General Terms and Conditions
a. Introductory provisions
1. Scope of application
These provisions apply to any agreement concluded between Viasat Connect Belgium S.A.,: N° Entr. : BE0426.340.140, Avenue Herrmann-Debroux 54, B-1160 Brussels (hereafter the “Company”) and its clients (hereinafter the “Client” or the “User”) in regard to the products and services provided by the Company, as well as, in general, to all their business relationships. Les présentes dispositions s’appliquent à toute convention conclue entre Viasat Connect Belgium S.A., N° Entr. : BE0426.340.140, Avenue Herrmann-Debroux 54, B-1160 Bruxelles (ci-après la «Société ») et ses clients (ci-après le “Client” ou l’”Utilisateur”) quant aux produits et services fournis par la Société, ainsi que de manière générale à l’ensemble de leurs relations d’affaires. If applicable, these general terms and conditions may be supplemented by special written conditions.
They were provided to the Client before the conclusion of the Contract and expressly accepted by the Client by signing the Purchase Order. The application of any general or special conditions of the Client or User is expressly excluded. Such conditions are only binding on the Company if they have been expressly agreed in writing by the Company, therefore the Company’s tacit agreement shall not be assumed in any case.
Prior to his order, the Client will gather all necessary advice and will ensure that the Software, Hardware and/or Service that he is planning to order correspond to his requirements and to the anticipated use. The Company assumes no responsibility for any error of choice or assessment by the client and/or the suitability of the Software, Hardware and/or Services for the purposes required by the client.
Depending on the Client’s order, the Contract provisions cover (i.) the right to use the Software, (ii.) supplying the Hardware associated with use of the Software and/or (iii.) the Services provided by the Company. Les chapitres a. et e. comprennent des dispositions introductives et communes s’appliquant en toute hypothèse. Les titres et la subdivision des présentes sont purement indicatifs.
Any order from the Client is binding with effect from the acceptance of the Purchase Order by the Company in accordance with the following paragraph. The Client’s staff, sales representatives or intermediaries are assumed to irrefutably have the powers required to bind the Client. Any order, for which the invoice is sent to a third party by the Client, makes the Client and the third party jointly and severally responsible for the execution of all the obligations herein.
The Client acknowledges and accepts that the staff, sales representatives, agents or intermediaries of the Company have no authority to bind the latter. Only the written approval of a manager or director duly authorised to this effect or, if applicable, the start of Software, Hardware or Service delivery by the Company, constitutes valid acceptance of the Purchase Order.
By using all or part of the Software, the User undertakes to respect the terms of this Contract. Viasat grants the Client a non-exclusive and non-transferable right to use the Service provided by Viasat described in the Contract.
The subscription fees associated with using the Software are due on a monthly, quarterly or annual basis, as indicated in the Contract. The subscription starts at the time indicated in the Purchase Order.
6. Duration and cancellation
This contract shall take effect from the first activation of the service and shall run for the initial firm and irrevocable duration mentioned in the Contract.
On expiry of the initial duration, the Contract will be automatically renewed, under the same financial conditions, for a further period of 12 (twelve) months each time.
The Client may cancel the Contract and all the associated Services by any means of probative value, with due regard for a notice period of at least 3 (three) months before the expiry of the initial duration or the tacit renewal.
The Company has the right to terminate the Contract without any prior notice or court intervention, if the Client or the User performs activities which are is in violation of article 7, 8 and/or 9 herein, without prejudice to the Publisher’s right to claim damages.
The right of use is extinguished as of right on expiry of the Contract for whatever reason. The Client or the User or the Reseller decline all rights to any compensation from the Company for termination of this Contract, for any reason whatsoever.
7. Property rights
Unless otherwise stipulated in the Contract, the Company remains the owner of all property rights and/or rights of use in the fullest sense related to the Software and any existing copies, in particular those arising from copyright of the Software and sui generis right attributed to the database producer. The Company only authorises the User to use the Software in accordance with the terms of the Contract. Any right that has not specifically been granted by this Contract is reserved by the Company. However, the User is authorised (a) to make a copy of the Software exclusively for the purposes of backup and archiving or (b) transfer the Software onto a single medium, provided that the original is only kept for backup or archiving purposes. The Client is prohibited from copying the Software’s manual(s), as well as the printed media that accompany the Software, except for personal and limited use.
The User can be the owner of their data and the physical media where such data is stored, but has no property rights whatsoever to the Software.
8. Client’s exclusions and responsibilities
It is strictly prohibited for the Client or the User to sell, rent, loan the Software or make it available to third parties, in particular competitors of the Company, in any way whatsoever (for example, electronically, through on-line services or by transmission on-line), for a fee or free of charge, whether for profit or not, and/or to be party to any such actions. Reverse engineering, disassembling, decompiling or any similar techniques are totally forbidden. In no case will the Company and/or its suppliers be held responsible for any losses or damages caused by an act of reverse engineering, disassembling, decompiling or any similar technique.
9. Individual nature of the User licence
The User’s rights and obligations under this contract are not transferable.
10. Publisher’s responsibility
11. Storage of data and Respect for privacy
The data is kept online for a period of three months on the Publisher’s servers, unless expressly agreed otherwise. The User is responsible for keeping his data for a longer period of time. To do this, he is invited to regularly back up the data on the basis of the reports made available to him.
Without prejudice to Clause 29 of these general terms and conditions concerning the processing of personal data, the data generated by the use of the Software according to the Client’s instructions, and temporarily stored by the Publisher, are the exclusive property of the Client, who remains fully and solely responsible, particularly with regard to any possible exploitation of the generated data.
12. Limited guarantee
The Company does not guarantee error free operation of the Software. The Client and the User are advised that calculation errors may occur when using the Software, due to, for example, local conditions and/or incomplete data or data not taken into account. Any defect unknown to the Company which could affect the software is not covered by the guarantee. The client undertakes to maintain the delivered Software at the best update level, the cost of acquiring new versions being at its expense except provision to the contrary.
To the maximum extent permitted by the law in force and to the exclusion of defects that render use of the Software impossible, the Publisher is offering the Software AS IS WITH ALL ITS DEFECTS and hereby declines any other express, implied or regulatory guarantee or condition, whether implicit or not, in particular and without limitation, (possible) implicit representations and/or guarantees, obligations or conditions of satisfactory quality, use for a particular purpose, reliability or availability, accuracy or exhaustiveness of responses, results, professional efforts, absence of viruses and absence of negligence for the Software, and the supply or absence of supply of support or other services, information, software and contents connected with the Software, of the results of use of the Software. The Software is not covered by any guarantee or condition of quiet enjoyment, quiet possession, and exclusivity in regard to the Client.
13. Final termination of use
Neither the User, nor the Client, nor the Reseller has the right to claim any compensation from the Company due to temporary or final termination of the use or license of the Software, for any reason whatsoever.
c. Supply of Hardware
14. Delivery, risks and removal of Hardware
14.1 Common provisions
The Company is responsible only for delivery of the Hardware explicitly specified in the Contract.
Unless otherwise agreed in writing, delivery times are only given by way of indication. Delay in hardware delivery or service delivery does not give any right to cancellation of an order or right to any compensation whatsoever, except in case of voluntary breach by the Company. The Company reserves the right to carry out partial deliveries. In no case will such partial delivery be able to justify refusal to pay by the Client, or the User, or the Reseller for the products delivered. When circumstances make the execution of the delivery impossible – in particular in all cases of force majeure such as strikes, lock-out, accident, bad weather, blockade, importation or exportation bans, suspension of production or delivery by the manufacturer, Sauf convention écrite expresse contraire, les délais de livraison ne sont donnés qu’à titre indicatif. Un retard dans la livraison ou la prestation ne peut donner lieu à l’annulation d’une commande ni à indemnité, sauf faute volontaire de la part de la Société. La Société se réserve le droit de procéder à des livraisons partielles. En aucun cas pareille livraison partielle ne pourra justifier le refus de paiement des produits livrés. Lorsque les circonstances rendent impossible l’exécution de la livraison – notamment dans tous les cas de force majeure tels que grève, lock-out, accident, intempérie, blocus, défense d’importation ou d’exportation, cessation de production ou de livraison par le constructeur, and any other event recognised by Belgian case-law as being a case of force majeure – the Company reserves the right to offer to supply the Client with products equivalent to the Hardware ordered or to terminate its commitments to the Client if the inability to deliver the Hardware extends beyond a one-month period or if the Client refuses the equivalent products offered by the Company, all without indemnity.
Unless otherwise agreed in writing, charges for delivery, removal and return of the Hardware supplied to the Client are payable by the Client. The Hardware is transported strictly at the risk of the Client.
Pursuant to clauses 14.2 and 14.3, assuming any third party intends to exercise any right over the Hardware, the Client shall inform the Company of this immediately in writing and shall inform the third party immediately in writing of the Company’s property rights over the Hardware.
In the event of the Client’s failure to perform its contractual obligations, the Company reserves the right, pursuant to this clause, to withdraw the Hardware belonging to it, and which is in the Client’s possession or any third party’s possession, at the Client’s expense. The Client must provide any and all assistance necessary to the withdrawal of said hardware.
14.2 Provisions applicable to any supply of the Hardware
The Hardware supplied to the Client will remain the property of the Company. In the event of the Client’s refusal to take delivery of the Hardware, it will not be discharged from its obligation to pay the charges for commissioning and licence fees. If applicable, the Hardware will be retained at the Client’s risk and expense.
14.3 Provisions applicable to any sale of the Hardware
In cases where the Contract provides for the sale of the Hardware by the Company to the Client, the Company retains the legal and economic ownership of the Hardware until full payment of the price of the Hardware in accordance with Clause 20 of this document. If full payment of the price is not forthcoming within the deadline provided by the Contract, the Company has the right, without giving prior notice of default, to consider the sale cancelled as of right. The Client will then owe the Company an irreducible lump sum indemnity equal to 30% of the selling price mentioned in the Contract.
In the event of a sale, the transfer of risks on the Hardware will come into effect from the moment of delivery. In the event of the Client’s refusal to take delivery of the Hardware, it will not be discharged from its obligation to pay the charges for commissioning and licence fees. If applicable, the Hardware will be retained at the Client’s risk and expense.
15. Payment guarantee and suspension of delivery
Regardless of the payment terms agreed in the Contract, the Contract may provide that the Client must supply the Company, prior to any performance by the Company of its obligations, with a bank guarantee to ensure the Client’s performance of its payment obligations. Until the Client has provided such guarantee, the Company has the right to suspend any subsequent delivery. De même, une garantie bancaire peut être exigée et des livraisons futures peuvent être suspendues aussi longtemps que l’acheteur n’aura pas satisfait à ses obligations de paiement relatives à des livraisons déjà effectuées.
16. Acceptance of Hardware
If the delivered and/or installed Hardware is damaged or incomplete, in case of error or any lack of compliance, the Client may refuse the Hardware or not accept it only by written notice.
Any claim relating to the Hardware delivered must be sent to the Company in writing within ten (10) working days following reception of the Hardware, the notice must include reasons for the claim and reference number of shipping document. Once this time elapsed, the Hardware will be deemed as accepted by the Client and no claims will be taken into consideration by the Company. No return of products will be accepted without the prior written agreement of the Company concerned.
17. Installation of the Hardware
The physical installation of Hardware (e.g. in vehicles) is carried out by a service provider independent of the Company. All procedures and conditions for Hardware installations are to be agreed to and concluded directly between the independent service provider and the Client. The Company declines any and all responsibility associated with such services provided by independent service providers.
The Client can also perform the installation itself and under its own responsibility. The performance and guarantees set out in these General Terms and Conditions will be vested in the Client that has made this choice, provided it has obtained the Company’s express prior consent to this mode of installation and after validation of the installation via the dedicated application.
18. Guarantees, claims and refunds of the Hardware
18.1 Provisions applicable of sold Hardware
The warranty is limited in all cases to repair or outright exchange of defective products – the choice between repair or exchange is at the sole discretion of the Company. The Hardware guarantee excludes any and all compensation or indemnity from the Company to the Client, the Reseller or third parties, except in the case of wilful misconduct of the Company. Installation and travel costs related to Hardware interventions under warranty or without warranty are excluded, unless otherwise specified in writing. Relative to peripheral equipment, installation and shipping costs, and in case of travel a fixed-price travel package, will be billed to the Client for products La garantie se limite dans tous les cas à la réparation ou à l’échange pur et simple des produits défectueux – le choix entre réparation et échange étant à la seule appréciation de la Société – à l’exclusion expresse de toute indemnisation généralement quelconque envers le Client ou des tiers, sauf faute volontaire de la Société. La main d’œuvre d’installation et les frais de déplacement liés aux interventions sous garantie ou hors garantie pour le Matériel sont exclus sauf disposition contraire. La main d’œuvre d’installation, les frais de livraison et, en cas de déplacement, un forfait de déplacement seront facturés au Client pour toute intervention under guarantee, according to the conditions and current rates as communicated to the Client.
The warranty does not cover the following cases:
In case when an anomaly or defect is identified but such cannot be confirmed by the Company as manufacturing or material malfunction under warranty or when the support intervention occurs out of warranty, the full costs of intervention will be charged to the Client.
The granting of guarantee assumes that the Hardware is used in good faith, under the terms of the offer or the normal conditions of use mentioned in catalogues, manuals, and other the Company published materials, etc., which are available to the client.
18.2 Provisions applicable to the supplied Hardware
The Company guarantees that the supplied Hardware will retain its intrinsic qualities as stated and will be free from material or manufacturing defects, or latent defects, during the term of the Contract. This guarantee covers the no-cost replacement of defective Hardware throughout the period of initial engagement.
This guarantee will not, however, apply to any misuse and/or unauthorised and/or abnormal use, nor to negligence or inappropriate storage of the Hardware. For this reason, after audit, the Company reserves the right to invoice the Client for the replacement of said Hardware.
The Client must take out insurance for the Hardware, to cover all risks of loss, theft or damage, howsoever caused, for an amount equal to the value of the replacement of the Hardware, and must provide the Company, on request, with proof of this insurance.
At the end of the Contract, and failing renewal of the latter by the Client or by tacit renewal, all the supplied Hardware must be returned to the Service Provider at the Client’s expense, complete and in good working order.
The Client may also pay the Service Provider a residual indemnity which will excuse it from the need to return its hardware. This indemnity covers the cost of the tag and the administrative and technical processing of the end of the Services. This indemnity if fixed at €30 before tax per item of hardware.
If the returned Hardware is incomplete or is in poor working order, the Service Provider reserves the right to re-invoice the Client for the fees incurred by the reconditioning or treatment of electronic waste in the amount of €40 per item of hardware.
19. Limitation of liability
20. Retention of title
In the event of sale of the Hardware, any and all Hardware delivered will remain the property of the Company until payment of the principal sum and any incidental amounts has been made in full. Until the above mentioned payment has not occurred in total, the Client and the Reseller are expressly prohibited from disposing of the Hardware delivered, and in particular from transferring its ownership, using it as collateral or allocating it to a security or lien of any sort. Insofar as required, the preceding clause is deemed to be reiterated prior to each delivery. Furthermore, the Client and the Reseller undertake to advise the Company immediately by registered letter of any seizure carried out by a third party.
d. Supply of Hardware
21. Purpose and duration
Any order for provision of Services with the Company only generates obligations of due care, with express exclusion of any obligation for result.
The duration of the Contract for Services is fixed in the Contract or in the special conditions applicable to these Services. In the absence of written notification by registered letter within the time limits stipulated in the special conditions or – where no time limit has been provided for in the special conditions – three months before the anticipated expiry of the Contract, contracts concluded for a fixed term are tacitly renewed by successive periods of one year.
22. Third Party Services
The Company may suggest to the Client that it sign up for additional services with a Third Party. If services are provided by a Third Party, the general terms and conditions of this Third Party shall apply. De tels services comprennent, sans s’y limiter, des services d’installation, des centres de télécommunication et de surveillance. La Société décline toutes responsabilités résultant de l’utilisation de services de telles Tierces Parties. En cas d’utilisation du centre de surveillance de la Tierce Partie afin de localiser un véhicule déclaré volé, cette partie s’engage selon les termes et conditions de ce contrat à faire tout ce qui est en son pouvoir afin de localiser le véhicule et de l’immobiliser si cette fonctionnalité est incluse dans le choix de Produit acheté par le client.
Such services include, but are not limited to, installation services, telecommunication and surveillance centres. The Company declines all responsibilities arising from usage of Services of such Third Parties. In case of usage of the Third Party surveillance centre to locate a vehicle after confirmed theft, such party is committed to the terms and conditions of this contract to use their best efforts to locate the vehicle and remotely immobilise it, if such functionality is included in the choice of Product purchased by the Client.
The Company cannot give any guarantee in respect of the success of the services offered by the Third Party. En aucun cas la Société ne pourra être tenue responsible du mauvais service ou de quelques dommages que ce soit eseau par le dysfonctionnement du eseaumuni de eseaumunication ou par le manque de couverture du eseau GSM/GPS.
Any telephone call to the monitoring centre to report the theft of a vehicle may incur additional costs for the use of the Third Party services, in accordance with that Third Party’s general terms and conditions.
Any claim relating to the Services provided must be sent to the Company in writing within eight working days of the end date of the services. Once this time has elapsed, the services will be deemed finally approved by the Client and no further claim will be taken into consideration.
In the absence of agreement by the Client, each party has the right to cancel the Contract by registered letter and without compensation.
e. Common Provisions
The prices shown on the price lists and offers from the Company are purely indicative and can be modified at any time. In case of a price increase for the Hardware delivered or Services provided by a Third Party after concluding the contract, the Company has the right to pass on this increase, by registered letter, to the Client. This resulting increase will be deemed accepted by the Client five working days after the date of sending such notification, except if the Company receives an opposition letter from the Client by registered post and within the same time as stated herein. Should the Client fail to agree, each party has the right to unilaterally cancel the Contract by registered letter and without any compensation whatsoever.
All prices are net, ex works from the Company’s registered office, excluding VAT, expenses and other taxes. The Hardware delivery is at the Client’s risk, even in the case of products sold or delivered free (i.e.franco).
Any deposits paid by the Client or the Reseller against any outstanding order shall count towards the total amount of the order. They are a beginning of execution of the Contract and not a deposit whose abandonment would allow the Client to be released from its obligations under this Contract.
25. Terms of payment
All Company’s invoices are payable in full, net and without discount, at the Company’s registered office, subject to other payment terms detailed on case by case basis and specified on the invoice.
In the case of payment default of all, or part, of an invoice, the total amount due, or the remaining amount due, is increased as of right and without any prior official notification by interest of 10% per year for any month being due. Furthermore, any invoice unpaid when due will automatically incur administration fee of 50 EUR. Lastly, failure to pay an invoice on its due date may indicate the Client’s insolvency and as such the Company has the right to accelerate maturity and require payments of all open invoices that the Company has outstanding with the Client at that time. In addition, delay or failure of payment of outstanding invoice gives the Company the right to suspend all its obligations under this Contract and terminate all or some of the existing Client’s and Reseller’s Contracts by providing a written notice via registered post but without any indemnity whatsoever.
Any claim relating to an invoice must be sent by registered mail within five working days of receipt, which is presumed to take place within 5 working days of the date shown by the invoice. At the expiration of this period, no claim will be admissible. A claim shall in no case justify a suspension of payment. The right to terminate as per Article 1794 of the Civil Code is not applicable.
26. Suspension and Cancellation
Non-payment of overdue invoices gives the Company the right to suspend as of right and without notice all current orders and to suspend or terminate all current subscriptions. In addition, the non-payment of an overdue invoice authorises the company, as of right and without notice, to cancel the sale of the goods to which the invoice relates, and the Client will be required to return the Hardware without delay and at its own expense. If the Client fails to return the goods to the Company, the Company reserves the right to remove the goods directly or through third parties. In the event that a sale is cancelled in full or in part as a result of any negligence or breach on the part of the Client, the Client shall pay the Company an irreducible lump sum indemnity for the costs incurred and the loss suffered equal to 30% of the selling price of the goods resulting in cancellation. This indemnity is due to the Company without prejudice to the Company’s claim for reimbursement of the costs incurred in having the goods returned and restored to their original condition. Furthermore, the interruption or termination of subscription services does not under any circumstances result in a refund or payment of damages to the Client or User.
27. General limitation of liability
To the fullest extent permitted by the laws in force, except in cases of gross negligence or wilful misconduct, the total liability of the Company arising from this Contract is expressly limited to the price actually paid by the Client for the Hardware if the damage is caused by the Hardware or, if applicable, the price paid by the Client to the Company during the 12 months prior to the damage being sustained if this is caused by fault on the part of the Company as part of the Services or of the Software. This limitation of liability, which is an essential condition of the Company’s commitment, applies regardless of whether the acts or negligence are attributable to the Company or to its processors or Third Parties, irrespective of the applicable liability regime, including, but not limited to, contractual liability, liability in tort, no-fault liability, latent defects liability, etc. In particular, the Company declines all liability arising from misuse, by the Client or User, of Company’s products or inconvenience or damages caused by malfunction or lack of coverage of telecommunications networks.
28. Company indemnity
The Client undertakes to guarantee and indemnify the Company, its representatives, employees, partners, and/or any Third Parties against any damage, claim or demand from third parties resulting from any unlawful use, or use in breach of Contract, of the Software, Hardware and/or Services. This guarantee covers any compensation that may be due as well as legal costs within a reasonable limit.
29. Data protection
The SIM card may not be removed from the GPS box and may not be used in a terminal and/or for a service other than those provided by the Company, on pain of specific telephone charges and fines. The Client instructs the Company to proceed with the collection, processing, storage and use of ground data to the extent this proves necessary for the performance of this Contract and the improvement of Services. For this reason, the Company keeps a register of all the categories of processing activities carried out on the Client’s behalf as part of the performance of its service and the use of the Service by the Client.
The Company informs the Client that the data collected during the use of the Services can be accessed by the Client on its platform for a maximum period of three months. It is up to the Client to save the data beyond that date, in compliance with the legal and regulatory obligations.
If the Company processes personal data on behalf of the Client, it is then acting as a processor within the meaning of the legislation in force on the processing of personal data and the parties will conclude, prior to any processing of these personal data, a personal data processing contract in accordance with Article 28 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
The Company may share publicly, as well as with its partners (publishers, advertisers or associated sites), anonymised and aggregated data which cannot personally identify the Client. The Company may thus publicly share information relating to usage trends for the Service.
The Company may transfer to its partners or third parties anonymised and aggregated data (without possibility of individualisation, correlation or inference) notably for the purpose of improving cartographic data.
If the Company is involved in a merger, acquisition or any other form of transfer of assets, it is committed to ensuring the confidentiality of the Client’s personal data.
For the entire duration of the Contract and for a period of twelve months following its termination, the Client is prohibited from employing (or attempting to employ) directly or indirectly any Company staff, officers, consultants or representatives, under penalty of compensation equivalent to the last twelve
(12) months of gross remuneration of the staff member, officer, consultant or representative concerned, without prejudice to compensation for higher damages, if applicable.
The fact that one party has not relied on a specific right or temporary has not exercised a right does not imply renouncing this right.
The invalidity of any clause or part of a clause in this Contract shall not affect the other provisions or parts of clauses and the provisions or part of a clause concerned shall be replaced whenever possible by a valid provision of equivalent economic effect.
The appendices attached to this Contract are an integral part of it. The English version is purely indicative. The French version of the Contract prevails. In the event of a contradiction between the Purchase Order and these general terms and conditions, the provisions of the Purchase Order shall prevail. Any special conditions that may apply to a service take precedence over these general terms and conditions.