General Terms and Conditions for People Counting Services and Devices (“PeCo Terms”)
1 CONTENT, APPLICABLITY, CHANGES AND INTERPRETATION OF COMMERCIAL TERMS
1.1 The present General Terms and Conditions for People Counting Services and Devices (“PeCo Terms”) govern all contractual obligations between BEA and the Customer related to the PeCo Devices and PeCo Services (agreements, deliveries, services, offers, etc.) for the entire duration of the business relations. In his relationship with BEA, the Customer accepts the present PeCo Terms with his Order and expressly waives the application of his own General Terms and Conditions, even in case they are established subsequently to the present PeCo Terms. Any derogation to these PeCo Terms shall, in order to be valid, be agreed upon expressly, in writing and signed by BEA. BEA’s PeCo Terms shall apply even in case BEA delivered without reservation the PeCo Devices and/or the PeCo Services to the Customer with knowledge of inconsistent or different General Terms and Conditions.
1.2 Oral agreements or agreements by phone need written confirmation by BEA in order to be valid. Orders, contracts and commitments are only binding for BEA if they have been confirmed in writing by BEA.
1.3 BEA may modify the PeCo Terms with effect for on-going Orders in accordance with this sub-clause 1.3: BEA will notify the Customer about the contemplated modification at least six (6) weeks in advance in an appropriate manner (e.g. email or through a customer web portal). Such notification will clearly inform the Customer about the contemplated modification, Customer’s right to object and the consequences of an objection or non-objection, respectively. If the Customer does not object within four (4) weeks, the modifications will become valid and the contractual relationship will continue on the basis of the modified PeCo Terms. If the Customer does object within the aforesaid objection period, the modifications do not become valid and the contractual relationship will continue on the basis of the original PeCo Terms. In the latter case, BEA may terminate any affected Order upon four (4) week’s prior notice. Such termination will be without prior court authorisation, without obligation to pay compensation or indemnities to the Customer. The interpretation of commercial clauses shall be done according to the commercial usage in Belgium and to the «Incoterms» of the International Chamber of Commerce in their present version.
2.1 “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means (i) direct or indirect ownership or control of more than 50% of the voting interests of the subject entity and/or (ii) the ability to direct or cause the direction of the management and policies of the subject entity.
2.2 “Authorized Users” means the natural persons authorized to access and use the PeCo Services. Unless agreed otherwise in writing, the Authorized Users may include employees, representatives, agents, installers, affiliates, partner companies, end users or end customers, of the Customer who have a legitimate interest to access and use the Services on behalf and under the control and responsibility of the Customer in accordance with the PeCo Terms and (if applicable) the BEA End User Licensing Agreement for PeCo Software Services and PeCo Device Software (“EULA”).
2.3 “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of the Customer shall include Customer Data; Confidential Information of BEA shall include the PeCo Data, PeCo Device Software and the PeCo Services, in particular the Software Services and Software Service Client, in any form or expression, any Service Description, documentation, and any other information concerning the PeCo Devices and PeCo Services and its underlying technology; Confidential Information of each Party shall include the existence and the terms and conditions of the Order and the business relationship between the Parties, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a Third Party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
2.4 “Contractual Year” is any period of twelve (12) months commencing on the effective date of the relevant Order and any anniversary thereof provided that the last such Contractual Year shall be considered to end on the date of termination (howsoever arising) whether or not that date is an anniversary of the effective date of such Order.
2.5 “Customer” means the respective company that enters into an Order with BEA for the delivery of PeCo Devices and/or performance of PeCo Services.
2.6 “Customer Data” means all electronic data or information submitted by or on behalf of the Customer or Authorized Users to the Services, e.g. configuration data (company name and address, user name and email).
2.7 “Charges” means any remuneration agreed in the relevant Order that BEA is entitled to claim from the Customer in consideration for providing the PeCo Devices and/or PeCo Services.
Generally, the Charges subdivide into
(i) the “Hardware Charges” meaning the one-time charges for the delivery of the purchased BEA devices; and
(ii) the “Service Charges” meaning the ongoing charges for Customer’s right to use the PeCo Services.
2.8 “Enhancement” shall mean any new release or version of the Software Services, including any error corrections, updates, bug fixes, patches, and/or modifications.
2.9 “Intellectual Property Rights (IPR)” are any and all rights in and with respect to inventions, patents, copyrights, database rights, designs, know-how, trade secrets, moral rights, confidential and/or proprietary information, trade names, domain names, trade dress, logos, animated characters, trademarks, service marks, and other similar rights or interests in intellectual property, in any case whether arising by registration or operation of law (and in the case of registered rights including all rights to apply and applications), wherever in the world arising, whenever arising and including all present and (where capable of present ownership) future rights.
2.10 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
2.11 “Order” means any individual agreement between BEA and the Customer for the purchase of PeCo Devices and/or PeCo Services containing the specific commercial arrangements (including but not limited to type and number of purchased PeCo Devices, scope of PeCo Services and pricing) and including any BEA documentation and/or BEA policy, if any, referenced in the order document or in the PeCo Terms. Generally, an Order will be established by an offer from BEA and Customer’s acceptance of such offer. Alternatively, an Order may be established by a Customer “purchase order”, “PO”, or the like and BEA’s acceptance of such Order by a duly authorized representative. For the avoidance of doubt, BEA shall be under no obligation to accept any order. Any Order incorporates any and all terms and conditions of the PeCo Terms.
2.12 “PeCo Data” means the data or information collected and/or generated by PeCo Devices (and transmitted to servers operated by BEA and/or any of its subcontractors) related to the results of people counting in connection with Customer’s use of PeCo Devices and PeCo Services, in particular without limitation counting data, video data and meta data.
2.13 “PeCo Device(s)” shall mean any people counter or any other hardware designated for counting people delivered by BEA under the PeCo Terms, including accessories, cabling, batteries, or the like.
2.14 “PeCo Device Data” means all data or information collected and/or generated by PeCo Devices related to the status and functionality of the PeCo Devices and/or other related technical information, in particular without limitation PeCo Device meta data.
2.15 “PeCo Services” means the services, tasks and responsibilities of BEA as explicitly set forth in the applicable Service Description (as amended by BEA from time to time in accordance with the PeCo Terms) that are ordered by the Customer.
Depending on the scope of the relevant Order, the PeCo Services encompass
i) the “Counting Services”, meaning the people counting performed by the PeCo Devices;
ii) the “Counting Proof Services”, meaning the optional service offering to verify the accuracy of the Counting Services by way of creating and reviewing a timely limited video or data material (as specified in the applicable Service Description);
iii) the “Software Services”, meaning the web-based applications (e.g. device management and access to PeCo Data related results in a format specified in the applicable Service Description) provided by BEA on a “as a Service” basis, including any Enhancements and “Support Services”, meaning the technical support provided by BEA for the Software Services;
iv) the “Software Service Client”, meaning the application software, if any, as updated by BEA from time to time, that the Customer is required to install on a client device in order to obtain access to the Software Services, including the related user documentation, if any; and
For the avoidance of doubt, PeCo Services does not mean any Third-Party-Services. Such Third-Party Services are governed by separate agreements between the Customer and the respective Third Party.
2.16 “Service Description(s)” means the descriptions and technical specifications of the PeCo Services, as amended from time to time.
2.17 “Service Term” means the fixed term of the relevant Order.
2.18 “Software Services Availability” is the average percentage of total time during which the Software Services are available to the Customer during a month, excluding planned downtimes for maintenance Services communicated to the Customer by BEA sufficiently in advance and any other exclusions, if any, described in Annex A (“SLA Software Services Availability”).
2.19 “Third-Party Services” means services offered by third parties that may be accessed by the Customer from within the PeCo Services, including web-based applications and offline software products that are provided by third parties, and/or interoperate with the PeCo Services.
3 OFFERS AND SPECIFICATIONS
3.1 All offers made by BEA are free and without commitment. They will only be binding after an explicit written confirmation given by BEA with indication of a validity period.
3.2 Unless explicitly otherwise provided in the Order, all information about weight, dimension, capacity, prices, efficiency and any other information to be contained in catalogues, brochures, newsletters, advertisements, price lists, and websites are indicative.
3.3 BEA reserves the right to make modifications to the PeCo Devices at any time and without notice without however changing the specifications of the PeCo Devices. BEA also reserves the right to make modifications to the PeCo Devices at any time and without notice if these modifications are useful or necessary with respect to the provisions in force applicable to PeCo Devices.
3.4 BEA may at any time make changes or updates to the PeCo Services, including Enhancements or other changes, such as functionality, infrastructure, security, technical configurations, application features, etc. (and make the corresponding changes or updates to the applicable Service Description), provided however that any such changes will not result in a material degradation of functions and functionalities or in the level of performance, security or availability of such ongoing PeCo Services that are already purchased and in use by the Customer. If BEA, in its reasonable discretion, is required to make changes to such ongoing PeCo Services that are already purchased and in in use by the Customer due to changes to applicable laws, BEA will make the appropriate changes and notify the Customer accordingly without undue delay. If such changes result in a material degradation of functions or functionalities or in the level of performance, security or availability of such ongoing PeCo Services, BEA will offer to the Customer a reasonable adjustment of the Service Charges for the affected portion of the PeCo Services. If the Customer is not willing to accept such offer and the Parties fail to achieve a mutually acceptable solution in good faith, the Customer may, within 10 days from BEA’s notification about the changes, terminate for cause the affected portion of the PeCo Services. Such termination will be without prior court authorisation and without compensation or indemnity for the Customer.
3.5 Nothing in the PeCo Terms and/or any Order shall be construed as limiting BEA’s rights to offer the PeCo Devices and/or PeCo Services to any Third Party.
4 DELIVERY OF PECO DEVICES
4.1 The Customer may request delivery of the PeCo Devices to the delivery destination set forth in the relevant Order. If no delivery destination is set forth in the Order, BEA will deliver the PeCo Devices to the Customer address stated in the Order.
4.2 Partial deliveries are admitted. According to the specificity and/or the extent of the Order, BEA reserves the right to perform partial deliveries as her availabilities go along.
4.3 If the Customer does not take delivery at the moment agreed upon by the Parties, the Customer has nevertheless to pay the PeCo Devices. The stocking of the PeCo Devices takes place on behalf and at the risks of the Customer.
4.4 Unless otherwise provided in writing, the transfer of the risk of loss, of theft or of any other damage of the PeCo Devices takes place at the time the PeCo Devices leave the premises or any other depository of BEA in order to be carried to the Customer or his transporter. Unless otherwise provided in writing, the Customer has to bear the freight costs, customs duties and insurance fees.
4.5 The PeCo Devices are carried on behalf and at the risks of the Customer. BEA reserves the right to choose the itinerary, the packaging and other transport security procedures. Unless otherwise provided in writing, the transport contracts and transport insurance contracts are negotiated by BEA.
4.6 All PeCo Devices are sold « ex-works » (EXW) according to Incoterms.
4.7 In case of sale for export, the Customer is responsible for obtaining import licenses and exchange licenses.
4.8 Delivered PeCo Devices may in no circumstances be returned to BEA without her prior written consent.
4.9 Delivery periods are always approximate and to be confirmed by BEA with the respective order confirmation. The delivery period begins at the day of sending of the order confirmation and is observed if the PeCo Device has left BEA’s premises by the end of the delivery period. Delay in delivery of the PeCo Device, for whatsoever reason, does not carry the right for the Customer to demand compensation for damages or indemnity, nor a cancellation of the Order.
4.10 In case of Force Majeure, BEA has the right, either to reasonably extend the delivery period – even in case of late delivery – or to suspend the performance of the Order for the duration of the Force Majeure, or to terminate all or part of the Order at any time with immediate effect, without payment of damages from BEA to the Customer. Events of Force Majeure include without limitation wars, rebellion, strikes, lock-out, contagious diseases, natural disasters, flooding, fires, accidents of exploration, unforeseeable perturbations in the manufacturing conditions, administrative measures, difficulties in power supply, delays in delivery of raw materials or components, or similar events.
4.11 In case of an alteration whatsoever of Customer’s financial situation, BEA reserves the right to demand guarantees and to stay the performance of the order awaiting the constitution of the payment guarantees.
4.12 In case of seizure, bankruptcy or other collective procedures such as the judicial reorganization, composition with creditors or similar procedures, BEA has the right to suspend its obligations or to terminate the Order and to claim liquidated damages of 40 % of the agreed Charges. The damages set forth in this sub-clause 4.12 does not affect in any way BEA’s right to claim additional damages from the Customer, if the damage sustained by BEA exceeds said liquidated damages. BEA may demand from the Customer the return, at Customer’s expenses and risks, of any unpaid PeCo Devices.
5 RETENTION OF TITLE TO PECO DEVICES
5.1 BEA reserves title to the delivered PeCo Devices until the payment in full of all existing claims towards the Customer that result from the same Order (invoices, interests, expenses, etc.). If the amount of all the guarantees of BEA exceeds the sum of all claims by more than 20 %, BEA releases on Customer’s request the corresponding part of these guarantees.
5.2 During the period of reservation of title, the Customer must not dispose of, pawn and/or assign (not even as guarantee) the PeCo Devices. The resale of the PeCo Devices is only authorized if this resale corresponds to Customer’s usual business course or if the Customer gets immediate and full payment by his contracting partner or sells the PeCo Devices subject to valid title. By registered letter the Customer shall inform all interested parties (such as the owner of the premises or the holder of pledge on the Customer’s assets) of the fact that the PeCo Devices present in its premises are not his property, in case of a reservation of title by BEA.
5.3 Nevertheless, in case of disposal of the delivered PeCo Devices by the Customer, the Customer assigns from the present on all rights resulting from this disposal (including VAT) to BEA which accepts the assignment.
5.4 For valid reasons, in particular in case of non-payment by the Customer, the Customer is obliged, on BEA’s request, to inform his contracting partner about the assignment and to transfer to BEA all necessary information and documents in order to allow BEA to be able to claim all its rights.
5.5 The transformation or treatment by the Customer of a delivered PeCo Device is made on behalf of BEA. If the PeCo Device is transformed with other movables which do not belong to BEA, BEA acquires undivided (common) ownership of the new movable on a pro rata basis of the value of the delivered PeCo Device with regard to the other transformed movables at the time of transformation. Sub-clause 5.1 applies to the new so transformed movable.
5.6 If the delivered PeCo Device is combined or mixed in an inseparable manner with other movables which do not belong to BEA, BEA acquires the undivided (common) ownership of the new movable on a pro rata basis of the value of the delivered PeCo Device with regard to the other combined or mixed movables at the time of combining or mixing.
5.7 The Customer has to inform BEA immediately about any possible seizures, distraints or other acts of disposal or intervention by third Parties on the PeCo Device.
5.8 In case of negligence due to the Customer, in particular in case of late payment, BEA is entitled to terminate the affected Order and to take back the respective PeCo Devices after expiration, without any made payment, of the reasonable time limit given to the Customer. No derogation is made to the legal provisions concerning the uselessness of the determination of a time limit. The Customer is obliged to return the respective PeCo Devices.
6 END OF LIFE OF PECO DEVICES
6.1 The Customer assumes full responsibility and cost for the maintenance and safe handling of the delivered PeCo Devices, and for the proper removal, collection, recycling, disposal and reporting of the PeCo Devices at their end of life in accordance with applicable law. Since PeCo Devices are deemed to be electronic equipment and intended to be installed by professionals, it is the responsibility of said professionals to dispose of the PeCo Devices after its use via the appropriate reprocessing and recycling channels, and in accordance with the regulations in force in the relevant country. For example, but not exclusively, for countries of the European Union, this must be in accordance with European Directive 2012/19/EC on waste electrical and electronic equipment and the ensuing national laws of the relevant country.
6.2 If applicable local law specifies that all or some of the obligations described in sub-clause 6.1, including financing, may be allocated either to the end user or producer depending on the contractual agreement of the Parties, this clause 6 shall be interpreted as contractually allocating that responsibility to the Customer.
7 PECO SERVICES GENERALLY
Subject to Customer’s due payment of the Service Charges BEA will provide to the Customer during the respective Service Term the PeCo Services as specified in the applicable Service Description.
8 PECO DATA, PECO DEVICE DATA AND CUSTOMER DATA
8.1 Customer Data
8.1.1 As between BEA and the Customer, the Customer exclusively owns all rights, title and interest in and to all Customer Data. The Customer grants BEA and its subcontractors a limited, transferable, non-exclusive license to use the Customer Data for the sole purpose, and solely as required, to perform the Services. BEA may create copies of Customer Data in anonymized form (i.e. without information identifying the Customer, Authorized Users or any other individuals) and evaluate such anonymized data aggregated with anonymized data of other customers, including for statistical purposes as well as for improving and further developing the Services.
8.1.2 Without limiting the above, BEA shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. BEA shall not (i) modify Customer Data except to delete, block, move or edit any Customer Data that it may determine, in its reasonable discretion, violates the PeCo Terms and/or applicable laws, (ii) disclose Customer Data except as compelled by law in accordance with sub-clause 17.3 below or as expressly permitted in writing by the Customer, or (iii) access Customer Data except to provide the Services and prevent or address service or technical problems, or at Customer’s request in connection with customer support matters.
8.2 PeCo Data
8.2.1 As part of the PeCo Services, in particular the Counting Services, BEA will collect certain PeCo Data in accordance with the applicable Service Description.
8.2.2 Notwithstanding sub-clause 8.2.5, the Customer and any Authorized User may use the PeCo Data for the sole purpose of using the PeCo Services in accordance with the Order, the applicable Service Description and the PeCo Terms. This includes the right to use the PeCo Data to integrate, or have integrated by third parties on Customer’s behalf, the respective PeCo Services into Customer’s service offerings to its end customers as contemplated in the relevant Order, the applicable Service Description and the PeCo Terms. Except as provided otherwise in 8.2.5, the Customer shall not use, or have used, any PeCo Data for any other purposes without BEA’s prior written consent.
8.2.3 BEA may use any PeCo Data in anonymized form (i.e. without information identifying the Customer and/or any individuals) and use such anonymized data in accordance with applicable law. This includes in particular but without limitation an aggregation of such anonymized PeCo Data with anonymized data of other customers for improving, (further) developing and marketing the PeCo Services and/or any other BEA services.
8.2.4 The rights of BEA set forth in sub-clause 8.2.3 are not limited to the duration of the Service Term and accordingly shall survive expiry or termination of any Order. Unless provided otherwise by applicable laws and subject to sub-clause 8.2.5, BEA is not obliged to delete any PeCo Data.
8.2.5 If and to the extent subject to applicable data protection laws PeCo Data constitutes personal data, BEA processes such data as data processor on behalf of the Customer under a data processing agreement (cf. clause 18). The Customer may request an anonymization of the relevant PeCo Data in accordance with the provisions of such data processing agreement.
8.3 PeCo Device Data
8.3.1 As between BEA and the Customer, BEA exclusively owns all rights, title and interest in and to all PeCo Device Data. No rights in or to the PeCo Device Data are granted to the Customer hereunder other than as expressly set forth in this sub-clause 8.3.1. Generally, the Customer will not be granted access to any PeCo Device Data and BEA is under no obligation to make any PeCo Device Data available to the Customer. If BEA, in its sole and absolute discretion, makes available to the Customer any PeCo Device Data, Customer will be granted a limited, non-transferable and non-exclusive right to use such PeCo Device Data only for the sole and limited purposes as expressly permitted by BEA and only for the period of time designated by BEA. The Customer shall not use, or have used, any PeCo Device Data for any other purposes without BEA’s prior written consent.
8.3.2 BEA may limit, suspend or terminate Customer’s right to use such PeCo Device Data at any time with or without any reason.
9 SPECIFIC PROVISIONS FOR SOFTWARE SERVICES
9.1 Subject to Customer’s due payment of the Service Charges BEA grants to the Customer for the duration of the Service Term a non-exclusive, non-transferable, non-sublicensable right to access and use the Software Services by its Authorized Users only and solely for Customer’s business purposes in accordance with the relevant Order, any applicable Service Description and the PeCo Terms. The Customer may use the Software Services commercially to provide service offerings to its end customers in its ordinary course of business in accordance with the Service Description, provided that the Customer (i) shall grant any end customer access to the Software Services only upon the end customer’s acceptance of the BEA End User Licensing Agreement for PeCo Software Services and PeCo Device Software (“EULA”) by a duly authorized representative, (ii) shall not modify the Software Services, (iii) shall keep intact any logos, trademarks, copyright notices or the like in the Software Services, (iv) shall be fully responsible, as between the Parties, for any Customer Data or any other content submitted to the Software Services by any end customer, and (v) shall fully indemnify, defend and hold harmless BEA from and against any claims that a Third Party asserts against BEA that is related to a violation of Customer’s obligations set forth in lit. (i) through lit. (iii), or to any Customer Data or other content mentioned in lit. (iv). The Customer may grant its Affiliates access to the Software Services and/or use the Software Services for the benefit of its Affiliates provided that (a) the respective Affiliate accepts the BEA End User Licensing Agreement for PeCo Software Services and PeCo Device Software (“EULA”) by a duly authorized representative, (b) the Customer gives BEA advance written notice of such intended use by its Affiliates, indicating the names and contact information of each respective Affiliate, and (c) the Customer shall be fully responsible for any act or omission of any such Affiliate as if it was an act or omission of the Customer itself, in particular for any use of the Software Services in excess of the rights granted in the PeCo Terms or any other misuse of the Software Services.
9.2 Except as set forth in sub-clause 9.1, any grant of access rights to third parties is strictly prohibited and the Customer is not entitled to sell, lease, rent, (re-)distribute, (re-)market, make available to the public, use for service bureau purposes or on a timesharing basis, or otherwise make the Software Services available to third parties.
9.3 The Customer will be given logins and passwords for its Authorized Users to use in connection with the Software Services. The Customer shall change the logins and passwords on a regular basis in accordance with appropriate password policies. The Customer, and each Authorized User, is entirely responsible for maintaining the confidentiality and security of Customer’s passwords, and is solely responsible for any and all activities that occur under its account(s) to the extent such activities have been authorized by the Customer and/or an Authorized User, or have not been authorized by Customer and/or an Authorized User but could have been prevented by it when exercising due care. Passwords may not be used by more than one Authorized User and the Customer is prohibited from transferring or sharing passwords with any person that is not an Authorized User. The Customer shall ensure that Authorized Users exit or log-off from their account at the end of each session of use.
9.4 BEA will make the Software Services available to the Customer as described in the applicable Service Description. BEA assumes no warranty or liability that the Software Services meet the expectations of the Customer with regard to individual requirements and purposes of the Customer unless explicitly agreed between the Parties in the PeCo Terms. The Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by BEA regarding future functionality or features.
9.5 BEA will make the Software Services available with a Software Services Availability set forth in Annex A (“SLA Software Services Availability”) during any calendar month of any Contractual Year. Any availability of the Software Services exceeding the aforesaid period of time is not part of the Software Services and BEA is under no obligation to provide the Services for such additional time. The demarcation point, at which the Software Services Availability will be measured, shall be the WAN-sided router output of the data center in which the Software Services are hosted. Further details regarding Software Services Availability, including its calculation are set forth in Annex A (“SLA Software Services Availability”).
9.6 Service Client
9.6.1 If a Software Service Client is required for the access to certain Software Services, BEA (i) will deliver to the Customer either by physical or electronical delivery (e.g. download) an appropriate number of copies of the Software Service Client and (ii) grants to the Customer for the Service Term a non-exclusive, non-transferable, non-sublicensable right to use the Service Client solely for the purpose of accessing and using the Software Services on the terms and subject to the conditions of the PeCo Terms.
9.6.2 If according to BEA a Software Service Client is required, the Customer may only access the respective Software Services through that Software Service Client. Any other way of accessing the respective Software Services is prohibited. BEA assumes no warranty and shall not be liable for Customer’s access or access attempt to such Software Services by a different way than through the Software Service Client.
9.6.3 The Customer shall return to BEA any and all copies of the Software Service Client upon the first to occur of (a) the termination of the relevant Order, or (b) a notification by BEA that the Software Service Client is no longer required for accessing the respective Software Services. Upon written request of BEA, the Customer shall, instead of returning, finally and irrevocably delete any and all copies of the Software Service Client in accordance with any reasonable instructions of BEA. The Customer shall confirm in writing to BEA within thirty (30) days upon receipt of the request that the Customer has satisfied the above obligations.
9.7 The Software Services include Support Services which enable the Customer to notify errors in the Software Services and to obtain user support for Authorized Users through the communication channels (e.g. email, phone, ticket system) as set forth in the applicable Service Description or a documentation or policy made available by BEA. The Support Services shall be available during the service times Monday to Friday between 9:00 a.m. and 5:00 p.m. CET unless agreed otherwise.
10 SYSTEM REQUIREMENTS
The Service Description may set forth certain system requirements to be fulfilled by the Customer for the proper performance of the PeCo Devices and/or PeCo Services, including without limitation hardware and operating system. The PeCo Devices and/or PeCo Services will be delivered in a manner that will support those specified system requirements. BEA assumes no warranty and shall not be liable for any consequences to the extent they are caused by a failure of the Customer to use the PeCo Devices and/or PeCo Services in accordance with any such defined system requirements.
11 SPECIFIC CUSTOMER DUTIES
11.1 The Customer shall render to BEA any cooperation that is reasonable and appropriate for the proper delivery and performance of the PeCo Devices and/or PeCo Services. The Customer acknowledges that BEA’s delivery and performance may depend on Customer’s timely and proper performance of Customer’s cooperation obligations. In particular the Customer shall (i) make available to BEA, in a reasonable format and in a timely manner, the data and information that is necessary for delivering the PeCo Devices and/or performing the PeCo Services, (ii) use reasonable measures to ensure that the personnel involved in receiving and using the PeCo Devices and/or the PeCo Services is adequately qualified, and (iii) provide timely instructions, approvals, sign-offs and acceptance declarations. Customer’s cooperation obligations may include ensuring performance of the necessary cooperation by Customer’s agents, contractors, consultants or Third Party providers involved by the Customer in connection with Customer’s use of the PeCo Devices and/or the PeCo Services. Further cooperation duties may be set forth in the relevant Order and/or the applicable Service Description. If the Customer fails to cooperate as agreed, BEA shall not be responsible for any consequences caused by such failure. In particular, any deadlines or Service Levels affected by such failure to cooperate shall be suspended for a period that equals the duration of Customer’s failure to cooperate plus a reasonable time to resume. The Customer shall reimburse BEA for any additional efforts caused by such failure on the applicable time & material rates.
11.2 In performing its obligations under the relevant Order and the PeCo Terms, BEA will be entitled to reasonably rely upon any instructions, authorizations, sign-offs, acceptance, approvals or other information provided to BEA by the Customer. BEA shall not be liable for any consequences arising out of its delivery of PeCo Devices and/or performance of the PeCo Services in accordance with such information received from the Customer.
11.3 The Customer shall (i) comply, and shall procure that the Authorized Users comply, with the relevant Order, any applicable Service Description and the PeCo Terms, including but not limited to the acceptable use set forth in sub-clause 11.4; (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which it acquired Customer Data; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the PeCo Devices and/or PeCo Services, and notify BEA promptly of any such unauthorized access or use; (iv) use the PeCo Devices and/or PeCo Services only in accordance with the applicable Service Descriptions and applicable laws and government regulations, (v) not interfere with or disrupt the integrity or performance of the PeCo Devices and/or PeCo Services or third-party data contained therein, and (vi) not attempt to gain unauthorized access to the PeCo Devices and/or PeCo Services or their related systems or networks.
11.4 The Customer acknowledges and agrees that BEA does not monitor or police the content of communications or data of the Customer or its Authorized Users uploaded in or transmitted through the PeCo Devices and/or PeCo Services and that BEA shall not be responsible for the content of any such communications or transmissions. The Customer shall use the PeCo Devices and/or PeCo Services exclusively for authorized and legal purposes, consistent with all applicable laws. The Customer agrees not to load into the Software Service any content or data which (i) is libelous, defamatory, obscene, pornographic, abusive, harassing or threatening; (ii) contains Malicious Code; (iii) violates the rights of others, such as data which infringes on any Intellectual Property Rights or violates any right of privacy or publicity; or (iv) otherwise violates any applicable laws (including, without limitation, the laws and regulations governing unfair competition). BEA reserves the right to delete, move or edit any Customer Data that it may determine, in its reasonable discretion, violates the PeCo Terms and/or applicable laws. The Customer shall indemnify and hold harmless BEA from and against all Third Party claims that result from a breach to this obligation by the Customer.
11.5 Subject to applicable laws, BEA reserves the right to monitor Customer’s compliance with the relevant Order, any applicable Service Description and the PeCo Terms. This may include without limitation license management measures which control whether the Software Services are accessed by Authorized Users only.
12 THIRD-PARTY PROVIDERS
12.1 Any purchase by the Customer of Third-Party Services and any exchange of data between the Customer and any third-party provider, is solely between the Customer and the applicable third-party provider. BEA assumes no warranty for Third-Party Services, whether or not they are authorized by BEA. The Customer shall indemnify and hold harmless BEA from and against all Third Party claims that result from a breach by the Customer towards the third-party provider.
12.2 If the Customer installs, accesses and/or enables Third-Party Services, the Customer acknowledges that BEA may allow providers of those Third-Party Services to access Customer Data as required for the interoperation of such Third-Party Services with the Software Services. BEA shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Third-Party Service providers. The Software Services may allow the Customer to restrict such access by restricting Authorized Users from installing or enabling such Third-Party Services for use with the Services.
13.1 All prices by BEA are indicative prices and without commitment. BEA reserves the right to review prices before acceptance of the Order.
13.2 The Customer shall pay all Charges specified in the relevant Order. Except as otherwise specified herein, (i) all Hardware Charges are considered «ex-works», (ii) all Charges are quoted and payable in Euro, and (iii) payment obligations are non-cancellable and Charges paid are non-refundable, except the Customer terminates an Order for cause, in which case the Customer shall be entitled to claim a pro-rata reimbursement of the affected Service Charges in accordance with sub-clause 23.3.
13.3 Unless agreed otherwise in the relevant Order, BEA is entitled to invoice (i) Hardware Charges upon delivery of the respective PeCo Devices and (ii) Service Charges monthly in advance.
13.4.1 The Charges do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, federal or foreign jurisdiction. BEA will invoice the Customer, and Customer shall reimburse BEA for, any such taxes charged to BEA by any governmental authority in connection with providing the PeCo Devices and/or PeCo Services to the Customer.
13.4.2 Where applicable laws require the Customer to withhold and pay any withholding taxes or similar levies, the Customer may do so, provided that Customer’s obligation to pay the net prices as invoiced by BEA shall remain unaffected. Therefore, as between the Parties, the Customer shall pay to BEA the net amount remaining after the respective deduction plus the amount that was deducted, in order to ensure that BEA receives the full net price as contractually agreed.
13.5 If the relevant Order provides for payment in a foreign currency, a price review clause will be applied, and BEA reserves the right to review the Charges on a pro rata basis of the official exchange rate between Euro and the foreign currency of the offer at the moment of delivery.
13.6 Once per Contractual Year, for the first time upon the first anniversary of the effective date of the relevant Order, BEA may in its discretion adjust the agreed Service Charges, with effect for the following commencing month.
13.7 Every special customization requested by the Customer for PeCo Devices will be charged to the Customer.
14 PAYMENT PROCEDURES
14.1 Invoices issued by BEA are payable upon receipt at the registered office of BEA, unless otherwise provided on the invoice. Legally due VAT or other taxes (cf. sub-clause 13.4) at the time of the issuance of the invoice are to be supported by the Customer.
14.2 Payments shall be effected in Euro and by transfer on the bank account (IBAN: BE18 3400 2949 0765, BIC: BBRUBEBB).
14.3 BEA is not obliged to accept checks or bills of exchanges. If BEA exceptionally accepts bills of exchanges or (certified) bank checks, this acceptance happens provided BEA will be credited with the total amount.
14.4 Payments by instalments made by the Customer are to be charged against the Charges of the Order and constitute in no circumstances a deposit the surrender of which would authorize the Parties to free themselves from the agreement.
14.5 Any payment made to representatives or employees of BEA is only in full discharge provided prior express agreement by BEA.
14.6 Any claim with regard to an invoice shall be done by registered mail within eight (8) days after receipt of the invoice. Upon expiration, no claim will be accepted, and the invoice will be considered as accepted by the Customer.
14.7 The Customer may not withhold or offset any Charges, including in case of warranty claims, unless and until the corresponding claims of the Customer are undisputed by BEA or established by a competent court of final jurisdiction. If the Customer withholds or offsets any Charges in violation of the aforesaid, then, without prejudice to BEA’s other rights or remedies, upon 7 days’ prior notice BEA may suspend the delivery of PeCo Devices and/or performance of PeCo Services on a temporary basis until the Customer has fully settled the withheld amount.
15 NON-PAYMENT, CANCELLATION
15.1 In case of non-payment at the due date, the Customer shall pay automatically and without any prior notice interest on overdue payments at a rate of 12 % per year or the highest statutory rate permitted under applicable laws, whichever is higher. This non-payment at the due date also gives rise, under the same conditions, to the payment of liquidated damages of 15 % of the amount of the unpaid invoice, with a minimum amount of 100.00 EUR. BEA is also entitled to suspend, without any prior notice only by taking notice of the non-payment, the performance of all the obligations it may have towards the Customer who leaves the invoice unpaid.
15.2 The non-payment at the due date of an invoice leads, in addition, to an immediate enforceability of all sums due by the Customer to BEA, even if those sums are not due yet.
15.3 In case of non-payment, non-collection of bills of exchanges or (certified) bank checks, suspension of a payment or insufficient solvency, BEA is entitled to demand the immediate payment or the constitution of a guarantee concerning all performed deliveries and to demand payment on account for future deliveries.
15.4 Unless otherwise agreed in BEA’s order confirmation, in case of cancellation of an Order by the Customer, 25 % of the agreed Charges will be due as liquidated damages.
15.5 The liquidated damages foreseen in sub-clause 15.4 do not affect BEA’s right to claim additional damages from the Customer, if the damage sustained by BEA is superior to the said liquidated damages.
16 INTELLECTUAL PROPERTY RIGHTS
16.1 Subject to the limited rights expressly granted in the PeCo Terms, BEA reserves all rights, title and interest in and to the PeCo Devices (in particular any PeCo Device Software embedded therein), the PeCo Services and any PeCo Data, including all related Intellectual Property Rights. No rights are granted to the Customer hereunder other than as expressly set forth herein.
16.2 The license grant for the Software Services is set forth in sub-clause 9.1.
16.3 PeCo Devices
16.3.1 The PeCo Devices may include software developed and owned by BEA or on BEA’s behalf (“PeCo Device Software”) and/or software developed and owned by a Third Party supplier including Open Source Software (“Third Party Software”) (“PeCo Device Software” and “Third Party Software” jointly referred to as “Software”). Any Software will be delivered in machine-readable executable code, embedded or installed in the respective PeCo Device. The source code of the Software remains with BEA or the supplier of the Third Party Software, as the case may be.
16.3.2 The Customer is aware and acknowledges that the use of the PeCo Device Software by any end user (either the Customer or its end customers) is subject to the terms and conditions of the BEA End User Licensing Agreement for PeCo Software Services and PeCo Device Software (“EULA”). The use of Third Party Software, if any, may be subject to separate terms and conditions of any license of such Third Party, which may include Open Source Software license terms.
16.3.3 If the Customer purchases the PeCo Device for its own use (including for providing services to its end customers), i.e. no redistribution to Customer’s end customers occurs, BEA grants the Customer the right to use the PeCo Device Software subject to Customer’s acceptance of, and only in accordance with, the BEA End User Licensing Agreement for PeCo Software Services and PeCo Device Software (“EULA”).
16.3.4 If the Customer does not purchase the PeCo Device for its own use, but rather a redistribution to Customer’s end customers occurs, the following shall apply: The Customer shall ensure that each end customer of a PeCo Device with embedded PeCo Device Software receives a physical or digital copy of the BEA End User Licensing Agreement for PeCo Software Services and PeCo Device Software (“EULA”). The Customer may only use the PeCo Device Software to the extent this is necessary to distribute, or have distributed, the PeCo Devices to end customers in accordance with the relevant Order, any applicable Service Description and the PeCo Terms. Unless otherwise provided for by applicable mandatory copyright law, the Customer may not copy, modify, translate, adapt, decompile, disassemble or reverse engineer the PeCo Device Software. The Customer may distribute the PeCo Device Software only as installed or embedded in the PeCo Devices by BEA. Any other distribution, sale, lease, rent, or making available to the public of the PeCo Device Software is strictly prohibited. In particular, the Customer must not use the PeCo Device Software (i) on, or in combination with, any other hardware than the respective PeCo Device, (ii) in combination with any other software, or (iii) as stand-alone-software. The Customer may not change or remove any copyright and/or authorship notices attributable to the PeCo Device Software.
16.4 The Customer shall not (i) permit any Third Party to access the PeCo Devices and/or the PeCo Services except as permitted in the PeCo Terms, (ii) create derivative works based on the PeCo Devices and/or the PeCo Services, (iii) reverse engineer the PeCo Devices and/or the PeCo Services, unless this is permitted by mandatory applicable laws, or (iv) access the PeCo Devices and/or the PeCo Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the PeCo Devices and/or the PeCo Services.
16.5 BEA shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the PeCo Devices and/or the PeCo Services any suggestions, enhancement requests, recommendations or other feedback provided by the Customer, including Authorized Users, relating to the PeCo Devices and/or the PeCo Services.
17.1 Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of the PeCo Terms, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees who need such access for purposes consistent with the PeCo Terms and who are bound by confidentiality obligations materially comparable to the terms of this clause 17. The Parties agree that BEA may use and have used and disclose Confidential Information by or to (i) its Affiliates, subcontractors and/or technical service providers, e.g. of hosting or outsourcing services, (ii) legal counsel, tax advisors, auditors and/or accountants, or (iii) third parties that are involved in M&A or restructuring activities concerning BEA to the extent this is reasonably required to conduct such activities, in each case of (i) through (iii) provided that such Third Party is bound by legal or professional confidentiality duties or has agreed to confidentiality obligations materially comparable to the terms of this clause 17.
17.2 The Customer agrees that BEA may use and disclose to third parties Customer’s name and logo (a) on its customer list; and (b) with Customer’s prior written approval, not be unreasonable withheld or delayed, in other BEA marketing materials.
17.3 The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law or competent authority to do so. The Receiving Party shall give the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
18 DATA PROTECTION
18.1 Each Party undertakes and agrees to comply with all data protection laws, regulations, requirements or the like, that apply to the performance of each Party’s obligations under the relevant Order and the PeCo Terms.
18.2 In order for BEA to properly perform certain PeCo Services, it may become necessary for BEA to process personal data (in particular Customer Data) on behalf of the Customer. In such case, the Parties will duly execute a data processing agreement in accordance with the corresponding template provided by BEA.
19.1 BEA Warranty for PeCo Devices
19.1.1 Unless otherwise agreed upon in writing, BEA warrants that during two (2) years the PeCo Devices BEA are free from any hidden defect due to a manufacturing defect or to a defect of the material. This time limit begins at the date of sending of the respective PeCo Device.
19.1.2 The warranty terms and conditions are defined in the document « Terms and conditions on after sales service (service +) ». The document is available on request by means of the website http://www.bea.be
19.1.3 Any claim concerning defects of the delivered PeCo Devices shall be notified immediately by registered mail to BEA and is excluded if BEA has not received such notification within eight (8) days after receipt of the delivery. Failing this, the delivery will be considered as definitely received and accepted by the Customer. Defects that could not have been detected within this time period through a diligent inspection of the PeCo Devices shall be notified immediately by registered mail to BEA, within eight (8) days of their detection. No later claim will be accepted, and the delivery will be considered as approved by the Customer.
19.1.4 In case of defects that are duly accepted by BEA, BEA will remedy the defects at its choice within a reasonable time limit, either by repair, or by delivery of a non-defective PeCo Device within a reasonable period of time of at least thirty (30) days.
19.1.5 If the repair or replacement of the defective PeCo Device fails or is not performed within the reasonable time limit pursuant to sub-clause 19.1.4, the Customer may request a reduction of the Hardware Charges or terminate the Order. If the Customer has already used the PeCo Device, BEA may determine a reasonable price for Customer’s use during the applicable period of time that shall count against the price reduction claimed by the Customer.
19.1.6 Damages resulting from usual wear and tear of the PeCo Devices, from non-compliance with advice of use provided by BEA, inappropriate use or negligence by the Customer or a Third Party (other than BEA subcontractors), in particular the inappropriate storage of the PeCo Devices, shall not constitute a defect.
19.2 PeCo Services
19.2.1 BEA warrants that the PeCo Services are free from material defects. The PeCo Services are free from material defects if they perform materially in accordance with the applicable Service Description. Minor deviations from the specifications that do not materially impact the usability of the PeCo Services do not constitute a material defect.
19.3 General Warranty Provisions
19.3.1 If the PeCo Devices and/or PeCo Services become, or in BEA’s opinion are likely to become, the subject of an Infringement Claim (as defined in sub-clause 20.1), BEA may, at its option and expense, either (i) procure for the Customer the right to continue using the allegedly infringing materials or (ii) replace or modify the same so that they become non-infringing.
19.3.2 In the event BEA reasonably demonstrates that there was no defect for which BEA is responsible according to this clause 19, BEA is entitled to request reimbursement for the efforts to remedy the alleged material defect on a time and material basis based on the standard rates of BEA.
19.3.3 Customer represents and warrants that (i) the performance of Customer’s obligations under the Order and the PeCo Terms and use of PeCo Devices and/or PeCo Services will not violate any applicable laws, (ii) the Customer is authorized and has completed all required corporate actions necessary to execute the Order and the PeCo Terms and (iii) the Customer shall not carry out any act or omission that results in BEA breaching any applicable laws. The Customer shall indemnify and hold harmless BEA from and against all Third Party claims that result from a breach by the Customer of this clause 19.3.3.
19.4.1 The Customer understands and acknowledges that the PeCo Devices, PeCo Services and PeCo Data are intended exclusively for people counting in a certain field of use as designated in the relevant Order, any applicable Service Description and/or the PeCo Terms. The PeCo Devices, PeCo Services and PeCo Data shall not be used for any other purposes (e.g. for safety purposes, protection against theft, damage to property or against other criminal offenses). Any such use of the PeCo Devices, PeCo Services and/or PeCo Data by or on behalf of the Customer for other than the designated purposes shall be on Customer’s sole responsibility. BEA assumes no warranty, and shall not be liable for, any such non-designated use. The Customer shall indemnify and hold harmless BEA from and against all Third Party claims that result from a breach by the Customer of this clause 19.4.1.
19.4.2 Warranty obligations of BEA shall not apply to the extent that a claim is based on (i) Customer’s use of the PeCo Devices and/or PeCo Services in a manner non-compliant with the relevant Order, any applicable Service Description and/or the PeCo Terms (ii) specifications or materials provided by the Customer, (iii) use of, or access to, the PeCo Devices and/or the PeCo Services by any person or entity other than Authorized Users, (iv) use of the PeCo Devices and/or the PeCo Services after BEA notifies the Customer to discontinue its use due to an Infringement Claim, (v) faulty or abnormal usage, overuse, improper production facilities or an inappropriate installation site, (vi) any alteration of PeCo Devices and/or PeCo Services, in particular based on Customer’s or third parties’ modifications, repairs or maintenance works.
19.4.3 The Customer acknowledges that BEA does not control the transfer of data over telecommunications facilities, including the Internet. BEA does not warrant secure operation of the PeCo Devices and/or the PeCo Services or that it will be able to prevent Third Party disruptions of the PeCo Devices and/or the PeCo Services. The Customer acknowledges further that the PeCo Devices and/or the PeCo Services may be subject to limitations, delays, and other issues inherent in the use of the internet and electronic communications outside of BEA’s reasonable control. BEA is not responsible for any delays, delivery failures, or other damage resulting from such issues.
19.4.4 EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
20.1 BEA will (i) indemnify and hold harmless the Customer from and against any and all Third Party claims finally awarded by a court of final jurisdiction or settled/acknowledged with BEA’s prior written approval, and (ii) defend such claims at BEA’s own cost, both in and out-of court, to the extent that such claim arises from a violation of Third Party Intellectual Property Rights by Customer’s use of the PeCo Devices and/or the PeCo Services in accordance with the relevant Order, any applicable Service Description and the PeCo Terms (“Infringement Claim”), provided that the Customer (a) promptly gives BEA written notice of the Infringement Claim, (b) gives BEA sole control of the defense and settlement of the Infringement Claim, and (c) provides to BEA all reasonable assistance to defend such Infringement Claim. The Customer shall not enter into a settlement or acknowledge any Infringement Claim without BEA’s prior written consent. Notwithstanding the foregoing, BEA will have no obligation of defense or indemnification or otherwise with respect to any claim or demand based upon (1) any use of the PeCo Devices and/or the PeCo Services not in accordance with the relevant Order, any applicable Service Description and the PeCo Terms; (2) any use or interaction of the PeCo Devices and/or the PeCo Services with Third Party Services, (3) any modification of the PeCo Devices and/or the PeCo Services made by or content provided by any person other than BEA; (4) where the Customer continues the allegedly infringing activity after being notified thereof and is provided modifications, replacements or other remedies that would have avoided the alleged infringement.
20.2 The Customer will (i) indemnify and hold harmless BEA from and against any and all Third Party claims finally awarded by a court of final jurisdiction or settled/acknowledged with Customer’s prior written approval, and (ii) defend such claims at Customer’s own cost, both in and out-of court, to the extent this is related to a claim of a Third Party alleging that the Customer Data, or Customer’s use of the the PeCo Devices and/or the PeCo Services in violation of the relevant Order, any applicable Service Description and/or the PeCo Terms, infringes any third-party rights, in particular but without limitation third-party Intellectual Property Rights, or violates applicable laws. BEA will (a) promptly give to the Customer written notice of the claim, (b) give the Customer sole control of the defense and settlement of the claim, and (c) provide to the Customer all reasonable assistance, at Customer’s cost.
21.1 For damages that do not concern the delivered PeCo Device(s) in itself, BEA is only liable:
(i) in case of fraud or willful misconduct;
(ii) for bodily injuries and only towards the injured persons and within the limits of the legislation on liability for defective products (Bill dated February 25th, 1991).;
All other liability of BEA is excluded, without prejudice to the warranty as explained under clause 19 of the PeCo Terms.
21.2 In no circumstances BEA is liable towards the Customer or third parties of compensation for loss of production, loss of profit, loss of use or loss of chance to enter into contract or any other indirect damage or consecutive damage to a material damage caused by the PeCo Devices and/or PeCo Services.
21.3 If BEA is liable due to fraud or gross negligence, BEA’s liability is limited to reasonable damages that were foreseeable at the time of the conclusion of the contract.
21.4 For damages or losses other than the ones described in sub-clauses 21.1 through 21.3, BEA’s total and aggregate liability out of or in connection with any Order and the PeCo Terms shall, in no event, exceed 150 % of the total value of all Charges paid by the Customer for the PeCo Devices and PeCo Services to be delivered under the affected Order.
21.5 The limitations of liability of this clause 21 apply accordingly to BEA’s agents or performing agents.
22 HALMA CODE OF CONDUCT
The Customer must comply with all provisions stipulated in the HALMA Code of Conduct, available to download from the website http://www.halma.com. This Code is designed to guide us and our business partners in our professional activities. It indicates how to steer our activities with regard to ethics, ethical rules, and the law. It also obliges us to respect the law and national and international regulations, particularly regarding fraud and corruption, conflicts of interest, insider dealing, and whistle-blowing.
23 TERM AND TERMINATION
23.1 Unless agreed otherwise, the Service Term of an Order shall be three (3) years.
23.2 Termination for Cause
23.2.1 Without prejudice to any other rights or remedies which the Parties may have, either Party may terminate an Order for a material breach of the other Party upon notice by registered mail if such breach remains uncured at the expiration of such period. Such termination shall have immediate effect and is without prior court authorisation and without compensation or indemnity for the breaching Party. Without limiting BEA’s other rights and remedies, in particular clause 15, any payment delay by the Customer exceeding 30 days or any material breach of a provision in relation to BEA’s Intellectual Property Rights (in particular but without limitation clauses 9 and 16) shall be deemed a material breach.
23.2.2 BEA may terminate any Order for cause if it receives any direction, notification or instruction from any competent governmental authority to cease the provision of the PeCo Devices and/or PeCo Services to the Customer.
23.2.3 The right of either Party to terminate an Order for cause as provided for by applicable mandatory law remains unaffected.
23.3 Upon any termination by BEA for Customer’s material breach, the Customer shall pay to BEA as a compensation any Service Charges for the remainder of the Service Term after the effective date of termination that would have become payable without such termination. Upon any termination for cause by the Customer, BEA shall refund the Customer any prepaid Service Charges covering the remainder of the Service Term after the effective date of termination, if any. In no event shall any termination relieve the Customer of the obligation to pay any Charges payable to BEA for the PeCo Devices and/or PeCo Services prior to the effective date of termination.
23.4 Upon request by the Customer made within 15 days after the effective date of termination, BEA will make available to the Customer for download a file of Customer Data in CSV format. After such 15-day period, BEA shall have no obligation to maintain or provide any Customer Data and may thereafter, unless otherwise required by applicable laws, delete all Customer Data in its systems or otherwise in its possession or under its control.
24 GENERAL PROVISIONS
24.1 The place of performance of the obligation is the registered office of BEA.
24.2 Any design, plan, offer, project, list of material and any other document transmitted to the Customer remains BEA’s property. They must in no circumstances be copied completely or even partially, nor shown or transmitted in whatever way to third parties without prior written consent given by BEA. These documents must only be used for the purpose for which BEA transmitted them. The transmission of these documents must in no circumstances be construed in such a way that a license whatsoever would have been granted to the Customer.
24.3 In the event of a sale by BEA of PeCo Devices for export, it is the responsibility of the Customer, which is importing the PeCo Device into its country to ensure that any obligations are met, declarations made and taxes paid in relation to this type of PeCo Device. Non-exhaustive list of examples: WEEE/Batteries/ Packaging, etc. The Customer is responsible for ensuring that it may use and access the PeCo Devices and PeCo Services as provided by BEA in compliance with any applicable import or export laws. The Customer shall not import or (re-)export the PeCo Devices and PeCo Services in violation of any national or international law, in particular any export or import regulation of the European Union or the United States of America. Without limiting the foregoing, (i) each Party represents that it is not named on any government list of persons or entities prohibited from receiving exports, and (ii) the Customer shall not permit Authorized Users to access or use PeCo Devices and PeCo Services in violation of any export embargo, prohibition or restriction.
24.4 The Parties are independent contractors. Neither an Order nor the PeCo Terms create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
24.5 Any Order and the PeCo Terms are for the benefit of the Parties and their successors and permitted assigns, and do not confer any rights or benefits on any Third Party, including any employee of a Party, any client of a Party, or any employee of a client of a Party.
24.6 In the sense of the Bill on protection of the private life with regard to the processing of personal data (Bill dated July 30th, 2018), BEA records Customer Data and uses them in the frame of Parties’ cooperation.
24.7 No failure or delay by either party in exercising any right under any Order or the PeCo Terms shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
24.8 If any provision of this the PeCo Terms is held by a court of competent jurisdiction to be contrary to law, invalid or unenforceable, then, notwithstanding such illegality, invalidity or unenforceability, the PeCo Terms and the remaining provisions shall continue in full force and effect. In this event the Parties will agree upon a valid, binding and enforceable substitute provision, which shall be as close as possible to the commercial interests of the invalid or unenforceable provision.
24.9 Unless provided otherwise, BEA may subcontract any part of its obligations to reliable subcontractors. The Customer may not assign any of its rights or obligations out of or in connection with an Order or the PeCo Terms without the prior written consent of BEA (not to be unreasonably withheld). Notwithstanding the foregoing, BEA may assign any Order in whole or in part to (i) any of its Affiliates, or (ii) a Third Party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets unless such Third Party is a direct competitor of the Customer. The Customer hereby grants its consents to such assignment. BEA will notify the Customer of any such assignment without undue delay.
24.10 Unless provided otherwise in the relevant Order, any Order and the PeCo Terms, and any disputes arising out of or related hereto, shall be governed exclusively by the laws of Belgium, without regard to its conflicts of laws rules. The U.N. Convention on the International Sale of Goods (CISG) of April 11, 1980 as well as all related agreements shall not apply.
25.1 Any disputes arising out of or in connection with any Order and /or the PeCo Terms, shall be exclusively submitted to the Courts of Liège, or, at the sole choice of BEA, to the courts of the Customer, wherever the Order was entered into or has to be performed.