SOSid TERMS & CONDITIONS
These SOSid Terms & Conditions (hereinafter: ‘Terms’) comprise the terms and conditions under which SOSid will provide respectively make available SOSid Products respectively SOSid Services to Customer.
1. IN GENERAL
1.1 The following notions in these Terms and related documents will have the following meaning:
‘Agreement’: any agreement or other legal relationship(s) of any nature between Parties in respect of the provision of SOSid Products or making available SOSid Services, any amendment thereof or supplement thereto, as well as all acts related to performance of the Agreement(s);
‘Customer’: any person or legal entity with whom SOSid wishes to enter into, enters into or has entered into a legal relationship, either being a Purchaser or Registrant;
‘Data’: data provided by Customer, such as without limitation (a) Customer’s administrative details necessary for the respective contractual and other legal engagements under an Agreement regarding either SOSid Products or SOSid Services, and (b) data provided, updated or amended by Registrant at its own discretion regarding the SOSid Services such as without limitation first name, last name, date of birth, age, gender, email address, phone number, photos, contact information, medical data or other data that may or may not qualify as personal data as defined in the EU General Data Protection Regulation 2016/679 (‘GDPR’);
‘Fees’: Purchase Price respectively Service Fees;
‘Party’ or ‘Parties’: Customer and/or SOSid;
‘Purchase Order’: any request by Purchaser to SOSid to enter into an Agreement concerning the sale, purchase and delivery of SOSid Products to Purchaser;
‘Purchase Price’: the Fees due and owed by Purchaser to SOSid as consideration for the Purchase Order accepted and processed by SOSid, or otherwise arising from the Agreement or described in these Terms;
‘Purchaser’: any person or legal entity with whom SOSid wishes to enter into, enters into or has entered into a legal relationship regarding the purchase of certain SOSid Products. A Purchaser can but does not necessarily have to be a Registrant as well;
‘Registrant’: any person or legal entity with whom SOSid wishes to enter into, enters into or has entered into a legal relationship regarding certain SOSid Services. A Registrant can but does not necessarily have to be a Purchaser as well;
'Service Application’: any request by Registrant to SOSid to enter into an Agreement concerning making available certain SOSid Services to Registrant;
‘Service Fee’: the Service Fees due and owed by Registrant to SOSid as consideration for making available the Services to Registrant, and otherwise arising from the Agreement or described in these Terms;
‘SOSid’: SOSid B.V., a private company with limited liability based in the Netherlands and registered in the registers of the Dutch Chamber of Commerce under number 24375545;
‘SOSid Products’: products developed and marketed as the SOSid set by or on behalf of SOSid via its Website;
'SOSid Services’: online services made available or to be made available by SOSid to Customer in any way by means of the internet in general and the Platform in particular;
‘Supplier’: any supplier, subcontractor or licensor of SOSid;
‘Website’: www.SOSid.com and related online platform as made available by SOSid from time to time.
1.2 These Terms shall apply to all offerings, quotations, Purchase Orders, Service Applications and Agreements. Parties declare and recognise explicitly that no other general (or special) purchasing, delivery or other conditions shall apply to such offerings, quotations, Purchase Orders, Service Applications and Agreements except for these Terms.
2.1 An Agreement for SOSid Products respectively SOSid Services shall only be considered as concluded when (i) SOSid has expressly confirmed said Agreement via its Website, by email or other means of electronic communication customary in the market, or (ii) SOSid carries out acts from which it is apparent that SOSid has accepted the relevant Purchase Order respectively Service Application.
2.2 In particular, an Agreement for SOSid Services becomes effective as per the date SOSid has sent Registrant, in response to Customer’s Service Application, a confirmation email with Registrant’s login details regarding the SOSid Services (‘SOSid Services Effective Date’). Such Agreement shall be entered into for an initial duration of one (1) year (‘Initial Duration’) as of the SOSid Services Effective Date. Thereafter, such Agreement is renewed automatically, each time for a period of one (1) year, unless the Agreement shall be terminated by either Party via the Website or by email and taking into account a term of notice of at least one (1) months before the end of a current contractual period.
3. SOSid PRODUCTS
3.1 Delivery of SOSid Products shall take place against a net sum determined by SOSid DDP (Duty Delivery Paid, as expressed in the Incoterms 2020), unless otherwise agreed in writing by Parties.
3.2 From the moment upon which SOSid Products have been placed within actual power of disposal of Purchaser or of an auxiliary person used by Purchaser, including the moment of delivery the SOSid Products delivered shall be for Purchaser’s risk. SOSid Products shall be deemed to be accepted upon delivery. Ownership (not being intellectual property rights and ownership) of the SOSid Products delivered shall only be transferred to Purchaser after full payment by Purchaser of all accounts receivable arising from the Agreement.
3.3 All schedules mentioned by SOSid or agreed with SOSid have been planned to the best of its knowledge on the basis of the information and circumstances known to SOSid when the Agreement was concluded. SOSid shall make reasonable efforts to adhere to said schedules; however, the exceeding of such schedule shall not be considered an attributable shortcoming of SOSid. In the case that there is a risk of exceeding such term or it has already been exceeded, Parties will consult as soon as possible.
3.4 Purchaser may only invoke the right to any warranty after Purchaser shall have fulfilled all his financial and other obligations towards SOSid concerning the SOSid Products delivered. Should a material defect occur in SOSid Products delivered to Purchaser by SOSid within two (2) months after date of delivery, Purchaser must notify SOSid as soon as possible after such has arisen (but in any case at the latest within five (5) calendar days after Purchaser has become aware of said defect or should have been aware thereof) in default whereof right to warranty shall lapse. SOSid will do its commercially reasonable efforts to remedy such defects or may replace the SOSid Product, at its discretion. SOSid does not warrant that the SOSid Products will operate without interruption or failure. SOSid shall be entitled to charge its usual rates and the cost of repair in the event of improper, negligent or injudicious use by Purchaser, molest or other causes not attributable to SOSid. The warranty obligation shall lapse if Purchaser makes any modifications or causes any modifications to be made without the written permission of SOSid. Defects shall be remedied at a location to be determined by SOSid. After the end of the period of warranty referred to in the second sentence of this Clause, SOSid shall not be obliged to remedy any defects.
4. SOSid SERVICES
4.1 From the Effective Date SOSid will make reasonable efforts to provide SOSid Services in accordance with the description thereof on its Website (amended from time to time) and other content of the Agreement. Registrant confirms the accuracy of the data stated in the Agreement and fulfil the Agreement correctly from the Effective Date by Registrant.
4.2 All SOSid Services as well as any content with which the SOSid Services may be pre-populated shall be made available on an ‘as-is’ basis and considered to be accepted unconditionally at Effective Date. SOSid aims at achieving availability of the SOSid Services of twenty-four (24) hours a day, seven (7) days a week, except the planned (maintenance and related) ‘down-time’ of the SOSid Services. However, without prejudice to actual availability, Registrant’s obligation to pay the Service Fees shall remain in full force.
5. FEE AND PAYMENT
5.1 All rates, prices and other Fees are net and shall be exclusive of VAT as well as (withholding and other) taxes and levies due under the applicable law. Fees from SOSid concerning SOSid Products are due and payable in advance. Fees from SOSid concerning SOSid Services are due and payable each year in advance. Payment shall take place without any set-off, deduction or suspension. Any objections to any invoice or Fee invoiced shall be made known to SOSid in a timely manner in writing, before the lapse of one (1) week after related payment.
5.2 SOSid is authorised to adjust the applicable Fees per contract year within reasonable limits. If such an adjustment concerns an increase that is higher than five per cent (5%), SOSid will notify the increase to Customer not later than two (2) months prior to the expiry of the Initial Duration (or any extension thereof in accordance with Clauses 2.2) to take effect from commencement of any extension of the Initial Duration.
5.3 If Customer does not pay the amounts due within the payment term as set forth in this paragraph or Agreement, then Customer shall be in default. In the event of a default (i) Customer shall be due and pay to SOSid the amount due accumulated with interest of at least one and a half (1,5) percent per month, as well as debt collection costs, and (ii) SOSid (in addition to the other rights to which it is entitled under the Agreement) will be authorized to suspend the delivery or SOSid Services or part thereof.
6. CUSTOMER OBLIGATIONS
6.1 Customer procures that any Data provided by Customer is correct and accurate. Customer has the obligation to advise SOSid immediately of any changes in such Data.
6.2 Customer is solely responsible for the use of the SOSid Products respectively SOSid Services and user credentials provided by SOSid, maintaining due care and confidentiality in respect of access thereto and use thereof, and for its configuration of the SOSid Products respectively SOSid Services. Customer has the obligation to only use the SOSid Products respectively SOSid Services within the boundaries of the terms of the Agreement, these Terms and applicable law.
7.1 SOSid respectively Customer will treat all information and data (including Data) that each obtains from the other Party with respect to the SOSid Products respectively SOSid Services as well as commercial, strategic, technical data, knowledge and/or other information connected with that other Party as strictly confidential. For the avoidance of doubt, any Data uploaded by Customer in the SOSid Products respectively SOSid Services is considered confidential information of Customer.
7.2 It is only allowed to deviate from the provisions in Clauses 7.1 if (i) the relevant deviation has been explicitly provided for in the Agreement, (ii) the related information was already generally known without any breach of confidence by a Party or any third party before the Agreement was realized, (iii) the prior written permission of the Party concerned was obtained, or (iv) the related information must be made public to satisfy a mandatory decision to that extent of a legal authority, in which case the Party concerned will inform the other Party in advance.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 All rights of intellectual property of Customer are and will remain the property of Customer. SOSid, its suppliers and its licensors are the exclusive owner(s) of all rights and titles to and of all segments of the SOSid Products respectively SOSid Services, including the intellectual property rights and the functionality thereof. Customer shall acquire no rights whatsoever other than explicitly described in these Terms and/or the Agreement.
8.2 SOSid holds Customer indemnified against any claims based on the substantiated allegation of a third party that the SOSid Products respectively SOSid Services infringe intellectual property rights valid in the Netherlands and other member states of the European Union. In such case, Customer shall inform SOSid thereof immediately in writing, in detail, and further offer its cooperation to SOSid in, but not limited to, legal proceedings and/or negotiations. In the case of aforementioned claims by third parties SOSid may at its discretion replace or amend the SOSid Products respectively SOSid Services or any part thereof, or dissolve the Agreement in part or in whole, in which latter case SOSid will return the Purchase Price respectively Service Fees paid by Customer for SOSid Products respectively SOSid Services not yet provided on a pro-rated basis. SOSid is not responsible for any settlement out of court without a written permission of SOSid.
9. DATA PROTECTION
9.1 During the terms of the Agreement, Customer is responsible for the (personal and other) Data made available by Customer concerning SOSid Products respectively SOSid Services, and for its use within the normal business of SOSid. Processing of personal data by Customer, SOSid or third parties is limited to the legal conditions or mandatory instruction by applicable privacy law and within the purpose of the Agreement. Each Party takes commercially reasonable care for the protection of the personal data against loss or any other unlawful processing.
9.2 The Customer can, at any moment, determine the extent of Data provided and edit or remove the same. The Service does not require the Customer to provide Data, for instance, in mandatory fields, other than their name and contact details necessary for the creation of a User Account. It is left to the Customer to provide as much Data as they deem necessary, pursuant to the principle of ‘data minimisation’ as mentioned in the GDPR. With regard to third party Data, such as data referring to contact persons in case of emergency, the Customer shall be considered as controller and fulfil all the related obligations, as envisaged by the GDPR and any other applicable laws and regulations. In case the Customer provides Data related to their medical condition, such as their blood type or previous medical conditions, the Customer, by filling in the Data they deem to be the most appropriate for their case, is expressing explicit consent to the processing of these Data pursuant to applicable privacy law. In any case, Customer’s Data will not be stored for a period longer than necessary for the performance of the Service, or for the performance of related legal and administrative duties.
9.3 Notwithstanding that the Customer is able to autonomously remove or edit any Data provided for the use of the Service, in case of need, they could contact the email address info@SOSid.com for further assistance with the management of their Data. Additional data collection from SOSid may concern data regarding the date of subscription, duration of the subscription or other data concerning the use of the Service, such as access log and duration of the access. In case of inquires with the processing of these data, the Customer may contact info@SOSid.com.
9.4 SOSid does not give any warranties with regard to content of data, including but not limited to reliability and completeness. Customer understands that the technical processing, transmission and storage of Customer’s data is fundamentally necessary in order to run the SOSid Products respectively SOSid Services. Customer expressly consents to SOSid and its Suppliers processing and storage of Customer’s electronic communications and/or process data, and Customer acknowledges and understands that this will involve encryption and SSL transmission over the internet and processing within the Platform.
9.5 The Data of Customer are and will remain the property of Customer. Customer is aware that the data processing and storage is managed by Suppliers as subcontractors to SOSid. In cases such as, but not limited to Clauses 7.2 (iv) of these Terms, SOSid may be required by mandatory law to provide certain (personal) data. If this is the case, Customer will be informed by SOSid insofar as the law permits.
9.6 SOSid reserves the right to – to the extent permitted by law – withhold, remove, discard and/or otherwise dispose any data or data set without notice for any breach including, without limitation, Customer’s non-payment of Fees, or infringement of confidentiality obligations, SOSid’s intellectual property rights, or (anticipated) breach of mandatory law. Upon termination for cause, Customer’s right to access or use the Services immediately ceases, and SOSid shall have no obligation to maintain any data. However, prior to the date of termination, Customer is entitled to download any of its Data then available, which SOSid will make available in generally available format if and to the extent used by SOSid at that time. Any modifications to the data of Customer, made outside the platform will not be captured in Customer’s data as returned and the return of any such modified data shall be the responsibility of Customer.
9.7 If SOSid processes any personal Data on Customer’s behalf when performing its obligations under this Agreement, Parties hereby agree that Customer shall be the data controller and SOSid shall be a data processor in any such case: (a) Customer shall ensure that Customer is entitled to transfer the relevant Data to SOSid so that SOSid may lawfully use, process and transfer the Data in accordance with this Agreement on Customer's behalf, and (b) Customer shall ensure that the relevant third Parties have given their consent to, such use, processing, and transfer of all personal data supplied by Customer as required by all applicable data protection legislation.
10.1 The warranties set forth in Clauses 3.4 are the sole warranties made by SOSid regarding SOSid Products. The warranties set forth in Clauses 4.1 and 4.2 are the sole warranties made by SOSid regarding SOSid Services.
10.2 SOSid expressly disclaims and Customer hereby expressly waives, all other warranties, express or implied, including, without limitation, warranties of merchantability and fitness for a particular purpose. SOSid does not warrant and specifically disclaims any representations that the SOSid Products respectively SOSid Services shall meet Customer’s requirements or that the operation thereof or its use shall be uninterrupted or error-free, or that defects in the SOSid Products respectively SOSid Services, if any, shall be corrected. SOSid’s limited warranty set forth herein is in lieu of all liabilities or obligations of SOSid for damages arising out of or in connection with the use of the SOSid Products respectively SOSid Services. Except for the abovementioned warranties, the entire risk as to the use, quality and performance of the SOSid Products respectively SOSid Services are with Customer, who explicitly acknowledges that to the maximum extent permitted by applicable law the SOSid Products respectively SOSid Services are ‘as is’. Any use of the SOSid Products respectively SOSid Services by or on behalf of Customer and any (direct and indirect) consequences thereof are at the expense and risk of Customer.
11. LIMITATION OF LIABILITY
11.1 Except for breaches of the Agreement due to intent or gross negligence of the management of SOSid, SOSid will not be liable for any damage that Customer suffers by any acting and/or refraining from acting of SOSid, except for any direct damage on account of an attributable shortcoming of SOSid.
11.2 Direct damage will be understood to mean in this Clause, damage except for indirect damage such as (amongst others) consequential damage, lost profit, missed savings, damage through business stagnation and damage on account of corrupted or lost data. In any event, SOSid’s aggregate liability for any reason and upon any cause of action or claim, including, without limitation, SOSid’s obligation to indemnify and hold harmless under the agreement, shall be limited to the amount equal to the pro-rated Fees paid to SOSid by Customer hereunder in the three (3) months period prior to the claim. If and insofar any damage is caused because SOSid is culpably in default on account of intent or gross negligence of the management of SOSid in its responsibilities, SOSid will be maximally liable for an amount of EUR 500 (five hundred Euro) per event, at which a series of connected events will apply as one event. The limitations set above apply to all causes of action or claims in the aggregate, including, without limitation, breach of contract, breach of warranty, indemnity, negligence, strict liability, misrepresentations, and other torts.
11.3 A right of Customer to compensation will only arise if Customer has informed SOSid accordingly in writing within thirty (30) days or immediately after Customer could discover in reason the arising thereof.
11.4 SOSid will not be liable for entire or partial non-observance of any obligations or partial non-observance of and/or on behalf of SOSid on account of the Agreement, if the non-observance or other delay or failure to perform hereunder is due to: (a) Customer’s delay in supplying or in failing to supply approvals, information, documentation, SOSid Products or services reasonably requested by or necessary for SOSid to execute the Agreement, or (b) causes beyond the control of SOSid, including, but not limited to, acts of God, acts of any government or political division of government, fires, floods, epidemics, quarantine restrictions, strikes, under which any non-attributable shortcoming of Supplier(s) of SOSid are included.
12.1 Any pending invoice or other claim pursuant to and/or arising from the Agreement(s) shall forthwith be fully due and payable, without further notice of default and without prior judicial intervention, in the case that (i) the other Party applies for bankruptcy, suspension of payments or is declared bankrupt, or (ii) the other Party is a legal entity and this legal entity is dissolved. In the aforementioned cases, SOSid is authorized - in addition to all rights mentioned in the present Terms - to terminate the Agreement forthwith.
12.2 SOSid is entitled to subcontract or otherwise assign the rights and/or obligations arising from the Agreement. Customer is not permitted to assign the Agreement and/or any of its rights or obligations in this matter, without express prior written permission from SOSid.
12.3 These Terms, the Agreement and related matters hereto shall be exclusively governed by the laws of the Netherlands, without giving effect to the principles of conflict of laws. The application of the United Nations Convention on Contracts for the International Sale of SOSid Products dated 11 April 1980 is hereby explicitly excluded.
12.4 In case any provision of these Terms or other parts of the Agreement become invalid, illegal or unenforceable, it shall not affect the validity of the remaining provisions thereof. In such a case, Parties shall be entitled to request that a valid and practicable provision be negotiated that fulfils the purpose of the original provision.
12.5 Without prejudice to the right of each Party to apply for disposition by summary proceedings, all disputes arising in connection with the Agreement, these Terms and related matters (‘Disputes’), and which cannot be solved through amicable negotiations, shall be exclusively and finally settled by the competent court of Rotterdam. The above choice of forum is without prejudice to the right of SOSid as plaintiff or petitioning Party to elect for the competent court of the domicile or place of business of Customer. Parties hereby each irrevocably waive any right to a jury trial in any action or proceeding between the Parties whether hereunder or otherwise.
12.6 Headings have been inserted into the Terms or other parts of the Agreement for convenience only and shall not affect the interpretation thereof.