Terms and Conditions
1. Purpose of these Terms – Agreement
This is a legally binding agreement (“Agreement”) between you (the “Client” or “You”) and Us.
2. Purpose of the Platform
The Platform provides functionality related to the automation, digitization or enabling of structured information processes related to the management of industrial or other installations or any operation where information exchange can so be automated, structured or digitized.
3. Clients and usage
Access to the Platform is restricted to legal entities who have validly signed up for usage and paid the relevant fees (“Clients”). Gemsotec is entitled to modify the signup process from time to time, e.g. by making it more automatic.
Usage of the Platform is based on the metric of usage (e.g. number of unique users) as determined by Gemsotec at the moment of signup of a Client.
Clients who receive or choose a username, password or unique identity (“Credentials”) for usage purposes are responsible for maintaining the confidentiality and security of such Credentials. Any use done through such Credentials will be the sole responsibility of the Client.
Client must inform Gemsotec immediately in case of any unauthorized use, misuse or abuse of their Credentials, or any other breach of data security.
Usage by the Client is always limited to the scope of usage agreed between the Client and Gemsotec (e.g. the number of users with a unique identity over a period of time, or for demo or test purposes). No extension of usage is ever implied, even e.g. when Gemsotec does not immediately suspend, limit or terminate access after a demo period.
If the Client does not respect the limits of usage, then Gemsotec is entitled, with or without prior notice, at any time to suspend; limit or terminate access to the Platform.
Any such limitation, suspension or termination will be without liability to Gemsotec.
Consequences of termination are:
- Client may no longer access the Platform or its functionality, and its Credentials will be invalidated.
- Any data or Content stored by Client on the Platform will remain available for archival purposes for a period of one month.
- Client may request Gemsotec to provide a copy of such data or Content for download, and Gemsotec may, at its discretion, choose to provide such a copy for download at a reasonable cost.
4. Use of the Platform – code of conduct
Use of the Platform is subject to normal rules of good behavior. That means, in practice, the following:
- You will only use the Platform in the way it is clearly intended to be used; and
- You may not access or use any data or Content provided through the Website, except through the authorized Platform functionalities, services or application programmable interfaces (“API’s”) made available by Gemsotec or authorized by Gemsotec; and
- You will not access or use functionality or Content provided except through the functionality provided by the Platform; and
- You will not use any technology (e.g. data mining, spiders, crawlers, scraping and anything like it) to make any use of the Platform or its Content outside of what We authorize; and
- You will not circumvent, mislead, hide or otherwise influence the way Gemsotec gathers information about usage of the Platform or any part thereof; and
- You will not use any functionality of the Platform to infringe on third party’s intellectual property or other rights; and
- You will not do anything that is in breach of any applicable law, or that We reasonably consider to be in bad taste or unacceptable behavior; and
- You will pay your fees on time.
We can block access to the Platform or any part thereof if We find that You are or seem to be in breach of these rules. That does not limit in any way Our other rights, e.g. to claim damages.
5. Content and Data
The Platform allows its users to set up processes of structured information and data collection and exchange, as well as uploading, sharing of data, documents and other content (together “Content”) and performing other actions such as modification or other functions on the Content.
Only the Client is responsible for any aspects of Content, including the creation thereof, the way it is structured, any usage or modification, and any consequences of such usage or modification, either directly or indirectly.
Gemsotec provides the functionalities of the Platform in a way analogous to what e.g. a word processing software provider would – the Content is wholly the responsibility of the Client.
Consequently, the Client waives any claim towards Gemsotec in relation to any aspect of the Content.
In addition, the Client warrants that any use of the Content through the functionality of the Platform does not infringe on any third party rights (including but not limited to intellectual property rights) and will fully indemnify and keep indemnified Gemsotec against any claim from any third party in this respect.
Gemsotec acknowledges the confidential nature of the Content, and, other than in the normal course of the functionalities of the Platform (e.g. for the purposes of backups), will keep the Content confidential, except when such Content has lost its confidential nature.
The Platform and all component parts thereof (including the look-and-feel, any underlying code) and all intellectual property rights (copyrights, patents, trademarks, etc.) therein are owned by or licensed to Gemsotec. Your use of the Platform and any part thereof is subject to a license of use, which Gemsotec grants you on a non-exclusive, limited, conditional and non-transferable basis.
As a condition of Your license, the following restrictions apply:
- You may not modify, adapt, sub-license, translate, sell, reverse engineer, decompile or disassemble any portion of the Platform or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Platform;
- You may not submit or connect to any software or other materials that contain any viruses, worms, Trojan horses, defects, date bombs, time bombs or other items of a destructive nature;
- You may not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure, compared to the normal or anticipated use of the Platform;
- You may not use the Platform in an attempt to, or in conjunction with, any device, program or service designed to circumvent any technological measure that effectively controls access to, or the rights in, the Platform in any way including, without limitation, by manual or automatic device or process, for any purpose.
For the duration of Your use of the Platform, You grant Gemsotec a non-exclusive, royalty-free and fully paid-up license to use any Content You provide, for the purposes of the functionality of the Platform (e.g. to visualise a picture in a pdf report for the CLIENT). The content will be treated confidential as specified in Article 5.
You grant Gemsotec the right to mention your name and place your logo on its website or any other marketing materials to identify You as a customer of Gemsotec.
You acknowledge that, as an essential part of the functionalities of the Platform, Gemsotec calls upon the services of third parties (including, but not limited to, Cloud service providers). Gemsotec carefully selects, at its sole discretion, these third parties to ensure the proper functionality of the Platform. You acknowledge that Gemsotec will never be liable for the actions or omissions to act by such providers, or the effectiveness or performance of their services or products unless when Client can prove the selection was not done carefully or it was known that the selected third party was not reliable or trustworthy.
From time to time, the Client may request Gemsotec to provide specifically identified services, e.g. related to the synchronisation of Credentials or data import/export or other such services which are specific to the Client’s specific use of the Platform (“Professional Services”). When the Client and Gemsotec agree on the provision of such Professional Services, the following rules apply :
- except if specified otherwise, the Professional Services consist of the provision by Gemsotec of consultants, who will provide the Professional Services on a time & materials basis;
- The scope of the project will be as defined in the relevant work order signed to that effect;
- All duties of Gemsotec are based on a reasonable effort (“middelenverbintenis/obligation de moyen”) basis, based on Gemsotec providing consultants who have knowledge of the Gemsotec Platform;
- Gemsotec warrants that the services will be provided in a professional manner, in accordance with normal industry practices. In case Gemsotec has performed a service under those conditions, Gemsotec’s only obligation and Client’s only remedy under this warranty is for Gemsotec to re-provide the services. No other warranties, representations or guarantees are provided by Gemsotec, and Client expressly waives any other warranty, representation or guarantee. Unless warranty, representations or guarantees are given for a specific service and this was agreed on in advance;
- Except if provided otherwise in writing, the intellectual property rights related to the Professional Services are and remain with Gemsotec, but the Client acquires, without any further formality, and subject to payment of the Professional Services fee, a license to use the result as if it was part of the Platform;
- All Professional Services are accepted by sign-off of the hours or days worked as set out in the project plan, or as otherwise established;
- Any travel outside Belgium is charged at cost, as well as any other out-of-pocket expenses required to perform the Professional Services.
8. Payments and scope of use
Use of the Platform is subject to payment of the fees charged by Gemsotec, as agreed between Gemsotec and the Client.
Except if stated otherwise, all fees are exclusive of taxes (such as VAT), are payable upfront and non-refundable.
When pricing per use is agreed, Gemsotec will provide an overview of actual use incurred, and charge accordingly.
Timely payment of fees is of the essence. When fees properly invoiced are not paid on their due date, Gemsotec is entitled, after at least one reminder, without incurring any liability whatsoever, to suspend the Client usage of or access to the Platform until full and final payment has been received. In addition, in case of late payment, after Gemsotec has sent at least one reminder, Gemsotec is entitled to charge an administrative fee for collection of payments due. This administrative fee is set at €300 for each event of late payment.
Gemsotec is entitled to impose a particular payment method (e.g. through credit card authorization) in order to ensure payment and limit costs of fee collection.
Gemsotec is entitled to charge separately for new additions or new functionalities as and when they are made available – Client does not have an automatic right to use new modules if Gemsotec, in its sole discretion, decides that such new modules or functionality will be charged separately.
9. Warranties & indemnifications
Gemsotec declares that the Platform is in accordance with general industrial good practices and applicable legislations and regulations.
Gemsotec provides the Platform and the functionality and services thereon “as is”, and provides no other warranty, either express or implied, on any functionality, or interactivity.
Client acknowledges and accepts that use of the Platform is at the sole risk and responsibility of the Client. Gemsotec does not represent or warrant that the materials in the Platform are accurate, complete, reliable, current, subject to correction, or error-free or that the Platform or its servers are free of any harmful components.
Client warrants that it has the right to use the functionality of the Platform and that its use thereof, or the use of any Content through the functionalities of the Platform, will not infringe any third party rights.
10. Limitation of liability
Gemsotec shall be liable for direct proven damages caused directly due its wrongful acts or omissions.
Gemsotec will never be responsible for any links to third party websites, or any other connection to or interaction with third party materials or functionality.
Client is aware that the proper functioning of the Platform depends on the performance of certain third party components, as may be indicated from time to time by Gemsotec. If any such third party component does not operate properly, the only remedies available to Client are the remedies that Gemsotec itself would be able to obtain from such third party provider.
Under no circumstances will Gemsotec be liable for any indirect losses, including any loss of business or loss of profit.
To the extent permitted by applicable law, in any event will Gemsotec’s liability be limited to the lesser of the total value of monetary value paid by a Client during the twelve months preceding the cause of liability or 20.000,- Euro.
11. General Provisions
Gemsotec may suspend the provision of services or access to the Platform at its discretion, with or without notice. Gemsotec will never incur any liability as a result thereof.
If any provision of the Agreement is held by a court of competent jurisdiction to be legally ineffective or unenforceable, such provision shall, to the extent possible, be deemed rewritten to reflect the original intent of the parties, and the validity of the remaining provisions shall not be affected.
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