These provisions apply to any agreement concluded between Swivt Technologies (API Services sprl)., 425K Queens Road West (hereinafter “SWIVT TECHNOLOGIES” ) and its clients (hereinafter the “Client” or the “User”) in regard to the products and services provided by SWIVT TECHNOLOGIES, as well as in general to all their business relationships. If applicable they are completed by special conditions.
These provisions can only be modified by express and written agreement. They are deemed as agreed to by the Client solely by his order, ruling out as of right his own general or special conditions. The latter only being binding on SWIVT TECHNOLOGIES if they have been expressly agreed in writing by SWIVT TECHNOLOGIES, SWIVT TECHNOLOGIES’s tacit agreement to which can in no case be assumed. Prior to his order, the Client will gather all necessary advice and will ensure that the Software, Hardware and/or Service that he is planning to order correspond to his requirement and to the anticipated use. SWIVT TECHNOLOGIES assumes no responsibility for an error of choice or assessment by the Client and/or the suitability of the Software, Hardware and/or Services for the purposes required by the Client.
According to the Client’s order, the contract provisions cover granting a Software licence (b.), supplying the Hardware associated with granting said licences (c.) and/or Services provided by SWIVT TECHNOLOGIES (d.). Parts (a.) and (e.) include the introductory and common provisions applicable in all cases. The titles and subdivision of these provisions are purely indicative.
For application of this document, the meaning of the following terms is understood as:
Software: the Swivt Technologies software made up of different elements (web interface, mobile application, embedded software), for which all rights, including the producer right, belong exclusively to SWIVT TECHNOLOGIES, as well as other elements developed by third parties (e.g. mapping data).
Software’s Producer or Publisher: SWIVT TECHNOLOGIES and/or its beneficiary or beneficiaries.
Reseller: the reseller, supplier of the Software and/or Hardware, as well as associated services (e.g. installation, configuration).
User: the Software’s user who, by using it, confirms his acceptance of the User licence contract terms.
Contract: the contract for (i) a Software licence, (ii) provision of Hardware and/or (iii) provision of Services.
Working day: days of the week, excepting Saturdays, Sundays and Hong Konglegal bank holidays.
Hardware: the computer hardware, electrical or other purchased by the Client from SWIVT TECHNOLOGIES as part of the Contract (e.g. IOT device, Dallas Key reader, connectivity, etc.).
Services: the miscellaneous and various services provided by SWIVT TECHNOLOGIES, such as project consultancy, Software maintenance, training, remote support, etc.
Any order from the Client is binding on him. The Client’s representatives, commercial staff or intermediaries are assumed to irrefutably have the powers required to commit the Client. Any order for which the invoice is sent to a third party by the ordering party, makes the ordering party and the third party jointly and severally responsible for the execution of all the obligations.
SWIVT TECHNOLOGIES’s representatives, commercial staff, agents or intermediaries have no power to commit SWIVT TECHNOLOGIES, excepting written ratification by a manager or director duly authorised to this effect or starting delivery or services by SWIVT TECHNOLOGIES. SWIVT TECHNOLOGIES reserves the right to renounce an order that has not been the subject of such a ratification, or to ratify it at any time.
By using all or part of the Software, the User undertakes to respect the terms of the Contract. Unsealing the wrapping containing the CD-ROM, memory card or any other medium, as well as clicking on the “I accept” button when installing and/or downloading any Software, update, upgrade or addition, constitutes use of the Software. The Publisher grants the User, who accepts, a licence or licences for use of the Software, according to the terms of the Contract and legal provisions in effect.
The Software is offered as part of a subscription package, apart from exceptions (e.g. sale) in which case these provisions apply mutatis mutandis. The fees associated with using the Software are due on a monthly, quarterly or annual basis. The subscription starts when the Reseller or SWIVT TECHNOLOGIES gives the User the Licence activation codes for downloading. The first invoice will be sent to the User with the activation codes or just after they are delivered.
Unless otherwise stipulated in the Contract, the Publisher remains the holder of all property rights and/or rights of use in the widest sense, associated with the Software and any existing copies, in particular those arising from copyright on the Software and sui generis right assigned to the database producer. The Publisher only authorises the User to use the Software in accordance with the terms of the Contract. Any right that has not specifically been granted by the Contract is reserved to the Publisher. However, the User is authorised (a) to make a copy of the Software exclusively for the purposes of backup and archiving or (b) transfer the Software onto a single medium, provided that the original is only kept for backup or archiving purposes. The User is prohibited from copying the Software’s manual(s), as well as the printed media that accompanies the Software except for personal and limited use.
The User only becomes the owner of any data media, without acquiring any property right on the Software.
Client’s prohibitions and responsibilities
It is strictly prohibited for the Client to sell, rent, loan the Software or make it available to third parties, in particular competitors of SWIVT TECHNOLOGIES, in any way whatsoever (for example, electronically, through on-line services or by transmission on-line), for a fee or free of charge, whether for profit or not, and/or to be party to such actions. Reverse engineering, disassembling, decompiling or any similar techniques are totally prohibited. In no case will SWIVT TECHNOLOGIES and/or its suppliers be held responsible for any losses or damages caused by an act of reverse engineering, disassembling, decompiling or any similar technique.
Individual nature of the User licence
The User’s rights and obligations under this contract are not transferable.
Neither the Publisher, nor his Resellers, can be held responsible (whether this be on a contractual, negligence or other basis):
(i) for any impossibility to use third party equipment or access data, loss or corruption of data, loss of anticipated business, profits, turnover or savings, work interruption (whether these damages are direct or indirect).
(ii) for any indirect, incidental or consequential damage or loss, of any sort, arising from use or impossibility of using the Software, including in the cases where the Publisher or Reseller will have been advised of the possibility of such damages or losses.
Neither the Publisher, nor his Resellers can be held responsible for installation of the Software.
The data is retained on-line for a period of three months on the Publisher’s servers, unless otherwise agreed in writing. The User is responsible for retaining his data in the longer term. He is therefore requested to regularly back-up data on the basis of reports made available to him.
The data generated by using the Software according to the Client’s instructions, temporarily stored by the Publisher, are the Client’s exclusive property, who remains fully and solely responsible for them, in particular in regard to the protection of privacy and any possible exploitation of the data generated.
The Publisher does not guarantee error free operation of the Software. The User is advised that calculation errors may occur when using the Software, due to e.g. local conditions and/or incomplete data or data not taken into account. Any defect unknown to SWIVT TECHNOLOGIES which could affect the software is not covered by the guarantee. The Client undertakes to maintain the delivered Software at the best update level, the cost of acquiring new versions being at his expense excepting provision to the contrary.
Within the maximum limits authorised by the law in effect, the Publisher and his Resellers are offering the Software AS IS WITH ALL ITS DEFECTS and hereby decline any other express, implicit or regulatory guarantee or condition, whether implicit or not, in particular and without limitation, (possible) implicit representations and/or guarantees, obligations or conditions of satisfactory quality, use for a particular purpose, reliability or availability, accuracy or exhaustiveness of responses, results, professional efforts, absence of viruses and absence of negligence for the Software, and the supply or absence of supply of support or other services, information, software and contents connected with the Software, of the results of use of the Software. The Software is not covered by any guarantee or condition of quiet enjoyment, quiet possession, exclusiveness in regard to a Client or of non-infringement.
Any licence is concluded for a duration of 2 years. By means of a 3-month prior notice sent by registered letter, each party can terminate the Contract at the end of this initial period. In the absence of advanced notification according to the above descriptions, the Software licence with be renewed as of right at the end of the contractual period, for a further period of one year, successively.
The Publisher can terminate the Contract without prior official notification or court intervention, if he observes that the User has carried out operations which violate article 6, 7 and/or 8 above, without prejudice to the Publisher’s right to claim damages.
The right of use is terminated as of right on expiry of the Licence. The User will not be able to request any compensation from the Publisher for termination of this Contract, for any reason whatsoever.
The User will not be able to claim any compensation from the Publisher due to temporary or final termination, for any reason whatsoever, of use of the Software.
Delivery of hardware
SWIVT TECHNOLOGIES is only responsible for delivery of the Hardware explicitly specified in the order confirmation or signed Contract.
Unless otherwise agreed in writing, delivery times are only given by way of indication. A delay in delivery or service cannot give rise to cancellation of an order nor compensation, excepting voluntary breach by SWIVT TECHNOLOGIES. SWIVT TECHNOLOGIES reserves the right to carry out partial deliveries constituting just as many partial sales. In no case will such partial delivery be able to justify refusal to pay for the products delivered. When circumstances make the execution of the delivery impossible – in particular in all cases of force majeure such as strikes, lock-out, accident, bad weather, blockade, importation or exportation bans, suspension of production or delivery by the manufacturer, etc. -, SWIVT TECHNOLOGIES reserves the right to deliver products equivalent to those stated in the order or to cancel his obligations to the Client, all without compensation. Unless otherwise agreed in writing, the expenses for delivery, removal and return of the Hardware installed are to be borne by the User.
If the physical installation of the Hardware (e.g. in vehicles) is carried out by a SWIVT TECHNOLOGIES independent service provider, the installation is provided at the User’s registered offices based on prior mutual agreement and during working days and hours. This will be arranged in collaboration with the User within 10 working days following receipt of the down payment. Installation of the Hardware infers transfer of risks.
If the delivered and/or installed Hardware is damaged or incomplete, in case of error or any other lack of compliance, the Client may only refuse the Hardware or not accept it, by means of written reservation. Any claim relating to the Hardware delivered must be sent to SWIVT TECHNOLOGIES or, if the contract is taken out with a Reseller, to the latter, in writing within ten working days following receipt of the Hardware, making reference to the reference on the consignment note. Once this time has elapsed, the Hardware will be deemed as finally accepted by the Client and no claim will be taken into consideration. No return of products will be accepted without the prior written agreement of SWIVT TECHNOLOGIES or the Reseller concerned. Only products in good condition can be returned.
Excepting terms to the contrary, the guarantee relating to the Hardware sold is limited to that granted by the Manufacturer, well known by the Client or on which the Client is presumed to be completely informed prior to concluding the Contract, and, if applicable, to the guarantee extension program concluded by special agreement. The guarantee is performed by SWIVT TECHNOLOGIES or, if the contract is taken out by the Reseller, directly by the latter.
Excepting provision to the contrary, any IOT device unit is guaranteed for a period of one year from the date it is first installed. The peripheral hardware (Dallas key reader, LCD, cables, etc.) is guaranteed for a period of six months as from the date it is first installed. The guarantee is limited in all cases to the repair or standard exchange of the defective products – the choice between repair and exchange being solely on SWIVT TECHNOLOGIES’s assessment -, with express exclusion of any general compensation whatsoever in regard to the client or third parties, excepting voluntary breach by SWIVT TECHNOLOGIES. The installation labour and travel expenses in regard to the interventions under guarantee for the unit are included. In relation to any peripheral hardware, installation labour, delivery expenses and, in case of travel, a lump-sum amount of HKD 50, will be invoiced to the User for any intervention under guarantee. Any repair or exchange will be carried out at the initial place of installation.
In particular, the guarantee does not cover the following cases:
(i) damages resulting from an accident, theft, vandalism, fire, lightning, ice, extreme cold, external heat or humidity, immersion or prolonged immobilisation of the Hardware that would not correspond to its normal use,
(ii) deficiency or breakdown of the hardware, software, telecom, electrical environment, etc.,
(iii) the Hardware being able to be connected to a vehicle’s electrical supply, modifications made to the installation’s environment, such as overvoltages due to recharging the vehicle’s battery, opening the unit, installing additional equipment in the vehicle (radio, CB, refrigerator, etc.), defect of a fuse, etc.,
(iv) maintenance of the Hardware, its normal wear or replacement of parts scheduled by the manufacturer and comparable to maintenance,
(v) the addition or connection of additional hardware or software not included in the Contract,
(vi) modification of the delivered products (e.g. opening the unit) carried out without SWIVT TECHNOLOGIES’s prior written agreement,
(vii) any damage resulting from power use, use or installation which does not comply with the manufacturers prescriptions,
(viii) an intentional act or negligence by the User or by a third party (e.g. Client’s member of staff),
(ix) breakdowns associated with consequence of a virus or any other pre-programmed device with a similar effect.
When no fault, anomaly or malfunction of the device could be detected or when the intervention occurs outside the guarantee, all the costs and intervention fees will be invoiced to the Client.
Granting the guarantee supposes that the products are used with due care and attention, according to the terms of the offer or under the normal conditions of use stated in the catalogues, manuals, etc. made available to the Client. In case of doubt, it is the User’s responsibility to provide evidence that the Hardware has been used with due care and attention in order to activate the guarantee. As of right, the guarantee is terminated should the initial installation or elements depending on it be modified by any person not approved by SWIVT TECHNOLOGIES.
SWIVT TECHNOLOGIES cannot be held liable for accessory damage associated with the installation and use of the Hardware (battery discharges, electrical interference, etc.). The SIM card (if any) cannot be removed from the IOT device unit and cannot be used in a terminal and/or a service other than those supplied by SWIVT TECHNOLOGIES, under penalty in particular of specific telephone rates and flat-rate penalties.
Any Hardware delivered remains the property of SWIVT TECHNOLOGIES until the total payment of the principal amount as well as costs and interest related thereto. While the above mentioned payment has not occurred in total, the Client is expressly prohibited from disposing of the Hardware delivered, and in particular from transferring its ownership, using it as collateral or allocating it to a security or lien of any sort. Insofar as required, the preceding clause is deemed to be reiterated prior to each delivery. Furthermore, the Client undertakes to advise SWIVT TECHNOLOGIES immediately by registered letter of any seizure carried out by a third party.
Purpose and duration
Any order for provision of Services with SWIVT TECHNOLOGIES only generates obligations of due care, with express exclusion of any obligation for result.
The duration of Services contracts is set in the special conditions. In the absence of notification notified by registered letter within the time limits stipulated in the special conditions or three months before the anticipated expiry, contracts concluded for a determined duration are tacitly renewed by periods of one year.
Any claim relating to the Services provided must be sent to SWIVT TECHNOLOGIES in writing within five working days of the date of the services. Once this time has elapsed, the services will be deemed as finally approved by the Client and no claim will any longer be taken into consideration.
The prices shown on the price lists and offers from SWIVT TECHNOLOGIES are purely indicative and can be modified at any time. In case of a price increase for the Hardware delivered or services given by a third party after concluding the contract, SWIVT TECHNOLOGIES has the right to pass on this increase, by registered letter, to the Client. This resulting increase will be deemed accepted by the Client five working days after sending the notification, excepting opposition to it by registered letter within the same time. Should the Client fail to agree, SWIVT TECHNOLOGIES has the right to unilaterally cancel the Contract, by registered letter and without compensation.
All prices are net, ex works from SWIVT TECHNOLOGIES’s registered office, excluding VAT, expenses and other taxes. The Hardware travels at the Client’s risk, even in the case of products sold or delivered free (i.e. franco).
All SWIVT TECHNOLOGIES invoices are payable in cash, net and without discount, at SWIVT TECHNOLOGIES’s registered office, subject to other payment terms detailed on a case by case basis in any invoice.
In the absence of payment of all or part of an invoice, the remaining amount due is increased as of right and without prior official notification by interest of 12% per year, any month started being due. Furthermore, any invoice unpaid when due will be increased as of right and without prior official notification by a flat-rate and irreducible compensation of 15% with a minimum of HKD 125. Lastly, failure to pay an invoice on its due date, protest of an unaccepted bank draft or any other fact which may involve the Client’s insolvency results in, as of right and without prior official notification, the acceleration of payment of all other open invoices. In addition, these situations give SWIVT TECHNOLOGIES the right to suspend all its obligations without prior official notice and to cancel all or part of the contracts in progress without any formality excepting a notification by registered letter and without compensation.
Any claim relating to an invoice must be sent by registered letter within five working days of its receipt, which is assumed to be carried out within three working days following the date shown on the invoice. Once this time has elapsed, no further claim will be Taken into consideration. A claim may in no case justify suspending payment. The right to cancellation under article 1794 of the Civil Code does not apply.
In the widest measure authorised by legal provisions in effect, and excepting cases of gross negligence or criminal intent, the entire liability of SWIVT TECHNOLOGIES and of its Resellers arising from this Contract is expressly limited to the price actually paid by the Client, if necessary calculated over a complete year. This limitation of liability, an essential condition in SWIVT TECHNOLOGIES’s commitment, applies irrespective of whether the acts or negligence are those of SWIVT TECHNOLOGIES or those of its subcontractors, irrespective of the applicable liability system including, but not limited to, contractual liability, tort liability, no-fault liability, product liability, hidden defect liability, etc.
Any Client undertakes to guarantee and compensate SWIVT TECHNOLOGIES, its representatives, employees, partners, and/or any third parties, against any damage, claim or demand from third parties following use of the Software, Hardware and/or Services. This guarantee covers compensation that would possibly be due as well as legal expenses up to a reasonable extent.
For the entire duration of any contract and for a period of six months following its termination, the Client is prohibited from (attempting to) employing directly or indirectly a SWIVT TECHNOLOGIES staff member, under penalty of an irreducible compensation of HKD 30,000 per staff member concerned, without prejudice to compensation for a greater prejudice if applicable.
The fact that one party has not invoked a specific right or temporarily has not invoked a right does not imply renouncing this right.
The invalidity of any clause or part of a clause in these conditions will not affect the other clauses or parts of clauses and the clause or part of a clause concerned will as far as possible be replaced by a valid provision of equivalent economic effect.
The appendices attached to this Contract are an integral part of it. The English version is purely indicative. The French version of the Contract prevails
This Contract, and any dispute related to this contract and/or the use of the Software or other, is subject exclusively to Hong Kong law. Any dispute arising from this Contract will be heard in the courts of the Brussels district, Hong Kong, who have exclusive jurisdiction to hear these disputes.