Terms and Conditions of Sale for Professionals - Nodalview

Article 1 - Object of the Terms and Conditions

1.1. The present terms and conditions of sale define the rights and obligations of the Parties and govern each Order form.

The TCS have been concluded between, on the one hand, Nodalview S.A., with registered office at 1332 Genval, avenue du Théâtre 2, registered under the number 0823015207, and on the other hand, the natural or legal person, acting as a professional and wishing to place an order.

1.2. The signing or confirming of an Order form automatically implies the Client’s acceptance of the TCS, as well as the special conditions and tariff conditions indicated on the Order form.

1.3. With regard to Nodalview, only the Payment will result in the validation of the order.

Article 2. Definitions

- Subscription : refers to the annual contract, consisting of the Order form and the TCS, by virtue of which the Client has the right to use the Application, including the right to open a personal account on the website of Nodalview, entitling the Client to an unlimited or limited number of photo units and/ or panoramas, as mentioned on the Order form,

- Pack : refers to a prepaid package entitling the Client to a predefined number of photo units and/or panoramas, as indicated on the Order form, as well as to the opening of a personal account on the website of Nodalview.

- Application : refers to the software edited by Nodalview available in the version Ios or Android enabling the Client to take 360-degree pictures and panoramas.

- Order form : refers to any document, interface by which the Client chooses the Material and/or Application that the orders and describes, in particular, the Subscription methods or the Pack.

- TCS : refers to the present terms and conditions of sale

- Client : refers to the natural or legal person, acting as a professional, mentioned as Client on the Order form.

- Payment : refers to the payment made by the Client, resulting in the validation of the order.

- Parties : refers to Nodalview and the Client.

Article 3 - Price and Terms of payment

3.1 Price

The Client owes the price indicated in the Order form and the applicable taxes.

3.2 Terms of payment

3.2.1. The Payment is made by the Client immediately after signing or confirming the Order form, except for another term indicated in the Order form. As long as the Payment has not been received by Nodalview, the order will not be taken into consideration by Nodalview.

3.2.2. Unless otherwise instructed by Nodalview, the Payment is made, through the online payment system used by Nodalview, by wire transfer or credit card, with the exclusion of cheques or unforeseen payment instruments.

3.2.3. In case of a Subscription, the Client accepts a deduction in advance of instalments until the annual due date of the Subscription, and, by tacit renewal, until each new due date.

Nodalview reserves the right to adjust the prices in order to take into account, in particular, the indexation or the addition/improvement of functionalities. Nodalview will notify the Client two months (2) before the expiry date of the Subscription that, unless he indicates otherwise regarding the adjustment, the Subscription will be renewed with an adjusted price.

3.2.4. The Client agrees to receive the invoices by electronic means.

3.3. Contested invoices

Each contestation with regard to an invoice must, under penalty of forfeiture, reach Nodalview within ten (10) days of the notification of the invoice. After this deadline, the invoice will be considered as irrevocably accepted by the Client.

In case of rejection by Nodalview of the Client’s contestation, the disputed sum will become immediately due and payable.

3.4. Non-payment

3.4.1. In case of non-payment of an invoice on its due date, the Client will receive a first payment reminder from Nodalview.

In case of non-payment within eight (8) days from the said reminder, Nodalview will be entitled to suspend the access to the Application.

3.4.2. In case of non-payment of two (2) invoices which have fallen due, the balance remaining will become automatically due and payable with a default interest of 10 % per year, plus a fixed allowance of 10% of the amount due, with a minimum of 100.00 EUR; the interests and the fixed allowance will be due, automatically, and without prior notice of default.

The Client will not be entitled to any compensation, for example, as a consequence of the loss of his data on his personal account, in case of non-payment.

3.4.3. The costs of recovery, summons, collection and any other loss that are likely to be due, will be charged to the Client, in addition to the above-mentioned allowances and interests.

Article 4. Delivery

4.1 Delivery of the Material

4.1.1. The Material is delivered to the address mentioned on the Order form within a term of eight (8) days from the Payment; it being understood that this term is given for informational purposes only and is likely to be extended, in particular, depending on the type of delivery chosen by the Client. The possible delays do not entitle the Client to cancel the order and / or claim damages.

4.1.2. However, in case the term is exceeded by more than twenty (20) business days, in addition to the foreseen term of eight (8) days, and in so far as the exceeding of the time limit is not justified by a force majeure event or a stock shortage notified during the order, the Client is entitled to terminate the contract and to obtain the reimbursement of the sums, without, however, being able to claim any compensation whatsoever.

4.2. Access to the Application

4.2.1. The access to the Application and the personal space on www.nodalview.com is provided within a term of twenty-four (24) hours as of the Payment.

4.2.2. The access to the Application will be continuous during the entire term of the contract, except for force majeure events (e.g.: saturation of the networks, viruses, power interruption ….); it being understood that the continuity of the service constitutes, for Nodalview, an obligation of means. Nodalview cannot be held liable, in any case, for any loss that the Client would suffer by reason of the interruption or suspension of the access to the Application.

4.2.3. Nodalview reserves, moreover, the right to suspend temporarily the access to the Application for maintenance reasons, without the Client being able to claim any compensation whatsoever. To limit any inconvenience related to this suspension, Nodalview will notify the Client, prior to this suspension, as far as possible, of the date and time of the maintenance.

4.2.4. Each complaint with respect to the delivered Material will have to be formulated in writing within seven (7) days of the reception of the order; failing this, the product will be deemed to be in accordance with the order and free from defects, without prejudice to the guarantee referred to in article 5 (« Guarantee »).

Article 5 – Guarantee

5.1. The proprietary Material printed with the logo of Nodalview is guaranteed during six (6) months as of the date of delivery.

The guarantee covers only the design or manufacturing defects which would make the Material unsuitable for the use for which it is intended.

The guarantee is limited to the purchase value paid by Client of the Material. Nodalview reserves the right to either exchange the Material, either repair it, or reimburse the price paid to the Client.

No other costs, in particular, transportation costs, and no other allowance can be charged to Nodalview. The interventions by virtue of the guarantee may not lead to the extension of the duration thereof.

5.2. The Material produced by a third party and resold by Nodalview falls under the guarantee of the manufacturer and Nodalview cannot be held responsible for the defects or damages that are not covered by the guarantee of the manufacturer.

5.3. Nodalview cannot be held responsible, in any way, save in case of fraud or major error on its behalf, for any problems or damages of any nature whatsoever, which may result from an improper use of the products or negligence by the Client.

Article 6 - Force Majeure

6.1. Nodalview cannot be held accountable in case of the occurrence of an event beyond its will or control (« Force Majeure »); it being understood that the following cases constitute, in particular, Force Majeure: saturation of the networks, viruses, power interruption, strikes, lockout, floods, fires, lightning, explosions, collapses, any act or negligence of a person or entity beyond the reasonable control of Nodalview.

6.2. If Nodalview invokes a Force Majeure event, Nodalview will be entitled to suspend or limit the service, without the Client being able to claim any compensation whatsoever.

6.3. If Nodalview invokes such a Force Majeure event, Nodalview will be obliged to make every effort to limit its duration to the strict minimum.

6.4. If these events or circumstances of Force Majeure continue more than three (3) months, each Party can terminate the contract, automatically, by a registered letter, without any compensation whatsoever being owed.

Article 7 – Obligations of the Client

7.1. The Client commits himself to provide Nodalview with all necessary information with a view to ensuring the correct execution of the order.

7.2. It is the responsibility of the Client to verify, prior to the order, the compatibility of his device (smartphone, camera 360, DLSR, drone) with the Application of Nodalview. A compatibility list is available on www.nodalview.com.

7.3. The Client shall refrain from giving access to his personal account to non-authorized users, who do not belong to his company or to a higher number of users than the one indicated on the Order form, and from using the Service outside of the framework of its own activities.

7.4. If the Client wishes to implement a service for the realization of pictures and/or virtual visits on behalf of third parties, he will see to contact Nodalview beforehand to agree on an adjusted tariff plan. The Subscription may not, under any circumstances, be chosen by the Client for a service of realization of pictures and/or virtual visits on behalf of third parties.

Article 8 - Protection of privacy and rights on the imported and disseminated contents

8.1 The Client declares to have obtained all rights and necessary authorizations allowing him to host the pictures in the Application and to disseminate them.

8.2. Except for consent of the interested persons, the Client commits himself to hide or render vague, in particular, with computing tools put at his disposal by Nodalview, the parts of the pictures containing information relating to an identified or identifiable natural person.

8.3. Consequently, Nodalview cannot be held responsible for the content of the pictures disseminated by the Client; the latter holds Nodalview harmless against each action at law, complaint, allegation, claim or opposition on behalf of each person invoking a right, namely of protection of privacy, a copyright, or an act of unfair competition, on all or part of the pictures (« The Guaranteed Elements »).

8.4. The Client undertakes to bear all costs of any nature, including lawyer’s fees, incurred by Nodalview, as well as the possible convictions and/or transactional agreement and damages pronounced against him, and to fully indemnify it for the damage suffered. The present guarantee will remain in force after the termination of contract, for whatever reason, and this shall continue to apply for a term equal to the legal protection of the rights on the Guaranteed Elements.

8.5. In case of dissemination by the Client of information and / or pictures contrary to public policy or to accepted principles of morality, or in case of receipt of a complaint by a third party, Nodalview reserves the right to immediately stop their dissemination.

Moreover, Nodalview reserves the right to suspend or terminate the contract to the prejudice of the Client.

Article 9 – Processing of personal data

9.1. The Client data are gathered and kept by Nodalview for the following purposes:

• Execution of the orders (processing necessary for the execution of the contract);

• Customer management (processing necessary for the execution of the contract);

• Marketing activities to provide information on and promote the products of Nodalview (legitimate interest to promote its activities towards the Client).

9.2. A Client who does not wish to be approached by Nodalview within the framework of direct marketing actions can, at any moment, and by addressing Nodalview, oppose to the Processing.

9.3. In conformity with the Regulation (UE) 2016/679 on the protection of data, the Client can ask to Nodalview the access to personal data which relate to him, the correction of those data which are incorrect, incomplete or not relevant, the limitation of the processing or the cancellation of his data.

The Client also has right to portability of his personal data during the whole duration of the processing of the data by Nodalview, following the modalities provided for by the article 12 (« Export, portability and reversibility ») of the TCS.

9.4. The Client is also entitled to submit a complaint to the competent supervisory authority.

Article 10 – Term and termination of the contract

10.1. Beginning of the contract

The Contract comes into effect upon Payment.

10.2. End of the contract

10.2.1. « Pack »

In the case of a « Pack », the contract ends at the closest of the following data:

- at the expiration of the term of six (6) months starting from the exhaustion of all units by the Client, unless renewed preliminarily;

- at the expiration of a term of one (1) year starting from the last connection of the Client to his personal account. In this latter case, even if all units have not been consumed, these will be considered lost.

A warning will be notified to the Client, two (2) months before the expiration of the term, for the purpose of informing him about the situation. If there is no response before the expiration of the term, the contract will end and the units will be lost.

10.2.2. Subscription

In the case of a Subscription, the contract ends upon the following annual expiration date following a termination notice served by the client.

The contract will be renewed tacitly at the expiration date for the same term, unless one of the Parties gives notice, two months, at the latest, before the expiration date of the contract by registered letter or e-mail with acknowledgement of receipt.

In case of early termination of the contract by the Client, the Client will pay all amounts due for the remaining contractual term.

10.2.4. Insofar as permitted by the law, the contract ends automatically when one of the Parties suspends its operations, becomes insolvent or goes bankrupt, is dissolved or undergoes a similar procedure.

10.2.5. Starting from the date of termination, the published links referring to the pictures and/or visits of the Client will remain active for a term of one (1) year, for visualization purposes only. At the expiry of the term, Nodalview undertakes to destroy the pictures at the request of the Client.

10.2.6. At the end of the contract, the Client shall maintain access to his personal space for a term of three (3) months in order to consult or download his shots. At the expiry of this term of three (3) months, the access to his personal account will be denied.

Article 11 – Export, portability and reversibility

The pictures and panoramas of the Client can be exported from his personal space on the website of Nodalview to a storage area of his choice; it being understood that the assembly of the panoramas on visit and their enrichments (hotspots, navigation arrows, …) are not exportable.

In case of export outside of the Nodalview servers, each further synchronization between the content hosted on the Nodalview servers and the downloaded content appears to be technically impossible for Nodalview, and remains, therefore, under the responsibility of the Client.

Article 12 – Termination in the event of breach

12.1. In case of breach by the Client of one of his contractual obligations, and after service of a notice of breach which remains unremedied for five (5) calendar days, Nodalview reserves the right to suspend its services or to terminate the contract to the prejudice of the Client, without the latter being able to claim any reimbursement or allowance whatsoever, in particular, for the loss of his panoramas, pictures.

12.2. In the event of dissolution of the contract by reason of the Client’s failure to fulfil his obligations, the amounts referred to in the article 3.4.2.. will be applicable and increased by administrative costs and compensation for all losses, damages, costs and expenses incurred by Nodalview following a breach by the Client or his employees, including, but not limited to reasonable lawyer’s fees and legal costs.

Article 13 – Intellectual Property

All intellectual property rights on the Application are the exclusive property of Nodalview. The Client cannot claim any intellectual property right and obtains no rights whatsoever other than those expressly specified in the contract.

Unless otherwise indicated in the Order form, Nodalview grants to the Client, and if need be, to the authorized users, for the term of the Agreement and following the tariff conditions stipulated in the Order form, a personal, non-exclusive, non-transferable user licence of the Application.

The data and pictures remain the property of the Client who communicates them, with the exception of the changes made on the pictures with the help of tools.

Article 14 – Liability

14.1. Nodalview shall have no liability whatsoever for damages which are deemed to be indirect, such as, without any limitation, loss of data, financial or commercial damage, loss of profits, increase in overhead costs, disruption of planning.

14.2. Under no circumstances may Nodalview be held liable for any damages resulting from the Client’s failure to honor his obligations.

14.3. If any recourse/claim whatsoever were to appear well-founded by virtue of a court decision having become final and binding and which could be exercised against Nodalview, Nodalview’s liability would be limited to the amount of the annual Subscription subscribed to by the Client or the value of the « Pack » following the formula chosen by the Client.

Article 15 - Miscellaneous

15.1. Provisions which are null and void or not complied with

The failure by either Party to exercise its rights will not, under any circumstances, be considered as a waiver of the same, or a restriction of its rights and obligations.

The nullity of any of the clauses of the present terms and conditions of sale or the special contracts entered into with the Client does not render the other clauses null and void.

15.2. Choice of an address for service

For the purposes of the performance of the contract, the Client chooses an address for service at the address indicated on the Order form.

Nodalview chooses, as far as it is concerned, an address for service at the address of its registered office.

15.3. Notifications

All notifications can be made validly by e-mail with acknowledgement of receipt or by registered letter. The Client’s e-mail address is the one mentioned on the Order form.

15.4. Subcontracting

Nodalview reserves the right to use subcontractors for the performance of its obligations under these TCS.

15.5. Independence of the Parties

No provision of these TCS will be deemed to give rise to the creation of a partnership or an association between the Parties.

Article 16 – Applicable law – Competent courts

These TCS are governed by Belgian law. Any dispute regarding these TCS which cannot be resolved amicably, will be settled exclusively by the Courts and Tribunals of the judicial district of the registered office of Nodalview.

Nodalview reserves, nevertheless, the right to summons the Client before any other competent tribunal in accordance with the law of general application.