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1. DEFINITIES

  • Deliverables: All documents, presentations, drawings, manuals, diagrams, and catalogs delivered to the Client, as explicitly included in the order confirmation.
  • Intellectual Property Rights: All trademark rights, domain names, design and model rights, patents, copyrights (including all rights related to computer programs) and moral rights, database rights, software, know-how, trade secrets, and other industrial and intellectual property rights, regardless of whether they are registered, including registration applications, as well as all equivalent rights or protection methods that lead to a similar result anywhere in the world.
  • MERTENS ELECTRIFICATION- AND CONTROL SYSTEMS: A public limited company under Belgian law, with its registered office in the Flemish Region, located at Drietorenstraat 18, 1840 Londerzeel, Belgium, with company number 0794.536.502 (RPR Brussels, Brussels section) and VAT number BE0794.536.502, abbreviated as "M-ECS."
  • M-ECS: Contractor entering into the Agreement.
  • Delivery of Goods: Delivery of Goods by M-ECS in accordance with Article 7.2 (Delivery Time/Delivery).
  • Client: Any legal and/or natural person with whom M-ECS makes agreements.
  • Agreement: The written agreements between the Client and M-ECS, including the order confirmation and these terms and the attached documents and/or appendices.
  • Platform: The SaaS IoT management platform for off-highway machines to which M-ECS grants the Client access, as explicitly included in the order confirmation.
  • Software: All software delivered to the Client, including the Platform, as explicitly included in the order confirmation.
  • Execution of Works: The design and/or performance of implementation activities, including, but not limited to, the creation of a tangible work and/or the provision of services, whether or not accompanied by the Delivery of Goods, not being an employment contract. Execution of works includes, among others, advisory, design, and supervisory activities, installation, assembly, manufacturing, renovation, repair, inspection, measurement, analysis, commissioning, and maintenance activities. This enumeration is not exhaustive.
  • Goods: All goods delivered by M-ECS as explicitly included in the order confirmation, excluding Software and Deliverables. voor zover zij uitdrukkelijk in de orderbevestiging zijn opgenomen​


2. GENERAL

2.1 These terms and conditions apply to all offers from and to all assignments to M-ECS for the Execution of works and the sale of Goods, Software, and Deliverables, and to any Agreement related thereto.

2.2 M-ECS hereby explicitly rejects the applicability of the Client's general terms and conditions. The Client declares to have taken notice of, understood, and accepted these general terms and conditions without any reservation.

2.3 Deviations from these terms and conditions only apply if and insofar as they have been accepted in writing by M-ECS.

2.4 The Agreement constitutes the entire agreement between the parties concerning its subject matter and replaces all prior agreements, whether written or oral, concerning the subject matter of this Agreement. Any modification, waiver, or exemption from the provisions stated in the preceding sentence is only valid if signed (electronically) by both parties.

2.5 The rights and/or obligations of M-ECS arising from the Agreement can be transferred to one or more third parties without the prior written consent of the Client.

3. OFFERS/ASSIGNMENTS/AGREEMENT

3.1 All offers from M-ECS are indicative and without obligation.


3.2 Assignments and acceptances of offers by the Client are considered irrevocable.


3.3 M-ECS is only bound when it has accepted an assignment in writing.

3.4 If the Agreement is amended or supplemented, the current general terms and conditions of the Agreement also apply to those amendments and/or supplements.

4. PRICE

4.1 The prices quoted by M-ECS or agreed with M-ECS are net, excluding VAT. Furthermore, the prices exclude the costs of packaging, loading, transport, unloading, insurance, installation, assembly, permits, and/or other services.

4.2 M-ECS is entitled to charge the actual costs and/or the usual rates at M-ECS to the Client if M-ECS has undertaken packaging, loading, transport, unloading, insurance, installation, assembly, permits, or other services without an expressly agreed written price.


4.3 The prices quoted by M-ECS or agreed with M-ECS are based on the cost price at the time of the offer or acceptance of an assignment by M-ECS. If the cost price increases thereafter, M-ECS is entitled to charge the Client a corresponding price increase.


4.4 M-ECS reserves the right to change the license fees for the Software at the end of the first contract term or at each renewal of the contract term by notifying the Client in writing of such a change at least three (3) months before the end of the first contract term or a renewal term.


5. PAYMENT/SECURITY

5.1 Payment must be made within 15 days after the invoice date. M-ECS always has the right to demand full or partial prepayment and/or to obtain security for payment in other ways.

5.2 The Client waives any right to set off mutual amounts owed. Any claim by the Client does not suspend the Client's payment obligations.

5.3 If the Client fails to pay any amount due, he is in default by operation of law and without prior notice of default. As soon as the Client is in default on any payment, all other claims of M-ECS against the Client become immediately due and payable, by operation of law and without prior notice of default. From the day the Client is in default, he owes M-ECS a late payment interest of 1% per month started on the unpaid invoice amount and a lump-sum compensation of 15% of the unpaid invoice amount, with a minimum of 125 EUR, by operation of law and without prior notice of default.

5.4 If payment to M-ECS is delayed or withheld, M-ECS is entitled, by operation of law and without prior notice of default, to suspend its performance and/or terminate and/or dissolve the Agreement and/or claim compensation for all damages suffered as a result of the Client's failure. The same applies if the Client fails to meet agreed-upon terms or if the Client's solvency is jeopardized. This applies regardless of the act or circumstance underlying it and also applies if it is unrelated to the performance of the Agreement.

6. Inspection

6.1 The Client is obliged to cooperate at their own expense and without delay with any agreed inspection. If the Client does not cooperate with the inspection at the agreed time or not on time, the Delivery of Goods and/or Execution of works will be deemed to have been approved

 7. DELIVERY TIME/DELIVERY

7.1 The delivery period for the Delivery of Goods, Software, and Deliverables starts after the fulfillment of the following cumulative conditions: the conclusion of the Agreement and after M-ECS has received all objects, documents, data, and confirmations to be provided by the Client and after any agreed prepayment has been received by M-ECS or security for payment has been provided for the benefit of M-ECS. The delivery period for the Execution of works by M-ECS only starts from the day on which the Client has completed his obligations and/or any preliminary or preparatory conditions at every stage of the execution.

7.2 The Goods and Deliverables to be delivered by M-ECS are considered delivered once M-ECS has sent notification to the Client that the Goods or Deliverables have been sent digitally or physically, or can leave the factory or warehouse for transport to or on behalf of the Client.


7.3 The Software to be delivered by M-ECS is considered delivered once M-ECS has sent the notification to the Client that the development work for the Software is completed and M-ECS has granted usage rights to the Client.


7.4 The Execution of works to be delivered by M-ECS is considered delivered once the Execution of works for the benefit of the Client is completed, or once M-ECS has sent notification to the Client that the Execution of works is completed.


7.5 In case of exceeding a certain end date or duration for the Delivery of Goods, Software, Deliverables, and/or Execution of works agreed upon by the Client with M-ECS due to circumstances attributable to M-ECS, the Client will grant M-ECS a reasonable period in writing to complete the work. If M-ECS remains in default, the Client is entitled to terminate the Agreement for the unexecuted part in writing, without prejudice to the provisions in article 11 (Liability/Indemnity). This termination right cannot be invoked for partial deliveries. Exceeding the agreed end date or duration or the reasonable period set by the Client does not entitle the Client to suspend any obligations arising from the Agreement, nor to any additional or substitute compensation.


7.6 M-ECS has the right to execute the Execution of works at its own discretion, with or without the involvement of third parties, and in parts or as a whole.


7.7 The assembly, commissioning, and operational delivery – insofar as they must be performed by M-ECS – will be arranged and recorded in writing by mutual agreement.


7.8 The Client is obliged to enable M-ECS to perform its Delivery of Goods, Software, and Deliverables and its Execution of works without restrictions. The Client must ensure, among other things, the timely provision of technical, maintenance, and functional product specifications of items to M-ECS with which, in connection with, or for which work must be performed. If the works are carried out on location, the Client must also ensure an accessible, free, and safe working environment in accordance with applicable regulations and instructions, and sufficient supervision, lighting, energy, and energy points, lifting and similar devices, tools of a large or special nature, small materials, and (spare) parts, all at the Client’s own expense and risk.




8. RISK/TRANSFER OF OWNERSHIP

8.1 The risk of loss, damage, or destruction of the Goods and Deliverables to be delivered by M-ECS is borne by the Client from the moment those Goods and Deliverables are delivered in accordance with article 7.2 (Delivery Time/Delivery).

8.2 The risk for the Client's items on which, with which, or in connection with which work is being performed, even if those items are located in buildings or on the premises of M-ECS, remains with the Client.


8.3 Loading, shipment or transport, unloading, and insurance of Goods to be delivered are at the Client's risk, even if M-ECS takes care of them.


8.4 All Goods and Deliverables delivered by M-ECS remain the property of M-ECS until full payment of all amounts owed by the Client to M-ECS in connection with the underlying Agreement, including damages, costs, and interest. The Client does not have a right of retention on those Goods and Deliverables.


9. ACCEPTANCE AND INSPECTION

9.1 Unless otherwise agreed in writing by the parties, the Client is obliged to accept the Goods at the moment they are ready for transport or shipment. M-ECS will notify the Client of this in writing.


9.2 The Client must immediately inspect each Delivery of Goods upon receipt. Any non-conformity and visible defects must be reported to M-ECS in writing without delay and no later than five (5) working days after receipt of the Goods, failing which all claims against M-ECS expire. In the event of non-conformity and/or visible defects of the delivered Goods, M-ECS has the right to repair and/or replace these Goods without the Client being able to cancel the order and/or claim any compensation.

9.3 The shades, color variations, aesthetic aspect, and/or other minor defects and imperfections of the Goods can in no case lead to the refusal of acceptance. Once the Goods have been mounted, modified, or treated in any way by the Client, any complaints will no longer be accepted.



10. FORCE MAJEURE

10.1 Neither party shall, without prejudice to article 15.3 (Dissolution/Termination), be liable or obligated to compensate for damages resulting from a cause that cannot be attributed to either party or both parties due to force majeure.

10.2 The parties agree that M-ECS is entitled to an extension of the term and other reasonably required adjustments to the Agreement if it can be demonstrated that delays and adjustments result from the consequences of (measures against) the force majeure situation as described in article 10.1 (Force Majeure).

10.3 If a force majeure situation lasts longer than three (3) months, either party may terminate and/or dissolve the Agreement in writing regarding the unperformable parts of the Agreement without any liability or compensation for any damages, and without prejudice to article 15.3 (Dissolution/Termination). Amounts owed to M-ECS are immediately due and payable and shall be paid without delay. Costs already paid or investments made by M-ECS at the time of termination of the Agreement must be reimbursed by the Client.


11. LIABILITY/INDEMNIFICATION

11.1 Notwithstanding any conflicting or deviating provisions in the Agreement and to the extent permitted under applicable law, the parties agree that M-ECS shall not be liable for indirect and/or consequential damages, including but not limited to: loss of profits, loss of revenue, interruption of operations and/or operational losses, costs related to replacement of energy supply, loss of data, increased costs and/or loss of expected savings, overhead costs, business damage, and/or loss of electrical connection, usage damage and/or capital costs or any other special, indirect or consequential damage of any kind.


11.2 Notwithstanding any conflicting or deviating provisions in this Agreement and to the extent permitted under applicable law, the parties agree that the total liability of M-ECS (including its employees, agencies, subcontractors, and customers) arising from the performance or non-performance of its obligations under the Agreement, whether under the Agreement, whether on the grounds of contractual or non-contractual liability, or on the grounds of indemnity or otherwise, shall in any case be limited to the corresponding order value.

11.3 M-ECS is not obligated to pay replacement or additional compensation unless the damage suffered was caused by fraud by M-ECS or its own employees.


11.4 Liability limiting, excluding, or determining conditions that can be invoked against M-ECS by suppliers or subcontractors of M-ECS in connection with the delivered Goods, Software, and Deliverables, may also be invoked by M-ECS against the Client.


11.5 Employees of M-ECS and/or third parties engaged by M-ECS for the execution of the Agreement can invoke all defenses mentioned in the Agreement against the Client as if they were themselves party to the Agreement.


11.6 The Client shall indemnify M-ECS (including its employees and third parties engaged for the execution of the Agreement) against any claim from other third parties in connection with the execution of the Agreement by M-ECS, to the extent that such claim includes a higher amount of damage or deviates from the rights of the Client to make a claim against M-ECS based on this Agreement.


11.7 The Client shall strictly adhere to national or international government-imposed export, import, and usage restrictions regarding the Goods, Software, and Deliverables to be delivered. If the Client violates any of the aforementioned restrictions resulting in damage to M-ECS, the Client shall indemnify M-ECS.


11.8 Unless otherwise agreed, M-ECS in no way guarantees the compatibility and/or interoperability of the Goods and Software delivered by M-ECS with any other product, software, system, or services. The Client is responsible for the compatibility and/or interoperability of the Goods and Software. The Client shall indemnify, defend, and hold harmless M-ECS for all costs and damages related to (the lack of) compatibility and/or interoperability of the Goods and Software, including but not limited to investigation costs and reasonable legal costs.


12. INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS

12.1 Provided that the Client complies with the terms of the Agreement and has paid all due license fees for the Software, M-ECS grants the Client a personal, worldwide, non-transferable, non-sublicensable, non-exclusive, revocable license to use the Software specified in the Agreement solely for its business purposes for the duration of the Agreement.

12.2 Provided that the Client complies with the terms of the Agreement and has paid all fees due for the Deliverables, M-ECS grants the Client a worldwide, perpetual, transferable, non-sublicensable, non-exclusive license to use the delivered Deliverables solely for its own business purposes.


12.3 Compliance by M-ECS with its obligations and payments made by the Client under the Agreement do not result in the transfer of any Intellectual Property Rights to the Client.


12.4 All Intellectual Property Rights related to the Software, Deliverables, and Goods delivered by M-ECS, whether created in the execution of the Agreement or not, rest exclusively with M-ECS and/or its licensors.


12.5 The Client grants M-ECS a non-exclusive, transferable, irrevocable, free, worldwide license to use everything the Client makes available to M-ECS and on which Intellectual Property Rights may rest, for and during the execution of the Agreement.


12.6 M-ECS owns all rights, including any Intellectual Property Rights, on (a) everything it or its appointees develop (whether or not in execution of the Agreement), (b) its own business methods, processes, know-how, or other intangible property, and (c) all derivative works, improvements, or modifications thereof. M-ECS is free to use its general knowledge, skills, and experience, and all ideas, concepts, know-how, methodologies, and techniques acquired in the execution of the Agreement for any purpose, as long as it does not infringe on the Intellectual Property Rights of the Client.


12.7 Unless and to the extent permitted by mandatory law or explicitly stipulated in the Agreement, the Client shall not, directly or indirectly, in any form (electronically, on paper, on a computer screen, via screenshots, etc.) reverse-engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software (a) modify, translate, or create derivative works based on the Software, (b) copy, sell, rent, lease, distribute, pledge, assign or otherwise transfer or encumber rights to the Software, (c) use or access to build or support products or services that compete with M-ECS, and/or assist a third party in doing so, and (d) modify by removing ownership notices or labels from the Software. Any breach of this provision entitles M-ECS to immediately terminate the Agreement without prior notice or judicial intervention. Such breach gives rise to compensation payable to M-ECS, which is set at EUR 5,000 by default, without prejudice to M-ECS's right to claim a higher amount in court.

12.8 If the Client's use of the Platform can be considered (a) a breach of the terms of this Agreement or the Intellectual Property Rights or any other right of M-ECS or a third party, (b) a threat to the security or integrity of the Platform, (c) a danger to the Platform due to viruses, Trojan horses, spyware, malware, or any other form of malicious code, (d) in any way hateful, obscene, discriminatory, racist, defamatory, offensive or otherwise inappropriate or illegal, or (e) in direct competition with the commercial interests of M-ECS, M-ECS reserves the right to immediately revoke the Client's login credentials and block the Client's access to the Platform without prior notice or judicial intervention and without any form of compensation or other claim.


12.9 If a part of the Software is (a) the subject of a claim for alleged infringement of Intellectual Property Rights of a third party and M-ECS reasonably determines that such infringement is likely, or (b) if a final court judgment establishes such infringement, then M-ECS may, at its discretion and at its own expense, (i) obtain the right for the Client to use such part of the Software, or (ii) replace or modify the part of the Software with other suitable and reasonably equivalent parts so that the part is no longer infringing.


12.10 M-ECS is not liable for any infringement of Intellectual Property Rights resulting from or caused by (a) the use or copying of a part by the Client after M-ECS has issued a written notice to the Client requesting the Client to cease using such part, (b) the use of a part in combination with any software or other part not supplied or approved by M-ECS, and (c) any version of the part for which updates, fixes, or revisions have been made available by M-ECS to the Client if such infringement would have been avoided by the installation and use of such updates, fixes, or revisions.


12.11 Unless expressly stated otherwise, the Software is provided "as is," without any warranty of error-free or uninterrupted operation or fitness for a particular purpose. Unless expressly stated otherwise, M-ECS has no maintenance or support obligation regarding the Software.


12.12 The Client declares and guarantees compliance with all applicable laws regarding the use of the Software, including all data protection regulations.





13. CONFIDENTIALITY

13.1 Both parties are obliged to maintain confidentiality regarding the existence and content of the Agreement, as well as all know-how, data, and other information ("Information") they become aware of orally, in writing, and/or otherwise in connection with the conclusion, performance, and termination of the Agreement. They will only use this Information within the context of the Agreement. The parties will treat the Information of the other party with the same care as they treat their own confidential information and limit disclosure of the Information to employees or third parties who need to be aware of it. They will not provide this Information to others and/or disclose it in any other way unless they have obtained prior written consent from the other party. Prior consent is not required for disclosure to group companies, insofar as legally permitted (especially in light of competition law). Parties will ensure that employees and third parties, including group companies, are subject to and comply with similar confidentiality obligations that are no less strict than the obligations applicable to the parties under this Agreement. This confidentiality obligation applies during the term of the Agreement and for 2 years after its termination. Information that is publicly accessible or becomes publicly accessible without the receiving party being accountable for it is not considered confidential information. Parties will identify confidential information as such as much as possible.

14. SAFETY

14.1 The Client, its employees, and/or third parties engaged by the Client will comply with the applicable safety and environmental regulations. They will also adhere to the applicable rules, instructions, and directions regarding order, safety, environment, and control that apply at the location where the Execution of works takes place.

15. DISSOLUTION/TERMINATION

15.1 If the Client fails to fulfill one or more of its obligations, does not fulfill them on time or properly, is under judicial reorganization, is declared bankrupt, applies for a suspension of payments, proceeds to liquidate (a significant part of) its assets, or if its assets are wholly or partially seized, M-ECS has the right to suspend the execution of the Agreement or to terminate and/or dissolve the Agreement in whole or in part in writing by operation of law and without prior notice of default. This will be done at M-ECS's discretion while retaining any right to compensation for costs, damages, and interests. Amounts owed to M-ECS are immediately due and payable and must be paid without delay.


15.2 The Client may only dissolve or terminate the Agreement in the event and under the conditions specified in article 7.5 (Delivery Time/Delivery) and only after all amounts owed to M-ECS have been paid.

15.3 If the Agreement is terminated under article 10.3 (Force Majeure), M-ECS is entitled to a portion of the agreed price for the complete Delivery of Goods, Software, Deliverables, and/or Execution of works. This portion will be proportional to the scope of the Goods, Software, and/or Execution of works that have already been delivered and/or completed at the time the Agreement is terminated. Costs and/or investments already made or incurred at the time the Agreement is terminated must be fully reimbursed by the Client.


16. UNFORESEEN CIRCUMSTANCES

16.1 Notwithstanding any contradictory provisions in the Agreement, the parties agree that if M-ECS proves after the conclusion of the Agreement that: (i) the continuous execution of contractual obligations has become unreasonably burdensome due to an event beyond M-ECS’s reasonable control, which M-ECS could not reasonably have considered at the time of the agreement if it had known about the event, and (ii) M-ECS could not have reasonably prevented or sufficiently mitigated the event and/or its consequences, the parties are obliged to negotiate within a reasonable period after invoking this article 16 (Unforeseen Circumstances) to find adjusted contract terms that reasonably take into account the consequences of the event.


16.2 If the parties do not agree on adjusted contract terms within a reasonable period after M-ECS invokes this article, M-ECS has the right to dissolve the Agreement.


17. SEVERABILITY

17.1 If one or more provisions of these terms or the Agreement are declared partially or fully invalid, illegal, or unenforceable under applicable law, the validity, legality, and enforceability of the remaining provisions of this Agreement shall not be affected in any way.


17.2 If such an invalid, illegal, or unenforceable provision materially affects the Agreement, the parties shall immediately and in good faith negotiate to find a legally valid, substitute provision.


18. APPLICABLE LAW/DISPUTES

18.1 All legal relationships between M-ECS and the Client are exclusively governed by Belgian law, without reference to and excluding all international treaties.


18.2 The courts of Brussels have jurisdiction over disputes between M-ECS and the Client, without prejudice to M-ECS's right to bring proceedings before other courts if necessary.