Terms & conditions
CITYMESH 0G general conditions for the supply of services and/or products.
These General Conditions, together with the Sales Order and the Special Conditions, form the contractual terms applicable to the supply of Services and/or Products (hereinafter, the "Contract"). In case of conflict, the Sales Order and the Special Conditions shall prevail over the General Conditions. The Special Conditions consists of (with the descending order of precedence) the countersigned Sales Order and the related Service Level Agreement(s) (SLA) if any. The latest version of the General Conditions may be consulted at any time on the website or requested from CITYMESH 0G (hereafter also the Provider) and shall, as a rule, also be communicated to the Customer by e-mail. The Customer irrevocably waives the application of its own general and /or other conditions even if it is stated in these that they shall prevail and/or they are attached to the order form.
Activate means the status of and period of time during which Devices are authorized to emit or receive data on the Sigfox Territory Network.
Affiliate means any company that is an affiliated or associated company of a Party within the meaning of the articles 1.14 of the Belgian Code of Companies and Associations of 23/03/2019 and in relation to the Provider, in general, if an entity is within the perimeter of the CITYMESH group as a result of direct or indirect control or any direct or indirect participation in the capital of such entity.
Connectivity Services means the Services allowing the connection of Devices via a network to a system and/or application.
Coverage Map means the information and coverage levels of the geographic areas displayed publicly on www.sigfox.com which refers to the outdoor estimated coverage of the Sigfox Network.
Data Protection Laws refers inter alia to legally binding legislation and regulation, including (without limitation) the GDPR and any national statutes or regulations implementing the GDPR, the transposition in national law of the EU Directive 2016/1148 of July 6, 2016 concerning measures for a high common level of security of network and information systems across the Union and any implementing regulation thereof and the upcoming e-Privacy Regulation concerning the respect for private life and the protection of personal data in electronic communications which will repeal Directive 2002/58/EC (Directive on Privacy and Electronic Communications) of July 12, 2002;
Device means a Sigfox certified object that can communicate through the Sigfox Network.
End Customer means any entity or person that purchases or procures in any way a solution proposed by the Customer.
CITYMESH 0G or the Provider is a wireless network operator dedicated to low- throughput communications and, in particular, appointed by Sigfox SA, to distribute and market Connectivity Services to Customers in the Territory.
Frame means any data emitted or received by an Activated Device.
GDPR means the EU Regulation 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
Intellectual Property Rights means any and all patents, utility models, design rights, author’s rights or copyright (including any rights in firmware devices, computer software and SaaS Solutions), database rights or topography rights (whether or not any of these are registered and including applications for registrations of any such right) and any rights or forms of protection (including, without limitation, undisclosed know how) of a similar nature or having equivalent or similar effect to any of those which may subsist anywhere in the world. Personal Data means any personal data within the meaning of the GDPR, as may be supplemented by any applicable Data Protection Laws.
SaaS Solution means a hosted software environment that is managed by the Provider (or any of its subcontractors) and to which access may be offered to Customer as an “on demand” software-as-a-service solution.
Sales Order includes any particular commercial terms and conditions applicable to the Customer (including the Special Conditions if any) and is signed by the Provider and the Customer. Each Sales Order constitutes a separate Contract binding upon the Parties with respect to the Services and Products concerned. By placing the order or signing the Sales Order, the Customer explicitly acknowledges having received the documents enumerated in article 1 above, having taken cognizance of them and consenting to them.
Product means a Device or a battery.
Services means Connectivity Services and other services specified in the Contract including, without limitation, any SaaS Solution offered by the Provider.
Support Services means a helpdesk phone service operated by the Provider (or a subcontractor) during Working Hours.
Sigfox means Sigfox SA, a limited liability company organized and existing under the laws of France.
Sigfox Agreement means a Deployment, Maintenance, Marketing and Distribution Agreement concluded by the Provider with Sigfox.
Sigfox Connectivity Services means the services consisting of (i) conveying uplink and downlink Frames on the territory covered by the Sigfox Network and the routing and storage system operated by Sigfox; and (ii) access to Sigfox Portal.
Sigfox Portal means the Sigfox web portal on which data transmitted by Activated Devices present on the Sigfox Territory Network is made available to the Customer.
Sigfox Network means the low-throughput cellular network and associated architecture designed by Sigfox based on its technology using ultra-narrow band and dedicated to low-throughput communications (LPWAN).
Territory means the Sigfox territory where the Provider is entitled to distribute and market Connectivity Services using the Sigfox Network i.e. Belgium.
Visualization Platform Service is a SaaS Solution offered by the Provider which offers the Customer functionality such as management of Devices, visualisation and management of data and other related functionality.
Working Days means calendar days, Monday to Friday, excluding public holidays in Belgium.
Working Hours means those hours between 09:00- 17:00 on Working Days.
3.1. The Prices set out in the Sales Order are expressed in EUR and are exclusive of value-added tax (VAT), withholding taxes and Surcharges. Surcharges are all excises, taxes, levies, retributions levied by an authorised authority, delivery and transport charges or other expenses payable by the Customer.
These Surcharges shall be borne by the Customer. Any change to the Surcharges shall be charged to the Customer in a transparent manner.
3.2. The Provider reserves the right to adjust the Prices before the submission of the Sales Order and on the Contract anniversary date, in accordance with the salary indexation and the following price adjustment formula:
P1 = P0 x (0.2 + 0.8 X (S1/S0)) where - P1 = the new Price (applicable as from the Contract anniversary date) - P0 = Price applicable at the start of the contractual term preceding the entry into force of the indexation (i.e. the starting price) - S0 = the base salary in the technology industry (the national average published by AGORIA) of the month prior to (1) the month of the Contract's conclusion, in case of the first indexation, or (2) the last price increase or (3) the last indexation, depending on which of these events takes place last. - S1 = the base salary in the technology industry (the national average published by AGORIA) prior to the indexation applied on the Contract's anniversary date.
A price adjustment based on the price adjustment formula shall not give the Customer any right to terminate the Agreement without compensation related to early termination.
4.1. CITYMESH 0G is not liable for damage resulting from the Customer's failure to meet its obligations and shall not be held liable for the content of information that is transferred or stored by the Customer or any third party (including, without limitation, End Customers) using the CITYMESH 0G Products and/or Services including, without limitation, any SaaS Solution. The Customer agrees to indemnify and hold the Provider harmless from and against any and all third party claims against the Provider as a consequence of such non-compliance, fault or negligence. The Customer guarantees and shall defend, hold harmless and indemnify the Provider from and against any and all costs, including reasonable lawyers’ fees or other fees charged by experts, fines, penalties, losses and damages, which may result from any proceeding or claim filed by End Customers or by any third party against the Provider regarding any offer proposed by the Customer to the End Customers including, without limitation, Activated Devices, any SaaS Solution or any functionality thereof and the Connectivity Services, except if such proceeding or claim is directly based on a material failure of the Provider to fulfil its obligations towards the Customer.
4.2. The Provider shall not be held liable for any delays or shortcomings in the provision of its Services (including, without limitation, any SaaS Solution or any partial functionality thereof) whenever these are the result of events or circumstances that are beyond its reasonable control, unpredictable or unavoidable, such as any act or omission by any third party, atmospheric conditions, physical obstructions, other radio interference or power and internet suspension. Notwithstanding such adverse effects on the Connectivity Services or the availability of a SaaS Solution, which may lead to Data not being conveyed, received or able to be managed or visualized as intended, the Price shall remain due and payable by the Customer. If it invokes such Force Majeure, the Provider shall have the right to suspend or limit the Services in order to protect the operating environment, without the Customer being entitled to claim any damages whatsoever. The Provider must make every commercially reasonable effort to strictly limit the duration thereof. Should these events or circumstances of Force Majeure continue for more than three (3) months, either Party may lawfully and by registered letter terminate this Contract without any compensation being due.
4.3. Without prejudice to the application of articles 4.2. and 4.4. hereof, the Customer and CITYMESH 0G are liable only for direct damage resulting from gross negligence, fraud or intentional contractual breach on their respective part. To the extent permitted by applicable law, under no circumstances shall the Provider be liable for undetectable defects, indirect or consequential damage such as loss of production, loss of profit, loss of business opportunities, loss of business information, loss of turn-over and/or loss of income. In general, the Parties must take all necessary measures that can reasonably be expected to mitigate their damage.
4.4. To the extent permitted by applicable mandatory law and without prejudice to the application of article 4.2. and article 4.3. hereof, in all cases and circumstances in which CITYMESH 0G is liable, its liability towards the Customer shall be limited to the total amount that the Customer paid to CITYMESH 0G over the twelve (12) months preceding the receipt of the damage claim in writing and shall in no event exceed an aggregate amount of EUR 200,000 per year. This limitation does not apply in the event of physical injury or death.
4.5. Each Party shall take out appropriate and adequate liability insurance to cover its liability pursuant to this Contract and shall inform its insurer(s) of the provisions of this Section 4 and any other provision of the Contract which may lead to it being liable irrespective of the legal basis giving rise to a claim of liability. If a Party has already such insurance in place, it shall in any event check with its insurer(s) that its existing liability insurance is sufficient. For the avoidance of doubt: if any Party is covered by an appropriate and adequate insurance coverage taken out by another entity at group level which covers said Party’s liability, this is assimilated with appropriate and adequate coverage for the purposes of this article.
The remedies provided pursuant to this Section 4 shall only apply if the Customer has informed CITYMESH 0G in writing within ten (10) Working Days as of the occurrence of the event giving rise to damage and shall be the sole remedies available to the Customer unless specifically provided otherwise or to the extent permitted by mandatory applicable law. Claims filed after said period of ten (10) Working Days shall be considered time-barred (“vervaltermijn” / “délai d’échéance”).
5.1. The Parties acknowledge that the performance of this Contract and the provision of the Services shall not entail the transfer of any Intellectual Property Rights, assets and/or methodologies. As a consequence, the Provider (or the Provider’s suppliers, and in particular Sigfox) shall remain the exclusive owner of all Intellectual Property Rights, assets and methodologies belonging to it prior to execution of the Contract or developed outside its scope, and which could have been disclosed to or known by the Customer in relation to this Contract.
5.2. The Customer shall immediately inform the Provider of any act of unfair competition or any incorrect use or any infringement of the Provider’s or the Provider’s suppliers and, in particular, Sigfox's Intellectual Property Rights. This specifically includes any Intellectual Property Rights to any SaaS Solution offered to the Customer by the Provider. The Customer undertakes to use its best endeavours to protect the Provider’s, the Provider’s suppliers and, in particular, Sigfox’ rights and interests. In case of claims or proceedings against the Customer with respect to any Intellectual Property Right linked to the performance of the Contract or the Services, the Customer shall inform the Provider immediately and enable it to defend itself at its own expense. 5.3. Where the Products and/or Services become or might become the subject of proceedings for infringement of one or several Intellectual Property Rights, CITYMESH 0G may, in its sole discretion: - obtain for the Customer the right to continue to benefit from the Products and/or Services; - make similar Products and/or Services available or change the Products and/or Services to cure any infringement, insofar as this does not lead to any substantiated and persisting substantial loss of functions or Services. If none of the abovementioned solutions are commercially viable, CITYMESH 0G may terminate the Contract and reimburse the Customer the sums paid for the Products and/or Services which the Customer has not yet been able to benefit from.
The remedies specified in this Section 5 shall constitute the Customer’s sole remedies as regards CITYMESH 0G with respect to claims by third parties based on alleged infringement of third-party Intellectual Property Rights.
6.1. It is the choice of the Customer to use the Connectivity Services of CITYMESH 0G amongst other alternatives to convey and transmit data. The Customer made this choice with full knowledge of and insight in the (Sigfox) technology and consequently understands the data protection limitations and regulations when transmitting messages using the Sigfox Network as provided in the Territory by CITYMESH 0G. The Customer acknowledges that CITYMESH 0G has no right or intention to (systematically or otherwise) inspect the content of the transmitted messages and cannot therefore not assess whether said data relates to Personal Data or not. This assessment rests solely with the Customer which is solely responsible for said assessment without any right of recourse in whatever form against the Provider in the event of an incorrect assessment by the Customer. In case transmitted messages contain Personal Data, the Customer is strongly advised to use appropriate and state of the art encryption. For encrypting data, the Customer can use its own encryption methods or use the methods offered by Sigfox, or a combination of both. CITYMESH 0G commits to using commercially reasonable efforts to ensure that its data sub-processors are GDPR compliant.
6.2. If the Services are of such a nature as to enable the Customer to collect and process Personal Data of its own customers, employees or third parties, these activities shall be carried out under the sole responsibility of the Customer. In that case, the Customer shall be responsible for the implementation of and compliance with applicable laws including Data Protection Laws.
When applicable, the Customer shall comply with all the provisions of said legislation and shall fully indemnify CITYMESH 0G and Sigfox against any and all claims, costs, fines and penalties claimed or imposed by third parties and supervisory authorities (such as national data protection authorities) based on possible or alleged breaches of Data Protection Laws.
6.3. The Parties agree to comply with all Data Protection Laws and agree to negotiate in good faith, prior to the execution of the Contract and to the extent applicable, a specific data processing agreement detailing their respective rights and obligations pursuant to the GDPR. Pursuant to said data processing agreement, the Customer shall be the data controller and the Provider shall be a data processor within the meaning of article 4 of the GDPR. It is understood between the Parties that Provider shall in no event qualify as data controller within the meaning of the GDPR. The Parties shall agree that no Personal Data is exported to a location outside the European Economic Area or processed at a location outside the European Economic Area unless the Parties specifically agree otherwise.
6.4. Personal Data relating to identifiable persons working for or employed by Customers is incorporated into CITYMESH 0G databases and processed:
- for Customer management purposes (e.g. for issuing, collecting and checking bills, for exchanging correspondence as part of the contractual relationship with the Customer, and in case of legal disputes);
- with the aim of implementing the Contract;
- with the aim of carrying out information-related activities or promoting CITYMESH 0G products and services.
7.1. Unless otherwise stipulated, the Contract shall take effect on the day that the Provider unconditionally accepts the Customer's Sales Order by providing the Customer with a countersigned copy of the Sales Order.
Unless stated otherwise in the Special Conditions, the initial Contract term shall be one (1) year (“the Initial Term”).
The Initial Term takes effect on the day after the date on which the Products and/or Services are made available to the Customer (“the Initial Date”).
7.2. Upon expiry of the Initial Term, the Contract will be tacitly renewed for successive one-year periods. Should a Party not wish to extend the Contract, it must notify the other Party in writing at least three (3) months before the end of the Initial Term or the current extension. Expiry or termination of the Contract shall not automatically terminate any Sales Order(s) in effect prior to such termination or expiry. The Sales Orders effective as of the termination or expiry date of this Contract, shall remain in force and shall continue to be governed by the terms of the Contract until such Sales Orders duration expire or are terminated. However, in case of a substantial breach by the Customer as defined in article 7.4, all or part of the Sales Orders in effect prior to such termination may be terminated by the Provider as well.
7.3. The Provider is entitled to suspend all or part of the Services, after giving eight (8) day notice in writing to the Customer:
- in case the Customer is in breach of any of its obligations set out in this Contract or
- in case of use of the Services or Activated objects which are non-compliant with the Contract or
- in case of late payment of invoices relating to the Services,
except if the Customer cures the breach or pays the invoice, as applicable, within the period of eight (8) days mentioned above. Performance will resume once the Customer has complied with its obligations. During any such suspension, the Provider shall not be liable for any damages that may result in or arise out of such suspension. Such suspension of the Contract shall trigger the payment of all the amounts which remain due by the Customer to the Provider, whether invoiced or not, until the date of suspension.
7.4. Either Party may terminate the Contract unilaterally, at any time, immediately and without prior referral to the courts (i.e. extrajudicially), by a written notification to the other Party if said Party materially breaches any of its obligations pursuant to the Contract as detailed and substantiated in the notification or (insofar as remedy is possible) fails to remedy said material breach within thirty (30) days as of the written notice. A material breach refers to a serious or substantial breach of an obligation pursuant to this Contract. For the avoidance of doubt: either Party may also demand that the other Party cures any non-material breaches within a commercially reasonable timeframe taking into account the severity of the non-material breach which shall in any event not be shorter than thirty (30) days. Termination of the Contract for material breach shall trigger the payment of all the amounts remaining due by the Customer to the Provider, whether invoiced or not, until the date of termination and without prejudice to any other remedies the Provider may have pursuant to applicable law or the Contract.
7.5. To the maximum extent permitted by law, the Contract shall automatically be terminated if either Party ceases its activities, becomes insolvent or goes into bankruptcy, is dissolved or undergoes a similar procedure for winding up. The amounts then owed by this Party become immediately due.
Moreover, bankruptcy and assimilated events as set out in article 7.5, do not affect the right of each Party to claim compensation from the other Party for damage incurred as a result of the termination of the Contract.
7.6. In case the Customer terminates the Contract prematurely, the Customer shall pay all amounts due for the remainder of the Initial Term or the current Contract extension in accordance with article 7.2. hereof, without prejudice to the right of the Provider to claim reimbursement of any discount that the Customer may have unduly benefitted from.
7.7. In case the Contract is terminated due to the Customer failing to comply with its obligations, the amounts referred to in Article 7.6 shall be immediately due and may be increased with administrative charges and damages for all losses, damages, costs or expenses sustained by the Provider as a result of the default of the Customer or its employees, including, but not limited to, reasonable lawyer fees and legal expenses to the extent permitted by applicable law.
7.8. Should the Provider decide to end the provision of a certain Product or Service, it must notify the Customer in writing at least six (6) months in advance. Such notification shall contain, at the very least, the full reference of the Product or Service concerned, the Product or Service offered as a substitution, when applicable, and the final date by which the Customer can order the Product or Service concerned. If a technically and economically reasonable substitution is possible, the Provider will offer the Customer a replacement Product or Service subject to comparable terms and conditions until the end of the contractual term and will not be liable to pay the Customer any compensation.
7.9. The present Contract for Sigfox Connectivity Services shall automatically terminate upon the termination of the Sigfox Agreement between Sigfox SA and Provider, whatever the cause may be.
7.10. The Provider may, without limiting its other rights and remedies, terminate this Contract with the Customer for cause or suspend all or part of the provision of the (Connectivity) Services (ii) at any time, and without prior notice, in case of (a) a request and/or order from law enforcement, a judicial body, or other government agency or regulatory body; (b) where provision of the (Connectivity) Services to the Customer is or may become unlawful under any applicable law; (c) unexpected technical or security issues or problems materially affecting the ability to provide the (Connectivity) Services; (d) Customer participation in fraudulent or illegal activities, or Customer use of an Activated Device that adversely affects the Sigfox Territory Network. Upon any such termination or suspension, the Provider shall not be responsible for any damages that may result or arise out of such termination or suspension.
7.11. The following articles shall (without limitation) survive the termination of the Contract: articles 4,5,6,10,11.5 and 11.9.
8.1. Unless otherwise stipulated, the Provider shall invoice:
- Activation Fees at the end of the month during which the Devices in question have been Activated,
- Subscription Fees relating to a given year, at the end of the month during which the provision of the Connectivity Services starts for at least (1) year and
- Products, after delivery.
8.2. Invoices are payable within thirty (30) calendar days from the invoice date. The Provider’s bank account must be credited within this period. The Customer shall bear all the costs related to the payment of invoices.
8.3. Any notification of a disputed invoice must be received by the Provider within fifteen (15) calendar days of the invoice date. Beyond that deadline, the invoice will be deemed to have been irrevocably accepted by the Customer.
The Customer shall in any event pay the total invoice. In case the disputed part of an invoice is found to be not due, the Provider will partially refund the Customer.
8.4. The Provider has the right to request payment of interest as from the invoice due date, calculated at the rate provided for in the statute of 2 August 2002 on combating late payment in commercial transactions. This interest for late payment is charged de jure by virtue of the mere fact that the invoice is not paid by the due date.
8.5. The Provider can request that the Customer provides a guarantee, increases the existing guarantee and/or makes advance payments for specific reasons, such as late payment and/or insufficient (or materially reduced) creditworthiness (which can be evidenced by for instance, but not limited to, a low credit rating issued by an independent rating agency, negative profitability, insufficient shareholders' equity or a substantial reduction thereof) and/or a change of control of the Customer, its ultimate parent company and/or its (one of its) intermediate parent company or companies. The Customer will inform and notify the Provider of a change of control as soon as possible. For the avoidance of doubt: change of control is defined in articles 5, 6 and 7 of the Belgian Company Code.
This guarantee or increased guarantee must be provided within ten (10) Working Days after the Provider's request and shall be an unconditional bank guarantee at first request or an unconditional cash deposit both irrevocable for the entire term of the Contract and for three (3) months thereafter. In case of a bank guarantee, it must be issued by a bank having a Standard & Poor’s A- rating or a similar credit rating.
The advance payments must be made immediately after receipt of the invoice. The amount of the advance payments shall be equal to half the amount as determined for a guarantee.
If the guarantee is not provided or the advance payments are not made in time, the Provider reserves the right to fully suspend the Services to the Customer.
9.1. The Provider reserves the right to amend the General Conditions, even if this affects the price or quality of the Services. The Provider shall notify the Customer of such amendments at least one (1) month before their entry into effect, by any means it deems appropriate as long as the Customer is able to take cognizance of the revised General Conditions. The publication of a notice on the Provider’s website - provided it is brought to the attention of the Customer - and/or an enclosure with an invoice or any other document, shall be deemed to constitute appropriate means.
9.2. Without prejudice to the price adjustment mechanism referred to in article 3.2., Customers that do not accept changes that are to their substantiated disadvantage may cancel the Sales Order(s) affected by the changes in question without any compensation for breach of Contract being due, provided that they inform the Provider in writing within fifteen (15) calendar days following receipt of the notification of the revised General Terms.
9.3. Should Belgian or European authorities require the Provider to amend the Contract, or to refrain from supplying some or all of the Products and/or Services, the Provider shall have the right to provide for these amendments or to refrain from supplying the Products and/or Services without having to pay any compensation to the Customer.
9.4. The Provider performs its obligations under this Contract within the regulatory framework including the requirements specified in technical regulations. The Provider shall amend the Contract without having to pay any compensation to the Customer, following discussion with the Customer, in the event of changes of the regulatory framework provided these amendments have an impact on the Contract. Article 9.2. does not apply in case of changes in the regulatory framework.
9.5. Any amendment to the legal or regulatory framework which occurs after the signing of this Contract and is likely to cause a significant economic imbalance between the obligations of the Parties under this Contract, allows each Party to request a renegotiation of the Contract to restore the initial balance, without prejudice to the application of articles 3.1. and 9.4. Approval, amendment or retraction of an European regulation, or a national/regional statute, act, decree, ordinance, executive decree (including any binding decision of whatever nature) or change of its current interpretation constitutes a change in the regulatory framework.
A significant imbalance shall in any event be deemed to have been arisen in case the occurrence of events render (or can be demonstrated to render) the continued performance of the Contract unprofitable for the Provider as disadvantaged Party. The request for renegotiation does not in itself entitle the disadvantaged Party to withhold performance. If no agreement can be found after negotiations in good faith within a period of three (3) months from a request to renegotiate, each Party shall be at liberty to initiate litigation against the other.
The Customer and the Provider acknowledge the confidential nature of the provisions and of the subject matter of this Contract and any information of the other Party which can reasonably be expected to be of a confidential or proprietary nature. Without the permission of the other Party, the present Contract may not be disclosed to third parties, except to Sigfox and the Parties' insurance companies, insurance brokers, legal counsels, consultants, subcontractors, financial institutions and Affiliates, provided that they need this information to carry out their duties and that they agree to an express confidentiality undertaking imposing the same degree of confidentiality on them or are subject to a legal and professional duty of confidentiality. Each Party remains responsible for any violation of this confidentiality obligation. The competent (supervisory) authorities are not considered as third parties. This article shall remain in force during four (4) years following termination of the Contract.
If the Contract is terminated or has expired, each Party has the right to request that the other Party returns or destroys the items and documents of any nature which may have been provided or made available to it. The burden of proof regarding the destruction of confidential material rests with the Party which was requested to proceed with the destruction.
11.1. Assignment- Subcontracting
The Customer and the Provider may not assign this Contract to a third party (including through operation of law) without the prior written consent of the other Party, which shall not unreasonably be withheld or delayed. The Provider may freely sub-contract any of its rights and obligations under the Contract to a third party.
11.2. Independent contractors
The Parties shall be considered as fully independent contractors. This Contract does not constitute a joint venture, partnership or similar agreement. In particular, nothing in this Contract shall make the Customer a general or special agent, partner, employee or servant of the Provider or create a link of subordination between the Customer and the Provider. Customer shall not make any agreement, guaranty or representation on behalf of the Provider and/or Sigfox SA.
11.4. Amendments and Waivers
Without prejudice to article 9, the Contract may be amended only by another document duly signed by both Parties. Failure by either Party to exercise any of its rights shall under no circumstances be construed as a waiver of these rights.
Throughout the term of this Contract and for a period of twelve (12) months following the end of the Contract, the Customer shall not directly or indirectly solicit the employment of, hire or engage as an independent contractor or otherwise, any CITYMESH 0G staff (employee, consultant or other) with responsibilities related to this Contract, without CITYMESH 0G prior written consent. Should the Customer fail to comply with this obligation, he shall pay CITYMESH 0G damages equal to twelve (12) times the gross monthly salary that the person earned with CITYMESH 0G in the last full month of his employment, without prejudice to CITYMESH 0G right to claim further damages.
Invalidity of a provision of this Contract shall not result in the invalidity of the entire Contract but only of the provision itself. The invalid provision shall be replaced by a provision of equivalent effect that respects both Parties' intentions and which they shall negotiate in good faith.
Any communication between the Parties shall to be valid be in writing and send by letter, fax and/or e-mail to the points of contact cited in the Order Form.
11.8. Entire agreement
The Contract shall constitute the entire agreement between the Parties on the Products and/or Services, to the exclusion of any prior written or oral communication, proposals and agreements.
Any dispute arising out of this Contract and which is not settled by the Parties themselves shall be finally settled by the Courts of Brussels .This Contract is governed by Belgian law
The Provider - and including, for the purpose of this article, any designated auditors - shall have the right to perform audits in order to ensure the compliance of the Customer with its obligations (in particular with the contractual stipulations contained in Sales Order including the Special Conditions), upon reasonable prior notice to the Customer and during normal business hours. In the event the Customer is in breach of its obligations pursuant to the Contract, the costs and expenses resulting from any related audit shall be fully borne by the Customer. The Customer shall fully co-operate with the Provider and the external auditors appointed by the Provider, as the case may be, including by providing the access to any relevant information to the extent reasonably necessary to carry out the audit.
By signing the Sales Order, the Customer agrees with the prerequisites and required specifications of the Products and/or Services detailed in the applicable Contractual Service/Product descriptions. If these prerequisites and/or required specifications are not complied with when the Service and/or Product is installed by the Provider, the latter cannot be held responsible for the resulting consequences. The Customer has the right to issue order forms for the benefit of its Affiliates, which shall be jointly and severally liable for the implementation of all the commitments, guarantees and obligations, including, without limitation, the payment obligations of the Affiliates under the Contract.
12.2.1. Connectivity Services
Subject to compliance by the Customer with its obligations, the Provider is responsible for the provision of Connectivity Services to the Customer in accordance with the terms of this Contract. Save with respect to the service level set out in an optional Service Level Agreement, the Connectivity Services are provided “as is” and without any express or implied warranty of whatever nature, in terms of quality or fitness for a specific purpose of the Connectivity Services. The Provider does not guarantee that the Connectivity Services will be uninterrupted or free from errors.
The Provider undertakes to perform its obligations in accordance with good industry practices. The obligations of the Provider are obligations of means. The Provider shall comply with all legislation and regulation applicable to its business, including the legal framework for operating an electronic communications network in Belgium.
12.2.2. Sigfox Connectivity Services
Unless otherwise specified in the Special Conditions, the Provider concludes a Sigfox Agreement with Sigfox for the entire duration of the Contract.
The Customer acknowledges that coverage as indicated in the Coverage Map refers to approximate geographic areas and that the estimated coverage of a territory does not constitute a commitment of effective coverage, nor a warranty, guarantee, representation of any kind in relation to the availability or quality of the Sigfox Network. The Provider shall use its best endeavours to ensure that Connectivity Services are provided on a 24/7 basis and a 52 weeks a year, with network availability of no less than 99,5% per calendar month excluding scheduled downtime for essential equipment maintenance as described in this Contract. Sigfox and the Provider are entitled to suspend the Connectivity Services to perform upgrades and/or maintenance and/or any other actions related to the technical infrastructure to the extent Sigfox or the Provider deems it necessary or as required to repair any fault impacting the Connectivity Services. The Provider shall give the Customer prior reasonable notice of such suspension, whenever reasonably practicable.
The Provider undertakes to reply to any reasonable request from the Customer for information related to the Services or relating to the Sigfox Network.
The Provider reserves the right to take the measures required in case the integrity of the Services and the proper functioning of the Sigfox Network or infrastructure are compromised. Such measures may consist of, inter alia, the activation of protective measures or the suspension of the Customer’s access to its Services.
The Customer agrees to subscribe to and pay such Connectivity Services, in respect of connected Devices (the Connectivity Fee) but acknowledges that it has no right to claim any indemnity for any suspension of the Connectivity Services in conformity with what is set out in this article.
Upon countersigning the Sales Order, the Provider shall provide the Customer with an Activation token per device. All Devices must be Activated at the latest twelve (12) months after receipt of such a token. For each Activated Device, the Customer shall pay an Activation fee to the Provider. Failure to Activate a Device within twelve (12) months will require the Customer to pay for a new Activation Token. The Customer undertakes to use the Sigfox Connectivity Services only for its own internal needs and/or within the sale of offers proposed by the Customer to End Customers. In case of such a resale, it shall provide, under its sole responsibility, any Offer to the End Customers in compliance with its obligations. As a result, the Customer is responsible for dealing with and settling any request, complaint and claim from the latter regarding such an offer and/or the Activated object. The Customer shall immediately inform the Provider of any material comment or complaint from the End Customers related to the Sigfox Network. The Customer undertakes to connect only Devices to the Sigfox Network that have obtained certification by Sigfox prior to Activation.
The Customer shall procure the compliance by the End Customers with any relevant obligations in this Contract concerning the use of the Sigfox Connectivity Services and where applicable other Services, including the obligations set out in this section.
The Customer acknowledges that the Sigfox Territory Network is subject to specific regulations and to its own specific requirements, including, among other things, (i) a maximum volume of 140 Frames per device per day of 12 bytes each; (ii) the prohibition to use the Sigfox Network to store or transmit libellous, or otherwise unlawful material, or to store or transmit in breach of third-party (privacy) rights; (iii) the prohibition to interfere with or disrupt the integrity of the Sigfox Network; or (iv) the prohibition on gaining or attempting to gain unauthorised access to the Sigfox Network or its related systems. Upon being informed by the Provider of any non-compliance with such restrictions or requirements, the Customer shall immediately disconnect the relevant Device. In the event of any non-compliance with such instructions, the relevant Device may be de-Activated, without prior further notice to the Customer.
Subject to the terms and for the duration of the Contract, the Provider grants the Customer a non-transferable right to access the Sigfox Portal and the business support system (BSS) in accordance with their respective terms and conditions of use which are available on the BSS and the Sigfox Portal and which shall in any event not be more extensive than the terms set out in article 12.2.4. relating to the provision of a SaaS Solution.
The Provider will provide the Customer access to the Sigfox web services and allow both push and pull access to data feeds for Activated Objects.
12.2.3 Consulting Services
CITYMESH 0G supplies consulting services based on information prepared by the Customer. The Customer shall provide CITYMESH 0G with all information, documents, assistance and support reasonably necessary or useful to perform the Services. CITYMESH 0G does not check the authenticity and exhaustivity of the information provided by the Customer. CITYMESH 0G provides no representation as to the final results based or derived from any advice it has provided.
12.2.4. Supply of SaaS Solutions by Provider
Unless provided for otherwise in the Contract, to the extent permitted by applicable law and without prejudice to article 5.3 hereof, a SaaS solution is provided to the Customer “as is” without warranty of any kind (including, without limitation, statutory and contractual warranties), express or implied, including but not limited to the warranties of quality, merchantability, functionality, fitness for a particular purpose and noninfringement.
The Provider will nonetheless use commercially reasonable efforts to ensure that a SaaS Solution will perform substantially in accordance with the specifications set out in the Sales Order.
The Provider shall use its best endeavours to ensure that the SaaS Solution is available on a 24/7 basis and a 52 weeks a year with availability of no less than 95% per year excluding scheduled downtime for maintenance. The Provider is entitled to suspend the availability of the SaaS Solution to perform upgrades and/or maintenance and/or any other actions on technical infrastructure to the extent the Provider deems it necessary or as required to repair any fault impacting the availability and/or functionality of a SaaS Solution. The Provider shall give the Customer prior reasonable notice of such suspension, when reasonably practicable.
The Provider undertakes to reply to any reasonable request from the Customer for information related to a SaaS Solution as offered by the Provider.
The Provider explicitly reserves the right to take the required measures in case the integrity and/or security of the SaaS Solution is or may be compromised. Such measures may consist of, inter alia, the activation of additional protective measures or the temporary suspension of the Customer’s access to the SaaS Solution.
No suspension of a SaaS Solution can give rise to any form of compensation for the Customer.
The provisions of this article 12.2.4. may be superseded by the provisions of a Service Level Agreement relating to the availability and/or the (curative or preventive) maintenance of a SaaS Solution concluded within the scope of this Contract.
The Sales Order will determine the fees the Customer is required to pay for access to a SaaS Solution. Likewise, a Service Level Agreement relating to the availability and/or the (curative or preventive) maintenance of a SaaS Solution will set out the fees due by Customer within the framework of any Service Level Agreement.
12.3.1. All Products sold to the Customer shall remain the property of CITYMESH 0G until they have been paid for in full, including all charges and taxes i.e. CITYMESH 0G retains full title and ownership until payment in full.
In case of a deterioration of the Product by the Customer, the unpaid part of the sales price shall become due immediately. For as long as the Customer has not paid the Product's sales price in full, the provisions relating to product rental shall apply.
12.3.2. The Products will be delivered by CITYMESH 0G to the agreed place of delivery. The risks transfers to the Customer when the Product is handed to the (first) carrier (Carriage Paid To - Incoterms 2000). Subsequently, the Customer will be liable for all risks relating to the Product. CITYMESH 0G will make every reasonable commercial effort to deliver the Products at the agreed time. The Customer shall take delivery of the Products within the agreed time. If the Customer does not take delivery of a Product, CITYMESH 0G shall be entitled to charge for the price and any expenses linked to this failure to take delivery.
Unless the Customer sends a written objection to CITYMESH 0G within five (5) Working Days of the delivery date of the Products, the delivered Products shall be deemed to have been accepted including all visible defects. Unless expressly stated otherwise in the Contract, the Customer benefits from the guarantee as offered by the manufacturer of the Product. CITYMESH 0G does not provide any specific or supplementary guarantee on top of the manufacturer's guarantee. Without prejudice to CITYMESH 0G duty of information, the choice of Products, the analysis of their technical characteristics, their compatibility with the Customer's environment and their configuration, shall in all and any circumstances remain the sole responsibility of the Customer.
12.4.1. These provisions apply to the rented Products made available to the Customer or sold to the latter but for which CITYMESH 0G has not yet received full payment of the price. All these Products remain the property of CITYMESH 0G for the duration of the Contract or until such time as CITYMESH 0G has received full payment of the price for the Products sold to the Customer. The rental price is set at 0,55 % of the Product price per day.
12.4.2. The Customer shall not under any circumstances transfer, modify, sell, (sub)lease, lend out, offer as a security or make any Products available to a third party in any way without the prior written consent of CITYMESH 0G. The Customer shall use and keep the Product with due diligence, maintain it in perfect condition and only use it at the installation address. The Customer will be held liable for any loss of or damage to goods belonging to CITYMESH 0G and/or its Affiliates and/or suppliers which are in its possession or under its control, or for any damage caused by these goods (except where any such loss or damage is entirely attributable to an act or omission by CITYMESH 0G). The Customer shall notify CITYMESH 0G immediately of any problems relating to the Product. If the Product is installed in a facility or in premises that are not the Customer's property, the Customer shall notify the owner of said facility or premises by registered letter of CITYMESH 0G’s property right before the Product is installed.
12.4.3. In the event of seizure or attachment of, or any other claim that a third party may make on the Product, the Customer shall be required to oppose such seizure, attachment or claim and inform CITYMESH 0G immediately to enable the latter to safeguard its rights. At the end of the Contract, regardless of the reason for termination, the Customer shall return the Product to CITYMESH 0G in good condition and at its expense, within the time frame agreed between the Parties. If the Customer fails to do so, CITYMESH 0G, shall, in its own discretion, invoice the Customer for the residual value of the Product or will have the right to enter the premises during Working Hours to retrieve the Product in the presence of the Customer or one of its representatives. If the Customer does not cooperate, the Provider shall be entitled to recover any costs as a result of such failure to cooperate. If the removal of the Product takes place under normal conditions, CITYMESH 0G is not required to bear the costs of restoring the premises to their original state should this be necessary after the removal of the Product.
The Customer shall provide the necessary information vis-à-vis the Provider for the Supply of Services or Products under this Contract. Customer shall communicate to the Provider any information concerning the application type and also the functional and technical characteristics of Activated Devices (for example number of sensors, autonomy, class of emission etc.).
By signing the Sales Order, the Customer explicitly gives its irrevocable consent to CITYMESH 0G and Sigfox to collect, process and store data, including transferring such data outside the Territory, for the performance of the Sigfox Agreement, the enhancement of the Sigfox and CITYMESH 0G’s Products and Services, the conduct of analytics and the provision of new, advanced service offerings, the details of which are to be communicated to the Provider by Sigfox prior to their launch.
The Customer will provide the Provider with any documents and information that the Provider needs in order to carry out its assignment efficiently and ensures that a contact person with technical experience is available during the site visit to accompany the Provider’s specialist and supply the necessary information.
The Customer shall ensure that the buildings or the sites, where the Service or the work will be performed, are readily accessible to the Provider and/or its subcontractors and shall enable them to perform their mission in a safe way. Before the Service or the work are carried out, the Customer shall also provide the Provider and/or its subcontractors with a copy of the security requirements and standards applicable at that time, and shall communicate any further amendment thereof. The Customer shall moreover without delay report to the Provider and its subcontractors any circumstances that could endanger personnel. The Parties shall ensure, in accordance with applicable laws and regulations, that the persons involved in the execution of Services or work have, in every aspect, the required competence, experience and the required attestations and certifications of aptitude.