Article 1: General
Article 2: Definitions
User: a natural or legal person who, within the framework of transparency and follow-up within the logistic chain, commissioned or employed by the Client, is given access to the Sky Fresh web platform and/or the mobile application.
Web Platform: A software application that can be used through the Internet, provided a suitable web browser is used and the hosting and availability are provided by Sky Fresh BVBA. also, described as a cloud application or ‘software as a service’. The web application and the technical infrastructure made available by Sky Fresh BVBA for creating, following up and managing, among other things (but not limited to) shipments, users, checklists, notifications…. that are presented in the mobile application.
Mobile application: the Mobile application and the technical infrastructure made available by Sky Fresh BVBA for practical follow-up of, among other things (but not limited to) shipments via a mobile device (for instance a smartphone or tablet). The mobile application can be installed through the usual application store (for instance, Apple app store or Google play store) and can be used on mobile devices with the following operating systems: Android 5.0 and later versions and IOS 8 and later versions.
Login data: login (email address or user name) and password to gain access to the Sky Fresh Web Platform or Mobile application. Together, they constitute the Login data.
Confidential Information: all information of a confidential nature entrusted by Sky Fresh BVBA to the Client or of or about which the Client gains knowledge in the context of the collaboration of Sky Fresh BVBA and the Client regardless if this information is obtained in written, oral, graphic, electromagnetic, encoded, digital or any other form pertaining to Sky Fresh BVBA itself, the techniques or technology used, the products, services, clients and marketing, its Partners, research and development or any other activity.
Module: a Module is a set of customized developments that will be added to the Sky Fresh Web Platform or the Sky Fresh Mobile application on the Client’s request, upon payment of a customized cost by the Client. The description of the functionalities of the Module will always be added to the Contract. Sky Fresh BVBA reserves the right to create a substantially equivalent Module for another Client.
After signing of the Contract, Sky Fresh BVBA commits itself to provide the Client with access to the Sky Fresh Web Platform through registration. The Client commits himself to respecting the User Terms of Sky Fresh by signing the Contract. The Client is respecting the User Terms of Sky Fresh anyhow by paying the monthly invoices.
Article 4: Changes
Sky Fresh BVBA is entitled at all times to adjust the Web Platform and/or the Mobile application immediately, as well as to make updates and upgrades available and/or implement them without prior notification to the Client. Within that framework Sky Fresh BVBA is entitled to adjust the functionalities offered in order to improve or change them or repair any bugs.
Article 5: Right of Use and Restrictions
Sky Fresh BVBA gives the Client a non-exclusive and non-transferable right to use Sky Fresh for the duration of the Agreement.
The Client may not make the Sky Fresh Web Platform and the Sky Fresh Mobile application available or sell or rent them to third parties, or decompile them, subject them to reverse engineering or adjust them without prior permission in writing from Sky Fresh BVBA, nor may the Client remove or bypass technical provisions intended to protect the Sky Fresh Web Platform or the Sky Fresh Mobile application, or have them removed or bypassed. To make use of the Sky Fresh Web Platform and the Sky Fresh Mobile application, the Client must provide the necessary equipment and mobile devices, system software and an (Internet) connection himself and at his own expense. The Client’s right of use and storage space are analysed each month against the scales communicated in the Contract and is entirely scalable in function of the Client’s needs, provided that the Client respects the rates on which has been agreed in the Contract. The client is responsible for the content of the data gathered using the Sky Fresh Mobile application and stored and exchanged using the Sky Fresh Web Platform. It is forbidden to use Sky Fresh for actions in conflict with applicable law and regulations. This includes storing and disseminating data that are insulting, libellous or racist. Data are preserved for a minimum of 5 years, and the Client may consult these data during the period foreseen.
Article 6: Suspension of the Right of Use
Article 7: Responsibility for the Data
Sky Fresh BVBA does not acquire knowledge of these data, unless with permission from the Client of to detect any errors, abuse, or calamity. The client is responsible for the data sent, stored, and exchanged through the Sky Fresh Web Platform or the Sky Fresh Mobile application being legitimate and do not infringe on the rights of third parties. Sky Fresh BVBA is not responsible and cannot be held responsible for the correctness of the data entered by the Client or the User.
Article 8: Processing of Personal Data
Insofar as the Client processes personal data on the server of Sky Fresh BVBA, Sky Fresh BVBA has the capacity of processor. The Client has the capacity of person responsible for the processing of personal data in the sense of the Dutch law for the protection of personal data. The Client declares that he will fully comply with the obligations resting on the person responsible for processing as described in this law.
In the context of the services for the Client, Sky Fresh BVBA processes personal data of the contact persons indicated by the Client. The contact data of these persons are processed for the purpose of ‘client management’, i.e. to make contact with the Client about the services. The contact persons have right of access and improvement regarding their data.
Article 9: Secrecy of Login Data
The Client and the User are obliged and responsible to keep the Login data secret. Sky Fresh BVBA is not liable and cannot be held liable for abuse and/or loss of Login data and assumes that all persons logging in with the Login data have permission for this from the Client. As soon as the Client knows or has reason to suspect that the Login data have fallen into the hands of unauthorized persons, he must inform Sky Fresh BVBA of this immediately, so measures can be taken to end this abuse within a reasonable term. Sky Fresh BVBA does not acquire knowledge of Login data, so the Client, the User are not responsible and cannot be held responsible in case of loss, abuse, or theft of the Login data.
Article 10: Confidential Information
Both parties are obliged to:
Inform any third party of any confidential information as referred to under Article 2 of this Agreement;
Protect and secure the Confidential Information with all possible means. This means minimally that the standard is used for the protection of confidential information that the Client also uses for his most crucial trade secrets
Upon the first request of Sky Fresh BVBA, the client will return or destroy all Confidential Information and any copies of these in the possession of the Client or any subcontractor or other person appointed by the Client. Upon the first request o f Sky Fresh BVBA the Client will draw up a declaration in writing in which the Client guarantees that all Confidential Information at his disposal has been returned or destroyed.
Article 11: Prices, adjustment of process and payment
The Client commits himself to payment of the monthly user cost and possibly a one-off customized cost for the Modules described, as agreed in the Contract. These payments are completely acquired by Sky Fresh BVBA. In no case – not even in the case of premature termination of the Agreement – is Sky Fresh obliged to make any return payment of the monthly user cost or one-off customized cost.
When the Client has not complied with his obligations within 15 days, Sky Fresh BVBA can suspend implementation of her Agreements with the Client and take the Sky Fresh Web Platform offline until the outstanding invoices have been settled, including the added compensation. Costs for bringing the Sky Fresh Web Platform back online afterwards are completely on the expense of the Client.
Sky Fresh BVBA reserves the right to index its prices annually according to the prevailing ‘Consumer price index’ for the duration of the Contract.
Article 12: Duration and Tacit Renewal
The duration of the Agreement is 1 year, unless otherwise noted in the Contract. The Agreement is tacitly renewed for consecutive periods of 1year. The Agreement is terminated by registered letter 3 months before expiry of the current contractual period. The Client is always obliged to pay the latest current contractual period and this notwithstanding any written notice by Sky Fresh BVBA on the one hand or the Client on the other, or any other way of premature termination.
Article 13: Termination of the Agreement
If and insofar as one of the parties does not comply with the provisions of the Agreement, each party has the right to dissolve the Agreement concluded unilaterally and extrajudicially, insofar as:
(1) The party to whom the contractual non-performance is blamed, has been declared in default by registered letter, and
(2) The latter party still does not comply with the provisions of the Agreement within a week of the declaration of default.
This right to extrajudicial dissolution does not infringe upon the right to demand compensation for the contractual non-performance. This article does not infringe upon the special cases in which termination of the Agreement is possible.
This Agreement can be terminated immediately by both parties if the other party becomes insolvent, is dissolved or liquidated.
Article 14: Liability and indemnification
The Sky Fresh Web Platform and the Sky Fresh Mobile application have been compiled with the utmost care. However, Sky Fresh BVBA cannot guarantee that the Sky Fresh Web Platform and the Sky Fresh Mobile application will be available or work at all times without interruption, errors or faults. Sky Fresh BVBA is not liable for damage or injuries emanating from the use of the Sky Fresh Web Platform or the Sky Fresh Mobile application. The Client indemnifies Sky Fresh BVBA from any claims by third parties following from the use of the Sky Fresh Web Platform or the Sky Fresh Mobile application, not or not correctly complying with legal or contractual obligations toward Sky Fresh BVBA, another Client of Sky Fresh BVBA or a third party. The Client will compensate Sky Fresh BVBA for all costs made by Fresh BVBA as a consequence of such claims.
Sky Fresh BVBA actively maintains the Sky Fresh Web Platform and the Sky Fresh Mobile application. If maintenance is expected to lead to a limitation of the availability, Sky Fresh BVBA will carry this out at pre-announced moments when activity is relatively low. Maintenance is pre-announced whenever possible.
Sky Fresh BVBA’s liability is limited to liability which is compulsorily imposed by law. Sky Fresh BVBA is not liable for indirect damage, such as, for instance, loss of data, unavailability of data, loss of turnover, loss of profit, …
Nor is Sky Fresh BVBA liable for any damage emanating from non-compliance of this Agreement by the Client, or for faults caused directly or indirectly by an action of the Client or of a third party, regardless of these are caused by an error or negligence. If Sky Fresh BVBA’s liability is withheld, Sky Fresh BVBA is maximally obliged to a monthly user cost.
In no case is Sky Fresh BVBA liable for any direct or indirect damage to the informatics installation or devices of the Client emanating from the use of the Sky Fresh Web Platform or the Sky Fresh Mobile application.
Sky Fresh BVBA takes no responsibility for any interruption, even temporarily, of the services on and via Sky Fresh.
Sky Fresh is only a tool for facilitating the transparency and follow-up within the logistic chain. In no way does Sky Fresh BVBA take any responsibility and liability for:
– Completeness of the information queried by the Client or provided by the User or the Partner;
– The use of compiled Data as a documentation of complaints or claims;
– Preservation and management of the Data during the legally imposed terms.
In other words, in spite of the tools offered, the Client remains fully and exclusively liable for compliance of all applicable laws concerning his professional activities.
Article 15: Intellectual Property Right
All intellectual property rights and/or similar rights to the Sky Fresh Web Platform and the Sky Fresh Mobile applications, including the underlying software, any images, logos, brand name, … belong exclusively to Sky Fresh BVBA or its licence givers. The Client will observe the name and reputation of Sky Fresh BVBA at all times and ensure that its use of the Sky Fresh Web Platform or the Sky Fresh Mobile application does not infringe on the rights and/or the reputation of Sky Fresh BVBA in any way.
Article 16: References
Sky Fresh BVBA is free to refer to all delivered end products for promotion purposes, unless expressly otherwise agreed. Furthermore, Sky Fresh BVBA reserves the right to a modest credit statement with hyperlink at the bottom of each web platform or mobile application delivered to the Client.
Article 17: Force Majeure
Sky Fresh BVBA cannot be held liable for delays or faults in the implementation of the Agreement if these delays or faults are caused by facts or circumstances independent of the will of one of the parties, that cannot be foreseen and cannot be avoided (e.g. telecommunication problems, business failure or deficiencies by suppliers or subcontractors of Sky Fresh BVBA). On punishment of forsaking all rights, the party that wants to invoke such facts or circumstances is obliged to notify the other party of these facts and circumstances in writing as soon as possible, do everything possible to limit their duration to a reasonable minimum and also inform the other party in writing when these facts and circumstances have ended. If these facts and circumstances last for longer than 3 months, each party can terminate this Agreement legally and per registered letter, without owing any compensation or having to observe any further term.
Article 18: Derogations to the Agreement
Any derogation to the Agreement is only valid if agreed in writing and signed by all parties involved. However, the mere fact that a party does not insist on full compliance of the Agreement at all times does not lead to judicial estoppel or loss of right.
Article 19: Diverting of Staff
The Client shall not divert anyone from Sky Fresh with whom they have come into contact through Sky Fresh directly or indirectly. This restriction applies for the duration of the Contract until 1 year after expiry. This on punishment of 6 months of compensation increased with any other costs.
Article 20: Transferability and Relevant Changes
The Client is not allowed to transfer the Agreement to third parties. Any change (e.g. a name change, change of address, …) by the Client must be reported immediately to Sky Fresh BVBA.
Article 21: Notifications
Any notification within the context of the Agreement to Sky Fresh BVBA will always be by email to the following address: firstname.lastname@example.org;
or by registered letter to the address of the corporate headquarters of Sky Fresh BVBA.
Article 22: Authorized Court and Applicable Law
In case a provision of the current Agreement or part of it would be found to be void or conflicting with the applicable imperative regulations, the other provisions do not become automatically void and consequently remain valid.
This Agreement is governed by Belgian law and all disputes concerning the interpretation, implementation and/or termination of it must be settled according to Belgian law under the exclusive authority of the courts of Mechelen.