GENERAL TERMS AND CONDITIONS OF SALE OF PIX4D
1.1. Pix4D SA, a Swiss corporation with its registered seat at EPFL Innovation Park, Building D, 1015 Lausanne, Switzerland (“Pix4D“) and a customer (the “Customer“) have entered or are about to enter into a contractual relationship (the “Relationship“) for the supply of certain services and products (the “Product(s)“).
1.2. These General Terms and Conditions (the “Conditions“) have been expressly integrated in the Relationship and shall hence govern the offering, sale and delivery of the Products from or on behalf of Pix4D to Customer and shall apply to all transactions between Pix4D and the Customer (the Customer and Pix4D collectively, the “Parties“). Products ordered from a distributor are not subject to the Conditions but to the terms and conditions set by that distributor.
1.3. Depending on the circumstances, additional terms of Pix4D may apply. In case of conflict between the Conditions and additional terms, the latter shall prevail.
1.4. The various versions of the Conditions are available on the following website https://pix4d.com/terms-of-sale/, it being specified that the Conditions applicable to the Parties for a specific transaction shall be the last version of the Conditions published on the date of the Confirmed Order. Pix4D reserves the right to amend the Conditions at any time. The amended Conditions will take effect on the date of publishing and shall apply to all transactions concluded between the Parties after the date of such publishing.
1.5. Pix4D explicitly rejects the applicability of any general terms and conditions of the Customer. Failure by Pix4D to object to the terms and conditions set by the Customer shall in no event be construed as an acceptance of any of the terms and conditions of the Customer.
1.6. Any electronic communication between the Parties shall be effective as originals and shall be considered to be a “writing” between the Parties. The electronic communication system used by Pix4D will serve as sole proof for the content and the time of delivery and receipt of such electronic communications.
2. WEBSITE – REGISTRATION
2.1. Although Pix4D endeavors to informs its Customers in the most complete and accurate manner on http://www.pix4d.com (the “Website“), photos, videos and texts illustrating and describing the Products as well as the state of inventory, if any, indicated on the Website are non-contractual and are provided for information purposes only. They do not represent an offer from Pix4D (who does not guarantee the accuracy thereof) and shall in no event constitute a guarantee or promised warranties.
2.2. The Customer is sole responsible for the accuracy and completeness of the data provided upon registration on the Website. As the case may be, the Customer shall inform Pix4D of any modification of its data by updating its profile.
2.3. The Customer shall indicate a valid email address to which all communications relative to his orders will be sent. Any communication sent to the Customer by email shall be deemed received by the Customer at the actual date and time of receipt, but at the latest 24 hours after being sent by Pix4D. It is the Customer’s responsibility to maintain the aforementioned address and to read the emails sent by Pix4D. The Customer shall also configure – and regularly check – his “spam” folder for emails sent by Pix4D.
2.4. The Customer choses, upon registration, or shall be attributed, in case of reset, a password which allows him to order or to use other features of the Website. This password is strictly confidential. It shall in no case be disclosed to third parties. The Customer shall be sole responsible for the use, safeguard, and security level of its password, which may be changed on the Website at any time, and shall be responsible for any order made, even without its knowledge, with the password. The Customer shall contact Pix4D immediately upon knowing or suspecting that a third party accessed its password.
3. ORDERS – CONFIRMATION
3.1. The Customer may place an order with Pix4D (each, an “Order“) either (a) through the Website or (b) by email at firstname.lastname@example.org.
3.2. By placing an Order, the Customer makes a binding and irrevocable offer to Pix4D to purchase the selected Products and acknowledges having read, understood and unreservedly agreed with the Conditions.
3.3. All Orders must be pre-paid and shall be deemed placed only upon receipt, by Pix4D, of the full price of the Products, including any preparation or delivery costs, as well as Taxes (as per Section 4.3).
3.4. The data recorded by Pix4D shall constitute final proof of Orders placed by the Customer. Likewise, the data recorded by third party payment service providers shall constitute final proof of payment of the purchase price.
3.5. Orders placed by the Customer are not binding on Pix4D until accepted by Pix4D in writing (the “Confirmed Order“). Pix4D shall be entitled to refuse a non-confirmed Order without indicating the reasons. Reasons for refusal may include previously failed payments, growing backlog or negative payment history, incomplete or incorrect order details (such as missing email, missing billing address or pricing or Product description errors) or ineligibility according to Order criteria (e.g. entitlement to upgrade to purchase certain Products may be restricted to particular users or purposes).
3.6. The Confirmed Order shall specify the Products to be supplied by Pix4D, together, as the case may be, with any agreed specifications for the Products.
3.7. Changes to Confirmed Orders always require written confirmation by Pix4D in order to become valid. Pix4D may agree in writing to the cancellation or alteration of a Confirmed Order at its sole discretion. The costs arising from the cancellation or alteration thereof will be exclusively borne by the Customer.
4. PRICES – PRICE CHANGES – DISCOUNT
4.1. Prices are subject to change by Pix4D at any time and without notice. Only the price mentioned on the Order Confirmation shall be binding.
4.2. Unless otherwise indicated, prices of Products are set in Swiss Francs.
4.3. Unless stated otherwise by Pix4D, prices are exclusive of (i) all costs relating to the transportation to the final destination and to the export/import processing of the Products, (ii) packaging and insurance other than the standard ones provided by Pix4D, if any, and (iii) sales, use, import/export, value added taxes or any other similar applicable taxes, duties, levies or charges in any jurisdiction levied in relation to the Products or the delivery thereof, included the import/export clearance related fees (the “Taxes“). Any Taxes levied in connection with the sale of Products to the Customer shall be for the Customer’s account and shall either be added to each invoice or separately invoiced by Pix4D to the Customer. Responsibility for any withholding tax with relation to the sale of Products shall be for the Customer and no deduction whatsoever shall be made from the amount payable to Pix4D under any invoice.
4.4. If Pix4D grants a discount to the Customer, this discount only relates to the delivery specifically mentioned in the Confirmed Order.
5. TERMS OF PAYMENT
5.1. The means of payment accepted by Pix4D are those mentioned on the Website.
5.2. Payments shall be made with the servers provided and secured by payment service providers. No financial information relative to the Customer is processed by Pix4D.
5.3. The risk of malfunction of the mean of payment is borne by the Customer, who fully discharges Pix4D from any and all liability. As such, Pix4D shall not be responsible for any payment failure, in particular those resulting from inaccurate payment card details provided by Customer or from any restrictions applicable to the mean of payment chosen by the Customer.
5.4. All payments shall be made without any deduction on account of any Taxes, withholding taxes or transfer costs. For the sake of clarity, the place for all payments to be made by the Customer is the registered office of Pix4D.
5.5. By acquiring Product requiring regular payments on a monthly or annual basis (“Recurring Payments“), Customer authorizes Pix4D to charge its mean of payment automatically. Customer warrants that it shall remain the owner of the mean of payment specified for Recurring Payments and that such mean of payment has a sufficient limit (credit card) or sufficient funds (bank accounts) to pay any due Recurring Payments.
5.6. For the avoidance of doubt, 1 (one)-month license or service period represents 30 (thirty) consecutive calendar days starting from its first activation.
5.7. Customers may cancel Recurring Payments by contacting Pix4D at least 5 (five) business days prior to the next Recurring Payment due date. If Customer submits cancellation request after this time, the cancellation will not take effect until the following Recurring Payment due date.
5.8. With regard to payment for the Products, the Customer acknowledges and agrees that time is of the essence. Pix4D may, without prejudice to any other rights of Pix4D and without a written reminder, charge interest on any overdue payment at 10% (ten percent) per annum from the due date computed on a daily basis until all outstanding amounts due by the Customer are paid in full. All costs and expenses incurred by Pix4D with respect to the collection of overdue payments (including, without limitation, reasonable attorney’s fees, expert fees, court costs and other expenses of litigation) shall be for the Customer’s account.
6. Terms of Delivery
6.1. All Products shall be delivered to the delivery addresses (physical or email) provided by the Customer.
6.2. The Customer shall be sole responsible for the accuracy and completeness of the delivery addresses (physical and email) provided. Pix4D shall assume no liability for any failed delivery in case of inaccurate, incomplete or outdated delivery addresses.
6.3. Details necessary for Customer to activate the Service will be delivered by Pix4D to the email address indicated by the Customer.
6.4. No shipment or delivery fees shall be charged.
6.5. Details necessary for Customer to download and/or use software Products (such as license keys or access details) will be delivered by Pix4D to the email address indicated by the Customer.
6.6. No shipment or delivery fees shall be charged.
6.7. Unless stated otherwise in the Confirmed Order, delivery of the Products is Delivered At Place (DAP) – address designated in the Confirmed Order, according to Incoterms® 2010. Benefit and risk of physical Products are transferred to the Customer upon delivery. If delivery is not possible and no fault is attributable to Pix4D, risk transfers to the Customer with the notification that the Products are ready for delivery.
6.8. The preparation and delivery costs of physical Products are those mentioned on the Confirmed Order.
6.9. The Confirmed Order may include a delivery time schedule. Pix4D shall make its best commercially reasonable efforts to supply the Products within this time schedule. However, any times or dates for delivery by Pix4D are estimates and shall not be deemed of the essence. Pix4D shall assume no liability for the failure to meet any delivery schedule nor for the costs of procurement of any substitute goods. Delay in delivery of any Products shall not relieve the Customer of his/its obligation to accept delivery thereof. Without prejudice to the foregoing, Pix4D undertakes to inform the Customer immediately when it anticipates constraints on its capacity to supply the Products.
6.10. Pix4D is entitled to deliver the Products as stated in the Confirmed Order in parts and to invoice separately. Delivery of a quantity that varies from the quantity specified in Pix4D’s order shall not relieve Customer of its obligation to accept delivery and pay for the goods ordered.
6.11. If a package is returned by the carrier following an unsuccessful delivery (postal time limits exceeded, erroneous delivery address, etc.), the Customer shall be informed by an email sent to the address indicated in his profile or during the ordering process. Without further instructions from the Customer within 3 months after the sending of the aforementioned email, Pix4D shall be relieved from its obligation to deliver the products and any amounts paid shall be retained by Pix4D as contractual penalty, as final settlement for all claims relating to the relevant order.
6.12. Delays or changes in schedules due to Customer directed actions are subject to price adjustments.
7. EXAMINATION – ACCEPTANCE / COMPLAINT (Physical Products)
7.1. The Customer shall be obliged to accept delivery of the Products specified in the Confirmed Order.
7.2. The Customer must inspect the Products immediately upon receipt and satisfy itself that the Products delivered meet the specifications mentioned in the Confirmed Order or, in the absence of agreed specifications, to the specifications used by Pix4D upon issuance of the Confirmed Order (the “Specifications“).
7.3. The Customer shall mention any defects that are immediately apparent on the delivery confirmation of the carrier and immediately inform Pix4D in writing. Absent such mention, the delivered Products shall be considered accepted without apparent defects.
7.4. Any defects which are not apparent during inspection upon delivery shall be notified to Pix4D in writing within 15 (fifteen) calendar days from the date on which they were or ought to have been discovered, but in no event later than the expiry of the Warranty Period (as per Section 10.4).
7.5. Failure to complain within the appropriate time or, in the case of physical Products, any use, shall be deemed to be an unconditional acceptance of the Products and waiver of all claims.
7.6. If more than one Product are purchased, the defect in one Product does not entitle the Customer to reject the remaining Products, unless the Customer cannot reasonably be expected to accept delivery of the remaining non-defective Products. Complaints, if any, do not affect the Customer’s obligation to pay as defined under Section 5.
8. WITHDRAWAL AND REFUND
8.1. Any refund request following the Product purchase date will be subject to Pix4D’s prior authorization and acceptance thereof shall be at Pix4D’s sole discretion.
8.2. Pix4D provides an opportunity to evaluate some its software Products free of charge during a trial period specified in the applicable end-user license agreement or terms of service. Customer may withdraw from using all software Product at its sole discretion any time before expiration of a free trial period.
9. CUSTOMER WARRANTIES
9.1. The Customer acknowledges that the use of the Products may be subject to requirements or limitations under any law, statute ordinance, regulation, code or standard (“Laws and Standards“). The Customer shall be exclusively responsible for and warrants that it will (i) fully comply with all Laws and Standards relating to the export control of the Products, (ii) ensure compliance with all Laws and Standards associated with its intended use of the Products and obtain all necessary approvals, permits or clearances for such use.
9.2. Customer undertakes to fully indemnify and hold harmless Pix4D, and its partners, directors, officers, agents and employees (each, an “Indemnified Party“) from any damage, claim, liability, loss or expenses (including attorney costs) arising out of or relating to a breach of Customer’s warranties under Section 9.1, whether or not caused by the Indemnified Party’s negligence and whether or not the relevant damage, claim, liability, loss or expense has merit.
10. LIMITED WARRANTY Of PIX4D
10.1. Customer agrees that the express warranty set forth below is the exclusive remedy to which it is entitled and waives all other remedies, statutory or otherwise. In the event that the foregoing exclusive remedy under this warranty is determined upon judicial review to have failed in its essential purpose through no fault of Customer, the only alternate remedy shall be the refund of the purchase price of the non-conforming or defective Product.
10.2. Pix4D makes no other warranties, express or implied, with respect to the Products including but not limited to any warranty of merchantability or fitness for a particular purpose or against infringement, or any express or implied warranty arising out of trade usage or out of a course of dealing or course of performance.
10.3. Pix4D software Products (such as Pix4Dcapture and Pix4Dmapper) are provided “as is“. Pix4D disclaims any warranty whatsoever as per Section 10.2.
10.4. Pix4D warrants that physical Products will be free from defects in workmanship and materials for a period of twelve (12) months from the delivery date to Customer (the “Warranty Period“).
10.5. The limited warranty set forth in Section 10.4 does not apply to, and Pix4D makes no representations or warranties whatsoever with respect to any of: defects which have been caused by normal wear and tear, or which have been caused by misuse, use of the Product with accessories not specified as compatible by the manufacturer (including damages caused by incompatible batter/power source), moisture or liquids, proximity or exposure to heat, sun, accident, excessive strain, negligence, abuse, neglect, misapplication, improper storage, improper maintenance, repairs or modifications made by anyone other than Pix4D or the manufacturer, damage due to operation, damage due to crash, damage due to take-off, landing location with obstacles, damage due to low altitude flight or significant change in altitude, damage due to loss of data radio connection, damage due to strong wind, rain or humidity, software updates or other causes for which Pix4D or the manufacturer are not answerable (the “Warranty Exclusions”).
10.6. Pix4D’s obligation under Section 10.4 shall be contingent upon the following two cumulative conditions be met:
(i) receipt by Pix4D of a timely notice by the Customer of any alleged non-conformance of Products in accordance with Section 7, in particular Section 7.4;
(ii) return of the defective Products at the Customer’s expense, and
(iii) Pix4D’s or its partner’s examination of such Product shall disclose that such defects or failures have not been caused by any of the Warranty Exclusions.
10.7. Before returning any Product, the Customer shall obtain from Pix4D a return number. No Product shall be accepted by Pix4D without a valid return number. The Product must be returned in its original shipping packaging complete with all packing materials with the return number e clearly visible on the outer packaging. The Customer bears the risks of loss and damages during the return shipment.
10.8. Pix4D’s sole and maximum liability for breach of the warranty stated in Section 10.4 is limited to the obligation, at Pix4D’s sole discretion, to repair, replace or reimburse Customer for its purchase price of any Product delivered hereunder which is found by Pix4D or a manufacturer to be defective under the terms of the warranty. The terms of the limited warranty shall apply to any repaired or replacement Products supplied by Pix4D for the remaining term of the relevant Warranty Period.
11. LIMITED LIABILITY
Except as provided under Section 9, Pix4d shall not be liable to the Customer or any third party (whether such liability is based on contract, tort (including negligence), strict liability, other tort theory, contribution, breach of warranty, or other legal or equitable theory) for any special, indirect, incidental, consequential, exemplary, or punitive damages, or any damages for lost profits, litigation costs, loss of data, production or profit, goodwill, loss of revenue or loss of units, loss or interruption of business, arising out of or relating to these conditions, even if that party has been advised of or should have known of the possibility of such damages, unless it is for willful misconduct or gross negligence.
13.1. Customer agrees to be identified as a customer of Pix4D. Pix4D may refer to the Customer by name, trade name, trademark and may briefly describe the nature of customer’s business on any Pix4D or partner marketing materials, including but not limited to Pix4D’s website, and any public or legal documents. By making an Order, Customer grants Pix4D a royalty-free, perpetual, non-exclusive, non-transferable and non-sublicensable right to use Customer’s name and any trade names or trademarks solely for marketing purposes.
13.2. Customer may choose, at any time, to opt-out of this Section by submitting a request to email@example.com.
14. INTELLECTUAL PROPERTY
14.1. Customer acknowledges that software Products are proprietary, copyrighted and may be protected by patents. All software Products are licensed to Customer, subject to a license agreement, and title to Software remains with the applicable licensor(s). The Customer agrees to be bound by such license agreement in addition to these Conditions.
14.2. The Customer acknowledges that it shall acquire no ownership rights, title or interest in or to the intellectual property of Pix4D and of Pix4D’s partners, in particular in and to the copyrights on the software Products or to the trademarks, brands, illustrations, logos and the like which appear on the Products and the related accessories and packaging.
15.1. Heading. The headings contained in the Conditions are included for mere convenience of reference and shall not affect its construction or interpretation.
15.2. Complete Agreement. These Conditions, the Order Confirmation and any additional Pix4D terms embody the entire understanding between the Parties and supersede all previous agreements whether in writing or orally regarding its subject matter. In case of discrepancy between them, the order of descending precedence shall be 1) Order Confirmation, 2) additional terms, 3) Conditions.
15.3. Waiver. Failure by Pix4D to enforce at any time any provision of the Conditions shall not be construed as a waiver of Pix4D’s right to act or to enforce any such term or condition and Pix4D’s rights shall not be affected by any delay, failure or omission to enforce any such provision. No waiver by Pix4D of any breach of the Customer’s obligations shall constitute a waiver of any other prior or subsequent breach.
15.4. Severability. If any provision of the Conditions is held to be unenforceable for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the legal and economic intent of the Parties to the fullest extent possible. In any event, all other provisions of the Conditions shall remain valid and enforceable to the fullest extent possible
15.5. Non-Assignment. Neither Party may assign any of the rights or obligations under the Confirmed Order without the prior written consent of the other Party.
16. APPLICABLE LAW AND JURISDICTION
16.1. The Confirmed Order and the Conditions shall be governed by and construed in accordance with the substantive laws of Switzerland, without regard to the conflict of laws provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG) shall not apply.
16.2. Any dispute arising out of, or in connection with, the Confirmed Order and/or the Conditions shall be exclusively submitted to the courts of Lausanne, Switzerland, without prejudice to a possible appeal to the Swiss Federal Tribunal.
The original version of the Conditions is made in the English language. In the event of any inconsistency or contradiction between the English version and any translation thereof, the English version shall prevail.
For any questions regarding these Conditions, please contact Pix4D at:
Pix4D SA, EPFL Innovation park, Building D, 1015 Lausanne, Switzerland
Version: 24 August 2016
All rights on the Conditions belong to their author. Any reproduction, without prior license, is strictly forbidden.