoicing:

 5.1. Unless otherwise agreed in writing between the Parties, the Client shall pay the price as stipulated in the Specific Terms and Conditions prior to the delivery of the Goods. In case of non-payment by the Client, Localyse has the right to suspend its obligations under this Agreement.

5.2. Unless otherwise agreed in the Specific Terms and Conditions, the Manufacturer’s software licenses are valid for a period of (12) twelve months. The Agreement can be tacitly renewed each year and shall be accordingly invoiced each year. Nevertheless, every Party reserves the right to object to a renewal of the Agreement by sending a registered letter to the other Party at least (3) three months prior to the end of the ongoing Agreement.

5.3. Google Maps will be charged based on the real consumption by the Client (pay-as-you-go). At the beginning of the License, the Client has to pay for a creditbundle that will be calculated based on an amicable estimation of the potential consumption by the Client. The creditbundle must be used within the one (1) year license period with which it corresponds. When the Client consumes more than the initial creditbundle, Localyse has the right to require the additional purchase of a creditbundle by the Client. The Client is automatically obliged to pay its actual overconsumption in accordance with the prices as set out in the Specific Terms and Conditions. In case the Client did not use the full creditbundle at the end of yearly the license period, the Client has the right to transfer the remaining consumption to the immediately following one-year license period, but only one time.

In case the Client does not want a new license within the period following the previous one-year license period, the remaining amount, corresponding to the remaining consumption of the Client, will not be refunded to the Client.

Localyse will inform the Client every time he reaches a consumption of 50%, 75% and 90% of the creditbundle for Google Maps and as set out in the Specific Terms and Conditions.

In case the Client does not pay its overconsumption in time and in accordance with article 5.9., Localyse has the right to immediately terminate the Agreement without prior written notice or judicial intervention. In this case Localyse is not entitled to pay any compensation.

5.4. For certain Goods, like Google Maps, the Client has the possibility to purchase additional Goods via the Google Cloud Console. The Client places an Order by selecting the Goods in the Google Cloud Console. The corresponding price will be automatically due.

5.5. In case the Manufacturer changes its license model, the Client hereby explicitly accepts that Localyse will immediately and automatically apply the new license model.

5.6. Failure to submit a written protest of an invoice within eight (8) working days as from the dispatch date of the invoice shall constitute an irrevocable acceptance of the invoice and the Goods referred to therein.

5.7. The Client is not entitled to compensate or suspend its payment obligations nor is the Client entitled to charge Localyse for the costs of third parties.

5.8. Localyse maintains full ownership of the Goods until the Client has fully paid the invoice, including interest and penalty clauses (retention of title 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.

If the Client fails to meet its obligations under this Agreement, Localyse is entitled to suspend its obligations automatically by sending a simple notification via registered mail to the Client. Localyse’s right to suspend its obligations may include i.a. deactivating the delivered Goods or shutting down the access to the delivered Goods. The Client has not the right to terminate the Agreement and/or terminate (future) payments in case of a temporary deactivation or shut down.

5.9 The Client undertakes to pay the invoices for the Goods at the latest 30 calendar days after the invoice date, unless otherwise agreed in the Specific Terms and Conditions. Adaptions to the payment terms as stated in the Specific Terms and Conditions is only possible in case the Manufacturer’s Terms and Conditions require a shorter payment term.

After expiry of the payment term the Client is automatically and without prior notice, in default. Upon the expiry of the payment term, a contractual late-payment interest is due equal to the interest rate as stated in Article 5 of the Belgian Act on payment arrears (act 2.08.2002, BS 07.08.2002) , increased by 3%. This interest is calculated as from the expiry day until the day of the full payment by the Client.

In addition, a flat-rate compensation is due of 15% on the first installment from EUR 0,00 – EUR 4.000,00, 10% on the second part from EUR 4.000,00 – EUR 12.500,00 and 7.5% on the part exceeding EUR 12.500,00. All costs related to the judicial recovery are not included in this clause.

Payments made by the Client to Localyse wil first be charged on the costs due, afterwards on the interests due and at last on the capital sum.

Localyse reserves the right to claim additional compensation for judicial recovery costs, including reasonable attorney fees.

Localyse reserves the right to claim additional compensation if Localyse can prove higher actual damages.

5.10. If the credibility of the Client gives rise thereto and according to Localyse’s sole discretion, even after the conclusion of the Agreement, Localyse may require from the Client to provide him with a guarantee regarding the payment of the Goods and/or services that still must be delivered. Localyse may suspend the delivery of the Goods and/or services as long as the Client does not provide Localyse with a guarantee. If the Client refuses to meet any such request of Localyse within a reasonable time, Localyse reserves the right to immediately and unilaterally terminate the Agreement, without any compensation. Localyse reserves the right to claim additional compensation in such event.

5.11. The Client shall indemnify and hold Localyse harmless against any claim made by the Manufacturer towards Localyse for unpaid invoices of the Manufacturer of the Goods for whatever reason and the Client shall indemnify Localyse in full for all costs, damages, losses and expenses Localyse incurs as a result thereof, including attorney fees.

5.12. If the Special Terms and Conditions provide that affiliated companies of the Client can make use of the delivered Goods, the Client shall be jointly liable together with said affiliate company for the performance of the payment and other obligations resulting from the Agreement.

6. Delivery, transfer of risk and title, acceptance:

6.1. Unless stated otherwise in the Specific Terms and Conditions, all Goods from the Manufacturer will be delivered directly by the Client and/or on a location indicated by the Client. The Manufacturer’s Terms and Conditions and prices shall apply to all deliveries of Goods and are directly applicable to the Client. Localyse has no responsibility whatsoever regarding the Goods supplied by the Manufacturer.

If applicable, the Client shall make available a suitable installation site for the Goods, which complies with all technical and legal requirements, including solidity and stability of the building and the Manufacturer’s Terms and Conditions. The Client will make sure all the necessary studies are done and will indemnify and hold Localyse harmless from any liability.

6.2. The risk of loss, theft or damage to the Goods forming the subject of this Agreement shall pass on to the Client as soon as the Goods have been placed at the disposal of the Client or any assistant used by the Client.

6.3. The (delivery)terms for de delivery of Goods are not binding for Localyse. Localyse has a best effort obligation to deliver (whether by the Manufacturer or not) the Goods as quickly as possible. Partial deliveries are allowed. A partial delivery of an Order does not permit the Client to refuse payment for the Goods already delivered.

7. Warranty:

7.1. In case of delivery of the Goods, the Client explicitly takes note of the Manufacturer’s Terms and Conditions, which are solely applicable in regard with the by the Client ordered Goods. The Client acknowledges that Localyse cannot be held to any warranty obligation regarding the delivered Goods.

8. Maintenance and Upgrade Agreement:

 8.1. If applicable, the Client can conclude a maintenance-upgrade agreement with Localyse and/or the Manufacturer regarding the delivered Goods. If no such agreement was agreed upon between the Parties, any intervention, after the delivery and possibly after the warranty period, if applicable, shall be charged based on the applicable hourly rates.

9. Intellectual property- and licence rights:

9.1. The Client takes note of the applicable Manufacturer’s Terms and Conditions, more specifically, the  license terms, the intellectual property terms and the restrictions thereto of the Manufacturer, which are fully applicable.

9.2. The Client cannot derive more rights from the Manufacturer’s Terms and Conditions, then stated therein. The Client shall indemnify and hold Localyse harmless against all claims, losses, liabilities, expenses, damages and costs which Localyse may incur as a result of a breach of the Agreement.

9.3. In case of any violations hereto, the Client shall solely be responsible towards the Manufacturer.

9.4. All intellectual property rights, industrial property rights and/or property rights regarding the Goods and copies of the Goods, shall be the sole property of Localyse and/or the Manufacturer and/or the supplier. The Manufacturer and Localyse allow the Client to use the Goods in accordance with the General Terms and Conditions, the Specific Terms and Conditions and the Manufacturer’s Terms and Conditions. All rights not specifically assigned under these General Terms and Conditions, the Specific Terms and Conditions and the Manufacturer’s Terms and Conditions, are reserved for Localyse and/or the Manufacturer. Text books and written materials may only be copied for own use. The Client may not copy the Goods nor multiply, translate, change, edit, change the results or reproduce the Goods.

9.5. The Client is not allowed to delete or change any designation concerning the confidential nature or concerning intellectual property rights or industrial property rights, trademarks, trade names or copyrights from the programs, websites, databases, devices and materials.

 9.6.  The Client recognizes and agrees that the development of the Goods has taken a lot of time and money and that these are confidential for, and a trade secret of, Localyse and/or the Manufacturer and/or third parties. The Client accepts to keep the Goods absolute confidence and shall not commercialize the Goods nor make them public to third parties or grant access to third parties.

 10. Restriction of liability of Localyse:

 10.1. The liability Localyse may incur for the delivery of Goods is derived from a best effort obligation, that in cases of claims must be appropriately demonstrated by the Client.

Localyse shall not be liable for damages caused by the use of the Goods purchased by the Client nor shall it be liable for any damages caused by the non-compliance of the Client with the General Terms and Conditions, the Specific Terms and Conditions and the Manufacturer’s Terms and Conditions, a.o. the general (license)terms of the Manufacturer, the End User License Agreement and the specific terms and conditions of the Manufacturer. The Client shall indemnify and hold Localyse harmless against all losses, liabilities, damages, costs and expenses that might result from the use of the Goods and/or non-compliance by Client with the abovementioned terms and conditions and the claims and settlements with third parties resulting thereof.

10.2. Insofar as maximally permitted by applicable law, the total liability of Localyse based on an attributable failure in the fulfilment of the Agreement regarding the delivery of the Goods is limited to the reimbursement of direct damages up to a maximum of 10 percent of the value of the Order by the Client (excl. VAT). This provision applies regardless of whether the claim is brought on a contractual or extra-contractual basis. In case the Agreement is performed over several years, Localyse’s liability shall be limited up to a maximum of 10% of the value of the Order by the Client (excl. VAT) based on the year during which the damages-causing event occurred.

10.3. The Client must inform Localyse in writing of any event that may call upon the latter’s liability or of any disadvantage the Client suffers within the shortest possible time and at the latest within fifteen (15) calendar days from the occurrence of this event or disadvantage, or at least to be counted from the moment the Client becomes aware of or reasonably could have been aware of this event or disadvantage. This is in order to enable Localyse to determine the origin and cause(s) of the damage within a reasonable period. In the event of failure to comply with the written notification, Localyse reserves the right to refuse any compensation and it cannot be held liable.

10.4. Under no circumstances shall Localyse be liable for:

–  indirect, incidental or consequential loss, including but not limited to financial or commercial losses, loss of profit, increase of general expenses, missed savings opportunities, diminished goodwill, damages resulting from business stoppage, damages resulting from claims of customers of the Client, disruptions in scheduling, loss of expected profit, loss of capital, loss of customers, missed opportunities, loss of information, loss of advantages, or compromising and loss of files resulting from the performance of the present Contract;

– damages caused by third parties who weren’t able to use the Goods or couldn’t access the data;

– damages resulting from error or negligence of the Client;

– damages resulting from loss of data;

– compensation of any direct and indirect damages caused by the use of the result of the Goods;

– compensation of any direct and indirect damages caused in whole or in part by software or hardware supplied or created by third parties, or any other element introduced into the Customer’s business after the signing of the Contract;

– all claims of third parties brought against the Client;

– social disturbance, strikes, Force Majeure, third party actions or all other situations independent from its will;

– damages caused by defective Goods as a result of an attributable failure of the Client or a person responsible for the Client.

10.5. The Client  bears at all times the responsibility for its existing infrastructure (including, but not limited to: hardware, software, websites, databases, monitoring and security procedures, adequate system management, etc.) and the proper functionality and safety of all its working materials. The Client is exclusively responsible for setting up procedures that allow it to reconstruct lost or modified files, data or programs at any time, regardless of the cause of the loss or modification. The Client ensures that it has, on a daily basis, the necessary back-up copies of its computer programs, files and data. In case of loss of data, Localyse shall only be liable for the loss of data between the moment of the last daily back-up and the moment of the determination of the proven shortcoming of the delivered Goods.

10.6. The limitations of liability as set out in this article 10 are applicable to the delivery of the Goods and remain applicable in the event that Localyse is informed by the Client of the existence of a realistic risk of damages. The Parties acknowledge that this constitutes a reasonable spread of the risk.

11. Breach of contract:

 11.1. Without prejudice to its entitlement to compensation of damages, Localyse may, at its own discretion rescind the Agreement by operation of law, with no notice of breach required, with immediate effect and without judicial intervention, by the simple delivery of a registered letter:

  • In the event of repeated or serious violation of the contractual obligations (such as late payment and/or non-payment on any individual payment deadline) by the Client;
  • In the event that the Client has requested deferment of payment, is under a bankruptcy or suspension of payment procedure, is in an unstable credit position or is manifestly insolvent;
  • In the event the Client refuses to sign, confirm or accept the time sheet or any other time accounting system without valid reason;
  • In the event of dissolution and liquidation of the Client’s company;
  • Should any or all of the assets of the Customer be under foreclosure and/or a garnishment order at the request of a creditor or in the event of other executive or protective measures with respect to the Client’s assets;
  • In the event of proof or serious suspicions of fraud committed by the Client;
  • In the event that the Client refuses to provide the requested information or has provided incorrect and/or false information.

11.2. Further, either Party may terminate the Agreement if the other Party commits a demonstrated serious error or material contractual failure and does not rectify this within a period of thirty (30) calendar days after being notified by registered letter of default by the Party invoking the error or failure. Extension of the aforesaid period for remedy of the default will not be refused on unreasonable grounds if during the remedy period of thirty (30) calendar days the Party in default has commenced remedying the default and is making reasonable efforts to continue to do so

11.3. The Parties explicitly waive the application of article 1794 of the Belgian Civil Code.

11.4. The Client shall immediately indemnify Localyse at the moment of the termination of the Agreement for the delivered and/or ordered Goods and/or services, without prejudice to Localyse’s right to demonstrate higher damages actually suffered using any and all legal means.

11.5. If the Agreement is rescinded by one of the Parties, this rescission is considered to be effective as from the date of the postmark of the registered letter giving notice that the Agreement is rescinded.

12. Force Majeure:

 12.1. Neither Party can be held liable for delays or defaults in the performance of the Agreement when such delays and defaults are the result of facts and circumstances which occurred beyond the control of the Party and which could not be avoided.

12.2. Under penalty of deprival, the Party who invokes such facts or circumstances, must (i) inform the other Party in writing and as quickly as possible, (ii) do everything in its power to limit the duration of those facts and circumstances, and (iii) inform the other Party in writing in case the aforementioned circumstances and facts have come to an end.

12.3. Force Majeure includes (but is not limited to): fire, war, terrorist attack, accidents, unfavourable weather conditions, force majeure on the part of the vendors of Localyse, failures in goods, equipment, software or materials of third parties the use of which the Client prescribes to Localyse, government measures, disruption of internet, data network or telecommunications facilities, unavailability of third party servers, strike, unavailability of Employees, general transportation problems and electricity outages.

12.4. If a situation of Force Majeure lasts longer than three (3) months, either Party is entitled to rescind the Agreement in writing. In that event, all performances already rendered under the Agreement will be settled in proportion to the state of completion, without the Parties owing anything to each other beyond this proportionate compensation.

13. Confidentiality and Personal Data Protection and Privacy Legislation:

13.1. Confidential information is defined as all information of any form whatsoever (oral, written, graphic, electronic, etc.) exchanged between the Parties in the context of this Agreement.

Each Party and its employees must keep all confidential information received from the other Party in the performance of this Agreement confidential. Additionally, the Parties may only use the confidential information for the purposes of this Agreement. The Parties may not disclose the confidential information to third parties without prior written consent of the other Party. Information shall, in any case, be considered confidential if so designated by one of the Parties.

The obligation of confidentiality shall continue to exist for a period of one (1) year as from the moment of termination of this Agreement, regardless of the cause of the termination of the Agreement.

During the term of this Agreement, after its termination or expiration or after the fulfilment of the obligations of the Parties imposed by this Agreement, the Client shall, upon Localyse’s request, return or destroy all content of any storage medium that contains, refers to or has any connection to confidential information of Localyse according to Localyse’s instructions. In addition, the Client is not entitled to retain any copies.

13.4. The following are not considered to be confidential information:

  • information obtained in a lawful manner from a third party not bound by any confidentiality obligation or secrecy;
  • information already known to a Party before its disclosure in the context of this Agreement;
  • information independently developed by a Party, without breaching this Agreement;
  • information which entered the public domain without the intervention or fault of the Party that received it;
  • information which must be disclosed pursuant to a judicial or administrative decision

13.3. Localyse may also include the Client in its client list, publish a brief description of the assignment and use the Client’s name and brand for publicity purposes and PR activities.

13.4. The Client acknowledges and explicitly accepts the confidentiality clauses in the Manufacturer’s Terms and Conditions.

13.5. The Client gives the permission to Localyse and/or the Manufacturer to process the information it receives in the performance of this Agreement. The Client ensures its compliance with the requirements under the Data Protection Regulation. Consequently, the Client is solely responsible for the Personal Data processed in the performance of this Agreement, especially in light of the Data Protection Regulation. In addition, the Client is solely responsible for determining the purposes of the data being processed by Localyse and/or the Manufacturer under this Agreement. Parties acknowledge that the Client is to be considered as the Controller and Localyse and/or the Manufacturer as the Processor of the personal data that is stored, used or processed in any other manner in the performance of this Agreement. The terms used in this provision shall have the meaning defined in the applicable Personal Data Protection Regulation. Moreover, the Client declares to be in possession of all necessary authorizations for the usage and processing of the Personal Data transferred to Localyse and the Manufacturer in the performance of this Agreement. The Client hereby ensures that the content, usage and/or processing of the Personal Data is not unlawful and does not violate the rights of third parties.

13.6. The main purpose of the processing of the Client’s data is the management of current and future clients of Localyse, this includes among others the management of the access to the part of the website(s) reserved for clients and the offering and advertising of products and services. The Client can gain access to his Data or request its rectification through sending a registered letter to Localyse. If the Client no longer wishes to receive advertisements of the products and services by telephone, mail or post, he/she can notify Localyse in the same manner, with specific mention of the said means of communication.

 14. Exclusivity

14.1. The Client undertakes to – throughout the cooperation between the Parties (for the duration of the license purchased by Localyse) – solely purchase the Goods of the Manufacturer from Localyse (both ordered Goods and any other Goods supplied by the Manufacturer). Accordingly, Localyse shall operate as the exclusive supplier of the Goods of the Manufacturer towards the Client. The Client will neither directly nor indirectly obtain Goods from the Manufacturer and/or any other partner from the Manufacturer, apart from Localyse. In the event of termination of the annual software licenses in accordance with article 5.2 of this Agreement, the Client shall neither directly nor indirectly obtain Goods from the Manufacturer and/or any other partner of the Manufacturer, apart from Localyse, during one (1) year after the termination of the software license. The Goods can still be obtained from Localyse during this period.

14.2. In case of a violation of article 14.1, the Client shall, without prior notice or warning, pay a fixed sum of twenty-five thousand (25.000) EUR for each violation as a compensation for damages. This clause does not affect Localyse’s right to prove a higher amount of actually incurred damages and to be compensated accordingly – on top of the aforementioned fixed sum ­– in order to cover the actually incurred damages and costs.

15. Non-solicitation

15.1. The Client agrees that it will not actively approach the personnel (employees and/or independent consultants) of Localyse with the intention of engaging such personnel, during the term of the agreement and until twelve (12) months after the termination of the Agreement, except in case agreed otherwise between the Parties in writing.

15.2. If the Client, in violation of the above, contracts, hires or otherwise makes use of the services of any such personnel of Localyse, whether under an employment relationship, on an independent basis and/or through a company, the Client shall pay Localyse an amount of 50.000 EUR (for each violation). This sum shall be payable on the date the personnel is first employed or use is made of its services. This clause does not affect the right of Localyse to prove a higher amount of actually incurred damages and to be compensated accordingly.

15.3. The Client undertakes the obligation to impose the obligations under this article 15 on the third parties with whom the Client works and/or contracts. The Client procures (sterkmaking) that these third parties will not approach Localyse’s personnel with the purpose of engaging or recruiting such personnel.

16. General Provisions:

16.1. Relationship between the Parties

Localyse is entirely free and independent in its performances under the Agreement. There is no hierarchical relationship between either Localyse, the Client or the Manufacturer. Under no circumstances shall anything in this Agreement be interpreted as a collaborative partnership, joint venture, agency, etc. between the Parties or towards the Manufacturer. Each Party is sole responsible for paying the salaries and related social contributions to its permanent employees.

16.2. Applicable law

Any disputes regarding the execution and/or interpretation of the present Agreement shall preferably be resolved amicably by the Parties. If an amicable solution cannot be reached within a reasonable period of time, both Parties resume their rights in their full extent. In the latter event, only the Courts of Zuid Holland shall be competent.

No claim relating to the delivered services can be made by the Client (i) more than six (6) months after the event giving rise to this claim, and/or in case the Client does not notify Localyse within a (1) month after the event occurred.

16.3. Notifications

All written notifications under this Agreement (including any change of address) are legally valid if they are sent to the aforementioned address or to the address indicated in the Special Terms and Conditions and are deemed received if they are sent by registered post or courier service.

16.4. Severability

The nullity, unenforceability or incompatibility with a mandatory provision of the law of any provision or part of a provision under this Agreement will by no means affect the validity of the rest of the invalid clause, nor of the other clauses of the Agreement. Parties will make every effort to replace the invalid clause with a valid one with the same, or largely the same, economic impact as the invalid clause, in mutual consent and in good faith.

16.5. Forfeiture (rechtsverwerking) and waiver of rights

Refraining from enforcing any provision of this Agreement, does not affect the right of the concerned Party to claim the full execution of the other Party’s obligations. In the event that a Party does not undertake measures against a violation of an obligation of the other Party does not imply a waiver of the rights deriving from that obligation.

16.6. Amendments

No amendment, addition, omission or termination of the Agreement can be invoked against the other Party, unless it is in writing and signed by both Parties.

16.7. Survival

All provisions of this Agreement whose nature extends their applicability to a period of time after the termination of this Agreement, will remain into force.

16.8. Import and Export

The Client ensures the compliance with all import and export regulations. Moreover, the Client indemnifies Localyse for all liabilities on the grounds of violating import or export regulations. The Client, with explicit exclusion of Localyse, will be considered to be the exporter or importer (in the event of export or import of the Goods).

16.9. Evidence

Regardless of the nature and value of the legal act that must be proven, Localyse may, at all times, prove those acts via the following additional means: copies or reproductions in any form whatsoever (carbon copy, photocopy, microfilm, scan, etc.), via data carriers, 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. In the event a signed copy of the Agreement has been sent by e-mail with a “.pdf” or “jpeg” data file or via another exact copy, the signature contained therein will create a valid and binding commitment for the signatory (or in whose name and on whose behalf the signature has been placed) with the same value, impact and effect as if it was original.

Menu