GENERAL TERMS AND CONDITIONS
These general terms and conditions ("General Terms and Conditions") apply to Alluvion BV, a company incorporated under Belgian law with its registered offices in Ghent, Dendermondsesteenweg 39A001, Belgium, VAT BE 0666.471.360 (hereinafter "Alluvion").
1. GENERAL
1.1. These General Terms and Conditions apply to all offers (“offer”), proposals, orders, agreements and deliveries relating to the supply of goods and/or services by Alluvion to its customer (hereinafter the "Customer"). Deviations from these General Terms and Conditions are only enforceable against Alluvion if Alluvion has expressly accepted them in writing. In that case the other provisions of these General Terms and Conditions remain fully applicable. The Customer shall not derive any rights for other or future transactions from agreed deviations. The application of any General Terms and Conditions of the Customer is expressly excluded, unless otherwise agreed in written.
1.2. By placing an order, by accepting an offer, by signing or by the (start of the) execution of the agreement by Alluvion or the Customer, the Customer unconditionally and irrevocably accepts these General Terms and Conditions, which are binding.
1.3. These General Terms and Conditions are valid from 1 January 2020 and replace all previous ones.
1.4. The Customer may not transfer its agreement or any part thereof to any third party without the express written authorization of Alluvion.
2. OFFERS AND ORDERS
2.1. Offers
Each Offer is not binding and only applies to the B2B market. Unless explicitly stated otherwise, each Offer is valid for 30 calendar days after the date of the Offer and automatically expires after this period. All deadlines, references to technical data or other elements mentioned in an Offer are purely indicative and not binding for the execution of the Offer, unless otherwise agreed in writing. Alluvion is at all times entitled to correct errors in the Offer or to withdraw the Offer. Alluvion cannot be held liable for exceeding deadlines, adjusting data or elements, nor this is a valid reason for termination, dissolution or suspension of the performance of the agreement by the Customer, nor this can give rise to any price reduction or compensation. Alluvion will inform the Customer to the best of its ability about the (probable) exceeding of a deadline or adjustment of data or elements. The Offer is based on the data provided by the Customer. The Customer will be informed if it seems that data is incorrect. If additional services should be provided by Alluvion, an additional Offer will be submitted to the Customer. Alluvion reserves the right to suspend the entire execution pending an agreement on the additional services.
2.2 Orders
By placing the order or confirming the Offer, the Customer acknowledges being fully informed and understanding what is stated in the Offer. Each order placed by the Customer binds the Customer. Alluvion will only be bound by an order of the Customer if Alluvion has expressly confirmed in writing to accept it. The agreement is only concluded after acceptance of the order. In case the Customer cancels an order, the Customer owes compensation of 30% of the value of the order of the goods or services ordered, unless higher damages are proven by Alluvion.
3. DELIVERY OF GOODS AND SERVICES
3.1. The Customer accepts partial deliveries of goods and services. Partial invoices may be issued.
3.2. The signing by the Customer of the delivery note implies the delivery and acceptance of the delivered goods or services. The risk relating to goods passes to the Customer at the time of delivery. The risk relating to services shall pass to the Customer upon delivery or acceptance of the service. If the Customer does not sign the source of delivery, the risk passes to the customer from the day when Alluvion has delivered the goods or announced the execution of the services. Transfer of ownership of the goods only takes place upon full payment of the price and possible interests and damages due to late payment.
3.3. Alluvion reserves the right to execute certain technical improvements or adjustments in accordance with legal regulations on ordered goods or services during the course of delivery, as far as this does not cause any significant changes or as far as this is necessary. If during the execution of the services it seems that the Offer cannot be executed from a technical point of view, Alluvion is not obliged to carry out the services and may cancel them without any compensation.
3.4 Alluvion is entitled to use third party services for the execution of certain services, without the agreement of or notification to the Customer.
4. OBLIGATIONS OF THE CUSTOMER
4.1. The Customer timely provides Alluvion with all information and documents necessary for the execution of the order and cooperates in the execution of the order in the required way, in accordance with applicable rules and legislation. The Customer must be in possession of the necessary licences for all used own and third-party software. The Customer will always indemnify Alluvion against all possible claims by third parties relating to this software. The Customer also ensures that its hardware meets the minimum requirements indicated by Alluvion.
4.2. The Customer commits himself to give the persons, employed by Alluvion and charged with the performance of the assignment, access to all rooms, installations (hardware, software, networks, etc.) and resources, that are necessary to enable Alluvion to perform the services in the prescribed manner and this during normal working hours and in accordance with the access rules of the Customer's company. If the Customer fails to comply with these obligations, the term will be extended and the price may be adjusted.
5. PRICES, INVOICES AND PAYMENTS
5.1. All prices and other amounts are expressed in euros and exclude VAT, other taxes and duties. If these taxes and duties increase after conclusion of the agreement, this can be charged to the Customer. Additional and supplementary work will be charged at the then applicable rates. Unless otherwise stipulated in the Order, goods will be charged at fixed prices and services performed at hourly or daily rates (at the then applicable rates) or at the fixed price stated in the Order. Other costs will be charged additionally.
5.2. All payments are to be made within 30 days of the invoice date without any deduction or compensation, unless otherwise agreed in writing.
5.3. Invoices must be contested in writing by registered letter within a period of 8 calendar days from the invoice date, otherwise they are deemed to be accepted. If part of an invoice is contested in good faith, the uncontested part will be paid on due date. After agreement on the dispute, all amounts due to Alluvion will be paid as soon as possible.
5.4. Should the payment not be made within the stipulated period, interests will be due, by operation of law, without prior warning or notice, at a rate of 1% per month, with each started month counting for a full one. All judicial and extrajudicial collection costs will be charged to the Customer and will be due by the exceeding of the payment term. The (extra) judicial collection costs are calculated at 15% of the amount payable, with a minimum of € 250.
5.5. In case of payment default, Alluvion will have the right, after formal notice, to discontinue or suspend ongoing agreements until full payment, without prejudice to Alluvion's right to compensation. Moreover, in case of persistent non-payment, Alluvion has to right to terminate the agreement in writing by operation of law, without prior warning or notice and without the Customer being able to claim compensations, without prejudice to Alluvion's right to claim compensation at the rate of one half of the remuneration due for the remaining commitments, without prejudice to Alluvion's right to claim a higher amount based on proven damage.
6. FORCE MAJEURE
6.1. Alluvion is not obliged to fulfill contractual obligations whose execution has become impossible. In any case, Alluvion cannot be held liable for non-fulfillment of its contractual obligations or for the resulting damage of the Customer as a result of strikes, total or partial stagnation of transport, electricity- and telecommunication failures, operational malfunctions, non-performance and/or force majeure of its suppliers, government decisions that seriously affect the service provision, licence requirements and other legal and administrative requirements, all of which will be regarded as force majeure.
6.2. If the force majeure situation takes or threatens to take longer than 10 working days, Alluvion is legally entitled to immediately terminate the agreement by registered letter, without prior appeal to a judge and without any compensation. In such case Alluvion will be entitled to the payment by the Customer of all goods or services already delivered and of the costs already incurred related to the future fulfillment of the agreement.
6.3. The non-performance by Alluvion of its contractual obligations as a result of such force majeure situations will not give rise to termination, cancellation or suspension of the agreement by the Customer, nor it will entitle the Customer to price reduction or compensations.
7. CONFIDENTIAL INFORMATION
7.1. The parties will keep, all information obtained orally or in writing or in whatever form, which can reasonably be assumed to be confidential, strictly confidential and will not disclose it to third parties without the prior, express, written permission of the other party, except in the case where this is required by law or by judicial authorities. In this case, the disclosing party will immediately inform the other party.
7.2. Alluvion will be entitled to disclose the existence of the agreement with the Customer for publicity and other commercial purposes.
8. INTELLECTUAL AND PROPERTY RIGHTS AND DATA PROTECTION
8.1. Alluvion irrevocably and unconditionally transfers all intellectual property rights, including the copyrights to the software programs Alluvion has created, to the Customer.
8.2. The remuneration for the concession by Alluvion of the intellectual property rights to the designed programmes, is determined at 30% of the fees ultimately invoiced to the Customer for these programmes.
All other performed services by Alluvion to the Customer will be remunerated separately.
8.3. Alluvion declares and guarantees that all software programs it develops under the agreement are original creations, and in no way (may) infringe the intellectual property rights of third parties if the Customer or a third party exploits these industrial designs.
9. GUARANTEES
9.1. All contractual obligations of Alluvion are obligations to perform to the best of its ability. Alluvion does not provide any express or implicit warranty relayed to goods or services, including any guarantee for suitability for a particular purpose, result or tradability and any software is provided to the Customer "as is".
9.2. The Customer will always take the necessary measures to ensure the integrity, security and maintenance of the software, hardware and all other materials.
9.3. In case of a presumed malfunction of the goods or services, the Customer will actively cooperate with all investigations with the aim of finding out the cause and will take all measures to secure evidences that may be relevant.
9.4. All goods or services that are delivered to the Customer by a subcontractor of Alluvion or that are delivered to Alluvion by a third party and that Alluvion in turn delivers to the Customer, are only subject to the guarantee and liability conditions that apply between this subcontractor or third party and Alluvion.
9.5. The Customer will immediately check the goods and services for defects upon delivery or acceptance. The customer will, in case of any visible defects within a period of 7 days after delivery or acceptance or in case of hidden defects in goods, within 2 days after detection of hidden defects and in any case within 2 months after delivery of these goods, report these defects to Alluvion by means of a justified registered letter. Alluvion is only liable for a defect in the delivered good or service that exists at the time of delivery or that manifests itself within a period of 2 months as of delivery. In case of a defect, the Customer is not entitled to any compensation. The Customer is only entitled to the free repair of the goods or services or the free replacement of the goods or services by mutual agreement with Alluvion. If the free replacement or improvement is impossible or disproportionate, the Customer will only be entitled to demand an appropriate price reduction.
10. LIABILITY
The liability that Alluvion may incur arises from a best efforts obligation and is determined as follows:
10.1. Alluvion will be obliged to repair the damage caused by her (staff) and the damage duly proven by the Customer, however up to a maximum of the lowest of the following amounts, i.e. either 10% of the amount due by the Customer for concerned the delivery or service, or an amount of 25.000 euro, and this regardless of whether the claim has been made on a contractual or extra-contractual basis.
10.2. Are excluded:
- compensation by Alluvion for any indirect damage; financial and commercial losses; loss of profit, increase in overheads; personnel costs; disruption of planning; loss of expected profit; capital; clientele; etc.
- the compensation of all direct and indirect damages caused by the use of the delivered product itself.
- the compensation of damages entirly or partly caused by equipment or software delivered or created by third parties, or by any other element present in the Customer's company, or brought into the Customer's company after the conclusion of the agreement.
- shall in no case give rise to any compensation: all claims by third parties against the Customer
- Alluvion will never be responsible for damage that is entirely or partly due to a failure of the Customer or third parties, or that could have been avoided or limited by the latter. The Customer is responsible for implementing the necessary measures for security, back-up and general management of its IT system.
11. GDPR
To the extent that the parties process personal data, Alluvion will take the measures that are reasonable and appropriate to protect this personal data in accordance with the guidelines of the General Data Protection Regulation (EU) 2016/679, within the limits indicated by the processor agreement that the parties may conclude.
12. DURATION AND TERMINATION
12.1. The duration of the agreement is fundamentally until the end of the project, unless a different duration explicitly has been agreed in writing.
12.2. In any case Alluvion is always entitled to early termination of the agreement without any compensation, without further notification or proof of default and without prior appeal to a judge if: (a) the Customer fails to comply with a contractual obligation and does not adequately correct this within a term of 10 working days after notification by Alluvion of the failure, (b) in case of (an application for) bankruptcy, termination, liquidation or insolvency of the Customer, or (c) the legal control of the Customer changes.
12.3. In the event of premature termination of the agreement, all amounts due, even for invoices not yet due or issued, shall become immediately payable.
13. NON-SOLICITATION
13.1. During the term of and for 12 months after termination of the agreement, the Customer will not employ, recruit or, directly or indirectly approach with a view to recruit or direct or indirect cooperate in any form, any employees, consultants, representatives or subcontractors of Alluvion or their personnel involved in the execution of the agreement, regardless of their status.
13.2. If the Customer violates this article, he will automatically and by operation of law be liable to pay liquidated damages of 25.000 euro per violation, plus compensation of 500 euro per calendar day started, during which the violation(s) continues, without prejudice to any other rights Alluvion might have and without prejudice to higher compensation if there is reason to do so.
14. APPLICABLE LAW AND COMPETENT JURISDICTION
14.1. These General Terms and Conditions and any other contractual provisions between Alluvion and the Customer are governed by Belgian law.
14.2. Any dispute shall be exclusively settled by the courts of Ghent and this both for national and international transactions.