This life cycle support agreement (hereafter, the “Agreement”) is entered into on the agreed date for a period of 2 (two) years by and between
A. Pick-It NV, with registered offices at Gaston Geenslaan 9, 3001 Leuven, Belgium and registered with enterprise number 0662740919 (hereafter referred to as “Pick-It”) and its subsidiaries;
B. [Client Name], with registered offices at [Client address] and registered with enterprise number [number] (hereafter referred to as “Client”).
Pick-It and the Client are hereinafter referred to individually as a “Party” and jointly as the “Parties”.
“Basic SLA” means the standard “best efforts” service level agreement, as further specified under article 5.
“Base Support Pack” means (i) Software Maintenance Extension, (ii) Hardware Warranty Extension and (iii) for Technical and Functional Support (a) responding, according to the Basic SLA, to Service Requests, delivered via a standard Incident-submission form or e-mail to firstname.lastname@example.org, related to the technical or functional questions on the use of the Pickit3D Vision Solution and (b) documenting of all relevant information to enable analysis and reproduction of the Incident referenced in a certain Service Request.
“Certified Pickit3D Partner” means a Pickit3D Partner which has complied with the required certification procedure to qualify for the provision of the Functional Support.
“Confidential information” has the meaning as specified in article 8.
“Current Version” means the most recent version according to the Pickit3D Vision Solution release scheme.
"Custom Support Pack” means the Support Pack fully customized to the requirements of the Client, subject to a separate agreement between Parties.
“Extended SLA” means the extended service level agreement, as further specified under article 5.
“Functional Support” means (i) advising on functional questions on the use of a specific functionality of the Pickit3D Vision Solution, (ii) reproducing and analyzing the Incident and, if required, documenting the root-cause of the Incident and (iii) making a recommendation for a work-around or fixing the Incident and, if required, deciding on the urgency of providing a solution for the Incident.
“General Terms and Conditions” or “GT&C’s” means the general terms and conditions of Pick-It, as accepted Client.
“Hardware Warranty” has the meaning as specified in article 4.1a.
“Hardware Warranty Extension” has the meaning as specified in article 4.2b
“Hours of Coverage” means standard business days and business hours in countries and timezones where Pick-It has offices, i.e. Monday to Friday from 9:00am to 5:00pm, excluding public holidays in the countries where Pick-It has offices, during which de Services shall be provided.
“Incident” means an unplanned interruption or the incorrect functioning of an operating system, product or device in scope.
“Initial Term” has the meaning as specified in article 12.1.
“License Fee” means the production license fee as further determined under the General Terms and Conditions.
“New Version” has the meaning as specified in article 4.1b.
“Major Upgrade” means a new release of the Pickit3D Vision Platform denoted by a change of the first number as per the software versioning scheme. Major Upgrades are typically released at a frequency of 1 (one) every 2 years but its frequency is driven by major functional developments and must be seen as irregular.
“Minor Upgrade” means a new release of the Software denoted by a change of the second number as per the software versioning scheme. Minor Upgrades are typically released at a frequency of 2 (two) per year.
“Pickit3D Implementation Service” means the services provided by Pick-It for the implementation of the Pickit3D Vision Solution.
“Pickit3D Partner” means a certain partner engaged by Pick-It to commercialize the Pickit3D Vision Solution subject to the terms and conditions of an underlying partner agreement.
“Pickit3D Vision Solution” has the meaning as specified in article 3.2.
“Priority Matrix” has the meaning as specified in article 5.3.
“Renewal Term” has the meaning as specified in article 12.1.
“Response Time” has the meaning as specified in article 5.4.
“RMA” means Return Material Authorization.
“RTO” has the meaning as specified in article 5.4.
“Services” has the meaning as specified in article 3.1.
“Service Request” means a request in the form of a support ticket by the Client to perform a certain service activity such as giving advice or information.
“SLA” has the meaning as specified in article 5.1.
“SLA Matrix” has the meaning as specified in article 5.4.
“Software Maintenance” has the meaning as specified in article 4.1b.
“Software Maintenance Extension” has the meaning as specified in article 4.2a.
“Standard Support Pack” means (i) Software Maintenance Extension, (ii) Hardware Warranty Extension and (iii) for Technical and Functional Support (a) responding, according to the Basic SLA, to Service Requests, delivered via a standard Incident-submission form, e-mail, call or request for remote meeting to email@example.com, related to the most standard questions on the use of the Pickit3D Vision Solution and (b) documenting of all relevant information to enable analysis and reproduction of the Incident referenced in a certain Service Request.
“Superior Support Pack” means (i) Software Maintenance Extension, (ii) Hardware Warranty Extension and (iii) for Technical and Functional Support (a) responding, according to the Extended SLA, to Service Requests, delivered via a standard Incident-submission form, e-mail, call or request for remote meeting to firstname.lastname@example.org, related to the most standard questions on the use of the Pickit3D Vision Solution and (b) documenting of all relevant information to enable analysis and reproduction of the Incident referenced in a certain Service Request.
“Support Pack” means either the Base, Standard, Superior or Custom Pack, as agreed between Parties, which will differ in the specifics of the delivery of certain agreed Services.
“Technical Support” means providing a bug-fix for the Incident and resolving the Incident if it was due to a malfunction of the software of the Pickit3D Vision Solution or if the results of the coding of a specific part of Pickit3D Vision Solution was not as intended.
3. SCOPE OF THIS AGREEMENT
3.1. In consideration of timely payment of the applicable fees, Pick-It shall provide the life cycle support services as described in the GT&C’s, this Agreement and the Schedules (hereafter, the “Services”).
3.2. Through the Services, the Client is granted further access to Pick-It’s expertise after the purchase of the Pick-It smart 3D vision robotic automation solution (the “Pickit3D Vision Solution”), consisting of (i) certain hardware (the “Pickit3D Certified Hardware”), (ii) the robust Pick-It software solution (the “Pickit3D Vision Platform”) and, finally, (iii) the life cycle support services, with a view to provide the Client’s business with an increased availability of Clients production systems.
3.3. The present Agreement, together with its Schedules, attachments and/or annexes, are applicable to all Services provided by Pick-It to the Client. The Client expressly waives the application of its own general and special terms and conditions, even where it is stated therein that only those conditions may apply and even if such terms and conditions were not protested by Pick-It.
4. SUMMARY OF THE SERVICES
4.1. Services standard included under the GT&C’s
a) Hardware Warranty - Subject to the terms and conditions of the Agreement and provided the Client has timely paid the License Fees, for a period of twelve (12) months from the date of delivery, Pick-It shall either, at its sole discretion, (i) replace a defective or non-conforming or non-compatible Pickit3D Certified Hardware, (ii) repair a defective or non-conforming Pickit3D Certified Hardware or (iii) provide a credit note for the relevant (part of the) purchase price thereof. In case the integration was done by a Pickit3D Partner or through the delivery of the Pickit3D Implementation Service (separate, billable service), an additional 3 months of warranty to cover this integration work is added to the standard warranty period.
More in particular, the following provisions shall apply:
(i) The Client [or the Pickit3D Partner] will create a Service Request with an RMA request that needs to be approved by Pick-It. This means that, once Pickit3D has given approval, the Client [or the Pickit3D Partner] can return the specified piece of equipment back to Pickit3D and a replacement equipment, either new or refurbished and always carrying the same warranty as the original, will be sent.
(ii) In case of replacement of a defective or non-conforming Pickit3D Certified Hardware, the Client needs to return such product within two (2) weeks after the RMA is approved. After two (2) weeks, if no returned products have been received by Pick-It, the replacement materials will be invoiced at the then-current recommended end-user list prices. Pick-It will have a reasonable period of time to repair, replace or credit the defective or non-conforming Pickit3D Certified Hardware on a best-effort basis.
(iii) In case a repair not covered by the hardware warranty is required, the repair carries a six (6) month warranty which might be in place longer than the original equipment’s warranty. This warranty also applies to the replaced equipment.
(iv) Each Party is responsible for the relevant Party’s transportation costs related to such interactions Client shall pay for returned Pickit3D Certified Hardware that are not found to be defective or non-conforming together with any freight, testing and handling costs associated therewith.
b) Software Maintenance - Subject to the terms and conditions of the Agreement and for a period of time of one (1) year after purchase of the Pickit3D Vision Solution, Pick-It shall, within the price of the License Fee for the Pickit3D Vision Platform, supply Client with specific new versions of the Pickit 3D Vision Platform to be maintained so that the latter is kept up-to-date. In case the integration was done by a Pickit3D Partner or through the delivery of the Pickit3D Implementation Service (as a separate and billable service), an additional 3 months of Software Maintenance to cover this integration work is added to the period. This shall comprise Major and Minor Upgrades to the Pickit3D Vision Platform to be maintained with technical modifications, improvements, security fixes, small functional extensions and patches with corrections to the Pickit3D Vision Platform to be maintained and other workarounds for possible problems. These new versions of the Pickit3D Vision Platform to be maintained are jointly termed “New Versions”. If Pick-It supplies Client with a New Version, it shall also continue to support the predecessor version for a reasonable transitional period of six months but getting this support might in some cases require the available update to be installed. The availability of Minor and Major Upgrades are announced to via e-mail under the respective agreement with Client or via the Pickit3D Partner. Some Major Upgrade may require the Client to purchase and install a new Vision Processor.
c) Technical Support - Subject to the terms and conditions of the Agreement and provided the Client has timely paid the License Fees, Pick-It shall provide Technical Support to the Client for as long as the Client uses the Pickit3D Vision Platform. Such Technical Support shall be available to the Client during the Hours of Coverage. Pick-It shall only be obligated to provide Technical Support in respect of the Current Version of the Pickit3D Vision Platform. At the written request of the Client, Pick-It may provide to the Client Technical Support in respect of older versions of the Pickit3D Vision Platform, invoiced on a time and material basis, at Pick-It’s then-current applicable professional services rates or such other rates as agreed between the Parties prior to the commencement of such support. In case a Major Upgrade requires the installation of a new Vision Processor (see 4.1.c. also), Pickit will commit to maintain support for the last-before-version that runs on the previous Vision Processor version.
ATTENTION! It must be understood that Technical Support only covers fixing bugs and errors in the software of the Pickit3D Vision Platform and that under no condition this will include expert advice and support on how to best use the software and its possible configurations, post-installation and handover. The latter shall be included under Functional Support, subject to the conditions of this Agreement.
4.2. Support Packs
4.2.1. The Services, which are not included under the GT&C’s (as detailed under article 4.1), shall be combined in the various Support Packs and will comprise a combination of one or more of the following elements:
(a) The Software Maintenance Extension which gives unlimited access to Minor and Major Upgrades of the Pickit3D Vision Platform during the runtime of the agreed Support Pack under this Agreement.
(b) Hardware Warranty Extension which places cameras, processors and Pickit3D certified end-of-arm-tools under extended warranty for normal wear and tear (no accidental damage coverage and no accessories such as cables, camera covers & fixtures etc…).
(c) The Functional Support which allows customers and partners to get practical remote support related to the proper use of the Pickit3D Vision Platform (as further defined above, this will include expert advice and support on how to best use the software and its possible configurations, post-installation and handover). Subject to the terms and conditions of the Agreement and provided the Client timely paid the fees as agreed for the relevant Support Pack, [Pick-It/Pickit3D Partner] shall, during the Term, provide Functional Support to the Client. Such Functional Support shall be available to the Client during the Hours of Coverage. [Pick-It/Pickit3D Partner] shall only be obligated to provide Functional Support in respect of the Current Version and one immediately prior Major Upgrade of the Pickit3D Vision Platform, but in order to arrive at the best possible solution, upgrading to the latest version of the Pickit3D Vision Solution might be a requirement.
(d) The Technical Support which can be provided under a Basic or an Extended SLA.
4.2.2. Subject to the terms and conditions of the Agreement, up to sixty (60) days after the purchase of the Pickit3D Vision Solution, Client shall have the option to order a certain Support Pack, as further specified below.
Base Standard Superior Custom Pack
Software Maintenance Extended Duration Extended Duration Extended Duration see ind. items
Hardware Warranty Extended Duration Extended Duration Extended Duration see ind. items
Technical Support Basic SLA Basic SLA Extended SLA see ind. items
Functional Support Basic SLA Basic SLA (plus phone and remote meetings) Extended SLA see ind. items
5. SERVICE LEVELS
5.1. The service levels agreements (“SLA”), as further detailed under this article 5, shall apply to the Services provided as part of the Functional Support and the Technical Support.
5.2. The Client shall use the helpdesk (available via the contact details linked to the Support Pack and made available by Pick-It to notify Incidents and Service Requests (including such information as requested by Pick-It) to [Pick-It/ Pickit3D Partner].
a) Base Support Pack is ticket-based only.
b) Standard & Superior Support Packs allow phone and remote meetings.
c) Base and Standard Support Packs are provided with the Basic SLA. Superior Support Packs are provided with Extended SLA.
d) The Services under the Basic and Extended SLA are provided during the Hours of Coverage.
e) Under the Extended SLA a guaranteed response time will apply within the Response Times as specified under article 5.4.
5.3. Based on the information provided by the Client and/or information collected by [Pick-It/ Pickit3D Partner], [Pick-It/ Pickit3D Partner] shall categorize each Incident and Service Request notified pursuant to article 5.2, in accordance with the priority matrix specified below (hereafter, the “Priority Matrix”).
Severity Description of Impact
Service Level Target Examples
Priority Level (P0)
The Pickit3D Vision Solution is no longer communicating with the robot-cell 99,5%
(Processor is not starting, the camera is not working)
Priority Level (P1)
Moderate The Pickit3D Vision Solution is working, but the performance is partially impacted, a work around exists 98% (In some situations, some parts are not detected well )
Priority Level (P2)
The Pickit3D Vision Solution is functioning but the on-site administrator needs assistance with the use of the system 98% (A new robot camera calibration needs to be performed after the camera was moved, configuration for detecting a new part)
Note – for the purposes of the Priority Matrix the following terms shall be interpreted as follows:
“Severity” is the measure of how serious the incident is ranked and the resolution urgency.
− “High”: component or major system failure. Problem must be resolved as soon as possible.
− “Moderate”: component failure or partial degradation. Problem requires quick to standard response.
− “Low”: component failure, malfunction or minor degradation. Problem requires standard response to scheduled work.
“Impact” is the measure of how an incident or service failure is affecting the business operations and whether a valid workaround exists.
5.4. Upon receipt of a notification pursuant to article 5.2, Pick-It shall use its best efforts to (i) respond to the Incidents and Service Requests, and (ii) commence its support intervention, in accordance with the provision below based on their priority (as determined in the Priority Matrix) and the indicative times specified in the table below (hereafter, the “SLA Matrix”).
For the avoidance of doubt, the Response Times always indicate an objective start working on the Service Request and can never be interpreted as the time needed for a return to operations (hereafter, the “RTO”).
Target Response and Resolution Time
Target Response Time
P0 Best Efforts Within 8 business hours
P1 Best Efforts Next Business Day
P2 Best Efforts Within 3 Business Days
Note – for the purposes of the SLA Matrix the following terms shall be interpreted as follows:
“Response Time” - The Response Time is logged as of when a Pick-It support professional gets assigned to the ticket and starts evaluating the information made available in the Service Request. For the avoidance of doubt, the Response Time always indicate an objective start working on the Service Request and can never be interpreted as the time needed for a RTO.
5.5. Pick-It undertakes to use its commercially reasonable endeavors to resolve an Incident or perform a Service Request as soon as possible. However, the Client acknowledges, that given the technical and unpredictable nature of possible Incidents and/or Service Requests, Pick-It does not guarantee to provide a resolution for each specific Incident or to perform each specific Service Request, within a specified resolution. The obligation of Pick-It is thus an obligation of means and not an obligation to obtain a particular result. Upon request, Pick-It shall provide updates from time to time regarding the resolution of a specific Incident or execution of a specific Service Request.
6. ASSUMPTIONS AND EXCLUSIONS
6.1. The Client acknowledges and agrees that the Services, do not include any of the following and that Pick-It reserves the right to charge additional costs on a time & material basis (at the rates specified in Schedule 1) for any services provided in connection with the following:
a) On-site visits by Pick-It;
b) any hardware, software, services, information and data or other parts of the IT environment not managed by Pick-It pursuant to this Agreement;
c) issues (including, but not limited to Incidents and Service Requests) caused by using hardware, software, services, information and data or other parts of the IT-environment in a way that is not recommended;
d) Client has made unauthorized changes to the configuration or setup of affected, hardware, software, services, information and data or other parts of the IT-environment;
e) Client has prevented Pick-It from performing required maintenance and tasks related to the management of the IT-environment;
f) Issues (including, but not limited to Incidents and Service Requests) caused by unsupported hardware, software, services, information and data or other parts of the IT-environment;
g) Client’s third-party hardware supplier/vendor unable to supply equipment replacement parts;
h) any workstation that is not up to the latest operating system level will be upgraded, if possible, to the latest at an additional charge, subject to age and condition of the hardware and any application specific role that this device performs.
6.2. Pick-It reserves the right to offer additional service types which can be ordered by the Client at an additional cost. From time to time Pick-It shall inform the Client of any additional service packs (as may be applicable). If the Client wishes to include such additional service types in the Services, the Parties shall document this in writing.
7. GENERAL PROVISIONS
7.1. Pick-It shall provide the Services hereunder in complete independence and shall plan its activities as it sees fit. This independence constitutes an essential element of the Agreement without which the Parties would not have concluded it.
7.2. The Services shall be provided by [Pick-It’s Certified Pickit3D Partners of Pickit3D Support Engineers] and, unless expressly stated otherwise, Pick-It reserves the right to replace, reassign or remove its personnel during the performance of the Services in its sole discretion.
7.3. Pick-It undertakes to provide the Services in accordance with generally accepted industry standards and shall exercise reasonable care and skill in doing so.
7.4. The Client agrees that in order for Pick-It to effectively perform the Services in a proper, timely and efficient manner, the Client must cooperate with Pick-It in good faith. In particular, without limiting the generality of the foregoing, the Customer shall:
a) provide the appropriate internal communication and information within its organization;
b) provide access to its equipment, facilities, personnel, resources and systems, including its owned and licensed software, tools, data, databases and methodologies and any relevant documentation and information (such documentation and information to be accurate and complete) as necessary to allow Pick-It to adequately perform the Services;
c) ensure that its infrastructure, internet, cabling, network, telecommunication and electrical facilities meet industry practice, including best practice security requirements;
d) inform Pick-It promptly of any changes in its systems or infrastructure that may have an impact on the provision of the Services;
e) ensure that the environmental factors (such as temperature or humidity), meet the demands of its overall infrastructure.
7.5. The Client acknowledges that the Services may contain advice and recommendations. Unless explicitly agreed otherwise, the Client bears full responsibility for the use and/or implementation of such advice and recommendations.
7.6. The Services (including any deliverables that might be delivered thereunder) shall be performed by Pick-It in accordance with generally accepted industry standards while exercising reasonable care and skill, and will be deemed accepted upon delivery (unless expressly agreed otherwise).
8.1. For the purposes of this article 8, “Confidential Information” shall mean the information of a Party, whether in written, oral, electronic or other form, and which (i) is explicitly marked as confidential or proprietary, or (ii) should reasonably be considered confidential or is traditionally recognized to be of a confidential nature, regardless of whether or not it is expressly marked as confidential, including but not limited to, all materials, papers, databases, drawings, diagrams, calculations, figures, procedures, processes, business methodologies, contracts (including this Agreement), financial, technical and legal information, budgets, sales marketing, public relations, advertising and commerce plans, ideas, strategies, projections, business plans, strategic expansion plans, products and product designs.
8.2. Each Party shall treat as confidential and keep secret all Confidential Information relating to the other Party and shall not disclose it to any third party, other than its employees, advisors, agents or consultants where such disclosure is necessary for the performance of this Agreement and provided that they are bound by confidentiality obligations at least a strict as those provided herein, any Confidential Information learned during the negotiation and performance of the Agreement. Confidential Information disclosed the Agreement shall not be used by the recipient thereof for any purpose other than as required for the performance of its obligations under the Agreement.
8.3. The Parties shall take sufficient measures to maintain the confidentiality of all Confidential Information. The Parties in particular agree that they (i) shall not copy or otherwise exploit any component of the Confidential Information other than as provided herein, nor make any disclosures with reference thereto to any third party; (ii) shall ensure that all copies of the Confidential Information (made in accordance with the provisions of the Agreement) contain a permanently legible reproduction of the other Party’s copyright notice and a confidentiality notice; (iii) shall promptly notify the other Party if it becomes aware of any breach of confidence and give the other Party all reasonable assistance in connection with the same.
8.4. The provisions of this article shall not apply to any Confidential Information which (i) is published or comes into the public domain other than by a breach of the Agreement; (ii) can be proven to have been known by the receiving Party before disclosure by the disclosing Party; (iii) is lawfully obtained from a third party that is not bound by a duty of confidentiality; or (iv) can be shown to have been created by the receiving Party independently of the disclosure and other than as part of the project.
8.5. If and to the extent required in accordance with a judicial or other governmental order, the receiving Party may disclose Confidential Information, provided that the receiving Party (i) gives the disclosing Party reasonable notice prior to seek a protective order or equivalent, unless the receiving Party is legally prohibited from doing so; (ii) reasonably cooperates with the disclosing Party in its reasonable efforts to obtain a protective order or other appropriate remedy; (iii) discloses only that portion of the Confidential Information that it is legally required to disclose; and (iv) uses reasonable efforts to obtain reliable written assurances from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection available under applicable law or regulation.
8.6. The obligations set out in this article 8 shall enter into force as from the start of negotiations between the Parties and shall survive during five (5) years after the termination or expiration of the Agreement. These confidentiality obligations in this Agreement replace any prior non-disclosure agreement signed between the Parties.
9. PRIVACY AND DATA PROTECTION
9.1. The Parties shall comply with all applicable legal requirements regarding privacy and data protection, more in particular with the General Data Protection Regulation of 27 April 2016 (“GDPR”) with respect to the processing of personal data.
9.2. In particular, the Client represents and warrants to Pick-It that it has the legal right to disclose any personal data that is available to Pick-It under or in connection with this Agreement and that the Client has a valid legal ground to process such personal data and to disclose such personal data to Pick-It in accordance with applicable law. The Client undertakes to sufficiently inform all data subjects about such processing activities by the Client and/or Pick-It (as applicable) in accordance with applicable law. The Client shall indemnify, defend and hold harmless Pick-It against all third party claims if the Client has failed to comply with or breached one or more obligations under the GDPR.
9.3. If applicable, Pick-It shall process any personal data provided to or made available to Pick-It hereunder in accordance with the data processing agreement attached hereto in Schedule 2.
10.1. The Client shall pay any and all fees in the amounts and on the times set forth in the Schedule 1 and in accordance with the provisions below.
10.2. For the avoidance of doubt, any out-of-scope services shall be invoiced on a time and material basis at the rates specified in Schedule 1.
10.3. All invoices shall be paid within thirty (30) days after the invoice date. Any disputes must by notified by the Client by registered letter (containing the reasons for such dispute) within ten (10) business days after the invoice date. If the Client has not disputed an invoice in accordance with the previous sentence, the invoice shall be deemed accepted by the Client.
10.4. Invoices shall be sent in PDF-format to the Client’s email address or as a physical copy to the Client’s address if specifically requested by the Client in writing. All payments under this Agreement shall be made in euro (€) (or such other currency as agreed by the Parties in writing) and are exclusive VAT and exclusive any other costs and expenses which may be charged separately by Pick-It (if applicable).
10.5. All amounts payable to Pick-It under the Agreement shall be paid without the right to set off or counterclaim and free and clear of all deductions or withholdings whatsoever unless the same are required by law, in which case the Client undertakes to pay Pick-It such additional amounts as are necessary in order that the net amounts received by Pick-It, after all deductions and withholdings, shall not be less than such payments would have been in the absence of such deductions or withholdings.
10.6. Any amounts of undisputed invoices that have not been paid within thirty (30) days after the invoice date shall automatically and without notice be subject to a late payment interest equal to eight percent (8%) per month or the maximum extent permitted by applicable law. The interest shall be compounded daily as of the due date until receipt of full payment by Pick-It. In addition, the Client shall pay all costs incurred by Pick-It as a result of the (extra)judicial enforcement of the Client’s payment obligation under this article. If Client fails to pay any outstanding amounts within thirty (30) days from receipt of a written default notice, Pick-It shall be entitled to suspend its obligations and the Client’s rights hereunder until receipt of payment of such outstanding amounts.
11.1. Subject to the maximum extent permitted under applicable law, Pick-It’s liability under the Agreement shall, per event (or series of connected events) and in the annual aggregate per contract year, not exceed an amount equal to all fees paid hereunder during such contract year.
11.2. Subject to the maximum extent permitted under applicable law, under no circumstances shall Pick-It be liable to the Client for any indirect, punitive, special, consequential or similar damages (including damages for loss of profit, lost revenue, loss of business, loss of corruption of data, information, software or hardware, loss of customers and contracts, loss of goodwill, the cost of procuring replacement goods or services, and reputational damage) whether arising from negligence, breach of contract or of statutory duty or otherwise howsoever.
12. TERM AND TERMINATION
12.1. The Agreement shall commence on the Effective Date and shall continue for a period of five (5) years (the “Initial Term”). After the Initial Term the Agreement shall automatically and tacitly renew for consecutive one (1) year periods (each a “Renewal Terms”), unless either Party notifies the other Party in writing of its intend not to renew the Agreement at least one (1) month before the end of the Initial Term or the then current Renewal Term or unless terminated earlier in accordance with this article 12.
12.2. Either Party may immediately terminate (or Pick-It may alternatively suspend) the whole or any portion of the Agreement without any judicial intervention, without being liable for compensation and without prejudice to its rights to damages and any other rights, remedies and/or claim to which it may be entitled by law, upon providing the other Party with written notice of termination if (i) the other Party performs a material breach to any provision of the Agreement and fails to cure such material breach within thirty (30) calendar days after receipt of written notice of the material breach (unless such breach is not capable for remedy), or (ii) the other Party becomes insolvent, is subject to voluntary or involuntary bankruptcy, insolvency or similar proceeding or otherwise liquidates or ceases to do business.
13.1. Entire agreement – The Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior oral or written agreements, representations or understandings between the Parties relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in the Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of the Agreement.
13.2. Severability – If any provision of the Agreement is held to be unenforceable (in whole or in part), the other provisions shall nevertheless continue in full force and effect. The provisions found to be unenforceable shall be enforceable to the full extent permitted by applicable law. Each Party shall use its best efforts to immediately negotiate in good faith a valid replacement provision with an equal or similar economic effect.
13.3. Waiver – The terms and conditions of the Agreement may be modified or amended only by written agreement (including through electronic signature technology) executed by a duly authorized representative of both Parties hereto. This Agreement may be waived only by a written document signed by the Party entitled to the benefits of such Terms or Conditions. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or conditions, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent.
13.4. Survival – The provisions of the Agreement that are expressly or implicitly intended to survive termination, shall survive expiration or termination of the Agreement, including without limitation, the provisions relating to Intellectual Property Rights, Confidential Information and limitation of liability.
13.5. Assignment – Pick-It may assign, transfer and/or subcontract the rights and obligations under this Agreement to any third party. The Client shall not assign or otherwise transfer any of its right of obligations under the Agreement without Pick-It’s prior written consent.
13.6. Force Majeure – Neither Party will be responsible or liable for any failure or delay in the performance of its (non-monetary) obligations under the Agreement arising out of or caused by Force Majeure. In the event of Force Majeure, the Party shall inform the other Party at least within reasonable time about the nature of the Force Majeure and the fact that it wants to rely on this article. The Party must, within reasonable time, provide the other Party with evidence of the existing Force Majeure, the date when the Force Majeure comes or has come into effect, and also when it will have ceased to exist. In case of Force Majeure, the Party is obligated to mitigate damage, and must use its reasonable efforts to keep the consequences to a minimum. In the event of a failure to comply with the abovementioned procedure, the Party shall be prevented to rely on the Force Majeure event and the Force Majeure article.
13.7. Notices – Any notice required to be served by the Agreement shall in first instance be given by electronic mail to the email addresses as specified in Schedule 1 (or as otherwise notified from time to time by one Party to the other Party). All notices given by electronic mail, shall only be valid in case confirmation of receipt was expressly given by electronic mail from Pick-It to the Client within five (5) Business Days. In case no confirmation of receipt was given by Pick-It within five (5) Business Days, all notices can be done in writing and served by personal delivery, registered letter, addressed to either Party at its address specified on the first page or to such other address as a Party may designate by notice hereunder. All Notices shall be deemed to have been given either (1) if by hand, at the time of actual delivery thereof to the receiving Party at such Party’s address, as provided above, (2) if sent by overnight courier, on the next Business Day following the day such notice is delivered to the courier service, or (3) if sent by registered or certified mail, on the fifth (5th) Business Day following the day such mailing is made.
13.8. Interpretation – In the Agreement (unless the context shall otherwise require or permit) (i) reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted; (ii) words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and incorporate; and each case vice versa; (iii) the headings or captions to the articles are for ease of reference only and shall not affect the interpretation or construction of the Agreement.
13.9. Conflict – In case of conflict between the provisions of the contractual documents executed between the Parties, the following order of precedence shall apply: (i) Schedule 2, (ii) Schedule 1, (iii) this Agreement, and (iv) any other annexes or attachments.
13.10. Relationship of the Parties – The relationship between Pick-It and Client is that of independent contractors.
13.11. Publicity – Pick-It shall have the right to use any trademarks, logos or other marks of the Client (including the Client’s corporate name) for client references on Pick-It’s website, social media announcements and sales presentations. With respect to the publication of more detailed case studies or blogposts, the Parties shall agree on the content and manner of publication thereof in mutual consent.
13.12. Dispute resolution – Before initiating proceedings before the competent courts, the Parties shall exercise reasonable good faith efforts to amicably settle any disputes that might arise during the execution of this agreement.
13.13. Applicable law and jurisdiction – The Agreement shall be governed by and construed in accordance with the laws of Belgium and the Parties hereto submit to the exclusive jurisdiction of the courts of Leuven. The United Nations Convention for the International Sale of Goods shall not apply to the Agreement.
Signature page follows
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives on the dates set forth below.
Printed Name: Printed Name:
Schedule 1 – Service Packs & Pricing
1. Rate card
The following rate card shall apply for any services that are provided on a time and material basis and which are not covered by the Support Pack Contracts. If such services are required to respond to a service request, Pick-It will proactively notify the customer prior to commencing the execution of the service.
Min. charge per block
Business Hours (9am-5pm) 150 €/hr 300 €
Extended Hours (7-9am, 5-8pm) 200 €/hr 400 €
Emergencies (weekends, public holidays) 250 €/hr 1.000 €
2. SUPPORT PACK CONTRACTS - Pricing
2.1. LifeCycle Support Pack - Standard
The Client has opted to secure the service and support of his investment for a period of 2 years according to the terms and conditions of the Standard LifeCycle Service Pack as defined in this agreement. Hardware components covered by this agreement are processor pc-60397 and camera 23222042.
The pricing agreed per annum for the Standard Pack is 4,608 USD/yr. The Client has opted to pay the total contract value in advance.
The fees for the Support Pack Contracts are to be pre-paid per year, based on an annual recurring invoice provided by Pick-It on the effective date and following that at the start of each 12-month period.