Article 1: General
These terms and conditions apply to any offer, quote and agreement between PegusApps NV, hereinafter referred to as “User” and the Other Party to which the User has declared these terms and conditions insofar as these terms have not been deviated from expressly and in writing by the parties. The present terms and conditions also apply to agreements with the User for the execution for which third parties need to be involved. These terms and conditions have also been written for the User and its employees. The applicability of any purchasing or other terms of the Other Party is explicitly rejected. If one or more provisions in these terms and conditions are proven to be invalid or void, entirely or partly, the rest of these terms and conditions will remain fully applicable. The User and the Other Party will then consult with the purpose of agreeing onto new provisions in order to replace the null or void provisions, with the aim of maintaining as much of the purpose and scope of the original provisions as possible. If there is any uncertainty about the explanation of one or more provisions of these terms and conditions, the explanation should be given ‘to the mind’ of these provisions. If there is a situation between both parties that is not governed by these terms and conditions, this situation must be assessed in accordance with the spirit of these terms and conditions. If the User does not always require strict compliance with these terms, this does not mean that its provisions do not apply or that the User in any way loses the right the demand the punctual compliance with the stipulations of these terms.
Article 2: Quotes and offers
All quotes and offers are non-binding, unless the offer has been termed for acceptance. A quote or offer will expire when the product on which the quote or offer relates, is no longer available in the meantime. The User cannot be held to his quotes or offers if the Other Party can reasonably understand that the quotes or offers, or any part therefor, contain a manifest error or description. The prices quoted in a quote or offer do not include VAT or other costs charged by the government, or any costs incurred under the agreement, including travel, residence, shipping and handling costs, unless otherwise stated. If the acceptance differs from the quote or the offer, the User is not bound to it. The agreement will not be created in accordance with this deviating acceptance unless the User indicates otherwise. A composite price indication does not require the User to perform a part of the contract against a corresponding part of the specified price. Offers and quotations do not automatically apply to future orders.
Article 3: Term; delivery terms, execution and modification of agreement
The agreement between the User and the Other Party is entered into for an indefinite period of time, unless otherwise agreed upon in the nature of the agreement, or in case both parties agree otherwise, explicitly and in writing. If a term has been agreed or given for the completion of certain activities or for the supply of certain items, it is never a definite term. In case of exceeding a time limit, the Other Party must put the User in default, in writing. The User must be given a reasonable amount of time to still implement the agreement. If the User requires data from the Other Party for the execution of the agreement, the execution period will not apply sooner than after the Other Party has made this data available to the user, correctly and entirely. The User’s company carries out the delivery. The Other Party is obliged to take delivery of the goods at the time they are made available, unless there are clear visible defects on the product and stated upon delivery. If the Other Party refuses the delivery without reason, or is negligent in providing information or instructions necessary for the delivery, the User is entitled to store the goods at the expense and risk of the other Party.
The User has the right to let third parties carry out some work activities. The User is entitled to carry out the agreement in different phases, and to invoice the separately carried out phases. If the agreement is executed in phases, the User may suspend the execution of the components that belong to a subsequent phase until the Other party has approved the results of the preceding phase in writing. If during the execution of the agreement it appears that it is necessary to amend or supplement the agreement in a proper manner, the parties will agree on a timely and mutual agreement. If the nature, size or content of the agreement, whether or not at the request or designation of the Other Party, competent authorities, etc., is changed and the agreement is thereby amended qualitatively and/or quantitatively, this may also have consequences for what was originally agreed upon. As a result, the originally agreed amount can be increased or decreased. The User will notify the price as much as possible in advance. As a result of an amendment to the agreement, the original date of implementation may be amended. The Other Party accepts the possibility of modification of the agreement, including the change in price and the term of execution. If the agreement in jointly amended, including an addition, the user is entitled to implement it after an agreement has been reached between the User-authorised Person and the Other Party in regard to price and term of execution, including the time to be determined. The failure or non-execution of the amended agreement does not imply non-performance on the User’s behalf, nor does it give the Other Party legal ground to terminate the agreement, unless both parties explicitly agree on this in writing. Without being in default, the User may refuse a request for modification of the agreement if it could be of a qualitative/quantitative nature, for example for the work or business to be carried out in that context. If the Other Party would be in default regarding what he is legally complied to do for the User, the Other Party will be liable for any damage (including costs) incurred by the User, both directly and indirectly.
However, if the User and the Other Party agree on a fixed price, the User is nevertheless entitled to increase the price annually without the Other Party being entitled to terminate the agreement for that reason, if the increase in the price derives from a power of obligation under the law or regulations, or if it is due to an increase in the price of commodities, wages etc., or for other reasons that were reasonably unforeseeable when entering in to the agreement. If the price increase other than as a result of a change in the agreement exceeds ten per cent and takes place within three months after the conclusion of the agreement, solely the Other Party is entitled to appeal to Title 5, Section 3, Book 6 of the Belgian Civil Code, and will be entitled to dissolve the agreement, unless the User is still willing to carry out the agreement on the basis of the original agreement, or if the price increase has arisen from an authorisation or a restriction that applies to the User under laws and regulations, or in case the delivery will take place more than three months after the sale.
Article 4: Force majeure
The User is not obliged to fulfil any obligation to the Other Party if they are hindered because of a circumstance that is not due to debt, laws, a legal act or traffic. These terms and conditions stipulate force majeure to be the following, in addition to what is stipulated by law and jurisprudence: all outbreaks, provided or unforeseen, which the User cannot influence but which disable the User to fulfil their obligations. This includes unannounced strikes in the place of business of the User or third parties. During the period of force majeure, the User may suspend their obligations under this agreement. If this period lasts longer than two months, each party is entitled to dissolve the agreement, without obligation to compensate the Other Party for damages. In case the User, at the time of the force majeure, has partially or entirely fulfilled obligations of the agreement, and if independent value is attributed to these fulfilled or to-be-fulfilled parts, the User is entitled to invoice fulfilled or to-be-fulfilled parts separately. The Other Party is required to comply with this invoice as if there would be a separate agreement.
Article 5: Payment and collection fees
Payment must be made within 14 days of the invoice date, in a manner specified by the User in the currency in which it is invoiced, unless otherwise specified by the User. The User is entitled to invoice periodically.
If the Other Party fails in the timely payment of an invoice, the Other Party will be considered to be in default. The Other Party is then liable to an interest of one per cent per month unless the legal interest rate is higher, in which case the statutory interest is due. The interest on the payable amount will be calculated from the moment when the Other Party is in default, until the full amount due is paid. The User is entitled to primarily use the payments made by the Other Party to deduct the costs, then to deduct the accrued interest, then finally to deduct the principal and current interest. The User may, without negligence, refuse an offer for payment if the Other Party designates another sequence for the payment. The User may refuse full repayment of the principal sum if it does not include the accrued and current interests as well as the collection fees. The Other Party is never entitled to settle the debt owed to the User. Objections to the amount of an invoice do not suspend the payment obligation. The Other Party is also not entitled to suspend payment of an invoice for any other reason. If the Other Party is in default or neglects of (due) fulfilment of their obligations, all reasonable costs for obtaining compensation will be paid out of court by the Other Party. The extrajudicial costs are calculated on the basics of what is commonly used in Belgian debt collection practice. However, if the User has incurred higher costs than were legally necessary, the actual costs incurred for reimbursement will be eligible. Any legal and administrative costs incurred will also be recovered from the Other Party. The Other Party is also subject to interest on the due collection charges.
Article 6: Retention of title
The Products delivered by the User under the agreement will remain property of the User until the Other Party has fulfilled all the obligations of the User’s agreement(s) being the payment of the (partial) projects. Products delivered by the User, which are subject to paragraph 1, may not be resold and may never be used as a means of payment. The Other Party is not authorised to pledge or otherwise object to matters under this title. The Other Party must always do anything that may reasonably be expected of them in order to secure the proprietary rights of the User.
If third parties attach confiscation to the goods delivered under title retention or to settle or apply rights thereon, the Other Party is obliged to immediately notify the User of this;
The Other Party undertakes to insure the goods delivered under title retention and to insure against fire, explosion and water damage as well as theft, and to provide the policy of this insurance at the first request to the User for inspection. In case of any insurance pay out, the User is entitled to this pay out. The Other Party pledges to assist the User by cooperating in all necessary or desirable ways.
In the event that the User is entitled to exercise proprietary rights referred to in this article, the Other Party shall grant unconditional and non-revocable permission to the User and third parties in advance, to enter all the locations the User’s property is located, and to take those items back.
Article 7: Guarantees, investigations and advertisements, limitation period
The products to be delivered by the User comply with the usual requirements and standards that can be reasonably set at the time of delivery, and for which they are intended for normal use in Belgium. The warranty mentioned in this article applies to items intended for use within Belgium. When used outside of Belgium, the Other Party must verify whether its use is suitable for use at this location, and comply with the conditions imposed on it. In that case, the User may create another warranty and other terms in respect to the business or the work to be carried out. The warranty referred to in paragraph 1 of this article shall apply for a period of one month after delivery, unless otherwise agreed on by the parties. If the warranty provided by the User is a third-party item, the warranty is limited to the one provided by the manufacturer or the item unless otherwise stated.
Any form of warranty will expire if a defect arises due to the improper use, or use after the expiration date, improper storage or maintenance by the Other Party and/or third parties when, without the written permission of the User, the Other Party or third parties have made or attempted to make changes to the item, to which other items were confirmed, which should not have been confirmed, or if they were processed (or processed in a manner) that was different from the prescribed manner. The Other Party is also not entitled to warranty if the defect is caused by or resulting from circumstances the User cannot influence, such as weather conditions (such as, for example, but not limited to extreme rainfall or temperatures) etc. The Other Party is obliged to investigate the delivered, immediately when the business is made available to him or the relevant work has been carried out. In addition, the Other Party should investigate whether the quality and / or quantity of the delivered is in accordance with what has been agreed and meets the requirements agreed upon by the parties in this regard. Any visible defects must be reported to User in writing within seven days of delivery. Any non-visible defects must be reported to the User in writing at the latest within fourteen days after being discovered. The report should contain as detailed a description of the defect as possible so that User is able to respond adequately. The Other Party must provide User with the opportunity to investigate a complaint.
If the Other Party advertises on time, this does not endorse its payment obligation. In that case, the Other Party will also be held to reduce and pay for the other items ordered.
If a defect is reported later, the Other Party will not be entitled to repair, replacement or compensation. If it is established that a case is inaccurate and timely recurring, the User will notify the defective case within a reasonable period of time after return receipt or, if return is not reasonably possible, written notice regarding the defect by the Other Party, at the User’s choice, replace or take care of recovery or compensate for the other party. In case of replacement, the Other Party is required to return the Replacement Item to the User and to grant ownership to User, unless User indicates otherwise.
If it is found that a complaint is unfounded, then the costs will arise, including the costs incurred by the User, as a result of this, in full for the account of the Other Party.
After the warranty period expires, all costs for repair or replacement, including administration, shipping and handling costs, will be charged to the Other Party.
By way of deviation from the statutory limitation periods, the limitation period of all claims and remedies against User and the third party involved in the execution of a contract is one year.
Article 8: Liability
If the User would be liable, this liability is limited to what is governed by this provision.
The User is not liable for any damage whatsoever due to the User made assumptions because of incorrect and/or incomplete data provided by or on behalf of the Other Party.
If the User is liable for any damage, the liability of the User is limited to a maximum of twice the invoice value of the order, at least to that part of the over that is covered by liability.
The liability of the User is always limited to the amount of his insurer’s pay out, where applicable. The User is solely responsible for direct damage. The following is exclusively part of direct damage: the reasonable costs for determining the cause and extent of the damage insofar the determination relates to damage within the meaning of these terms, possible reasonable costs for the User’s failure to comply with the agreement insofar this can be attributed to the User, and reasonable costs incurred to prevent or limit damage to the extent that the Other Party demonstrates that these costs have resulted in the limitation of direct damage as provided for in these terms and conditions.
The User is never liable for indirect damage, including consequential loss, loss of profits, lost savings and damage to due company stagnation.
The liability limitations stipulated in this article do not apply if the damage is due to intentional or gross negligence of the User or its senior subordinates.
Article 9: Risk transition
The Other Party acquires the risk of loss, damage or impairment at the time the issues are transferred to the Other Party’s authorisation.
Article 10: Indemnification
The Other Party indemnifies the User for any third party claims that suffer damage in connection with the performance of the agreement and the cause of which is attributable to other than the User.
If third parties should use the User for this purpose, the Other Party is obliged to assist both outside and in law, without delay, and to do anything that may be expected of him. Should the Other Party fail to take appropriate action, the User shall be entitled to do so without notice. All costs and damages incurred by the User and third parties are integrally for the account and risk of the Other Party.
Article 11: Intellectual property
The User reserves the right and privileges they received pursuant to the Copyright Act and other intellectual property laws. The User has the right to use the knowledge acquired by the execution of an agreement for other purposes insofar no strictly confidential information of the Other Party is disclosed to third parties, unless it is explicitly stated otherwise in the tender or the agreement.
Article 12: Applicable law and disputes
All legal relationships in which the User is a party are governed exclusively by Belgian law, even if a commitment is made entirely or partly abroad, or in case the party involved in the legal relationship is a resident there. The applicability of the Vienna Sale Convention is excluded. The court in the User’s place of business is exclusively authorised to hear disputes, unless otherwise required by law. Nevertheless, the User has the right to submit the dispute to the competent court. The parties will only appeal to the court after attempting to settle a dispute by mutual agreement.
Article 13: Locality and modification of conditions
These terms have been deposited with the Chamber of Commerce.
Its latest registered version, or the version as it was at the time of establishing the legal relationship with the User is applicable.