“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.
2.1 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.
4.1.1 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.
4.4.1 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.
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.
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.
Zensor endeavors and will use all necessary and reasonable efforts to ensure that the Platform is available to the Client [percentage] 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.
7. PRICE AND PAYMENT
7.1 Zensor shall deliver the products ordered and perform the services ordered by the Client at the prices and rates agreed upon in the Agreement between Zensor and the Client.
7.2 All taxes, duties and/or levies of any kind, relating to the services delivered, the products delivered and the transport shall be borne entirely by the Client.
7.3 All invoices are payable by bank transfer. Unless otherwise agreed upon, each payment shall be made within fourteen (14) calendar days of the invoice date. If the due date falls on a weekend or public holiday, the due date shall be the last working day prior to this day.
7.4 Non-payment on the due date set or agreed upon will result in all claims of Zensor against the Client becoming automatically due and payable without notice of default.
In the event of late payment by the Client, Zensor shall automatically and without prior notice of default be entitled to (i) a default interest of 10% per annum and (ii) a fixed compensation equal to 10% of the invoice amount, with a minimum of EUR 250.00 and without prejudice to Zensor’s right to prove higher damage.
7.5 Our invoices shall be deemed to be accepted if they are not expressly contested within fourteen (14) calendar days of the invoice date. A contestation of an invoice will only be taken into account if such a constestation is made by registered letter to the registered office of Zensor or by e-mail to firstname.lastname@example.org. The following information must be provided as a minimum when contesting an invoice : (i) the date of the invoice and the invoice number; (ii) the part of the invoice that is contested and (iii) an explicit justification for the contestation.
7.6 The Client shall not be entitled to set off any claim he may have vis-à-vis Zensor against the claim(s) of Zensor towards the Client.
Any complaints by the Client do not suspend its payment obligation.
8. CLIENT’S OBLIGATIONS
8.1 The Client must keep its Account details confidential at all times. The Account details may only be disclosed to employees who need access to the Platform in the performance of their assignment.
8.2 The Client must take reasonable technical and organizational measures to ensure the confidentiality of the Account details. At the first request of Zensor, the Client must inform Zensor of the measures taken in this respect. The Client is liable for damage caused by unauthorized use of the Account details.
8.3 In the event of loss or theft of the Account details, the Client must immediately report this to Zensor. In this case, Zensor has the right to block the relevant account.
8.4 The Client is responsible for its own hardware and software that is required to access the Platform. You can obtain information from Zensor about the compatibility of the Platform with your systems.
8.5 The Client shall provide the cooperation and support necessary to enable Zensor to provide the Services.
8.6 The Client must inform Zensor immediately of any errors, limitations or problems encountered when using the Platform.
8.7 The Client undertakes not to employ Zensor staff, to contact them in order to employ them or have them employed by third parties through a third party mediation, from now on and until twelve (12) months after termination of the Agreement, even if the Client is approached by Zensor’s staff themselves.
9.1 The Data provided by the Client remain the property of the Client. The Client grants Zensor the right to use these Data in order to provide the Services and to be able to fulfil its obligations under these General Terms & Conditions.
9.2 The Client must ensure that its own Data is free of errors, computer viruses, bugs or other flaws that could harm the Platform. Zensor cannot be held liable in any way for any damage caused by the Client’s defective Data.
9.3 The Client grants Zensor the right to keep a copy of all the Data for twenty (20) years after termination of the Agreement. This period shall be suspended in the event of any judicial of extrajudicial dispute with the Client.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 The Intellectual Property Rights vested in the Services and in the Platform belong in their entirety to Zensor (or Zensor holds a license in this respect). The Agreement between Zensor and the Client in no way implies any transfer of Zensor’s Intellectual Property Rights to the Client.
10.2 If, at the request of the Client, Zensor develops (whether in return for payment or not) additional functions, links, modifications to the Platform or other matters (“custom development”), all Intellectual Property Rights resulting therefrom shall be exclusively owned by Zensor. If necessary, the Client shall, at the first request of Zensor, complete all formalities that would be necessary in this respect (if applicable).
10.3 Intellectual Property Rights that remain vested in the Client’s Data are the property of the Client. The Client grants Zensor the right to use these data to provide the Services in order to comply with its obligations under the Agreement.
10.4 The Client authorises Zensor to include its name, logo and a description of the project in external communications (on the website, in a brochure, e-mails or other communication channels).
11.1 The provisions of this article 11 are not intended to exclude or limit liabilities that cannot be excluded or limited under the applicable law.
11.2 The Client understands and accepts that the Platform is only an additional tool to simplify the maintenance, management and use of infrastructure works. The Platform and the Services do not allow the Client to blindly rely on the (results of) the Services and the Platform or to fail/neglect to verify the state of the infrastructure works in any other way (such as periodic physical checks), nor do they release the Client from its general (whether or not professional) duty of care as owner and/or manager of the infrastructure works concerned.
Zensor is in any case (but not exclusively) not liable for damage caused by any errors or defects in the Services and/or the Platform if the Client could reasonably have discovered these errors or if the damage would not have been caused if the Client would not have relied only on the results of the Services and/or the Platform. The burden of proof in this respect rests with the Client.
11.3 Zensor is not liable for:
- damage caused to persons or products due to visible or hidden defects of the delivered products or other shortcomings, if the products were loaded, stored used or processed by the Client without taking into account the normal conditions of use and storage. The Client shall take out and keep in force the insurances required by law and the applicable regulations for the entire duration of the order and for the period of one (1) year thereafter;
- immaterial and indirect or consequential damage, including (but not limited to) loss of profit, loss of revenue, loss of income, production restrictions, administration or personnel costs, an increase in general costs, physical damage or death, damage and loss of data, loss of customers or claims by third parties, except in cases where the damage is caused by fraud and deliberate misconduct in respect of Zensor;
- any damages resulting from Force Majeure;
- serious or deliberate misconduct committed by its employees, officers and independent performing agents within the framework of the execution of their professional activities.
11.4 The granting of an order to execute or an order by the Client implies the agreement of the Client with the conception of the works or products. Consequently, Zensor shall not be liable for any errors in the design of works or deliveries. It shall only be liable for the proper execution of its assignment in accordance with the usual standards.
11.5 The Client shall hold harmless and indemnify Zensor against:
- all damage resulting from the failure of the Client to comply with its obligations; and
- all claims from third parties for product liability as a result of a defect in the product delivered by Zensor to the Client.
11.6 Zensor has an insurance plan for Companies with the coverage for of Civil Liability Operation and Civil Liability After Delivery. Details of this insurance can be obtained on explicit request. Any compensation for the damage incurred by the Client shall at all times be strictly limited to the maximum amount specified in the policy of the relevant insurance contract in Zensor’s name.
11.7 Zensor’s contractual and non-contractual liability shall in any event be limited to [EUR 50,000.00] per event, even in case of gross negligence. The total maximum contractual and extra-contractual liability of Zensor for all damages that may occur during the term of the Agreement shall be limited to [EUR 100,000.00].
If both art. 11.6 (in case of insurance cover) and this art. 11.7 can be applied, the provision that is most advantageous for Zensor (or its insurer) will proceed.
11.8 Any claim for compensation by the Client against Zensor shall automatically lapse if it is not brought before the competent court within three (3) years’ term after the date on which the facts concerned were known to the Client or could reasonably have been known.
12. FORCE MAJEURE
12.1 Cases of Force Majeure that temporarily or definitively prevent a Party from performing its obligations under the Agreement (other than payment) shall automatically suspend these obligations in respect of this Party for as longs as the situation of Force Majeure persists. The Parties shall take all reasonable steps to limit the consequences of a force majeure situation.
12.2 Force Majeure relieves Zensor of any liability or damages that might arise therefrom.
121.3 A Party that becomes aware of a case of Force Majeure shall immediately inform the other Party thereof.
13. DURATION AND TERMINATION
13.1 Unless expressly stipulated otherwise, the Agreement is concluded for a period of twenty-four (24) months. The Agreement will then be automatically renewed, each time for a period of twelve (12) months, unless a Party terminates the Agreement no later than three (3) months before the expiration of the current term. The termination must be done by means of a registered letter to the registered office of Zensor.
13.2 Either Party shall be entitled to terminate the Agreement with immediate effect in the event of gross negligence on the part of the other Party that was not remedied within fifteen (15) working days after the defaulting Party was given notice of the default.
13.3 Zensor is entitled to terminate the Agreement with immediate effect if (i) the Client deliberately provides incorrect information to Zensor, (ii) the Client uses the Account details for more users than contractually agreed upon or otherwise misuses the Account details, (iii) the Client has transferred its rights under the agreement in whole or in part or has given them for use to a third party and (iv) the Client is in a state of bankruptcy, judicial reorganization or other state of insolvency.
13.4 If the Agreement is terminated as a result of an error or situation on the part of the Client, Zensor shall be entitled to payment of the outstanding invoices, plus the fees that it could have invoiced if the Agreement had not been terminated early, without prejudice to the right of Zensor to prove higher damage.
14. APPLICABLE LAW AND COMPETENT COURT
14.1 The Agreement and these General Terms and Conditions are governed by Belgian law.
14.2 All disputes between the Parties relating to these General Terms and Conditions or the Agreement shall be subject to the exclusive jurisdiction of the Courts of the judicial district of Leuven.