Preliminary note: Wherever the term “goods” is used below, it shall be understood to mean products, services (hardware or software), services and ancillary charges invoiced.
1. Application and Exceptions
These General Terms and Conditions of Sale apply exclusively to all orders placed with us, to the exclusion of any terms, conditions or documents specific to the buyer. The customer shall be deemed to have accepted them by the mere fact of placing an order.
Any exceptions to these Terms and Conditions of Sale, even if stated in documents issued by the customer or by our representatives, shall only be binding upon us if confirmed by us in writing. Even in such case, these Terms and Conditions of Sale shall remain applicable to all matters for which no express exception has been agreed.
2. Offers and Order Confirmations
Unless otherwise agreed in writing, our offers are provided for information purposes only. The sales agreement shall only be formed once our company has confirmed the customer’s order.
Any claim relating to any actual or alleged inaccuracy in our order confirmation must, failing which the claim shall be forfeited, reach us within eight days of the confirmation.
Without prejudice to any specific provisions agreed in writing between the parties for a particular order, these General Terms and Conditions shall apply to each order and, for any framework relationship, shall be entered into for an initial period of twelve (12) months from the date on which the customer accepts these General Terms and Conditions. They shall subsequently be automatically renewed for successive periods of twelve (12) months unless terminated by either party by registered letter with acknowledgment of receipt, subject to thirty (30) days’ notice prior to the expiry date.
The buyer may not assign its rights and obligations under the sales agreement without our prior written consent.
3. Delivery Times
Delivery times are always provided for information purposes only and shall not be binding upon us unless otherwise agreed in writing.
Even where it has been agreed that we are bound by a delivery deadline, in the event of delayed delivery the buyer may only claim compensation if such compensation has been agreed in writing and in advance. The amount of such compensation may under no circumstances exceed 5% of the total price.
Even where a binding delivery deadline subject to a penalty has been agreed, exceptional circumstances shall always entitle us either to suspend delivery until such circumstances have ceased, in which case delivery shall subsequently be made within the agreed period, or to cancel the purchases, without the buyer being entitled to claim any compensation in either case.
4. Transportation, Risks and Collection
Unless otherwise agreed in writing, all deliveries shall be made from our factories or warehouses, at our discretion, with transportation being at the buyer’s expense and risk.
The goods shall always travel at the buyer’s risk, even where we sell carriage paid or FOB and another place of delivery has been agreed.
The buyer undertakes, at its own expense, to obtain and maintain transportation insurance and “all risks” insurance covering the goods during transportation and until their collection, with commercially reasonable coverage. Upon request, the buyer shall provide evidence of valid insurance coverage.
Unless a different period is agreed in writing, the goods sold must be collected and accepted no later than 30 days after they have been made available to the buyer.
If the goods are not collected within this period or within the specifically agreed period, we shall be entitled, without prior notice of default and at our discretion, either to invoice the goods sold and demand payment thereof or to consider the sale automatically terminated.
In the first case, the goods shall be stored on behalf of and at the buyer’s risk in our warehouses or at third-party premises, and we shall be entitled to charge the buyer, in addition to the sales price, all costs resulting from such storage.
In the second case, the buyer shall owe us fixed and irreducible compensation equal to 30% of the sales price for non-specific products or services and 100% of the sales price for specific products or services, including subcontracting.
Subcontracting by the seller is permitted. However, the seller shall remain fully responsible for the performance of its obligations under the sale and for the acts and omissions of its subcontractors.
5. Retention of Title
Ownership of the goods sold shall not pass to the buyer until full payment of the principal amount, interest, penalties and costs, even where such goods have been transformed or incorporated into other property.
The buyer may therefore not dispose in any way of goods that have not yet been paid for in full. In particular, the buyer may not transfer ownership thereof to third parties or pledge them as security.
6. Provision of Security and Suspension of Delivery
Irrespective of the agreed payment terms, if the buyer’s creditworthiness deteriorates, we reserve the right to require the buyer at any time, meaning before delivery or before continuing delivery, to provide a bank guarantee securing the performance of its payment obligations.
For as long as the buyer has not provided such guarantee, we shall be entitled to suspend any subsequent delivery.
Likewise, a bank guarantee may be required and future deliveries may be suspended for as long as the buyer has not fulfilled its payment obligations relating to deliveries already made.
7. Warranty
7.1.
We warrant the products we sell against hidden defects for a period of 12 months from delivery, subject to the conditions set out below.
Subject to any applicable mandatory provisions, no other warranty, condition or undertaking, whether express or implied, is provided, including any implied warranty of merchantability or fitness for a particular purpose.
7.2.
The warranty may only be invoked if the following conditions are met:
- The defect renders the product materially unfit for the purpose for which it is normally intended or for a specific purpose expressly stated in the specific terms and conditions of the sale.
- The product has been properly installed and positioned.
- The product is used under normal conditions. In particular, the warranty shall not apply where the equipment is used under abnormal or special conditions that were not expressly stated in the specific terms and conditions of the sale, or in cases of improper maintenance, modification, dismantling or repair of the equipment by a person who is not professionally qualified.
7.3.
To claim the benefit of the warranty, the buyer must notify us of any claim relating to hidden defects by registered letter within a maximum period of one month after the buyer discovered or should reasonably have discovered the defects.
7.4.
Our warranty is limited to the free repair, including parts and labor, or replacement of the defective product, excluding termination of the sale or damages.
Without prejudice to the foregoing, the seller’s total cumulative liability, for all causes combined, arising out of or relating to the sale, the products and/or the services, shall be limited to the amount actually paid or payable by the buyer to the seller during the twelve (12) months preceding the event giving rise to the claim.
Neither party shall be liable to the other for any indirect, special, consequential or incidental damages, including, without limitation, loss of profit, loss of revenue, business interruption, loss of data or reputational damage, arising out of or relating to these General Terms and Conditions, the order, the products and/or services, even if such party has been advised of the possibility of such damages.
The buyer shall return the defective equipment to our premises at its own expense and risk for repair or replacement.
We shall bear the cost of returning the equipment to the buyer if the product is found to be defective.
7.5.
The buyer agrees that, in all circumstances, only the seller, as a legal entity, may be held liable under the agreement and expressly waives the right to seek, in any manner whatsoever, the liability of any employee, officer or shareholder of the seller, or of any other company or third party involved in the performance of the agreement, hereinafter referred to as the “Auxiliaries”, including in cases of negligence, proven fault and all other circumstances.
This provision shall not, however, affect any mandatory or public policy provisions of applicable law, which shall continue to apply.
As third-party beneficiaries, the Auxiliaries may rely on the provisions of this clause.
Furthermore, the following shall not constitute a breach of any confidentiality obligation undertaken by the parties to the agreement or by either of them: at the request of an Auxiliary, the disclosure of contractual clauses relating to defenses available in the event of a dispute concerning the performance of a contractual obligation directly involving that Auxiliary.
8. Prices
8.1.
Our prices are stated in euros, excluding VAT. Any increase in VAT or any new tax imposed between the date of the order and the date of delivery shall be borne by the buyer.
8.2.
Our prices cover only the supply of the equipment described in the specific terms and conditions, excluding all other work and services.
9. Payments
Unless otherwise agreed in writing, all our invoices are payable immediately, without discount, at our registered office.
Where delivery is made in two or more installments, each partial delivery shall be invoiced separately.
Claims, even where apparently justified, shall not suspend the buyer’s payment obligations in respect of the deliveries concerned or any other deliveries.
10. Failure to Pay
Any amount not paid by its due date shall automatically bear interest at a rate of 12% per annum.
Default interest shall be calculated pro rata temporis based on the exact number of days of delay.
In addition, any amount due that remains unpaid within 14 days after a formal notice has been sent shall automatically be increased by 15%, subject to a minimum of 75 euros, as fixed and irreducible compensation for our out-of-court collection costs.
Such compensation shall be due to us without prejudice to any legal costs and procedural indemnities to which we may be entitled.
In the event of failure to pay an accepted bill of exchange by its due date, all our other claims against the buyer shall automatically become immediately due and payable.
11. Suspension/Termination
Failure to pay our invoices when due shall entitle us, automatically and without prior notice of default, to suspend all existing orders.
Furthermore, failure to pay an invoice by its due date shall, following a formal notice that remains without effect for thirty (30) days, result in termination of the sale of the goods to which that invoice relates, and the buyer shall be required to return the goods to us immediately.
If the buyer fails to return the goods, we reserve the right to arrange for their immediate collection ourselves.
Where a sale is terminated in whole or in part as a result of any fault or breach by the buyer, the buyer shall pay us, in respect of the costs incurred and losses suffered, fixed and irreducible compensation equal to 30% of the sales price for non-specific products or services and 100% of the sales price for specific products or services, including subcontracting.
Compensation for such damages shall be due to us without prejudice to our right to claim reimbursement of the costs we may incur in recovering possession of the goods and restoring them to their original condition.
12. Indemnification
The buyer shall indemnify, defend and hold harmless the seller, its affiliates, officers, directors, employees, representatives and subcontractors from and against any claim, action, demand, loss, damage, liability, fine, penalty, cost and expense, including reasonable attorneys’ fees and expenses, arising out of or relating to:
(i) any breach by the buyer of these General Terms and Conditions, the order or any applicable legal or regulatory obligation;
(ii) any alleged or actual infringement of third-party intellectual property rights or confidentiality rights caused by plans, specifications, instructions, drawings, software, content, trademarks, documents or other materials supplied or imposed by the buyer;
(iii) any breach by the buyer of a confidentiality obligation; and
(iv) any gross negligence, serious misconduct, fraud or intentional misconduct by the buyer or its employees, agents, subcontractors or visitors, particularly in connection with access to the seller’s sites or the collection, loading, transportation or handling of the goods.
The seller shall notify the buyer within a reasonable period of any third-party claim of which it becomes aware and shall allow the buyer to conduct the defense and any settlement negotiations, provided that the seller may participate in such defense at its own expense and that no settlement may impose any obligation, admission of liability or payment on the seller without the seller’s prior written consent.
13. Intellectual Property
For the purposes of this clause, “Intellectual Property” means, without limitation, all inventions, technological innovations, discoveries, designs, formulas, know-how, processes, business methods, patents, trademarks, service marks, copyrights, computer software, ideas, creations, writings, lectures, illustrations, photographs, moving images, mathematical and scientific models, improvements to any of the foregoing rights, and all recorded materials defining, describing or illustrating any such rights, whether in physical or electronic form.
Each party retains all rights, title and interest in and to its pre-existing Intellectual Property, and nothing in these General Terms and Conditions shall be construed as a transfer, assignment or license, whether express or implied, of such pre-existing Intellectual Property to the other party.
Unless otherwise agreed in writing, the buyer shall receive only, where applicable, a non-exclusive, non-transferable and non-sublicensable license, limited to the duration and scope necessary to use the deliverables provided by the seller solely for the intended use of the products and/or services.
Offers, descriptions, sketches, calculations, studies, methods, reports and any other documents provided by the seller shall at all times remain the seller’s property, even where a charge is made for them.
The buyer may nevertheless use them freely for strictly internal purposes. Reproduction, in any manner whatsoever, of documents provided by the seller to the buyer is prohibited without the seller’s prior written consent, except where such reproduction is strictly for internal use.
The buyer shall not attempt to disassemble, reverse engineer, decompile or otherwise analyze the goods or services supplied, or any part or component thereof, including for the purpose of determining their underlying mechanism, process or technology.
The buyer shall not develop: (a) any product incorporating any Intellectual Property of the seller; or any improvement or application relating to the Intellectual Property, except as expressly authorized under a written license agreement between the seller and the buyer.
The buyer agrees not to apply for registration of the Intellectual Property in any country or otherwise take any action inconsistent with the seller’s Intellectual Property rights.
The buyer shall not obscure or remove any notices relating to the intellectual property rights of the seller or its licensors contained in the goods, including any trademark or copyright notices.
The reproduction or use of the seller’s name or logo for any purpose whatsoever is prohibited without the seller’s written authorization. Where such authorization is granted, the seller’s name or logo may only be reproduced and used for the purpose specified by the seller.
Any reproduction of the logo shall comply with the colors, quality and size specified by the seller.
Whenever a third party is authorized to use the seller’s name or logo, that third party shall at all times ensure that no confusion is created between its own name and activities, on the one hand, and those of the seller, on the other.
The use of the seller’s name or logo by a third party shall in no way incur the seller’s liability.
The buyer shall inform the seller, as soon as it becomes aware thereof, of any acts of unfair competition or infringement by third parties of the seller’s Intellectual Property rights, including copyright in software incorporated into or intended for use with the goods and/or services, relating to the goods and/or services.
14. Confidentiality
The seller and its employees shall maintain strict confidentiality regarding information obtained in the course of their professional activities.
Neither the seller nor the buyer may disclose to any third party, without the other party’s prior written consent, any information received in connection with the agreement.
These restrictions shall not apply where the information has, by any means, entered the public domain.
However, the seller reserves the right to inform third parties of the existence and terms of the services provided where this is in its interest, including for promotional purposes, without disclosing their content.
The buyer acknowledges and agrees that the seller may provide confidential information to its insurers and legal advisers or to a third party where required by courts, government authorities or regulatory authorities, where there is a legal obligation to provide such information, or where disclosure of such confidential information is essential to enforce or ensure compliance with the agreement in judicial or extrajudicial proceedings.
The parties undertake to comply with the confidentiality obligation for three years after termination of the agreement.
15. Force Majeure
Neither party shall be liable for any failure or delay in performing its contractual obligations where such failure or delay results from an event of force majeure, meaning an unforeseeable and unavoidable obstacle not attributable to the party concerned that temporarily or permanently makes performance of the relevant obligation impossible.
The party invoking force majeure shall inform the other party as soon as possible and shall specify, to the extent possible, the nature of the event, its foreseeable consequences and its estimated duration. It shall take all reasonable measures to limit the effects thereof.
For the duration of a temporary impediment, performance of the affected obligation shall be suspended without compensation.
If the impediment becomes permanent or continues for more than [60] calendar days, either party may terminate the agreement, in whole or in part, by written notice and without compensation, subject to obligations already performed and rights accrued prior to the occurrence of the event.
Without limitation, the following events shall constitute force majeure:
(i) destruction of all or part of the facilities of the seller or those of its suppliers, service providers and/or subcontractors;
(ii) serious public disorder, wars, strikes, riots, government actions, epidemics, or disruption of transportation and communication systems;
(iii) natural disasters, cold waves or other similar events;
(iv) technical unavailability, stock shortages and possible delays by the seller’s own suppliers;
(v) more generally, any events or causes beyond the seller’s control that hinder and/or interrupt the seller’s supplies and/or deliveries or those of its own suppliers, service providers and/or subcontractors and that, in good faith, prevent the seller from delivering the products covered by the order.
This clause shall not affect any applicable mandatory provisions.
16. Invalidity of a Provision of These General Terms and Conditions
If any provision of these General Terms and Conditions is held to be invalid, void, unenforceable or ineffective, the remainder of the General Terms and Conditions shall remain fully valid and effective.
In such case, the parties undertake to interpret and amend the agreement in such a way as to achieve, as closely as possible, the meaning and purpose intended by the provision of the agreement that has been held invalid, void, unenforceable or ineffective.
17. Personal Data (Business Contacts)
In connection with the performance of the agreement, the seller and the buyer may process personal data limited to business contacts, such as names, contact details and job titles. Each party undertakes to comply with applicable data protection regulations, including the GDPR.
Unless otherwise agreed in writing, each party shall process such data as a data controller for its own purposes relating to the management and performance of the agreement, including operational communications, planning, monitoring, invoicing and collection.
Each party shall implement appropriate security measures, ensure the confidentiality of authorized persons and retain the data only for as long as necessary for such purposes and/or to comply with legal obligations.
Where service providers, such as IT or hosting providers, are engaged and process such data, the relevant party shall ensure that they provide sufficient guarantees and are bound by appropriate data protection obligations.
Without prejudice to the foregoing, the seller reserves the right to collect information about customers, including through the use of cookies, and, if it so wishes, to disclose such information to business partners.
Customers may object to the disclosure of their data by notifying the seller accordingly. Customers shall likewise have the right to access and correct their personal data.
Any request for information or correction must be sent to the seller at its registered office by registered letter with acknowledgment of receipt.
18. Jurisdiction and Applicable Law
Any dispute arising out of or in connection with this agreement shall be subject to the exclusive jurisdiction of the courts having jurisdiction over our registered office.
The agreement entered into between the seller and the buyer shall be governed by and construed in accordance with Belgian law, excluding its conflict of laws rules.
All costs relating to any legal claim, including fees, shall be borne by the buyer.