PHYSEE's general terms and conditions
1. Application and definitions
1.1. These general terms and conditions (the Terms) apply to the installation and use of SmartSkin and SENSE (as defined below).
1.2. Any rights derived under these Terms can solely be exercised in relation to PHYSEE Projects B.V. (PHYSEE), as registered with the Chamber of Commerce under 76875091, having its registered address at Van Mourik Broekmanweg 4, 2628 XE, Delft, the Netherlands.
1.3. These Terms are available at www.physee.eu and will be forwarded upon request.
1.4. In these Terms the terms below shall have the following meaning:
(i) SENSE: both the individual hardware components (including, the PHYSEE servers and gateways) and software as offered by PHYSEE;
(ii) SmartSkin: the sensors and pv-cells as provided by PHYSEE for the integration into the IGU;
(iii) User: the owner of the building in which SENSE is implemented or the individual user of SENSE;
(iv) Partner: the IGU manufacturer to which PHYSEE supplies its SmartSkin and which are then integrated by the IGU manufacturer into its products (IGUs);
(v) PHYSEE or the Supplier: PHYSEE Products B.V.
(vi) Services: the services as provided by PHYSEE to the User and as detailed in the Service Agreement.
(vii) Service Agreement: the agreement concluded between the User and PHYSEE in relation to the services which will be provided by PHYSEE.
(viii) SmartSkin IGU: the IGU which has the SmartSkin technology integrated.
(ix) Supply agreement: the agreement concluded between PHYSEE and the Partner in relation to the supply of SmartSkin and/or SENSE.
2.1. PHYSEE warrants that SmartSkin contained in the original packaging is free of defects in materials and workmanship if used normally in accordance with PHYSEE’s installation guidelines, for a period of one (1) year from the date of original installation.
2.2. The warranty will lapse immediately if installation is not carried out in strict accordance with PHYSEE’s installation manual.
2.3. If the product is not free of defects in materials and workmanship within the warranty period, taking into account all other stipulations in these terms and conditions, a replacing SMARTSKIN or SENSE element will be provided, as soon as possible. The replacing element will have a warranty for the remaining warranty period of the original element.
2.4. PHYSEE does not warrant or otherwise guarantee the functioning of SmartSkin other than as provided for in Clause 2.1
3.1. Payment for the SmartSkin & SENSE components shall be made within 7 days after the date of the invoice.
3.2. In case of late payment, PHYSEE shall be entitled to charge the “wettelijke handelsrente” in accordance with article 6:119a of the Dutch Civil Code.
3.3. SmartSkin and SENSE shall remain the property of PHYSEE until paid for in full to the extent such retention of title is valid under the relevant law.
4.1. Following an order by a Partner, PHYSEE will deliver SmartSkin in accordance with the terms as agreed in the Supply Agreement.
4.2. Unless agreed otherwise, PHYSEE’s liability in relation to late deliveries will be limited in accordance with Clause 5.1.
5. Limitation of liability
5.1. PHYSEE’s liability in relation to any direct damages or losses as a result of the malfunctioning of SmartSkin or SENSE, will be limited to the lower of EUR 20,000 or the amount paid out by PHYSEE’s insurance.
5.2. In deviation of Clause 5.1, any liability that results from the installation or use of SmartSkin or SENSE in contravention of or not in strict accordance with the installation manual, is excluded.
5.3. The liability for any indirect losses, meaning any damages or losses which do not qualify as direct losses, are in any event expressly excluded. For the avoidance of doubt, indirect losses will in any event mean loss of production, loss of profit, loss of use, and loss of contracts.
5.4. In any event, any liability of PHYSEE will lapse 1 year after installation of SENSE or SmartSkin or, if earlier, 6 months from the moment that a defect has become apparent.
6. Intellectual property
The relationship between either PHYSEE and the Partner or between PHYSEE and the User shall not result in any transfer of intellectual property rights or result.
7. Access to data
7.1. Upon the sale of the SmartSkin IGU, the Partner will procure that the User is provided with the opportunity to conclude a Service Agreement with the Supplier.
7.2. In its sales agreement of the SmartSkin IGU, the Partner will stipulate that sale of the SmartSkin IGU will be conditional upon the User providing permission to PHYSEE to communicate the data from SmartSkin to PHYSEE.
8. Force Majeure
8.1. Either party shall be entitled to suspend performance of his obligations under the Contract to the extent that such performance is impeded or made unreasonably onerous by Force Majeure, meaning any of the following circumstances: industrial disputes and any other circumstance beyond the control of the parties such as fire, war, extensive military mobilization, insurrection, requisition, seizure, embargo, restrictions in the use of power, currency and export restrictions, epidemics, natural disasters, extreme natural events, terrorist acts and defects or delays in deliveries by sub-contractors caused by any such circumstance referred to in this Clause.
8.2. The party claiming to be affected by Force Majeure shall notify the other party In writing without delay on the intervention and on the cessation of such circumstance. If a party fails to give such notice, the other party shall be entitled to compensation for any additional costs which he incurs and which he could have avoided had he received such notice.
8.3. Regardless of what might otherwise follow from these General Conditions, either party shall be entitled to terminate the Contract by notice In Writing to the other party if performance of the Contract is suspended under Clause 8.1 for more than six months.
9. Governing law and jurisdiction
9.1. The relationship between the user or the purchaser of SmartSkin or SENSE, including any claim in contract or tort, will be exclusively governed by the laws of the Netherlands. The application of the Convention on the International Sale of Goods is excluded.
9.2. The competent court of Amsterdam, the Netherlands, shall have exclusive jurisdiction.
Any queries or information requests can be directed to PHYSEE Products B.V., Van Mourik Broekmanweg 4, 2628 XE, Delft.