“Buyer” means any company, individual or organisation that enters into negotiations, orders or contracts a Performance with SMT.
“Client” means the Buyer and any of its affiliates, assignees, employees, representatives, partners, clients or any later purchaser whose purpose is to benefit from a Performance.
“Contractual Documents” means, depending on the case, (i) the order form issued by the Buyer as accepted by SMT, (ii) the pro forma invoice (or the estimate or the sales offer) issued by SMT and which the Client agreed in writing, (iii) the Product sales contract or Performances contract duly signed by the Parties and/or (iv) any other document signed by a valid representative of SMT attesting to an agreement between SMT and the Buyer about a Performance (the Buyer committing to confirm this agreement at first request by SMT in the manner that would be required (if any) by the banking system and / or the authorities of Democratic Republic of Congo). To avoid any confusion, it is explicitly acknowledged that the content of SMT’s website (other than these General Terms and Conditions themselves published on it) is merely indicative and by no means binding on SMT.
“Performance” means any supply of Products and/or provision of Services by SMT.
“Product” means any piece of machinery, vehicle, machine, equipment, accessory, consumable, spare part, document, component, system, support element and/or any combination of any number of the preceding which are ordered by the Buyer and/or delivered by SMT and/or identified in any Contractual Document as being part of any (current or future) SMT supply.
“Service” means any service offered or provided by SMT (such as, for example, any set up, maintenance, repair, after-sales, technical training, rental, financing or formalities handling services).
“SMT” means Services Machinery & Trucks RDC (SMT RDC) SARL or any of its affiliates which would be substituted for it (or would also become involved by virtue of a Contractual Document) in the provision of a Performance.
- General Remarks
The Buyer acknowledges and accepts that SMT Performance are solely governed these General Terms and Conditions, save when (and as) expressly agreed otherwise in writing by SMT. The Buyer may not oppose SMT’s General Terms and Conditions with its own general purchase terms (unless same are countersigned by SMT).
Notwithstanding any possible presumption which might stem (as the case may be) from legislation or case law, it is hereby clarified insofar as relevant that SMT RDC shall never be held jointly liable with (nor shall its own actions or omissions jointly bind) any other commercial company, whether SMT Africa, any other affiliate of SMT Africa, any commercial company from the group of any manufacturer or supplier of SMT, any subcontractor of SMT nor any other legal entity.
- Offers – Orders
All SMT estimates, sales offers, and pro forma invoices are valid seven (7) days as of signature by SMT and expire automatically unless accepted unconditionally in writing within said time period.
A Performance is deemed definitively agreed on when both parties sign a Contractual Document. SMT only commits to delivering a Performance that conforms to the description in the relevant Contractual Document. Under no circumstances can SMT be held liable for either an error made in the order by the Buyer or for the optimal use the Client should, should not or intends to make of the item. All sales of Products are final and cannot be returned or exchanged. The Buyer acknowledges being a professional and therefore waives all rights to invoke legislated consumer protection rights when ordering from SMT.
The applicable price is the one shown in the Contractual Documents. Unless there is an explicit note to the contrary, the price only covers the sales value of the Product (or of the Service supplied). It does not include any taxes, logistics costs (e.g. for Product delivery), administrative costs linked to the registration and/or the first entry into service of Products or accommodation of technicians on secondment.
- Product Deliveries – Late Deliveries
No deliveries will be made until the Products are paid in full. Delivery will be made to the location indicated in the Contractual Documents or (by default) will be EXW – SMT premises (Incoterms 2010). In the event of a different interpretation of Incoterms by the Buyer and SMT, the publication “Incoterms 2010® by the International Chamber of Commerce – ICC Rules for the Use of Domestic and International Trade Terms” will serve as prevailing reference.
SMT reserves the right to choose the means of transportation of the Products to the place of delivery. SMT assumes no responsibility or obligation to provide advisory regarding the transportation means selected by the Buyer to take delivery of the Products. This choice is the sole responsibility of the Buyer.
Product delivery times are provided in good faith, but are estimates given for information only. A late delivery of less than six (6) months does not entitle the Buyer to cancel the sale, to refuse to take delivery of the Product or to claim compensation for late delivery, such a delivery period being jointly considered reasonable in the sense of Article 253, Para. 3 of the OHADA Uniform Act on General Commercial Law. Should the delivery period exceed six months, SMT will make a lump sum (all in) payment for full discharge equivalent to 2% of the sales price for every additional and complete month the delivery is delayed. This fixed compensation shall not, however, exceed 10% of the sales price.
The Client is required to take effective delivery of the Pro-ducts within seven (7) days of their availability by SMT, failing which the latter shall be entitled to invoice to the Buyer any costs associated with any late delivery (such as, for example, all costs of storage or safeguarding) and / or cancel the sale of the considered Products and redirect at its own discretion such Products to any other potential buyer.
- Ownership – Title to the Goods
SMT is entitled to physically withhold any Products as long as the Buyer has not paid SMT the amounts owed in full.
Even in the case of delivery prior to full payment, SMT remains the exclusive owner of the Products delivered until effective payment of the full price in principal, taxes, interest, compensation and fees by the Buyer. This retention of title does not prevent that the transfer of risk takes place in accordance with the used Incoterm. The Buyer must ensure that the goods are clearly identified at its premises as being the property of SMT until it has acquired full ownership. SMT will be entitled to register title retention to the goods with the Registre du Commerce et du Crédit Mobilier at the Buyer’s expense in application of Article 74 of the OHADA Uniform Act on Security Interests and to invoke its ownership right and recover the Products in question, with no specific formalities, in case the price is not paid in full. Buyer is obliged to cooperate at SMT’s first demand with the effective implementation and registration of the retention of title clause, especially by confirming the serial numbers of the Products to SMT. As long as he did not become owner himself, Buyer may not resell, encumber the Products with a guarantee or another right, nor give the Products in use to a third party. The Buyer will use the Products only in accordance with their destination and in all reasonability (“bonus pater familias”), and engages especially to maintain the Products in accordance with the standards of the manufacturer, in absence of which SMT has the right to do this maintenance at Buyer’s costs. Under no circumstances, Buyer can invoke administrative, road or other documents (like e.g. the grey card) to deny this retention of title. In case of non-respect of an obligation of Buyer in this paragraph, SMT is entitled to claim a lump sum of 10% of the amount due by Buyer to SMT, without prejudice to SMT’s other rights.
As long as he did not become owner himself, Buyer will subscribe an insurance with an appropriate insurance company in order to cover the Products against every risk of loss and/or damage. Buyer will designate SMT as the beneficiary of this insurance. At the first demand of SMT, Buyer will send proof of subscription of such insurance, and proof of payment of the premiums. In case of default, SMT may contract itself an insurance and pay the premiums, and Buyer will reimburse the amount of the paid premiums increased with 10%.
Unless there is an agreement to the contrary duly signed by a valid representative of SMT, all payments to SMT must in all circumstances be made by bank transfer onto the bank account indicated by SMT in its own Contractual Documents bearing a signature (no modification of such bank account details being valid if communicated to the Buyer by phone or by way of a simple e-mail for example, as a way to reduce the risk of potential fraud by third parties). All SMT invoices are payable in readily available funds and in the currency shown in its invoices. The Buyer is not entitled to offset any amounts payable to SMT for a Performance against other current or future outstanding amounts owed to it by SMT for any other reason. A down-payment of at least 20% of the sales price of each Product sold must be paid at order time, failing which SMT will retain the right to refuse the order in question.
Late payment interest will be automatically charged on all unpaid invoices and amounts. It will be calculated based on the key interest rate of the Central Bank of Democratic Republic of Congo plus 10%. Besides these late payment interests, every payment that was not done within 15 days after a notice of default addressed to the Buyer by registered mail with confirmation of receipt or every equivalent way, will be increased with a lump sum of 15% of the amount due, with a minimum of 65 USD and a maximum of 12.500 USD, without prejudice to the right of SMT to obtain compensation for any additional prejudice suffered as a result of the late payment.
- Warranties – Responsibilities – Non-Recruitment
SMT’s warranty obligations with respect to hidden Product defects are those provided by the manufacturer or SMT’s own supplier for the relevant Product. On the other hand, the Buyer acknowledges that accepting Product delivery (and/or taking physical possession) implies tacit and unconditional acceptance of all patent defects and therefore releases SMT from any liability in this respect.
The Buyer acknowledges that SMT is entitled (but not bound) to propose remediation of Products defects, it being agreed that the Buyer shall not have the right to claim back any portion of the sales price and that no compensation or financial indemnity will be due from SMT. The warranty provided by SMT is limited to repairing and/or replacing defective Products (when the conditions of the manufacturer’s warranty are met).
The Buyer is solely responsible for its own use of the Products. The warranty will be void if a defect results from an action or omission on the Client’s part.
Storage of the Products by the Buyer, in the Buyer’s premises or in any location designated by the Buyer, will be at the Buyer’s risk and peril and the latter shall be solely responsible for contracting insurance to cover the Products (whether or not such an insurance coverage is mandatory) against the risks of deterioration, fire, theft, vandalism and any other storage-related risks.
SMT shall in no case be liable to indemnify the Buyer for collateral damages, whether caused by late delivery, by lack of conformity or by any other cause for dissatisfaction related to a Performance, such as loss of profits, shortfall or loss of business opportunity and its potential liability for direct damages will in any case be capped at 25% of the remuneration effectively received by SMT for the relevant Performance.
SMT is not responsible for accidents related to the use of a Product, for personal injuries or for damages to goods other than the Product unless gross negligence or wilful misconduct on its part.
By contracting with SMT, the Client agrees not to (and sets forth that its own affiliates shall themselves not) recruit any current or former worker of SMT until the first anniversary of the termination of the considered Performance.
- Force Majeure
SMT cannot be held liable in the event of non-performance or deferred performance of any of its obligations (even after six (6) months) if the non-performance or delay is due to an event out of its control or to unforeseeable circumstances over which it has partial or no control. These include delays by the manufacturer, forwarding agents and/or carriers, wars, attacks, acts of terrorism, strikes, social conflicts, natural disasters, embargoes, raw materials or energy shortages, government fiat, floods, fires, explosions, pandemic, etc. In the event of the occurrence of this type of situation, SMT will be released of its contractual obligations and will be entitled to suspend, defer or reduce its Performances during the entire period of the above events or circumstances within the limits of their effects and without any obligation to seek supplies from alternative sources.
In the event that the situation should last longer than three months, SMT will be entitled to cancel the Performances in question without compensation. However, (1) the Buyer will be required to pay for all Performances already delivered before the events in question, and (2) SMT will be required to refund to the Buyer the portion of the price already paid for Performances that were not delivered, after deduction of all fees and expenses incurred by SMT.
- Changes in the Product Line
The technical specifications of the Products and the images as described in the Contractual Documents are provided for information only. SMT reserves the right to make modifications to the technical specifications, to adapt them, and to change them based on the manufacturer’s standards.
- Intellectual Property
With the exception of manufacturer logos, all logos, brands, photos and models appearing in SMT’s commercial documents, including its Internet site, are its sole property. The Buyer acknowledges that no transfer of intellectual property rights takes place when a Performance is provided. All rights remain the exclusive property of SMT. Any partial or full reproduction of the logos, brands, photos, or models, regardless of media, and for any purpose whatsoever, is forbidden without the approval of SMT or of the holders of any related rights.
The Buyer agrees not to communicate, divulge or use, either during or after the agreement period, any information, know-how or technical processes belonging to SMT to which they may have had access or learned about as part of their contractual relationship with SMT.
- Source of Funds – Money Laundering
The Buyer acknowledges that by ordering from SMT, they are tacitly stating that their funds were not obtained through money laundering, tax fraud, organised crime, corruption, any illicit traffic (such as, for example, the trafficking of drugs, arms or munitions, human beings or minerals) or terrorist activities.
- Corruption – Embargoes
SMT representatives are not authorised (except at end of year time and under strict rules) to give business gifts to the Client’s representatives. If, however, gifts were to be made (during the end-of-year season, in particular), they cannot in any way be perceived as being intended to encourage the Buyer to close a deal.
The Buyer acknowledges that SMT must comply with the prohibition against doing business with people or organisations listed in the resolutions of the UN, EU or other national and international institutions with the power to issue lists of personae not gratae. Should the Client appear on one of these lists, SMT is entitled to refuse to engage in business with same.
The Buyer expressly commits not to export, transport or resell any of the Products to or in a country which is subject to an international economic embargo. In addition, the Buyer certifies SMT that it has neither exercised any illegitimate influence on SMT employees, advisors or representatives nor corrupted third parties, whether private individuals or a public authority, in order to obtain any public procurement contract, close a deal or gain any advantage in the context of (and/or in connection with) any Performance whatsoever.
- Suspension and Breach of Performance
In the event of a serious doubt about the Buyer’s ability to fulfil any of its material Performance-related obligation, SMT reserves the right to suspend its own obligations until the Buyer’s satisfactory actions.
In the event that the Buyer effectively fails to fulfil any of its substantial contractual obligations, SMT is entitled to terminate the contract with immediate effect without referring the matter to a judge, without the obligation to repay the amounts already received, and without prejudice to its right to obtain legal compensation for any other prejudice suffered and without prejudice to its other rights.
The Buyer expressly waives its rights under Article 292 of the OHADA Uniform Act on General Commercial Law.
SMT reserves the right to suspend all or part of its Performances and, if required, to recover all delivered Products in the event of defaulted or late payment by the Buyer, if the Buyer is declared bankrupt, is liquidated, if its assets are seized in part or in full, in the event that the Buyer has not fulfilled any obligation resulting from article 6 or a prior relationship between the parties or should SMT discover that the Client has not complied with provisions 13 and/or 14 of these General Terms and Conditions.
- Nullity or Partial Applicability – Non renunciation
The potential inapplicability or nullity of one or several of the provisions of these General Terms and Conditions will not impact on the applicability or validity of the other provisions. In such a case, the parties agree to replace the invalid clause with a provision validly negotiated together which, insofar as possible, has the same economic impact as the inapplicable or null clause.
The fact that SMT does not demand of the Buyer to perform one of its obligations at a certain moment, does not affect in any way the right of SMT to demand this performance at another moment. The fact that SMT renounces to invoke a breach of Buyer of whatever obligation, does not imply the renunciation by SMT for any other breach of this same obligation, nor for any other obligation, nor for the concerned breached obligation.
The French version of these General Terms and Conditions will prevail over all translations which are always be provided for convenience only.
- Applicable Law – Arbitration
The relationship between SMT and the Client is governed by (1) these General Terms and Conditions and all other Contractual Documents, (2) by OHADA law and (3) subsidiary, by the legal provisions in effect in the country the Performance was provided in, with the express exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980.
Any dispute arising in the business relationship between the parties will be settled by arbitration, by a single arbitrator appointed, sitting and ruling in accordance with the provisions of the OHADA Treaty and the OHADA Uniform Act on the Right to Arbitration. However, SMT reserves the right to refer the case to the judicial courts of the jurisdiction in which it has its head office or in which the Buyer is established or in which the Products are physically located.
Annex 2 – FRAMEWORK AGREEMENT FOR THE PROVISION OF CONNECTED SERVICES
Customer (= Client) owns or uses certain machines (“Machine” or “Machines”) that are equipped with a Volvo Construction Equipment Telematics remote machine management system (“Telematics System”) and/or Co-Pilot. The Telematics System and Co-Pilot involve collection, storage and an interactive exchange of data over a communication network in order to monitor and manage certain functions of the Machines.
This Framework Agreement for the Provision of Connected Services (“Agreement”) sets out the terms and conditions according to which the data on the Machine is processed, and terms and conditions for certain services provided to Customer using such data (“Connected Services” or “Services”). The Services include but are not limited to Assist, CareTrack, Fuel Report, Health Report and Proactive Machine Monitoring, which may be added and changed from time to time. Specific conditions for certain Services can be set out separately in documents either specifically referred to herein or other documents. The Services will be provided if and to the extent (1) Customer subscribed for them in accordance with the process referred to in this Agreement, or in accordance with the registration process otherwise designated by Dealer (= SMT) for the specific Service, or (2) Services for which there is no charge are included in the relevant Machines specification.
Connected Services that are being subscribed or registered for or included in the Machine specification prior to execution of this Agreement will continue to be provided under the terms of this Agreement (for what is its subject).
Data protection and processing: Dealer will use Volvo Construction Equipment (“Volvo CE”) as a subcontractor to provide the Services. Volvo CE is established in Europe and is therefore subject to the General Data Protection Regulation (EU) 2016/679 (the “GDPR”). As a subcontractor to Dealer, Volvo CE will process Machine Data (as defined in clause 1.7 of Appendix 1 below) and other data made available to Dealer by Customer through its use of the Services. This data may be considered personal data within the meaning of the GDPR. When acting as a subcontractor to Dealer to provide the Services, Volvo CE will be considered a so called “processor” under the GDPR and may thus only process personal data in accordance with the instructions provided by the Dealer on behalf of the Customer. Thus, Customer hereby instructs Dealer to process the aforementioned data on Customer’s behalf in order to provide the Services and to provide the same instructions to Volvo CE.
Notwithstanding the above, each Dealer and Volvo CE shall have the right to process and use data (both personal data and other data) from Machines and the Services for its own purposes. To the extent such processing involves personal data, Volvo CE and Dealer (as applicable) will be considered a so called controller under the GDPR. Customer agrees to assist Volvo CE (and/or Dealer as applicable), if requested to do so, in the provision of information to or obtaining consents of the data subjects relating to the processing activities undertaken by Volvo CE as controller.
Customer consents to that Dealer and Volvo CE may use personal data collected under this Agreement for marketing of Dealer (Machines and Services). This consent given by Customer may be revoked at any time with effect for the future by terminating this Agreement as provided for herein.
By signing this Agreement or by downloading, accessing, installing or otherwise using the Services or the relevant internet based portals or Application Programming Interfaces, Customer acknowledges that Customer has read and understood this Agreement, has all necessary authorisations to enter into the Agreement and to enable Dealer, Volvo CE and Volvo Group companies to undertake the activities foreseen in this Agreement and agrees to be bound by its terms and conditions, as amended from time to time.
The following Appendices constitute an integrated part of this Agreement: Appendix 1 – Connected Services – General Terms and Conditions
Appendix 1 – Connected Services – General Terms and Conditions
- Collection, storage and exchange of the Data
1.1. In order to provide the Services, certain data (as described in this clause below) may be collected, stored and obtained through: (1) the Telematics System, (2) diagnostic tools, and (3) the Co-Pilot; and (4) Dealer, Customer or third parties:
The data concerned include, but are not limited to machine performance information, geo-positioning data, operating hours, speed, fuel level, fuel consumption, fault codes (errors) and alarms, machine type specific information (load weighing, working/idle times, hardware/software configuration, work modes etc.), as well as machine number and other identifying information. Some features of the Services may mix data from several third-party service providers.
1.2. The Telematics System is a Telematics based system developed by Volvo CE’s licensors. It consists of On-board gateway (“Telematics Hardware”), telecommunication networks and central back office system, and software as a service (SaaS) solutions offered by Dealer and run through Volvo Group companies as third party providers, which Customers can access via the relevant internet portals (“Interface”) or receive otherwise. The Telematics Hardware is either included in Machine or separately purchased by Customer. It collects, processes, monitors, analyses and sends certain data interactively over the communication network from the Machine to Dealer in order to further process the data. The Telematics Hardware communicates with certain generation(s) of telecommunication network. If such generation(s) of telecommunication network is no longer available to the Customer, it is Customer’s responsibility to update the Telematics Hardware in order to have the Services available. Customer shall bear the costs for such updates.
1.3. Certain data may also be obtained by Dealer through the application of diagnostic tools (e.g. TechTool, MATRIS) when connecting to the Machine.
1.4. Certain data may also be obtained by Dealer through the application of Co-Pilot when connecting to the Machine. The Co-Pilot is a system developed by Volvo CE’s licensors. It consists of a ruggedized computer with a touch screen display, mobile connectivity and other components (“Co-Pilot Hardware”), software as a service (SaaS) solutions offered by Dealer and run through third party providers, which Customer can access via Interface or receive otherwise.
1.5. Certain data may also be provided by Dealer, Customer or third parties.
1.6. The running of the Telematics System, diagnostic tools and Co-Pilot, as well as the provision of the Services include the transfer of data to Volvo Group companies and third-party service providers, in particular other dealers and workshops and IT suppliers authorized by Volvo Group companies, for the purposes of providing the Services as well as new services and for other purposes, for instance to monitor critical components and fault codes for proactive maintenance. Further information in relation to this is provided in the Machine manuals and in descriptions of the Services and the Services’ additional terms and conditions.
1.7. Customer shall own the right, title and interest in and to the data described and referred to in this clause 1 (the “Machine Data”). Customer hereby grants to Dealer and Volvo CE a worldwide, royalty free, fully paid, transferable, assignable, sub-licensable, perpetual and irrevocable licence to collect, analyse, use, modify, and otherwise exercise control over the Machine Data, including the right to share the Machine Data with its respective affiliates and others authorised by Dealer or Volvo CE.
- The scope of Connected Services
2.1. The scope of the Services that are provided pursuant to this Agreement cover the Services registered for Customer pursuant to the Interfaces’ or other processes, as the case may be. A complete description of the Services is set out at the Interfaces relating to the Services chosen by Customer or available at the Dealer.
To the extent that the Services, including the use of the Services’ Interfaces, impose additional terms and conditions, Customer agrees to be bound by these additional terms and conditions. The latest version of these Agreement’s terms and conditions can be obtained at the Dealer.
2.2. Dealer reserves the right to modify, upgrade, exchange or substitute any Service or part of it without notice and at Dealer’s discretion as part of the continuous improvement process of the Telematics System, diagnostic tool or Co-Pilot which does not materially affect the quality or performance of the Services.
2.3. Customer information that Dealer and third-party service providers (in particular dealers and workshops
authorized by Volvo Group companies for such purposes) maintain about service, repair, maintenance results and performance results of Customer’s Machines is an essential part of the Services.
- Availability of the Telematics System and Co-Pilot
3.1. The right of Customer to use the Telematics System and/or Co-Pilot is subject to its technical availability.
3.2. The availability depends on availability of network, the generation of the available telecommunication network and satellite coverage and may be disrupted due to local barriers (e.g. bridges, buildings etc.), atmospheric or topographic conditions and technical limitations (e.g. inbuilt errors of GPS-system) and legal restrictions.
3.3. Dealer disclaims any guarantee for the security of the mobile and wireless network telecommunication used for the transmission of data and information.
3.4. The Telematics System and/or Co-Pilot may not be available due to maintenance work or error clearance of technical components of the system. Planned maintenance work will, if possible, be posted on the Service’s Interface or otherwise communicated to Customer. Dealer will not be liable for consequential losses incurred by Customer due to any disruption of the Telematics System and/or Co-Pilot and Services.
3.5. It is Customer’s sole responsibility to have the necessary technical equipment available for accessing the Services, e.g. computer equipment and online access.
- Use of the Telematics System and/or Co-Pilot
4.1. The right of Customer to use the Telematics System and/or Co-Pilot is subject to the specific conditions of the Services, the Customer’s compliance with all of the terms and conditions of this Agreement and the technical availability of the Telematics System
4.2. Upon the execution of this Agreement, Dealer shall, where applicable, provide to Customer the login information in order for Customer to access the Interfaces, register/accept its Machine to the Interfaces and start using the Services Customer subscribes to. Customer shall protect the security of the Telematics System and/or Co-Pilot at all times by ensuring that access and login credentials are maintained safely.
4.3. Customer shall ensure and be responsible for compliance with the user guidelines and manuals in respect of each Machine.
4.4. Customer is aware that the Telematics System and/or Co-Pilot may not be available in all countries/territories. Information regarding the countries/territories, in which the use of Telematics System and/or Co-Pilot and/or Services has been prepared as pursuant to the above, is available at the Dealer.
Customer may only receive Services for such Machines for which Customer has obtained the necessary Telematics Hardware and/or Co-Pilot Hardware and registered for the Services, including any necessary updates due to obsolete generation(s) of telecommunication network.
4.5. The Telematics System and Co-Pilot are copyrighted and Volvo Group claims all exclusive rights to such, except as licensed to Customer under this Agreement and subject to strict compliance with the terms of this Agreement. Customer acknowledges and agrees that all copyrights and other proprietary rights in and to the Telematics System, Telematics Hardware, Co-Pilot and Co-Pilot Hardware are retained. Customer will not have any proprietary rights in and to the Telematics System, Telematics Hardware Co-Pilot and/or Co-Pilot Hardware.
4.6. Customer will not distribute, retransfer, copy, publish, modify, enhance, reverse engineer or otherwise alter the information and content provided through the Services, Co-Pilot or the Telematics System. Customer may not assign, sell, resell, bargain, convey, transfer, pledge, lease or grant any further rights to use of the Telematics System and/or Co-Pilot to any third party.
4.7. Dealer reserves the right to record remotely, details of the computer(s) or other devices with which Customer uses the Interface, primarily to prevent piracy and to notify users of any critical updates to the Interface and other Dealer products relating to Services and the use of the Interface. Dealer will maintain any such data collected in accordance with the applicable laws.
4.8. Dealer will at all times comply with requests of public bodies to disclose data, including data processed on the basis or in the context of this agreement, if legally obliged to do so.
4.9. Customer is responsible for providing correct information required for any registration, deregistration and other processes in relation to Services and/or Co-Pilot for each Machine. In particular, Customer shall:
(i) take all actions required for the collection, processing and use of data related to the Services,
(ii) notify the Dealer and cancel the Services if Customer no longer owns or has at its disposal a relevant Machine,
(iii) ensure that Customer’s passwords and access information for use of the Services are restricted to authorised users only,
(iv) ensure that users of the Machine and of the Services are fully informed about and comply with the instructions for use of the Services,
(v) ensure that Customer and users of the Machine do not use the Telematics System and/or Co-Pilot in violation of any laws or for unlawful of abusive purposes.
4.10. Customer warrants to Dealer that Customer, at all time during the Agreement, has all necessary consents, permissions, licenses and authorisations in place to ensure that Customer uses the Telematics System, Co-Pilot and Interface in full compliance with all applicable laws and regulations, including data protection laws. Customer shall indemnify Dealer and Volvo CE and their present and future affiliates, employees, agents, successors and assigns, as well as any other dealers of Volvo CE for any and all claims, losses, liabilities, damages, fees, expenses and costs (including reasonable attorneys’ fees) resulting from, or arising out of the Customer’s failure to comply with such laws.
4.11. Dealer may withhold Services or may use the Telematics System to locate a registered Machine if Dealer reasonably believes that the Machine is not operated by Customer as lawful owner or otherwise in compliance with the law or the terms and conditions of this Agreement.
4.12. If and to the extent personal data is concerned, Appendix 2 to this Agreement takes precedence.
- Special terms and conditions for Services
5.1. Individual Services covered by this Agreement may be subject to special terms and conditions which shall form an integrated part of this Agreement. The Customer agrees to be bound by such terms and conditions (as amended from time to time according to the process set out in such special terms and conditions) when subscribing for the Services concerned. In case of any conflict between such special terms and conditions and this Agreement, the special terms and conditions shall apply in relation to the specific Services.
5.2. The Services may include data or services that Dealer or Volvo CE licenses from third parties. Customer shall comply with all requirements and restrictions that such third parties may require to impose on Customer.
- Price and Payment
6.1. Customer will pay the subscription charges for the Services in accordance with the terms and conditions set out in a separate agreement or in the specific conditions of the Services.
6.2. All Services include any relevant telecommunication subscriptions for sending data to and from the Machine, unless otherwise agreed.
- Specific conditions for free subscriptions
7.1. In case of a free subscription (this is when the Customer bought a new or a second hand Machine, or Telematics Hardware has been retrofitted into a Machine), the Services will be for a fixed period of maximum six years, starting as of the moment the Machine is registered for the first time at the Dealer.
- Limitations of Liability
The following provisions of this Clause reflect the scope of the Agreement and the price for the Services:
8.1. The Interface is provided (including, but not limited to all Services analyses, documentation, functions, software) on an ‘AS IS’ – ‘AS AVAILABLE” and with all faults basis. No representations and warranties, express or implied, are made to Customer regarding any aspects of the Interfaces, Telematics System and Co-Pilot.-
8.2. Dealer shall not be liable (whether in contract, tort, negligence, statute or otherwise) for any loss of profits, loss of business, wasted management time or costs of data reconstruction or recovery whether such loss arises directly or indirectly and whether Dealer was aware of its possibility or not or for any consequential or indirect losses.
8.3. Dealer hereby excludes to the fullest extent permitted by law, all conditions, warranties and stipulations, express (other than those set out in the Agreement) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of Customer.
8.4. Dealer hereby disclaims any and all warranties, express or implied, relating to the Telematics System, Co-Pilot and the Interface, including but not limited to any warranty of fitness for a particular purpose or merchantability. Dealer shall not be liable or responsible for any damages, injuries or liabilities caused directly or indirectly from the use of the Telematics System and/or Co-Pilot and/or the Interface, including but not limited to incidental, consequential or special damages, loss of profit, loss of business, wasted management time or costs of data reconstruction or recovery.
8.5. Neither Dealer (if applicable), nor any Volvo Group entities will be liable for any loss or damage of any kind caused by acts or omissions in its capacity as data controller, including, but not limited to, acts and omissions resulting in Customer’s failure to comply with the applicable data protection laws.
8.6. Dealer will not be liable for any loss or damage of any kind whatsoever caused by a failure or downtime of the public communications systems upon which the provision of the Services is dependent.
8.7. Customer understands and agrees that Customer (i) has no contractual relationship with Volvo CE or its affiliates and subcontractors used for the provision of the Services, including any underlying carrier of mobile and wireless services used for the transmission of data and information or, (ii) is not a third party beneficiary of any agreement between Dealer and Volvo CE or its affiliates and subcontractors or any underlying carrier, (iii) that Volvo CE or its affiliates and subcontractors and the underlying carrier have no liability of any kind to the Customer whether for breach of contract, warranty, negligence, strict liability in tort or otherwise, (iv) that messages and underlying may be delayed, deleted or not delivered, and (v) Volvo CE or its affiliates and subcontractors and the underlying carrier cannot guarantee the security of wireless transmissions and will not be liable for any lack of security relating to the use of the Services or the underlying services.
- Disclaimer of Warranty
Statutory or manufacturer’s warranty rights are limited to the Telematics Hardware and/or Co-Pilot Hardware separately purchased by Customer. Such warranty rights do not cover the Services and/or the operability of the Telematics System and/or Co-Pilot.
Dealer makes no warranty, express or implied, regarding merchantability or fitness for particular purposes, in relation to the Telematics Hardware, Co-Pilot Hardware and/or Services and the Services’ performance, including the Interfaces and information provided to the Customer as part of the Services. Dealer expressly disclaims any such warranty.
- Deactivation of Telematics System unit
Dealer can deactivate the Telematics System unit upon the request and expense of Customer. The deactivation of Customer must be carried out by a Dealer or other Volvo authorised person.
Once the Telematics System is deactivated, data cannot be recovered and certain Services may not be available. Re-activation can be done by Dealer or other Volvo authorised person at the request and expense of Customer.
- Term and Termination
11.1. This Agreement is entered into for an indefinite duration. The Agreement may be terminated by Dealer or Customer by providing the other party notice at least 60 days prior to the termination date.
11.2. The termination of the Agreement automatically terminates any and all subscriptions to Services under this Agreement without refund of payment for any Service.
11.3. Each party may by written notice terminate this Agreement with immediate effect if the other party is in material breach of the Agreement or enters into insolvency, bankruptcy, any arrangement with its creditors or any other arrangement or situation which has a like effect. Each party may by written notice terminate this Agreement with immediate effect in case of suspension or termination of any or all Services due to Force Majeure.
11.4. Dealer shall have the right to terminate this Agreement and/or the specific Service with immediate effect, if Customer fails to comply with applicable data privacy laws, or transfers the ownership of the Machine to a third party. When the Machine is transferred to a subsequent owner/user, Customer remains liable for the Connected Services, including the fees, amounts, charges, incurred by a subsequent, until the Connected Services are cancelled or subsequent purchaser/user orders new Connected Services.
11.5. If this Agreement expires or is terminated, the Dealer reserves the right to disable the sending / receiving operability of the Telematics Hardware and/or Co-Pilot Hardware with effect to the date of expiry or termination.
11.6. The termination of the Agreement howsoever arising is without prejudice to the rights, duties and liability of either Customer or Dealer accrued prior to termination. The conditions which expressly or impliedly are capable of having effect after termination will continue in force notwithstanding termination.
11.7. Upon termination of the Agreement for whatever reason Customer shall not be entitled to a refund of any sums paid under this Agreement. The termination of this Agreement shall be without prejudice to any claim which Dealer has against Customer for any sums accrued due under this Agreement.
- Force Majeure
Dealer shall not be responsible or liable to the Customer or deemed to be in breach of this Agreement for any failure or delay of performance of any obligation of this Agreement or in relation to the Services, if caused by any of the following circumstances: any act or omission or event beyond the reasonable control and contemplation of Dealer including, without limitation, third party services providers (including, but not limited to mobile data operators or any other third-party providing services or products), equipment failures or shortages, natural disasters, war, labour strikes, disputes, protests, fire tempest, explosion, an act of terrorism and national emergencies and Dealer will be entitled to a reasonable extension of time for performing such obligations to the extent possible. Dealer may, under any of the aforementioned circumstances, at its own discretion suspend or terminate any or all of the Services.
13.1. The Agreement is personal to Customer who may not assign, delegate, license, hold on trust or sub-contract all or any of its rights or obligations under the Agreement or special terms and conditions for the Services without Dealer’s prior written consent.
13.2. Dealer shall have the right to transfer this Agreement at any time to any Volvo Group company. Customer shall approve such assumption of contract and shall release Dealer from the Agreement without any further claims.
13.3. Dealer’s failure to enforce any rights under this Agreement or the Services terms and conditions or Dealer’s copyright or other intellectual property rights in the Interface shall not be construed as amending this Agreement or waiving any of Dealer’s rights hereunder or under any provision of the applicable laws.
13.4. Time for performance of all obligations of Dealer is not of the essence.
13.5. If any condition or part of the Agreement is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from the Agreement and will be ineffective, without, as far as is possible, modifying any other provision or part of the Agreement and this will not affect any other provisions of the Agreement which will remain in full force and effect.
13.6. Dealer may vary or amend the terms and conditions of this Agreement with three months’ prior notice to Customer. Customer shall be deemed to have accepted the new terms if having continued to use Services for 3 months after such amendments have been published/notified.
13.7. This Agreement and, if applicable, the special terms and conditions for the Services shall constitute the entire agreement between the parties hereto. Any waiver or modification of this Agreement shall only be effective if it is in writing and signed by both parties hereto.
13.8. Without prejudice to article 5.1, this Agreement will be governed by Belgian law, unless and to the extend other laws applies mandatory. Any dispute concerning the Agreement between the parties will be settled by arbitration, by a single arbitrator appointed, sitting and ruling in accordance with the provisions of the OHADA Treaty and the OHADA Uniform Act on the Right to Arbitration. However, SMT reserves the right to refer the case to the judicial courts of the jurisdiction in which it has its head office or in which the Buyer is established.