GENERAL TERMS AND CONDITIONS
1. Applicability of the General Terms and Conditions
Upzio is a trademark of Fixsus. These General Terms and Conditions apply to all offers made by and agreements concluded with BVBA Fixsus, having its registered place of business at Riemesteenweg 107, 9940 Evergem, Belgium, and registered in the Crossroads Bank of Enterprises under number 0810.913.961 (hereinafter referred to as “Fixsus”), notwithstanding any provisions to the contrary stated on any of the client’s documents. The placing of an order by the client will be construed as the client’s acceptance of the Fixsus General Terms and Conditions. Any person placing an order is deemed to be the customer and will stand surety for the execution of the agreement by the client.
Fixsus reserves the right at all times to amend or make additions to these General Terms and Conditions. Fixsus will inform you of the amended version upon sending you the next invoice that is subject to the new terms and conditions. If you fail to contest the amendment or addition in writing within 14 days following the relevant notification you will be deemed to be in agreement with this amendment or addition. Amendments or additions to special or deviating agreements between the Parties will only be enforced if agreed to in writing by both Parties.
2. Fixsus’ performance and retention of property
Unless Fixsus and the client deviate from this explicitly and in writing, Fixsus will offer its goods at the prices set down in the quotation and provide its accompanying services on a cost-plus basis on the basis of the valid daily and hourly rates. The delivery time stated in the quotation and any estimates of the price for work performed by Fixsus are only indicative and provided for informative purposes. They are therefore not binding on Fixsus.
The goods delivered by Fixsus will remain the property of Fixsus until payment of the invoice has been made in full. The delivery of the hardware and the user license for software (if applicable) will only be provided to the client under the suspensive condition of payment in full by the client of the prices as stated in the agreement, excluding VAT. However, all risks shall be transferred to the client upon delivery of the goods. Until the moment at which the invoice has been settled in full, goods can be taken back by Fixsus following its sending of a registered letter, without any right to compensation for damages on the part of the client.
3. The client’s obligations
The client will provide Fixsus with the necessary and complete information, and additionally all cooperation and consultation, needed to enable Fixsus to properly fulfil its obligations. The client will follow all Fixsus’ useful instructions and recommendations. If the client has ordered Fixsus to perform certain tasks in relation to third-party software or hardware, the client will guarantee that he/she/it has the required permission and/or user rights in his/her/its possession to enable Fixsus to perform such tasks.
4. Payment terms
All prices communicated by Fixsus are in EURO and excluding VAT. All invoices are payable on the due date stated on the invoice or, if such a date is lacking, within 30 days after the invoice date by bank transfer to Fixsus’ bank account. Each payment will be charged to the oldest due invoice, and first on the due interest and costs. Non-compliance with the payment terms will result in the expiration of all discounts granted. Fixsus reserves the right, however, to demand payment from the client prior to the delivery of the ordered products by sending an invoice. If the client does not pay the invoice in due time, he/she/it will receive a payment reminder 1 (one) day after the due date. If payment has not been made within 8 (eight) days after the due date, the client will receive a second payment reminder. If no full payment has been received within 15 (fifteen) days after the due date, the client will receive a third warning demanding payment of the invoice amount, to which administrative fees will be added. If the client fails to make payment within 5 (five) days following receipt of the third payment reminder issued by Fixsus, the client will owe Fixsus late payment interest amounting to 12% per year, and a lump-sum indemnity amounting to 10% of the invoice amount, to which a minimum amount of EUR 125 applies, as from the date of notice of default until the date on which full payment is made. The client will, in addition to this, bear the costs of collection, reminders and legal proceedings. Fixsus also has the right to suspend the further fulfilment of its obligations until the client has paid the invoices that have fallen due. Every delay in payment by the customer will make all sums due and payable at once.
All obligations on the part of Fixsus are no more than best efforts obligations. The client accepts that he/she/it is deemed to have accepted the goods supplied by Fixsus as soon as these have been delivered to the client’s delivery address. If defects are not reported in due time in accordance with Article 6, these will be deemed to have been accepted. The hardware purchased from Fixsus is subject to a one-year warranty period as from the date of delivery. Warranty can only be invoked if the defect is reported to Fixsus in accordance with Article 6 and cannot be attributed to an action of the client. The client shall send the defective appliance to Fixsus at his/her/its own expense. Following receipt of the defective appliance Fixsus will, upon determining that the appliance is indeed defective due to a cause that cannot be attributed to the client, send the client a new appliance at its own expense. Warranties issued by Fixsus will in all cases expire in the event that the delivered goods are not maintained or used properly. If the client purchases third-party products, software or services via Fixsus, Fixsus will not provide the client with any guarantees other than those effectively provided by the relevant third party. Such products and any accompanying services will at all times be subject to the third-party supplier’s terms and conditions.
6. Complaints – Contestation of invoices
Every contestation must be submitted to Fixsus, by registered letter and duly justified, within a term of 8 (eight) calendar days as from the delivery for goods (and accompanying services) and as from the invoice date for invoices. If no contestation has been submitted in due time the delivered goods or invoices will be deemed to have been definitively accepted and full payment will be owed. The notice of default should contain a description of the shortcoming in as much detail as possible to enable Fixsus to respond adequately. Every contestation issued by the client without serious justification will not give the client the right to postpone payment of the invoices that have fallen due. If the client contests the invoice in due time, he/she/it will be held to cooperate in full with the investigation conducted by Fixsus in relation to the complaint. If the complaint is not complete, issued on time or justified, Fixsus will have the right to remedy this complaint as it deems fit. Fixsus has the right to charge the cost of investigating the complaint on to the client if it is found that the complaint cannot be attributed to Fixsus.
The total liability of Fixsus will, regardless of the seriousness of the error and regardless of the cause, form or subject of the claim on account of which the liability of Fixsus is invoked, not in any case exceed either the cost of replacing the defective product with a fully functioning product or the price paid to Fixsus by the client for the hardware that gave rise to the instance of damage. These options are capped at EUR 5,000 (five thousand euros) and at the discretion of Fixsus. Fixsus can never be held liable for any consequential damage, such as the loss of anticipated income, a decrease in turnover, increased operational costs, loss of clientèle, reputational damage or damage to machines or loss of data, that could be suffered by the client or third parties arising from any error or omission on the part of Fixsus or its employee(s). Any liability on the part of Fixsus will arise, in any case, only if (i) the client issues Fixsus a written notice of default in accordance with Article 6, (ii) the client grants Fixsus a reasonable term to remedy the shortcomings, (iii) Fixsus remains in default even after the term for remedying the shortcomings term has elapsed and (iv) the client takes measures to mitigate the damage to the greatest extent possible. Fixsus will never be held liable for errors that can be attributed to insufficient or incorrect input by the client, a failure on the part of the client to adhere to Fixsus’ useful recommendations, modifications made by the client or third parties, faulty or non-permitted use or disruptions in the hardware and/or software. Fixsus will not accept any liability whatsoever for products (or defects in the products) of and/or services provided by third parties. All the goods belonging to the client and located on the Fixsus premises will be stored at the risk of the client.
8. Intellectual property rights
The client acknowledges expressly (1) that all intellectual property rights associated with the products developed and/or supplied by Fixsus are the property of Fixsus or a third party with whom Fixsus has concluded an agreement for this purpose and (2) that the client will acquire no control over these rights, other than set out below. The client shall undertake to honour the intellectual property rights of Fixsus at all times. Fixsus will only supply and/or develop hardware that, insofar as it is aware, does not constitute an infringement of the intellectual property rights of third parties. If a third party alleges that a product supplied by Fixsus constitutes an infringement of its rights, Fixsus will have the right to decide, at its own discretion, to (i) refute the allegation, (ii) adapt the product or (iii) take the product back provided that the client pays back a portion of the price within 30 days after Fixsus has effectively taken back the hardware from the client.
9. Termination of the collaboration
If the client cancels his/her/its order, the client will pay Fixsus for all costs incurred by Fixsus arising from this cancellation, plus compensation for damage for lost income. This compensation is set at 50% of the agreed sales price. Advance payments will, however, remain the property of Fixsus.Additionally, Fixsus reserves the right to demand a higher compensation for damage if it can prove that the damage actually incurred exceeds the fixed compensation provided for above.
10. Processing personal data
Fixsus processes personal data provided by the client’s contact persons with a view to entering into contact with the client in relation to the purchase of goods. This processing is needed for the execution of our agreement with the client. The contact person is entitled to consult their personal data and to correct it, and additionally to object to the processing of this data if his/her rights take precedence. To ensure that the personal data made available by the client enjoys the highest possible degree of protection, Fixsus will implement a policy and security technology in accordance with the legislation currently in force.
The client agrees to being included in Fixsus’ portfolio of references.
12. Force majeure
Situations of force majeure such as strikes, public unrest, administrative measures, illness or serious family circumstances and other unexpected occurrences over which Fixsus is unable to exercise any control will release Fixsus, for the duration of the inconvenience and its scope, from its obligations, without entitling the client to any reduction in price for compensation for loss or damage.
If any provision of these General Terms and Conditions is void or unenforceable, the other provisions will remain in full force and Fixsus and the client will consult with each other to replace the void or unenforceable provision with a new provision that approaches the purpose and meaning of the original provision as closely as possible.
14. Applicable law – competent court
Every dispute with regard to the conclusion, validity, execution and/or termination of the collaboration will be settled by the competent District Court in Ghent (Ghent division) and will be governed by Belgian law (with the exception of the IPR rules).