fifthplay conditions of service
TERMS AND CONDITIONS OF SUPPLY
These terms and conditions apply to the supply of hardware (“Devices”) and the provision of consultancy or other services (“Services”) and provision of access to the fifthplay on-line platform (“Access”) by fifthplay to you (“Customer”). They shall supersede, without exception, any and all of Customer‘s conditions of quotation, acceptance, purchase and/or supply delivery notes, even if they stipulate the opposite. Placement of an order (“Order”) by Customer automatically entails acceptance of these terms and conditions, including for follow-up orders, and waiver of Customer‘s own terms and conditions.
An agreement for supply of Devices or provision of Services and/or Access (the “Agreement”) between Customer and fifthplay is formed upon fifthplay’s written acceptance of Customer’s Order and shall be subject to these terms and conditions. Customer may not change, cancel or reschedule Agreements without fifthplay’s written consent.
Price offers made by fifthplay are valid for a period of sixty (60) calendar days, unless otherwise provided. Prices do not include taxes, shipping charges, freight, duties, and other charges or fees, such as fees for special packaging and labeling of the Devices, permits, certificates, customs declarations and registration (collectively, “Additional Fees”). Customer is responsible for Additional Fees.
The prices of the fifthplay Devices, Services and Access are those valid on the date of the placement of the Order.
3. TERMS OF PAYMENT.
Payment of invoice(s), without offset or deduction, is due thirty (30) calendar days from invoice date or as otherwise approved in writing by fifthplay. On any past due invoice, fifthplay may charge (i) interest from the payment due date to the date of payment at 12% per annum, and (ii) a lump-sum compensation of 10% of the amount due with a minimum of 25 Euros.
If Customer defaults on any payment under this Agreement, fifthplay may suspend any outstanding delivery of Devices, and/or suspend the Services or Access, and declare all outstanding invoices due and payable immediately.
4. DELIVERY AND TITLE.
Unless otherwise specified by fifthplay in writing, all deliveries by fifthplay are EXW Antwerp (INCOTERMS 2010). fifthplay’s delivery dates are estimates only and subject to timely receipt of supplies by fifthplay. fifthplay is not liable for delays in delivery. fifthplay reserves the right to make partial deliveries and Customer will accept delivery and pay for the Devices delivered. A delayed delivery of any part of an Order does not entitle Customer to cancel other deliveries. Without prejudice to the foregoing, all Devices remain the property of fifthplay until the time of payment of their sales price in full. fifthplay reserves the right to claim back such Devices from whomever they may be with.
5. FIFTHPLAY’S LIMITED WARRANTY.
For Devices, fifthplay offers a warranty period of one (1) year from the date of delivery. The invoice date is valid as the delivery date. If there is no invoice, the production date applies.
Such warranty covers, at fifthplay’s choice, the repair, replacement or refund of a Device and does not cover any loss or damage or costs associated with the lack of compatibility, including the costs of third parties (who have become involved whether or not on the instructions of Customer).
Customer is obliged to inform fifthplay in writing about the lack of compatibility at the latest within two (2) months from its discovery. A clear description of the fault is required. Without a description of the fault fifthplay only conducts a short test of the basic functions of the Device.
The warranty conditions are not applicable: (i) when the cause of the fault is inherent in the normal working or service life of the Device;
(ii) in the case of a faulty fuse or exhausted battery, which can be replaced by Customer; (iii) in cases where the liability of fifthplay is ruled out, as set out in Article 6.
For Services, fifthplay warrants that for a period of 90 calendar days after delivery, Services performed by fifthplay will conform to the specifications that are in writing and defined by fifthplay. To the extent permitted by law, fifthplay makes no other warranty, express or implied, such as warranty of merchantability, fitness for purpose, uninterrupted use or non- infringement.
For Access, fifthplay warrants during the term of the Agreement, except in cases where the liability is ruled out, as set out in Article 6:
(i) an availability of fifthplay’s on-line platform of 99,5% except planned interruptions, defined as follows:
(availability in minutes of the Access during the year) divided by (yearly duration in minutes) multiplied by 100, as well as
(ii) 98% successful transactions, defined as follows:
(successful transactions per month) divided by (transactions per month) multiplied by 100.
6. LIMITATION OF LIABILITY.
fifthplay is not responsible for and can in no case be held liable for any kind of loss or damage caused by:
(a) The faults or negligence of Customer or any third party; (b) The products and services of third parties; (c) The faulty functioning or non-functioning of the internet connection, broadband connection or any other service or infrastructure whatever, over which fifthplay has no control; (d) The incorrect use of the Devices, Service or Access; (e) Brief interruptions in the availability or the functioning of the Devices, Service or Access to fifthplay’s on-line platform as a result of a technical intervention (e.g. maintenance); (f) Any break-in or hacking into fifthplay’s on-line platform, on condition that fifthplay has taken all reasonable protective steps; (g) Faults in the Devices, Services or fifthplay’s on-line platform that are not under the control of fifthplay, given the state of knowledge and technology.
To the extent permitted by law, neither fifthplay nor its employees or agents are liable for and Customer is not entitled to any indirect, special, incidental or consequential damages (for example, loss of profits or revenue, loss of data, loss of use, rework, manufacturing expense, injury to reputation, or loss of customers). To the extent permitted by applicable law, Customer’s recovery from fifthplay for any direct damages will not exceed the price of the Device, Service or Access at issue. To the extent the preceding limitation of liability is deemed invalid under applicable law, fifthplay’s total liability in any event will not exceed EUR 50,000 or the equivalent thereof. Customer will indemnify, defend and hold fifthplay harmless from any claims based on:
(i) fifthplay’s compliance with Customer’s designs, specifications, or instructions,
(ii) modification of any Device by anyone other than fifthplay, or
(iii) use of Devices in combination with other products.
7. TERM AND TERMINATION.
Any Order for Access referencing a duration of 1 year, will be tacitly renewed for identical periods, and at the same price or the price communicated by fifthplay not later than 40 calendar days prior to such renewal, unless one party cancels the Agreement by registered letter at least thirty (30) calendar days prior to the expiry of the ending period.
Each party has the right without any legal intervention and without being bound to any compensation to terminate the Agreement immediately by registered letter if the other party has committed a material fault and that fault cannot be remedied, or, where such a fault can be remedied, the other party remains in default of remedying the fault within fifteen (15) calendar days counting from receipt of a written notification of the shortcoming with a request to remedy the fault.
Sums that have been paid by Customer in advance of the termination will not be refunded.
8. INTELLECTUAL PROPERTY RIGHTS.
Customer recognizes that the intellectual property rights of the Devices, Service and Access belong to or have been licensed to fifthplay and that fifthplay or the third-party licensor are the owners of these intellectual property rights.
Customer is forbidden to reproduce or change, in any way whatsoever, the hardware, design, lay-out, text, files or data, databanks, codes, topographies, domain name, software (both the binary and the source-code), the drawings, brand names, logos and/or the images, without the prior written consent of fifthplay.
All software on the Devices and in the Service and fifthplay’s on-line platform is and remains the exclusive property of fifthplay and/or of its suppliers. The software may not be reproduced or copied, not even for internal use by Customer. The rights of fifthplay apply to all versions and subsequent updates.
Customer shall keep the ownership statements in the Device, manuals and maintenance instructions in good condition and guarantees to preserve the confidential nature of the software.
9. DATA PROTECTION.
The personal data provided by the Customer will be processed for the purpose of the performance of the Agreement, management of customers, to contact it, and to send it advertisements or other commercial or promotional messages (direct marketing) regarding fifthplay or other companies of the group to which fifthplay belongs or their business partners. fifthplay, Generaal Lemanstraat 47 – 2018 Antwerp, VAT 0442 833 209, is the controller of the processing of the data. The personal data can be transferred to other companies of the group to which fifthplay belongs or to business partners of fifthplay.
Additionally, all data provided by Customer will be eligible for data mining by fifthplay in an anonymous way.
The legal right of access, correction and objection against the use for direct marketing can be exercised by submitting a written, signed and dated request thereto, together with a copy of the identity card, to fifthplay at the aforementioned address, or by email at email@example.com.
10. FORCES BEYOND FIFTHPLAY’S CONTROL.
Fifthplay is not liable for failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control (for example: acts of nature, acts or omissions of Customer, operational disruptions, man-made or natural disasters, epidemic medical crises, materials shortages, strikes, criminal acts, delays in delivery or transportation, or inability to obtain labor or materials through its regular sources).
11. FINANCIAL GUARANTEES.
If it appears to fifthplay that the credit of Customer has been impaired, then fifthplay has the right to suspend the Agreement in whole or in part and demand additional guarantees. In the event of refusal by Customer, fifthplay has the right to cancel the Agreement in whole or in part, all this without detracting from fifthplay’s right to claim compensation.
The contractual relationship between Customer and fifthplay is exclusively governed by Belgian law. Any dispute concerning the interpretation and the application of these terms and conditions falls under the exclusive competence of the Courts of Antwerp (Belgium).