1.1 This agreement between, on the one hand, (i) Smartchargers BV ("Smartchargers"), whose registered office is at 9190 Stekene, Zavelstraat 21 box 1, with company number 0461.285.280 and, on the other hand, the Customer, is governed by the terms and conditions of the User Agreement entered into between the parties, including these general terms and conditions, invoices and any special terms and conditions (hereinafter collectively referred to as the "User Agreement"). The Use Agreement shall be effective upon the signing of the Use Agreement by the Customer and SMARTCHARGERS whereby the signing shall also constitute acceptance of these general terms and conditions, and it shall nullify and supersede all written or oral contracts, proposals and commitments relating to the same object that would precede the date of this Use Agreement. The Use Agreement excludes the application of the Customer's own potential general and/or other terms and conditions. The Customer is not allowed to transfer rights or obligations arising from the Use Agreement to third parties.
1.2 The agreed term as stipulated in the Use Agreement shall commence on the date of inspection of the Charging Equipment.
2.1 SMARTCHARGERS shall maintain the Charging Facilities in operable condition and perform all maintenance and repair work necessary for that purpose. SMARTCHARGERS will provide technical service personnel during normal business hours upon notice from the Customer that the Charging Facilities are not functioning properly ("Maintenance"). The Customer shall, at all times during normal business hours, grant one or more persons appointed by SMARTCHARGERS access to the location of the Charging Installations and ensure that the Charging Installations can be easily maintained.
2.2 The Maintenance is done on payment of a fee mentioned in the special conditions on the Use Agreement.
2.3 Damage found during Maintenance that results in a shortening of the service life of (parts of) the Charging Equipment and/or causes costs due to improper use shall be borne by the Customer. Repairs, changes, relocations, linkages to other equipment or adjustments performed by persons other than those appointed by SMARTCHARGERS shall release SMARTCHARGERS from all obligations arising from the Use Agreement. For the interventions provided for in this Article, SMARTCHARGERS will charge the Customer a minimum relocation cost of EUR 125 (excluding VAT) and an hourly wage of EUR 85 (excluding VAT), excluding any parts.
3.1 SMARTCHARGERS may provide the Customer with a number of Charging Cards, which will allow the Customer and/or end users to use the Charging Facilities ("Charging Cards"). When registering Charge Cards, the Customer may set a charge for the end users' use of the Charging Facilities. SMARTCHARGERS may charge fees for the use of Charge Cards.
3.2 The Charge Cards remain the property of SMARTCHARGERS and cannot be transferred to third parties under any circumstances. Upon termination of the Use Agreement, the Charge Cards must be returned to SMARTCHARGERS. The Charging Cards are for the sole purpose of using the Charging Facilities. All risks associated with the loss of a Charge Card are transferred to and borne by the Customer from the date of shipment of the Charge Cards.
4.1 The Customer may, if desired, use the software platform for online administration and management of the Charging Installations ("Software Platform"). SMARTCHARGERS grants The Customer, in exchange for paying the agreed prices, a non-exclusive and non-sublicensable right to use the Software Platform in accordance with the Use Agreement. The right of use commences at the time of signing of Use Agreement. The Customer may not allow the Software Platform to be used for the benefit of any (legal) person other than the Customer or its end users.
4.2 Since the Software Platform is offered as Software as a Service (SaaS), references to the right of use in the User Agreement are to be interpreted as follows:
4.3 The use of the MyBreex Software platform is made upon payment of a fee stated in the special terms and conditions on the Use Agreement.
4.4 SMARTCHARGERS guarantees that the data entered by the Customer through the Software Platform will be backed up on a daily basis. SMARTCHARGERS will do its best to secure the data that the Customer has entered through the Software Platform as well as reasonably possible against loss, theft, unauthorized access and modification by non-users.
4.5 The Customer guarantees that the Internet connection used by him meets the following requirements necessary for the use of the Software platform:
4.6 The Customer is responsible for taking the necessary measures to protect its hardware and software configuration and telecommunications and Internet connections from viruses, computer crime and unauthorized use by its own users or by third parties.
4.7 The Customer shall in no way use the Software Platform for purposes other than those for which the Software Platform is intended, in particular depending on the type of package the Customer chooses:
The Customer is responsible for the content and accuracy of the data it has placed with SMARTCHARGERS through the Software Platform. The Customer undertakes to SMARTCHARGERS to use the Software Platform in a reasonable manner that the amount of information stored by it and the volume of data transport realized by it do not deviate from what SMARTCHARGERS reasonably considers appropriate to provide the volume of end users with a more reasonable user experience appropriate for the predictable pattern of use. If such usage by the Customer deviates in SMARTCHARGERS' judgment, more fees will be charged for the additional usage in mutual agreement with the Customer.
4.8 SMARTCHARGERS is entitled to implement updates and upgrades to the Software Platform at its discretion. SMARTCHARGERS will make updates and upgrades (if practical) available via the Internet to the Customer who undertakes to implement it as soon as possible. SMARTCHARGERS reserves the right to restrict access to the Software Platform in whole or in part (including with respect to any end user):
4.9 The Customer must handle and is responsible for the login data with care. The login data are not transferable. The Customer and end users are obliged to maintain absolute secrecy with respect to the login data with respect to anyone. The Customer is liable for any use of its login data. SMARTCHARGERS has the right at any time to block or suspend the Customer's access to the Software Platform for an indefinite period of time with reasons given, if suspected misuse or other improper use is present.
4.10 All copyrights, patent rights, trade name rights, trademark rights, other intellectual and industrial property rights to, as well as all similar rights protecting information related to the Software Platform are the exclusive property of SMARTCHARGERS or its licensor(s). None of the provisions contained in the Use Agreement may be construed to result in a full or partial assignment of those rights to the Customer. The Customer may not alter, remove or make unrecognizable any indication of SMARTCHARGERS' intellectual property rights on or in the Software Platform. The Customer may not use or register any trademark, design or domain name of SMARTCHARGERS or any corresponding name or sign in any country, anywhere in the world.
Any event that constitutes an insurmountable obstacle to the normal performance of the User Agreement or seriously hinders or complicates it shall be considered a case of force majeure, including (but not limited to): strike, government measures, (temporary) company closure, transport difficulties, delay or impossibility in supply and damage to - or defects in - SMARTCHARGERS' operating assets essential to the contract, delay or impossibility in supply on the part of SMARTCHARGERS' suppliers. In the event of force majeure, SMARTCHARGERS will be entitled either to suspend performance of the User Agreement for a maximum period of three months, or to terminate all or part of the User Agreement, without being liable for any compensation. Financial commitments of the Customer can never be suspended or terminated as a result of force majeure.
6.1 SMARTCHARGERS reserves the right to change the prices in the interim, no more than once a year, but no earlier than six months after the start of the User Agreement. The change may be made as a result of objective criteria such as cost increases and/or changes in the exchange rate ratio and/or price-increasing measures taken by the Belgian government.
6.2 All taxes and charges, however called, which shall now, or at any time, be levied on the amounts payable by the Customer, or on the Use Agreement or on the Charging Installations and/or on the use of the Charging Installations, irrespective of in whose name they are placed, shall be borne by the Customer.
6.3 The Customer may only invoke its rights under Article 1184 of the Dutch Civil Code or suspend, discount or set-off against SMARTCHARGERS to the extent that the Customer has given SMARTCHARGERS prior notice of default, in which SMARTCHARGERS was granted a period of 30 (thirty) days to remedy any shortcomings.
6.4 SMARTCHARGERS has the right (but is not obligated) to make invoices available to the Customer electronically by email or through a customer portal.
6.5 Unless otherwise stated above, all invoices are payable at the address of SMARTCHARGERS' registered office and, unless otherwise stipulated, must be paid within 14 days of the invoice date. In the event of failure to pay on time, interest on arrears of 1.5% per month will be owed, by operation of law and without notice of default, as well as a fixed compensation of 10% with a minimum of EUR 65, by way of irrevocable damages and irrespective of the legal costs. Per reminder sent, an additional cost of 15,00 Euro will be charged in addition to the costs for the registered mail. All complaints and protests must be formulated within 7 days of the invoice date.
6.6 The Customer must always promptly inform SMARTCHARGERS of any changes in the address and billing information communicated when the User Agreement was signed.
SMARTCHARGERS' liability for any loss of enjoyment, loss of profit and/or indirect damage is excluded in any case, and SMARTCHARGERS will not be liable for any compensation for this under any circumstances. For direct damage SMARTCHARGERS's liability is limited to what it is insured for, in particular a maximum of EUR 100,000.00 for material damage and EUR 20,000.00 for physical damage. Under no circumstances shall SMARTCHARGERS be liable for damage to the hardware, software and data connected to the Charging Installations. Nor is it liable for damages or costs resulting from misuse of the access or identification codes. In case of non-conformity or defects of the Charging Installations, for which SMARTCHARGERS is liable to intervene, SMARTCHARGERS's liability and intervention shall be limited exclusively to repairing or, as the case may be, replacing the defective or non-conforming Charging Installations.
The Use Agreement may be terminated by SMARTCHARGERS by operation of law by ordinary written notice to the Customer, without any judicial formality:
If the Customer should unilaterally terminate or breach the Terms of Use early and prior to the expiration of the contractual term or commit a contractual breach, the Customer shall owe SMARTCHARGERS at least liquidated damages as provided below. In all cases of premature termination, without prejudice to SMARTCHARGERS's right to full compensation, the Customer will owe compensation to SMARTCHARGERS, on the one hand, in addition to the expired and unpaid sums, plus interest on arrears, fixed at the value of the monthly sums still due, plus EUR 150 + VAT administrative costs. The Customer expressly waives the benefit of Article 1231 of the Civil Code.
SMARTCHARGERS respects the Customer's privacy and processes its personal data for the purpose of customer or prospect management in accordance with the applicable regulations (in particular Regulation No. (EU) 2016/679 of April 27, 2016 on the protection of natural persons with regard to the processing of personal data). These processing operations are carried out on the basis of the consent of the Customer and the agreements made. By signing this Use Agreement, the Customer accepts that SMARTCHARGERS may carry out solvency monitoring, as well as collect data concerning the Customer as well as its representatives and other parties involved in the Customer's activity. This data may be used by SMARTCHARGERS or its group for the performance of the User Agreement, the fulfillment of their legal obligations and in order to send information regarding products or services that may be of interest to the Customer. This collection takes place in accordance with the privacy policy of the SMARTCHARGERS concerned. The Customer has the right to be informed about its personal data processed by SMARTCHARGERS and/or SMARTCHARGERS, as well as to ask for rectification of inaccurate data, deletion of data and/or restriction of processing, always to the extent provided by applicable regulations. The Customer also has the right to object to any processing and to request the transfer of personal data, again in accordance with applicable regulations. The Customer may exercise these rights by sending a written request to SMARTCHARGERS and/or SMARTCHARGERS, dated and signed, with a copy of both sides of the identity card attached. In case of problems, the Customer has the right to complain to the Belgian Data Protection Authority (Printing Press Street 35, 1000 Brussels +32 (0)2 274 48 00; +32 (0)2 274 48 35; contact@apd-gba.be).
Any dispute relating to the User Agreement, its execution, interpretation and termination shall be subject to the exclusive jurisdiction of the Dutch courts of Brussels. The User Agreement is governed by Belgian law.
