BUSINESS & MARKETING IMPROVEMENT
GENERAL SALES CONDITIONS ARTICLE
ARTICLE 1: By entering into license, purchase, and/or support agreements, the co-contractor acknowledges the current conditions as an integral part of them. We explicitly reject any other general or special conditions that may appear on the documents of the co-contractor.
ARTICLE 2:: Each agreement is entered into provided that there are good references, and we reserve the right to terminate the execution of the agreement at any time and to ask for sufficient warranties to ensure correct execution of the agreement.
ARTICLE 3: All complaints regarding deliveries have to be sent to us by registered mail within three days after receiving the goods. The deliveries will be considered indisputable if they are completely accepted. Any response on a late complaint does not imply the act of reneging to the present article, and shall at all times be without prejudice to all our rights.
ARTICLE 4: All complaints regarding our invoices or other documents have to be sent to us by registered mail within three days after the date of receipt (invoice date +2). From that time on, our invoices and/or documents are considered as completely accepted. Any response on a late complaint does not imply an act of reneging on the present article, and shall at all times be without prejudice to all rights.
ARTICLE 5: The co-contractor explicitly acknowledges that our responsibility in case of a justified complaint, mutually acknowledged or acknowledged by the authorized court, is limited to the replacement of the delivered goods. As a result, the co-contractor hereby explicitly reneges on any additional compensation. In no event shall our liability include any incidental or consequential damage arising out of the use of the delivered product(s) or the related information or documentation, or any other damage which has not been caused directly and immediately by a fault of B&MI, such as but not limited to loss of income, claims of third parties, loss of data, damages or defects due to materials or information from the customer or a third party.
ARTICLE 6:
1° Invoice is payable in cash in Geel. All cash- and protest costs are always on the account of the co-contractor, and the acceptance of bills of exchange does not lead to a debt renewal.
2° In case of any overdue accounts, the buyer shall be in arrears and we shall be legally entitled to charge an arrears interest at the statutory rate of 12% a year without any reminder.
3° Without prejudice to the provisions in sub-article 6 2°, a fixed compensation at the rate of 10% of the outstanding balances (with a minimum of € 125) is owed in case of (partial) non-payment, without any prior notice of default.
4° The present sub-articles 6 2° and 3° apply completely for the attribution of the periods of respite.
ARTICLE 7:
1° The delivered goods shall remain our property until they have been completely paid for, inclusive of all possible interests and contractual penalties included, as an explicitly agreed waiver from art. 1583 Civil Code.
2° In this case, the co-contractor explicitly acknowledges accepting that we will suspend the working of the licensed software, in case of complete or partial non-payment. The co-contractor hereby acknowledges that he has been informed in detail about the period of validation that is initially included in the software. In the absence of timely payment, the software will not function until the complete payment of all outstanding balances, interests, and compensations that are owed to us. The license can be terminated in case of non-payment of any due amount.
ARTICLE 8: All orders will only become binding and definitive after the written confirmation by BUSINESS & MARKETING IMPROVEMENT. Neither our agents, nor our representatives can bind us in the absence of the above-mentioned confirmation, neither are they authorized to receive payments.
ARTICLE 9: Confirmed orders have to be collected within the determined or supposed normal period. If not, we are entitled either to force the co-contractor to execute his part of the agreement, or to dissolve the agreement in full or in part, with compensation at the rate of 35% of the agreed fee, on the account of the co-contractor.
ARTICLE 10: Our prices are always calculated for goods ex-works and will be mentioned in that way. All extra charges for transport, clearance, taxes, etc. have to be paid cash on delivery by the co-contractor.
ARTICLE 11:
1° Our price quotations and the indicated delivery periods are non-binding and subject to change. They are only mentioned by way of example. Therefore, the delivery periods that we indicate are only approximate. We can only be held liable for any delayed delivery, if the possibility of that was separately, explicitly, and personally agreed with us. However, even then, we are not held to these periods: a) in case of any failure from the co-contractor, e.g. payment, sales… b) in case of force majeure, e.g. machine failure, lack of raw materials, or in case of non-delivery by our suppliers, etc.
ARTICLE 12: All deliveries under the terms of the present agreements have been executed as soon as the goods leave our premises – As from then, the co-contractor bears the risk. Any consignments and transports are therefore on the co contractors account and risk as soon as they leave our premises. Any complaints concerning transport must be reported with written proof of notification to the relevant transport service involved on the Bill of Lading or a similar document. If installations are carried out by people we have appointed on the co-contractors premises, it does not change the foregoing.
ARTICLE 13: Any of our guarantees and/or liabilities to the proper functioning of the delivered goods only apply if the basic installations and/or peripheral equipment provided with the co-contractor are in good working order – We refer specifically, yet by no means exclusively, to electric utilities (adequate earthing), cooling systems, etc. -, the co- contractor is sufficiently pointed to his sole and exclusive liability in the absence of an optimal working order of the installations and facilities mentioned above.
ARTICLE 14
1° All agreements are considered to have been made in Geel. Any disputes regarding the existence and/or the (non)-execution of all agreements made with us fall under the exclusive jurisdiction of the courts in Turnhout, including the courts that apply summary proceedings.
2° These terms are exclusively subject to Belgian law.
LICENCE AGREEMENT IN THE FORM OF A LICENCE
The undersigned:
BUSINESS & MARKETING IMPROVEMENT NV, with registered office in 2440 Geel, Molseweg 160, represented here by Mr. Mark Lebouille, representative, further referred to as “the supplier”;
AND
The licensee;
have agreed on the following:
ARTICLE 1: DEFINITIONS
a. Computer system: the type of computer configuration for which the software is meant according to the documentation.
b. Fault: an observed deviation between the functioning or functionality of the software and the functioning or functionality as agreed in the documentation.
c. License: the right that the licensee is given under this agreement to use the software as described in article 2.
d. Legitimate licensee: a person who has a valid license to use the software.
e. Software: the computer program to which a licensing right is granted.
f. Software law: the law of 30 June 1994 concerning transfer to the Belgian law of the European Directive of 14 May 1991 regarding the protection of rights of computer programs. g. Medium: the floppy disk(s) or CD-ROM which contains the software.
h. Documentation: the description of the functionality and user options of the software that was provided by the supplier, included or not in the software or separate books or other storage mediums.
i. Support call: every call for support via telephone or email of 15 minutes maximum.
ARTICLE 2: LICENCE – LICENSING RIGHT The object of the present license agreement is described in the quotation.
The licensee has the non-exclusive and non-transferable right to install one copy of the software on the hard drive of one computer system on which the software will be used.
The license period of the software begins after the agreed monthly license fee has been fully paid by the licensee and after the supplier has received a license agreement in the form of a license signed by the licensee.
ARTICLE 3: SCOPE OF THE LICENSING RIGHT
The licensee can only use the software on the configuration that is supported according to the current documentation, or on the configuration on which the software has been installed by the supplier.
The licensing right also contains the standard adjustments and new versions of the software. These standard adjustments and new versions are considered to integrate with the original software. The conditions of the present agreement apply to these adjustments and new versions.
Network use is allowed if the licensee has one License for each workstation on which the software is installed or used. The software is in use if it is loaded into the RAM or the virtual memory.
However, the software that is based on one license may never be used simultaneously on different computers.
The licensee must have the supplier’s explicit permission for each form of reproduction or modification of the software or a copy of the software, except insofar stringent regulations of Belgian law deviate from it.
The licensee is not allowed to transfer the licensing rights neither completely nor partially. Neither is the licensee allowed to sublicense the licensed software neither completely nor partially without the written permission of the supplier or their authorized representative.
ARTICLE 4: ENTITLEMENT TO SUPPORT
The licensee is entitled to the following support:
a. Support services are provided daily, 24 hours a day.
b. A maximum of 100 support requests a year is provided.
c. Support includes a regular correction of bugs in the software, as well as the latest versions of the software for which a License was procured. It also includes the “log-in-service” and feedback on the further development of the software.
d. When the licensee has reported a problem, the supplier will start solving the problem within a reasonable time.
e. When the licensee requests support by telephone, the hardware on which the software is installed must be available and in the immediate proximity of the licensee.
f. Support does not include solving the problems concerning: – system configurations, hardware, and networks; – design activities, like defining layouts, connections with unknown equipment, etc.; – support on the user’s premises. If the licensee has wrongly requested support, for example, if the problem is not due to software failure, the supplier is allowed to charge the cost of the support.
g. Only a contracted employee in the company of the licensee can request support. They must have followed the required basic instructions. The supplier reserves the right to (partially) transfer their support duties to a third party provided this third party is capable of providing equal services. The supplier has the right to terminate the support agreement at any given time in the following cases: – non-payment of the monthly fee; – bankruptcy or insolvency of the licensee; – non-payment of other goods or services.
ARTICLE 5: DURATION This agreement concerns a two-year period, starting from the payment of the first monthly fee. When this period has expired, the agreement will automatically be renewed unless the licensee terminates the agreement no later than six months before expiration (with a signed letter by registered mail).
ARTICLE 6: PAYMENT The monthly fee – the price which has been agreed in the quotation – can be paid in advance on the first of each month with a deposit or a transfer to the supplier’s post office account number or bank account number.
Should the licensee fail to pay in time, he must pay a penalty of 10% on an annual basis. The supplier does not have to provide proof of default.
ARTICLE 7: USE
a. The licensee is obliged to use the software correctly and in compliance with Article 8 of this agreement. Barring the exceptions of Article 7.b and 7.c, the licensee is not allowed to copy, reproduce, translate, modify, design, edit, reconstruct, decompile or disassemble or create derivative works of the software or any part of it, including the documentation, which has been recorded in any way, without the supplier’s explicit prior written permission. This includes new applications that are based on the software.
b. The licensee is allowed to make a copy of the software for security purposes. This copy may only be used as a replacement of the original software, should it have been rendered useless.
c. The licensee is not allowed to reduce the software partially or completely to the source code (“reverse engineering”), except to the extent applicable laws specifically allow such restriction.
ARTICLE 8: INTELLECTUAL RIGHTS
a. The copyright and all other intellectual or industrial property rights as well as the idea, the methods of the invention, the design, the outline, the layout, the know-how, and similar rights to the protection of information relating to the software (including the standard adjustments and new versions), databases, documents or data exclusively belong to the supplier, without this list being exhaustive. Nothing in this agreement leads to the whole or partial transfer of such rights.
b. The licensee is neither allowed to remove any indication of the supplier’s intellectual or industrial property right nor to make it unrecognizable.
c. The supplier is allowed to take and maintain measures to protect the software or data.
ARTICLE 9: PROPRIETARY RIGHTS All products and services the supplier delivered and transferred to the licensee remain the supplier’s property. The licensee only obtains a user right on the software.
ARTICLE 10: WARRANTY The producer provides the software “as is”. This does not affect any rights that the licensee may have under stringent regulations of imperative law. The producer warrants against hidden defects, except when the damage has been caused, both by faulty software and by the victim’s fault or the fault of a person for whom the victim is responsible. The warranty does not cover:
- repairs of problems caused by incorrect, improper, or unlawful use.
- repairs of problems caused by an accident, fire, natural disasters, power failures, and generally any cause that does not relate to the software delivered; – new versions of the software.
ARTICLE 11: LIABILITY
The supplier shall not be liable for damages (including loss of profits, business interruption, loss of data, or any other damages resulting from your use or inability to use the software), except in case of intentional fault on their part. Under no circumstances shall the producer’s total liability for all damages exceed the amount the user paid for the software.
ARTICLE 12: GENERAL CONDITIONS
a. The supplier’s general conditions shall apply to this agreement insofar the current contract does not deviate from it. The licensee declares having received the supplier’s general conditions. The licensee’s general purchasing conditions or other conditions are not applicable.
b. This contract can only be modified using a supplementary, written agreement signed by the licensee and the supplier.
c. The nullity of (a part of) a provision of the present agreement will never lead to the nullity of other (parts of this / these) provision(s) or of the entire contract.
ARTICLE 13: APPLICABLE LAW AND DISPUTES All disputes this agreement may give rise to, shall be subject to the exclusive jurisdiction of the Turnhout district court. This agreement shall be governed by Belgian law.
LICENCE AND SUPPORT AGREEMENT
The undersigned:
a. BUSINESS & MARKETING IMPROVEMENT NV, with registered office in Molseweg 160, 2440 Geel, represented by Mr. Mark Lebouille, representative, henceforth referred to as “the supplier”.
AND
b. the user.
have agreed on the following:
ARTICLE 1: DEFINITIONS
j. Computer system: the type of computer configuration for which the software is meant according to the documentation.
k. Fault: an observed deviation between the functioning or functionality of the software and the functioning or functionality as agreed in the documentation.
l. Main user: a person who uses the computer more than 80% of the time.
m. License: the right that the licensee is given under this agreement to use the software as described in article 2.
n. Legitimate licensee: a person who has a valid license to use the software.
o. Software: the computer program to which a licensing right is granted.
p. Software law: the law of 30 June 1994 concerning transfer to the Belgian law of the European Directive of 14 May 1991 regarding the protection of rights of computer programs.
q. Medium: the floppy disk(s) or CD-ROM which contains the software.
r. Documentation: the description of the functionality and user options of the software that was provided by the supplier, included or not in the software or separate books or other storage mediums.
s. Support call: every call for support via telephone or email of 15 minutes maximum.
ARTICLE 2 LICENCE AND USER RIGHT
B&MI grants the non-exclusive and non-transferable right to install one copy of the software on the hard disk of one computer system.
The user right is granted after the agreed license fee is completely paid by the user and after the supplier has received a license and support agreement signed by the user.
The software is in use if it is loaded into the RAM or the virtual memory.
ARTICLE 3: OBLIGATION OF SUPPORT
The user is obliged to have the software maintained by the supplier. This support offers the user the following rights, if support is paid (No license nor support can or will be given if support was not paid.): Support is done Monday to Friday, from 9 a.m. till 5 p.m. Support provides a maximum of 25 support calls. In the support, a regular correction of bugs in the software is provided. When the user has reported a problem, the supplier will start solving the problem within a reasonable time. When the user requests support by telephone, the hardware on which the software is installed must be available and in the immediate proximity of the user. Support does not include solving the problems concerning:
- system configurations, hardware, and networks;
- design activities, like defining layouts, connections with unknown equipment, etc.;
- support on the user’s premises.
If the user has wrongly requested support, for example, if the problem was not due to software failure, the supplier is allowed to charge the cost of the support. Only a contracted employee in the company of the user can request support. They must have followed the required basic instruction.
The obligation of support concerns the entire license. If the user decides to add supplementary software to the license, this software will be added tacitly to the support agreement.
The supplier reserves the right to (partially) transfer his support duties to a third party, provided that this third party is capable to provide equal services.
The support agreement is valid when the user has paid the support fee agreed upon and when the supplier has received a license and support agreement signed by the user.
The user is held to this support agreement as long as he uses the software.
The supplier has the right to terminate the support agreement at any given time in the following cases:
- non-payment of the monthly fee;
- bankruptcy or insolvency of the user;
- open invoices.
ARTICLE 3 bis: THE SUPPORT
The supplier offers the user the possibility to extend the support as follows:
“Support” is provided daily, 24 hours a day.
“Support” provides 200 support calls at most.
“Support includes a regular correction of bugs in the software, as well as a correction of the latest versions of the software, on which user right was obtained.
“Support” includes a login service.
“Support” includes feedback on the further development of the software.
Otherwise, all conditions of article three apply to the extent that article 3 bis do not deviate from it.
ARTICLE 4: THE SCOPE OF THE USER RIGHT
The user is only allowed to use the software on the configuration which is supported by valid documentation or on the configuration on which the supplier has installed the software.
Network use is allowed if the user has one license for each workstation on which the software is installed or used. The software is in use if it is loaded into the RAM or the virtual memory. However, the software that is based on one license may never be used simultaneously on different computers.
The user must have the supplier’s explicit permission for each form of reproduction or modification of the software or a copy of the software, except insofar stringent regulations of Belgian law deviate from it.
ARTICLE 5: DURATION
The license is granted for an indefinite period. The producer has the right to terminate the license in case of non-compliance with the agreed conditions. In that case, the user is obliged to destroy the original version and all versions of the software and related documentation. The user can terminate the license at all times, by returning the software, all versions of the software, and the documentation to the producer, without the former compensating for this.
ARTICLE 6: FEES
The user pays the license fee as agreed in the quotation submitted to the supplier. The user pays the fees for the support as stated in the quotation. The user acknowledges the supplier’s right to implement price changes unilaterally. These price changes can for instance be implemented in case of an increase in costs (changes in currency rates, salary increases, measures taken by the national or foreign government…).
ARTICLE 7: USE
a. The user is obliged to use the software correctly and in compliance with article 8 of this agreement. Barring the exceptions of Article 7.b and 7.c, the user is not allowed to copy, reproduce, translate, modify, design, edit, reconstruct, decompile or disassemble or create derivative works of the software or any part of it, including the documentation, which has been recorded in any way without the supplier’s explicit prior written permission. This includes new applications that are based on the software.
b. The user is allowed to make a copy of the software for security purposes. This copy may only be used as a replacement of the original software, should it have been rendered useless.
c. The user is not allowed to reduce the software partially or completely to the source code (“reverse engineering”), except to the extent applicable laws specifically allow such restriction.
ARTICLE 8: INTELLECTUAL RIGHTS
d. The copyright and all other intellectual or industrial property rights as well as the idea, the methods of the invention, the design, the outline, the layout, the know-how, and similar rights to the protection of information relating to the software (including the standard adjustments and new versions), databases, documents or data exclusively belong to the supplier, without this list being exhaustive. Nothing in this agreement leads to the whole or partial transfer of such rights.
e. The user is neither allowed to remove any indication of the supplier’s intellectual or industrial property right nor to make it unrecognizable.
f. The supplier is allowed to take and maintain measures to protect the software or data.
ARTICLE 9: PROPRIETARY RIGHTS
All products and services the supplier delivered and transferred to the user remain the supplier’s property. The user only obtains a user right on the software after payment of all fees due, consistent with the license and support agreement.
ARTICLE 10: WARRANTY The producer provides the software “as is”. This does not affect any rights that the user may have under stringent regulations of imperative law. The producer warrants against hidden defects, except when the damage has been caused, both by faulty software and by the victim’s fault or the fault of a person for whom the victim is responsible. The warranty does not cover: – repairs of problems caused by incorrect, improper, or unlawful use; – repairs of problems caused by an accident, fire, natural disasters, power failures and generally any cause that is not related to the software delivered; – new versions of the software.
ARTICLE 11: LIABILITY The supplier shall not be liable for damages (including loss of profits, business interruption, loss of data, or any other damages resulting from your use or inability to use the software), except in the case of intentional fault on their part. Under no circumstances shall the producer’s total liability for all damages exceed the amount the user paid for the software. The data is the property of the client, although B&MI can never be held responsible for having the database at their premises since this is essential for support.
ARTICLE 12: GENERAL CONDITIONS
a. The supplier’s general conditions shall apply to this agreement insofar the current contract does not deviate from it. The user declares having received the supplier’s general conditions. The user’s general purchase conditions or other conditions are not applicable
b. This contract can only be modified through a supplementary, written agreement signed by the user and the supplier.
c. The nullity of (a part of) a provision of the present agreement will never lead to the nullity of other (parts of this / these) provision(s) or of the entire contract.
ARTICLE 13: APPLICABLE LAW AND DISPUTES All disputes this agreement may give rise to, shall be subject to the exclusive jurisdiction of the Turnhout district court.
This agreement shall be governed by Belgian law.