In the present General Conditions, the following terms shall have the meaning hereunder defined:
COMPANY: the company under Belgian Law WASLET IT sprl, the registered office of which is established at 295 Avenue Molière, B-1050 Brussels, registered with the company Register under number 0455.538.229 RPM Brussels.The company is entitled to request from the client any information allowing it to identify the client, if it is a legal entity. If a physical person passes an order on behalf of a legal entity, then that legal entity shall be bound vis-à-vis the company even if the physical person does not have the necessary powers. In addition, that physical person shall in any event remain liable personally vis-à-vis the company for the proper performance of all the obligations under the contract.
The client expressly acknowledges that he is not a consumer within the meaning of Article 2.2 of the Law of 6 April 2010 on market practices and consumer protection.
I. COMMON PROVISIONS
ARTICLE 1 – ACCEPTANCE
Any order or provision of services shall be subject to the present General Conditions as hereinafter defined and shall entail acceptance of them by the client, who waives the assertion of his own general conditions. The fact that the company does not assert the non-fulfilment by the client of any whatsoever of the obligations upon the latter may not be interpreted as a future waiver of any such assertion.
ARTICLE 2 – CONFIDENTIALITY – PROFESSIONAL ETHICS
2.1. The company will respect the confidential nature of data, documents, facts or events of which it gains knowledge during the performance of the present contract.
2.2. The client undertakes not to lure or attempt to lure personnel from the company. If this obligation is breached, the client shall automatically and without notice of default be liable to pay a lump-sum compensation of € 30,000.- per person. This clause shall remain applicable for one year following the end of the contract.
ARTICLE 3 – ENTRY INTO FORCE
The contract enters into force as of its conclusion between the parties.
ARTICLE 4 – FORCE MAJEURE
4.1. The company shall be authorised to suspend all or some its obligations or to terminate the contract, without the client having a right to compensation, in any force majeure event, which means an event outside the control of the company or which partially detracts from its control, wherever the event occurs.
4.2. In particular are to be considered as force majeure events: work conflicts, delays in delivery from the manufacturer, cessation of production by the manufacturer, illness of one or more officials of the company and events affecting means of transport.
ARTICLE 5 – COMPLAINTS
5.1. Notwithstanding the other provisions of the present Conditions, all complaints must be made in writing within eight days of delivery or provision of services, precisely declaring the nature of and the grounds for the complaint. For invoices, complaints must be made within eight days after their date.
5.2. For complaints in relation to hidden defects, the maximum deadline shall be six months after delivery, whilst complaints must be made within eight days of their observation.
5.3. If complaints appear to be substantiated, the company undertakes solely to replace the inadequate goods without the client being able to assert any right to compensation.
5.4. Making a complaint shall never release the client from his payment obligations vis-à-vis the company.
ARTICLE 6 – INTEREST AND COSTS
6.1. Without prejudice to other sanctions, any sums unpaid on their due date shall automatically and without prior notice of default bear interest equal to the interest rate for non-authorised overdrafts as charged by the company’s bank increased by 2%.
6.2. In the event of non-payment of an invoice on its due date or in application of Articles 19.4 or 21 and without the need for a notice of default, in addition to the interest indicated above, the total amount of the invoice, including tax, shall be increased by 20% with a minimum of € 75 on a lump sum basis.
ARTICLE 7 – DAMAGES AND INTEREST
7.1. Except in the cases provided by the present General Conditions and unless there are mandatory legal provisions to the contrary, the company shall never be liable to pay damages to the client or to third parties, whatever the cause, including the use or the defectiveness of the equipment and/or software.
7.2. In cases where the company might be liable to pay damages, it cannot be held liable to pay compensation for unforeseeable, indirect or consequential damage, including, but without this list being limitative, any loss of profit, reduction of use value, loss of goodwill or any other loss of commercial opportunities.
7.3. In all cases, any possible damages due by the company shall be limited to 200 euros per detrimental fact.
ARTICLE 8 – PLACE OF PAYMENT
Unless there is a provision to the contrary, any invoice as well as any contract premium shall be payable in Brussels. Any payment made to resellers, brokers, agents or third parties may not be taken into consideration as settlement of the company’s invoice.
ARTICLE 9 – APPLICABLE LAW AND DISPUTES
The present contract shall be subject solely to Belgian Law. Any dispute arising from the present contract shall be subject exclusively to the competence of the Courts in Brussels or the Justice of the Peace of the first canton in Brussels, even when there is more than one defendant, for calls upon guarantee or proceedings in chambers. Nevertheless, the company reserves the right to summon the client at his domicile.
ARTICLE 10 – SAVING CLAUSE
10.1. In the case where one or more of the clauses of the present General Conditions might be declared null and void or not applicable, wholly or in part, all the other clauses shall remain applicable.
10.2. The present General Conditions shall also remain applicable in the case of a change of shareholder structure of the company, merger, demerger or disposal of a subsidiary.
II. PROVISIONS APPLICABLE TO SALES
ARTICLE 11 – PRICE – VAT
11.1. Unless there is a written undertaking by the company to the contrary, prices shall be net and non-inclusive of VAT, or any other possible taxes, or other costs, including those for transport and packaging, which shall remain to be borne by the client.
11.2. The prices in force at the time of the order shall be applicable to it. However, if between the time of the order and delivery, salaries, raw material prices or production costs increase, the company reserves the right to adjust the prices accordingly provided that one month has passed between the time of the order and the delivery.
11.3. The costs occasioned by any unforeseeable technical problem which results in a manpower overcharge shall also be borne by the client.
ARTICLE 12 – TRANSPORT
12.1. The mode of transport, dispatch, packaging, etc shall be determined by the company with all due care and consideration, if no precise indication is given to it by the client, without the company incurring any liability in this respect.
12.2. Any specific wishes of the client in relation to transport or dispatch shall only be taken into consideration and shall only be executed if the client declares that he shall bear the additional costs.
12.3. Transportation costs shall be borne by the client, and delivery free of charge shall only take place if and provided this is stipulated by the company on the invoice.
12.4. Products shall be loaded, transported and unloaded at the risk and peril of the client even if they are delivered free of charge. It is the client’s responsibility to insure the goods purchased and to bear the costs of such insurance.
12.5. The client must assert his rights vis-à-vis the transporter in the case of damage or loss, without being able, on any grounds whatsoever, to refuse, reduce or delay payment of the invoices. The client shall immediately on receipt inspect both the packaging and the goods delivered.
ARTICLE 13 – DELIVERY DEADLINE
13.1. In the case where delivery deadlines are expressly agreed, a delay of four weeks in delivery, attributable to the company, shall be considered acceptable and shall not authorise the client to demand termination or suspension of the contract or damages.
13.2 If the delivery deadline expressly agreed is exceeded by more than four weeks, the client must, in the first place, give the company written notice leaving it a deadline of at least two weeks to make good. If delivery does not occur within the deadline indicated by the client, the latter shall be authorised to suspend the contract. Liability may not be raised for any overrun of the deadline, whatever its duration, due to a case of force majeure, as defined in Article 4.
13.3. When goods are not taken by the client after the delivery deadline has passed, those goods will be stored at his disposal, on his behalf and at his risk. After a period of four weeks, the company shall be entitled to sell those goods over the counter. Any possible lower proceeds from the sale as well as costs shall be borne by the client, without prejudice to the company’s other rights.
13.4. The company shall be authorised to refuse delivery in the case where the client has a debt open in the company’s books.
ARTICLE 14 – RESERVATION OF OWNERSHIP
14.1. The equipment shall remain the entire property of the company until complete payment of its price, ancillary costs and taxes. In case of default of payment, the company may recover possession the equipment and terminate the sale by simple written notification, eight days after notice of summons remaining unheeded, without prejudice to any damages. The client undertakes, until complete payment of the price of the equipment, not to change or remove the identification marks affixed by the company. The client shall not be entitled to resell the equipment until he has made full payment of the price.
14.2. The client shall not be entitled to any retention of the equipment.
14.3. The client shall be obliged to take receipt of the products on delivery. In default, the company shall be entitled to terminate the contract and to obtain payment of a lump-sum contractual indemnity of 40% of the order amount.
ARTICLE 15 – GUARANTEE
15.1. Products sold from stock shall be guaranteed against any defect of manufacture or material for a period defined separately for each product.
15.2. The guarantee granted by the company may in no case exceed that offered by the manufacturer.
15.3. Excluded from the guarantee are breakdowns and/or damage directly resulting from or occurring within the context of one the following cases of exclusion:
- Any negligence, error of connection or handling, use of the equipment not complying with the technical specifications of the company or the manufacturer indicated in the user manual submitted to the client or, more generally, defective or clumsy use.
- Any intervention, adjustment, repair or action similar to maintenance work carried out on the equipment by any person not approved by the company.
- Any addition, use of technical installation, any mechanism additional or accessory to the equipment not complying with the technical specifications of the company or the manufacturer or complying with those specifications but without the prior written agreement of the company.
- Any mechanical, electronic, electrical or other modification or transformation to the equipment or its connecting mechanisms by any person not approved by the company.
- The use of any parts or supplies necessary for the operation of the equipment (paper, ink, magnetic supports) not approved by the company.
- Any fire, water damage, accident or defect of air conditioning, malevolence, storm, consequence of storm or meteorological accident.
- Any intentional and detrimental act or omission committed by any person whatsoever, including the client or his employees.
- Defects, even brief, in the physical environment and in particular its non-compliance with the company’s instructions.
- Damage caused by transport even if the latter is free of charge.
15.4. This guarantee shall be limited to the free replacement, free repair or reimbursement, at the choice of the company, of the part acknowledged to be defective. The company shall be authorised to make several successive replacements or repairs.
15.5. Transportation costs shall remain to be borne by the client even when the defect is covered by the guarantee.
15.6. The company’s guarantee shall in no case relate to the aptitude of the equipment or the software to be of the use or to achieve the objectives set by the client. If the choice of equipment was made as the consequence of a proposal or recommendation from the company, the company cannot be held liable in this respect. The two parties agree that such proposal or recommendation was formulated in relation to the data communicated by the client and the respective manufacturers and distributors, who were obliged to inform the company precisely about the goods the client wished to acquire, prior to conclusion of the contract.
15.7. The guarantee shall be personal to the client. As a consequence, any person to whom the client transfers ownership or possession of the equipment sold may not claim on the guarantee granted by the company.
ARTICLE 16 – RETURN OF GOODS
16.1. No goods may be returned without the prior written agreement of the company.
16.2. Returned goods must be transported free of charge for the company, in their original packaging and present no alteration or lack of parts whatsoever.
16.3. Any perceivable alteration shall authorise the company to refuse the exchange or reimbursement.
ARTICLE 17 – ORDER CANCELLATION
Any claimed cancellation of the order or termination of the contract on the part of the client shall only be possible by way of prior written agreement by the company. In any event, the client shall nonetheless be obliged to pay a lump-sum indemnity of 40% of the amount of the order, including taxes.
ARTICLE 18 – APPROVAL
The client shall be obliged on delivery to ensure that the quality of the goods and products delivered complies with the order.
ARTICLE 19 – PAYMENT
19.1. Payment must be made cash on delivery without any discount or offsetting.
19.2. The company reserves the right, by way of prior written agreement, to grant a payment term of 30 days from the date of the invoice.
19.3. Any payment by the client shall be allocated in the first place to the interest due to the company as well as to recovery costs and shall only be allocated thereafter to the debt which is the oldest.
19.4. The company shall be entitled to consider the contract terminated without any judicial intervention whatsoever or notice of default being necessary, and to either immediately claim any amount whatsoever due from the client, or request the return of the goods delivered and not yet paid for as being the property of the company, all without prejudice to any right of the company to compensation for costs, damages, in the following cases:
- If the client is declared insolvent or in liquidation, makes an application for a winding-up arrangement or if a seizure is applied on all of part of his property.
- If the client dies or is placed under provisional administration.
- If the client does not comply with the present Conditions.
- If the client fails to pay an invoice or a part of it.
- If the client ceases his activities or a part of them, and likewise if he disposes of them.
19.5. The company reserves the right to make partial deliveries which might be the object of separate invoices: the client shall then be obliged to pay those invoices in accordance with the rules stated herein.
III. PROVISIONS APPLICABLE TO THE PROVISION OF SERVICES
ARTICLE 20 – INVOICE PAYMENT
20.1. The premium due by virtue of a contract and the period to which it corresponds shall be specified in the appendix to the contract or in an endorsement. The premium shall be payable on signature of the contract. On each due date, the premium may be revised in relation to the increase of production costs.
20.2. Any intervention made by the company as long as either the hardware such as defined in the special conditions or the premium have not been paid, shall be invoiced to the client. The company reserves the right to suspend any intervention when the limit of the contract is reached.
ARTICLE 21 – PAYMENT ARREARS
21.1. In the case of non-payment of the premium, the company reserves the right to immediately suspend the effects of the contract until full payment of the premium or to consider the contract as automatically terminated without notice of default, and to claim immediately any amount whatsoever due by the client.
21.2. In the case of fraud, the contract shall be automatically and immediately terminated without any formality and give rise to the payment of compensation proportionate to the loss or damage suffered by the company.
ARTICLE 22 – LIMITATIONS OF MAINTENANCE CONTRACTS
22.1. The company’s scope of services shall be strictly limited to what is referred to in Article 2 of the special conditions of the contracts, and the company is formally exempted from any other liability and any other damage, whatever its cause or nature.
22.2. Contracts shall offer no guarantee of result as to the operations demanded by the client and no guarantee or cover as to the recovery of data lost in a system breakdown.
22.3. Contracts shall not cover interventions associated with problems relating to software. The manpower associated with this type of intervention shall not be included in the contract premium.
22.4. Cover shall only be for the equipment listed in the appendix or in an endorsement, on the site indicated. Any amendment to that list must be indicated within eight days and must be the object of an endorsement. The company reserves the right to refuse to cover certain options and notify this within thirty days. In the event of a breach of this rule, the company will no longer maintain the contract cover.
22.5. The company shall be the sole judge of the quality of the replacement parts to be used in any repair covered by the present contract. Such parts shall always be of a quality equivalent to or better than that of the parts replaced or in observance of the instructions given by the manufacturer.
22.6. The replacement of a part under the contract shall never give rise to an extension of the guarantee beyond the term of the contract.
22.7. The client must ensure that a person with knowledge of the IT environment of the site or business is available for the diagnosis and intervention to take place.
22.8. Maintenance contracts shall not be valid during moves/relocations. After the migration, the client must ensure the integrity of his server before calling on the service of the company.
22.9. Maintenance contracts shall offer no guarantee of result. The company undertakes to deploy all reasonable means to provide a solution to the problem indicated on the call. If, after repeated attempts, the server or the PC cannot be repaired, the company may at its sole discretion decide to make a reimbursement of the contract purchase price.
ARTICLE 23 – EXCLUSIONS FROM MAINTENANCE CONTRACTS
23.1. The SpareXpress ® Server contract shall cover the execution of repair works on any hardware defect, with the exclusion of:
- Reinstallation of the Operating System, of any other software or backup;
- Consumables and cabling outside the server;
- Problems due to the presence of computer viruses;
- Problems or defects in software or start-up files (autoexec.bat, config.sys);
- Problems due to the installation or implementation of a patch or a version update;
- Problems associated with application software running on the server or coming from a link with a station;
- Installation or use of the hardware non-compliant with the manufacturer’s specifications;
- Use of other parts or equipment than those recommended by the company or the manufacturer;
- Repair or disassembly by the user or by a third party not authorised by the company or the manufacturer;
- Problems due to a defect in the electricity network;
- problems due to a case of force majeure or any other cause not falling within the context of normal hardware use;
- Connection error;
- Repairs necessary following an accident or other external event;
- Problems of esthetical nature;
- Deterioration following a shock, fall, poor hardware use, negligence or a modification made by the client;
- Repair or maintenance carried out without the intervention or prior authorisation of the company;
- Options not covered or not indicated, as described in the appendix to the contract.
23.2. In the case of repair in one of the exclusion hypotheses, the company shall invoice the parts, manpower and travel.
ARTICLE 24 – LIMITATIONS OF SUPPORT CONTRACTS
24.1. The scope of services shall be strictly limited what is referred to in Article 2 of the special conditions of the contracts, and the company is formally exempted from any other liability and any other damage, whatever its cause or nature.
24.2. Contracts shall offer no guarantee of result as to the operations demanded by the client and no guarantee or cover as to the recovery of data lost in a system breakdown.
24.3. Interventions by the company shall be limited to its fields of competence and within the limits of support granted by manufacturers and developers. When the company cannot intervene for that reason, it may either subcontract or decline the request for intervention.
ARTICLE 25 – SUBCONTRACTING
The company may be substituted by a third party subcontractor for the fulfilment of its contractual obligations.