Terms and Conditions of Sales

Terms and Conditions of Sales

Updated 1 May, 2018

Guardtek specializes in the development of web and mobile software solutions dedicated to the private security services & facilities management industries. These solutions are marketed by Guardtek and its subsidiaries (Trackforce Group) in various countries around the world.

With the entry into force on 25 May 2018 of European Regulation no. 2016/679 of 27 April 2016 on the protection of personal data (hereinafter the “GDPR”), we have redefined and formalized the legal framework of the marketing of our solutions in these Terms and Conditions of Sale (hereinafter “CGV”). These Terms and Conditions are supplemented by the “Subcontracting Clauses” and the “Data Protection Policy” which form an integral part thereof.

Clause no. 1: Subject

These terms and conditions of sale set out the rights and obligations of Trackforce and the Client for the sale of the following Products: Post, m-Post, Inspector, Proteck and Patrol.

Any service provided by Trackforce for the Client therefore implies unconditional acceptance by the Client of these terms and conditions of sale.

Clause no. 2: Price

The prices of the products sold are those in force on the day of ordering. They are denominated in euros or their equivalent in local currency on the day of the transaction, and calculated excluding taxes. Accordingly, VAT and transport costs applicable on the day of the order will be added.

Trackforce is granted the right to change its prices at any time. However, it undertakes to invoice the products ordered at the prices indicated when recording acceptance of the quote.

Clause no. 3: Rebates and discounts

The proposed prices include discounts and rebates that Trackforce may grant on the basis of its results or if the Client assumes the cost of certain services.

Clause no. 4: Discount

No discount will be granted for advance payment.

Clause no. 5: Payment terms

Payment for orders is made by:

• Direct debit
• Bank credit transfer

When placing the order, the buyer must pay the quarter in advance in accordance with the invoice issued by Trackforce (30 days from the invoice date).

Clause no. 6: Late payment

In the event of total or partial non-payment of products delivered on the day of acceptance, the buyer will have to pay Trackforce a lateness penalty equal to three times the legal interest rate.

The legal interest rate used is that in force on the day the products are delivered.

This penalty is calculated on the amount including tax of the outstanding balance and runs from the due date for payment without any prior notice being required.

In addition to the lateness payment, any sum, including the deposit, not paid on its due date will automatically result in payment of a fixed fee of 40 euros due as recovery costs.

Clause no. 7: Cancellation clause

If, within fifteen days of enforcement of the “lateness payment” clause, the buyer has not paid the outstanding sums, the sale will be cancelled ipso jure and may entitle TRACKFORCE to claim compensation for damages.

Clause no. 8: Retained title clause

Trackforce will retain title to the products sold until full payment of the price, in principal and in secondary charges. In this respect, if the buyer is made bankrupt or a court orders liquidation, Trackforce reserves the right to claim products sold and for which payment is outstanding during the bankruptcy proceedings.

Clause no. 9: Delivery

Delivery is made:

• either by direct delivery of the products to the buyer;
• or to the place indicated by the buyer on the quote.

The lead time indicated during recording of the order is given for information only and is not guaranteed.

Consequently, any reasonable delay in delivery of the products cannot engender for the buyer:

• an award of compensation;
• cancellation of the order.

Risks during carriage are borne entirely by the buyer.

If products are lost or damaged during transport, the buyer must make all the necessary reservations on the delivery docket upon receipt of said products. In addition, these reservations must be confirmed in writing within five days of delivery by registered letter with return receipt.

Clause no. 10: Terms of service

The Client declares it will accept the characteristics and limitations of a remote service, and in particular recognizes:

• That it is aware of the vagaries of Internet connectivity, particularly with regard to response times and technical performance, which depend on the servers and routing equipment that comprise the Internet and which are not TRACKFORCE’s responsibility;
• That it is solely responsible for its internet access and that it is responsible for taking all appropriate measures to protect its own data and/or software from contamination by viruses circulating on the Internet.

Except as expressly stated in the Contract, TRACKFORCE makes no express or implied warranty with respect to the Service. In particular, the Client is informed and acknowledges that the Service’s sole object is to upload the information and alerts from Agents in the field via the monitoring platform, and/or by sending e-mails or SMS. This Service assumes that the Client assigns members of its staff to supervision of the Agents in the field in order to process the data and alerts uploaded by the Service, where TRACKFORCE and its Service are not in any way intended to replace the Client, which is solely responsible for the measures to be taken in response to information and alerts uploaded by the Service.

In the event of a malfunction of the Service exclusively attributable to TRACKFORCE, the latter’s liability will be limited to re-establishing the connection and correct operation of the monitoring platform and/or restarting the equipment.

Clause no. 11: Consequence of termination

On request to TRACKFORCE, the Client may have its data returned in Excel format or by maintaining its access to the supervision platform in consultation mode only.

Clause no. 12: Cancellation by Trackforce

Trackforce reserves the right to suspend or cancel the service to the Client without notice in the following cases.

TRACKFORCE may, without prior notice to the Client, suspend access to the Service and/or declare termination of the Contract, ipso jure and without notice, in cases of:

• Non-payment by the Client successively of two payments on their due dates;
• Breach by the Client and/or its users of the Service of the conditions of use of the supervision platform or the Equipment;
• Attempt to intrude or breach the software integrity of the supervision platform by the Client and/or its users of the Service.

If the circumstances that led to the suspension of the Service disappear, the Client may resume use of the Service. Suspension of the Service does not extend the term of the Contract for the period of suspension and does not entitle the Client to any compensation. During the period of suspension, the price for the Service remains payable.

Clause no. 13: Force majeure

Trackforce’s liability cannot be invoked if failure to perform or delay in performing any of its obligations described in these terms and conditions of sale results from a case of force majeure. In this respect, force majeure means any external, unforeseeable and irresistible event as defined in article 1148 of the Luxembourg Civil Code.

Clause no. 14: Term of the contract

Unless agreed otherwise between the parties, the Contract is concluded for a period of one year from the date of execution of the order by TRACKFORCE. It is renewed by the silence procedure for successive periods of twelve (12) months on each anniversary date, unless terminated by one of the parties by registered letter with return receipt at least two (2) months before the end of the period in question. Cancellation or the ending for any reason whatsoever of this contract does not give rise to reimbursement of sums collected by Trackforce.

Clause no. 15: Platform support

The Client will receive telephone support with the installation, use and/or configuration of the Service from Monday to Friday between 8 a.m. and 6 p.m. The Support will cover difficulties with handling of the platform by the Client’s staff, as well as any questions related to their use of it. No problems related to the Client’s Internet access or computer system are covered by the Support. Likewise, the Support does not cover the resolution of incidents or anomalies uploaded via the Service by Agents on assignment, the measures to be taken being the sole responsibility of the Client.

TRACKFORCE provides corrective maintenance of the supervision platform. If difficulty connecting to the platform is not attributable to the system or to the Client’s connection, it is the Client’s responsibility to contact Telephone Support for resolution of the problem.

Clause no. 16: Platform maintenance

The Guardtek Platform is accessible to users permanently (24/7). However, Trackforce may, if necessary, interrupt its services as part of the maintenance operations (said maintenance operations to take place between 9 p.m. and 7 a.m. French time), in particular to carry out any data backup and/or maintenance operations on its own hardware and software being used to provide the hosting services. Trackforce undertakes to inform the CLIENT in advance of any scheduled interruption of services outside the maintenance scope. Exceptional maintenance operations, including the application of critical security updates, are excluded from this information measure.

Clause no. 17: Access to the Platform – Security – Confidentiality

Each Party regards as confidential and will refrain from disclosing, directly or indirectly, all or part of the data, and personal data in particular, of which it becomes aware when executing this Agreement.

In particular, it undertakes to implement and/or observe appropriate measures to guarantee the security and confidentiality of such data, including preventing unauthorized access to such data and the equipment used for its processing and unauthorized use of such data and equipment.

These measures include specifically:

• Access to the Platform by login and password;
• Insertion of a confidentiality clause, in particular in employment contracts with members of their workforce or specific contracts with subcontractors and/or other partners.

This obligation is binding on each Party as well as on the Party’s employees and stakeholders, whoever they may be, permanent or temporary.

In particular, the Client is entirely responsible for the Login and Password generated on the application for access to the Platform. Trackforce cannot in any way be held liable, especially in cases of negligence by the Client in the retention of Login and Passwords and/or their subsequent use by a third party.

Clause no. 18: Legal and regulatory obligations

It is the Client’s responsibility to comply with its legal and regulatory obligations and in particular, to make any declaration or complete other prior formalities before implementation of the Service pursuant to the applicable legal texts, in particular the French Labour Code.

Clause no. 19: Intellectual property

The Products and related documentation made available to the Client by TRACKFORCE under this Agreement will remain the exclusive property of TRACKFORCE and third parties which TRACKFORCE may use for the purposes of discharging its obligations.

The Client undertakes to respect the intellectual property rights inherent in the Products and in their documentation.

In particular, the Client agrees not to use or exploit the Products and their documentation other than under the conditions or purposes set forth in this Agreement.

Clause no. 20: Insurance

TRACKFORCE certifies that it has taken out a renewable one-year insurance policy from a well-known and solvent company, covering the following risks:

• Professional liability and/or civil liability after delivery, capped at €1,000,000 per claim and per insurance year.
• Operational Liability/Employer Liability, capped at €8,000,000 per claim.

This insurance will be maintained for the duration of this Agreement.

Clause no. 21: Protection of privacy – Personal data

By using the Products covered by this Agreement, the Client agrees to the collection and processing of personal data used in these Products for the purposes of private security services and facilities management.

As a result, the Client authorizes TRACKFORCE and its subcontractors to collect and process this data in accordance with the legal, regulatory and European provisions, in particular European Regulation no. 2016/679 of 27 April 2016 (hereinafter “GDPR”). as well as the provisions (not contrary to this Regulation) of the law no. 78-17 of 6 January 1978, known as France’s “Informatique et Libertés” law, as amended subsequently (hereinafter “the Data Protection Act”).

To this end, TRACKFORCE has a Data Protection Officer (DPD or DPO) who constantly ensures compliance of all personal data processing in progress. within TRACKFORCE.

In addition, pursuant to the GDPR and non-contrary provisions of the Data Protection Act, any natural person whose personal data is subject to processing is entitled to oppose the collection and processing of their personal data, the right of access to said data, rectification or erasure thereof (the right to be forgotten), the right not to be the subject of a decision based exclusively on automated data processing, including profiling, the right to limitation of processing of data concerning them, the right to have information about the persons to whom the data controller has transmitted personal data concerning them, as well as the right to portability of said data as these rights are described in Articles 15 to 22 of the GDPR. They may exercise these rights by sending their request to [email protected] accompanied by proof of their identity and their signature.

In addition, TRACKFORCE certifies the following:

• It implements appropriate technical and organizational measures to ensure and be able to demonstrate that the processes are carried out in accordance with the GDPR when it acts as data controller within the meaning of article 24 of the GDPR.
• It provides sufficient guarantees as to the implementation of appropriate technical and organizational measures so that any processing of personal data meets the requirements of the GDPR and guarantees protection of the rights of the person in question when acting as a subcontractor within the meaning of article 28 of the GDPR.
• In the event of subcontracting, it retains only those subcontractors who provide sufficient guarantees that appropriate technical and organizational measures will be implemented so that any processing of personal data meets the requirements of the GDPR and guarantees protection of the rights of the person in question within the meaning of article 28 of the GDPR. The use of subcontracting will, in any case, be governed by subcontracting clauses that complement these Terms and Conditions to the subcontracting clauses.

Lastly, TRACKFORCE undertakes to implement appropriate technical and organizational measures to retain personal data for the duration stipulated depending on the nature of said data.

The provisions of this clause no. 21 are supplemented by the document defining TRACKFORCE’s policy on the protection of personal data.

Clause no. 22: Evidence agreement

By express agreement, the information and data output by TRACKFORCE’s information system or those of its Partners constitute written documents as defined in articles 1322-1 and 1322-2 of the Luxembourg Civil Code, the link between this data and the Party to which it belongs being presumed until proven otherwise.

It is therefore proof between the Parties and is enforceable against them in the same manner, under the same conditions and with the same probative force as any document that has been written and signed in paper form by the Parties.

The Client expressly acknowledges and agrees that proof of its consent and that of its staff and operators notably in relation to collection, processing, storage and archiving of personal data concerning them, as set forth in article 21 hereof, is constituted by the production of information and data from TRACKFORCE’s information system or from that of its Partners.

Clause no. 23: Miscellaneous 

TRACKFORCE may revise or update any of these Terms and Conditions at any time without prior notice, except that the changes will only apply in the future.

The Client may not assign, in whole or in part, any of its rights and obligations under the Agreement without the prior written consent of TRACKFORCE.

The Agreement includes all agreements entered into between the parties and renders null and void any other agreement, declaration of intent, promise or document exchanged between the parties.

If a clause proves to be null, the rest of this document will not be affected by the nullity of this clause.

The fact that a party does not avail itself of a stipulation of the Contract does not imply any waiver of the benefit of said stipulation.

Clause no. 24: Disputes – Jurisdiction – Competent Court

Any dispute relating to the interpretation and execution of these terms and conditions of sale is subject to Luxembourg law.

However, in case of dispute, an amicable solution will be sought in priority before any legal action.

Accordingly, the Parties will make every effort to ensure that this amicable settlement occurs within thirty (30) days from notification of the existence of the dispute by the more diligent Party.

In the absence of an amicable resolution within this thirty (30) day period, the competent Court will be the
Luxembourg District Court (Commercial Division), the sole jurisdiction even in case of plurality of defendants or introduction of third parties.