Sales Conditions

​

​

​

1.- Preamble

1.1.- Applicability

Offer Ovinto

1/9

These Sales Conditions are applicable to the to the contract concluded between Ovinto and the customer and are an integral part of the contract.

1.2.- “Reasonable Effort” Obligation

Any obligation undertaken by Ovinto under these Sales Conditions must be considered as a “reasonable effort” obligation (“middelenverbintenis”, “obligation de moyens”) except Articles 2.18.

1.3.- Definitions

In this document, the words and expressions mentioned below shall have the following meanings:

Contract: the agreement governed by these Sales Conditions, concluded between Ovinto and the customer having as subject a Purchase Order for Equipment and/or Services.

Customer: legal entity (physical or legal person) issuing the request for proposal or subscribing the Purchase Order.

Equipment or hardware: [physical equipment necessary for conducting an activity, usually distinguished from the theory and design that make the activity possible.

Sales Conditions: the present Sales Conditions, which are applicable to all Purchase Orders for Equipment and/or Services by the customer, as well as to all consultations (requests for proposals or other similar procedures) and offers (as a reaction to a request for proposal or otherwise) having in view Purchase Orders for Equipment and/or Services.

Intellectual Property Rights: (a) copyright, patents, database rights and rights in trade marks, designs, know-how and trade secrets (whether registered or unregistered); (b) applications for registration, and the right to apply for registration, for any of these rights; and (c) all other equivalent or similar forms of protection existing anywhere in the world.

Purchase Order: a Purchase Order for Equipment and/or Services. The notion Purchase Order includes both the pre-contractual and the contractual Purchase orders. Pre-contractual Purchase Orders are orders, which are yet to be accepted by Ovinto. Contractual Purchase Orders on the other hand mainly cover the orders which have been simultaneously accepted by Ovinto. They may also refer to Purchase Orders which have been issued fully in accordance with the offer of Ovinto, within the acceptance period stated in said offer.

Offer Ovinto

Services: data services existing out of telematic data transmission towards the desired location of the customer in the data format or protocol required by the customer.

1.4. Interpretation

No provision of these Sales Conditions shall be interpreted adversely against a party solely because that party was responsible for drafting that particular provision. Words denoting the singular shall include the plural and vice versa. Grammatical variants of a defined term shall have the meaning set out in the relevant definition as adjusted to reflect reasonably the variance and the context of the use of the variant. The words “include”, “included” or “including” are used to indicate that the matters listed are not a complete enumeration of all matters covered. References to articles are references to articles in these Sales Conditions, unless indicated otherwise. The headings in these Sales Conditions are for construction purposes as well as for reference.

1.5.- Modification of the Contractual Documents

The customer acknowledges that the supply of the Services by Ovinto depends on satellite communication, telecommunication, internet connection etc. In case of modifications in the (general-) conditions used by the providers of said communication and/or connection, Ovinto and the customer will consult each other to discuss potential modifications of the Contractual Documents. Any modifications of the Contractual Documents, needs the mutual consent and signature of both Parties.

2.- Sales Conditions applicable to Purchase orders for both Equipment and Services.

2.1.- Offers

Offers issued by Ovinto are considered to be irrevocably binding for a maximum period of 30 days, starting from the date of receipt by the customer, unless agreed otherwise in writing.

2.2.- Conclusion of the Contract

The contract becomes effective after signature of the contract by both Parties to the contract.

2.3.- Delivery

The contractual delivery terms and/or schedule shall be stipulated in the contract.
Ovinto has the right to extend the contractual delivery term if a cause beyond its reasonable control prevents the delivery within the agreed time frame. Ovinto shall promptly inform the customer hereof. In that case, the customer has no right to compensation and no right to terminate the contract unless the supply would be postponed for an unreasonable period of time.

2/9

Offer Ovinto

The equipment to be delivered by Ovinto as well as the delivery address and the delivery site shall be specified in the Order.

2.4.- Price

The agreed price is expressed in Euro.

With the exception of VAT, the price is considered to include all taxes and other charges concerning the Equipment and/or Services.

The sums due by Ovinto to the customer, for whatsoever reason, cannot be deducted from the purchase price to be paid by the customer to Article 2.5.

Ovinto guarantees a fixed maximum price for the entire duration of the contract and shall not increase the agreed contractual price for a period of 60 months.

2.5.- Payment

Payment must be made within 30 days after invoice date by bank transfer on the account of Ovinto as indicated on the invoice.

Any overdue payment will cause ipso jure and without any default notice:

• The payment of interests by the customer which are equal to the interest rate applied by the European Central Bank to its most recent main refinancing operation, increased by four (4) per cent. This interest rate applied by the European Central Bank to its most recent refinancing operation shall be interpreted in conformity with the Belgian law of 22 November 2013, adopted in accordance with Directive 2011/7/EU 11 February 2011 on combating late payments in commercial transactions, and,

• The payment of a penalty of ten (10) per cent on the invoice amount by the Customer with a minimum of 100,00 Euro.

  Payment by the customer shall be suspended for the time when there is an interruption in the supply of services.

  2.6.- Intellectual Property Rights

  All intellectual property rights belonging to a party prior to the date of commencement of the contract shall remain vested in that party.

  The customer hereby irrevocably acknowledges that all Intellectual property rights to data or any other information transferred by Ovinto to the customer shall remain vested with Ovinto.

3/9

Offer Ovinto

Ovinto shall not be liable during the contract or after termination of the contract for any claim by a third party against the customer resulting from or related to an infringement or alleged infringement of Intellectual Property rights caused by the use of the Equipment or Services.

Ovinto will deliver a dedicated data service towards the customer meaning that the data which are sent to the customer will become property of the customer. The technology which is developed to be able to deliver this specific and dedicated data service will remain the property of Ovinto.

2.7.- Confidential information

The customer must consider all information concerning Ovinto, obtained during consultations, negotiations and during the realization and implementation of the contract as Confidential Information. Confidential Information is understood to mean all information and/or data with regard to its relationship with Ovinto, Ovinto’s business, staff, clients, suppliers, Ovinto’s internal regulations and ways of working, equipment, the designs, plans, diagrams, outlines, the functioning of the hardware, the files and the software which come to the customer’s knowledge in any way.

the customer shall use such information in a secure manner and solely for purposes for which it is intended.

The obligation of confidentiality shall remain in force for a period of 10 years after termination of the contract, regardless of the reason for termination.

In case of violation of this Article, a fixed compensation of 100.000 Euro shall be due to Ovinto, ipso jure and without prior notice. This amount will be increased, if necessary, by sufficient sums compensable all damages, without prejudice to any other rights Ovinto may have by law or under the contract.

2.8.- Loyalty

The customer shall not promise or grant - during the contract and for a delay of twelve months after termination of the contract for whatsoever reason - any direct or indirect benefits to any natural person (and his relations) or legal entity linked to Ovinto by an employment contract, a mandate or any other contract, as a quid pro quo for the contract or in relation to the contract.

In case of violation of this article, a fixed compensation of 100.000 Euro shall be due by the customer, ipso jure and without prior given notice. This amount will be increased, if necessary, by sufficient sums to compensate all damages, without prejudice to any other rights Ovinto may have by law or under the contract.

4/9

2.9.- Assignment

Ovinto shall not be entitled, at any time, to assign the contract, in whole or in part, or any of its rights or obligations there under without the customer’s prior written consent.

2.10.- Non-renunciation

Any renunciation by Ovinto of the rights it directly or indirectly derives from the contract, can only be made effective by signing an explicit and written declaration or such renunciation; consequently, Ovinto’s wholly or partially refraining from, whether voluntarily of not, from exercising his rights derives directly or indirectly from the contract, shall in no way result in the renunciation of those rights.

2.11.- Settlement

The customer shall not be entitled in any circumstances to settlement (“schuldvergelijking”, “compensation”) as governed by articles 1289 ss. of the Belgian Civil Code.

2.12.- Contract duration

The standard contract term is 60 months.

2.13.- Early termination of the Contract

2.13.1.- Early termination of the Contract by Ovinto

Ovinto is entitled to terminate the contract with immediate effect and without notice of default or compensation and, without prior judicial intervention, or to suspend all or part of his obligations:

1. (a)  If the Customer ceases his profession or business or if there is a threat of cessation or material change; if the Customer applies for or is granted suspension of payment; in case of bankruptcy or evident insolvency, cessation of payment, request for extension of payment or more general of any legal proceedings being the consequence of the suspension of his payments and/or the shaking of his credit; (in the case of a judicial reorganization (“gerechtelijke reorganisatie”, “reorganization judiciaire”): Ovinto is entitled to wholly or partially terminate the Contract if the Customer has not confirmed within 15 days following a request by the company to that effect, that it will continue the Contract and honour all of its obligations hereunder), ‘and/or

2. (b)  If any of the following circumstances arises with regard to the Customer:

   i. Decease, events, enactments or proceedings affecting legal capacity or legal

rights;

Offer Ovinto

5/9

Offer Ovinto

ii. Dissolution, liquidation, alteration of legal form or company objectives, reduction

of company capital, appointment of a provisional conservator or provisional

director; and/or
(c) In the event of notification of an order or attachment or seizure of one of the Customer’s properties or in the event of incompliance, suspension, or becoming immediately due of any obligation towards a bank or other financial institution, or generally in the event of an occurrence which may reveal financial difficulties or affect the relationship of trust or confidence; and/or
(d) If the customer has violated Article 2.7. and/or 2.8. of the present Sales Conditions. (e) If the customer fails to settle three (3) consecutive invoices within the delay specified in clause 2.5.

Suspension on the grounds of one of the reasons mentioned above does not prevent the contract from being terminated later for the same or another reason;

Before terminating the contract, Parties shall always try to find a mutually agreed solution which satisfies either party.

After termination of the contract pursuant to the present Article, the customer shall, at its own expenses, immediately return the Equipment and all confidential information belonging to Ovinto.

The foregoing does not prejudice any other rights of Ovinto, including in any case the right to claim proven damages from the customer.

2.13.2.- Early termination of the Contract by the customer

The customer is entitled to terminate the contract with immediate effect and without notice of default or compensation and, without prior judicial intervention, or to suspend all or part of his obligations:

1. (a)  In case of a continued malfunctioning of all the hardware supplied by Ovinto for more than 4 weeks;

2. (b)  In case of a continued interruption of the transmission of data to the customer for more than 4 weeks; and

3. (c)  In case of a fundamental breach of its obligations under the present contract.

Costs related to termination of the contract under the present Article, shall be borne by Ovinto.

6/9

Offer Ovinto

2.13.3. – Early termination of the contract at will by Ovinto and/or the customer

This Agreement may be terminated by either Party prior to expiry of its initial term by providing written notice to the other party and by respecting a four weeks notice period.

In case a Party decides to terminate the contract prior to expiry of its initial term, the other party shall be entitled to an early termination fee which is calculated as follows:

- 40% of the remaining contract value

In case of an early termination of the contract by either Party, all Equipment shall be returned to Ovinto. If the Equipment is not returned to Ovinto, the remaining value of the Equipment will be charged to the customer.

2.13.4.- No refund

Once a monthly fee is paid by the customer to Ovinto, an early termination of the contract shall not give cause for a total nor partial refund of said monthly fee.

2.14.- Ownership of the Equipment

The customer can pay the Equipment at once or in 60 terms.

Regardless of the customer’s choice to pay at once or to pay in terms, the Equipment shall always remain property of Ovinto until full settlement by the customer including all fees, costs, retributions, interests or penalty clause resulting from the contract or resulting from the present Sales Conditions (“eigendomsvoorbehoud”, “reserve de propriété”).

However, the transfer of risk for the Equipment shall take place when the Equipment is accepted by the customer (see article 2.15).

2.15.- Acceptance of the Equipment

Any complaint of the customer about the visible defects of the Equipment must be notified to Ovinto within three (3) days from the date of delivery. In case the customer keeps silent during this period, the Equipment is considered to be accepted by the customer unless there are hidden defects which are only visible or traceable after using the Equipment.

2.16.- Support of Equipment older than 60 months

ATEX units are only supported by Ovinto for a period of 60 months, meaning in practice that all units benefit from a 60 months extended ‘carry in’ warranty as described in the contract implying repair and/or immediate replacement of the hardware without any cost for the

7/9

Offer Ovinto

customer (“carry in warranty” meaning that the Equipment must be delivered at Ovinto. Travel or installment costs are not included in the warranty).

After 60 months, all ATEX hardware has to be replaced at a cost.

2.17- Warranties

(a) Warranty - Equipment

Ovinto warrants that the Equipment shall be (a) in compliance with the specifications as provided in the contract and (b) if applicable ATEX certified in accordance with national law and/or EU law.
Ovinto warrants that the Equipment supplied by Ovinto will function and will be free of defects.

Ovinto offers the customer a 60 months “carry in” product warranty on all Equipment supplied by Ovinto under the contract, to be calculated as from the date of signing of the contract or the delivery of the Equipment if prior to the date of the signing of the contract.

With said “carry in” product warranty, Ovinto warrants to the customer that the Equipment shall function in compliance with the specifications as provided in the contract and that it shall be free of defects.

No warranty can be offered for batteries. Ovinto can, at its best, give an indication of the expected lifespan or autonomy of the batteries included in the Equipment, based on the suspected use of the Equipment by the customer.

Ovinto will replace the batteries at the moment of a revision and/or maintenance of the containers, wagons or trucks.

(b) Warranty - Services

Ovinto warrants that it will provide the Services with due care and in a professional manner and that the Services will be uninterrupted and/or error free unless the interruption and/or errors are attributable to a third party.

Ovinto cannot be held liable for any consequences when not being able to provide its Services due to an unreliable or defective supply regarding these external parameters but shall do its utmost best to restore the Services as soon as possible.

8/9

2.18.- Limitations of Liability

Neither Party shall be liable for failure to perform under this Contract in due to causes beyond its reasonable control, such as, but not limited to, fire, flood, strikes, labour disputes or other industrial disturbances, (declared or undeclared) war, embargoes, blockades, legal restrictions, riots, insurrections, governmental regulations or the unavailability of means of transport.

Ovinto’s liability for actual damages from any cause whatsoever shall be limited to 500.000,00 € EUR per event. In no event shall Ovinto be liable for any lost profits, lost savings, incidental damages or consequential damages.

2.19.- Correspondence

All notifications may be given by any means of sending, either by mail, electronically or in other ways. However, letters concerning either a notice of default or the execution of a right with respect to a term or delay must be sent by registered mail.

2.20.- Miscellaneous Provisions

If one of the clauses of these General Purchase Conditions is or will be invalid, illegitimate or unfeasible, this will not affect the validity and applicability of the remaining clauses in any way.

2.21.- Applicable Law and Jurisdiction

The contract between Ovinto and the customer is governed by Belgian Law.
All disputes between Ovinto and the customer shall be exclusively submitted to the courts of the
judicial district of the registered seat of Ovinto.