General Terms & Conditions
Last updated: 1 September 2021
1. Scope of application
1.1. The following terms and conditions (hereinafter the “Terms and Conditions”) apply to sales contracts and contracts for services (performance of services or execution of works), and to any contracts that cover a combination of sales and services. These General Conditions govern the relationship between the Seller and the contracting party (hereinafter the “Customer”). The Seller is the company Vivansa srl having its registered office at avenue Pasteur 6, 1300 Wavre, Belgium (VAT BE 475.477.964) (hereinafter, the ‘Seller’).
1.2. These General Conditions always prevail over any of the Customer’s general conditions, regardless of whether there are any other stipulations or conditions contained in the Customer’s order form or any of its documents that may be contrary to these General Conditions, unless the Seller accepts expressly and in writing the applicability of the Customer’s conditions in whole or in part. The General Conditions may not be modified tacitly. Any conduct that is contrary to what is contained in the General Conditions – even if tolerated by the Seller – shall not operate as a waiver of these General Conditions.
2. Formation and Elements of the Contract
2.1. Only the Seller’s firm offer, which has been accepted unconditionally within the offer’s validity period, shall be binding upon the Seller. In all other instances (e.g., an offer with no validity period, an acceptance that is notified after the offer’s expiry, conditional acceptance, modifications to the offer, additional items requested by the Customer, etc.), there shall be a valid contract only if there is a Confirmation of the order i.e. a written acceptance by the Seller of the Customer’s order. The Contract shall be subject to the conditions contained in the Confirmation. If the Customer does not agree with the terms contained in the Confirmation, he must inform the Seller immediately and, in any event, no later than eight (8) calendar days from the date of the Confirmation’s sending. Failing which, the Customer is deemed to have accepted the terms of the Order’s Confirmation.
2.2. The contract between the Customer and the Seller (hereinafter the “Contract”) only concerns the delivery of goods and the execution of works and/or performance of services as described in the Contract (hereinafter “the Goods and/or Works and/or Services”).
2.3. The Contract is made up of the following documents:
– these Terms and Conditions;
– the Confirmation and – to the extent that the terms contained in the following documents do not depart from those of the Confirmation – the Seller’s Offer, the Customer’s Order, and any subsequent changes to those documents;
– where applicable, the Seller’s technical descriptions and the Customer’s technical specifications only to the extent the latter does not depart from the former;
– where applicable, the local regulations that apply to works and construction;
– where applicable, the provisions regarding access, safety, well-being, and the environment;
3.1. The Customer shall pay the Seller the fixed price as detailed in the section entitled “Total price (summary) of the Proposal for the Services and Works in instalments as described in the section entitled “Order process and billing” of the Proposal. The price always excludes VAT and does not include taxes and duties that are directly levied on the Goods and/or Works and/or Services. Unless otherwise stipulated, the price does not include the cost of transportation, delivery, or collection of the Goods, nor does it include the cost of fitting or installation. All taxes, charges, duties, and costs shall be borne by the Customer.
4.1. Where the parties agree, the Seller can request the Customer to make advance payment and/or give security that is adequate for guaranteeing the full payment of the price. Failing to pay this advance or security entitles the Seller to suspend the performance of its obligations without prior and formal notice, and any deadlines imposed on them will be automatically suspended. If the Customer’s failure persists, the Seller may terminate unilaterally with prior written notice the Contract and claim damages.
5. Payment - Interest and Costs - Protest
5.1. Despite any protest made in accordance with these Terms and Conditions, all invoices must be paid within thirty (30) calendar days after they have been received. An invoice is considered received three (3) business days after its sending date.
5.2. If an invoice is not paid in full by the above-mentioned period of time, the sum due is increased automatically from its due date by interests at the rate of one per cent (1%) per month from the due date until payment, and this without prior notice and without prejudice to any claim for damages for collection costs.
5.2. Any protest of an invoice must be notified in writing within fifteen (15) business days from the invoice’s sending date. Failing which the invoice shall be considered accepted. Such a notice is considered received three (3) business days after its sending date.
6. Performance Deadlines
6.1. If the Seller undertakes to fulfil its obligations by a particular date or within a particular period of time (hereinafter the “Deadline”), the Seller shall make every effort that can be reasonably expected of it to meet the Deadline or to minimise any delays. Deadlines are only binding if the Contract expressly stipulates that they are binding or are essential prerequisites of the Contract.
6.2. If the Seller is prevented from complying with the Deadline due to circumstances beyond its control, the Seller may extend the Deadline with reasonable prior written notice to the Customer by an appropriate period that is at least equal to the duration of the circumstances that occurred. These circumstances can be, among others, any social conflict, violence, riots, acts of terrorism, assaults, natural or climatic phenomena, war or state of war that jeopardizes the Seller’s performance of its obligations. Any similar circumstance which is invoked by one of the Seller’s suppliers or subcontractors against the Seller is not valid. The Customer must meet its own deadlines.
7. Intellectual Property Rights
7.1. For the purpose of these Terms and Conditions, the term “Intellectual Property Rights” means all intellectual property rights, including without limitation patent rights, utility models, trade and service marks, trade names, domain names, registered designs, applications and rights to apply for any of the foregoing, copyright, moral rights, semi-conductor topography rights, rights in invention, discoveries and improvements, rights in trade secrets and confidential information and processes and know-how, in all cases whether or not registered or registrable and including registrations and applications for registration of any of these and rights to apply for the same and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these anywhere in the world for the full term thereof and including all available renewals and extensions; “Materials” means collectively, literary works, other works of authorship, documented specifications, designs, analyses, processes, methodologies, concepts, inventions, know-how, programs, documentation, reports, drawings, databases, spreadsheets, software, machine-readable text and files, financial models and work product whether tangible or intangible; and “Developed Materials” means any Material, or any modifications, enhancements or derivative works thereof, developed by or on behalf of the Seller for the Customer in connection with or as part of the Services or Works.
7.2. All Intellectual Property Rights in the Developed Materials shall remain entirely and exclusively the property of the Seller. The Seller hereby grants to the Customer with full title guarantee, a non-exclusive, irrevocable, perpetual, non-terminable, worldwide, paid-up, royalty-free, transferable, license to access, use, execute, reproduce, display, and integrate the Developed Materials for any purpose.
7.3. The Seller shall, if so requested, at any time, execute such documents and perform such actions as may be required fully and effectively to provide to the Customer the right referred to in article 7.2 and the cost of such shall be borne by the Seller.
7.4. The Seller warrants and undertakes that in performing the Services including preparing and providing the Developed Materials: (i) it has not infringed and shall not infringe any Intellectual Property Rights; (ii) it has not copied and shall not copy wholly or substantially the work of any third party; and (iii) that all moral rights in such Developed Materials have been and shall be waived by the relevant author or owner of such rights. The Seller shall indemnify and keep indemnified the Customer against any and all losses, claims, demands, actions, proceedings, damages and other payments, costs, expenses and other liabilities of any kind from time to time suffered or incurred by the Customer arising from or in relation to any breach by the Seller of the warranty and undertaking contained in this article 7.4.
8. Performance of the Contract
8.1. The Customer guarantees the correctness and completeness of any information, documents, and/or plans that it has provided to the Seller, and exempts the Seller from inspecting or verifying them unless such inspection or verification is explicitly foreseen in the Contract. The Customer shall indemnify the Seller against any damage arising from the use of the information, documents and/or a plan that it has provided to the Seller and shall guarantee the Seller in any third party claims arising therefrom.
8.2. The Seller undertakes to execute and/or provide the Works and/or Services in accordance with the rules of practice and standards in force. The Seller guarantees the correctness and completeness of any information contained in any Works and/or Services. The Seller shall indemnify the Customer against any damage arising from the use of the Developed Materials and shall guarantee the Customer in any third party claims arising therefrom. The Seller is not under a duty to advise.
8.3. The Seller gives the following warranties and undertakings:
1) It has full capacity and authority to enter into the Contract;
2) It has and will maintain all necessary licences, consents and permissions necessary for the performance of its obligations under this Contract;
3) the Services will be supplied and supported by appropriately qualified and trained personnel acting with due skill, care, diligence and in a timely manner and efficient manner;
4) the Services shall be performed in compliance with all applicable laws and regulations; and
5) It shall perform the Services in compliance with this Contract.
9. Safety - Environment
9.1. Subject to the Seller obtaining and maintaining all necessary licences, consents and permissions necessary for the performance of its obligations under this Contract, the Customer must prepare for and facilitate the performance of the Contract and must obtain all the permits and authorizations required. The Seller shall, upon reasonable request, provide any necessary assistance in this regard. The Seller shall comply with all reasonable standards of safety and comply with the Customer’s health and safety procedures from time to time in force at its premises where the Services are provided.
9.2. The Customer is solely liable for any damage caused to the personnel and materials of the Seller at its premises as well as to its own personnel and materials at its premises in the event such damage is directly caused by the Customer’s failure to ensure that its personnel observe the Customer’s health and safety procedures. It shall indemnify the Seller for any consequences arising therefrom.
10. Reception - Acceptance
10.1. The Seller shall deliver the Works and/or Services at such place, date, and time communicated by the Customer.
10.2. Under penalty of forfeiting its rights of recourse, the Customer must notify the Seller of any visible defects no later than, with respect to the Works and the Services, the thirtieth (30th) calendar day after the completion and delivery of the Works and/or Services. From these moments on, the Seller will no longer be liable for visible defects, and only any eventual guarantee against any hidden defects shall be valid, subject to the conditions and limitations mentioned in article 11 below.
10.3. If a visible defect attributable to the Seller is established, the Seller shall repair or replace the Goods and/or Works and/or Services free of charge within thirty (30) days of being notified of the defect or credit the invoiced price, depending on the circumstances, with the exclusion of any payment of damages.
11. Quality - Hidden Defects
11.1 Without prejudice to the guarantee for hidden defects subject to the conditions and limitations stated hereafter, the Seller is not bound by any guarantee whatsoever.
11.2 The Seller guarantees the Customer against hidden defects in the Developed Materials delivered and in the Works and/or Services performed. The guarantee shall expire twelve (12) months after the date of delivery of the Developed Materials and/or completion and delivery of the Works and/or Services. Any claim by the Customer under this guarantee must be submitted to the Seller by registered letter or other mutually agreed means without undue delay and in any event no later than seven (7) calendar days after the Customer has noticed the hidden defect.
11.3 The Seller shall not be liable for hidden defects in the event of inadequate, abnormal, or incorrect use of the installation, or if -after the Seller’s completion and delivery of its performance- the Customer or third parties have modified, interfered with, or intervened in the installation.
11.4 The Seller’s liability for hidden defects shall be strictly limited to the rectification, repair or replacement of the Developed Materials and/or Works and/or Services free of charge or the credit of the invoiced price, depending on the circumstances, without prejudice to article 13, save that where the Works and/or Services are, in the reasonable opinion of the Customer, beyond rectification, repair or replacement, the Customer shall be entitled to claim repayment of fees for the Work or Services.
12. Proprietary right - Risks - Transport
12.1 Subject to article 7, delivered and executed Works and/or Services shall remain the property of the Seller until all undisputed payments have been made in full.
12.2 Risks of the Goods deterioration or loss due to reasons not attributable to the Sellers shall pass to the Customer as soon as the Goods have been delivered to the Customer. Unless otherwise stipulated, transport of the Goods shall be carried out at the Seller’s risks, responsibility, and costs.
12.3 The risks relating to the Works and/or Services shall pass to the Customer upon acceptance of the Works and/or Services by the Customer in accordance with article 10.
13.1 If the Seller commits a breach of these Terms and Conditions, its liability shall be limited to the price of the Works and/or Services under the Contract.
13.2 In any event, each party is never liable for any indirect damage such as but not limited to the loss of profit, interruption of business activities, or overheads increase, or third parties’ goods.
13.3 Nothing in this Contract seeks to limit or exclude the liability of the Seller or the Customer in respect of: (a) death or personal injury; (b) fraud or fraudulent misrepresentation; (c) in relation to the Seller’s liability under article 7.6 and 14.6; and (d) any liability which cannot be excluded or limited by law.
13.4 Information communicated in the form of catalogues, brochures, graphics, illustrations, or similar publications are purely descriptive and do not bind the Seller. For the avoidance of doubt, this article 13.4 shall not apply to any analysis report produced by the Seller for the Customer.
14.1 For the purpose of these Terms and Conditions, “Confidential Information” means all data, trade secrets, business information and other information of any kind whatsoever that a party discloses, in writing, orally, electronically, visually or in any other form or medium, to the other party or to which the receiving party obtains access and that relates to the disclosing party or, in the case of disclosures to the Seller, that relates to the Customer or its personnel, customer, third-party vendors or licensors; and “Customer Data” means any data or information and associated records, in any form or medium, (i) of the Customer or its affiliates, or their respective suppliers, customer or other business partners that is provided to or obtained by the Seller in the performance of its obligations under this Contract, or (ii) that is created, generated, collected or processed in connection with the Services, together with all modifications and derivatives of any of the foregoing. For the avoidance of doubt, Customer Data and information contained in Goods, Works and Services provided by the Customer are Confidential Information belonging to the Customer.
14.2 All Confidential Information exchanged between the Seller and the Customer before, during or after the performance of the Contract are strictly confidential and shall be treated as such by the Customer/Seller. More specifically, the Customer/Seller shall use this confidential information solely for the purpose for which it has been communicated and shall never disclose it to third parties., other than on a “need to know basis” and then only (i) to other affiliates of the Customer and the Seller, (ii) to the receiving party’s personnel, but only if all such persons are bound by written confidentiality agreements with terms no less restrictive than this article 14, or (iii) as required by applicable law or as otherwise permitted by the Contract. The receiving party shall be fully responsible for the acts and omissions of any person or entity to which it discloses the Confidential Information. Upon expiration or any termination of this Contract, each party shall return or destroy, as the other party may direct, all documentation in any medium that contains, refers to, or relates to the other party’s Confidential Information, and retain no copies thereof. Notwithstanding the foregoing, the foregoing is not intended to limit or affect the rights or licenses granted to the Customer elsewhere in this Contract.
14.3 The obligations of confidentiality in article 14.2 shall not apply to any particular information which the receiving party can demonstrate: (i) is, at the time of disclosure to it, in the public domain; (ii) after disclosure to it, is published or otherwise becomes part of the public domain through no fault of the receiving party; (iii) is in the possession of the receiving party at the time of disclosure to it; (iv) is received from a third party having a lawful right to disclose such information; or (v) is independently developed by the receiving party without reference or access to Confidential Information of the disclosing party.
14.4 Each party shall immediately notify the other party of any possession, use, knowledge, disclosure or loss of such other party’s Confidential Information in contravention of this Contract.
14.5 The Seller shall establish and maintain adequate safeguards against the unauthorized access, destruction, loss or alteration of Customer Data in the possession of the Seller that are no less rigorous than (i) those maintained by the Customer with respect to such data, and (ii) those used by the Seller with respect to its own data. The Seller shall not, and shall ensure that its personnel shall not, attempt to access Customer Data or other Confidential Information of the Customer other than that specifically required for the performance of the Services by such personnel.
14.6 The Seller shall indemnify the Customer against any and all losses, claims, demands, actions, proceedings, damages and other payments, costs, expenses and other liabilities of any kind from time to time suffered or incurred by the Customer arising from or in relation to any breach by the Seller of this article 14.
15.1 This Contract shall commence as specified in the section entitled “Ordering Process and Billing” of the Proposal and it shall remain in effect until the Services and/or Works have been delivered to the satisfaction of the Customer, or unless terminated earlier in accordance with the terms of the Contract. Either party may terminate this Contract by written notice with immediate effect: (a) if the other party commits a material breach which is incapable of remedy or has not been remedied within thirty (30) calendar days of notice requiring remedy; or (b) if an Insolvency Event occurs in respect of the other party. For the purpose of this article 15, “Insolvency Event” means where a party ceases or threatens to cease to carry on business, becomes insolvent, has an administrator, receiver, administrative receiver or manager appointed over the whole or any part of its assets, enters into any composition with creditors generally, or has an order made or resolution passed for it to be wound up or undergoes any similar or equivalent process in any jurisdiction.
16.1 The nullity or unenforceability of any provision of these Terms and Conditions or of the Contract shall in no way affect the validity or enforceability of the other provisions and shall never render the legal relationship null or void. The parties agree to make every best effort to replace the invalid or unenforceable clause with a valid clause that has the same or largely the same economic impact as the invalid or unenforceable one.
17. Applicable Law - Disputes
17.1 This Contract is governed by the laws of Belgium. Any disputes are to be submitted to the exclusive jurisdiction of the court of Brussels, Belgium.
18.1 A failure to exercise or delay in exercising a right or remedy provided by the Contract or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. No single or partial exercise of a right or remedy provided by this Contract or by law prevents further exercise of the right or remedy or the exercise of another right or remedy.
19.1 Neither party may assign the rights or otherwise transfer any obligation or benefit under this Agreement without the prior written consent of the other.
20. Third-party Rights
20.1 A person who is not a party to this Agreement has no right to enforce any term of this Contract under the Contracts (Rights of Third Parties) or otherwise.