Terms & Conditions

PICK-IT GENERAL TERMS AND CONDITIONS

Version 1, February 2023

1. Scope of application
   1. These Terms and Conditions are applicable to all Pickit3D Vision Solutions and services offered by Pick-It, Pickit N.V. or any of its subsidiaries unless explicitly agreed otherwise in writing.
   2. The Client agrees to waive 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.
2. Definitions
   1. In these Terms and Conditions, the capitalized terms mentioned below shall have the following meaning:
   2. Agreement means the agreement concluded between Pick-It and the Client regarding the Pickit3D Vision Solution, including these Terms and Conditions, the Life Cycle Support Agreement, the Schedules, any specific conditions agreed in writing and the Documentation.
   3. Client means a natural person or legal entity (i) issuing a request for offer, request for proposal, in any form, with the intention to enter in a business relationship with Pick-It and/or (ii) entering into an Agreement with Pick-It;
   4. Client Data means all data generated by the Client when using the Pickit3D Vision Solution and as processor stored by Pick-It as a result thereof;
   5. Current Version means the most recent version according to the Pickit3D Vision Solution release scheme;
   6. Data Protection Laws means all applicable laws relating to the processing of Personal Data, including the General Data Protection Regulation (Regulation (EU) 2016/679) (GDPR);
   7. Documentation means the operating and/or user manual(s), including a description of the Pickit3D Vision Solution and all other related materials made available by Pick-It to its Clients;
   8. Effective Date has the meaning given to it in Clause 3.2;
   9. Force Majeure means temporary or permanent inability of a Party to fulfill its obligations, resulting from external facts and circumstances reasonably beyond the control of that Party such as a lock-out, strikes, epidemics, war, economic embargoes, sabotage, fire, unfavourable weather conditions, water damage, machine failure, breakdowns, delays in the delivery of important components during manufacturing, disruptions or delays in the transportation or receipt of raw materials;
   10. Hardware Warranty has the meaning given in Clause 9.1.1;
   11. Hours of Coverage means standard business days and business hours in countries and time-zones where Pick-It has offices, i.e. Monday to Friday from 9:00am to 5:00pm, excluding public holidays of the applicable country, during which de relevant Services shall be provided;
   12. Incident means an unplanned interruption or the incorrect functioning of an operating system, product or device in scope;
   13. Initial Term has the meaning given to it in Clause 13;
   14. Intellectual Property Rights means the following: (i) copyright, patents, database rights and rights in trademarks, designs, know-how and trade secrets (whether registered or unregistered); (ii) applications for registration, and the right to apply for registration, for any of these rights; and (iii) all other equivalent or similar forms of protection of intellectual property existing anywhere in the world;
   15. Implementation Date means the date on which Client has installed and/or configured the Pickit3D Vision Solution;
   16. Life Cycle Support Agreement means, if applicable, the support services agreement as attached in Schedule 2, concluded between Pick-It and the Client;
   17. License Fee means the production license fee as further determined in Clause 7.1;
   18. Major Upgrades 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.
   19. Minor Upgrades 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;
   20. New Version means the new versions of the Pickit3D Vision Platform as a result of the Software Maintenance;
   21. Order Form means the order form or any other similar document that is issued by Pick-It of Pickit3D Partner to the Client;
   22. Party and Parties means the Client and/or Pick-It;
   23. Personal Data has the meaning given to it in the GDPR;
   24. Pick-It, us, our and we means Pick-It NV, having its registered office at Gaston Geenslaan 9, 3001 Leuven and company number 0662.740.919 or any of its subsidiaries;
   25. Pickit3D Certified Hardware means certain hardware elements provided as part of the Pickit3D Vision Solution;
   26. Pick-It’s IPR has the meaning given in Clause 15.1.
   27. 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;
   28. Pickit3D Vision Solution means the Pick-It smart 3D vision robotic automation solution, consisting of (i) the Pickit3D Certified Hardware, (ii) Pickit3D Vision Platform and, (iii) the Standard Services plus, if applicable, the Services under the Support Packs;
   29. Pickit3D Vision Platform means the robust Pick-It software solution;
   30. Renewal Term has the meaning given to it in Clause 13;
   31. Schedules means the schedules and/or annexes attached to the Terms and Conditions;
   32. Services means the Standard Services plus the services provided under the Service Packs;
   33. Software Maintenance has the meaning given in Clause 9.1.2.
   34. Standard Services means the standard sales support services consisting out of the Hardware Warranty, the Software Maintenance and the Technical Support, as specified in Clause 9;
   35. Standard Warranty Period means one year after purchase of the Pickit3D Vision Solution;
   36. Support Pack means the additional services agreed upon by Parties in the Life Cycle Support Agreement.
   37. 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.;
   38. Term means the Initial Term and any Renewal Term (if applicable);
   39. Terms and Conditions means the present Pick-It terms and conditions, including the Schedules;
   40. User means a user that has been authorized by the Client to access and use the Pickit3D Vision Platform;
   41. Warranty shall have the meaning set out in Clause 18.
       All other terms and definitions with capital letters which are not defined expressly in this clause, shall have the meaning given to them in the Terms and Conditions.
3. Orders
   1. Order Forms issued by Pick-It are only binding on us when made in writing and for a maximum period of fifteen (15) calendar days, unless stated otherwise in the Order Form.
   2. The Agreement becomes effective after both Parties have accepted and signed the Order Form on the date of the last signature of the Order Form (Effective Date).
   3. In the event of inconsistencies between these Terms and Conditions, our Order Form or order confirmation from our Client, the following order of precedence applies: (i) our Order Form, (ii) our Terms and Conditions and (iii) the order confirmation.
   4. Client acknowledges that it acts in the context of its professional activities and that, as a result, the Client shall not have the right to withdraw or cancel any orders made.
   5. If the Client is obliged to pay VAT, it must provide us with its VAT number and the percentage that it may deduct, on its own initiative, at the latest when placing the order or signing the Agreement.
4. Use of the Pickit3D Vision Solution
   1. The Client recognizes that: (i) the Client is responsible for implementing all necessary safety precautions alongside the Pickit3D Vision Solution and complying with all applicable legislation and (ii) the Pickit3D Vision Solution shall only be used in accordance with the Agreement (including the Documentation) and Client shall be responsible for ensuring that the users shall only use the Pickit3D Vision Solution in accordance with the Agreement (including the Documentation).
   2. The Pickit3D Vision Solution shall not be used: (i) for illegal purposes, to perform acts that could be contrary to the applicable law (criminal or otherwise) or that could be prejudicial to Pick-It, other Clients or third parties; (ii) for purposes, applications or within industries and/or environments (y) other than those approved by Pick-It and/or (z) for which specific certifications are required; (iii) to copy or reverse engineer the Pickit3D Vision Solution or to directly or indirectly prepare competing or derivative Pickit3D Vision Solution products or services; and/or (iv) to resell or market the Pickit3D Vision Solution to third parties unless otherwise agreed in a formal Channel Partner and/or Reseller Agreement.
   3. Unless explicitly agreed otherwise between Parties, Pick-It shall not be responsible for installing, configuring and functionally supporting the Pickit3D Vision Solution.
5. Pickit3D Certified Hardware Delivery and Acceptance
   1. Any delivery schedule provided by us is purely a good-faith estimation. Pick-It has the right to change or delay the delivery schedule if causes beyond its reasonable control prevent the delivery within the stipulated timeframe, without giving rise to any compensation. Pick-It shall inform the Client thereof.
   2. Unless explicitly agreed otherwise in writing, any delivery obligation of Pick-It shall be subject to receipt by Pick-It of the required advance payment. In any case, we cannot be held liable for any failure or delay in the execution of our obligations (i) if the Client has not respected its payment obligations; or (ii) in case of Force Majeure.
   3. Pickit3D Certified Hardware are shipped Ex Works (INCOTERMS latest version) via UPS or such other third party appointed by Pick-It. The delivery of the Pickit3D Certified Hardware shall occur at the Client’s risk and cost. Any applicable customs costs shall be borne by the Client. If and to the extent explicitly indicated in the Order Form, Pick-It shall arrange minimum insurance during transportation of the Pickit3D Certified Hardware under the applicable UPS (or such other third-party delivery service) insurance conditions.
   4. The Client, the recipient, the collector or the person receiving the Pickit3D Certified Hardware on behalf of the Client must inspect the goods for deviations (i) upon receipt thereof and express any reservations they have regarding any damage or visible defects in writing to the courier; or, if immediate inspection is not reasonably possible, (ii) at the latest within eight (8) calendar days following delivery in writing to Pick-It.
   5. The delivered Pickit3D Certified Hardware shall be deemed to be in accordance with the Agreement and accepted by the Client unless a claim is formulated within eight (8) calendar days of the delivery date. Any such claim must be formulated in writing by e-mail and shall clearly describe the reasons for Client’s non-acceptance. Such claims do not in any circumstances suspend the payment obligation of the Client. Any non-accepted Pickit3D Certified Hardware shall only be sent back (i) after Client has received Pick-It’s prior written authorisation to return the Pickit3D Certified Hardware and in accordance with Pick-It’s instructions, (ii) in the original packaging and (iii) within eight (8) calendar days of Pick-It’s authorisation. Pick-It shall only bear the costs of any Pickit3D Certified Hardware returns if Client has complied with the aforementioned conditions.
6. Compatibility
   1. It is the Client’s responsibility to assess, based on the Documentation made available by Pick-It, whether its equipment is compatible with the Pickit3D Vision Solution. By purchasing the Pickit3D Vision Solution, Client agrees and confirms that Pick-It has provided all information required for Client to assess the specifications of the Pickit3D Vision Solution, their functionalities and the compatibility of the Pickit3D Vision Solution with Client’s equipment.
   2. Client understands and agrees that (i) part of the Pickit3D Certified Hardware is produced by third-party manufacturers and (ii) components used in the design of the Pickit3D Certified Hardware as well as its firmware may change over time. Technological changes introduced by, for instance manufacturing companies, security events, market conditions and other factors may require that the Pickit3D Certified Hardware and/or firmware of the Pickit3D Vision Solution are changed, updated and/or upgraded from time to time. Client agrees that Pick-It shall be entitled to release firmware updates for the Pickit3D Certified Hardware from time to time. Pick-It warrants compatibility of the original (i.e. as available at the Effective Date) functionalities of the Pickit3D Certified Hardware with the Pickit3D Certified Hardware purchased at the Effective Date during the first twelve (12) or fifteen (15) months after the Effective Date (as the case may be under article 9.1.1), unless such compatibility cannot be guaranteed due to (changes in) applicable regulatory and/or legal requirements.
7. Provision of the Pickit3D Vision Platform
   1. Subject to Client’s payment of the applicable License Fees (as set out in the Order Form), Pick-It hereby grants to the Client a personal, perpetual, restricted, non-transferable, non-sublicensable, non-exclusive, license to access and use the Pickit3D Vision Platform for the internal business purposes of the Client in accordance with the applicable Documentation and any additional license restrictions set out in the Order Form or as explicitly agreed in writing between the Parties. Within the scope of this license, the Client is permitted to have access to and to use the Pickit3D Vision Platform, under the conditions as mentioned in the Agreement. The extent of the license granted under the Agreement is restricted to the scope expressly set forth herein, and there are no implied licenses under the Agreement.
   2. Except to the extent expressly permitted in this Agreement or required by law, the Client shall not: (i) sub-license, assign, distribute, transfer, sell, lease, rent charge or otherwise deal in or encumber its right to access and use the Pickit3D Vision Platform, or use the Pickit3D Vision Platform on behalf of any third party or make them available to any third party, nor allow or permit a third party to do any of the same; (ii) permit any unauthorised person to access or use the Pickit3D Vision Platform; (iii) republish or redistribute any content or material from the Pickit3D Vision Platform; (iv) reproduce, arrange, modify or alter the Pickit3D Vision Platform including for the purpose of correcting errors, or create derivative works based on the Pickit3D Vision Platform or enable a third party to perform such acts; (v) remove or alter any copyright or other proprietary notices of Pick-It and/or its licensors; (vi) use the Pickit3D Vision Platform for (a) any activity that is in breach of the law, public order or public morality, (b) unsolicited commercial communications (e.g. spam); (c) collecting or harvesting personal information in breach of the law (e.g. phishing); or (d) any activity that is offensive, defamatory, harmful to minors, indecent, illegal, in breach of third party rights or otherwise objectionable; and/or (vii) access the software code (including object code, intermediate code and source code) of the Pickit3D Vision Platform.
   3. Pick-It will provide the Standard Services from the Implementation Date onwards. Client acknowledges and agrees that the Standard Services can only be provided if Client has the required access to the Pickit3D Certified Hardware and the Pickit3D Vision Platform and can extend that access to Pick-It if and when required.
   4. Pick-It may, without being held to any compensation, proceed with an interruption of the Standard Services for the purpose of maintaining or improving them, or where, according to Pick-It, suspension of the access to the Pickit3D Vision Platform will prevent or usefully inhibit any sufficiently serious threat to the confidentiality, integrity or availability of the Pickit3D Vision Platform. Pick-It shall use reasonable efforts to give prior written notice of scheduled maintenance services that is likely to affect the availability or functioning of the Pickit3D Vision Platform or are likely to have a material negative impact on the functionality of the Pickit3D Vision Platform.
   5. Notwithstanding any other provisions of this Agreement, Pick-It may make changes to the manner of its delivery of the Pickit3D Vision Platform, standards, operating procedures, accessibility periods, allocation and quantity of system resources used and administrative and operational methods, systems or algorithms, provided, however, that Pick-It will implement such changes so as not to materially and adversely affect the Pickit3D Vision Platfom
8. Client Data
   1. The Client hereby grants to Pick-It a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Client Data to the extent required for the performance of Pick-It’s obligations and the exercise of Pick-It’s rights under this Agreement. The Client also grants to Pick-It the right to sub-license these rights to service providers or any other third party to the extent reasonably required for the performance of Pick-It’s obligations and the exercise of Pick-It’s rights under this Agreement, subject always to any express restrictions elsewhere in this Agreement
   2. The Client warrants to Pick-It that the Client Data, when used by Pick-It in accordance with this Agreement, will not infringe the legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
9. Standard Services
   1. Pick-It shall use reasonable efforts to offer the Standard Services, for a period of one (1) year after the purchase of the Pickit3D Vision Solution and provided the Client has timely paid the License Fee(s). The Standard Services include the following:
      1. A Hardware Warranty, meaning that Pick-It will ensure, in its sole discretion, (i) ) the replacement of defective or non-conforming Pickit3D Certified Hardware, (ii) the repair of defective or non-conforming Pickit3D Certified Hardware or (iii) the provision of 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 Implementation Service (separate, billable service), an additional 3 months of warranty to cover this integration work is added to the Standard Warranty Period;
      2. A Software Maintenance meaning the suppliance 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 (separate, 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.
      3. Technical Support, meaning the provision of 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 services rates or such other rates as agreed between the Parties prior to the commencement of such support. All Technical Support shall be provided on a “best efforts only” basis.
   2. In case of repetitive, unreasonable and/or out-of-scope support requests, Pick-It has the option (acting reasonably) to (i) charge additional fees for the provision of the requested support or (ii) to refuse to offer the requested support service. A Public Knowledge Base is available at no cost to the Client.
   3. Pick-It reserves the right to modify its support policy from time to time and shall notify the Client thereof in writing.
   4. Pick-It shall perform such Standard Services as an independent service provider. In no event shall the Agreement be interpreted as an employment Agreement between the Client and Pick-It or its employees.
10. Support Packs
    1. Up to sixty (60) days after the purchase of the Pickit3D Vision Solution, the Client shall have the option to conclude a Life Cycle Support Agreement, as provided in Schedule 1, in which the Client has the option to order specific Support Packs.
    2. Pick-It reserves the right to modify its support policy from time to time and shall notify the Client thereof in writing.
11. Prices
    1. Client shall pay the prices as agreed upon in the Order Form. If not stated explicitly otherwise, the agreed prices are expressed in Euro.
    2. The prices do not include (i) delivery costs, (ii) value-added tax, and (iii) other taxes, duties, customs duties or other similar charges, that will be at the Client’s cost. The Client shall promptly reimburse Pick-It for any such taxes or duties paid by Pick-It.
    3. For Services and Support, travel expenses will be at the Client’s cost. The Client shall promptly reimburse Pick-It for any such expenses paid by Pick-It.
    4. Any specific prices or terms or conditions which have been negotiated between the Parties are unique and shall not be used as a basis to seek or justify similar terms in the future.
    5. Pick-It reserves the right, at any time, to change the prices stated in its catalog, pricelist, any Order Forms that have not been accepted, or on its website. However, prices confirmed in already concluded Agreements will not be changed, unless explicitly stated otherwise in the Agreement.
    6. Pick-It may annually increase any recurring fees in accordance with the following formula, without any formalities being required: P = Po x [0.80 (S/ So) + 0.20] whereby: S is the national Belgian average reference salary as published by Agoria as applicable two months prior to the indexation; So is the national Belgian average reference salary as published by Agoria as applicable during the month preceding the Effective Date; P is the increased recurring fee; and Po is the initial recurring fee.
    7. Upon renewal of the Term, Pick-It may increase the applicable fees. In such case, Pick-It will notify the Client at least thirty (30) days in advance of the renewal and the increased fees will apply at the start of the next Renewal Term. If the Client does not agree with this increase, Client has the right to provide a notice of non-renewal during the thirty (30)-day period following the aforementioned notification.
    8. Our prices are based on the information provided to us by the Client and do not take account of special circumstances which we could not possibly have foreseen at the time when we issued the Order Form or entered into the Agreement. In case such special, unforeseen circumstances arise, Pick-It shall have the right to modify the agreed price. If the Client does not agree in writing with the modified price, both Parties shall have the right to terminate the Agreement, without court intervention and without any additional compensation.
12. Invoicing
    1. Unless explicitly agreed otherwise in writing, the prices as agreed under the Order Form shall be invoiced one hundred percent of the total fees at the Effective Date.
    2. Fees for LifeCycle Service Pack contracts, shall be invoiced on the effective date and thereafter annually on the anniversary of the effective date, covering the upcoming twelve (12) months, unless agreed otherwise between Parties.
    3. Unless explicitly indicated otherwise, Pick-It shall have the right to send its invoices electronically to the Client’s email address set out in the order form. Electronic invoices are deemed to have been received by the Client at the date of sending thereof by Pick-It.
    4. Any claim by the Client relating to an invoice shall be sent within eight (8) calendar days of the date on the invoice. Such claim must be notified to Pick-It in writing by e-mail stating the reason for the claim. If no claim is received within the specified period or if the claim only relates to a part of the invoice, the (undisputed part of the) invoice shall be deemed to have been accepted in full by the Client.
    5. All amounts to be paid to Pick-It under this 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 case of the latter, 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.
    6. Unless explicitly agreed otherwise in writing, payment must be made within thirty (30) days after invoice date (Due Date) by bank transfer on the account of Pick-It as indicated on the invoice.
    7. In case of late payment by the Client:
       1. The amount of any invoice which has not been paid on or before its Due Date shall automatically be subject to a late payment interest equal to eight (8) percent per month or the maximum extent permitted by applicable law, which interest shall be compounded monthly as of the Due Date until receipt of full payment by Pick-It;
       2. In addition, 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. To cover the extrajudicial collection costs and the additional administrative work involved, a compensation payment equal to ten (10) percent of the outstanding balance with a minimum of EUR 1000 shall apply, plus a fixed charge of EUR 100 per reminder plus any registration charges;
       3. if we bring in third parties to collect the outstanding amounts, the relevant charges will also be charged to the Client;
       4. all other invoices, even those that have not yet fallen due, become immediately payable; and
       5. Pick-It shall be entitled to suspend, without notice, its obligations and the Client’s rights hereunder until receipt of payment of any outstanding amounts.
    8. Incomplete or partly disputed performance of our obligations under the Agreement may not, in any circumstances, serve a pretext for postponing payment of the undisputed part.
    9. Where we grant payment facilities, such as payment in instalments, it is expressly agreed that the first non-payment will automatically result in instalments that have not yet fallen due to become immediately due and payable without further notice of default.
    10. Pick-It shall at all times be entitled to transfer all or part of the debt claim(s) against the Client to a third party.
13. Term and Termination
    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 intent 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.
    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.
    3. Pick-It may terminate the user rights granted thereunder by written notice to the Client if the Client fails to pay to Pick-It any amount due and the Client fails to cure such failure to pay within fifteen (15) calendar days from the date of such notice.
    4. Upon termination of the Agreement, the Client shall promptly pay Pick-It all fees and other amounts earned by or due to Pick-It in respect of the Pickit3D Vision Solution, up to and including the date of termination..
14. Data Protection
    1. Each Party shall comply with the Data Protection Laws with respect to the processing of personal data.
    2. The Client warrants to Pick-It that it has the legal right to disclose all personal data that it does in fact disclose to Pick-It under or in connection with this Agreement and that the Client has obtained sufficient consent from all data subjects concerned (if applicable).
    3. Pick-It shall only process personal data on behalf of Client in accordance with the data processing agreement set forth in Schedule 2 (Data Processing Agreement).
15. Retention of title and Intellectual Property
    1. For the avoidance of doubt, Pick-It retains all title and ownership of the Pickit 3D Certified Hardware until full payment of all amounts the Client owes Pick-It under the Agreement in respect of such Pickit 3D Certified Hardware.
    2. Pick-It is and remains the sole and exclusive proprietary owner of all Intellectual Property Rights related to the Pickit3D Vision Platform, the Pickit 3D Certified Hardware, the Services and the Documentation (including any new versions, updates, customizations, enhancements, modifications or improvements made to the Pickit3D Vision Platform or Documentation). Nothing in the Agreement shall convey any title or proprietary right or Intellectual Property Rights in or over the Pickit3D Vision Platform, the Pickit 3D Certified Hardware, the Services and the Documentation to the Client or any Third Party. The Client shall not in any way acquire any title, rights of ownership, copyright, intellectual property rights or other proprietary rights of whatever nature in the Pickit3D Vision Platform, the Pickit 3D Certified Hardware, the Services or Documentation. The Client agrees not to remove, suppress or modify in any way any proprietary marking, including any trademark or copyright notice, on or in the Pickit3D Vision Platform, the Pickit 3D Certified Hardware or visible during its operation, or on media or on any Documentation. The Client shall incorporate or reproduce such proprietary markings in any permitted backup or other copies.
    3. Client shall not: (a) modify, adapt, alter, translate, or create derivative works from any software residing in or provided by Pick-It in conjunction with the Pickit3D Vision Solution or any other product or services of Pick-It; (b) assign, sublicense, lease, rent, loan, transfer, disclose or otherwise make available such software; (c) merge or incorporate such software with or into any other software; or (d) reverse assemble, decompile, disassemble, or otherwise attempt to derive the source code for such software without written authorization from Pick-It except as explicitly allowed under applicable law. Client shall reproduce, without any amendments or changes thereto, any proprietary rights legends of Pick-It and/or its affiliates or its third-party suppliers in any software or documentation provided by Pick-It. License terms of third parties may apply.
16. Third party Claims
    1. The Client shall promptly inform Pick-It of any third-party claim on an alleged or actual infringement by the Pickit3D Vision Solution or other materials offered or made available by Pick-It and Pick-It will be granted the right to control and direct the defense and settlement of such a claim. The Client shall be entitled to participate in such proceedings at its own cost. The Client agrees to reasonably cooperate with Pick-It in the defense and settlement of such a claim. In the event the Pickit3D Vision Solution or such other material, in Pick-It's reasonable opinion, are likely to become, or actually become, the subject of a claim of infringement as set out above, Pick-It shall have the right, at its option and expense, to (i) modify or replace the (alleged) infringing material so that it becomes non-infringing while preserving substantially equivalent functionality, or (ii) obtain for the Client the right to continue to use the Pickit3D Vision Solution per the terms of this Agreement.
    2. Pick-It shall have no liability for any claim which is based upon (i) Client’s unauthorized use of the Pickit3D Vision Solution, (ii) Client’s or any third party’s modification of any of the Pickit3D Vision Solution or (iii) Client’s use of the Pickit3D Vision Solution in unauthorized or incompatible combination with any third-party product or services.
17. Compliance with laws
    1. The Client warrants (i) that it has and shall maintain all approvals, agreements, authorizations, allowances, licenses and permissions which may be required for the receipt and use of the Pickit3D Vision Solution, and for all activities in the framework of this Agreement and (ii) that it shall comply with all applicable legal requirements and legislation.
    2. The Client acknowledges that Pick-It has no knowledge of the specific legislation and regulations that apply to the sector, industry, region, country or state in which the Client operates and shall therefore not be responsible or liable for the Client’s compliance with such legislation and/or regulations in relation to the Client’s receipt and/or use of the Pickit3D Vision Solution. The Client shall hold Pick-It harmless for any costs, expenses and liability caused by Client's non-compliance with applicable laws.
18. Warranties
    1. The following provisions shall apply with respect to the Warranty of the Certified Hardware: (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 and (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. 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.
    2. Pick-It shall provide the Standard Services with the expertise and independence, skill, care and diligence that can be reasonably expected from a qualified service provider. Save for the foregoing warranty, Pick-It will deliver the Standard Services “as is”, without further warranties, explicitly or implicitly, including (not exhaustive) warranties of soundness, saleability and suitability for a specific goal.
    3. This clause set outs the sole and exclusive warranty offered by Pick-It in respect of the Pickit3D Vision Solution. The Pickit3D Vision Solution are delivered in the state in which they are at the moment of delivery (as is). Pick-It hereby, to the maximum extent permitted under applicable law, disclaims all other warranties, express or implied, including, without limitation, the warranties of merchantability, merchantable quality, fitness for any particular purpose, the warranty that the Pickit3D Vision Solution will operate error-free or that any errors in the Pickit3D Vision Solution will be corrected.
    4. The Client is solely responsible for backing up its data and shall back up its systems and data before installing and/or accessing the Pickit3D Vision Platform and on a regular basis thereafter during the remainder of the Term.
    5. In case of Incidents, Pick-It shall use reasonable efforts to investigate and to solve the problem and/or to foresee a workaround. Pick-It shall in no way be liable to offer support for Incidents.
    6. Without prejudice to the generality of the foregoing, under no circumstances shall Pick-It offer any warranty in case of:
       1. Damage to or breaking of the warranty seals on the camera’s or processors;
       2. damage to vulnerable parts that may be damaged through careless use;
       3. small deviations from the established quality that do not affect the value and the soundness of the Pickit3D Vision Solution;
       4. any deterioration or problem of a purely aesthetic nature that has no impact on the properties of the Pickit3D Vision Solution;
       5. damage caused by external causes, such as (i) chemical or electro-chemical effects of liquid substances; (ii) any use that is not in line with normal use or that deviates from the instructions given in the Documentation; (iii) contact with aggressive substances;
       6. transportation damage that occurred outside of our responsibility, incorrect installation or assembly, misuse, poor maintenance or a lack of observance of our assembly, installation, user and maintenance instructions;
       7. any defect caused by reparation or interventions by Client or third parties;
       8. any defect resulting from modification or use combined with other systems not supplied or approved by Pick-It; and/or
       9. any defect resulting from use or operation of the Pickit3D Vision Solution not consistent with good practice or with the Agreement (including the Documentation).
    7. If applicable, any warranty offered by Pick-It shall in any case be limited to the warranty Pick-It has received from its third-party manufacturers.
19. Liability
    1. To the maximum extent permitted by applicable law:
       1. Pick-It shall not be liable for any indirect, punitive, consequential, special or similar damages (including damages for loss of profit, anticipated savings, lost revenue or income, loss of use or production, loss of business, loss of Clients and Agreements, loss of goodwill, the cost of procuring replacement goods or services, and reputational damage) arising out of, or relating to, and/or in connection with this Agreement, regardless of (i) whether such damages were foreseeable, (ii) whether or not it was advised of the possibility of such damages and (iii) the legal or equitable theory (contract, tort or otherwise) upon which the claim is based. Pick-It shall not be liable for any interpretation or use of the Client Data by Client or users;
       2. Without prejudice to the generality of the foregoing, (i) in all cases, our liability shall be excluded if the Client, or any user to which the Client has provided the Pickit3D Vision Solution, uses the Pickit3D Vision Solution (a) in an improper manner, (b) in a manner inconsistent with the Agreement (including the Documentation) or (c) has otherwise deviated from the user and safety instructions delivered with the Pickit3D Certified Hardware or any other Pick-It product otherwise made available to the Client; and (ii) Pick-It’s liability shall always be excluded in case of damage caused jointly by a fault of Pick-It and the fault of the victim or a person for whom the victim is responsible;
       3. in any case, Pick-It’s aggregate liability shall be limited to the lower of: (i) the fees paid by the Client under this Agreement in the six (6) months preceding the event that gave rise to the liability and (ii) fifty (50) percent of the total amount paid by the Client for the Pickit3D Certified Hardware under the Agreement. Pick-It will under no circumstances be liable for an amount that is higher than the amount for which Pick-It has liability insurance; and
       4. only Pick-It’s liability as a legal entity may be invoked under any Agreement and waives the right to invoke the liability of an employee, director or shareholder of Pick-It or affiliated company.
    2. Nothing in this Agreement shall exclude Pick-It’s liability for its (or its employees’) fraud, wilful misconduct (opzet / dol) or gross negligence (zware fout / faute grave).
20. Force Majeure
    1. In the event that either Party is prevented from performing or is unable to perform any of its non-monetary obligations under this Agreement due to a Force Majeure event, such Party shall give prompt written notice to the other Party and its non-performance shall be excused, and the time for performance shall be extended for the period of delay or inability to perform due to such occurrences.
21. Confidential information
    1. For the purposes of this Agreement, “Confidential Information” means all information, in whatever form, including but not limited to, information of technical, commercial, operational, organizational, legal or financial nature relative to either Party. Information which, upon disclosure by the disclosing Party, has already become part of the public domain, without such eventuality, however, being the result of a violation of the provisions of this Agreement or another obligation, shall not constitute Confidential Information.
    2. Each Party agrees to maintain in confidence and not to disclose to any third party any Confidential Information obtained by it in the course of the performance of these Terms, without the prior written consent of the disclosing Party. The receiving Party will discontinue use of the disclosing Party’s Confidential Information and return at the end of this Agreement (or of the Order Form ) all documents (or copies made by it) belonging to the disclosing Party.
    3. The obligation of confidentiality shall remain in force for a period of five (5) years after the latter of (i) the last delivery made under the Agreement; (ii) the termination or expiry of the Term or (iii) the moment the Confidential Information was made available to the Client.
22. General
    1. Entire agreement - This 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 this Agreement shall affect, or be used to interpret, change or restrict, the express clauses of this Agreement.
    2. Amendments - This Agreement may be modified or amended only by written agreement executed by a duly authorized representative of both Parties hereto.
    3. Waiver - The waiver by any Party of a breach of any provision of this Agreement shall only be valid if made in writing and shall not operate or be construed as a waiver of any other or subsequent breach.
    4. Severability - If any provision of this Agreement is determined to be illegal, void, invalid or unenforceable, in whole or in part, the remaining provisions shall nevertheless continue in full force and effect. The provisions found to be illegal, invalid or 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.
    5. Survival - Expiration, termination or cancellation of this Agreement shall be without prejudice to the rights and liabilities of each Party which have accrued prior to the date of termination, and shall not affect the continuance in force of the provisions of this Agreement which are expressly or by implication intended to continue in force, including, without limitation, the provisions relating to Intellectual Property Rights, Confidential Information and limitation of liability.
    6. Assignment - Pick-It may assign its rights and obligations hereunder in whole, but not in part, to (i) any corporation or entity with which Pick-It may merge or to which Pick-It may transfer all, or substantially all, of its assets, or (ii) to any affiliate of Pick-It. Client is not entitled to assign this Agreement and its rights and obligations hereunder to any affiliate or third party, unless with the prior written consent of Pick-It.
    7. Subcontractors - Pick-It shall have the right to subcontract part or all of its obligations to third parties.
    8. Relationship between the Parties - The relationship between the Parties is that of independent contractors. Neither Party is agent for the other and neither Party has any authority to make any Agreements, whether expressly or by implication, in the name of the other Party, without that Party’s prior written consent for express purposes connected with the performance of this Agreement.
    9. Interpretation - In the Agreement (unless the context otherwise requires): (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 this Agreement; and (iv) the term including, when used in this Agreement, shall mean without limitation and the enumeration following the term including shall be non-exhaustive.
    10. Notice - Unless explicitly indicated otherwise, any notice required to be served by this Agreement shall in first instance be given in writing and by electronic mail. Electronic notices to Pick-It shall only be valid (i) if sent to info@Pick-It.be and (ii) provided that explicit confirmation of receipt was given by Pick-It by e-mail. In case no confirmation of receipt was given by Pick-It within five (5) business days, Client shall send the notice by registered letter addressed to Pick-It’s registered office.
    11. Marketing and communication - Client hereby grants to Pick-It the right to use the Client’s name and logo as a reference, for instance, on the Pick-It website.
    12. Language - This Agreement is in the English language only, which language shall be controlling in all respects. All communications and notices made or given pursuant to the Agreement shall be in English or in Dutch.
23. Jurisdiction and applicable law
    1. Parties agree that all means will be used to reach an amicable settlement before legal action is taken.
    2. In the absence of a suitable amicable solution, the courts of the judicial district of Leuven have sole jurisdiction, even in the case of a plurality of defenders, counterclaims, proceedings by or against third parties, and even in interim injunction proceedings.
    3. The Agreement shall be solely governed by Belgian law. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement.

SCHEDULE 1 – LIFE CYCLE SUPPORT AGREEMENT

The LifeCycle Service Agreement shall be perceived to be added in addendum to this agreement if agreed and executed separately between parties.

SCHEDULE 2 – DATA PROTECTION AGREEMENT

About this Data Processing Agreement

This Data Processing Agreement (“DPA”) supersedes and replaces all previous agreements made in respect of Processing Personal Data and data protection.

This DPA determines the conditions of the Processing by Pick-It of Client Personal Data communicated by, at the initiative or on behalf of Client and/or any Users in the context of the Agreement. Such Processing will exclusively take place for the benefit of Client and for the purposes as defined by Client.

Parties agree that Pick-It is a Processor and the Client is a Controller in respect of all services provided by Pick-It related to the Agreement. The aforementioned indication of the Parties as Controller and Processor is consistent with the terms and definitions given within the GDPR.

2.3 Pick-It will only process the Client Personal Data according to the documented instructions of Client, and will not use these Personal Data for its own purposes.

2.4 If Pick-It is legally obliged to proceed with any Processing of Personal Data, Pick-It, unless this would violate applicable mandatory rules, will inform Client of such obligation.

Definitions

Any capitalized terms not defined in this DPA shall have the meaning ascribed to them in the Terms and Conditions or in the GDPR.

“Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data (i.e. the Client);

“Processor” means a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of Client (i.e. Pick-It);

“Subcontractor” refers to any third party that is involved in the Processing of Personal Data by Pick-It;

“Third Party” means a natural or legal person, a government agency, a service or other body, not being the Data Subject, neither Client nor Pick-It, nor the persons under direct authority of Client or Pick-It to process the Personal Data.

Data processing details

Object and nature of Processing. Pick-It shall process the Client Personal Data on behalf of the Client in the context of the services provided by Pick-It under the Agreement.

Purpose of the Processing. The Purpose of the Processing shall be to enable the Client to use the Pickit3D Vision Solution.

Kind of Personal Data. The Personal Data processed by Pick-It on behalf of Client may include: name, phone number, e-mail address and any other Personal Data uploaded by the Users and/or made available by or on behalf of the Client to Pick-It.

Transparency. Client acknowledges and agrees that, if applicable, (i) Pick-It, in its capacity of Processor, makes available a privacy policy on the Pickit3D Vision Platform by which Pick-It informs its Users regarding the processing operations that Pick-It carries out on behalf of the Client, and (ii) that the Client, in its capacity of Controller, is obliged to provide any legally required information to the Users. The Client acknowledges that it has read and accepted Pick-It’s privacy policy.

Term

This DPA applies as long as Pick-It processes Client Personal in the context of the Agreement.

This DPA ends automatically upon expiry or termination of the Agreement; the provisions of this DPA that are either expressly or implicitly (given their nature) intended to have effect after expiry or termination of the DPA shall survive the end of the Agreement.

Storage of Personal Data

Pick-It will not keep the Personal Data any longer than as required for Processing of such Personal Data in the context of the Agreement. The Client will not instruct Pick-It to store any Personal Data longer than necessary.

Unless storage of the Personal Data is mandatory under Union or Member State law, Pick-It shall, within a reasonable period after the end of the Processing services, at the option of the Client, either erase all Personal Data or return it to Client and delete existing copies.

The maximum retention period during which Pick-It is allowed to store the Personal Data on behalf of the Client is equal to the Term of the Agreement extended with a maximum period of four (4) months, it being understood that diverging retention terms apply for the following types of data: (i) 10 years for accounting and invoicing documentation; (ii) 18 months for reporting documentation which contains Personal Data, triggered after last action; (iii) 18 months for profile information, triggered after last action.

Technical and organizational measures

The Client and Pick-It shall take all appropriate technical and organizational measures as referred to in Article 32 GDPR to ensure a level of security appropriate to the risk.

Pick-It shall, taking into account the nature of the Processing and the information available, assist Client in ensuring compliance with the obligations resulting from Articles 32 to 36 GDPR. The Client will reimburse Pick-It for services rendered in the context of providing assistance in fulfilling the aforementioned obligations according to Article 13 “Costs” of this DPA.

Only those persons within Pick-It’s organisation who are involved in the Processing of Personal Data may be informed about the Personal Data. Pick-It ensures that persons authorized to process the Personal Data are committed to confidentiality by contract or are under an appropriate statutory obligation of confidentiality.

Pick-It may only provide Personal Data to Third Parties with the prior written approval of Client.

Data Subject’s rights

Taking into account the nature of the Processing, Pick-It shall use best efforts, by taking appropriate technical and organizational measures, to assist Client in the fulfilment of its obligation to respond to requests from Data Subjects.

For all services performed by Pick-It in the context of the treatment of such requests from Data Subjects, Client will pay Pick-It in accordance with Article 13 “Costs” of this DPA.

Duty to notify

Upon becoming aware of a Personal Data Breach Pick-It shall notify Client thereof without undue delay.

At the request of Client, Pick-It will cooperate with the investigation and elaboration of the measures necessary in case of any Breaches.

The Parties will keep each other informed of any new developments with regard to any Breach and of the measures they take to limit its consequences and to prevent the repetition of such Breach.

It is the responsibility of Client to report any Breach to the Supervisory Authority or the Data Subject, as required.

Subcontracting

The Client expressly authorizes Pick-It to engage Subcontractors for the processing of Personal Data. The Client grants a proxy to Pick-It to decide with which Subcontractor(s) Pick-It cooperates. Pick-It shall keep a list of all Subcontractors engaged, which can be consulted by Client upon simple request. The Client can only refuse a Subcontractor proposed by Pick-It on the basis of a well-founded justification submitted in writing.

Pick-It will conclude a separate subcontracting agreement with each Subcontractor.

In this subcontracting agreement, the same data protection obligations as set out in this DPA shall be imposed on the Subcontractor.

In the event the Subcontractor fails to fulfil its data protection obligations, Pick-It shall remain fully liable to Client for the performance of the obligations of that Subcontractor in accordance with Article 14 of this DPA.

Transfers of Personal Data

The Processing of Personal Data will exclusively take place within the EEA.

The Processing or transfer of Personal Data outside the EEA can only occur with the specific prior written consent of Client and/or in compliance with applicable legislation. Pick-It can sign standard contractual clauses, codes of conduct or any other instruments adopted by the European Commission, which ensures that the transfer of Personal Data to a country outside the EEA complies with appropriate safeguards as required by the GDPR.

Such consent of Client is not required when the transfer of Personal Data to countries outside the EEA is mandatory under EU or Member State law provisions.

Data Protection Impact Assessment

When a ‘Data Protection Impact Assessment’ or a ‘prior consultation’ is required according to Article 35 and 36 GDPR, Client will implement such assessment. At the request of Client, Pick-It will assist in this assessment as well as in the compliance with any required measures, as reasonably required in carrying out such an assessment;

The Client will reimburse Pick-It for the services so rendered in relation to this assessment and the compliance with any required measures in accordance with Article 13 “Costs” of this DPA.

Audit – inspection

Each Party shall allow the other Party and its authorized auditors to perform audits regarding the compliance by a Party with its obligations under this DPA and the applicable Data Protection Legislation. Such audits shall be limited to one audit per contract year and shall be at the auditing Party’s expense. Such audits shall not unreasonably interfere with the audited Party’s activities.

Each Party shall use its best efforts to cooperate with those audits and to make available to the other Party all information necessary to prove compliance with the obligations of such Party. A Party shall immediately inform the other Party if, in its opinion, an instruction infringes the applicable legislation. The auditing Party shall compensate the audited Party on a time and material basis (at standard rates applicable at that moment in time) for the assistance provided by the audited Party.

Upon the performance of any such audit, the confidentiality obligations of the Parties with respect to Third Parties must be taken into account. Both the Parties and their auditors must keep the information collected in connection with an audit secret and use it exclusively to verify the compliance by the other Party with this DPA and the applicable laws and regulations in respect of data protection.

The Client and Pick-It and where applicable their representatives, shall cooperate, upon request, with the Supervisory Authority in the performance of its tasks.

Costs

The services to be performed under this Agreement for which Pick-It may charge Client, will be charged on the basis of the hours worked and the applicable standard hourly rates of Pick-It. Pick-It will invoice these amounts on a monthly basis.

Payment by Client to Pick-It for the services under this Agreement will take place in accordance with the provisions in the Agreement.

Liability

Limitations of liability in the Terms and Conditions are applicable to this DPA and all services provided in respect of this DPA.

Pick-It is in any case only liable for the damage caused by Processing if it (a) did not comply with its specific obligations of the GDPR, or (b) acted outside or in violation of the lawful instructions of Client.

Other provisions

The provisions of the Terms and Conditions concerning changes, completeness of the agreement, applicable law and competent court are applicable to this DPA.