LOPOS PROXIMITY WARNING END CUSTOMER TERMS AND CONDITIONS
- Scope of application
1.1. These Proximity Warning End Customer terms and conditions, including the Data Protection Agreement and any other Schedules (Terms and Conditions) are applicable to all Lopos proximity warning Products offered by our Partners, unless explicitly agreed otherwise in writing by Lopos and shall be read together with the Partner Contract. In case of any inconsistencies between the Partner Contract and/or these Terms and Conditions, these Terms and Conditions shall prevail.
1.2. The End Customer agrees to waive its own general and special terms and conditions, even where it is stated therein that only those conditions may apply and even if such terms and conditions were not protested by Lopos.
The End Customer (you) acknowledges receipt of the Lopos end user terms contained under [hyperlink] and confirms that the End Customer has read these.
The Customer (you) agrees that by accepting the Partner’s quotation and/or accepting the Lopos Collision Warning Hardware and Software the End Customer (you) accepts these applicable Lopos end user terms. Customer (you) understands and accepts that Partner is not a party to these Lopos end user terms and these are separate from and unrelated to any agreement entered into between Partner and the End Customer (you).
2.1. In these Terms and Conditions, the capitalized terms mentioned below shall have the following meaning:
- Account means an account linked to personalized log-in credentials enabling an Authorised User to access and use the Dashboard.
- Authorised User means a user that has been authorized by the End Customer to access and use the Dashboard.
- Beacon means the LoposAlert beacon(s) ordered by End Customer.
- End Customer means a natural person or legal entity having entered into a contract with a Lopos Partner in respect of Lopos Proximity Warning Products.
- End Customer Data means all data generated by the End Customer and its users when using the Products and as processed or stored by Lopos as a result thereof. End Customer Data shall also include output data resulting from the processing by the Dashboard of the data generated by the End Customer and its users.
- End Customer-Induced Incident means an Incident caused by (i) any act or omission of the End Customer, Authorised User or any third person using the Products; (ii) any use of the Products which is out of scope or contrary to the Documentation, whether by the End Customer or by any person authorised by the End Customer; (iii) a failure of the End Customer to perform or observe any of its obligations under these Terms and Conditions; (iv) an incompatibility between the Products and any other system, network, application, program, hardware or software not specified as compatible in the Documentation; (v) abuse or misuse of the Products by the End Customer; (vi) any modification or addition to the Products that is performed without prior written consent of Lopos; (vii) the failure of any supporting (third party or End Customer’s) hardware and/or software; (viii) the use of incorrect data or incorrect integration; or (ix) the incorrect installation of a new version, release or fix by the End Customer or a third party;
- Dashboard means Lopos' online proprietary proximity warning platform.
- Dashboard Services means the services offered by Lopos via the Dashboard;
- Data Protection Laws means all applicable laws relating to the processing of Personal Data, including the General Data Protection Regulation (Regulation (EU) 2016/679) (GDPR);
- Documentation means the operating and/or user manual(s), including a description of the Product(s) and all other related materials made available by Lopos to its End Customers;
- Force Majeure means temporary or permanent inability of a Party to fulfil its obligations, resulting from external facts and circumstances reasonably beyond the control of that Party such as a lock-out, strikes, epidemics, war, economic embargoes, sabotage, fire, unfavourable weather conditions, water damage, machine failure, breakdowns, delays in the delivery of important components during manufacturing, disruptions or delays in the transportation or receipt of raw materials;
- Hardware means the Lopos proximity warning hardware products and accessories, including (but not limited to) the Wearables and Beacons, ordered by the End Customer;
- Hosting Terms shall have the meaning given to it in clause 5;
- Incident means a malfunctioning of the Dashboard that is not an End Customer-Induced Incident;
- Initial Term has the meaning given to it in clause 9;
- Installation Date means, unless another date has explicitly been agreed between End Customer and the Partner, the date on which End Customer has installed or configured the Products;
- Intellectual Property Rights means the following: (i) copyright, patents, database rights and rights in trademarks, designs, know-how and trade secrets (whether registered or unregistered); (ii) applications for registration, and the right to apply for registration, for any of these rights; and (iii) all other equivalent or similar forms of protection of intellectual property existing anywhere in the world;
- Lopos, us, our and we means Lopos BV, having its registered office at Ottergemsesteenweg-Zuid 808, bus 361, 9000 Ghent and with company number 0735.693.728;
- Partner means the approved Lopos distributor, reseller and/or other type of partner with whom an End Customer has entered into an agreement;
- Partner Contract means the contract between the Partner and End Customer in respect of the Lopos Proximity Warning Products;
- Party and Parties means the End Customer and/or Lopos;
- Personal Data has the meaning given to it in the GDPR;
- Products means any products provided by Lopos to the End Customer, including (but not limited to) the Hardware and/or the Dashboard, as further described in the Partner Contract and/or in the Documentation;
- Renewal Term has the meaning given to it in clause 9;
- Schedules means the schedules and/or annexes attached to the Terms and Conditions;
- Subscription means a subscription to the Dashboard;
- Term means the Initial Term and any Renewal Term (if applicable);
- Third-Party Providers shall have the meaning given to it in clause 5; and
- Warranty and Warranty Period shall have the meaning set out in clause 14.
2.2. All other terms and definitions with capital letters which are not defined expressly in this clause, shall have the meaning given to them in the Terms and Conditions.
- Product Compatibility
3.1. It is End Customer’s responsibility to assess, based on the Documentation made available by the Partner and/or Lopos, whether its equipment is compatible with the Products. By purchasing the Products, End Customer agrees and confirms that it has received all information required for End Customer to assess the specifications of the Products, their functionalities, and the compatibility of the Products with End Customer’s equipment.
3.2. End Customer understands and agrees that (i) the Hardware is produced by third-party manufacturers and (ii) components used in the design of the Hardware as well as its firmware may change over time. Technological changes introduced by for instance telecom companies, security events, market conditions and other factors may require that the hardware and/or firmware of the Products are changed, updated and/or upgraded from time to time. End Customer agrees that Lopos shall be entitled to release firmware updates for the Hardware from time to time. Lopos warrants backwards compatibility of the original (i.e. as available at the Installation Date) functionalities of its Dashboard with the Hardware during the first five (5) years following your purchase of the Hardware, unless such compatibility cannot be guaranteed due to (changes in) applicable regulatory and/or legal requirements.
- Provision of the Dashboard Services
4.1. Subject to End Customer’s payment of the applicable recurring subscription fees to the Partner, Lopos hereby grants to the End Customer a personal, restricted, non-transferable, non-sublicensable, non-exclusive, license to access and use the Dashboard for the internal business purposes of the End Customer during the Term in accordance with the applicable Documentation and any additional license restrictions set out in the Partner Agreement or as explicitly agreed in writing between the Parties. Within the scope of this license, Authorised Users are permitted to have access to and to use the Dashboard, under the conditions as mentioned in these Terms and Conditions. The extent of the license granted under the Contract is restricted to the scope expressly set forth herein, and there are no implied licenses under these Terms and Conditions.
4.2. Except to the extent expressly permitted in these Terms and Conditions or required by law, the End Customer shall not: (i) sub-license, assign, distribute, transfer, sell, lease, rent charge or otherwise deal in or encumber its right to access and use the Dashboard, or use the Dashboard on behalf of any third party or make them available to any third party, nor allow or permit a third party to do any of the same; (ii) permit any person to access or use the Dashboard; (iii) republish or redistribute any content or material from the Dashboard; (iv) reproduce, arrange, modify or alter the Dashboard including for the purpose of correcting errors, or create derivative works based on the Dashboard or enable a third party to perform such acts; (v) remove or alter any copyright or other proprietary notices of Lopos and/or its licensors; (vi) use the Dashboard for (a) any activity that is in breach of the law, public order or public morality, (b) unsolicited commercial communications (e.g. spam); (c) collecting or harvesting personal information in breach of the law (e.g. phishing); or (d) any activity that is offensive, defamatory, harmful to minors, indecent, illegal, in breach of third party rights or otherwise objectionable; and/or (vii) access the software code (including object code, intermediate code and source code) of the Dashboard.
4.3. Lopos will provide the Dashboard Services from the Installation Date onwards. End Customer acknowledges and agrees that the Dashboard Services can only be provided if (i) End Customer has the required Hardware; and (ii) appropriate connectivity is in place allowing the Hardware to be connected to the Dashboard. In some cases, End Customer may choose to acquire gateways to implement the required connectivity. Additional fixed and recurring fees and additional term and conditions (including the terms of the applicable telecom provider) apply to such gateways.
4.4. Lopos shall use reasonable efforts to perform the Dashboard Services with reasonable care and judgement in material accordance with these Terms and Conditions. Lopos may, without being held to any compensation, proceed with an interruption of the Dashboard Services for the purpose of maintaining or improving them, or where, according to Lopos, suspension of the Dashboard Services will prevent or usefully inhibit any sufficiently serious threat to the confidentiality, integrity, or availability of the Dashboard Services. Lopos shall (i) use reasonable efforts to give prior written notice of scheduled maintenance services that is likely to affect the availability or functioning of the Dashboard Services or are likely to have a material negative impact on the Dashboard Services and (ii) provide an extension of the Term in accordance with the duration of the interruption of the Dashboard Services .
4.5. Notwithstanding any other provisions of these Terms and Conditions, Lopos may make changes to the manner of its delivery of the Dashboard Services, the Dashboard, standards, operating procedures, accessibility periods, allocation and quantity of system resources used and administrative and operational methods, systems, or algorithms, provided, however, that Lopos will implement such changes so as not to materially and /or adversely affect the Dashboard Services.
4.6. The access credentials are personal, and the End Customer shall only allow access to Authorized Users and shall not communicate these credentials to any third party. Should a third party get access to the access credentials, the End Customer shall immediately notify Lopos thereof.
4.7. The End Customer must comply with all relevant policies (if any) which are designated and made available to the End Customer in advance (including via the Dashboard) and must ensure that all Authorised Users comply with these policies.
- Hosting Services and Third-Party Providers
5.1. The End Customer acknowledges (i) that the functioning of the Dashboard depends on goods and services provided by other third-party providers, including, but not limited to, our hosting providers and (if applicable) internet providers (Third-Party Providers) and (ii) that Lopos cannot guarantee the error-free and continuous functioning of these third-party goods and services and (iii) that Lopos shall not be liable for any damages resulting from the malfunctioning, errors, delays or other issues caused by or related to goods and/or services of such Third-Party Providers.
5.2. At the date indicated on top of the first page, the hosting services are provided by Lopos' hosting partner, Amazon Web Services. The End Customer acknowledges and agrees to accept and comply with the last version of the terms and conditions of the hosting partner, which are available via https://aws.amazon.com (the Hosting Terms). The End Customer acknowledges and agrees that the hosting partner may update the Hosting Terms from time to time. At all times during the Term, Lopos shall have the right to choose another hosting partner offering similar guarantees in terms of availability.
- Usage Control
6.1. Lopos has the right to verify End Customer’s usage of the Dashboard, including by keeping logs containing data concerning the Authorized Users’ use of the Dashboard, including access, volume usage and account usage. These logs are kept for invoicing, service monitoring and improvement as well as security purposes. Parties agree that these logs can be used as evidence to demonstrate compliance or breach of these Terms and Conditions and all rights and obligations hereunder. The logs shall be construed as evidence unless proof to the contrary.
- End Customer Data
7.1. The End Customer hereby grants to Lopos a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit, and translate the End Customer Data to the extent required for the performance of Lopos' obligations and the exercise of Lopos' rights under these Terms and Conditions. The End Customer also grants to Lopos the right to sub-license these rights to its hosting, connectivity, telecommunications service providers or any other third party to the extent reasonably required for the performance of Lopos' obligations and the exercise of Lopos' rights under these Terms and Conditions, subject always to any express restrictions elsewhere in these Terms and Conditions.
7.2. The End Customer warrants to Lopos that the End Customer Data when used by Lopos in accordance with these Terms and Conditions will not infringe the legal rights of any person, and will not breach the provisions of any law, statute, or regulation, in any jurisdiction and under any applicable law.
- Use of the Products
8.1. Lopos does not guarantee that the (use of the) Products will avoid any collisions.
8.2. The End Customer recognizes that:
8.2.1. Lopos Hardware measures the distance to the nearest piece Lopos Hardware and warns a user when the distance between these two pieces of Lopos Hardware falls below a certain distance;
8.2.2. as a result of the ultra-wide band technology, (i) the distance as measured by the Lopos Hardware may deviate from the actual distance between the pieces of Lopos Hardware and (ii) the signals may cause, and are subject to, interference and may be weakened in certain circumstances;
8.2.3. the Lopos Products have a purely accessory role and cannot in any way be considered or used as the only tool for (i) monitoring the distance between persons and objects and for (ii) proximity warning;
8.2.4. the Lopos Products do not in any way prevent persons (whether they are wearing a Lopos Products or not) from getting too close to other persons and/or objects; and
8.2.5. the Lopos Products do not guarantee the health or safety of the persons wearing or using the Products.
8.3. The End Customer is responsible for implementing all necessary safety precautions alongside the Products and to comply with all applicable legislation.
8.4. The Products shall only be used in accordance with these Terms and Conditions (including the Documentation) and the End Customer shall be responsible for ensuring that the users shall only use the Products in accordance with these Terms and Conditions (including the Documentation).
8.5. The Products shall not be used for the following purposes:
8.5.1. for illegal purposes, to perform acts that could be contrary to the applicable law (criminal or otherwise) or that could be prejudicial to Lopos, other End Customers or third parties;
8.5.2. for purposes, applications or within industries (i) other than those approved by Lopos and/or (ii) that require specific certifications;
8.5.3. to copy or reverse engineer the Lopos Products or to directly or indirectly prepare competing or derivative products or services; and/or
8.5.4. to resell or market the Products to third parties.
8.6. End Customer (or Partner, if explicitly agreed between Customer and Partner) shall be responsible for installing and configuring the Products and all bug fixes, updates and/or upgrades made available by Lopos.
- Term and Termination of Subscriptions
9.1. The Subscription shall commence on the Installation Date and continue in effect for the initial term mentioned in the Partner Contract (the Initial Term) and may thereafter renew under the conditions as agreed between End Customer and Partner in the Partner Contract (each a Renewal Term). For the avoidance of doubt, no Party may terminate these Terms and Conditions, unless (i) taking into account a notice period of three (3) months before the end of the Initial Term and / or the Renewal Term(s) or (ii) in accordance with clauses 9.3 or 9.4 below.
9.2. End Customer explicitly agrees that the Subscription shall not automatically renew if at the renewal date Partner has ceased to be a partner, reseller and/or distributor of Lopos. In such case, End Customer and Lopos may enter into discussions with each other with a view to renewing the Subscription.
9.3. Any use of the Products outside the scope set forth in these Terms and Conditions, unless such use has been expressly approved in writing by a duly authorized representative of Lopos, shall entitle Lopos or Partner to terminate (or alternatively, at Lopos' or Partner’s option, suspend) one or more of the licenses granted hereunder and/or the Subscription for material breach by the End Customer, after notification to the End Customer of minimum fifteen (15) days without any further formalities being required, without court intervention and without prejudice to any other right or remedy available to Lopos and/or Partner pursuant to these Terms and Conditions, the Partner Contract or under applicable law.
9.4. Either Party may terminate the Subscription by written notice to the other Party and without court intervention if the other Party materially breaches these Terms and Conditions, other than by non-payment, and fails to cure such breach within thirty (30) calendar days from the date of receipt of such notice by the breaching Party. For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of these Terms and Conditions: (i) a Force Majeure event, (ii) Third-Party Providers, or (iii) scheduled maintenance carried out in accordance with these Terms and Conditions.
- Data Protection
10.1. Each Party shall comply with the Data Protection Laws with respect to the processing of personal data.
10.2. The End Customer warrants to Lopos that it has the legal right to disclose all personal data that it does in fact disclose to Lopos under or in connection with these Terms and Conditions and that the End Customer has obtained sufficient consent from all data subjects concerned (if applicable).
10.3. Lopos shall only process personal data on behalf of End Customer in accordance with the data processing agreement set forth in Schedule 1 (Data Processing Agreement). .
10.4. Partner may access the Dashboard and Customer Data (e.g. in order to configure the Products). Lopos shall not be liable for any processing activities carried out by the Partner. End Customer and Partner shall enter into direct contractual arrangements in respect of any processing by Partner on behalf of End Customer.
- Intellectual Property
11.1. All Intellectual Property Rights in the Products and the Documentation shall be and remain the property of Lopos and/or its licensors. Any software made available by Lopos shall be licensed, not sold, notwithstanding general references to “delivery”, “Products” or any other part of these Terms and Conditions susceptible to contrary construction or implication.
11.2. The End Customer agrees not to remove, suppress, or modify in any way any proprietary marking, including any trademarks or copyright notices, on or in the Products or visible during its operation, on media or on any Documentation.
- Third party Claims
12.1. The End Customer shall promptly inform Partner of any third-party claim on an alleged or actual infringement by the Products or other materials offered or made available by Lopos and Lopos will be granted the right to control and direct the defense and settlement of such a claim. The End Customer shall be entitled to participate in such proceedings at its own cost. The End Customer agrees to reasonably cooperate with Lopos in the defense and settlement of such a claim. In the event the Products or such other material, in Lopos' reasonable opinion, are likely to become or actually become the subject of a claim of infringement as set out above, Lopos shall have the right, at its option and expense, to (i) modify or replace the (alleged) infringing material so that it becomes non-infringing while preserving substantially equivalent functionality; or (ii) obtain for the End Customer the right to continue to use the Products per the terms of these Terms and Conditions.
12.2. Lopos shall have no liability for any claim which is based upon (i) End Customer’s unauthorized use of the Products, (ii) End Customer’s or any third party’s modification of any of the Products or (iii) End Customer’s use of the Products in unauthorized or incompatible combination with any third-party products or services.
- Compliance with laws
13.1. The End Customer warrants (i) that it has and shall maintain all approvals, agreements, authorizations, allowances, licenses, and permissions which may be required for the receipt and use of the Products, and for all activities in the framework of these Terms and Conditions and (ii) that it shall comply with all applicable legal requirements and legislation.
13.2. The End Customer acknowledges that Lopos has no knowledge of the specific legislation and regulations that apply to the sector, industry, region, country, or state in which the End Customer operates and shall therefore not be responsible or liable for the End Customer’s compliance with such legislation and/or regulations in relation to the End Customer’s receipt and/or use of the Products. The End Customer shall hold Lopos harmless for any costs, expenses and liability caused by End Customer's non-compliance with applicable laws.
- Warranties –
14.1. If within a period of one (1) year (the Warranty Period) following the delivery of the Hardware any hidden defects appear that were already present at the time of the delivery, Lopos shall, at its sole discretion, have the option to repair the defective Hardware, to replace it or to offer a financial reimbursement for the defective Hardware (the Warranty), subject to the provisions set out below.
14.2. The defect must be reported to the Partner in writing within fifteen (15) calendar days following the manifestation of the defect, including a description of the defect. No replacement, reparation or pro rata reimbursement under the Warranty shall be made unless the defective Hardware is returned to the Partner . Any defective Hardware shall only be sent back (i) after End Customer has received Lopos’ and/or Partner’s prior written authorization to return the Hardware and in accordance with Lopos’ and/or the Partner’s instructions, (ii) packed in a manner appropriate to its nature and (iii) within eight (8) calendar days of the aforementioned authorization. The Partner and/or Lopos shall only bear the costs of any Product returns if Customer has complied with the aforementioned conditions. Upon receipt of the returned Hardware, Lopos or Partner shall perform an examination to determine whether the Warranty applies or not. In the event that the Warranty does not apply, for one of the reasons set out in the Contract, Lopos and/or the Partner shall notify the Customer thereof.
14.3. This clause set outs the sole and exclusive warranty offered by Lopos in respect of the Products. The Products are delivered in the state in which they are at the moment of delivery (as is). Lopos hereby, to the maximum extent permitted under applicable law, disclaims all other warranties, express or implied, including, without limitation, the warranties of merchantability, merchantable quality, fitness for any particular purpose or the warranty that the Products will operate error-free.
14.4. The End Customer is solely responsible for backing up its data and shall back up its systems and data before installing and/or accessing the Dashboard and on a regular basis thereafter during the remainder of the Term.
14.5. The End Customer shall notify Incidents to the Partner. Lopos and/or the Partner shall in no way be liable to offer support for End Customer-Induced Incidents.
14.6. Without prejudice to the generality of the foregoing, under no circumstances shall Lopos offer any warranty if End Customer has tried to open the Products or for:
14.6.1. damage to vulnerable parts that may be damaged through careless use;
14.6.3. any deterioration or problem of a purely aesthetic nature that has no impact on the properties of the Products;
14.6.4. damage caused by external causes, such as (i) chemical or electro-chemical effects of liquid substances; (ii) any use that is not in line with normal use or that deviates from the instructions given in the Documentation; (iii) contact with aggressive substances;
14.6.5. transportation damage that occurred outside of our responsibility, incorrect installation or assembly, misuse, poor maintenance, or a lack of observance of our assembly, installation, user and maintenance instructions;
14.6.6. any defect caused by reparation or interventions by End Customer or third parties;
14.6.7. any defect related to the batteries, which defect would occur after twelve months;
14.6.8. any defect resulting from modification or use combined with other systems not supplied or approved by Lopos; and/or
14.6.9. any defect resulting from use or operation of the Products not consistent with good practice or with the Contract (including the Documentation).
14.7. Any warranty offered by Lopos shall in any case be limited to the warranty Lopos has received from its third-party Hardware manufacturers, with a minimum duration of the warranty for such third-party Hardware manufacturers of twelve months.
15.1. To the maximum extent permitted by applicable law,
15.1.1. Lopos shall not be liable for any indirect, punitive, consequential, special or similar damages (including damages for loss of profit, anticipated savings, lost revenue or income, loss of use or production, loss of business, loss of End Customers and contracts, loss of goodwill, the cost of procuring replacement goods or services, and reputational damage) arising out of, or relating to, and/or in connection with these Terms and Conditions, regardless of (i) whether such damages were foreseeable, (ii) whether or not it was advised of the possibility of such damages and (iii) the legal or equitable theory (contract, tort or otherwise) upon which the claim is based. Lopos shall not be liable for any interpretation or use of the End Customer Data by End Customer or users;
15.1.2. without prejudice to the generality of the foregoing, (i) in all cases, our liability shall be excluded if the End Customer, or any user to which the End Customer has provided the Product(s), uses the Product(s) (a) in an improper manner, (b) in a manner inconsistent with the Terms and Conditions and/or the Documentation or (c) has otherwise deviated from the user and safety instructions delivered with the Product(s) or otherwise made available to the End Customer; and (ii) Lopos’ liability shall always be excluded in case of damage caused jointly by a fault of Lopos and the fault of the victim or a person for whom the victim is responsible;
15.1.3. in any case, Lopos’ aggregate liability shall be limited to the lower of: (i) the fees paid by the End Customer under the Partner Contract in the six (6) months preceding the event that gave rise to the liability and (ii) fifty (50) percent of the total amount paid by the End Customer for the Hardware under the Partner Contract. Lopos will under no circumstances be liable for an amount that is higher than the amount for which Lopos has liability insurance; and
15.1.4. only Lopos’ liability as a legal entity may be invoked and waives the right to invoke the liability of an employee, director or shareholder of Lopos or affiliated company.
15.2. Nothing in these Terms and Conditions shall exclude Lopos’ liability for its (or its employees’) fraud, wilful misconduct (opzet / dol) or gross negligence (zware fout / faute grave).
- Force Majeure
16.1. In the event that either Party is prevented from performing or is unable to perform any of its non-monetary obligations under these Terms and Conditions due to a Force Majeure event, such Party shall give prompt written notice to the other Party and its non-performance shall be excused, and the time for performance shall be extended for the period of delay or inability to perform due to such occurrences.
- Confidential Information
17.1. End Customer shall keep all Lopos Confidential Information confidential. Confidential Information means all information and/or data with regard to the End Customer’s relationship with Lopos, Lopos’ business, business models, pricing, staff, suppliers, Lopos’ internal policies and ways of working, equipment, designs, plans, diagrams, outlines, the functioning of the Products, the files and the software which come to the End Customer’s knowledge in any way.
17.2. The provisions of this article shall not apply to any information which: (i) is published or comes into the public domain other than by a breach of the Contract; (ii) can be shown to have been known by the End Customer before disclosure by Lopos; (iii) is lawfully obtained from a third-party; or (iv) can be shown to have been created by the End Customer independently of the disclosure and other than as part of the Contract.
17.3. The End Customer shall use such information in a secure manner, solely for purposes for which it is intended and share this information with people within its organization only on a need-to-know basis to fulfil the Contract.
17.4. The obligation of confidentiality shall remain in force for a period of five (5) years after the latter of (i) the last delivery made under the Contract; (ii) the termination or expiry of the Term or (iii) the moment the Confidential Information was made available to the End Customer.
18.1. Entire agreement - These Terms and Conditions constitute the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior oral or written agreements, representations or understandings between the Parties relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in these Terms and Conditions shall affect, or be used to interpret, change or restrict, the express clauses of these Terms and Conditions.
18.2. Waiver - The waiver by any Party of a breach of any provision of these Terms and Conditions shall only be valid if made in writing and shall not operate or be construed as a waiver of any other or subsequent breach.
18.3. Severability - If any provision of these Terms and Conditions is determined to be illegal, void, invalid or unenforceable, in whole or in part, the remaining provisions shall nevertheless continue in full force and effect. The provisions found to be illegal, invalid, or unenforceable shall be enforceable to the full extent permitted by applicable law. Each Party shall use its best efforts to immediately negotiate in good faith a valid replacement provision with an equal or similar economic effect.
18.4. Survival - Expiration, termination or cancellation of these Terms and Conditions shall be without prejudice to the rights and liabilities of each Party which have accrued prior to the date of termination, and shall not affect the continuance in force of the provisions of these Terms and Conditions which are expressly or by implication intended to continue in force, including, without limitation, the provisions relating to Intellectual Property Rights, Confidential Information and limitation of liability.
18.5. Assignment - Lopos may assign its rights and obligations hereunder in whole, but not in part, to (i) any corporation or entity with which Lopos may merge or to which Lopos may transfer all, or substantially all, of its assets, or (ii) to any affiliate of Lopos. End Customer is not entitled to assign these Terms and Conditions and its rights and obligations hereunder to any affiliate or third party, unless with the prior written consent of Lopos.
18.6. Subcontractors - Lopos shall have the right to subcontract part or all of its obligations to third parties. However, Lopos shall remain fully liable for such third parties towards the End Customer.
18.7. Relationship between the Parties - The relationship between the Parties is that of independent contractors. Neither Party is agent for the other and neither Party has any authority to make any contracts, whether expressly or by implication, in the name of the other Party, without that Party’s prior written consent for express purposes connected with the performance of these Terms and Conditions.
18.8. Interpretation - In the Contract (unless the context otherwise requires): (i) reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted; (ii) words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and incorporate; and each case vice versa; (iii) the headings or captions to the articles are for ease of reference only and shall not affect the interpretation or construction of these Terms and Conditions; and (iv) the term including, when used in these Terms and Conditions, shall mean without limitation and the enumeration following the term including shall be non-exhaustive.
18.9. Notice - Unless explicitly indicated otherwise, any notice required to be served by these Terms and Conditions shall in first instance be given in writing and by electronic mail. Electronic notices to Lopos shall only be valid (i) if sent to firstname.lastname@example.org and (ii) provided that explicit confirmation of receipt was given by Lopos by e-mail. In case no confirmation of receipt was given by Lopos within five (5) business days, End Customer shall send the notice by registered letter addressed to Lopos’ registered office.
18.11. Language - These Terms and Conditions are in the English language only, which language shall be controlling in all respects. All communications and notices made or given pursuant to these Terms and Conditions shall be in English.
- Jurisdiction and applicable law
19.1. Parties agree that all means will be used to reach an amicable settlement before legal action is taken.
19.2. In the absence of a suitable amicable solution, the courts of the judicial district of Ghent have sole jurisdiction, even in the case of a plurality of defenders, counterclaims, proceedings by or against third parties, and even in interim injunction proceedings.
19.3. The Contract shall be solely governed by Belgian law. The United Nations Convention for the International Sale of Goods shall not apply to these Terms and Conditions.
SCHEDULE 1 - DATA PROCESSING AGREEMENT
1.1. This data processing agreement (DPA) sets out the rights and obligations of the End Customer (in its capacity of data controller) and Lopos (in its capacity of processor) when processing personal data on behalf of the End Customer.
1.2. In the context of the provision of the Dashboard, Lopos will process personal data on behalf of the End Customer in accordance with this DPA.
1.3. This DPA shall take priority over any similar provisions contained in other agreements between the parties. The appendices attached to this DPA (Appendices) form an integral part of this DPA.
1.4. Any capitalized terms shall have the meaning given to them in this DPA or in the Terms and Conditions 1, as applicable.
- Rights and obligations of the Parties
2.1. The End Customer is responsible for ensuring that the processing of personal data takes place in compliance with the Data Protection Laws and this DPA.
2.2. The End Customer has the right and obligation to make decisions about the purposes and means of the processing of personal data.
2.3. The End Customer shall be responsible, among other, for ensuring that the processing of personal data, which Lopos is instructed to perform, has a legal basis and for informing the data subjects regarding the processing of their personal data.
2.4. Lopos shall process personal data only on documented instructions from the End Customer, unless required to do so by European Union (EU) or EU member state law to which Lopos is subject. Such instructions shall be specified in the Appendices. Subsequent instructions can also be given by the End Customer throughout the Term provided that such instructions shall always be documented and kept in writing, including electronically, in connection with this DPA.
2.5. Lopos shall immediately inform the End Customer if instructions given by the End Customer, in the opinion of Lopos, contravene applicable Data Protection Laws, in which case Parties shall hold good faith discussion in respect and Lopos shall not be obliged to follow the instructions it deems unlawful.
3.1. Lopos shall only grant access to the personal data being processed on behalf of the End Customer to persons under Lopos’ authority who have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality and only on a need-to-know basis. The list of persons to whom access has been granted shall be kept under periodic review. On the basis of this review, such access to personal data can be withdrawn, if access is no longer necessary, and personal data shall consequently not be accessible anymore to those persons.
3.2. Lopos shall at the request of the End Customer demonstrate that the concerned persons under Lopos' authority are subject to the abovementioned confidentiality obligations.
- Technical and organizational measures
4.1. Lopos shall take all appropriate technical and organizational measures as referred to in article 32 GDPR to ensure an adequate level of security appropriate to the risk.
4.2. The technical and organizational measures implemented by Lopos are described in Appendix C. The End Customer acknowledges those measures to be adequate for the processing of its personal data. Lopos may update or modify these measures from time to time provided that such updates and modifications do not result in the degradation of the security of the processing.
4.3. In case the End Customer requests additional specific technical and organizational measures to be implemented by Lopos, Parties shall have good faith discussions with respect to such request and the End Customer shall reimburse Lopos for implementing such measures.
- Use of sub-processors
5.1. Lopos has the End Customer’s general authorization for the engagement of sub-processors. Lopos shall inform in writing the End Customer of any intended changes concerning the addition or replacement of sub-processors in advance, thereby giving the End Customer the opportunity to object to such changes prior to the engagement of the concerned sub-processor(s). The list of sub-processors already authorised by the End Customer can be found in Appendix B.
5.2. Where Lopos engages a sub-processor for carrying out specific processing activities on behalf of the Customer, materially similar data protection obligations as set out in this DPA shall be imposed on that sub-processor by way of a contract, in order to ensure that the processing will meet the requirements of this DPA and the Data Protection Laws.
5.3. If the sub-processor does not fulfil its data protection obligations, Lopos shall remain fully liable to the End Customer as regards the fulfilment of the obligations of the sub-processor.
- Transfer of data to third countries or international organizations
6.1. Any transfer of personal data to third countries or international organizations by Lopos shall only occur on the basis of documented instructions from the End Customer and shall always take place in compliance with Chapter V GDPR.
6.2. In case transfers to third countries or international organizations, which Lopos has not been instructed to perform by the End Customer, is required under EU or EU member state law to which Lopos is subject, Lopos shall inform the End Customer of that legal requirement prior to processing unless that law prohibits such information on important grounds of public interest.
- Assistance to the End Customer
7.1. Taking into account the nature of the processing, Lopos shall assist the End Customer in the fulfilment of the End Customer’s obligations to respond to requests for exercising the data subject’s rights laid down in Chapter III GDPR.
7.2. Lopos shall furthermore, taking into account the nature of the processing and the information available to Lopos, assist the End Customer in ensuring compliance with: (i) the End Customer’s obligation to notify any personal data breach to the competent supervisory authority, unless such personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons (ii) the End Customer’s obligation to communicate without undue delay the personal data breach to the data subject, when the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons; (iii) the End Customer’s obligation to carry out an assessment of the impact of the envisaged processing operations on the protection of personal data (a data protection impact assessment); (iv) the End Customer’s obligation to consult the competent supervisory authority, prior to processing where a data protection impact assessment indicates that the processing would result in a high risk in the absence of measures taken by the End Customer to mitigate the risk.
7.3. Lopos shall use reasonable efforts to notify the End Customer within 48 hours after Lopos has become aware of any personal data breach to enable the End Customer to comply with the End Customer’s obligation to notify the personal data breach to the competent supervisory authority and/or data subjects (if applicable).
- Retention term, erasure and return of data
8.1. Lopos shall not keep the personal data any longer than required for the processing of such personal Data in the context of the Contract. The End Customer shall not instruct Lopos to store any personal data longer than necessary for the purpose(s) of the processing. The applicable storage periods are set out in Appendix A.
8.2. On termination of the provision of personal data processing services, Lopos shall be under obligation to delete all personal data processed on behalf of the End Customer and certify to the End Customer that it has done so unless EU or EU member state law requires storage of the personal data.
- Audit and inspection
9.1. Upon request of the End Customer, Lopos shall make available to the End Customer all information necessary to demonstrate compliance with its obligations under this DPA and the applicable Data Processing Legislation.
9.2. The End Customer has the right to perform at its own expense audits regarding the compliance by Lopos with its obligations under this DPA and the applicable Data Protection Laws. Lopos shall use its reasonable efforts to cooperate with such audits.
9.3. The End Customer shall notify Lopos of such audit at least one (1) month prior to the date on which the audit will be performed, by given written notice. In case an audit is being performed, all parties involved shall first sign a specific non-disclosure agreement with respect to such audit and the audit results. Upon the performance of any such audit, the confidentiality obligations of the Parties with respect to third parties must be taken into account. Both the Parties and their auditors must keep the information collected in connection with an audit secret and use it exclusively to verify its compliance with this DPA and the applicable Data Protection Laws. The End Customer has the option to perform the audit itself or to appoint at its own expense an independent auditor, however such independent auditor must duly sign the non-disclosure agreement referred to in this article. The audit shall not unreasonably interfere with Lopos' business.
9.4. The End Customer and Lopos and, where applicable, their representatives, shall reasonably cooperate, upon request, with the supervisory authority in the performance of its tasks.
10.1. For any data protection related queries, End Customer shall contact Lopos by using the following contact details:
10.2. Lopos shall contact the End Customer by using the contact data of End Customer received from its Partners.
Unless in those specific cases where Lopos' assistance is required due to Lopos' material breach of this DPA or Lopos' non-compliance with Data Protection Laws, the End Customer will reimburse Lopos for the services rendered in relation to this DPA. Such assistance will be charged by Lopos on a time and materials basis. The standard Lopos rates applicable at the time of the request shall apply. Lopos will invoice these amounts on a monthly basis. Lopos shall have the right to charge these amounts directly to the End Customer or indirectly, via the Partner, at Lopos’ discretion. .