1.1. Smartconnect NV, located Leuvensesteenweg 350, 3190 Boortmeerbeek (Belgium), offering a Software solution, referred to as ‘SMARTCONNECT’.
1.2. [CUSTOMER], referred to as CUSTOMER.
1.3. The Terms are herewith accepted by the CUSTOMER and confirmed when ordering Smartconnect products or services including but not limited to subscriptions and renewals.
2. Smartconnect Service
2.1. SMARTCONNECT is accessible to the CUSTOMER at specific URLs designated by SMARTCONNECT in its sole discretion.
2.2. Subject to the CUSTOMER’s acceptance of, and compliance with the terms and conditions of these Terms, including without limitation the obligations to complete the user registration and pay the license fees to SMARTCONNECT, SMARTCONNECT grants to the CUSTOMER a limited, non-exclusive, non-transferable and non-perpetual right to access and use the Product and Service for the agreed number of users and solely for internal business operations of the CUSTOMER. The CUSTOMER is not allowed to install, copy, use or otherwise exploit SMARTCONNECT in any other manner than set forth in these Terms. All rights not expressly granted are reserved by SMARTCONNECT.
3. Smartconnect Service objectives
3.1. SMARTCONNECT aims to provide operation stability and to make all reasonable efforts to make SMARTCONNECT available to the CUSTOMER on the terms and conditions set out herein. SMARTCONNECT’s services will be provided in accordance with good IT practice.
3.2. SMARTCONNECT will use best efforts to inform the CUSTOMER of any known defects which may interfere with the stability of operation or the function of the Product/Service and to remedy and solve such defects.
3.3. SMARTCONNECT aims to perform planned service and maintenance between 8 p.m. and 6 a.m. (CET). The CUSTOMER will be given advance notice if a scheduled service and maintenance is expected to cause interruptions outside these hours. Advance notice for Standard planned service/maintenance is minimum 4 weeks, Emergency maintenance will be announced minimal 3 days on beforehand, critical maintenance (system down possible) can be announced with a 4 hours’ notice.
3.4. SMARTCONNECT will perform a back-up of the CUSTOMER’s data each 24 hours. Back-ups are saved for 1 month.
3.5. SMARTCONNECT aims a 99,9% availability of the services
4. Features requirements, upgrades, maintenance and services
4.1. The CUSTOMER acknowledges and accepts that it is the sole responsibility of the CUSTOMER to investigate and assess SMARTCONNECT in order to ensure that it can operate and function in conjunction with the CUSTOMER’s needs and requirements, including the CUSTOMER’s Internet access, hardware and software.
4.2. SMARTCONNECT may in its sole discretion decide to make available upgrades, patches, fixes or the like in connection with SMARTCONNECT to the CUSTOMER, and the CUSTOMER accepts such upgrades, patches, fixes or the like to continue operability.
4.3. SMARTCONNECT undertakes no obligations or liability with respect to the provision of telecommunication lines, Internet subscriptions or connections or any other technical means necessary for the CUSTOMER to access and use SMARTCONNECT or its data and any and all costs and risks in this respect remains solely with the CUSTOMER.
5.1. SMARTCONNECT is entitled to use agents and sub-contractors for provisioning of support and consultancy services to the CUSTOMER.
The support comprised by the subscription fee includes:
Response to reported errors in SMARTCONNECT.
Answers to questions regarding the use of SMARTCONNECT.
5.2. For services not comprised by SMARTCONNECT is entitled to invoice support or consultancy services according to the price list. Any such invoicing must be accepted by the CUSTOMER prior to the service being delivered.
5.3. All reported errors and support requests must be submitted using the SMARTCONNECT support email: email@example.com.
5.4. Based on the CUSTOMER’s error reporting, SMARTCONNECT will in its sole discretion (i) perform identification of the reported error, (ii) provide instructions to the CUSTOMER on the use of SMARTCONNECT in order to minimize the impact of a reported error until a fix may be released, and/or (iii) correct the errors. SMARTCONNECT shall endeavor to revert to the CUSTOMER’s error reporting no later than 10 hours on business days from receipt of the report.
5.5. The support is provided primarily to the CUSTOMER’s designated SMARTCONNECT administrator (the super user), who is the single point of contact with respect to the CUSTOMER in this respect. It does not include support for all the CUSTOMER’s users unless otherwise agreed.
5.6. SMARTCONNECT will use its best efforts to reply to the CUSTOMER’s support queries within one business day.
6. After Sales Service
6.1. After-sales service are not included in the retail price of the Product or Service.
7. Maximum disk storage space
7.1. There is no maximum disk storage space provided for the CUSTOMER’s data. The storage is based on fair use policy. If the used amount of disk storage space exceeds this limit, the CUSTOMER will be charged the then-current storage fee. SMARTCONNECT will notify the CUSTOMER when reaching 80% of the storage limit.
8. Prices and payment
8.1. The CUSTOMER shall pay the fees in accordance with the price list or as quoted by Smartconnect and the CUSTOMER shall respect the terms set out in this document.
8.2. SMARTCONNECT is entitled in its sole discretion to change prices and Terms. Changes will be notified in writing to the CUSTOMER no later than 3 months before such changes take effect, which will be at the earliest from the following subscription period. The changes are deemed accepted by the CUSTOMER unless the CUSTOMER terminates the subscription agreement with usual notice, cf. clause 15, to expire at the end of the then current subscription period.
8.3. The CUSTOMER must pay invoices no later than the due date of the SMARTCONNECT’s invoice.
8.4. If SMARTCONNECT’s invoice is not duly paid after three reminders, SMARTCONNECT is entitled to suspend the CUSTOMER’s access to SMARTCONNECT and the CUSTOMER’s data without further notice. The suspended access does not release the CUSTOMER from its obligation to pay the invoice and other accruing fees thereafter.
8.5. In the event of late payment, SMARTCONNECT will charge the legally defined interest per year as of the invoice date.
8.6. The CUSTOMER accepts to receive invoices and reminders sent by email.
8.7. All prices and charges shall be adjusted on the yearly renewal date by applying the following formula:
New Price = Current Price x [0.2 + 0.8 (new Agoria index/basic Agoria index)];
Current Price: the prices laid down in this document;
new Agoria-index: the Agoria index applicable to the month of December prior to the date of index-linking;
Basic Agoria-index: the Agoria index applicable to the month prior to the agreement coming into effect);
the Agoria-index: Agoria Index for Reference Wages National Average Contract after 11/7/1981, viewable at www.agoria.be.
9. Free trial
9.1. SMARTCONNECT may offer the CUSTOMER one trial subscription for SMARTCONNECT. The trial subscription is not subjected to payment of subscription fees by the CUSTOMER.
9.2. If the CUSTOMER does not subscribe to SMARTCONNECT before the trial period expires, SMARTCONNECT will without notification terminate the CUSTOMER’s access to SMARTCONNECT upon expiry of the trial period and delete the CUSTOMER’s trial account and data.
9.3. With respect to clauses 9.1 and 9.3 these Terms apply to the trial period of SMARTCONNECT. However, SMARTCONNECT does not have any obligation during the trial period and is not liable for any inability or failure to access or use of SMARTCONNECT.
10. Term and termination
10.1. The initial subscription period is twelve months from the ordering date of SMARTCONNECT. Hereinafter, the subscription period is automatically renewed for successive periods of 12 months unless otherwise agreed. The CUSTOMER is entitled to terminate the subscription agreement no later than 3 months before the commencement of a new subscription period. If the subscription is not terminated within this timeframe, it is automatically renewed.
10.2. SMARTCONNECT may terminate the subscription agreement immediately if the CUSTOMER materially breaches the Terms.
10.3. In case of termination of the subscription agreement, the CUSTOMER will not be allowed to access and use SMARTCONNECT at the time of expiry/termination of the agreement. The CUSTOMER acknowledges and agrees that SMARTCONNECT is entitled to delete the CUSTOMER configuration and terminate the CUSTOMER’s access to SMARTCONNECT without further notice.
10.4. Prepaid subscription fees will not be refunded in any circumstances.
10.5. Upon termination of the subscription agreement and at the CUSTOMER’s instruction, SMARTCONNECT will:
Delete the CUSTOMER’s data immediately, or if no instructions are received;
Store the CUSTOMER data for a period of not less than 90 days calculated from the day after the termination of the subscription.
10.6. If at the time of 30 days after expiry/termination of the subscription agreement, the CUSTOMER has any unpaid invoices, SMARTCONNECT is entitled to delete the data without any further notice.
10.7. Subject to separate agreement and payment, SMARTCONNECT will assist the CUSTOMER in converting data into another format than provided by default in SMARTCONNECT.
11. Disclaimer of warranties
11.1. SMARTCONNECT disclaims any and all warranties, representations and conditions, whether express, implied or statutory, including without limitation any warranties, duties or conditions of or related to merchantability, fitness for a particular purpose, lack of, accuracy or completeness of responses, results, correspondence to description, non-infringement, workmanlike effort and lack of negligence with respect to the Product or Service, and the entire risk related thereto remain solely with the CUSTOMER.
12. Intellectual property rights
12.1. SMARTCONNECT retains all intellectual property rights, including without limitation copyrights, patent rights, trademark rights, know-how etc., in and to SMARTCONNECT. SMARTCONNECT does in no way assign, transfer or grant any rights to any of its intellectual property rights to the CUSTOMER.
12.2. The CUSTOMER is not allowed to assign, license, sell, rent out, lend out, hand over, or pass on the license from SMARTCONNECT to a third party without the written consent of SMARTCONNECT.
12.3. The CUSTOMER is not entitled to copy, reverse-engineer, disassemble, decompile, change or modify SMARTCONNECT or in any other way attempt to investigate, tamper with and/or discover the source code and/or the structural framework and/or the principles on which SMARTCONNECT is based except as expressly permitted under mandatory applicable law.
12.4. The CUSTOMER is not entitled to change or remove any marks and notices concerning copyright, patents, trademarks or other rights placed on, applied to or otherwise implemented in SMARTCONNECT.
13. Limitation of liability
13.1. The liability of either party is subject to the ordinary rules of Belgian law, save for the exceptions and limitations as expressly set out in these Terms.
13.2. SMARTCONNECT will only be liable for SMARTCONNECT and excludes liability for any other Products, services, tasks or services provided by hosting providers and/or agents acting on behalf of SMARTCONNECT. In no event, will SMARTCONNECT be liable for the services, tasks or obligations to be performed by the CUSTOMER and/or any third party.
13.3. SMARTCONNECT will not be liable for any direct, indirect, punitive or other damages or losses including, without limitation, damages for loss of profits, business interruption, loss of data or the restoration thereof (except as expressly set out in clause 18.4 below), product liability or personal injury arising out of the use of or inability to use SMARTCONNECT, including, but not limited to, business interruption, lost business or lost profits or savings. The aforesaid exclusions and limitations apply irrespective of whether such damages or losses are caused by acts or omissions by SMARTCONNECT attributable to SMARTCONNECT as negligent (including both gross and simple negligence) or incidental.
13.4. As regards loss of data, the sole liability of SMARTCONNECT is – to the extent commercially reasonably – to attempt to restore any lost data based on the most recent back-up copy available. Any and all liability for data irreversibly lost, irrespective of SMARTCONNECT’s commercially reasonable efforts to restore such data, is limited in accordance with clause 13.5
13.5. In addition to the exclusions and limitations of liability set forth in clause 16 and this clause 18, the entire liability of SMARTCONNECT (whether in contract, tort, gross or ordinary negligence, strict liability, breach or termination of contract, claim of repayment or proportionate repayment, by statute or otherwise) to pay any damages, compensation or any other amounts during the term of these Terms is limited and capped to an aggregate amount equal to the total aggregate license fee actually paid by the CUSTOMER to SMARTCONNECT for the provision of SMARTCONNECT during the preceding twelve (12) months prior to the act or omission that the liability arises from. Furthermore, SMARTCONNECT’s liability towards the CUSTOMER cannot in any circumstances, separately or all together, exceed EUR 10,000.
13.6. A party will not be liable for non-performance of its obligations (other than failure to pay any amounts due) in the event that a situation arises beyond its reasonable control including failure or breakdown of telecommunications networks and lines, regulations by government authorities, lock-outs, strikes, infrastructure breakdowns, natural disasters, epidemics, pandemics, acts of terrorism, fires, floods, storms, fire storms, sabotage, vandalism, damages caused by computer virus, hacking, war, civil wars, riots, nuclear disaster etc. which such party did not take into account prior to the execution of these Terms unless the other party (except if performance is de facto impossible) agrees to compensate the affected party for any additional costs incurred as a consequence of a situation beyond such party’s reasonable control.
14.1. All confidential information received by either party from the other party must be held in complete confidence by the receiving party and its directors, employees, advisers or representatives, and must not without the prior written consent of one of the parties be used for any purpose other than in connection with the fulfillment of the subscription agreement.Co
14.2. Confidential information does not include information which (i) has already passed into the public domain other than through breach of this confidentiality obligation; (ii) has been received from an independent third party other than through breach of a confidentiality obligation; or (iii) the CUSTOMER can demonstrate has been independently developed by that party prior to disclosure.
14.3. All advertising, press releases, public announcements and public disclosures by a party relating to the subscription must be approved by both parties prior to release to any third party. This clause does not prevent a party from making such press releases, public announcements or public disclosures as may be required by law or otherwise are reasonably justified to protect a party’s legitimate interests. SMARTCONNECT is entitled to during the term of the subscription agreement to use the CUSTOMER’s name as a reference in connection with SMARTCONNECT’s marketing on SMARTCONNECT’s website activities without the CUSTOMER’s prior approval.
14.4. The termination of the CUSTOMER agreement will limit the parties’ obligations under this clause for 12 months after termination of the contract.
15. Governing law and jurisdiction
15.1. The CUSTOMER’s subscription agreement, including these Terms, is governed by Belgian law, however, excluding (i) any rules concerning choice of law and (ii) the UN Convention on Contracts for the International Sale of Goods (“CISG”), which do not apply.
15.2. Any dispute between SMARTCONNECT and the CUSTOMER arising out of the subscription and the Terms will be subject to the jurisdiction of the ordinary courts of Belgium, at the SMARTCONNECT’s then-current judicial seat.