General Terms of Service beCAD online design tool and My beMatrix

General Terms of Service beCAD online design tool and My beMatrix

The present service conditions (hereinafter referred to as the “Terms of Service”) shall, in particular and in addition to the general terms and conditions mentioned above, apply to the use of the beCAD online design tool and the My beMatrix user platform (hereinafter referred to as the “Services”)

By using our Services (even when registering for the demo version), the Customer is deemed to have read and accepted these Terms of Service, the general terms and conditions and the beMatrix® Privacy Policy. If an individual uses our Services for a third party, he or she agrees to beMatrix®’s Terms of Service, general terms and conditions and Privacy Policy on behalf of that third party. This person is deemed to have informed these third parties of the present Terms of Service.

1.               Formation of the agreement

1.1.      Demo account

The Demo account refers to the account for the free demo version where certain features of the beCAD online design tool can be used.

Customer details. Any individual or legal entity can register on the beMatrix® website to create a Demo account to access the demo version. If you provide a valid e-mail address, beMatrix® will create a Demo account that allows access to the demo version, without prejudice to the provisions of Clause 2 of the present Terms of Service.

In accordance with article VI.53, 13° of the Code of Economic Law, the Customer-consumer expressly acknowledges that (i) the provision of the Services (digital content that is not supplied on a material medium) may be commenced and that (ii) the consumer thereby loses his right of withdrawal.

With the Demo account, it is not possible to export Input data or to store these for longer than the duration of the browser session.

1.2.      Paid account

Customer details. Any potential beMatrix® Customer has the option of registering to use the beMatrix® Services.

A valid registration for the paid Account (hereinafter referred to as the “Paid Account”) presupposes at least the provision of the following information by the potential Customer:

·        Identity details of the company (including the company number and VAT number);

·        Identity details of the individual (including a valid e-mail address);

·        Credit card details for invoicing.

For the collection of invoices based on credit card details, beMatrix® works with an external partner and with financial institutions based on secure protocols. beMatrix® does not have access to the Customer’s confidential financial information. These automatic payments by credit card are subject to the general terms and conditions of the external administrator of the payment platform, who is solely responsible for the correct execution of the payments.

beMatrix® reserves the right to request additional information regarding the potential Customer and his activities, including but not limited to an examination of the Customer’s creditworthiness.

If you provide the aforementioned information, beMatrix® will create a user account that gives access to the Services, without prejudice to the provisions of Clause 2 of the present Terms of Service.

Free trial version. beMatrix® offers a free trial of the beCAD online design tool and certain components of the My beMatrix platform for a period of up to 90 days. The Customer accepts that the free trial will be automatically and tacitly converted into a Paid Account upon expiry of the aforementioned period, to which article 3 of these Terms of Service applies. beMatrix® will notify the Customer of this conversion no later than 5 working days before such conversion. During the free trial period, the Customer may also request beMatrix® to convert the trial version into a Paid Account.

2.               Account details

2.1.      The Customer expressly acknowledges that the customer details provided at the time of registration are accurate, true, up-to-date and complete.

Every individual who registers is considered to be at least 16 years old.

The individual who transmits company details guarantees to be authorised on behalf of this company and is deemed to represent this company.

In the absence of proper cooperation from the Customer or in the event of doubts on the part of beMatrix® as to the identity or the admissibility of the Customer’s activities, beMatrix® reserves the right not to grant an account. beMatrix® shall not be liable for any compensation whatsoever, even if beMatrix® decides not to grant an account.

Any changes or additions in this respect will only be considered valid after written approval or implementation by beMatrix®.

2.2.      The account details provide the Customer with access to the beMatrix® Services. These Services differ depending on whether it concerns the Demo account, the free trial version of the paid account or the paid account itself.

2.3.      Each Customer is solely responsible for the protection and security of his account details such as user name and password. The Customer is expected not to disclose this information to third parties and to immediately sanction and report any unauthorized use to beMatrix®. Upon such notification, beMatrix® shall be entitled to suspend the service or to delete the relevant account. Loss or misuse of personal data associated with an account shall not give rise to liability on the part of beMatrix®.

2.4.      beCAD company account. When registering with a professional e-mail address, the individual to whom this professional e-mail address has been assigned accepts that the Customer is entitled to request beMatrix® to adjust the configuration settings and the administrator rights to the needs of the Customer. beMatrix® shall always grant administrator rights to the first e-mail address with a certain extension from which beMatrix® receives the complete registration request. Anyone who has an account with administrator rights has the option of granting rights or activating or deactivating accounts.

3.               Price, invoicing and payment of the paid account

3.1.      Price. The Services are offered at a specific price as stated on the beMatrix® website or as agreed with the Customer. All prices on the website are expressed in euros and are exclusive of VAT. All taxes, levies and charges are payable by the Customer.

beMatrix® expressly reserves the right, subject to simple notification to the e-mail address specified upon registration, to increase its prices in case of increases in certain costs that affect the agreed price, such as, but not limited to, an increase in the prices of internet providers, software or hardware suppliers or hosting companies, even if this occurs as a result of foreseeable circumstances.
The price is linked to the fluctuations in the consumer price index and is adjusted once a year on the expiry date of the agreement’s coming into force without being able to be lower than the initial price and according to the formula base price x index figure of the month prior to that of the anniversary of the agreement’s coming into force / index figure of the month prior to the agreement’s entry into force.

3.2.      Invoicing. Invoicing shall take place monthly at the beginning of the month, each time with regard to the services of the following month.

The Customer expressly agrees to electronic invoicing by beMatrix® sent to the e-mail address provided when registering the Paid Account, unless otherwise agreed.

Unless otherwise agreed, the invoices are automatically and fully (without any discount) collected by beMatrix® via credit card on the invoice date, using the credit card number specified at the time of registration of the Paid Account.

If automatic collection is impossible, the invoiced amount must be paid within 14 days of the invoice date at the latest.

In the event of cancellation of a Paid Account, the service will be charged until the end of the current month and the funds already paid to beMatrix® will remain definitively acquired so that they cannot be the subject of a refund.

3.3.      Downgrades. If the Customer fails to pay the invoices relating to the Paid Account in time, beMatrix® has the right (i) to suspend the Services or to downgrade the Paid Account to the level of the free trial version or (ii) to terminate the agreement.

3.4.      The quotations, offers, orders and invoices are subject to the general terms and conditions of sale of beMatrix®, which are attached hereto, insofar as they are not contrary to the provisions of these Terms of Service.

4.               Duration and termination

4.1.      The agreement between the Customer and beMatrix® with regard to the use of the Services, either via the Demo account or via the Paid Account, is an agreement of indefinite duration.

4.2.      The Customer may terminate either the Demo Account or the Paid Account at any time and for any reason by giving written notice by email to beMatrix® at the email address info@bematrix.com , to which beMatrix® shall give effect by deactivation of the relevant account within five working days after receipt of the said email by beMatrix®.

The Customer is deemed to have exported the Input Data prior to his termination of the Paid Account and on his own initiative using the available export tools.

4.3.      beMatrix® may terminate both the Demo Account and the Paid Account at any time and for any reason by means of a written e-mail notification to the Customer at the e-mail address indicated at the time of registration, subject to the observance of a notice period of five working days within which the Customer is deemed to have exported the Paid Account Input Data on its own initiative using the available export tools.

beMatrix® shall also have the right to terminate the agreement at any time, by operation of law and without legal intervention, with immediate effect, without notice and without prior notice of default and

without beMatrix® being required to pay compensation and without prejudice to beMatrix®’s right to compensation for the damage it has suffered in the event of exceptional circumstances or objective need thereof.

Exceptional circumstances or objective need shall be understood to include, but not be limited to:

1.      If beMatrix® determines or has clear reasons to assume that:

• the Customer’s information is incorrect, misleading, inaccurate or out of date; or
• the Customer materially violates any of these Terms of Service; or
• the Customer uses the Services for unauthorized, illegal and/or inappropriate purposes or for purposes that cannot be considered objectively reasonable and acceptable or in a manner that would cause a real risk of damage or loss to beMatrix® or other  users; or
• the agreement with the Customer is based on incorrect or erroneous information from the Customer;

2.      If the Customer fails to pay his outstanding invoices to beMatrix® on time (all agreements between beMatrix® and the Customer are deemed to form part of one comprehensive contractual relationship), in case of suspension of payment or (filing of an application for declaration of) bankruptcy, or any reorganisation by the Customer, in case of liquidation or cessation of the Customer’s activities, in case of attachment of (a part of) the Customer’s assets;

Where appropriate and except in the event of fraud, deception or serious misconduct on the part of the Customer, beMatrix® shall notify the Customer of the deactivation of the account and of the possibility of exporting the imported data via the available export tools during a certain period specified in this notification.

beMatrix® shall have the right to terminate the agreement with respect to the Demo account at any time, by operation of law and without legal intervention, with immediate effect, without notice, without beMatrix® having to pay any compensation and without prejudice to beMatrix®’s right to compensation for the damage it has suffered, if beMatrix® determines that the Services have not been used for 12 consecutive months through the Demo account. In this case, beMatrix® undertakes to inform the Customer 30 days in advance allowing the Customer to activate the Demo account during this 30-day period and to avoid the termination of the agreement for reasons of non-use.

4.4.      beMatrix® shall have the right to discontinue the Services at any time, including in the event of force majeure on the part of beMatrix® or if this is necessary for beMatrix® to comply with a legal requirement. If so, beMatrix® shall inform the Customer of this within a reasonable period of time prior to termination by means of a notice on its website or by e-mail to the e-mail address provided by the Customer at the time of the registration application, indicating the possibility of exporting the Input Data during the period mentioned in the notice using the available export tools. In this case, beMatrix® shall, if applicable, reimburse the Customer for the amount already paid corresponding to the period after the Services were discontinued.

4.5.      Upon termination of the contract, regardless of the reason and regardless of which party took the initiative to do so, beMatrix® shall have the right to refuse any request by the Customer for registration with a view to using the Services.

4.6.      Upon termination of the Agreement, for whatever reason and irrespective of which Party took the initiative, each Party shall cease to use the other Party’s confidential information and proprietary material, without prejudice to the provisions of Clause 5.1 of the present Terms of Service.

5.               Use of the Services

5.1.      Input data. If the Customer uses the beMatrix® Services, data will be entered (hereinafter referred to as the “Input Data”), such as, but not limited to, files, plans, customer data, project information, etc.

beMatrix® undertakes to treat these Input Data confidentially to the best of its ability and with due care. beMatrix® may, however, analyse the Customer’s user behaviour and Input Data with a view to improving the Services. beMatrix® has the right to store the Input Data for as long as this is necessary for the execution of the agreement or the execution of a legal obligation.

The customer is and remains solely liable for the content of the Input data. Under no circumstances can beMatrix® be held liable for loss or incorrect use of the Customer’s Input Data, except if this is solely due to fraud, deception or a serious error on the part of beMatrix®.

In certain cases, third parties are granted access to the Customer’s Input Data, in particular if this is necessary for the execution of the agreement (e.g. for hosting designs, making back-ups of the Input Data, for sharing Input Data with beMatrix® partners at the Customer’s request) or if this results from a legal obligation on the part of beMatrix® (e.g. police or judicial investigation).

The beCAD online design tool also provides the Customer with functions such as photo thumbnails, stand visuals, project management, quotation queries, editing, sharing and searching. The Customer accepts that beMatrix®, its affiliates and trusted partners will open, store and share the Input Data for these and other functions.

5.2.      The use of the Services and access to the Services presupposes that the Customer has an internet connection and uses a modern web browser (such as the most recent version of Google Chrome or Internet Explorer). If the Customer uses an outdated web browser, it is possible that not all functions of the Services can be used or that they do not work optimally, for which beMatrix® can under no circumstances be held liable.

To maintain the quality of the Services, beMatrix® is committed to implementing updates on a regular basis. beMatrix® endeavours to minimize the impact of maintenance activities and updates on the availability of the Services, including by notifying the Customer in good time, except where this is not possible or useful, but does not exclude any downtime in this respect, which, however, cannot give rise to any liability on the part of beMatrix®.

5.3.      The Customer undertakes to use the Services in accordance with these Terms of Service and any other applicable regulations. The Customer is solely liable for any use and any activity of the account including all acts or omissions of the account users.

Among other things (without this list being exhaustive) it is not allowed to:

·        pretend to be someone else when applying for or using an account;

·        log into someone else’s account,

·        use the Services fraudulently or for illegal or unlawful purposes;

·        use the Services for the transmission of data that is illegal, defamatory, invasive of one’s privacy, offensive, threatening, harmful or that infringes one’s intellectual property rights (non-exhaustive list);

·        copy, modify, adapt, change, translate, create derivative works from, reverse engineer, disassemble or decompile, sell or resell the Services (or derivative works thereof), grant, rent, lease, distribute or offer to a third party a license or sublicense to them;

·        disrupt the proper functioning of the Services or the beMatrix® website: this means that the Customer may not use viruses, worms, Trojan horses or other software or malware that could impair the proper functioning of the Services and that the Customer must refrain from using Input Data that could compromise the proper functioning of the Services;

·        send unsolicited and / or commercial messages, such as junk mail, spam, chain mails, phishing, or other unwanted mass distribution of e-mails, using the functionalities of the Services;

·        use the Services in a way that may give a false or misleading impression about beMatrix®.

6.               Modification of the Services or software

6.1.           beMatrix® is entitled to modify the offer and composition of the Services at any time. If so, beMatrix® shall inform the Customer of this within a reasonable period of time prior to the change by means of a notice on its website or by e-mail to the e-mail address provided by the Customer at the time of the registration application.

The underlying software of the Services can also be updated automatically. beMatrix® is not responsible for the loss of Input Data as a result of software updates or a modification of the Services.

6.2.           Beta services. In some cases, the Services may include features or products that are still being tested and evaluated (hereinafter referred to as the “Beta Services”). These Beta Services are referred to as beta, preview, early access or evaluation (or similar words or expressions). The Customer expressly accepts that these may be less accurate than the other Services.

7.               Intellectual property rights

The Customer explicitly acknowledges that beMatrix® is the owner or licensee of the Services and/or the intellectual property rights associated with the Services. The use of the Services does not grant the Customer any rights to, ownership of or share in the Services, the content of others in the Services and the trademarks, logos and other brand features of beMatrix®.

Provided that the Customer complies with these Terms of Service, beMatrix® provides the Customer with a paid (except for the demo version), non-exclusive, non-transferable, revocable license to use the online software solely for access to and use of the Services in accordance with the terms and conditions set forth in these Terms of Service. In no event shall there be a transfer of ownership, nor shall the Customer be entitled to a copy of any software or other products used by beMatrix® in the context of the Services.

The Customer shall not use any trademark, trade name or brand name of beMatrix®, except in case of express written consent of beMatrix®.

8.               Liability

8.1. The provision of the Services by beMatrix® takes place without declarations or guarantees, explicit or implicit, and constitutes a best efforts obligation.

beMatrix® shall only be liable for damage caused by non-compliance with its contractual obligations, if and insofar as such damage is caused by its fraud, deception or wilful misconduct. The maximum liability of beMatrix® shall always be limited to the amount corresponding to the price paid by the Customer for the Services during the previous year or for the duration of the contract, if this is less than one year. If the damage is covered by insurance, beMatrix®’s liability shall be limited to the amount actually paid to it by its insurer. beMatrix® shall never be liable for indirect damage, including, but not limited to, consequential damage, loss of profit, lost savings, production limitations, administrative or personnel costs, an increase in general costs, loss of customers, claims from third parties or damage to third parties.

8.2.      Stability, solidity, colour fastness, colour accuracy. The Customer expressly accepts that beMatrix® shall not be liable for the structural stability and solidity of the final construction designed with the beCAD online design tool, neither for the colour fastness or colour accuracy of the panels or other parts of the construction, and that the Customer shall have no right to demand the termination of the agreement, or to refuse delivery and/or payment and/or to obtain any compensation or indemnity on that ground. The Customer shall exclusively bear all the costs of additional reinforcement or rigging. The Customer shall also be exclusively responsible for providing a stable surface on which the structure will be placed. This shall also apply if beMatrix® assists the Customer in the installation of the delivered goods.

8.3.      Compatibility. When using the beCAD online design tool of beMatrix®, the Customer acknowledges that the result depends on external factors such as the intended purpose of the application, and the provision of correct information by the Customer. The Customer expressly accepts that he shall be solely liable to provide essential information to beMatrix® and for the accuracy of the information provided. The goods offered by the beCAD online design tool are purely indicative. beMatrix® shall not be liable for any lack of compatibility between the goods offered by the beCAD online design tool. beMatrix® shall also not be liable in case the delivered goods are not suitable for the specific needs and requirements of the Customer. The Customer shall be exclusively liable for the assembly of goods on the goods delivered by beMatrix®, such as electronics or lighting.

8.4.      Calculation tools. The beCAD online design tool contains a number of automatic calculation tools, including, but not limited to, the calculation of connectors and the generation of panel plans. beMatrix® does not at any time guarantee the completeness of the automated output of these calculation tools.

8.5.      Quotations. The Customer can generate quotations via the My beMatrix platform. These quotations are subject to completeness and any additional costs that could not be calculated automatically. Acceptance of a quotation via the My beMatrix platform does not imply any commercial commitment on the part of beMatrix® in terms of value or delivery time. These offers are subject to the general terms and conditions of sale of beMatrix® which are attached hereto.

8.6.      Force majeure. The liability of beMatrix® cannot be invoked in case of total or partial non-compliance, temporary or otherwise, with its commitments on the grounds of force majeure, even if such force majeure conditions could have been foreseen at the time of concluding the contract, such as war, extreme weather conditions, riots, general or partial strike, general or partial lockout, infectious diseases, operating accidents, fire, breakdown of machinery, bankruptcy of suppliers, lack of raw materials, exhaustion of stocks, delays in delivery or failure to deliver by its suppliers, flooding, high absenteeism due to illness, electronic, IT, Internet or telecommunication interruptions, decisions or interventions by the authorities (including refusal or cancellation of a permit or license), fuel shortages, etc. Force majeure shall never confer on the Customer the right to terminate the agreement or to claim compensation. Since the Customer’s obligation towards beMatrix® is essentially a payment obligation, force majeure on the part of the Customer is hereby expressly excluded.

8.7.      beMatrix® does not guarantee that the Services will not be interrupted or are free from errors, nor that the Services will be continuously available, free of viruses, on time and complete. beMatrix® undertakes to use its best efforts to make the Services available again as soon as possible in the event of an interruption in availability.

The Customer is personally liable for any damage to his computer or network infrastructure after use of the Services.

beMatrix® shall in no way be liable for damage caused by the Customer’s continued use of the Services after a defect has been detected or by the Customer’s failure to comply with any advice or guideline of beMatrix®.

8.8.      The Customer acknowledges that beMatrix® does not offer any guarantee that the Services comply with the regulations valid in any jurisdiction, except the regulations in force in Belgium at the time of the conclusion of the agreement, which means that beMatrix® cannot be held liable for any subsequent change in such regulations of any kind.

8.9.      Any claim by the Customer for compensation against beMatrix® shall lapse by operation of law unless placed before the competent court within a period of 1 year from the date on which the Customer became aware or should reasonably have become aware, of the facts on which the claim is based.

9.         Privacy policy - support

9.1.      Any processing of personal data by beMatrix® shall be done in conformity with the Privacy Policy, which can be found on the beMatrix® website (www.beMatrix.com/en/privacy-policy); a copy of the same can be obtained through simple written request addressed to beMatrix® (privacy@beMatrix.com).

9.2.      If the Customer needs help or has a question about the beCAD online design tool or about the My beMatrix platform, the Customer can contact beMatrix® via the built-in support form. beMatrix® will do its utmost to support the Customer as soon as possible.

10.            Changes

beMatrix® reserves the right to revise these Terms of Service from time to time to take into account (a) legislative changes, (b) new regulations, or (c) improvements or innovations to the Services.

beMatrix® undertakes to notify the Customer of such change by posting an announcement on its website within a reasonable time prior to the application of the amended Terms of Service and/or by sending an e-mail to the e-mail address that is linked to the Customer’s account.

If the Customer does not agree to the changes to the Terms of Service, the Customer will be deemed to terminate the contract. Further access to or use of the Services after the changes have come into effect shall be deemed to constitute acceptance of the revised Terms of Service.

11.            Miscellaneous

11.1.    All agreements concluded by beMatrix® to which these general terms and conditions apply, shall be exclusively governed by the laws of Belgium, to the exclusion of the Convention of 11 April 1980 on the Law of the International purchase/sale of tangible movable goods. This provision shall apply in all cases, irrespective of the capacity of the parties, the place at which the agreement was concluded or where the agreement is to be performed, insofar as the provision relating to the applicable law is permitted.
11.2.    All disputes between the Customer and beMatrix® shall be subject to the exclusive jurisdiction of the competent courts of the place in which the registered office of beMatrix® is located, unless beMatrix® prefers to bring the claim before the court that has jurisdiction under the Judicial Code.

11.3.    The possible invalidity or unenforceability of one or more (parts of) the provisions of these terms and conditions shall not affect the validity or enforceability of the other provisions. In such case, beMatrix® and the Customer shall negotiate in good faith and replace the invalid or enforceable provision by a legally valid and enforceable provision that fits as closely as possible the objective and the intent of the original provision. In such case, beMatrix® and the Customer confirm that the court has the authority to moderate the clause in question to the maximum that is permitted within the relevant legal limits.

11.4.    In case of a dispute concerning the interpretation of these terms and conditions, the Dutch text shall always prevail.