PHYSEE's general terms and conditions
1. Application and definitions
1.1. These general terms and conditions (the Terms) apply to the sale or supply of all products (which may include SENSE) (Products) and the performance of all services (excluding SaaS delivered to Users and End Users under Subscription Agreements or applicable end user license terms) (Services) by PHYSEE to you (Customer) under an Agreement.
1.2. The Customer’s general terms and conditions are hereby excluded.
1.3. These Terms are available at www.physee.eu and will be shared together with any Offer. These Terms may be amended by PHYSEE (amended versions will be published on the aforementioned website). In respect of an Agreement and an Offer the version of the Terms applicable as of the effective date of the Agreement or the date of the Offer will apply.
1.4. In these Terms the terms below shall have the following meaning:
1.5. Offers by PHYSEE are open for acceptance within the period stated in such Offer or, in the event that no period is stated, within 30 days from the date of the Offer. No order submitted by Customer will be deemed final or accepted by PHYSEE unless and until confirmed by PHYSEE.
(i) Agreement: any written agreement for supply, distribution, sale, or license of any Products or Services entered into between PHYSEE and Customer, or any purchase order that is issued by Customer and accepted by PHYSEE;
(ii) Building Owner: means the owner of the building in which the Services or Products are used.
(iii) End User: the individuals using the services provided under a Subscription Agreement to User (e.g. the employees of a tenant or the facility manager of a Building Owner).
(iv) Confidential Information: means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, such as an Offer, inventions, designs, drawings, engineering, computer object or source code, research, algorithms, non-published patent applications, technical data and know-how in relation to the Services and Products.
(v) Digital Twin: means the software part of SENSE that consists of a BIM model in which algorithms run simulations based on data gathered from the SENSE Modules which is coupled to building physicals models.
(vi) Discloser: means the party disclosing Confidential Information to the Recipient;
(vii) IGU: insulated glass units.
(viii) Offer: any proposal, quotation or offer provided to Customer by PHYSEE;
(ix) PHYSEE: PHYSEE Products B.V. or any of its affiliates;
(x) Raw Data: means any data (not being Personal Data) collected by Products but not processed or enriched by Sense Platform.
(xi) Recipient: means the party receiving Confidential Information from the Discloser;
(xii) Restricted Jurisdiction: countries or states that are subject to trade sanctions or embargoes from time to time.
(xiii) Restricted Party: Any person targeted by economic sanctions under applicable laws, any person designated on the UN Financial Sanctions List, EU (Member State) Consolidated Lists, US Department of Treasury Office of Foreign Assets Control Lists, US State Department Non-proliferation Sanctions Lists, or US Department of Commerce Denied Persons List, as may be in force from time to time, or, any affiliates of such persons and any person acting on behalf of a person referred to in the foregoing.
(xiv) SENSE: both the individual hardware components (including, the SENSE Modules, PHYSEE servers and gateways) and software (including Digital Twin) as offered by PHYSEE;
(xv) SENSE Modules: means the sensors as provided by PHYSEE for the integration into the IGU;
(xvi) SENSE Platform: PHYSEE’s system consisting of SENSE Environment and various additional SENSE Packages, such as the SENSE Utilization Package, SENSE Air Quality Package, SENSE Lightning Package and Live Motion Package as specified in an Order. Details are available upon request.
(xvii) Subscription Agreement: the agreement concluded between a User and PHYSEE to get access and benefit from (parts of) the SENSE Platform.
(xviii) Smart Windows: the IGU which has SENSE Modules integrated.
(xix) User: the party that wishes to procure the SENSE Platform.
(xx) Warranty Schedule: means the schedule attached to these Terms containing warranty periods for certain Products.
1.6. In the event of any conflict or inconsistency between these Terms and the terms of any Agreement or Offer the terms of such Agreement or Offer will prevail.
1.7. Any different or additional terms in any purchase order, terms of purchase or other writing from Customer will be deemed an alteration of these Terms and will have no effect.
1.8. When Customer resells Products or incorporates Products and/or Services in offerings to its customer, Customer shall ensure that all its customers and/or end users of Products or Services comply with all relevant Customer’s obligations under the relevant Agreement and these Terms, and that the terms of its agreement with each of its customer(s) or end user(s) are consistent with the relevant Agreement and these Terms.
2.1. PHYSEE warrants that Products contained in the original packaging are 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 delivery to Customer, unless specified otherwise in the Warranty Schedule. For any Services performed by PHYSEE, PHYSEE warrants that from 30 days from performance the Services will be free from service defects. A service defect occurs if the service has not been performed in a competent manner.
2.2. The warranty shall not apply if (i) installation is not carried out in strict accordance with PHYSEE’s installation manual, or (ii) if the failure of a Product is otherwise the result from negligence, error or misuse of the Products by Customer, Building Owner, User or anyone other than PHYSEE.
2.3. If the Product is non-conforming within the warranty period, taking into account all other stipulations in these Terms, at PHYSEE’s option, either (i) a replacing Product or Product element will be provided or (ii) the non-conformity will be repaired, within a reasonable time. Customer shall provide all cooperation necessary for the purpose of such replacement or repair. The replacing or repaired element will have a warranty for the remaining warranty period of the original element. Customer shall not be entitled to suspend its obligations (opschorten) under an Agreement as a result of non-conformity.
2.4. PHYSEE does not warrant or otherwise guarantee the functioning of Products other than as provided for in clause 2.1 PHYSEE does not warrant that the operation or availability of Products or Services will be uninterrupted or error-free. Customer shall not use or rely on Products and Services for any other applications or purposes than agreed in an Agreement.
2.5. In order to be entitled to make a valid claim under warranty, Customer shall promptly notify PHYSEE of alleged defective Services prior to expiration of the warranty period. If despite reasonable efforts of PHYSEE, no replacement product can be supplied or the Product cannot be repaired or defective services cannot be remedied or supplemented, PHYSEE shall make an appropriate refund or credit of amounts paid by Customer for those products or services.
2.6. If technical assistance or advice is offered or given to Customer, such assistance or advice is given in accordance with the terms and conditions of the Offer or as otherwise agreed between parties in writing. PHYSEE shall not be held liable for the content or Customer’s use of such technical assistance or advice nor shall any statement made by any of PHYSEE’s representatives in connection with the Products or Services constitute a representation or warranty, express or implied.
2.7. For the avoidance of doubt, PHYSEE does not make any warranties, representations, or guarantees regarding the specifications, features or capabilities of any third party product (such as Smart Windows).
3.1. PHYSEE may invoice Customer upon shipment of Products or when Services have been performed. PHYSEE may require:
3.1.1. Customer to pay on fixed payment days
3.1.2. an advance payment of (part of) the price; and/or
3.1.3. invoice per separate specified phase.
3.2. Payment for the Products or Services shall be made in full within 14 days after the date of the invoice and in Euro.
3.3. Prices do not include taxes, duties or other government fees, unless stipulated otherwise by the applicable Incoterms.
3.4. In case of late payment, PHYSEE shall be entitled to, in addition to any other rights and remedies available to it, charge the statutory interest (wettelijke handelsrente) in accordance with article 6:119a of the Dutch Civil Code.
3.5. Products shall remain the property of PHYSEE until paid for in full to the extent such retention of title is valid under the relevant law. In case of breach of these Terms or an Agreement by Customer, PHYSEE may require that Customer returns to PHYSEE, at Customer’s costs (including costs for de-installation), all Products in which title has not yet passed.
3.6. PHYSEE may set off against and deduct from any amount that PHYSEE owes to Customer under any agreement any amount that Customer owes to PHYSEE or against any advance payments or deposits made by Customer.
3.7. Customer shall not be allowed to set off (verrekenen) payment obligations against the payment obligations owed by PHYSEE.
4. Delivery of Products and Service Performance
4.1. Following an order by a Customer, PHYSEE will deliver the Products DAP – location as indicated in an Agreement (Incoterms, latest version) and in accordance with these Terms.
4.2. Dates communicated or acknowledged by PHYSEE are approximate only. In the event of delay, PHYSEE shall use commercially reasonable efforts to deliver Products or perform Services within a period that is reasonably needed given the cause of the delay, failing which Customer's sole and exclusive remedy will be to cancel the order for undelivered Products and Services.
4.3. All Products delivered under an Agreement will be deemed accepted by Customer as conforming to the Agreement, and Customer will have no right to revoke any acceptance, unless Customer provides PHYSEE notice of a claimed nonconformity within seven (7) days of the date of delivery. Any use of a Product by Customer or its customers after delivery will constitute acceptance of that Product by Customer. Where any Service has not otherwise been accepted or rejected by Customer in writing, acceptance of a Service will be deemed to have occurred (14) days after the results of Services have been placed in use by Customer.
4.4. Unless agreed otherwise, PHYSEE’s liability in relation to late deliveries or late performance will be limited in accordance with clause 9.1.
4.5. Customer is responsible for all information, orders, instructions, materials, and actions provided or performed by Customer directly or by third parties engaged by Customer (excluding subcontractors of PHYSEE) in connection with the delivery or performance by PHYSEE of any Products or Services. PHYSEE will be entitled to rely on the accuracy and completeness of all information furnished by Customer.
4.6. Customer acknowledges that certain features or functionality of Products and Services may rely on the availability and correct functioning of third party service providers, as may be indicated by PHYSEE, including supply of energy, data storage, connectivity (such as ethernet), window cleaning and communication services. These are outside of the control of PHYSEE, and PHYSEE will have no responsibility or liability in this respect.
4.7. In the event of delay or interruption in delivery of Products or the performance of Services for reasons not attributable to PHYSEE, the timelines for performance by PHYSEE will be amended accordingly.
4.8. Customer shall reimburse PHYSEE for all reasonable travelling and subsistence expenses properly incurred in providing the Services.
5. Access to systems and premises
5.1. If the performance of Services or delivery of Product requires PHYSEE or its personnel to access Customer’s or a Building Owners premises, systems, information technology, or infrastructure, Customer shall grant access, or cause Building Owner to grant access to such premises, systems, information technology or infrastructure. PHYSEE will use reasonable efforts to comply with the applicable safety standards respectively terms and conditions for access and security, if such standards and/or terms and conditions are shared with PHYSEE at least two (2) weeks prior to PHYSEE’s or its personnel’s access.
5.2. Customer is responsible for the timely completion of preparatory works and site preparations in conformity with requirements set by PHYSEE.
5.3. Customer shall, or shall cause the Building Owner to, provide site access and inform PHYSEE about the location of any cables (including twisted pair ethernet cabling), electric power lines, instructions, authorizations, legal limitations and all other information relevant for performing the Services.
5.4. Further, Customer shall, or shall procure that the Building Owner shall, provide connectivity, electricity, heating, lightning on the site and sanitary installations on or near the site.
6. Customer’s use of Services and Products
(i) Provide PHYSEE with accurate and complete descriptions of its needs and business plans for performance of the Products and Services;
(ii) Maintain the site (including electricity an connectivity) and equipment used by PHYSEE in performing Services in good condition;
(iii) Not make design or development choices or allow or instruct a third party (such as an architect) to make design or development choices for the building in which Products or Services are used that interfere with the quality, usability and efficiency of Products and Services;
(iv) Cooperate with PHYSEE, or cause a Building Owner to cooperate with PHYSEE, in the development and installation of Products and Services;
(v) Obtain and keep current, or as applicable inform the relevant third party to obtain and keep current, all permits and approvals prior to any development activity on or for the building in which the Products or Services are used;
(vi) Use Products and Services, and cause third parties that will use Products and Services, to use in accordance with the applicable laws, relevant instruction manuals and only for their intended purpose;
(vii) not make any alterations to the Products without approval of PHYSEE;
(viii) be responsible for all costs (including repair and replacement costs) resulting from improper use of the Products and Services;
(ix) use reasonable endeavors to inform potential Users and End Users about the SENSE Platform and the possibility to enter into a Subscription Agreement, and, where relevant, ensure compliance with the use terms as set out in the Subscription Agreement;
(x) make available competent staff if and when required to support PHYSEE.
7. Periodic review
7.1. PHYSEE reserves the right to review the building in which Products or Services are used periodically to determine if there has been demonstrated good faith compliance with these Terms or an Agreement.
7.2. Customer shall grant, or shall cause Building Owner to grant access for this purpose. If PHYSEE finds that on the basis of evidence that there has been a failure to comply with these Terms or an Agreement, PHYSEE shall be entitled to improve or alter the Products or Services at Customer’s costs.
8. Customer warranties:
8.1. Customer warrants that:
(i) it has obtained all necessary rights and permissions from the Building Owner and or other third parties (including but not limited municipalities and mortgage holders such as banks) necessary to implement Products and Services in a building.
(i) the implementation of the Products and Services in a building shall not violate any applicable laws, land use plans (bestemmingsplannen) and reasonable building requirements (redelijke eisen van welstand).
(i) it is in compliance (including its representatives, staff, shareholders and affiliates) with applicable laws in respect of anti-bribery, anti-money laundering or competition; and
(ii) it is not involved in providing bribes and/or remunerations or advantages to government officials or close family of government officials that are contrary to the applicable laws.
9. Limitation of liability
9.1. PHYSEE’s liability in relation to or arising from the provision of Products or Services to Customer, or otherwise under an Agreement, will be limited to the lower of 25% of the total price paid for the Services or Products to which such claims relate or the amount paid out by PHYSEE’s insurance. For Services performed PHYSEE’s s liability will be further limited to 25% of the total price per milestone or other specified point in time for all claims related to such milestone or specified point in time.
9.2. In deviation of clause 9.1, any liability that results from the installation or use of Products or Services in contravention of or not in strict accordance with the installation manual, is excluded.
9.3. 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, lost savings, loss of goodwill, loss of data, loss of profit, loss of use, and loss of contracts.
9.4. Nothing in these Terms or an Agreement excludes or limits the liability of either party for: (i) death or personal injury, (ii) fraud or fraudulent misrepresentation, or (ii) willful misconduct or gross negligence. In any event, in order to be entitled to make a valid claim referred to in clause 9.1, Customer shall notify PHYSEE of any such claim within 30 days of the date giving rise to the claim, and any lawsuit relating to a claim must be filed within 1 year of the date of such notification.
10.1. Customer shall indemnify and hold PHYSEE harmless from any and against all claims, demands, disputes, damages, costs, expenses, (including attorneys’ fees), incurred by PHYSEE as a result, directly or indirectly, of Customer’s or a third party’s (such as the architect’s) development and design choices, flaws, defects, faults, and shortcomings in relation to the building in which the Products or Services are used.
11. Intellectual property
11.1. The relationship between PHYSEE and the Customer shall not result in any transfer of intellectual property rights.
11.2. Customer does not obtain a license to use the SENSE Platform under these terms. To benefit from the SENSE Platform, Users have to enter into a Subscription Agreement.
11.3. Subject to Customer’s fulfillment of all obligations under the Agreement and these Terms, the supply of Products and/or Services (including software embedded in Products or Services such as firmware) includes a revocable, non-exclusive, non-sublicensable and non-transferable license to Customer under any intellectual property rights of PHYSEE to use or resell the Products as sold by PHYSEE and the Raw Data as generated by those Products, and/or, for Services, to use the Services during the term of the applicable Agreement in accordance with the applicable Services description.
11.4. In respect of any (embedded) software or other applications supplied to Customer, Customer shall not and shall not permit any third party to unauthorized access and use thereof.
11.5. The Products may contain software governed by licenses from third parties. Any such software is licensed to Customer subject to the terms and conditions of the applicable third party license, notwithstanding anything to the contrary in these Terms. More information on third party licenses included in Products can be found in the documentation for each Product.
12. Personal Data
Each party shall comply with all applicable data protection laws. Unless agreed otherwise by the parties, PHYSEE (or its subcontractors) will not process information relating to any identified or identifiable natural persons (“Personal Data”) for Customer or on Customer’s behalf.
13. Confidential Information
13.1. The Recipient shall protect all Confidential Information which the Discloser provides to it (whether orally, in writing or in any other form) using the same standards as the Recipient applies to its own comparable confidential information but in no event less than reasonable measures. The Recipient may only use Confidential Information for the purposes of the relevant Agreement. The Recipient may provide its and its affiliates’ employees, professional advisors, agents and consultants (all “Permitted Users”) with access to Confidential Information on a “need to know” basis only. The Recipient shall ensure that each of its Permitted Users are bound to hold all Confidential Information in confidence to the standard required under these Terms.
13.2. The Recipient’s confidentiality obligations will not apply to information: (i) already known to it at the time of disclosure without restrictions on disclosure; (ii) in the public domain or publicly available other than as a result of a breach of the relevant Agreement; (iii) provided to it by a third party who is under no such obligation of confidentiality; or (iv) independently developed by it without using the Discloser’s Confidential Information.
13.3. If any court, regulatory authority or legal process requires the Recipient to disclose information covered by this confidentiality obligation, then the Recipient may make any such disclosure, provided that the Recipient will, if permitted by law, advise the Discloser promptly of any such requirement and cooperate, at the Discloser’s expense, in responding to it.
13.4. Upon termination of the Agreement under which the Confidential Information is disclosed, each party shall return and make no further use of any Confidential Information belonging to the other party (except both parties shall have the right to retain information and documents in accordance with applicable law, their respective document retention schedules or pursuant to advice of their attorneys).
14. Termination and suspension
14.1. PHYSEE reserves the right by written notice of default to, at its option, cancel or suspend any performance due from PHYSEE and to refuse additional performance, or terminate an Agreement or any part thereof, if one of the following events (not-limitative) occurs: (i) the Customer defaults in performing its obligations under these Term or an Agreement, or (ii) the Customer ceases, or threatens to cease, business operations or enters into any bankruptcy, insolvency, receivership or like proceeding of the like not dismissed within 30 days, (iii) the Customer assigns its assets for the benefit of creditors, or (iv) the control over or ownership of Customer changes. PHYSEE may only use the right to terminate an Agreement pursuant to this clause if, in respect of an event under (i) above that is capable of being remedied, Customer fails to remedy the breach within 14 days.
14.2. Unless explicitly agreed otherwise in an Agreement: (i) any Services provided in relation to Products (including for example facilitating and maintaining a LoRaWAN network) and (ii) any license to use Products (including for example Digital Twin) shall terminate six months after the first delivery thereof in the event that, in relation to the building for which such Products and/or Services are provided, no Subscription Agreement has been concluded in a period of six months after the first delivery thereof. Without prejudice to the previous sentence, PHYSEE has the right to terminate an Agreement for convenience by giving 90 days prior written notice to the other Party.
14.3. The termination of an Agreement shall not release the Customer from its obligation to pay any charges then owing to PHYSEE.
15. General Provisions
15.1. Force Majeure. Either party shall be entitled to suspend performance of his obligations under an Agreement 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, industry-wide shortages, cyber-attacks and hacking, 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.
15.2. 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.
15.3. Regardless of what might otherwise follow from these Terms, either party shall be entitled to terminate the Agreement in relation to which the Force Majeure occurred by notice in writing to the other party if performance of that Agreement is suspended under clause 15.1 for more than six months.
15.4. Assignment. Either party may at any time transfer (by way of assignment or novation) an Agreement, or any rights or obligations thereunder, to any affiliate upon written notification to the other party (and the other party hereby consents to any such transfer).
15.5. Subcontracting. PHYSEE may subcontract any part of its obligations under any Agreement to a third party.
15.6. Severability. If any provision (or part of a provision) of these Terms or an Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were modified, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
15.7. Waiver. No failure, delay or omission by either party in exercising any right provided by law or under these Terms or an Agreement shall operate as a waiver of that right nor shall it preclude or restrict any future exercise of that or any other right. A waiver of any right under these Terms or an Agreement is only effective if it is in writing and signed by the waiving party and it applies only in the instance and to the circumstances for which it is given.
16. Export Control.
16.1. Customer will comply with all applicable trade control laws and provide PHYSEE with necessary data to comply with trade control laws.
16.2. Customer will ensure that, except with the prior written consent of PHYSEE, Products or Services are not exported, provided or made available to any Restricted Jurisdiction or Restricted Parties.
16.3. Customer certifies that it is not a Restricted Party.
16.4. The Customer shall defend, indemnify and hold PHYSEE harmless against any liability (including attorneys’ fees) arising out of Customer’s failure to comply with the terms of this clause.
17. Governing law and jurisdiction 17.1. All Agreements, Offers and these Terms, including any claim in contract or tort in relation thereto, will be exclusively governed by the laws of the Netherlands. The application of the Convention on the International Sale of Goods is excluded.
17.2. The competent court of Amsterdam, the Netherlands, shall have exclusive jurisdiction.