1. DEFINITIONS

“Account details”: the login and password of the Client to access and use the Platform;

“Services”: all the products, services, applications and functionalities chosen by the Client and provided by Zensor, including the management, provision and operation of the Platform;

“Data”: information in any form whatsoever communicated or made available to Zensor by the Client (whether or not via the Platform) within the framework of the Services or generated by the Platform of Zensor within the framework of the Services;

“Intellectual Property Rights”: all intellectual property rights, including copyrights, rights in logos, inventions, algorithms, trade secrets, know-how, design rights, patents, trademarks, database rights, all rights in computer software and data, all immaterial rights in relation to the foregoing, in any case all over the world and whether registered or not, including all approved registrations and applications for registrations, renewals or extensions, the right to claim damages in the event of infringements and all other similar forms of protection applicable worldwide;

“Agreement”: the order form accepted by Zensor and the specific terms and conditions mentioned therein and/or any other written document in which agreements are made and that has been signed by Zensor;

“Force Majeure”: any event beyond the control of a Party that reasonably makes its performance impossible, including (but not limited to): war and similar circumstances, decisions or actions taken by the government, strikes, lock-outs, power cuts, floods, extreme weather conditions, fire, bankruptcy of suppliers or failure of suppliers to deliver, hacking attacks, denial of service attacks, viruses and other malicious software attacks and infections;

“Platform”: the entirety of the products (including hardware) and Software through which the Services are provided and that is accessible to the Client via the dashboards;

“Software”: the computer programs used within the framework of the Services and installed on the Platform.

2. APPLICABILITY

2.1 Unless expressly stipulated otherwise, these General Terms & Conditions apply to all offers and quotations made by Zensor, as well as to all Agreements concluded by Zensor and all sales by Zensor in general. The application of any general terms and conditions of the Client is expressly excluded.

2.2 By placing an order, the Client declares to have read and accepted these General Terms & Conditions. Acceptance of these General Terms & Conditions also implies that the Client completely and irrevocably renounces the applicability of its own general (purchase) conditions, if any.

2.3 Deviations from these General Terms & Conditions are only permitted with the express prior written consent of Zensor. Zensor reserves the right to amend these General Terms & Conditions.

2.4 Should any provision (or part thereof) of these General Terms & Conditions be unenforceable or in conflict with any provision of mandatory law, the validity and enforceability of the remaining provisions of these General Terms & Conditions (as well as that part of the relevant provision that is not unenforceable or in conflict with any provision of mandatory law) shall not be affected.

In such event, the Parties shall negotiate in good faith to replace the unenforceable or conflicting provision with an enforceable and legally valid provision with an effect that is as close as possible to the purpose and scope of the original provision.

2.5 If any provision of these General Terms & Conditions should be incompatible with any provision of the Agreement, the provisions of the Agreement shall prevail.

3. OFFERS – ORDERS – AGREEMENTS

3.1 All offers and quotations made by Zensor are without obligation and, as such, do not bind Zensor. Each offer is valid for thirty (30) calendar days. All prices are exclusive of charges, import duties, stamp duties, taxes and fees, which are borne by the Client.

3.2 An order placed by the Client does not bind Zensor. A binding agreement shall only be concluded between the Parties as soon as Zensor has accepted the Client’s order in writing (whether or not by signing a contract). Sending of an invoice by Zensor shall be equivalent to the written acceptance by Zensor of the order in question.

3.3 Any cancellation of an order must be done in writing. A cancellation is only valid if accepted in writing by Zensor. In the event of cancellation (accepted by Zensor), the Client shall automatically and without prior notice be liable to pay Zensor a fixed compensation of twenty (20) percent of the value of the order, without prejudice to Zensor’s right to prove higher damage.

3.4 Zensor reserves the right to adjust its prices and rates at any time should economic circumstances oblige it to do so, in particular in the event of an exceptional increase in the prices of raw materials, in the event of force majeure or in the event of economic and commercial necessity (this list is by no means exhaustive).

4. DELIVERY OF PRODUCTS

The Services of Zensor may partially relate to the sale and delivery (and possible installation/placement) of certain products, such as the supply and installation of sensors to observe the data to be collected and analysed by the Platform.

4.1 Delivery

4.1.1 The risk of loss or destruction of the products sold shall pass in full to the Client at the time of delivery of the products to the Client, even if these products still have to be installed or placed by Zensor.

4.1.2 The Client is obliged to accept the products delivered by Zensor at the agreed time and to provide the necessary space for the products to be delivered. At the time of delivery, the Client must sign the delivery note for receipt.

4.1.3 The Client undertakes to inspect the products sold immediately upon delivery and to check whether their quality and quantity correspond to what has been agreed upon.

4.1.4 Any visible defect and non-conforming or incomplete delivery must be reported to Zensor in writing on the delivery note or at the latest within eight (8) calendar days after delivery of the products. This period is an expiry period, any complaints reported outside this period thus being inadmissible.

4.1.5 Complaints regarding visible defects or non-conformity are only valid and will only be examined provided that the Client did not yet use the products sold. The use of the delivered products by the Client implies irrevocable acceptance thereof.

4.1.6 Zensor reserves the right to make partial deliveries, which shall constitute an equal amount of partial sales. The partial delivery of an order can in no way justify the refusal of the products delivered.

4.2 Retention of title

The delivered products remain the full property of Zensor until full payment has been made, even if Zensor would grant a payment extension. Until then, Zensor will be able to freely dispose and make use of the products. This reserve clause shall also apply in the event of bankruptcy, judicial reorganisation or any other form of insolvency.

4.3 Installation and configuration

4.3.1 This article is applicable if Zensor installs or places the products and/or configures the products with the Software, or has them installed, placed and/or configured by a third party (subcontractor).

4.3.2 The Client is fully responsible for securing the work environment concerned against all possible risks (including theft, fire, etc.). The Client is obliged to have the necessary insurances with regard to the work environment/site.

4.3.3 Optional in the event acceptance of the works is used: upon completion of the installation, placement and/or configuration, the Client is invited to accept these works. Any visible defects in the installation, placement and/or configuration must be reported in writing to Zensor within eight (8) calendar days from the date of delivery.

4.3.4 Commissioning of the products installed, placed and/or configured implies acceptance of the works by the Client.

4.3.5 If the Client changes settings or makes adjustments after installation and configuration of the products by Zensor, these changes and adjustments will not automatically be detected by Zensor and Zensor will not be able to guarantee that the data recorded will be registered and interpreted correctly. Zensor therefore expressly rejects any responsibility for damage resulting from modifications or alterations made by the Client.

4.4 Warranty

4.4.1 Under the conditions set out in this article 4.4., a twelve (12) months warranty from the date of delivery is given on the products delivered by Zensor (with the exception of complaints regarding visible defects or incorrect delivery).

4.4.2 The Client can only invoke the warranty for a defect provided that it informs Zensor thereof by registered mail within ten (10) calendar days of its discovery. Moreover, the Client must in such case make the products concerned immediately available to Zensor for inspection and may not continue to use the products without the prior written consent of Zensor.

4.4.3 The warranty cannot be invoked if:

the products were exposed to abnormal stress, neglect, abuse, improper storage or extreme weather conditions;
the Client made changes to the products without the prior consent of Zensor, had the products repaired by a third party, changed the method of installation, placement or configuration or tampered the products in any other way;
if applicable: the Client did not have Zensor carry out the maintenance of the products;
the brand, name or identification number of the products has been changed or removed;
parts or accessories that were not manufactured by Zensor break down or cause breakdowns to parts that were manufactured by Zensor;
the replacement or repair became necessary due to normal wear and tear, damage or accidents caused by intent, negligence, lack of supervision or maintenance, misuse or any external cause beyond the control of Zensor or the item concerned;
the products were damaged by accident or force majeure.

4.4.4 Our guarantee is in any case limited to the repair or replacement of the products in question. The repair or replacement of parts during the warranty period does not under any circumstances extend the warranty, nor does it create a new warranty period for the replaced or repaired part.

4.4.5 If the delivered product concerned (or a part thereof) was manufactured by a third party, the warranty provided by us for that product concerned (or for the part concerned if the defect relates thereto), shall be limited to the warranty (if any) provided by our supplier(s). If the relevant supplier does not provide a warranty to Zensor, Zensor shall also not provide a warranty to the Client.

5. PROVISION OF SERVICES

The specific Services that Zensor will provide to the Client are described in the Agreement between the Parties.

5.1 Advisory - Consultancy

5.1.1 If the Services or part of the Services consist of providing advice, the proposed results will be indicative only. The advisory service provided by Zensor is a best efforts obligation.

5.1.2 The Services may include, among other things, advice on the type and placement of the products and the collection and interpretation of data relating to the condition of various types of infrastructures, installations, devices and the like belonging to the Client.

5.1.3 Zensor’s advisory service does not affect the Client’s own duty of care.

5.2 Software-as-a-service

The Services or part of the Services may consist of delivering certain performances (including, but not limited to, registration and interpretation of data, calculations and advice) through the Platform.

5.2.1 Access

Zensor grants the Client a temporary, worldwide, non-exclusive and non-transferable license to (but limited to) access and use the Software and the Platform within the framework of the Services. The Client may only use the license for the infrastructure works mentioned in the Agreement.

The Client can access the Platform by logging in with the Account details. These Account details may only be used by the Client and may not be passed on to other (legal) persons, including affiliated companies.

5.2.2 Availability

Zensor endeavours and will use all necessary and reasonable efforts to ensure that the Platform is available to the Client 99,5% of the time (calculated from midnight on the first day of the month to midnight on the last day of the month). This is a best efforts obligation and thus not an obligation of result.

Parties confirm that Zensor cannot be held liable for the unavailability of the Platform due to (i) force majeure, (ii) circumstances attributable to third parties and (iii) maintenance (including updates and modifications) of the Platform. Unavailability of the Platform as a result of these circumstances is not included in the above mentioned availability rate.

Zensor will notify the Client at least 24 hours in advance of any scheduled maintenance (including updates and modifications) of the Platform.

The Client acknowledges that the flawless operation of a computer configuration (the ensemble of all hardware and software) can never be guaranteed and that this, as well as certain cases of force majeure or malicious intent (hacking, denial of service …), can result in the loss of (even all) of the Client’s programs and/or Data. The Client therefore undertakes to take the precautions that are necessary in his opinion, so that the consequences of such circumstances do not fall under the responsibility of Zensor.

5.2.3 Updates (changes to the Platform)

Zensor may execute updates and/or changes to the Platform on its own initiative. These updates and/or changes will be carried out automatically, without the Client’s consent, so that the Client can always enjoy the latest version.

No costs will be charged for updates and/or changes made by Zensor on its own initiative.

Updates and/or changes made are deemed to be part of the Platform and are subject to these General Terms & Conditions.

Updates and/or changes may affect the operation and availability of the Platform. Zensor will use its reasonable efforts to minimise this impact.

6. COMMON RULES FOR ALL DELIVERIES

6.1 All delivery terms communicated by Zensor are purely indicative and shall take effect – unless otherwise stipulated – from the date on which the Agreement was concluded. The Client acknowledges and accepts that the delivery period is not an essential term of the Agreement. Therefore, the mere exceeding of a delivery term cannot give rise to the termination or dissolution of the Agreement, nor to any compensation.

6.2 Without prejudice to clauses 4.1.4. and 4.4.2. of these General Terms & Conditions, the liability for hidden defects or any other defects in the products delivered is limited to the defects that become apparent within twelve (12) months after delivery of the products or services concerned. This provision does not affect the Client’s obligation to prove the existence of the hidden defect or the inherent defect, as the case may be.

Any flaws or defects must be reported to Zensor by registered letter immediately and no later than ten (10) calendar days after discovery thereof, under penalty of forfeiture of rights of recourse.

If the products delivered by Zensor would show defects (whether or not hidden) or if there would be any other malfunction, the Client can only claim a repair or replacement, without any form of compensation.