Article 1 – CONTRACT CONCLUSION
Each agreement is only concluded after valid explicit and written acceptance by DatAction of an order. Client’s use and/or retention of any merchandise supplied by DatAction shall be deemed valid acceptance of these Terms. These terms and conditions apply to the exclusion of the general terms and conditions of the client, and apply to all offers and agreements, unless expressly agreed otherwise in writing.
Article 2 – PRICES
Quotations are always without obligation, unless expressly stated otherwise, in which case they are valid for a maximum of three months. If the delivery does not take place when the agreement is concluded, the indicated price will be changed by DatAction when one or more constituent cost elements change. If the price increases by 20% or more, the client can terminate the contract within one week after the announcement of the new price, without any right to compensation, whereby a registered letter for equipment or software price must be delivered. Amounts already paid for this will be refunded. The prices are net with the exclusion of all charges, VAT and other surcharges. Packaging costs are included in the price, unless otherwise agreed upon or used. Unless otherwise agreed, shipping costs are not included in the price. Rush order costs are always borne by the client.
Article 3 – DELIVERY AND PAYMENT
Furnishing and adjustment of the place(s) where the equipment is set up shall be the responsibility of the client, who shall be liable for all damage to equipment and/or software resulting from untimely, incorrect or faulty installation thereof. Delivery dates are approximate. DatAction is not liable for any damage that the client would incur due to the inability to make the delivery on time. Any complaint about the delivery, the condition, operation, and conformity of the equipment and/or software must be notified to DatAction within 10 days after delivery, on pain of lapse. Unless otherwise agreed, the client must pay within 30 days after the invoice date, without any deduction or set-off. If this period is exceeded, interest is automatically payable at a rate of 3% above the promissory note discount rate.
In the event of failure to pay, DatAction may cancel or suspend current agreements after demand for payment until payment has been made, without prejudice to DatAction’s right to compensation. All judicial and extrajudicial collection costs are for the account of the client and are due by the mere failure to pass the payment deadline.
The (extra) judicial collection costs are fixed at 15% of the amount due, with a minimum of €500. All additional services, at an hourly rate at the request of the client by DatAction in relation to the installation, will be invoiced immediately to the client. Prior to the termination of these services, and once their equivalent has reached €500, DatAction may invoice by way of advance payment.
Article 4 – WARRANTY
The warranty period covers three months from delivery. The client brings the products to DatAction’s maintenance service at his expense.
- unless otherwise provided, the warranty covers defects in material and workmanship and is limited to repair or replacement of defective parts at DatAction’s option
- in case parts are delivered for further assembly, the client will only market the products into which they are integrated after the necessary tests and will indemnify DatAction against any claim for damages brought by third parties as a result of the non-conforming operation of the products delivered by him, even if it should be established that this non-(conforming) operation originates in the parts delivered to him by DatAction
- the replaced parts become the property of DatAction
- no warranty is provided on consumables (batteries, etc.).
- Software developed by DatAction will operate as described in the technical documentation. DatAction cannot guarantee the error-free operation of the software. The warranty provided by the main supplier applies to software not developed by DatAction.
Limitations are under no circumstances covered, interventions resulting from any cause unrelated to the delivered goods, such as:
- misuse or abnormal use or operation; negligence of the client or his employees; fire; defects in electrical installation and wiring; falling or insertion of foreign objects; accidents; vandalism; use in dusty atmosphere; static electricity; maladaptive environment; non-compliance by the client with local specifications; unlawful calls;
- any repair or maintenance, any adaptation or modification by persons not previously authorized in writing by DatAction. Moreover, if these were carried out by the client or his appointees themselves, the client shall bear all risks for any damage resulting therefrom;
- force majeure situation described in Article 6;
- irregular operation of equipment, to which the delivered products were connected;
- damage or defect caused by software or interfaces not provided by DatAction;
- damage to the paint, scratches on the device or its parts,
- limitations set by the manufacturer or main supplier of DatAction,
- all returns to our address without our prior written consent.
In all such cases, all possible intervention costs will be billed at the rates in effect at DatAction at that time. The client alone is responsible for the suitability of the equipment and/or software to obtain the results intended by him. The client also declares to have been fully informed by DatAction about characteristics, operation, possibilities of use, and limitations of the equipment and/or software, as well as about the problems of adaptation, installation/integration, and expansion that may arise. The provisions above reflect DatAction’s exclusive warranty commitments. Excluded is compensation for any damage caused by the use of the system. In additional orders, any compensation is always limited to a maximum of 50% of the price of the equipment and/or software.
Article 5 – RIGHT OF OWNERSHIP
The delivered equipment and parts thereof shall remain the seller’s property as long as the buyer has not paid the principal amount in full. Without the seller’s cooperation, the buyer shall not be authorized to transfer ownership of the equipment or parts thereof that have not yet been paid for in full to third parties or to provide third parties with any security right in the broadest sense of the word, on penalty of immediate claimability of the sales price, and without prejudice to the seller’s rights from the aforementioned retention of title.
Article 6 – RISKS – FORCE MAJEURE
The risks associated with the equipment shall pass to the client at the time of delivery. The client shall insure the risks at his expense. The parties are not liable for the consequences of force majeure, accident, or act of a third party, disruption or interruption of the work, whatever the cause, interruption or delay of deliveries by the constructor / main supplier.
Article 7 – CONFIDENTIALITY
The software supplied by DatAction remains its property; it retains all possible rights to it. The client is granted a right to use the software, which is non-transferable and non-exclusive. The client and his appointees do not have the right to make adjustments or changes to the software. The client guarantees that the software and the information provided with it are considered trade secrets of DatAction. The client has the right to make copies of the software only to the limited extent necessary for normal, internal use of the system.
If the client fails to fulfill his obligations under this article, he shall be liable for compensation for all damages caused by this breach, fixed at a minimum amount of €25,000.
DatAction can prove the actual damages by all means of law, if it amounts to more. Beyond this, DatAction has the right to terminate the agreement without notice of default and immediately reclaim the system, including all accessories.
Article 8 – BREACH OF CONTRACT
If the client cancels all or part of his order or fails to take delivery of all or part of the goods or services, DatAction has the right to demand the dissolution of the contract or its fulfillment. The damage suffered by DatAction shall amount to at least 50% of the value of the order or the unfulfilled part thereof, on the understanding that DatAction may prove the actual damage by all means of law, if it amounts to more. DatAction may terminate the agreement without notice of default in the event that the client has applied for a judicial composition or moratorium (suspension of payments), or is in a state of bankruptcy or insolvency.
Article 9 – LIABILITY
The liability which DatAction may incur arises from an obligation of best efforts and is determined as follows:
- DatAction will be obliged to repair the damage to the delivered product caused by it (personnel) and proven by the client to be sound, however, up to a maximum of the value of the product in question.
- Is excluded: the compensation by DatAction for all direct and indirect damages; financial and commercial losses; loss of profits, increase of general costs disruption of planning; loss of expected profits; capital; clientele; etc.
- In no case give rise to compensation, all claims by a third party against the client.
Article 10 – GENERAL
DatAction’s failure to exercise any of its rights shall not constitute a waiver or forfeiture of such right, and shall not affect any other right of DatAction under the Agreement.
The agreement binds the parties, their successors and assignees. Without prior mutual consent, the parties are prohibited from assigning the rights and obligations arising from the agreement to third parties. This prohibition, however, does not exclude the right of debt assignment. The client declares to have taken note of these general terms and conditions and accepts all their provisions.
Article 11 – APPLICABLE LAW – COMPETENT COURT
The agreements are subject to Belgian law. The client undertakes on pain of forfeiture to prove complaints relating to the operation of the equipment and/or software to DatAction in writing, prior to any legal action. DatAction shall have 1 (one) month to verify the merits of the complaints. Any dispute related to this agreement falls under the exclusive jurisdiction of the Courts of Dendermonde.