GENERAL TERMS AND CONDITIONS
of the Subscription Agreement for Eureca Mobile services
ARTICLE 1 TERM OF THE AGREEMENT
1.1 PURCHASE AGREEMENT
Unless otherwise stipulated in the special conditions or in the offer, this agreement is concluded for an initial term of 48 months. The Subscriber or the Provider may terminate it by registered letter with acknowledgement of receipt, subject to 3 months’ notice before the expiry of the agreement, such notice taking effect on the first day of the month following the date of the notice. If no notice is given before the end of the agreement, the agreement is renewed for a further period of 12 months, tacitly renewable. An agreement so renewed may be terminated only by registered letter with acknowledgement of receipt, subject to 3 months’ notice before the expiry of the agreement, such notice taking effect on the first day of the month following the date of the notice.
1.2 LEASING AGREEMENT
Leasing of the equipment over a fixed term of 60, 48 or 36 months, with no possibility of early termination by the Subscriber. At the end of the 60, 48 or 36 months, the Subscriber may either extend the agreement by tacit renewal for one year, or return the units. In the event of tacit renewal, an agreement so renewed may be terminated only by registered letter with acknowledgement of receipt, subject to 3 months’ notice before the expiry of the agreement, such notice taking effect on the first day of the month following the date of the notice.
ARTICLE 2 INSTALLATION AND COMMISSIONING
2.1 – INSTALLATION – RISKS
Before delivery, the products (telematics units) are prepared, programmed, subjected to a full functional test and, where applicable, registered in the MRM server by the Provider. It is for the Subscriber to check the Products upon receipt and to record any reservation on the delivery note; failing this, no claim may be brought by the Subscriber against the carrier and/or the Provider for any loss of or damage to the equipment. The devices delivered remain the property of the Provider until full payment of the price in principal and any interest and costs, even in the event of transformation of these devices or their incorporation into other goods. The preceding provision does not prevent the transfer to the customer, as from delivery, of the risks of loss of and damage to the devices delivered, nor of liability for any damage they may cause.
2.2 – COMMISSIONING OF THE CONNECTION TO THE MRM SERVER
The operations described below constitute commissioning, which the subscriber expressly accepts: the Subscriber’s database is created and its specific settings are configured. As from the Subscriber’s first access to the Provider’s site using the passwords, or upon the first receipt of a report by email, and in any event no later than one month after installation, the commissioning of the services provided for in the special conditions shall be deemed effective. The Subscriber undertakes to make available all technical and human resources to enable the Provider to put its services in place.
2.3 – INSTALLATION AND COMMISSIONING BY THE SUBSCRIBER
The Subscriber may install the MCU Units itself using the installation guide supplied by the Provider. Where installation is not carried out by the Provider, the Subscriber shall remain entirely liable for any damage that may occur during installation, as well as for all the consequences of an installation that does not comply with good practice. The installation, maintenance and use of tachographs and compliance with the regulations in force are the sole responsibility of the Subscriber or its Users.
ARTICLE 3 ADDING NEW VEHICLES DURING THE TERM OF THE AGREEMENT
If, during the performance of the agreement, the Subscriber wishes to add new vehicles to those included in the initial agreement (provided that the number added is lower than the initial quantity), it may request this by simple email addressed to the Provider. In this case, in order to avoid the difficulties associated with differentiated legal management of the vehicles forming part of the Subscriber’s fleet, it is expressly agreed that all the clauses of the original agreement shall apply to the vehicles added during the term of the agreement, including the clauses relating to the duration and the terms of termination of the Agreement. By way of derogation from the preceding paragraph, if the number of new vehicles added is equal to or greater than the fleet under the initial agreement, the agreement is automatically extended by four years from the date on which the new vehicles are added. The new vehicles so added shall form part of the initial Agreement, which is itself deemed to have a start date corresponding to the addition of the new vehicles, as from acceptance of the offer by the Subscriber. (This Offer may take the form of an email or a quotation.)
ARTICLE 4 OBLIGATIONS AND LIABILITIES OF THE PROVIDER
4.1 – QUALITY OF SERVICE – THE PROVIDER’S BEST-EFFORTS OBLIGATION
The Provider has implemented the resources necessary to deliver, on economic terms that are reasonable for the Subscriber, a quality of service in line with the latter’s expectations. However, the services supplied by the Provider involve the use of various communication networks, as well as the involvement of various third-party providers independent of one another and independent of the Provider, on which the proper functioning of the system depends. The Provider will do everything possible to ensure the proper functioning of this chain of participants. In this respect it is bound only by a best-efforts obligation and may under no circumstances be held liable for failures or malfunctions occurring on the communication networks used (GSM/GPRS, the Internet, and others) or attributable to other participants or intermediaries.
4.2 – ACCESS TO THE SERVICE – CONTINUITY OF SERVICE
Access to the service is possible 24 hours a day, subject to any breakdowns and to the work necessary for the proper functioning of the service and of the equipment. The Provider undertakes to use its best efforts to repair as quickly as possible any incident occurring on its system and, in particular, on its server. Furthermore, repairs and maintenance work on its server and/or on the operators’ networks may lead the Provider to suspend the service, without the Subscriber being entitled to compensation. As far as possible, the Provider will inform the Subscriber in advance of planned service suspensions, with notice and for a duration that will depend on the operations to be carried out. The Subscriber may under no circumstances claim any compensation from the Provider on account of the interruption of access to the service following a failure to pay invoices due. The Provider reserves the right to make any modification it deems necessary to improve the service.
4.3 – DAMAGES
The Provider may not be held liable in the event of force majeure or of events beyond its control, in particular an order of a public authority or an interruption of electricity or telecommunications services. The Provider disclaims all liability in the event of use of the equipment otherwise than in accordance with normal conditions of use (see the instructions supplied with the equipment). Use of the on-board equipment is permitted only when the vehicles are completely stationary, with the exception of automatic functions requiring no action by the driver. As from their installation at the Subscriber’s premises, the Subscriber is liable for any bodily injury or material or immaterial damage caused to itself, to its staff or to a third party by this equipment, unless the Subscriber demonstrates that such damage results from an inherent defect in the item. The Provider may not be held liable in the event of intrusion by a third party into the Subscriber’s IT system, the Subscriber being solely responsible for protecting its IT systems against such intrusions. In any event, should the Provider’s liability be established in the performance of this agreement, the Subscriber could claim no compensation or damages other than the cancellation of the invoices relating to the defective services and the reimbursement of sums overpaid, except in the case of unavailability provided for in 4.2. The Subscriber acknowledges that the Provider is unable to exercise any control over the content of the information passing through its system or via its service. The Provider therefore excludes all liability whatsoever for the transmission of infringing or unlawful information and/or messages in any form whatsoever. More generally, the provider excludes all liability as to the content of the information and/or messages passing through its system or via its service and as to the use that may be made of it by the Subscriber. Should the Provider’s liability be established in the performance of this agreement, the Subscriber could claim no compensation or damages other than the cancellation of the invoices relating to the defective services and the reimbursement of sums overpaid, except in the case of unavailability provided for in 4.2. The Provider may under no circumstances be required to make good or compensate any indirect damage suffered by the Subscriber in connection with the use of the services offered. Indirect damage means damage that does not result exclusively and directly from the failure of the Provider’s services, in particular loss of operating profit, harm to reputation and commercial loss.
4.4 – CONTRACTUAL WARRANTY
Unless otherwise provided by contract, the products are warranted against any operating or manufacturing defect for a period of one year from the date on which they are made available to the Subscriber. During this warranty period, the Provider will repair or replace defective parts free of charge on the premises of its technical departments, unless such defects result from misuse or mishandling by the Subscriber or its employees, from a failure inherent in the Subscriber’s IT system, or from failure to comply with an obligation imposed on the Subscriber under this agreement. The dispatch of the faulty equipment to the Provider is at the Subscriber’s expense.
4.5 – ACCURACY OF THE INFORMATION PROVIDED BY THE EQUIPMENT COVERED BY THE AGREEMENT
The Subscriber acknowledges that the Products installed by the provider are complex and that the Provider’s warranty obligation under this article does not cover reasonably acceptable variations in accuracy. The Subscriber further acknowledges that these Products, by their nature, constitute a static representation of a dynamic environment, which necessarily entails a certain degree of obsolescence. If the Products contain deviations, the Subscriber’s sole remedy, and likewise the Provider’s sole obligation, shall be to provide support and maintenance for the Products, in so far as is technically possible, and in so far as the Subscriber is not in default. No warranty of any kind, express or implied, is given with regard in particular to the content of the road maps, their accuracy and their updating.
4.6 – MAINTENANCE ON REQUEST
Labour and travel to site will be invoiced at a flat rate of EUR 160 excl. VAT per call-out for a light vehicle and EUR 290 excl. VAT per call-out for a heavy vehicle, plus travel costs per appointment of EUR 1.45 per km (travel time included). Visits by the Provider’s technicians to the Subscriber’s premises take place between 8:00 and 17:30, Monday to Friday. Equipment exchanged will be invoiced at the contractual price applicable at the time of the maintenance request. The Subscriber may under no circumstances terminate this agreement on account of the theft, loss or deterioration of the equipment necessary for the provision of the services covered by this agreement. In the event of proven theft, loss or deterioration of the equipment (resulting for example from the insertion of a foreign body into the equipment or the injection of various liquids), the Provider undertakes to replace it, at the Subscriber’s request, with equivalent equipment, at a price set in accordance with article 4.6.
ARTICLE 5 OBLIGATIONS OF THE SUBSCRIBER
5.1 – GENERAL OBLIGATIONS
In addition to its undertaking to comply with all the clauses of this agreement, and in order to allow the installation and maintenance of the equipment where these are the Provider’s responsibility, the Subscriber undertakes to comply with the following obligations: – to use the services supplied by the Provider in accordance with their purpose and with the contractual terms; – to carry out the maintenance or inspection operations that the Provider may request of it; – in the event of an incident affecting the server, and if the Provider considers that technical requirements so demand, the Subscriber accepts that the Service may be suspended without notice or compensation; – to upgrade its IT system where necessary and to keep it up to date and free of viruses; – the Subscriber is solely responsible for the use of the information received from the Provider and of the information it transmits, as well as for its content; – to refrain from directly or indirectly updating and/or upgrading the Products without the Provider’s authorisation; – to refrain from directly or indirectly altering or disassembling the Products, or from attempting to access the source code of the software, directly or indirectly by analysing the object code; – to refrain from installing on the Client Workstation any software of any kind whatsoever unrelated to the Provider’s services; – not to infringe the Provider’s property rights or the collective rights of the Provider and its supplier in the various items of equipment and software made available to it. Breakdowns linked to failure to comply with these obligations shall be borne exclusively by the Subscriber.
5.2 – TO TAKE ALL APPROPRIATE MEASURES TO KEEP ITS ACCESS CODE SECRET
It is for the Subscriber to take all appropriate measures to keep its access code for the Provider’s website secret. The Provider is not answerable for the consequences of access to the Internet services by an unauthorised third party. Any access shall be deemed to have been made by the Subscriber. In the event of loss or theft of the access code, the Subscriber shall immediately notify the Provider by registered letter with acknowledgement of receipt and by email. The Provider will replace the access code within 3 working days from notification of the loss or theft. The Provider reserves the right, in particular for security reasons, to change the Subscriber’s access code after having informed it beforehand by email or by letter, so that the Subscriber can continue to use the services.
ARTICLE 6 FINANCIAL TERMS
6.1 – TERMS OF PAYMENT OF THE FEES
6.1.2 – In the event of non-payment of an instalment, for whatever reason, it shall automatically be increased by a flat-rate indemnity of 10% of the amounts due upon a reminder letter, in addition to interest at the rate laid down by the Act of 02/08/2002 on late payment in commercial transactions, running from the date of the invoice. Failing payment in full on the due date and one month after a formal notice has remained without effect, the service may be interrupted and the agreement terminated automatically, all sums already received remaining the property of the Provider.
6.1.2.1 – INDEXATION
In order to take account of changes in the costs associated with the provision of the services, the Provider reserves the right to adjust the prices of its services on simple request in accordance with the consumer price index published by Statbel, the Belgian statistical office. Prices will be adjusted on an annual basis, on 1 January of each year, on the basis of the consumer price index. Customers will be informed of any price adjustment at the beginning of the new year concerned.
6.1.3 – For the purposes of implementing the above provisions, the Subscriber undertakes, if it has opted for direct debit, to provide the Provider, upon signature hereof, with a duly signed direct debit mandate together with the bank or post office account details for the account from which the debits will be made. The Subscriber undertakes as from now to maintain that direct debit mandate for the entire term of this agreement and to fund the account accordingly. Failing this, a flat-rate indemnity of EUR 50.00 may be claimed from the Subscriber.
6.2 – REVISION OF THE MONTHLY INSTALMENTS
6.2.1 – INDEXATION
In order to take account of changes in the costs associated with the provision of the services, the Provider reserves the right to adjust the prices of its services on simple request in accordance with the consumer price index published by Statbel, the Belgian statistical office. Prices will be adjusted on an annual basis, on 1 January of each year, on the basis of the consumer price index.
6.2.2 – UNFORESEEABILITY
The price of the Service is liable to change. In the event of an increase during the initial term of the Service Agreement, the Provider undertakes to inform the Subscriber beforehand. If the Subscriber refuses the price increase proposed by the Provider, it shall have a period of 21 clear days to renegotiate the agreement under the conditions laid down by article 5.74 of the Civil Code.
ARTICLE 7 WARNING - PRIVACY
The Subscriber acknowledges having been informed by the Provider of the following obligations: to have brought to the attention of its users the existence and purpose of the Service. The Subscriber is solely responsible for compliance with the regulations and legal obligations, in force or possibly to come, relating to the technical devices used to carry out geolocation or remote monitoring (of working time or otherwise) and to all the systems supplied by the Provider. The Subscriber undertakes to use the information transmitted by the Provider solely for the professional purposes for which it is intended. It may not be used for applications liable to infringe private rights. The Provider draws the Subscriber’s attention to the fact that the data collected must be adequate, relevant and not excessive in relation to the purposes for which it is recorded. The Provider recommends that the Subscriber should not keep the data in a form permitting the identification of the data subjects for longer than is necessary for the purposes for which it is recorded.
ARTICLE 8 TELEPHONE COMMUNICATIONS AND COSTS
The following telephone costs are not included in the subscription amount where the corresponding option has not been taken up by the Subscriber, and as indicated in the Special Conditions of this agreement: – the supply of the SIM card included in each unit and the subscription to the basic plan with the GSM/GPRS operator; – all communications between the MCU unit and the server, including those outside Belgium. Operators’ surcharges linked to roaming (two-way communications established between vehicles travelling abroad and the MRM server) are systematically borne by the Subscriber and will be invoiced to it. The Subscriber undertakes to pay them upon receipt of the invoices.
ARTICLE 9 COMMERCIAL AND INTELLECTUAL PROPERTY IN THE DATA
Intellectual property in the databases and in the information they contain belongs exclusively to the Provider or to the producer that entrusted it to the Provider. Unless otherwise agreed between the Parties, the Subscriber undertakes to use the system to which it has access, and the results obtained by means of that system, for its own requirements only, and to make no exploitation of them, commercial or otherwise, directly or indirectly. The Subscriber guarantees compliance with this clause by any person it authorises to consult the chosen Service. The Subscriber undertakes: – not to use the chosen Service on behalf of or for the benefit of others; – not to reproduce in bulk, for profit or otherwise, information obtained by consulting the files; – not to copy the information onto media of any kind making it possible to reconstitute all or part of the original files. In the event of fraudulent use of the Provider’s system, the Provider may terminate the agreement without notice by registered letter with acknowledgement of receipt, without prejudice to the damages it may additionally seek.
ARTICLE 10 TERMINATION OF THE AGREEMENT - INDEMNITY CLAUSE - CANCELLATION CLAUSE
10.1 – This agreement may be terminated automatically by Eureca Mobile, or by any person designated by it, eight (8) days after a formal notice by registered letter with acknowledgement of receipt has remained without effect: – failing payment by the Subscriber on the due date of one of the monthly instalments provided for in the agreement or of any sum due by the Subscriber under the agreement; – in the event of non-performance by the Subscriber of any of its obligations; – as well as in the event of the death of the Subscriber, judicial reorganisation, voluntary or judicial liquidation, voluntary or forced transfer of the Subscriber’s business, or bankruptcy. Termination of the agreement by Eureca Mobile shall entail, without a second formal notice, in compensation for the loss suffered, payment by the Subscriber, in addition to any unpaid monthly instalment or sum due under the agreement, of a contractual termination indemnity equal to 15 monthly instalments increased by 10% if the termination occurs in the first year of the agreement, equal to 12 monthly instalments increased by 10% if the termination occurs in the second year of the agreement, to 9 monthly instalments increased by 10% if the termination occurs in the third year of the agreement, and to 3 monthly instalments increased by 10% if the termination occurs in the fourth year of the agreement or in a subsequent year.
11.2 – If the Subscriber terminates the agreement during its performance, and the Subscriber is contractually bound to the Provider by earlier agreements that make it a customer of more than 6 years’ standing, it shall owe an indemnity equal to 15 monthly instalments increased by 10% if the termination occurs in the first year of the agreement, equal to 12 monthly instalments increased by 10% if the termination occurs in the second year of the agreement, to 9 monthly instalments increased by 10% if the termination occurs in the third year of the agreement, and to 3 monthly instalments increased by 10% if the termination occurs in the fourth year of the agreement or in a subsequent year. It shall owe the Provider all the monthly instalments running until the date of the agreement. For any termination occurring during a period of tacit renewal, and therefore outside the initial agreement, a registered letter will be required 3 months before the anniversary date of the agreement. If the Subscriber is not bound by earlier agreements, and it terminates the agreement during its performance, it shall owe the Provider all the monthly instalments running until the date of the agreement. For any termination occurring during a period of tacit renewal, and therefore outside the initial agreement, a registered letter will be required 3 months before the anniversary date of the agreement.
ARTICLE 11 SEVERABILITY - FAILURE TO EXERCISE A RIGHT - PRIOR UNDERTAKINGS - EVIDENCE
The nullity of any one of the obligations arising from this agreement, for whatever cause, shall not affect the validity of the other obligations arising from this agreement, whatever they may be. Should a clause of this agreement be declared void, it would be replaced by a valid clause as close as possible to the Provider’s intention. Failure to exercise, in whole or in part, any one of the rights arising from the stipulations of this agreement may not be construed as a waiver of the benefit of that right for the future or of any other right arising from this agreement. No oral or written undertaking prior to this agreement shall be deemed valid unless it is mentioned in this agreement. Only the provisions set out herein constitute an undertaking between the parties. The parties hereby undertake to accept that, in the event of a dispute, the list of communications from the vehicle to the MRM server in order to locate it and/or collect social data, the records of consultations by the customer, and the location data available in the server and not transmitted to the customer, shall be admissible before the Courts.
ARTICLE 12 GENERAL DATA PROTECTION REGULATION
This article is intended for persons who come into contact with the Provider, including those who: – browse our website; – request information about the Provider’s services; – are customers of the Provider; – work for the Provider’s customers or for its suppliers. The personal data collected is used in accordance with this data protection statement and with the data protection and privacy provisions in force in Belgium. The Provider collects the data processed directly from the persons listed above. Certain data may also validly be collected if it has been publicly disclosed or made publicly accessible, in particular on public or social media (such as LinkedIn, Facebook, etc.).
The following categories of data are processed: – Identification data: surname, first name, company name and registered office, Belgian company number (BCE), private address (if the Subscriber is not a business customer), email address, telephone, sex, date and place of birth, marital status, nationality, identity photograph, identity card. – Banking data: the account number, and even certain account statements. – Data necessary for the proper assessment of the Subscriber’s needs: size of the vehicle fleet, the use made of it, current and future needs, etc.
This data is collected: – in the context of managing our customer base; – in the context of the performance of the Provider’s contractual or pre-contractual obligations towards the Subscriber; – to send you newsletters; – xxx
Depending on the purpose pursued, the Provider processes your data on the basis of: – the legal obligations incumbent upon it in the context of its activities. The law requires it to process certain personal data. This applies to its accounting obligations and its duty to manage its customer files; – its contractual or pre-contractual obligations towards the Subscriber.
Any sharing of data takes place within the limits of this document. The data listed above is accessible to the members of the Provider’s team and to its lawyer, as well as to any commercial intermediaries or subcontractors, strictly to the extent necessary for the performance of the Provider’s obligations. The Provider may pass on the Subscriber’s data to judicial or administrative authorities or to officers of the court in the context of defending its interests and to the extent necessary. The Provider may be required to pass on the personal data collected to the authorities or entities laid down by the law, the decree or any applicable regulatory provision. The Provider may also share certain data with its co-contractors, strictly to the extent necessary for the operation of its services or of the computerised or non-computerised management systems to which the Provider has subscribed.
The Provider will not keep the data beyond a period of 10 years necessary to meet its legal or contractual obligations. This period begins to run as from the end of the relationship between the Subscriber and the company. In the event of litigation, the data will be kept beyond the time limits indicated above for the purposes of defence in court. In that case, the retention of the relevant data could be extended to the full extent necessary to manage the litigation and until it is closed.
Transfers of data to a country outside the Union will be authorised if and only if: – the European Commission has issued a decision granting a level of protection that is adequate and equivalent to that provided for by European legislation, in which case the personal data will be transferred on that basis; – the transfer is covered by an appropriate measure granting a level of protection equivalent to that provided for by European legislation, such as the Commission’s Standard Clauses, or consent.
Except where a legal provision in force in Belgium does not permit it, including where the GDPR precludes it, under the regulations the Subscriber has the following rights: – the right of access, including the right to know whether the company processes your data; the right to obtain a copy of the data processed; the right to rectification of the data processed; the right to object to the data processed; the right to restrict the processing of the data processed; the right to erasure of the data processed; the right to portability of the data processed; the right to lodge a complaint with the Data Protection Authority: www.autoriteprotectiondonnees.be/ – Rue de la Presse 35, 1000 Brussels – Tel.: +32 (0)2 274 48 00 – Fax: +32 (0)2 274 48 35 – Email: contact@apd-gba.be
ARTICLE 13 JURISDICTION
Any dispute to which the performance or interpretation hereof may give rise shall be submitted to the exclusive jurisdiction of the Enterprise Court of Nivelles.
ARTICLE 14: OMNIUM
If you have taken out the Omnium option, the omnium excludes: labour and travel when transferring from one vehicle to another; all acts of sabotage; travel for technical problems; labour for hardware replacements covered by the omnium; destruction by rodents; total loss that has damaged the unit or that makes access to the unit impossible; temperature probes and their mountings of the “Transmitter” / “Receiver” type; changes of technology.
