REDUCT® – Terms and Conditions for usage of PRODUCT AND SOFTWARE-AS-A-SERVICE
1. OFFER, CONFIRMATION, AGREEMENT
(a) These terms and conditions (“Terms”) apply to the purchase and supply of Reduct software-as-a-service (“Usage”) (which includes any cloud software provided as-a-service) and supply, distribution, license, make available or sale (as the case may be) of all products, equipment, and equipment-based products or systems (“Products”) provided by Reduct NV (“Reduct”) and will form a necessary part of any Offer or Agreement therefore. The ordering of Usage services and or Products from Reduct constitutes acceptance of these Terms, as such Terms may have been updated through the date of such order. As used herein, “Agreement” means any written agreement for supply, distribution, make available, sale, or license of any Products or Usage entered into with Reduct Customer, or any purchase order that is issued to and accepted by Reduct; and “Offer” means any quotation, proposal or offer provided by Reduct. “Contracting Party” means contracting Utility Entity, Contractor, Engineering Entity and Surveyor as contractors or Utility Entity’s subcontractors. Reduct and Contracting Party are individually referred to herein as a “Party”, and collectively as the “Parties”.
(b) Usage and Products may include web or mobile applications that may be subject to additional terms (“Additional Use Terms”) or software that may be subject to additional (end-user) software license conditions (“EULAs”), both from either Reduct or an affiliate, or third parties. Such EULAs or Additional Use Terms will be made available together with the web or mobile application or software, as applicable. Except where specified otherwise in a EULA or Additional Use Terms, such EULA or Additional Use Terms will form part of the Agreement. Software will not be sold to Customer, but licensed subject to the license terms in section 10 below.
(c) In the event of any conflict or inconsistency between these Terms and the terms of any Agreement or Offer the terms of such Agreement or Offer will prevail. With respect to web or mobile applications or software, any Additional Use Terms or the terms of any applicable EULA will prevail over these Terms.
(d) The terms “agreed”, “consent”, “confirmed”, “accepted”, “informed”, “notified” or “notice” and documents or acts of similar meaning will be deemed to be required to be done in writing, where “in writing” means hand-written, type-written, printed or electronically made, and resulting in permanent record. The term “includes” or “including” will be construed without limitation to the generality of preceding words.
(e) Any different or additional term in any purchase order, blanket instructions, terms of purchase or other writing from Contracting Party will be deemed a material alteration of these Terms and are expressly objected to and rejected and will be of no force and effect. Commencement of performance or shipment will not be construed as acceptance of any of Contracting Party’s terms and conditions. Course of performance or usage of trade will not be applied to modify these Terms.
(f) These Terms may be amended by Reduct by posting an updated version on its website, provided that in respect of an Agreement and an Offer the version of the Terms applicable as of the effective date of the Agreement or the date of the Offer will apply.
(g) Offers by Reduct are open for acceptance within the period stated in such Offer or, in the event that no period is stated, within thirty (30) days from the date of the Offer, provided that Reduct may amend, withdraw or revoke any Offer at any time prior to the receipt by Reduct of the acceptance of an Offer. No order submitted by Contracting Party will be deemed final or accepted by Reduct unless and until confirmed by Reduct.
(h) Contracting Party is solely responsible for the accuracy of any order, including with respect to the specification, configuration or other requirements of Usage and Products, functionality, compatibility, and interoperability with other products (not authorized by Reduct), as well as fitness for particular use. Contracting Party warrants that the information provided to Reduct under an Agreement is complete, accurate and true, and Contracting Party acknowledges that a failure to provide complete, accurate and true information or instruction to Reduct may detrimentally affect Reduct’s ability to discharge its obligations or exercise its rights under an Agreement.
(i) Any catalog, specification, price sheet or other similar documentation prepared by Reduct is strictly for convenience only and will not be deemed as an Offer. Reduct believes such documentation is complete and accurate at time of printing, but Reduct does not warrant that such documentation is error free.
(j) Usage and Products will be supplied in accordance with the standard functionalities, styles and sizes as described in Reduct’s catalogs. In the event of a conflict between an order of Contracting Party and a drawing or specifications sheet from Reduct, the latter will prevail.
(k) Assumptions, exclusions and qualifications stated by Reduct in Offers, Agreements or otherwise will direct the Agreement and will be construed as part thereof and guide its execution and interpretation.
2. PRICES AND TERMS OF PAYMENT
(a) In consideration of the supply, distribution, making available, sale or license of Products and/or Usage services by Reduct, Contracting Party shall pay all prices and fees (“Prices”) in accordance with the Agreement and its section 2. Prices are in [Euro] and unless agreed otherwise based on Ex Works – Reduct facility (INCOTERMS latest version). Unless stipulated otherwise by the applicable INCOTERMS, Prices do not include any taxes, duties or other governmental fees, now or hereafter enacted, including value-added or similar taxes levied by any government, and Reduct may add these to the Price or invoice separately, and Contracting Party will reimburse Reduct promptly on first request.
(b) Subject to notice to Contracting Party, Reduct reserves the right to adjust Prices for Products and/or Usage not yet delivered or performed to reflect variations in individual costs of more than five percent (5%) including any foreign exchange rate fluctuations, raw materials and other costs of manufacturing and distribution, and labor costs, that take effect between the date of the Agreement and delivery of Products and/or Usage. In addition, if an Agreement has a term longer than twelve (12) months, Reduct may adjust Prices as of each 1st April (i) for the change in the most recently published Producer Price Index, Total Manufacturing Industries, as published by the U.S. Department of Labor, Bureau of Labor Statistics compared to twelve (12) months earlier, and (ii) to reflect variations in the foreign exchange rate between the U.S. Dollar and the Euro of more than 5% since the date of an Offer.
(c) Any cancellation, delay or other change by Contracting Party of a purchase order previously accepted by Reduct will require the prior approval of Reduct and the approval will be without prejudice to any rights or remedies Reduct may have under the Agreement or at law. If, on request of Contracting Party, Reduct agrees to any such change in purchase order or a change in an Agreement, including a (partial) cancellation, delay or suspension, the addition, omission, alteration, substitution or modification of the design, quality, standard, quantity, manufacturing site or performance (including sequence, quantities or timing) of Products and/or Usage (each, a “Variation”), or a Variation is required due to (i) changes in applicable laws, regulations or industry standards, (ii) emergency situations, (iii) incorrect or incomplete information provided by Contracting Party, or (iv) non-compliance by
Contracting Party of any of its obligations under an Agreement, Contracting Party shall reimburse Reduct for all costs and expenses incurred in respect of such Variation promptly on first request.
(d) Reduct may invoice Contracting Party upon shipment of Products, or when Usage has started. Reduct may require: (i) Contracting Party to pay on fixed payment days; (ii) an advance payment of (part of) the Price; and/or (iii) invoice per separate specified Royalty fee calculator method, time period and/or milestone of performance method, or any combination thereof. Contracting Party shall make net payment within thirty (30) days of the date of invoice to the designated bank account of Reduct. Contracting Party shall pay all amounts due to Reduct in full without any set-off, counterclaim, deduction or (tax) withholding.
(e) In the event Contracting Party fails to make any payment and/or fails to perform according to a customer committed volume due under an Agreement on the due date, then, whether or not Reduct has made a formal demand for payment and/or change against customer committed volume and in addition to any other rights and remedies available to Reduct, to the extent permitted by applicable law: (i) all amounts due from Contracting Party will be considered payable and non-disputed, admitted debt; (ii) Contracting Party shall pay Reduct interest on all due amounts from the due date until Reduct has received full payment thereof, at the Secured Overnight Financing Rate (SOFR), plus five (5) percent per annum or the applicable statutory rate, whichever is higher, and shall pay Reduct all costs of payment collection, including attorneys’ fees; and (iii) Reduct may cancel any credit issued to Contracting Party and require, to its satisfaction, that Contracting Party provides (additional) security, pre-payments or deposits, and may implement additional conditional payment terms or modify/accelerate payment schedules, Royalty fee calculator methodology for any previous customer committed volumes and/or outstanding customer committed volumes.
(f) Reduct may set off against and deduct from any amount that Reduct (or any of its affiliates) owes to Contracting Party under any agreement any amount that Contracting Party owes to Reduct or against any advance payments or deposits made by Contracting Party. In the event that Reduct sets off amounts in different currency it will use a commonly used currency conversion rate.
3. DELIVERY OF PRODUCTS; USAGE SERVICES
(a) Unless agreed otherwise, Products will be delivered Ex Works – Reduct facility (INCOTERMS latest version). Reduct shall provide Usage as agreed in the Agreement. Dates communicated or acknowledged by Reduct are approximate only, and Reduct will not be liable for, nor will Reduct be in breach of its obligations to Contracting Party, for any delay in delivery or performance, provided that Reduct shall use commercially reasonable efforts to meet such dates. In the event of delay, Reduct shall use commercially reasonable efforts to deliver Products or provide Usage (where applicable) within a period that is reasonably needed given the cause of the delay, failing which Contracting Party’s sole and exclusive remedy will be to cancel the purchase order for undelivered Products and Usage.
(b) Contracting Party shall note any damage to Products caused in transit, or shortages thereto, on transport documentation immediately upon receipt of Products, with due regard to applicable instructions by Reduct or the carrier. All Products delivered under the Agreement will be deemed accepted by Contracting Party as conforming to the Agreement and Contracting Party will have no right to revoke any acceptance, unless Contracting Party provides Reduct notice of a claimed nonconformity within eight (8) days of the date of delivery. As far as hidden Defects to the Products are concerned, Contracting Party has to
invoke the above mentioned guarantee within eight (8) days after the incident that occasioned the invocation of the guarantee took place, and at the latest within three (3) months after delivery. Any use of a Product by Contracting Party or its customers after delivery will constitute acceptance of the Product by Contracting Party. Reduct shall at its option and within a reasonable time, correct nonconformities by either repair, make available parts, replace or deliver missing Products, or credit the Price paid by Contracting Party for undelivered Products.
(c) Minor Nonconformities will not prevent or suspend acceptance by Contracting Party of the Products, Usage or both, and Reduct shall correct these within a reasonable time. “Minor Nonconformities” are nonconformities or anomalies that do not hinder the overall operation and intended use of Products or Usage in accordance with the specifications.
(d) Reduct may make changes to the design, materials, fit and finish of Products or change working methods, communication systems, software or any other elements of Usage, and Documentation provided that such changes do not materially affect the functionality of the Product or Usage. Unless specifically agreed otherwise, Reduct does not warrant the availability, accuracy, completeness, reliability, timeliness or output from Products and Usage. Contracting Party shall not use or rely on Products and Usage for any other applications or purposes than agreed in the Agreement.
(e) Contracting Party explicitly acknowledges that certain features or functionality of Products and Usage may rely on the availability and correct functioning of third party service providers, certain third party infrastructure accessibility and condition or a combination thereof, as may be indicated by Reduct, including supply of energy, data storage, connectivity and communication services, accessibility to (network) infrastructure. These are outside of the control of Reduct, and Reduct will have no responsibility or liability in this respect.
(f) Contracting Party is responsible for all information, orders, instructions, materials, and actions provided or performed directly or by third parties engaged by Contracting Party (excluding subcontractors of Reduct) in connection with the delivery or performance by Reduct of any Products or Usage and Contracting Party shall cause and ensure the accuracy and completeness of all information furnished by it. Reduct will be entitled to rely on the accuracy and completeness of all information furnished by Contracting Party, including where on-site data collection, mapping, design or audit services are performed in connection with the delivery or performance by Reduct. Upon request of Reduct, Contracting Party shall promptly provide any other information, services or support under Contracting Party’s control and relevant to the performance by Reduct under the Agreement.
(g) In the event of delay or interruption in delivery of Products or the availability of Usage for reasons not attributable to Reduct or due to a Variation, the timelines for performance by Reduct will be amended accordingly. Reduct will be entitled (in addition to the increased costs referred to in section 2 (c) to a reasonable compensation by Contracting Party for any damages and/or costs incurred by such delay.
(h) In the event that an Agreement contains (minimum) stock requirements for Reduct, Contracting Party shall at first request of Reduct purchase Products kept in stock under such requirement.
4. USE OF PRODUCTS AND USAGE SERVICES
(a) Contracting Party shall use and, where applicable, shall cause and ensure that Products are used only for their intended purposes and in accordance with all instructions contained in
online instructions, manuals, guidelines, warranty terms and any other terms and conditions applicable to such Products and Usage. Contracting Party shall maintain and, where applicable, shall cause and ensure that the site, site conditions and equipment supplied and/or used by Reduct in the provisioning of Usage (including cablings, conduit access and condition) be maintained in good condition, repair, and working order, and shall protect, cause and ensure same against damage and external influences.
(b) Contracting Party shall use and, where applicable, shall cause and ensure that end-users use web-applications, mobile applications and software in accordance with applicable Additional Use Terms and/or EULAs, and where applicable, keep full back-up of such software installed readily available. In the event of a software error, Contracting Party shall provide support@reduct.net with alerts or error messages and support Reduct in updating or replacing software used in connection with performance under the Agreement.
(c) Contracting Party shall not perform (or permit) any activity on any equipment or software supplied and/or used by Reduct in the provisioning of Usage, except normal use in accordance with the specifications or otherwise with the prior approval by Reduct. In the event of any unauthorized actions, Reduct may suspend the Usage until the equipment or software has been restored to its original compliant state and charge Contracting Party on the basis of a Variation, and until confirmed any warranty obligations of Reduct with respect to such Usage will be null and void. Any changes to equipment or software owned by Reduct (or its licensors) will be exclusively owned by Reduct (or its licensors), even if such changes have been performed by or for Contracting Party.
(d) Unless expressly included in the Usage, for any Usage requiring connection to a system from a remote location, Contracting Party shall at its own expense and risk establish external system access for service staff of Reduct (or its subcontractors). Contracting Party shall make available technically competent staff as and when required to support Reduct and, where applicable, Contracting Party authorizes Reduct to make use of Contracting Party’s IT infrastructure to connect to and share data with specified systems and/or services to perform Usage.
(e) Reduct shall not be responsible for the failure of any of its Products or Usage to provide the expected performance, benefits, effects or outcome arising from: (i) Contracting Party’s failure to comply with the terms under the Agreement; (ii) failures or fluctuations of electric power; (iii) sunset/shutdown of connectivity and communication technologies; (iv) Force Majeure and other unusual external influences; or (v) Variations.
5. USAGE; DOCUMENTATION
(a) If included as part of Usage, Reduct shall provide Mapping services and design of mapping Products in accordance with specifications as agreed by the Parties in writing. Unless otherwise agreed, all IPR (as defined in section 10 ( a )) in and to the deliverables arising out of same Usage will exclusively vest in Reduct or a Reduct nominee. Contracting Party shall not use, publish, copy or disclose these without prior approval of Reduct, which approval Reduct may grant subject to certain conditions, including the payment of a reasonable fee.
(b) All the documentation provided by Reduct in connection with the Products and Usage, including any user manuals or instructions, catalogs, specification sheets, data, drawings, schedules, designs, source code, or any other documents or information obtained from Reduct or created by Reduct in whatever form including electronic or printed format (“Documentation”) will remain the property of Reduct. Documentation is not sold to Contracting Party, but licensed subject to the license terms in section10 below. Unless otherwise agreed, all IPR in and to the Documentation is retained by Reduct or a Reduct
nominee. Contracting Party shall not use, publish, copy or disclose the Documentation except in accordance with these Terms.
6. INSTALLATION; SERVICES ON-SITE
This section applies where Reduct (or its subcontractor) will perform services at a site owned or controlled by Contracting Party.
(a) Contracting Party is responsible for the timely completion of preparatory works and site preparations in conformity with requirements set by Reduct. Contracting Party shall (and, where applicable, shall cause and ensure thereto) prior to the agreed start of Usage, and in such a manner that Reduct can perform in the most efficient manner and within agreed time schedules: (i) provide and maintain the site conditions (including infrastructure); (ii) provide all necessary information, instructions, inspections, authorizations, approvals, permits and notify Reduct about location of any cables, electric power lines, water pipes or the like, including surveys describing physical characteristics, legal limitations and utility locations for the site; (iii) provide site access, including traffic management, where applicable; and (iv) put at the disposal of Reduct all materials, tools, constructions and other facilities, including connectivity, and all other reasonable assistance in an accurate and timely manner, and at no additional costs to Reduct, all in compliance with applicable law, including all applicable health and safety, electrical, building and construction codes.
(b) Contracting Party shall not call Reduct upon site before the obligations under section 6(a) have been satisfactorily completed. In the event of waiting times of more than (4) hours on a day, Reduct may reschedule and charge Contracting Party a full working day for that day for the resources concerned. Contracting Party shall provide fully qualified representatives to support Reduct as and when required while working on site.
7. RISK AND TITLE
(a) Risk of damage to or loss of Products will pass to Contracting Party upon delivery by Reduct to Contracting Party in accordance with the applicable INCOTERM.
(b) Legal title to Products and/or Services will pass to Contracting Party only when Reduct has received payment for such Products and/or Services in full and, to the extent permitted by applicable law, Reduct received payment in full of all other amounts due by Contracting Party under any other agreement with Reduct (or any of its affiliates). Until legal title to Products and other equipment supplied and/or used by Reduct (or its subcontractor) in the performance of Services has passed to Contracting Party, Contracting Party shall: (i) not assimilate; transfer or pledge any of the Products or grant any right or title in the Products to any third party, except in the normal course of business and against payment or subject to retention of title; and (ii) ensure that the Products remain identifiable as Products owned by Reduct. In the event of breach by Contracting Party, Reduct may require that Contracting Party return to Reduct, at Contracting Party’s cost, all Products in which the title has not yet passed, and Contracting Party shall fully cooperate to enable Reduct to collect such Products and grant Reduct (or its representative) free access to the location of the Products, and other equipment supplied and/or used by Reduct (or its subcontractor) in the performance of Services.
8. FORCE MAJEURE
Reduct will not be liable for any breach resulting from a Force Majeure event. If a Force Majeure event occurs, Reduct’s performance will be suspended for the period of such Force Majeure event. “Force Majeure” means any circumstances or occurrences beyond the
reasonable control of Reduct, whether or not foreseeable at the time of an Agreement, as a result of which Reduct cannot reasonably perform or execute its obligations, including, without limitation, acts of God, natural catastrophes (including earthquake, lightning, hurricane, typhoon, flooding or volcanic activities or extreme weather conditions), strikes, lock-outs, war, terrorism, political situation, civil unrest, riots, sabotage, vandalism, industry-wide shortages, breakdown of plant or machinery, fault or loss of electricity supply, cyber-attacks and hacking or non-performance by suppliers of Reduct or by other third parties on which Services rely (including connectivity and communication services). In the event that Force Majeure event extends (or is reasonably expected by Reduct to extend) for a period of two (2) consecutive months, Reduct will be entitled to cancel all or any part of an Agreement without any liability towards Contracting Party.
9. LIMITED WARRANTY AND DISCLAIMER
(a) In most instances, Reduct Products are supplied, distributed, made available, sold, or licensed subject to an applicable standard limited warranty either accompanying the product or as published on Reduct’s website as the standard warranty applicable for a particular Product or application of Product (usage), and WHICH SHALL BE THE MANUFACTURER’S LIMITED EXPRESSED WARRANTY THAT ACCOMPANIES THE PRODUCT (the “Standard Product Warranty”). For any Product that is supplied, distributed, made available, sold, or licensed by Reduct that is not subject to an applicable Standard Product Warranty, Reduct warrants only that for one (1) year from delivery to Contracting Party the Products will be free from Defects. A “Defect” (or “Defective”) means, in relation to the Product, that a Product has any defect in material or workmanship which causes the Product to fail to operate in accordance with the specifications provided by Reduct.
(b) Unless otherwise agreed by the Parties, Reduct does not provide any warranty for third party products, products not marked with the Reduct trademark or with trademarks owned by Reduct, nor for third party software, applications or services.
(c) Contracting Party acknowledges that EULAs or Additional Use Terms may limit the warranty period for software (including web or mobile applications).
(d) REDUCT WARRANTS THE CONTRACTED USAGE SERVICES SHALL BE PROVISIONED IN A WORKMANLIKE MANNER CONSISTENT WITH GENERALLY ACCEPTED INDUSTRY STANDARDS. REDUCT MAKES NO OTHER WARRANTY EITHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OR FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTIBILITY. REDUCT MAKES NO WARRANTY THAT OPERATION OF THE REDUCT PRODUCT AND USAGE SERVICED WILL BE UNINTERUPTED OR ERROR FREE. IN NO EVENT WILL REDUCT BE LIABLE FOR ANY DELAY IN USAGE SERVICES. CONTRACTING PARTY’S EXCLUSIVE REMEDY AND REDUCT’S ENTIRE LIABILITY FOR ANY BREACH OF SUCH WARRANTY SHALL BE TO RE-PERFORM THE USAGE SERVICES, OR IF REDUCT IS UNABLE TO RE-PERFORM THE USAGE SERVICES AS WARRANTED, CONTRACTING PARTY SHALL BE ENTITLED TO RECOVER THE PRORATED FEES PAID TO REDUCT FOR THE NONCONFORMING USAGE SERVICES.
(e) In order to be entitled to make a valid claim under warranty, Contracting Party shall promptly notify Reduct of the alleged breach in furnishing Usage Services.
(f) In case of an alleged Defective Product, Contracting Party shall promptly notify and, where applicable, shall cause and ensure its subcontractors to promptly notify prior to the expiration of the warranty period. In the event that Reduct decides, in its sole discretion, that a claim under warranty is valid, Reduct shall, within a reasonable time, at its own option, repair or offer replacement by new or similar products for Defective Products.
Repairs, replacements or remedies will not extend or renew the applicable warranty period. Contracting Party shall obtain consent from Reduct on the specifications of any tests it plans to conduct to determine whether a Defect exists. Replacement products supplied by Reduct may have minor deviations in design and/or specifications which do not affect the functionality of replaced Product. In respect of any replaced Products, Reduct may, in its sole discretion, either claim the property of replaced Products and require Contracting Party to return these to Reduct.
(g) Any indemnification and warranty obligations of Reduct under an Agreement are conditional upon: (i) proper storage, installation, use, operation, and maintenance of Products, all in accordance with user manuals, warranty policies and other instructions or terms communicated by Reduct to Contracting Party; (ii) Contracting Party keeping accurate and complete records of operation and maintenance during the warranty period and providing Reduct access to these records; and (iii) no components have been opened, disassembled, unsealed, changed, or been built into a bigger or smaller whole without this being laid down in the above mentioned specifications, or if the damage has occurred due to causes external to the Product. Failure to meet these conditions renders the warranty null and void. Reduct will not be responsible for environmental or stress testing. The warranty provided in this section 9 does not apply to damage or failure to perform arising as a result of any Force Majeure or from any abuse, misuse, abnormal use, corrosive environments, neglect, exposure or any use or installation in violation of the instructions or restrictions prescribed by Reduct or any applicable standard or code.
(h) Any indemnification and warranty obligation of Reduct under an Agreement will not establish, by themselves, any liability to third parties or the public. Nothing in an Agreement will be construed to create any obligation, standard of care or liability to persons or third parties.
(i) If a recall, retrofit, update, withdrawal or any other remedial action related to any Product is required, Contracting Party shall fully cooperate and shall provide such assistance as Reduct may require. Contracting Party shall keep accurate books and records to assure traceability of the Products in the event of a Product recall or any other remedial actions.
(j) SUBJECT TO THE EXCLUSIONS AND LIMITATIONS SET OUT IN THE AGREEMENT, AND SUBJECT TO APPLICABLE LAW, SECTIONS 9 AND 11 STATE THE ENTIRE LIABILITY OF REDUCT AND ITS AFFILIATES IN CONNECTION WITH DEFECTIVE PRODUCTS OR USAGE SERVICES, REGARDLESS OF WHEN THE DEFECT ARRISES, AND WHETHER A CLAIM, HOWEVER DESCRIBED, IS BASED ON CONTRACT, WARRANTY, INDEMNITY, TORT OR EXTRA-CONTRACTUAL LIABILITY (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WILL EXTEND DIRECTLY TO CONTRACTING PARTY ONLY AND NOT TO ANY THIRD PARTY, INCLUDING CONTRACTING PARTY’S CUSTOMERS, AGENTS OR REPRESENTATIVES. REDUCT EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY AGAINST INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE INTENDED BY CONTRACTING PARTY OR END-USER. AN ESSENTIAL PURPOSE OF THE LIMITED EXCLUSIVE LIABILITIES AND REMEDIES UNDER THE WARRANTY IS ALLOCATION OF RISKS BETWEEN REDUCT AND CONTRACTING PARTY, WHICH ALLOCATION OF RISKS IS REFLECTED IN THE PRICES.
10. RIGHTS IN SOFTWARE, DOCUMENTATION AND INTELECTUAL PROPERTY
(a) Subject to Contracting Party’s fulfillment of all obligations under the Agreement and these Terms, the supply of Products and/or Usage services (including software embedded in Products or Usage Services) includes a non-exclusive and non-transferable limited license
(without the right to grant sublicenses) to Contracting Party under any intellectual property rights (including patents, utility models, registered and unregistered designs, copyrights, database rights, trademarks, domain names, trade secrets, know-how, semiconductor IC topography rights and all registrations, applications, renewal, extensions, combinations, divisions, continuations or reissues of any of the foregoing, collectively: “IPR”) of Reduct, to the limited extent that such IPR is embodied or embedded in the Products or Usage services purchased, to use the Products (including Documentation) as supplied, distributed, made available, sold or licensed by Reduct, and/or, for Usage services, to use the Usage services (including Documentation) during the term of the applicable Agreement in accordance with the applicable Usage services description. No rights to IPR are conferred to Contracting Party or any third party other than explicitly granted under the Agreement or these Terms.
(b) In respect of any (embedded) software or other applications supplied to Contracting Party, Contracting Party shall not and shall not permit any third party to: (i) copy, reproduce, distribute, modify, adapt, alter, translate, or create derivative works therefrom; (ii) assign, sublicense, lease, rent, loan, transfer, disclose, or otherwise make available such software or other works; (iii) merge or incorporate such software with or into any other software; or (iv) reverse assemble, decompile, disassemble, or otherwise attempt to derive the source code or the algorithmic nature for such software, or to decode, de-crypt or neutralize any security measures in software or remove or circumvent the protection of software, without authorization from Reduct; (v) perform any action with regard to software in a manner that would require the software, or any derivative work thereof, to be licensed under Open Source Terms, including but not limited to: (a) combining the software or a derivative work thereof with Open Source Software, by means of incorporation or linking or otherwise; or (b) using Open Source software to create a derivative work of the software, where “Open Source Software” means any software that is licensed under open source license terms that require as a condition of use, modification or distribution of a work: (1) the making available of source code or other materials preferred for modification, or (2) the granting of permission for creating derivative works, or (3) the reproduction of certain notices or license terms in derivative works or accompanying documentation, or (4) the granting of a royalty-free license to any party under IPR regarding the work or any work that contains, is combined with, requires or otherwise is based on the work.
(c) Contracting Party acknowledges that third parties may own IPR related to Products or Usage services. Contracting Party shall reproduce, without any amendments or changes, any proprietary rights legends of Reduct or its third-party suppliers in any software or Documentation provided by Reduct.
(d) Reduct will be free to use in any way or form any ideas, suggestions, feedback or recommendations by Contracting Party to Reduct regarding Products or Services (“Feedback”), without payment of royalties or other consideration to Contracting Party. Reduct will own all IPR in Feedback. Reduct is entitled to use output, deliverables and creations resulting from the performance of Services for its own publicity or for commercial and promotional purposes.
11. LIMITATION OF LIABILITY
(a) THE LIABILITY OF REDUCT AND ITS AFFILIATES AND CONTRACTING PARTY’S EXCLUSIVE REMEDY FOR ALL CLAIMS OF ANY KIND ARISING FROM OR RELATED TO THE REDUCT PRODUCT AND USAGE SERVICED, OR OTHERWISE UNDER AN AGREEMENT, INCLUDING ANY INDEMNITIES, PENALTIES OR LIQUIDATED DAMAGE (“CLAIMS”), WILL BE EXPRESSLY LIMITED TO AGGREGATE USAGE SERVICE FEES PAYABLE TO REDUCT PURSUANT TO THE APPLICABLE
SERVICE PROGRAM IN THE CASE OF USAGE SERVICE PROGRAMS WITH NO APPLICABLE USAGE SERVICE PERIODS. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES AND IN SUCH EVENT, THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL ONLY APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
NOTWITHSTANDING THE FOREGOING, NOTHING IN THESE TERMS AND CONDITIONS SHALL BE DEEMED TO LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR (i) FRAUD OR FRAUDULENT MISREPRESENTATION OR (ii) DEATH OR PERSONAL INJURY TO THE EXTENT THAT IT RESULTS FROM SUCH PARTY’S NEGLIGENCE AND SOLELY TO THE EXTENT REQUIRED BY APPLICABLE LAW.
(b) Reduct will not under any circumstances be liable for any lost profits, lost savings, loss of data, loss of reputation, loss of goodwill, indirect, incidental, punitive, special or consequential damages, whether or not such damages are based on tort, warranty, contract or otherwise – even if Reduct has been advised, or is aware, of the possibility of such damages.
(c) In order to be entitled to make a valid Claim, Contracting Party shall notify Reduct of any such Claim within thirty (30) days of the date of the event giving rise to the Claim, and any lawsuit relating to a Claim must be filed within one (1) year of the date of such notification. Claims that are not brought or filed in accordance with the preceding sentence will be null and void.
12. CONFIDENTIALITY
Contracting Party shall maintain any technical, commercial and financial information, including any Offer and (pricing) terms, other data disclosed to Contracting Party by Reduct, and any Feedback, confidential and shall not disclose such information to any third party and shall not use any such information for any purpose other than as agreed by the Parties and in relation to the Offer and/or the Agreement.
13. EXPORT/IMPORT CONTROLS
(a) Certain transactions of Reduct may be subject to export or import control laws and regulations that prohibit or restrict the (re)-export or transfer of certain items to certain countries, entities or individuals, such as the laws and regulations of the UN, EU and US (“Export Regulations”). The (re)-export or transfer of Products, as well as technical assistance, training, investments, financing, financial assistance, brokering and licensing of technology, are subject in all respects to the applicable Export Regulations and to the jurisdiction of the relevant authorities responsible for Export Regulations. If any such (re)-export or transfer requires an export or import license, or is otherwise prohibited or restricted under Export Regulations, Reduct may, in its sole discretion, suspend its obligations to Contracting Party until such license is granted or for the duration of any restrictions or prohibitions, or terminate (the relevant part of) the Agreement without incurring any liability.
(b) Contracting Party shall impose all export control restrictions to any third party if the Products are (re)-exported or transferred to third parties. At the request of Reduct and if required by applicable Export Regulations, Contracting Party shall inform Reduct on any (re)-export or transfer of the Products in order to comply with Export Regulations and any other regulatory responsibilities governing the sale of the Products, including requirements on the traceability of Products that may apply to Reduct. Contracting Party shall not provide any statement or certification in support of restrictive trade practices or boycotts.
14. ASSIGNMENT
(a) Contracting Party may not assign an Agreement, or any of its rights or obligations thereunder, without the prior consent of Reduct.
(b) Reduct may delegate, assign, sell, novate or subcontract in part or in whole its obligations and rights (including receivables) under any Agreement to any of its affiliates or any third party without the prior consent of Contracting Party – and if such consent would be required under applicable law, such consent is herewith provided -, in which event Contracting Party shall cooperate with Reduct’s efforts, including providing relevant information, executing documents and making payments to accounts or third parties as notified by Reduct.
15. COMPLIANCE WITH LAWS; ANTI-BRIBERY
(a) Contracting Party shall at all times comply and shall take all actions reasonably to ensure that its business partners shall comply, with all applicable local and international laws and regulations, including on anti-bribery and anti-corruption and the Export regulations. Accordingly, Contracting Party shall conduct its business honestly and not engage in any act of bribery or corruption.
(b) Should Reduct receive any indications about a breach of the obligation under (a), Contracting Party shall cooperate and provide Reduct with all information required to allow Reduct to verify such indications, and if founded, section 17 will apply.
16. HEALTH AND SAFETY
(a) The Parties shall comply with all applicable legislation, rules and/or regulations on the health and safety of workers and/or employees, as well as health and safety of the public in the vicinity. Contracting Party shall provide and shall procure that its employees, agents, contractors or subcontractors provide safe work surroundings for Personnel and other representatives and shall take those measures prescribed by law and any other measures necessary for the prevention of accidents at the site and to ensure the health and safety of Personnel at the site. Contracting Party shall timely inform Personnel of required safety precautions and advise Reduct of all applicable site-specific health, safety, security and environmental requirements and procedures. Reduct has the right, but not the obligation, to, from time to time, review and inspect applicable health, safety, security and environmental documentation, procedures and conditions at the site.
(b) Contracting Party shall ensure that no hazardous materials are present at the site. If hazardous materials are present, Contracting Party shall and shall procure that its employees, agents, contractors or subcontractors handle these properly and if applicable, arrange for the appropriate removal and disposal thereof at the expense of Contracting Party. If, in the reasonable opinion of Reduct, the health, safety, or security of Personnel or the site is, or may be, imperiled by security risks, terrorist acts or threats, the presence of a threat of exposure to hazardous materials, or unsafe working conditions, Reduct may, in addition to others rights or remedies available to it, evacuate some or all Personnel from the site (with the reasonable assistance of Contracting Party), suspend performance of all or any part of an Agreement, and/or remotely perform or supervise Services (if possible) with no further liability to Contracting Party.
(c) Conditions at a site that differ materially from those disclosed by Contracting Party, or previously unknown physical conditions at site that differ materially from those ordinarily encountered and generally recognized as inherent in work of the character provided in the
Agreement, will be deemed a Variation.
17. BREACH; SUSPENSION; TERMINATION
(a) In the event of: (i) a breach by Contracting Party of any of the provisions of the Agreement or these Terms, including any failure to pay any amount as and when due; or (ii) in the reasonable opinion of Reduct, the financial position of the Contracting Party (or a material change thereof) is likely to affect Contracting Party’s ability to perform its obligations under the Agreement; or (iii) any proceedings in insolvency, bankruptcy (including reorganization), liquidation or winding up are instituted by or against Contracting Party, whether filed or instituted by Contracting Party (voluntary or involuntary), a trustee or receiver is appointed over Contracting Party, or any assignment is made for the benefit of creditors of Contracting Party; or (iv) Contracting Party ceases, or threatens to cease, to carry on business; or (v) the control over or ownership of Contracting Party changes, then Reduct may declare all amounts outstanding by Contracting Party immediately due and payable and may set off any amount that Reduct (or any of its affiliates) owes to Contracting Party, against amounts due pursuant to section 17(b). In addition, Reduct may in its sole discretion by notice to Contracting Party with immediate effect suspend or cancel any performance due from Reduct (including production, delivery, installation and commissioning of Products, obligations under warranty and performance of Services) or terminate the Agreement or any part thereof, without any liability, and/or suspend or cancel any credit terms offered to Contracting Party. Reduct may only use this right to terminate an Agreement pursuant to this section if, in respect of an event under (i) above that is capable of being remedied, Contracting Party fails to remedy the breach within fourteen (14) days, or in respect of an event under (ii), Contracting Party fails to provide Reduct with a bank guarantee or other security to the satisfaction of Reduct within fourteen (14) days.
(b) Contracting Party shall indemnify, defend and hold harmless Reduct and its affiliates, and their officers, directors, agents, employees, successors, and assigns from and against, all losses (including loss of profits or turnover), liabilities, costs (including legal costs and costs incurred in relation to unfinished products) and expenses arising out of or in connection with any of the following events: (i) a breach by Contracting Party of any of the provisions or obligations of the Agreement or these Terms, or the occurrence of any of the other events set out in section 17(a); (ii) any claim by third parties for any loss, damage or injury or death caused or alleged to be caused by the negligent use, application, or installation of Products, or caused by any modification of Product or integration of Product into other products not authorized by Reduct, by Contracting Party or its contractors, agents, affiliated or customers to whom it sold Product; or (iii) non-compliance by Contracting Party with section 7(b), in which events costs will include the full replacement costs of products, systems or other equipment.
(c) Upon (early) termination or expiration of an Agreement, (i) all rights and licenses granted to Contracting Party under that Agreement will immediately cease; (ii) Contracting Party shall return, delete (including from all hard disks and memory) or destroy (and a duly appointed officer shall certify to such destruction) all information disclosed under section 12, including software not embedded in Products, and all copies thereof; (iii) return to Reduct, at the costs of Contracting Party, any Products of which (legal) title has not passed to Contracting Party (in accordance with section 7) and any other products, systems or equipment supplied and/or used by Reduct in the performance of the Services; and (iv) all reasonable costs and expenses incurred by Reduct (including a reasonable profit) for any activities related to work
performed by Reduct prior to such termination will be considered due, payable and non-refundable.
(d) In the event of a suspension that lasts for more than two (2) months, the provision of section 17(c)(iv) will also be applicable to any activities related to work performed by or for Reduct prior to such suspension.
(e) The rights of Reduct pursuant to this section 17 will be in addition to any other rights and remedies Reduct may have at law or in equity. In the event of termination of an Agreement, the terms and conditions destined to survive such termination or expiration will so survive. Termination will not affect the rights of the Parties accrued up to the date of termination.
18. GOVERNING LAW AND FORUM
(a) The laws of Belgium govern all Agreements, Offers and these Terms, without regard to conflict of law principles. Any legal action or proceeding arising out of or in connection with an Agreement, an Offer or these Terms that cannot be settled through consultation in good faith within thirty (30) days after notice from either Party that a dispute exists, will be brought exclusively in the courts of Antwerp or elsewhere in Belgium, it being the intention of both Parts that Belgium serve as exclusive forum for dispute resolution. Both Parties agree that, in the event an action is brought in the courts of Belgium, they will waive any argument of lack of personal jurisdiction or improper venue, which they might otherwise have. Both Parties waive any rights to remove any action brought in a court in Belgium, to a court outside that jurisdiction. Reduct will always be permitted to bring any action or proceedings against Contracting Party in any other court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply.
(b) Nothing in this section 18 will be construed or interpreted as a limitation on either Party’s right under applicable law to seek injunctive or other equitable relief, to take any action to safeguard its possibility to have recourse on the other Party or to bring action or proceedings in relation to any failure to pay any amount as and when due.
19. PRIVACY AND USE OF DATA
(a) Each Party shall comply with all applicable data protection laws. Unless agreed otherwise by the Parties, Reduct (or its subcontractors) will not process information relating to any identified or identifiable natural persons (“Personal Data”) for Customer or on Customer’s behalf.
(b) Customer acknowledges and agrees that Reduct and its affiliated companies (or their respective subcontractors) may collect information and data generated from Products and Services (including any third-party product, service or system provided in conjunction with the Product and/or Service) and/or the use thereof (“Usage Data”). Reduct is entitled to use the Usage Data, free of charge, at any time during the term of an Agreement and afterwards, to aggregate or compile Usage Data with other data as may be required by government regulations, data securitization, commercialization or otherwise, create IPR or derivative works of or modify or adapt Usage Data to provide, maintain, and improve products and services, and to develop new products or features or services. Unless otherwise stated in the Agreement, EULA or Additional Use Terms, Reduct shall ensure that the use of Usage Data will exclude any Personal Data and any data that would enable identification of Contracting Party or company or organization.
20. MISCELLANEOUS
(a) The invalidity or enforceability of any provision of these Terms or an Agreement will not affect the validity or enforceability of any other provision thereof, all of which will remain in
full force and effect. In the event of such finding of invalidity or unenforceability, the Parties shall endeavor to substitute the invalid or unenforceable provision(s) by such effective provision(s) as will most closely correspond with the original intention of the provision(s) so voided. At reasonable notice, Contracting Party shall assist Reduct in verifying Contracting Party compliance with the Agreement.
(b) Any right of Reduct set out in these Terms will be without prejudice to any rights or remedies Reduct may have under the Agreement or at law or in equity. Contracting Party acknowledges that Reduct N.V. and any of its affiliates are intended to be third-party beneficiaries for purposes of all benefits under, and may enforce the provisions of the Agreement, including these Terms, where applicable. The failure or the delay of either Party to enforce any provision of these Terms or an Agreement will not constitute a waiver of such provision or a waiver to enforce it.
(c) The Terms of an Agreement (including these Terms and any other terms and conditions forming part thereof) state the entire understanding and agreement between the Parties as to the provision of Products and contracted Services under that Agreement and will supersede any prior promises, agreements, representations, undertakings or implications whether made orally or in writing between Reduct and Contracting Party with respect to the subject thereof. The Parties expressly acknowledge that, in entering into an Agreement, no reliance has been placed on any representations which have not been incorporated as part of that Agreement. No variation to an Agreement will be binding upon either Party unless made in writing and signed by an authorized representative of each of the Parties.
(d) Prices and terms are subject to correction for typographical or clerical errors.
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