- These Terms & Conditions apply to all offers, quotations, order confirmations and agreements between Mapiq B.V. (hereinafter: “Mapiq”) and its client (hereinafter: “the Client”) and together referred to as “Parties”, regarding the Mapiq products (hardware) and services (installation, implementation, software subscription and customer support).
- These Terms & Conditions also apply if Mapiq makes use of third parties.
- Any deviating conditions apply only if they have been recorded in writing.
- The Terms & Conditions of the Client are rejected and not applicable.
2. Offers, prices, concluded agreements
- All offers and quotations of Mapiq are without obligation and apply for a maximum of 30 days, unless otherwise agreed in writing.
- All prices are in euros, VAT and any other charges if applicable.
- If, after the first full year of the agreement has passed, the date of December the 31st passes Mapiq is entitled to index the agreed fees. Indexing takes place based on the CBS Service Price Index from January of the new year compared to January of the previous year.
- Mapiq cannot be held to its offers if the Client in all fairness realizes that the quotations contain an obvious mistake or error.
- An agreement with Mapiq comes into effect as soon as Mapiq has confirmed the order given in writing or as soon as Mapiq has started to implement the order given.
3. Delivery and transfer of risk of hardware
- Unless otherwise specifically agreed, delivery of the products is DAP (delivery at place). The purchased products are transported at the account and risk of Mapiq who will ensure adequate insurance. Mapiq is responsible for delivering the products up until the moment of unloading from the arriving conveyance at the agreed place. The risk transfers from Mapiq to the Client when the products are available for unloading. Therefore, unloading is at the Clients risk. The Client is responsible for import clearance and any applicable local taxes or import duties.
- If the Client declines to accept the shipment and/or delivery or is negligent in providing information or instructions necessary for the delivery, Mapiq is entitled to store the products at the expense and risk of the Client.
4. Performance of the agreement
- (Delivery) terms of Mapiq are indicative.
- If the Client wishes to (partly) move up the performance date of the agreement (i.e. delivery of the products and/or the services) after Parties agreed on the delivery date, the costs as a result of the performance date change will be fully borne by the Client.
- Mapiq is authorized to engage third parties in the performance of the agreement on behalf of the Client.
5. Term and extension
- The agreement will commence on the date of signing for a period of three (3) years, unless agreed otherwise in writing and unless terminated earlier in accordance with any other provision of the agreement or by operation of law. The term of the contract shall be tacitly extended with the same period of time originally agreed, unless Mapiq or the Client terminates the contract in writing with due observance of a notice period of six months prior to the end of the current term
- After the extension period the agreement will turn into a continuing performance agreement. If a Party wishes to terminate the continuing performance agreement, he must do so in writing and he must take a reasonable and fair notice period of six (6) months into consideration.
- If parties make use of a Statement of Work that Statement of Work (unless otherwise terminated in accordance with the agreement) should be fulfilled for the full period contemplated by that Statement of Work, even if the agreement expires or is otherwise terminated.
6. Invoicing and payment
- The hardware will be invoiced as follows: 100% directly after the order date by the Client.
- The subscription fee will be invoiced as follows: in advance per year from the date of the acceptance of the purchase order by Mapiq onwards and subsequently 30 days prior to the new contract year.
- The implementation will be invoiced as follows: 50% at delivery view model (3D model of the building, without connections with client’s ICT systems and/or systems of external vendors) and the other 50% after acceptance by Client.
- The terms of payment are 30 days after date of invoice, unless agreed otherwise in writing.
- An appeal by the Client for adjustment, suspension or deduction is not permitted.
- After expiry of the payment term, the Client is legally in default. From that point on, the amount due is liable to the statutory commercial interest rate.
- All costs necessarily incurred by Mapiq to settle the claim in and out of court are at the Client’s expense. The extrajudicial costs are calculated in accordance with the Staffel extrajudicial collection costs, with a minimum of €150,-.
- Objections to invoices must be brought to the attention of Mapiq in writing within five working days of the invoice date. In the absence of a timely claim, the Client is deemed to agree to the invoice sent. A claim does not suspend the payment obligation.
- If, according to the contract concluded between the parties, the Client consists of several natural persons and/or legal entities, each of these natural persons and/or legal entities shall be jointly and severally liable towards Mapiq for performance of the contract.
7. Dissolution and suspension
- Either Party can, in addition to the legal provisions for dissolution, dissolve the agreement at any time and without further notice of default or judicial intervention and without liability for damages to the other Party,
- if the other Party is declared bankrupt;
- if suspension of payment is requested for the other Party;
- if the other Party ceases its business and/or its assets are sequestrated; or
- if the other Party otherwise loses the right to dispose of (a part of) its assets.
- Mapiq can, in addition to the legal provisions for dissolution, dissolve the agreement with the Customer at any time and without judicial intervention and without liability for damages to the Customer, if the Customer leaves its due and payable debts unpaid, but only after Mapiq has given a written notice with a final payment term of 14 days and the payable debts remain unpaid.
- If the Customer fails to fulfil one or more of its obligations (not being unpaid fees as stated in sub b of this article), or does so not on time or not fully, Mapiq is entitled to fully or partially suspend the fulfilment of the agreement or to fully or partially dissolve the agreement without further notice of default or judicial intervention and without being required to pay any compensation, all this without prejudice to the right of Mapiq to claim compensation.
- The Client is obliged to check the delivered products at the time of delivery.
- Complaints must be submitted in writing to Mapiq immediately after the moment the Client discovers them, but at the latest within a week following receipt of the products. Complaints concerning outwardly visible damage must be recorded by the Client on the receipt note.
- Non-visible defects must be reported to Mapiq in writing within the guarantee period as stipulated in these Terms & Conditions.
- If a complaint has not been reported to Mapiq within the aforementioned periods, no claim can be made.
- Complaints do not give the Client the right to defer payment of amounts owing.
- Mapiq can only deal with a complaint submitted in a timely fashion, after the Client has provided the information necessary to assess the complaint. The Client must give Mapiq the opportunity to verify the complaint. If the complaint proves justified, Mapiq must be given the time necessary to replace the delivered products free of charge against the return of the originally delivered products.
- Mapiq will endeavour to deliver in accordance with the agreed order. Variations in the agreed quantities, sizes, compositions, formatting and/or other indications of version do not give any right of non-acceptance of delivery, unless the variation is such that it is unacceptable.
9. Service Level Agreement
- In addition to these Terms & Conditions, specific requirements and response times with regard to the services are described in our Service Level Agreement (SLA).
- The SLA shall only be expressly agreed to in writing.
- The Client shall always inform Mapiq without delay about any circumstances that affect or that could affect the service level and the availability.
- The availability of software, systems and related services shall always be measured such that unavailability due to preventive, corrective or adaptive maintenance or other forms of service announced by Mapiq in advance and circumstances beyond Mapiq’s control are not taken into account. The availability measured by Mapiq shall count as conclusive evidence, subject to evidence to the contrary produced by the Client.
- Mapiq warrants that the hardware to be delivered meets the usual requirements and standards that could reasonably be set at the time of delivery and for which they are designed in normal use.
- The warranty period for the hardware is twelve (12) months after delivery to the Client.
- Mapiq has, after receiving back the hardware to investigate a reported defect by the Client, the right at its own choice, to replace the hardware, to repair the hardware or to reimburse the Client for payment made for the hardware in question, provided that the return of the hardware was done during the warranty period.
- Mapiq does not guarantee that the software made available and held in the context of the SaaS is free of errors and functions without interruption. Mapiq shall make efforts to fix the errors in the software within a reasonable term, as specified in the SLA.
- Parties will establish a procedure in mutual consultation with regard to conducting the acceptance test. The acceptance test concerns the Mapiq products and services mentioned in the agreement.
- In case Parties have not agreed on an acceptance test, the Client accepts the products and services in the state in which it is at the time of delivery, therefore with all visible and invisible defects. In the aforementioned situation, the products and services will be deemed to have been accepted by the Client upon delivery or, if the installation to be performed by Mapiq is agreed upon in writing, upon completion of the installation. Notwithstanding the absence of a mutually agreed acceptance test, the SLA and other warranties given by Mapiq are still applicable on the Mapiq products and services.
12. Intellectual property rights and license
- Unless otherwise provided, neither Party will gain by virtue of the agreement any rights, title or interest in or to the other Party’s intellectual property. For the purposes of the agreement, intellectual property shall be understood in the broadest sense, including copyright, neighboring rights, database rights, patents, utility models, design models, trademarks, trade names, trade secrets and know how. Mapiq grants the Client a non-exclusive license to use the Mapiq intellectual property rights solely for purposes of receiving the products and services.
- Without prejudice to the right of the Client to use the products and services no Party shall use, for other purposes than the execution of the agreement, the other Party’s trademark, trade name and logo without the prior written approval of the other Party.
- Each Party’s ownership of its own intellectual property shall survive any termination or expiration of the agreement and shall remain in full force and effect thereafter.
13. Liability and indemnity
- If Mapiq should be liable, then this liability is limited to what is arranged in this article.
- The liability of Mapiq is in all cases limited per incident to a maximum of the total invoice value of the twelve (12) months prior to the incident that has led to the liability and with a maximum of 100.000 euros in total per year.
- Mapiq excludes any liability for damages which are the result of inexpert use, or for the use of products for purposes for which they were not designed, or for any use of the products that could not be reasonably expected.
- Mapiq is not liable for indirect damages, including but not limited to consequential damages, trading loss, loss of production, turnover and/or loss of profits, lost savings, loss due to business interruption, depreciation, and costs that would have been involved in the execution of the object if the order had been carried out properly from the outset.
- Mapiq is authorized to engage third parties in the performance of the agreement and to accept any liability limitation of that third party on behalf of the Client.
- Mapiq is never liable for any damage that is caused by a third party engaged by Mapiq.
- Mapiq is not liable for damage of any kind, which is a result of incorrect and/or incomplete information as provided by or on behalf of the Client.
- The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence on the part of Mapiq.
- A claim for compensation must be submitted to Mapiq within one (1) month after the Client has discovered the damage or could reasonably have discovered it. Failing to submit a claim will result in the fact that the right to compensation will lapse.
14. Force majeure
- Deficiencies of Mapiq in the fulfilment of the agreement cannot be imputed to Mapiq if the deficiencies are not attributable to Mapiqs fault and do not come to its account either under the law, the agreement or under generally accepted understandings.
- Force majeure is in any case (but not limited to) understood to mean: non-delivery by the postal company, incomplete and/or delayed delivery by factory/importer, import and export bans, measures of Dutch and/or foreign governmental bodies that make performance of the agreement onerous and/or more expensive than was envisaged when concluding the agreement, walk-outs, traffic disruptions, loss or damage during transport, fire, theft, telecommunication failures/malfunctions in electronic messaging, the unexpected loss of third parties, business disruption, technical defects, transport problems, strike, the consequences of natural disasters, etc. All of this also applies where these difficulties occur with third parties engaged in the implementation of the agreement by Mapiq.
- Except to the extent set out in this clause or otherwise expressly permitted in the agreement, each Party shall treat the other Party’s data as confidential, use the other Party’s data solely for the specific purpose or purposes for which it was disclosed, take all action reasonably necessary to secure the other Party’s data against theft, loss or unauthorized disclosure and not publish or otherwise disclose to any person the other Party’s data without the owner’s prior written consent other than to:
- its affiliates and its respective directors, officers, employees and representatives who need to receive the data in connection with the agreement or the relevant Statement of Work;
- its professional advisors (including auditors) as necessary for the purposes of receiving professional advice (including audit services) in relation to the agreement and/or the relevant Statement of Work, who have agreed to be bound by a duty of confidentiality relating to the data at least as stringent as the obligations and covenants in this clause.
- Each Party may disclose Data which would otherwise be subject to this clause but only if it can demonstrate that:
- such disclosure is required by Law, or by order of a court of competent jurisdiction or pursuant to a binding order or direction or other formal written request of a tax or fiscal authority or other regulator; or
- the Data is already and lawfully in the receiving Party’s possession without an obligation restricting disclosure at the time of receipt from the disclosing Party; or
- the Data became part of the public domain, other than through a breach of this clause.
16. Retention of title
- The products delivered by Mapiq remain the property of Mapiq until the Client has or will have paid to Mapiq all monies that Mapiq claims from the Client, including interest and costs, and including any (damage) compensation.
- The Client is not entitled to pledge the products delivered by Mapiq or to encumber them in any other way.
- If third parties sequestrate the products delivered under retention of title or wish to claim or assert rights thereon, then the Client is obliged to inform Mapiq immediately.
- Mapiq may, within a reasonable period to be determined by Mapiq, require the Client to recall products that it has put on the market and which are defective or which are at risk of becoming defective (hereinafter: ‘recall action'). The Client is obliged to sell back and deliver to Mapiq the products that are the subject of the recall action at the price the Client was originally charged. All other costs associated with the recall action are for the Client’s account.
- The Client is obliged to implement a request from Mapiq to carry out a recall action without delay, failing which it is immediately in default and the costs related to the recall action and the damage resulting from the default will be fully for the account of the Client, regardless of who bears the risk of the recall action.
- In so far as personal data is used/processed for carrying out its activities, this personal data will be used and protected by Mapiq with a high degree of care in accordance with the General Data Protection Regulation.
- Mapiq will take appropriate technical and organizational measures to ensure the protection of personal data in the possession of, and used by, Mapiq. These technical and organizational measures will also serve to prevent loss or any other form of unlawful processing of personal data. In doing so, Mapiq will weigh the nature of the processing against the measures to be taken.
- The Mapiq Data Processing Terms are applicable on the agreement.
- For questions relating to the data processing, the Client can get in contact with Mapiq via email@example.com.
19. Applicable law and dispute settlement
- Dutch law is exclusively applicable to the legal relationship between Mapiq and the Client.
- Disputes will be adjudicated by the competent judge of the Court The Hague or on the request of the Customer by the competent judge of the Netherlands Commercial Court in Amsterdam.
20. Final provisions
- Mapiq has the right to change these Terms & Conditions without prior notice. In that event, the Client has the right to cancel orders that have already been placed, in so far as not (partially) executed, within 8 calendar days after this change.
- Cancellation or modification of an agreement by the Client is only possible following explicit written consent from Mapiq.
- If one or more of the provisions of these Terms & Conditions is invalid or inoperative, the remaining provisions will remain in force.
- The most recent version of these Terms & Conditions, as can be found on the website of Mapiq (www.mapiq.com), will apply.