General terms and conditions B2B

1          Definitions

In these general terms and conditions (the ‘General Terms and Conditions’) the following are understood to be:

Smappee: Smappee NV, with offices in Evolis 100, B-8500 Kortrijk, registered with the Crossroads Bank for Enterprises under number BE0849.366.642.

Buyer: every natural person or legal entity who purchases products from Smappee and who wishes to enter into a contractual relationship for professional purposes.

Products: the subject of one or more purchase agreements, in this case – but not exclusively limited to – the energy product ‘Smappee’, consisting of hardware components, software components, websites, and web services. The existing range of Smappee products consists of products designed for non-commercial use by consumers and also of products for commercial use. These products can also serve for combined use. Smappee has its own licencing terms and conditions.

2          Applicability

2.1         These General Terms and Conditions apply to every offer from Smappee, to all agreements closed between Smappee and the Buyer, to all orders, and any services provided by Smappee to the Buyer. All other terms and conditions, including those of the Buyer, are not applicable and have no legal bearing on Smappee.

2.2         Any deviation to the provisions in the current General Terms and Conditions are not possible except for after express, prior, and written acceptance thereof by Smappee. The other provisions of the current General Terms and Conditions shall remain fully in force.

2.3         Smappee retains the right to unilaterally modify and/or supplement these General Terms and Conditions at any time – insofar as these have been stated applicable in the agreement with the Buyer.  Smappee shall inform the Buyer of any such modifications. The changes shall be an integral part of the agreement, unless the Buyer objects to them within six weeks after receiving the notification of the change and that by written or electronic communication.

2.4         By placing an order, the Buyer acknowledges to have read the General Terms and Conditions and to accept these.

3          Orders and offers

3.1         After the Buyer has indicated which Products they wish to purchase from Smappee, Smappee shall provide the Buyer with an offer. The offer shall be valid for a period of fourteen (14) days from the date of the offer. Changes to the offer shall only apply if they have been accepted by us in writing.

3.2         An agreement is only established when Smappee receives an undersigned offer from the Customer within the period of validity, or at the time that both parties have a signed purchase order or agreement in their possession.

3.3         Irrespective of that provided for in article 3.1, special offers can be valid for less than fourteen (14) days considering they are only valid while stocks last.

4          Price

4.1         The prices included in the offer are expresses in euros (and if applicable in other international currencies such as GBP and USD) and are exclusive of VAT.

4.2         Any increase in VAT rates or other taxes in the period between placing the order and the delivery are borne by the Buyer. The orders are invoiced at the prices and under the terms and conditions in force at the time of accepting the order.

4.3         If the Buyer is granted discounts these apply exclusively to the individual orders for which they were granted. Under no circumstances do they entail, not even with repeated extension thereof, any right on the part of the Buyer to comparable discounts on future orders.

5          Transport – transfer of risk – costs

5.1         The Products are delivered FCA Kortrijk, Belgium (Incoterms 2010) to the Buyer.

5.2         The applicable price is excluding transport costs, insurance fees, connection and installation costs, VAT, import duties, export duties, customs charges, and other taxes. The product risk is transferred to the Buyer at the time that the Products leave the Smappee branch. The Buyer has exclusive responsibility for any import or export documentation. Insofar as required, Smappee shall cooperate with completing the formalities, with the understanding that it bears no liability in that regard.

5.3         As it is not possible to provide the ‘EUR.1 certificate’ customs form for purchases completed through the Smappee Webshop, the Buyer cannot claim any potential reduction of customs duties. We recommend placing orders exceeding EUR 6,000 via info@smappee.com.

6          Delivery and title retention

6.1         The provided delivery times are indicative and shall be met on best effort basis.

6.2         The Buyer cannot cancel the order, or claim for damages in the event of non-delivery, late delivery, or incorrect delivery if this is due to involuntary acts on account of Smappee.

6.3         If a delivery cannot take place at the agreed time due to reasons attributable to the Buyer, then the goods shall be stored at the cost and risk to the Buyer and this for a period of four (4) weeks within which the Buyer is obliged to remove the Products on payment of the storage costs.

6.4         The delivered Products remain the property of Smappee until full payment of the main sum, the costs and interest have been received, even if these Products have been incorporated or changed.

The Buyer is prohibited from selling on, pledging, or in any way encumbering the Products that fall under the retention of rights.

If third parties levy an attachment to delivered Products falling under the retention of title, or want to establish or claim rights thereon, then the Buyer is obliged to inform Smappee of the fact immediately and no later than within 48 hours.

Finally, for the Products falling under the retention of title the Buyer commits to insure and to maintain insurance against fire, explosion, and water damage as well as against theft and at the first request of the contractor to provide for inspection the insurance policy.

6.5         Irrespective of that provided in article 6.4, the risk is transferred to the Buyer as soon as the product has been dispatched as detailed in article 5.

7          Checks and warranty

7.1         The Buyer is obliged to immediately take into receipt the Products and to check that the delivered amount and quality of the Products correspond to that which has been contractually agreed. Smappee must be immediately informed of any complaints and they should be confirmed by a reasoned written statement sent by registered mail within seven (7) days after delivery, without prejudice to article 7.4.

7.2         Smappee can under no circumstances be held liable for problems that arise as a result of improper use of the Product, problems as a result of force majeure (see article 9), and as a result of acts or intentional errors by any other person including the Buyer, or its staff.

7.3         Smappee can under no circumstances be held liable for damage resulting from incorrect installation of the Product.

7.4         Hidden faults can only give rise to compensation if they were identified with appropriate haste and submitted to Smappee within eight (8) days after the identification thereof by registered mail and the Products have not already been accepted or processed.

7.5         In the event of a late objection according to the period stated in this article, the Buyer is considered to have approved and accepted the Products and price charged.

8          Guarantee

8.1         Without prejudice to that provided for in article 7, the Products are covered by guarantee for hidden faults for a period of twelve (12) months, unless local legislation provides for a longer period.  The Products are covered by this guarantee up to a maximum of twenty-four (24) months, if:

-       The fault seriously impairs the adequate use of the products for which they are normally intended or the special use that was expressly agreed in writing when entering the agreement;

-       The goods have been installed professionally;

-       The goods were used in a normal manner, or at least in the special circumstances that were expressly agreed in writing when entering the agreement;

-       The fault was communicated to us within the reasonable period as stated in article 7.4 and no later than the period provided for in this article.

8.2         In any case, our guarantee is limited to repair at no charge, be it through replacement, of the faulty good. This cannot lead to the dissolution of the agreement, or to us being liable to pay damages for any reason. The transport costs, insurance fee, packaging costs, placement and installation charges, VAT import duties, export duties, customs charges and other taxes shall always be borne by the Buyer.

8.3         The guarantee we offer shall lapse if the Customer {offers for repair} the goods to a third party without prior written permission of Smappee.

8.4         The guarantee provided by us is limited to the guarantee provided to us by our suppliers.

9          Force majeure

9.1         In case of force majeure or unforeseen circumstances, Smappee is entitled to, either suspend its obligations for the duration of the period this situation exists, or to definitively dissolve the agreement, without this resulting in any right to damages for the Buyer. Under force majeure is understood to be any circumstances or event beyond the will and control of Smappee which prevents compliance with its obligations wholly or in part.

9.2         Included as force majeure and/or unforeseen circumstances under the meaning of article 9.1: a strike, a lockout, a riot, an epidemic, unfavourable weather conditions, a shortage of raw materials or transport resources, a fire, flood, mechanical defect, non-delivery by the supplier etc.

10        Payment

10.1       Upon receipt of an order from Buyer, Smappee will issue the corresponding invoice.  Products will be shipped upon receipt of the payment of the invoice.  Other Payment terms may be granted after review of the financial statements of the Buyer.

10.2       In the event of non- or late payment, the price shall be increased automatically and without notice of default being required by a fixed amount of [15% of the unpaid invoice] at a minimum of EUR 150 irrespective of the right of Smappee to demand higher compensation insofar as they can prove actual damage.

In addition, interest is due automatically and without notice of default being required, which shall be calculated according to the Directive of 2 August 2002 concerning combatting late payments in commercial transactions.

10.3       Any default in payment of an invoice on the due date, or any non-payment shall render claimable all invoices, even those not yet due, that have been drawn up or sent to the Buyer at that time, and any future payment facilities or discounts shall lapse.

10.4       Without prejudice to that provided in article 7.1, in the event of a dispute, the invoice shall, subject to forfeiture, be refuted in a reasoned manner within [fourteen (14) days] after receipt thereof by registered mail.

11        Suspension and cancellation

11.1       With non-payment on the due date, or any default for any reason or with failure to meet even one of the contractual obligations, Smappee retains the right to: 

- unilaterally suspend the execution of all current orders, and this if no or no useful effect has been given within seven (7) days after the notice of default and without this being reason for the Buyer to claim damages, and this without prejudice to the right of Smappee to claim damages;

- to unilaterally dissolve the agreement, without prior judicial authorisation, after no or no useful effect has been given within the seven (7) days after the notice of default, without prejudice to the right of Smappee to claim damages; and

- Smappee shall, irrespective of which measure it takes, always retain the right to deactivate the central services (cloud services) for the non-paid Products.

11.2       Smappee is entitled to dissolve the agreement with immediate effect and without prior judicial intervention at the expense of the Buyer if the Buyer is declared bankrupt, has filed for bankruptcy, requested legal reorganisation, has been declared insolvent, or has applied to be placed in liquidation, without this resulting in any right to damages on the part of the Buyer.

11.3       If the Buyer, after the conclusion of the agreement, in any way waives the order and thereby unilaterally terminates the agreement, the Buyer shall, due to the breach of contract, pay Smappee fixed damages equal to 30% of the total price excluding VAT, irrespective of the right of Smappee to claim higher damages, insofar as these are proven.

12        Intellectual property rights  

12.1       All intellectual property rights and derived rights are the property of Smappee. The considered intellectual property rights are: patents, copyrights, trademark rights (European trademark “Smappee” with number: 011856358), design and model rights and/or other (intellectual property) rights, including technical and/or commercial know how, methods and concepts, whether or not patentable.

12.2       The Buyer is prohibited from using and/or making changes to the intellectual property rights as described in this article, unless it only concerns the private use of the product itself.

13        Installation and use  

13.1       The Buyer acknowledges to have received all technical installation, maintenance and operating manuals and instructions with regard to the Products, to know the contents thereof and commits to inform the end users thereof.

13.2       In particular, but not exclusively, it is noted that the Products may never be used in safety-critical applications. It is noted, non-exhaustively, that the actuators of the Smappee systems (Comfort Plugs and Smappee Switch) may not be used for devices and in situations that may cause a fire risk, electronic hazard, or other damage in the event of an electrical failure if the Products or the Smappee systems do not function as expected, or in the event of a malfunction.

13.3       The Buyer is prohibited from obtaining or attempting to obtain unauthorised access to the Products. The Buyer shall take all measures required to prevent access by unauthorised third parties to the devices. In particular – but non-exhaustively – the devices may only be used in secured local networks. The Buyer is also prohibited from modifying or adapting software, communication or protocols related to the devices.

Smappee shall always be entitled to permanently deactivate the services remotely, and to stop the central services (cloud services) in the event of suspected fraud, or if unauthorised access to the systems has been carried out from the apparatus or with the access data of the Buyer or the end users.

13.4       The Buyer commits to inform the end users expressly and in writing of this article.

14          User terms and conditions for Central Services (cloud services)

14.1           Corresponding licences must be purchased to use the Smappee central services (cloud services). Without licences or after the licences have expired, the Smappee central services (cloud services) and the Smappee Products cannot be used, or the use will be restricted.

14.2       No explicit or implicit licence acquired through purchasing a Smappee Product can have a validity of more than five (5) years after the date of purchase, unless a longer time period has been precisely specified and agreed in writing.

14.3       After a licence has expired, Smappee is not obliged to continue retaining the corresponding data (such as historic measurements) and it may permanently delete it.

15        Licencing terms and conditions

15.1       The customer states to agree to the licencing agreement (or agreements) that apply to the delivered software. Insofar as it is not arranged in the applicable licencing terms and conditions of the software concerned, the following provisions apply.

15.2       All intellectual property rights related to the products and/or services, as well as the designs, programming software, documentation and all other materials that are developed and/or used for the preparation or execution of the agreement, or that result from the agreement, are held exclusively by Smappee. The delivery of the products and/or services does not extend to any transfer of the property rights of the intellectual property. 

15.3       The customer is granted solely a non-transferrable and non-exclusive right to use the software for the products and results of the services for the agreed purposes.

15.4       This right of use gives the customer the right to use the provided software solely on the indicated or specified devices for said customer’s needs, therefore internal use.   

15.5       This software can be updated by Smappee at any time and Smappee has the right to decommission any devices containing old versions of software.

15.6       The customer is not permitted to make public any part of the software, to replicate it (copy), to sell, rent, encumber or to transfer it as a security or use it otherwise than for its own use and business, as provided for in the agreement. Furthermore, the customer is prohibited from undertaking any attempts of reverse engineering and to make modifications to the software, and the customer is obliged to protect the device from any unauthorised access by third parties.

15.7       If the customer, without prior written permission from Smappee, breaches the aforementioned provisions, the customer shall be due to pay fixed damages that will be calculated as follows: the price according to the contracts or rates that are requested by Smappee from other customers at the time of the breach for comparable licences and/or services, increased by 30%. With a suspected breach, Smappee is authorised to stop the Central Services (cloud services) and to remove the software from the device remotely.

15.8       The above applies irrespective of any damages or amounts the customer should pay on the basis of breaches of licencing agreements of property rights of third parties.

16        Security and privacy

16.1       For data obtained or processed by Smappee Products or central systems, Smappee is always the data controller according to GDPR EU2016/679. Smappee’s Privacy Policy remains in force. While using the Smappee App, the end user shall be informed of the applicability of Smappee’s Privacy Policy.

16.2       Each Party themselves shall (and not together with the other Party) determine the purposes and methods of processing personal data, when they process such data from or in relation to this agreement. Each Party shall therefore act as an independent data controller.

16.3       By purchasing Smappee Products the Buyer can expressly derive NO rights to obtain the data of the end user. Smappee shall only grant the Buyer access to this data if that has been agreed in writing between Smappee and the Buyer.

16.4       Without prejudice to that provided in article 16.3, Smappee shall make the end users’ data available to the Buyer only if the end user gives Smappee express permission to make the data accessible to the Buyer, and for so long as the end user does not withdraw this permission.

16.5       The Buyer is prohibited from asking end users for access data, such as passwords, or to obtain this data in any other manner. Access data that fall under article 16.6 are expressly excluded from this prohibition.

16.6       If the Buyer – in any way – receives access data, such as passwords, or other details of the end user for the purposes of installation, configuration and support, the Buyer commits to delete all copies of this access data and other data once the purpose no longer applies, and at the latest 90 days after the initial installation. The Buyer commits to limit the data processing to that strictly required for the stated purposes.

16.7       When processing personal data or in relation to this agreement, each Party shall consider their obligations under the applicable data protection legislation.

16.8       The Buyer guarantees that:

16.8.1     They shall not undertake or neglect to undertake anything that could entail Smappee committing breach of the applicable data protection legislation when processing personal data;

16.8.2     The people whose personal data is processed are informed and if required they have granted permission for the processing of their personal data by Smappee.

16.9       The Buyer shall release and indemnify Smappee or any other entity of the Smappee group for any complaint, debt claim, claim, damages, loss, costs, compensation, judgments etc. insofar as these were caused by a breach by the Buyer of article 16 of these General Terms and Conditions.

16.10     Each Party shall, with respect to data processing, provide reasonable cooperation, support, and information to the other Party, including but not limited to:

16.10.1  Any claim and exercising of rights by a party involved and any investigation or measures taken by a supervisory authority related to or linked with the processing of data by the other Party; 

16.10.2  Any current, potential or attempt to a breach with regard to personal data.

16.11     If the Buyer commissions a third party to install the Products or sells the Products to a third party, then the Buyer shall impose all provisions of article 16 on that third party.

17        Liability

17.1       Smappee can never be held liable if the Products it provides are used in another manner than for which they were developed or intended, nor if its Products provided to the Buyer, the end user, or third parties have been changed or supplemented in any way.

17.2       Smappee can only be held liable for direct damage and never for indirect damage suffered by the Buyer and insofar as this damage and the error by Smappee or the fault in the Product has been proven. The damages are furthermore limited to the value of the agreement with a maximum of EUR 10,000.

17.3       Smappee cannot be held liable for decisions taken or actions that are or are not carried out by people or automated systems based on the information, events, changes, or signals provided – or unexpectedly not provided – by a Smappee Product or the Smappee system.

17.4       Smappee cannot be held liable for damage in the event that the central services (cloud services), a Product or other part of the Smappee systems is unavailable or does not function as expected.

17.5       The Buyer commits to refute any liability obligations of Smappee to its customers and the end users.

18        Severability Clause

18.1       In the event that any provision of these Terms and Conditions is found to be unenforceable this does not affect the applicability of other provisions or the agreement as a whole. The unenforceable provisions shall be changed and mitigated by the courts so that they are in accordance with statutory provisions.

19        Competent court and settlement of disputes

19.1       Belgian law shall be of exclusive application to these General Terms and Conditions, with exception of the Vienna Sales Convention. In the event a dispute arises regarding the interpretation or execution of the agreement, it shall be exclusively settled by the competent territorial courts in the location where Smappee’s registered office is established.

20        Amendments to the General Terms and Conditions

20.1       Smappee has the right to unilaterally change these General Terms and Conditions - insofar as these in the agreement with the Buyer are declared to be applicable. Smappee shall inform the Buyer of such changes. The changes shall be an integral part of the agreement unless the Buyer objects in writing or electronic communication within six (6) weeks after receipt of the notification.

17/12/2018

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