General term of sale and of maintenance
The supplier will only be obliged to execute an order/assignment after his express, written acceptance of this order/assignment. For the customer the order form is legally
binding immediately, even before written acceptance by the supplier. When the customer uses and/or keeps any product of the supplier or allows the supplier to start a service for the customer, this counts as sufficient proof of the order by the customer, as acceptance of the present terms and as an authorisation to invoice the products and/or services concerned. The present terms are valid to the exclusion of the general terms of the customer, even if it is mentioned differently on the order form, and they are applicable to all offers and agreements, unless expressly otherwise agreed in writing. If the customer wishes to sign the present agreement for non-professional use, he must inform the supplier of this fact in writing and in advance or else he will be irrevocably considered to be a professional user, acting in the framework of his professional activities.Supplier for the purpose of these General Terms is understood to mean Desk Solutions Computer Applications N.V. or an associated company that is in charge of sales and/or services.
Article 2 - Prices
Offers are always free of engagement, unless explicitly mentioned differently.If the delivery does not take place at the time the agreement is entered into, the supplier
is free to modify the indicated price if one or more cost price components are modified, such as a price increase imposed by the manufacturer or the supply company.
If the price increases with 20 % or more, the customer can terminate the contract within five (5) working days after the announcement of the new price by registered letter without entitlement to damages, for the hardware or software to be supplied after the new price has come into effect. Any sums already paid for this will be refunded.
If the customer does not react within the period of five (5) working days mentioned above, this implies that he agrees with the delivery at the changed prices. The prices are indicated ex-works, net and excluding VAT, charges and taxes. Packing costs are included in the price, except for contrary agreement or custom. Except for agreement to the contrary, the forwarding charges are not included in the price. Costs for express deliveries will always be at the customer's expense. Service rates are valid for performances during normal working hours. For services outside the normal working hours, additional fees will be invoiced.
Article 3 - Delivery and payment
Deliveries are made ex-works. Organisation and adaptation of the room(s) where the hardware will be installed are at the customer's expense, and he is liable for any damage done to the hardware and/or software as well as for extra costs incurred by the supplier as a result of untimely, incorrect or inadequate execution. Invoices will be drafted as from the date of delivery. The dates of delivery are indicated approximately. The supplier is not responsible for any damage suffered by the customer due to late delivery. Any complaint regarding delivery, condition, operation and conformity of the customised software and/or services must be notified to the supplier by registered letter within 5 working days after the delivery, under penalty of dissolution. In the case of deliveries of goods, the customer must mention any deviations concerning the number of packages (more or less) and the existence of transport damage on the order sheet of the carrier immediately when he takes delivery of the goods. If the customer signs the order sheet without any mentions, he confirms his agreement with the fact that he took delivery of the correct number of packages and that there is no transport damage. If a box or a transport packaging is missing at the delivery, this will be considered a defect. Missing items shall only be at the expense of the supplier provided that the customer reports the missing box or transport packaging on the order sheet of the carrier. Any complaints regarding the content of a transport packaging must be notified in writing within 24 hours after the delivery, following which the supplier will investigate the complaint. In the event of an unfounded complaint, the supplier reserves the right to refuse subsequent delivery/replacement. All goods delivered must be accepted when offered by the carrier. The delivery can be refused if the goods are heavily damaged or if the goods had not been ordered. If the customer refuses to accept the goods delivered, the goods will, with reservation of all rights of the parties, be returned to the warehouse of the supplier or the distributor, where the reason for refusal of the delivery will be examined based on the statements on the delivery note of the carrier. If the refusal is accepted and the goods had already been invoiced, the prices of the goods for which the refusal has been accepted, will be credited against the invoice. If after examination of the reason for refusal, it appears that the customer has refused the goods unfoundedly, the supplier shall notify the customer thereof and shall at the same time inform the customer of the place where the goods will be put at the disposal of the customer during a period of 14 calendar days. Parties hereby expressly agree that, in the event the refusal is found to be unjustified, the risks of the delivery will be deemed to have been transferred to the customer at the moment the goods were offered to the customer for the first time. From that time on, any extra costs (including, but not restricted to storage costs and transport costs) and risks will be borne by the customer. The invoice will remain due and will have to be paid in full on the due date. The lack of a written protest concerning the invoice within 8 working days as from the day it was sent, implies the irrevocable acceptance of the invoice and of the products and services mentioned therein. All payments must be made within 30 days after the invoice date without any deduction or settlement per contra, unless otherwise agreed in writing. Even after the conclusion of the agreement, the supplier can require from the customer that he gives security for the payment of future deliveries, and the supplier can suspend deliveries until the requested security is given and/or unilaterally change the term of payment agreed on, if the supplier judges that the customer's creditworthiness gives occasion for doubt. If the time of payment is exceeded, an interest is due ipso jure simply because the due date has expired (in pursuance of art. 1139 Civil Code); this interest is a percentage of minimum 1 % per month, each started month counting for a complete one. In the event of non-payment, the supplier can, after the summons, cancel or defer all current agreements until full payment is made, without prejudice to the supplier's right to receive compensation for damages. All judicial and extrajudicial collecting charges will be at customer's expense and will be due as a result of simply having let the term of payment expire. The (extra) judicial collecting charges are set at 15 % of the amount due, with a minimum of 125 EUR. All additional services, requested by the customer and performed by the supplier, will be charged to the customer immediately at the hourly rates in force at that time.
Article 4 - Product guarantee
a. The customer can only appeal to the guarantees the manufacturer, importer or main distributor committed himself to directly with respect to the end users, and this for the duration determined by the aforementioned.
b. With regard to products, for which the supplier chooses not to obtain recognition from the manufacturer to perform after-sales services, the supplier can refer the customer to a company that does offer such services. The supplier does give assistance in appealing to the standard guarantee of the manufacturer.
c. The customer brings the products to the supplier's maintenance service at his own expense, unless the manufacturer provides another guarantee for the products concerned.
d. FOR THE HARDWARE:
→The guarantee covers all defects concerning material and construction and is restricted to repair or replacement of defective parts, at the supplier's option.
→ If components for further assembly are supplied, the customer will only market the products they are integrated with after having carried out the necessary tests and he will protect the supplier against any claim for compensation submitted by third parties because of incorrect operation of the products he supplied, even if it were to be established that this incorrect operation results from the components the supplier delivered to him.
→The manufacturer can indicate (parts of) products as Customer Replaceable Units (CRU) or a similar denomination; the customer must replace faulty CRU parts within the framework of the guarantee. For this purpose, the customer can address a request: • either directly to the manufacturer according to the directives for guarantee services for CRU parts in force at that time; • or to the supplier, in which case the supplier will deal with the guarantee services with regard to the CRU parts. In the latter case, the customer agrees to bear the costs for these services performed by the supplier at the rates in force at that time.
→ The components and spare parts delivered by the supplier shall be new or equivalent. The parts replaced will become the property of the supplier.
FOR THE SOFTWARE:
If the supplier developed software at a fixed price, the supplier will perform free debugging services during the finalisation period (3 months as from the date of installation of the software). Travelling time and expenses, however, must still be paid. If the software has been developed at a price on a time and material basis, all services (including debugging services) during the finalisation period can be charged on the basis of the time and material rates in force at that time. For software that was not developed by the supplier, the guarantee granted by the software developer or the supply company is applicable.
e. Facilities at the disposal of the supplier:
The customer will make the facilities required for the performance of the services available to the supplier in good condition (such as a/o free access to the products and the products connected with them, documentation to make the diagnosis, electric power, telephone, presence of a staff member of the customer who personally uses the products, knows the needs of his company and provides all the assistance required from the customer,...). Each useless visit resulting from the fact that these conditions are not satisfied will lead to a separate invoice at the rates in force.
Are in no event covered, interventions as a result of any cause extraneous to the
products supplied, such as:
→ delivery of spare parts;
→ delivery of batteries except in case of a "dead on arrival";
→ delivery or replacement of fusers, input/output wheels, the maintenance kit obliged by the manufacturer, unless otherwise agreed on;
→ making software backups and/or restores, unless otherwise agreed on;
→ execution of a virus scan, the removal of computer viruses;
→ wrong or abnormal use or operation; negligence on the part of the customer or his assigns; fire; defects in the electrical installation or cabling; falling or inserting extraneous objects; accidents; vandalism; use in a dusty atmosphere or an unsuitable environment; static electricity; the fact that the customer does not observe the room specifications; any other cause that has nothing to do with information technology; voltage fluctuations; an external magnetic field;
→ unjustified calls;
→ any repair or maintenance, any adaptation or modification executed by persons who did not receive the supplier's prior written authorisation, unless if the manufacturer concerned explicitly authorised this. Moreover, the customer bears all the risks for any resulting damage.
→ situations of force majeure, as described in article 7;
→ irregular functioning of the hardware, the products supplied are connected with;
→ damage or defects caused by software or interfaces that were not supplied by the supplier;
→ restrictions laid down by the manufacturer or supply company;
→ any return to the supplier's address without the prior written authorisation of the supplier;
→ services for which the manufacturer makes the necessary facilities available so that the customer can execute the repair and/or replacement himself, among which but not restricted to replacement of CRU parts;
→ non-observance of technical specifications if they are specified;
→ bugs concerning data processing;
→ interventions resulting from software error messages, bugs, bios upgrades, updates of software;
→ replacement and/or cleaning of media and user necessities such as but not restricted to disks, print ribbons, print heads and the possible repair of damage caused by the use of media and/or user necessities that were not supplied by the supplier;
→ replacement or repair of parts, the normal life of which is shorter than the guarantee period because of their rapid wear, such as lamps, display tubes, backlights, TFT displays, etc.
→ painting or embellishing the hardware concerned or components of the hardware, changing the characteristics, adding or removing parts;
→ wrong information concerning the hardware the intervention is requested for. In all these cases, the time spent on the work, the costs, as well as the spare parts, will be invoiced at the rates in force at that time. The customer declares that the supplier has fully informed him about the characteristics, operation, possibilities and restrictions in the use of the hardware and/or the software, as well as about the problems concerning adaptation, installation/integration and extension that may arise. The customer is solely responsible for the adequacy of the hardware and/or software so as to realise the results he aims at. If, on his order form, the customer chose the wrong
the product, or giving an inadequate product specification, the supplier can on no account be obliged to take the inadequate product back or to exchange it.The supplier draws the customer's attention to the fact that with dial-up connections, it is possible that this connection is opened automatically or remains open under the influence of external elements and/or connected hardware. The supplier can on no account be held responsible for the resulting communication charges. If the supplier performs services in connection with the Internet, the supplier can in no case be held responsible for any consequences of the use of the Internet, nor for "hacking", improper use of information, damage to or loss of information, the content of the customer's website(s) and its conformity with existing legislation and regulations, quality of the telephone connection or the leased line, etc. The stipulations above represent the only guarantee commitments of the supplier.
g. Desk Solutions Warranty Pack
For the products for which this possibility is included in the price list or the offer of the supplier, the customer can order a Desk Solutions Warranty Pack along with with these products under the conditions stipulated in the price list or the offer of the supplier, provided that these products are set up in Belgium.
Article 5 - Service guarantee
Service availability is guaranteed insofar as this has been expressly included in an agreement signed by both parties, and this for the duration of that agreement as well as for the products explicitly indicated therein. The same goes for availability of spare parts, on the understanding that when the customer refuses to buy the spare parts,
included in a list of spare parts necessary for further maintenance of the product, the (rapid) supply of which can no longer be assured, the supplier will no longer be held to any commitment to service this product. Availability of services outside the working hours is guaranteed only insofar as this has
been included in an agreement entered into by both parties.
Article 6 - Detention of ownership
The hardware supplied and components of this hardware remain the property of the supplier as long as the customer has not completely paid the main sum as well as possible interests and/or lump fees. The supplier can appeal to the detention of ownership
without prior notice or proof of default. The customer shall bear any possible costs with respect to this. The customer herewith entitles the supplier to collect the products supplied at any time wherever they may be. The customer herewith engages to give the products concerned to the supplier immediately
and to grant the supplier access to the rooms concerned insofar as this is necessary. Without collaboration on the part of the supplier, the customer is not authorised
to transfer the ownership of hardware or parts thereof, which have not been paid entirely, to third parties, or to give to third parties any security, in the broadest sense of the word, under penalty of the immediate claim to pay the sales price, and without prejudice to the supplier's rights resulting from the aforementioned detention of ownership.
Article 7 - Risks - Force majeure
The risks connected with the hardware are transferred to the customer at the moment of the delivery. The customer will take out insurance against the risks at his own expense. Parties are not responsible for the consequences of force majeure, coincidences, interruption of or delays in the deliveries of the manufacturer/supply company.
Article 8 - Rights of intellectual ownership
The delivery does not imply the transfer of rights of intellectual ownership. The fact that the source code of the software is located in the rooms of the customer (temporarily or not) does not do prejudice to this. The supplier will reserve all possible rights. The customer will be granted the right to use the software, which right cannot be transferred and is non-exclusive, and this under the conditions of the software manufacturer. The customer and his assigns do not have the right to make adaptations or modifications to the software or to distribute the software to third parties or let third parties use it, even if the source code is located in the rooms of the customer. The customer only has the right to make copies, to the extent that this has been expressly authorised in a licence agreement. The customer guarantees that the software and the information supplied with it will be considered to be business secrets of the supplier or the software developer. If the customer does not comply with the obligations included in this article, he will be obliged to compensate for all damage resulting from this infringement. This compensation is set at a minimum amount of 25,000 EUR. The supplier has the right to prove the real damage, by all legal means, if it exceeds this amount. Moreover, the supplier has the right to cancel this agreement, without any summons, and to claim the immediate return of the system, including all its accessories.
Article 9 - Breach of contract
If the customer cancels the entire order or part of it, or if he fails to take delivery of all or part of the goods or services, the supplier has the right to claim dissolution or execution of the contract. The damage suffered by the supplier amounts to minimum 50% of the value of the order or to the non-respected part of it, on the understanding that the supplier can prove the real damage, by all legal means, if it exceeds this amount. The supplier has the right to cancel this agreement, without proof of default, in the event that customer has requested respite of payment, or is in a state of bankruptcy or notorious insolvency.
Article 10 - Liability
The supplier's liability results from a commitment concerning best efforts and are determined as follows:
1. The supplier shall be held to repair any damage the customer can conclusively prove to be caused by the supplier ('s staff), however up to maximum the lowest of the following amounts, i.e. either the amount due by the customer for the delivery concerned or the provision of the service concerned, or an amount of 50,000 EUR, regardless of whether the claim was made on contractual or extra-contractual grounds.
2. Are excluded:
→ compensation by the supplier for any indirect damage; financial and commercial loss, loss of profit, increase in the overheads, disruption of the planning, loss of expected profit, capital, customers, etc.;
→ compensation of all direct and indirect damage due to the use of the supplied product itself.
→compensation of damage which is totally or partly caused by hardware or software supplied or developed by third parties or by any other element present in the company of the customer or brought into the company of the customer after the establishment of the agreement.
→ Shall in no case give rise to compensation of damage, any action brought against the customer by third parties.
Article 11 - Reconstruction of data and programs
11.1 The customer is solely responsible for the establishment of procedures which will enable him at any time to reconstruct lost or altered files, data or programs, regardless of the cause of the loss or change. The customer should have at all times at least the necessary back-up copies of his computer programs, files and data.
11.2 As far as viruses are concerned, the responsibility of the supplier remains restricted to the installation of anti-virus programs if the customer explicitly orders them from the supplier. The supplier can never be held liable for viruses in the customer's system nor
for the consequences.
Article 12 - Import and export
The customer guarantees that he observes all the applicable import and export regulations. Furthermore, the customer protects the supplier against any liability pursuant to a violation of the applicable import and export regulations in case the customer himself imports or exports. In that case, the customer is esteemed to be the exporter and/or importer, with explicit exclusion of the supplier.
Article 13 - Generalities
If the supplier fails to exercise any of his rights, this does not imply renunciation or extinction of this right, nor will it harm any other right of the supplier by virtue of this
agreement. The agreement is binding on the parties, their successors and their assigns. The business managers of private companies are jointly and severally liable for the payments owed to the supplier by their company. Without prior mutual consent, parties are not authorised to transfer the rights and obligations resulting from this agreement to third parties. This prohibition, however, does not exclude the right to transfer a claim.
Article 14 - Applicable law - Court of competent jurisdiction
The agreements are governed by Belgian law, to the exclusion of the treaty of Vienna concerning international contracts of sale of moveable property. The customer commits himself to submit all complaints concerning the functioning of the hardware and/or software to the supplier before instituting any proceedings, under penalty of dissolution. The supplier has one (1) month to check whether or not the complaints are justified. Any disputes arising out of or in relation with this agreement shall be finally settled under the CEPANI Rules of Arbitration by one arbitrator appointed in accordance with these Rules, and this for national as well as international transactions. The arbitral tribunal shall be composed of one arbitrator. The seat of the arbitration shall be Brussels (Belgium) and the arbitration shall be conducted in the English language. The parties expressly exclude any application for setting aside the arbitral award.