General terms and conditions of delivery Tracefy B.V.
Registered at the Chamber of Commerce in The Hague under number 66322642 with VAT number NL856494045B01
Last updated and effective as of 03-2024
1. General
1.1 These General Conditions apply to Products and/or Services provided by Tracefy B.V. ("Tracefy") to the Customer, as well as to all offers and agreements to which these General Conditions are declared applicable.
1.2 In case of conflict between the General Conditions and Tracefy's agreement and/or order confirmation, the agreement and/or order confirmation shall prevail.
1.3 These General Conditions do not cover Products and/or Services which are not offered and provided by Tracefy, but by a third party, such as for example a reseller, in which case the (purchase) agreement is entered into with the latter and not with Tracefy.
1.4 The applicability of any general terms and conditions of the Customer shall be
hereby expressly disclaimed.
2. Id.
Tracefy B.V.
Treubstraat 27
2288 EH Rijswijk
Chamber of Commerce number: 66322642
BTW-identificatienummer: NL856494045B01
Website: www.tracefy.com
3. Definitions
Terms and conditions: these general terms and conditions, including any annexes.
Consumer: Consumer: the Customer, being a natural person, not acting in the exercise of a profession or business.
Services: Services: the connectivity and tracking services offered by Tracefy at any time via the website, app, or otherwise, the provision of installation work, as well as the provision of other services, as well as (for companies, among others) the development of a white label app, the provision of fleet management services app and web portal, and other services.
End-user: the natural person or legal entity using Tracefy's Products and/or Services.
Customer: Customer: the natural or legal person who enters into a legal relationship with Tracefy.
Product: Product: the physical product delivered or to be delivered by Tracefy to the Customer, including the hardware / GPS Tracker equipped with (among other things) various (location) sensors.
Unauthorised Use: This includes the use of Products on
improperly or incorrectly; injudicious or incorrect manner; circumventing or removing technical safeguards or restrictions on use of the Products and/or Services; the use of components or other products not suitable for the power of the Products; the charging (or attempts to charge) of vehicles or other items unsuitable or defective for that purpose; the use of a Product or other item other than as stated in Tracefy's (safety) instructions, the (safety) instructions or the applicable statutory (safety and other) regulations as well as any damaging acts or omissions by the Customer or End User, including but not limited to copying, modifying, merging, supplementing, reverse-engineering, reverse-assembling, decompiling, disassembling or gaining unauthorised access to the Products, or using the Products in such a way that the performance of the Products and/or other systems used by Tracefy is degraded, disrupted or impaired.
4. Applicability
4.1 These General Terms and Conditions apply to all offers, quotations, agreements, deliveries and other activities carried out by or on behalf of Tracefy.
4.2 These General Conditions also apply to all agreements for the execution of which Tracefy engages third parties.
5: Offer and acceptance
5.1 All offers by Tracefy are without obligation, and may be revoked by Tracefy at any time prior to the conclusion of the agreement.
5.2 All offers lose their validity 14 days after being announced to the Customer, unless otherwise indicated. Tracefy is only bound to an offer if its acceptance is confirmed by the Customer in writing (by letter or e-mail message) within 14 days. If the acceptance takes place after 14 days, Tracefy is entitled to adjust the execution period or amounts. The prices in the mentioned offers (and quotations) are exclusive of VAT, unless otherwise indicated.
5.3 All specifications provided by Tracefy in terms of quantities, options and prices have been prepared with great care. Tracefy cannot exclude possible deviations and therefore gives no warranty in this respect.
5.4 Verbal commitments or agreements by its employees do not bind Tracefy. Tracefy is also not bound by offers that contain an obvious error, such as an incorrect price or other incorrect description.
6: Commencement of the agreement
An agreement is concluded on the day the Customer has confirmed Tracefy's offer or when a first order is placed. For consumers, this is from the moment the subscription is activated in the Tracefy app. For offers, agreement must be reached within 14 days after the offer is made. Should this period be exceeded, Tracefy is entitled to adjust amounts or execution period.
7. Delivery
7.1. Products are delivered Ex Works, unless otherwise agreed in writing. Shipment, transport, export and import of products shall always be for the account and risk of the Customer, unless otherwise agreed. Tracefy is only obliged to take out (transport) insurance if and as far as Tracefy has committed itself to this in writing.
7.2. The delivery dates, delivery periods and delivery times stated or confirmed by Tracefy are only approximate and shall never be regarded as deadlines. Tracefy is not liable for any damage caused by a delivery taking place within a reasonable period before or after the specified delivery date. In all cases where an express term is agreed, Tracefy shall only be in default if the Customer gives Tracefy written notice of default giving it sufficient opportunity to still perform.
7.3. The Customer shall provide all co-operation to Tracefy which can reasonably be expected from her in/for the delivery of the products and/or services. If before or after the conclusion of the Agreement it appears that the delivery of the Service or Product is not or not entirely possible, Tracefy is entitled to set additional conditions which the Customer must meet before Tracefy is obliged to deliver the Service or Product. If these conditions are not met then the Customer cannot claim delivery of the Service or Product, in which case Tracefy is not obliged to compensate any damage.
7.4 The Customer shall inform Tracefy in writing if no delivery has taken place and shall grant Tracefy a period of thirty (30) days to still deliver.
7.5. If Tracefy does not deliver within an explicit deadline, the Customer shall have the sole and exclusive remedy of rescinding the agreement for the part that relates to the undelivered Service or Product. Claims for damages due to non-performance of obligations by Tracefy or due to delay are excluded.
7.6. If the Customer fails to take delivery of the ordered Products, Tracefy may deliver the Products on consignment at the Customer's expense.7.7 If Tracefy's production is limited due to any cause, Tracefy has the right to divide the available production and Products among its Customers at its sole discretion, and this may result in fewer Products being delivered to the Customer than agreed.
7.8. Customer is responsible for obtaining any required governmental licences, including, but not limited to, export, import licences or exemptions applicable to the supply of the Products and Services.
8. Additional work
8.1 Tracefy works on the basis of a fixed pre-agreed fee or price agreement. Changes to the project proposal or quotation at the request of the Customer and after the price has been determined may result in Tracefy adjusting the price. Tracefy reserves at all times the right to make changes and/or corrections or not.
8.2: Tracefy is entitled to charge for additional additions, hardware, tests, discussions and/or performances that take place at the request of the client.
9. Implementation
9.1: Tracefy shall perform the Agreement to the best of its knowledge and ability. Tracefy cannot guarantee that results desired by Customer will be achieved. Tracefy does not give any warranty on its products and (or) services (i.e. also no warranty on any defects to the e-bike system that may have been caused by Tracefy's GPS Tracker and other hardware).
9.2: Tracefy has the right to outsource certain services to external parties.
9.3: The Customer is obliged to timely provide Tracefy with all data necessary for the execution of the agreement. The necessity of data is expressed by a request from Tracefy to the Customer to provide this data or by the nature of the data which the Customer should reasonably understand to be necessary for the execution of the Agreement. The Customer is responsible for the correctness and completeness of the data provided. In case the Customer cannot timely dispose of the required data, Tracefy reserves the right to temporarily or permanently terminate the execution of the agreement. Delay caused by non-timely delivery of data by Customer shall entail costs which will be invoiced to Customer according to Tracefy's usual rates.
9.4 Customer ensures that the material disclosed does not violate Dutch laws and regulations and the Dutch Advertising Code and does not infringe on third-party rights. The data, texts and images provided by the Customer must respect intellectual property rights. Tracefy may refuse or terminate the agreement if, in Tracefy's opinion, the material does not meet these requirements.
9.5 If it is agreed that the agreement will be executed in phases, Tracefy may suspend the execution of those parts belonging to a subsequent phase until the Customer has approved in writing the results of the preceding phase and has paid the corresponding invoices.
10. Retention of title
10.1 All delivered or to be delivered products remain the property of Tracefy until all claims Tracefy has against the Customer (including any (collection) costs and interest) are paid in full.
10.2 Prior to said transfer of ownership, the Customer is not authorised to sell, deliver or otherwise dispose of the Products or encumber them with security rights other than in accordance with its normal business and the normal purpose of the Products.
10.3 Tracefy has the right to take back the Products delivered under retention of title which are still in the Customer's possession, if the Customer does not ensure timely payment of the invoices or has or threatens to have payment difficulties. The Customer shall at all times grant Tracefy free access to its Products for inspection thereof and/or for exercising Tracefy's rights.
11. Non-compliance
11.1 The Customer, other than the Consumer, is obliged to accept a delivered Product upon receipt
immediately. If a delivered Product is found to be wrong, defective or incomplete, the Customer must (before proceeding to return it to Tracefy) report these defects immediately, in any case no later than 48 hours after receipt, via support@tracefy.com under penalty of forfeiting the claim of non-conformity and associated rights.
11.2 The Product must be returned in its original packaging (including
accessories and associated documentation) and in new condition, and to the relevant
address provided by Tracefy to the Customer.
11.3 Commissioning or abandonment, damage and/or resale of the Product results in the
lapse of the claim of non-conformity and associated rights.11.4 If the Customer's complaint is found founded by Tracefy, Tracefy will at its discretion, to the exclusion of any right of the Customer, either replace the delivered goods free of charge, or repair them free of charge or refund (part of) the purchase price paid by the Customer.
11.5 Tracefy is not liable on grounds of non-conformity in any case if in Tracefy's reasonable opinion:
a. the Customer is in default towards Tracefy,
b. the Customer has installed, repaired and/or modified the Product himself or by third parties
has had installed, repaired and/or processed,
c. the Product has been exposed to abnormal conditions or otherwise carelessly
has been treated or handled in violation of Tracefy's instructions and/or instructions for use on the packaging, or
d. the defectiveness of the Product is wholly or partly due to (new)
regulations imposed by the government regarding the nature or quality of
the materials used.
11.6 The foregoing only applies to Products purchased by the Customer directly from Tracefy (and therefore not from third parties, such as resellers).
12. Products and Services
12.1 The Customer must handle the Products and Services with due care and diligence, handling them in accordance with the safety instructions or other instructions given
by Tracefy and refrain from any unauthorised use thereof.
12.2 The Customer and/or End User must ensure that any
peripherals (including mobile phones and computers) and connections
are adequately protected when using the Products and Services, for example against
viruses and against unauthorised use by third parties.
12.3 If the Services operate using necessary (public or non-public)
communications infrastructure, networks, software, including but not limited to (mobile)
internet connections, Tracefy makes no warranty and is not liable for
damages resulting from breakdowns and/or failures in the communication infrastructure.
13. Subscriptions
13.1 When buying or reselling a GPS Tracker, the Customer is obliged to take out (or have taken out) a Subscription.
13.1.2 When purchasing the Tracefy Solo LoRa tracker, the Customer is obliged to take out a Subscription for three years. After three years, the subscription ends and the tracker must be replaced due to the internal battery that lasts 3 years.
13.1.3 In case of theft or cancellation of the services, Tracefy will not give a refund on the outstanding period.
13.2 Tracefy is entitled to terminate the Subscription with immediate effect:
a. if the direct debit cannot be successfully executed several times or in case of non-compliance with any payment obligation; or
b. in the event of bankruptcy, suspension of payments, debt restructuring or receivership of the Customer; or
c. if the Customer or the End User has caused damage to a GPS Tracker or Solo LoRa tracker.
d. The subscription must be activated within 1 month of purchasing the GPS tracker or Solo LoRa tracker. If the subscription is concluded after this period, Tracefy is not obliged to track the bicycle.
13.3 In the case of the Tracefy Solo LoRa tracker, the subscription entitles you to one-time use of the tracking mode and tracking service during the term. After this, the tracker needs to be replaced and subscription reinstated. This is because the internal battery is consumed after 1 action and a new detection action cannot be guaranteed.
14. Amendment
14.1 Should it become apparent during the execution of the agreement that, for the sake of the quality of the result, it is necessary to change or supplement the work to be performed, the parties shall promptly and in consultation adapt the agreement accordingly.
14.2 If the parties agree that the Agreement is amended or supplemented, there is a possibility that this may extend the implementation period, thereby delaying the project. Contractor will inform Principal as soon as possible.
14.3 If the amendments or additions to the Agreement have financial and/or qualitative consequences, Contractor is entitled to charge Principal the costs thereof. Contractor will inform Principal in advance.
14.4 An amendment or supplement to the Agreement may result in an adjustment of the previously agreed fee. Contractor will inform Client about the effects on this fee in case the changes are implemented.
15. Prices
15.1 All prices and cost estimates are exclusive of VAT unless otherwise stated.
15.2 If no fixed price is agreed, the price shall be determined on the basis of hours actually worked. The fee will then be calculated according to Tracefy's usual hourly rates applicable in the period in which the work is performed, unless a different hourly rate has been agreed.
15.3 For assignments running for more than three months, the work carried out or services rendered will be charged monthly, unless explicitly agreed otherwise in writing.
15.4 Prices are based, inter alia, on factors applicable at the time of the statement or realisation of the agreement or quotation, including wages, social and fiscal charges, levies, insurance premiums, etc. If changes of the relevant price-determining factors (such as raw materials, auxiliary materials, wages, other social costs, costs for energy and transport, taxes, currency exchange rate fluctuations) occur during the term of the agreement, Tracefy is entitled to (unilaterally) increase the prices.
15.5 For orders where it is agreed that Customer uses a Tracefy Product or Service via a subscription or licence, the use thereof will be charged monthly, unless explicitly agreed otherwise in writing.
16. Confidentiality
16.1 The parties shall be obliged to keep confidential all confidential information, concepts, formats or ideas which they have obtained from each other or from other sources in the context of the agreement, irrespective of whether it is of a written or oral nature and from whomever it originates. Information shall be considered confidential if this has been communicated by the other party or if it arises from the nature of the information. Concepts, formats and ideas shall be considered confidential at all times.
16.2 The Contractor may give the Client's name and logo, if any, as a reference and make it public in this way.
16.3 The (personal) data provided to the Contractor through the Contractor's site will be treated confidentially. These data will not be made available to third parties.
16.4 Principal hereby grants permission to Contractor to include his or her personal data in Contractor's register of persons required for its administration. This personal registration contains both account and traffic data and can only be accessed by Contractor and will not be disclosed to third parties, unless Contractor is obliged to do so by law or court order.
17. Exclusivity
18. Intellectual property rights and data
18.1 Customer agrees that all intellectual property rights (including copyright, trademark rights, database rights and patent rights) as contained in the Products and/or Services shall remain the property of Tracefy and/or its licensors. In the context of the provision of the Products and/or Services, Tracefy may use products, materials and methodologies provided by the Customer or data provided by the
contain, use or develop derived information, which then become part of the
property rights of Tracefy. The Customer must refrain from violating Tracefy's intellectual property and other rights.
18.2 All data provided by Tracefy, such as (digital) reports, concepts, data, checklists, advice, formats, designs, sketches, software, applications, etc., as well as all data generated in the context of the Services and/or Products provided by Tracefy (including all data generated in and with the GPS Trackers and software subscriptions (such as anonymous ride data)) are and remain the property of Tracefy.
18.3 The Customer undertakes not to modify, remove, or take into exploitation, apply and/or use in any other way the Tracefy data and the intellectual property rights belonging to Tracefy in any way, neither in modified nor in unmodified form, other than for any other purpose as described in the agreement.
18.4 Tracefy retains the right to use the knowledge and data obtained from its activities/Services and Products for other (commercial) purposes, if no confidential information of the Customer is brought to the knowledge of third parties.
18.5 The Customer indemnifies Tracefy against all third party claims in the field of intellectual property rights relating to the publication and/or reproduction of the texts, images or other data provided to Tracefy by or on behalf of the Customer.
18.6 The Customer shall not itself and shall not allow or assist third parties to:
a. in any way reproduce or attempt to reproduce, modify, duplicate, reverse engineer, deassemble and/or decompile the source code and/or software and/or software provided by or on behalf of Tracefy, the design of the Product or the composition of any (part of a) Product or the documentation, unless permitted by law, or
b. make any copy, adaptation, translation and/or similar and/or derivative work as that which is integrated into any Product or documentation for any purpose unless Tracefy has given prior written consent, or
c. Dividing the Product into (sub)parts intended to be made available or transferred to third parties.
18.7 After the termination of the Agreement for whatever reason, the Customer shall immediately return or destroy all Tracefy data at Tracefy's first request. The Customer is not permitted to make and/or retain copies of data.
18.8 Article 18 shall remain in force after termination (by cancellation or dissolution) of the agreement.
19: Privacy
19.1. In offering Products and Services, Tracefy processes certain data of the Customer and/or End User, including personal data. In processing personal data, Tracefy complies with applicable regulations, including the AVG. The way Tracefy handles personal data of the Customer and/or End User is described in the privacy policy, which can be found on the Tracefy website.
19.2. When using Tracefy's Products and/or Services, the Customer shall comply with the applicable regulations, including the AVG. Tracefy may under the AVG provide personal data provided by the Customer or End User to third parties in the context of the execution of an agreement. If the Customer itself is also the data controller of these personal data then the Customer is obliged to inform the data subject accordingly.
20: Contract duration and termination
20.1 An agreement is entered into for an indefinite period unless the parties have expressly agreed otherwise in writing (as in the agreement or otherwise stated in the order confirmation).
20.2 A fixed-term agreement cannot be terminated prematurely.
20.3 Tracefy can terminate all or part of the agreement without notice of default and without judicial intervention by written notice with immediate effect if the Customer is granted - whether temporarily or not - a moratorium, if bankruptcy is filed against the Customer or if its business is liquidated or terminated other than for the purpose of reconstruction or merger of companies, if the Customer loses free control over its assets for any reason or for an urgent reason containing circumstances of such a nature that Tracefy cannot reasonably be required to maintain the contract. Tracefy shall never be liable for any compensation due to this termination.
20.4 If, after an agreement has been concluded, the Customer wishes to cancel it, for whatever reason, if Tracefy agrees to this cancellation, the Customer shall be obliged to pay 75% of the order price (excluding VAT) as a cancellation fee to Tracefy, without prejudice to Tracefy's right to full compensation for damages, including lost profits.
21. Payment/billing
21.1 Payment shall take place within 14 days after the invoice date, in a manner to be specified by Tracefy in the currency in which was invoiced, without any discount or deduction. The Customer is not entitled to set-off, compensation or suspension. The value day indicated on Tracefy's bank/giro statements is decisive and is therefore considered the payment day.
21.2 Connectivity and management agreements as well as other subscriptions are invoiced in advance per month or per year as agreed.
21.3 Maintenance contracts and licences are invoiced in advance, per month or per year.
21.4 After the expiry of the fatal payment term of 14 days from the invoice date, the Customer shall be in default without any further summons being necessary; the Customer shall owe interest of 1% per month on the amount due from the moment of default, unless the legal interest rate is higher in which case the legal interest rate shall apply.
21.5 In case of liquidation, bankruptcy or suspension of payments, Tracefy's claims and the Customer's obligations towards Tracefy will be immediately due and payable.
21.6 If a written protest is not made within 5 days of the date of the invoice, the amount specified on the invoice will have been approved by the Customer.
21.7 If the Customer is in default or breach of one or more of his obligations, all reasonable costs for obtaining satisfaction in or out of court shall be for the account of the Customer. Tracefy is entitled to charge extrajudicial collection costs in the amount of 15% of the outstanding amount, with a minimum of € 250 excluding VAT, without prejudice to its right to claim the full collection costs from the Customer.
21.8 The Customer waives its power of suspension (which includes the exercise of any right of retention). The Customer is not entitled to withhold or reduce payments or to set off existing and/or future claims against any outstanding amounts due to Tracefy.
22. Liability
22.1 Tracefy's liability for indirect damage (including consequential damage, loss of profit, missed savings, reduced goodwill, damage due to business stagnation, reputation damage, damage of third parties, impairment or loss of data, goods, materials or software of third parties) is explicitly excluded in all cases.
22.2 Tracefy shall never be liable for damage suffered by the Customer caused by: a) errors in Services, activities, advice, materials, automated files provided by Tracefy; b) defective products of Tracefy; c) the non-availability and/or late availability on the part of the Customer of the data to be provided by Tracefy and its reports and data;
d) photos, texts, images or other data provided by or on behalf of the Customer or unauthorised use thereof by the Customer; e) breakdowns in the electronic services of Tracefy and third parties, such as providers, network operators or other telecommunications networks and a failure in the performance by Tracefy's suppliers; f) a faulty and/or slow and/or non-functioning and/or technically faulty internet connection of the Customer; g) violation by the Customer of its obligations, warranties or representations stated in the agreement or these General Terms and Conditions.
22.3 Subject to the provisions of the previous paragraph, in the event Tracefy is obliged to pay compensation for direct damage, this compensation is at all times limited to an amount of € 1,000 (one thousand EURO) per event, whereby a series of related events is regarded as one event.
22.4 Any claims for compensation by the Customer must be made no later than 10 working days after the day on which the Customer found the damage or shortcoming or
21.5 Any advice provided by Tracefy is given to the best of its knowledge. Any liability for advice given by Tracefy is expressly excluded. Advice provided never releases the Customer from the obligation to conduct his own research into the suitability of the goods to be delivered and/or services to be performed for the intended purpose.
22.5 Tracefy is never liable for damaging acts or omissions of the Customer or the End User, including changing or making changes (or having changes made) to the software developed or hardware delivered by Tracefy.
22.6 Tracefy shall never be liable for damage which is, or which is partly, caused by Unauthorised Use by or on behalf of the Customer or the End User or for damage which is partly caused because the Customer does not comply with the applicable safety instructions, or any other regulation for the Products.
22.7 When the Customer enters into an agreement with Tracefy and the Customer makes the Products and/or Services available in any way to third parties, including End Users, the Customer indemnifies Tracefy on first request to do so from any liability for damages, claims and demands arising from the relationship between the Customer and a third party, including an End User.
22.8 Tracefy is in no way liable for damages resulting from any act or omission of the Customer in violation of (a) provision(s) of these General Conditions. The Customer is liable to Tracefy for damages resulting from acts and/or omissions in violation of legal and/or contractual provisions, including these General Conditions.
22.9 As far as legally possible, Tracefy is not liable for damage caused by its employees and/or third parties it engages to the Customer or to third parties. The limitation of liability in this Article also applies with regard to third parties which Tracefy engages for the purpose of executing the Agreement, as well as with regard to persons for whom Tracefy is liable.
22.10 The limitations mentioned in this article lapse if and as far as the damage is the result of intent or gross negligence by Tracefy. However, Tracefy is not liable for damage caused by intent or deliberate recklessness of non-managerial personnel and third parties engaged by Tracefy.
22.11 Article 22 shall remain in force after termination (by cancellation or dissolution) of the agreement.
22.12 If Customer or end user has a tracking subscription, we will search for a maximum of 48 hours after reporting theft. We give no guarantee that we will find the bicycle. After 48 hours, we stop searching.
23. Force majeure
23.1 Tracefy is not liable in case of force majeure and is not obliged to fulfil any obligation in case of force majeure. In these General Terms and Conditions, force majeure means, in addition to what is understood by law and jurisprudence, all external causes, foreseen or unforeseen, which Tracefy cannot influence, but which prevent Tracefy from fulfilling its obligations. Force majeure includes in any case: delays at or failure to perform by suppliers and/or other third parties engaged by Tracefy, internet failures, electricity failures, e-mail traffic failures and failures or changes in technology provided by third parties, transport difficulties, strikes, government measures, delays in supply, negligence by manufacturers as well as by auxiliaries, sickness of personnel, and failures of auxiliary or transport means, or any other circumstance preventing the performance or execution of the agreement.
23.2 In the event of force majeure, Tracefy is entitled to dissolve the agreement (in full or in part) or to suspend its activities, without being obliged to pay any compensation to the Customer or End User.
23.3 If Tracefy has partially fulfilled its obligations when the force majeure occurs, it is entitled to separately invoice the part already executed or executable and the Customer is obliged to pay this invoice as if it were a separate agreement.
24. Transfer, amendments and supplements to the agreement
24.1 Neither party shall be entitled to transfer the rights and obligations under the agreement without the written consent of the other party. Changes and additions to this agreement shall only be valid if agreed in writing between the parties.
24.2 To the extent permitted by law, Tracefy is at all times entitled to change the
content of the Services, the rates as well as these General Conditions unilaterally
amend. Amendments will enter into force on the date of their publication on the website or the
portal, unless otherwise indicated, and do the General Terms and Conditions applicable up to that time
and/or rates expire. Amendments to the General Terms and Conditions also apply in respect of
current agreements. Only if the Customer is entitled to do so under mandatory law, the Customer may terminate the agreement subject to 30 days' notice if he does not wish to accept a change that applies to him, unless the change is only a minor one to the General Terms and Conditions.
25. Suspension
25.1 To the extent permitted by law, Tracefy is at all times entitled to suspend or interrupt its obligation with regard to the Product and/or Services if the Customer fails to meet its obligations. Any resumption of fulfilment by Tracefy shall only take place after the Customer has fulfilled its obligations in full, including payment of any additional costs incurred by Tracefy.
25.2 Suspension or cessation of service and/or disabling of a
Product does not release the Customer from his obligation to pay the outstanding invoice(s)
To Tracefy.
25.3. In case Tracefy uses its right of suspension, no right to compensation or refund arises for Customer.
25.4. To the extent legally possible and unless expressly agreed otherwise, any right of suspension and/or set-off and/or any right of retention by the Customer is excluded.
26. Development of software and applications
26.1 If specifications or a design of the software and applications to be developed were not already made available to Tracefy when the agreement was concluded, the parties shall in consultation specify in writing which software will be developed and in what manner this will be done. Tracefy will execute the development of the software with care on the basis of the data to be provided by the Customer, for the accuracy, completeness and consistency for which the Customer vouches. If the parties have agreed on the use of a development method that is characterised by the fact that the design and/or development of parts of the software is subject to a further prioritisation to be determined during the execution of the agreement, this prioritisation shall always be established in consultation between the parties.
26.2 Tracefy is entitled, but not obliged, to examine the accuracy, completeness or consistency of the data, specifications or designs made available to it and, if any imperfections are found, to suspend the agreed work until the Customer has removed the imperfections in question.
26.3 The Customer shall only be entitled to use the software in its own company or organisation. Only if and insofar as expressly agreed in writing, the source code of the software and the technical documentation produced in developing the software can be made available to the Customer, in which case the Customer shall be entitled to make changes to this software. If Tracefy is legally obliged to make the source code and/or technical documentation available to the Customer, Tracefy may demand reasonable compensation for this.
26.4 The right of use of applications and software is not transferable. The Customer is not allowed to sell, lease, sub-licence, alienate or grant limited rights to the software and carriers on which it is recorded, or to make the software available to a third party in any way or for any purpose whatsoever, to give a third party remote or non-remote access to the software or to place the software with a third party for hosting, not even if the third party in question only uses the software for the benefit of the Customer. The Customer shall not modify the software other than in the context of fixing errors. The Customer shall not use the software as part of the processing of data for the benefit of third parties ('time-sharing'). The source code of the software and the technical documentation produced during the development of the software shall not be made available to the Customer, not even if the Customer is prepared to pay financial compensation for making them available. The Customer acknowledges that the source code is confidential in nature and contains Tracefy's trade secrets.
26.5 Tracefy is not liable for any inaccuracies and/or imperfections in the security of the data being stored.
27. Hardware
27.1 Tracefy provides the hardware, advice and associated specifications that enable Customer to make its vehicles suitable for installation of the hardware unless otherwise expressly agreed in writing.
27.2 Customer will itself assemble the hardware at the production site and make it ready for use in the vehicle.
27.3 Warranty. Tracefy guarantees hardware for one year from the date of invoice.
If the hardware module does not work, Customer will be sent a new one within one year from the invoice date of the module. Tracefy will deliver replacement hardware to Customer within four works after written notification of defect. Customer takes care of the replacement of the module himself and is obliged to return the non-working module to Tracefy within four weeks after receipt of the replacement module.
27.4 Tracefy does not guarantee a 100% accuracy of the hardware; there can always be a deviation in it due to interference factors.
27.5 The Tracefy Solo LoRa tracker may not be resold. When selling the vehicle, the hardware must always be replaced or deactivated. This is in connection with the warranty and Kiwa certification.
27.6 Tracefy hardware must always be installed according to Tracefy's installation instructions. Tracefy is not responsible for the consequences if these instructions are not followed accurately.
28. Applicable law
28.1 All agreements and General Conditions are governed by Dutch law.
28.2 Any disputes related and/or arising therefrom shall be submitted to the competent court in The Hague.
29. Location of these General Terms and Conditions
29.1 These General Terms and Conditions can also be found and downloaded via the Tracefy B.V. website : https://tracefy.com/nl/algemene-voorwaarden/
