General Sales and Delivery Terms & Conditions

Article 1 – Definitions

The following definitions apply to these terms and conditions:

Offer: the order form, or proposal for an Agreement, drawn up by Cheops, which is signed by the Client and on the basis of which the order of Products and/or Services is carried out.
Cheops: Cheops Technology NV
Services: all activities rendered by Cheops for or on behalf of the Client, whether relating to the delivery of Products or not.
Client: any legal entity with whom Cheops concludes an Agreement, or is still negotiating with regarding the delivery of Products and/or the provision of Services.
Agreement or Contract: any agreement that is concluded between Cheops and the Client, any amendment or addition thereto, as well as all (legal) acts in the preparation and/or execution of that agreement.
Products: all hardware, equipment, goods, parts, materials from third parties which Cheops supplies in terms of a Service or which the Client purchases from Cheops.
Working days: Monday to Friday from 08:00-18:00 (average 8 hours per working day), except for legally recognised holidays in Belgium.

Article 2 – Scope and amendments to general conditions

2.1. These general terms and conditions apply to all tenders, offers, deliveries and Agreements of and with Cheops, as well as to their execution. The Customer is deemed to accept these terms and conditions by the mere fact, whether verbally or in writing, of the decision to order Products and/or Services from Cheops or to place an order, whether or not by signing the Offer.

2.2 General terms and conditions of the Client shall not apply, not even in addition to these general terms and conditions; the possible applicability thereof is hereby expressly excluded.

2.3 Deviation and/or supplementation of these general terms and conditions shall only be possible if and insofar as Cheops has explicitly accepted this in writing in the Offer or the Agreement. In that case, only the part of the clause to which an exception was made shall lose its validity.

2.4 If these general terms and conditions are amended in the interim, the modified version shall form part of every Agreement concluded after the moment of the amendment.

Article 3 – Conclusion of the Agreement

3.1 Every tender, proposal or offer from Cheops shall be entirely without any obligation, unless the contrary has been expressly confirmed in writing with the signature of an authorised representative. If an offer or tender contains an offer without obligation and this is accepted by the Client, Cheops shall be entitled to revoke the offer within two working days after receipt of the acceptance. An offer is binding if Cheops does so, stating a period during which the offer is open for acceptance. Such acceptance can only take place in writing.

3.2 Verbal promises by Cheops shall not be binding unless confirmed in writing by its authorised representatives.

3.3 The Agreement shall be concluded by signing an Agreement between the Client and Cheops or as soon as Cheops has accepted the Offer signed by the Client, which can be done tacitly. Agreements or changes made later shall only be valid if and as soon as Cheops has confirmed these in writing.

3.4 Only authorised persons, such as directors and representatives authorised by directors, can legally bind Cheops. Representatives and agents do not have the power to enter into a contract. Cheops has the right to refuse orders given to representatives and/or agents.

Article 4 – Amendments

4.1 The illustrations, specifications and technical data mentioned by Cheops count only as information and do not bind Cheops in any way. The Client guarantees the correctness and completeness of the sizes, requirements, performance specifications and other data on which Cheops bases its offer. The content of the assignment or order by the Client as received by Cheops shall be considered correct between the parties. Input errors and other mistakes made in the delivery of the order or assignment shall be at the expense of the Client.

4.2 Amendments to the size and/or quality of the goods to be delivered and/or services to be provided as well as any amendments to drawings, specifications and the like can only be agreed to in writing. If, in Cheops' opinion, an amendment has consequences for the agreed price, delivery time and/or quality, including but not limited to any agreed service levels, Cheops shall inform the Client thereof in writing as soon as possible after notification of the desired amendment before implementation.

4.3 The cancellation of the order in whole or in part by the Client shall not be possible.

Article 5 – Prices and rates

5.1 Except for the orders and Agreements concluded at fixed and non-revisable prices, the delivery of Products and Services shall take place at the prices and rates used by Cheops at the time of delivery.

5.2 If the price is determined on the basis of time actually spent, the price shall be calculated according to Cheops's usual rates, applicable for the period in which the work is done, unless a different rate has been agreed upon.

5.3 For standard working hours, Monday to Friday from 08:00-18:00, an hourly rate of 100% shall apply. An overtime rate shall apply for work done outside normal working hours. An hourly rate of 150% shall apply from Monday to Friday from 18:00-24:00 and from 00:00-08:00. An hourly rate of 150% shall apply on Saturdays from 00:00-08:00. An hourly rate of 200% shall apply on Sundays and public holidays from 00:00-24:00. Work is preferably done during normal working hours. Work done outside normal working hours shall be regarded as overtime. Overtime shall always be billable.

5.4 Unless expressly agreed otherwise in writing with the Client or explicitly stated otherwise by Cheops, all prices and rates used by Cheops shall not include VAT or any other government levies and shall not include administration, Small Order Fee, Delivery & Administration Fee, port, customs, installation, assembly, training, transport, travel, accommodation or dispatch costs. A delivery and administration fee of EUR 25 shall be charged for orders less than EUR 2500 excluding VAT. A small-order fee of EUR 50 is charged for orders less than EUR 500 excluding VAT.

5.5 If prices are fixed in price lists used by Cheops, those prices shall apply. The most recently dated price list shall be binding. Prices differing from the price list can only be expressly agreed to in writing.

5.6 For Agreements lasting longer than one year, Cheops’ prices shall apply for a maximum of one calendar year. In addition, for all Agreements, prices may be adjusted annually on January 1 in accordance with the provisions of the law on economic recovery measures of March 30, 1976 based on parameters representing the underlying real costs, including but not limited to the labor cost evolution within PC200.

5.7 Cheops reserves the right to alter the prices and rates annually. Unless agreed otherwise in writing, new prices and rates shall take effect from the moment that they are introduced by Cheops. Cheops shall also be entitled to adjust interim rates owing to changing (market) conditions. These adjustments shall automatically take effect without a signed addendum necessary, forty-five (45) days after prior written notification of the adjustment by Cheops to the Client.

5.8 Prices and rates for Services and Products that depend directly or indirectly on purchase prices and rates of third parties, may be passed on to the Client to the same extent as the adjustment made to Cheops by third parties. Price increases charged to Cheops by third parties relating to Products and/or Services of third parties that are delivered to the Client by Cheops shall always be charged to the Client.

Article 6 – Invoicing and Payment

6.1 Cheops shall invoice Products upon or after dispatch or making the goods available. Cheops shall invoice Services on a monthly basis prior to the service or, if explicitly agreed with the Client, after providing the service.

6.2 The Client shall pay all invoices in accordance with the payment conditions stated on the invoice, without any discount. The payment term shall be thirty (30) days after the invoice date for the provision of Services and eight (8) days after the invoice date for the delivery of Products, unless otherwise stated on the invoice or expressly agreed otherwise in writing.

6.3 Payments made by the Client shall be deemed to have been made on account of any outstanding costs or interest first, then on account of the oldest unpaid and overdue invoices, even if the Client specifies that the payment has been made on account of a more recent invoice.

6.4 The Client shall not be permitted to offset his payment obligation towards Cheops with a claim by the Client against Cheops, for whatever reason. Paid amounts shall remain due and can never lead to a refund.

6.5 The payment term as referred to in Article 6.2 shall be a strict deadline. In the event of late payment, the Client shall be in default without notice and Cheops shall be entitled to suspend the execution of services or deliveries as of the due date of the invoice and to charge a default interest rate of 1% per month (or, if higher, the legal default interest rate). In the event of non-payment on the due date, the entire price or the balance of the price and the additional costs, as well as the balance of all other invoices, even those not yet due, shall become payable immediately and ipso jure. In addition, non-payment on the due date shall imply that Cheops will be owed a fixed compensation of 15% of the principal amount, including VAT, of the overdue invoice, with a minimum of 100 EUR as well as the legal and collection costs incurred.

6.6 If the Client fails to pay an invoice within ten (10) days after sending a registered notice of default, Cheops shall have the right to terminate the Agreement with immediate effect, without being obliged to pay any compensation to the Client and without prejudice to the obligation of the Client to pay all (outstanding) invoices.

Article 7 – Duration and termination

7.1 If and insofar as the Agreement concluded between the parties is a continuing performance agreement, the Agreement shall have been entered into for the duration agreed between the parties, failing which the duration of one (1) year shall apply.

7.2 The duration of the agreement shall be tacitly renewed for the duration of the original period, unless the Client or Cheops terminates the agreement with a notice period of three (3) calendar months before the end of the period in question.

7.3 Each Party shall be entitled to terminate the Agreement in the event of a material breach by the counterparty regarding an essential provision of the Agreement and the counterparty fails to remedy such attributable breach within a period of thirty (30) days after receipt of written notice from the counterparty.

7.4 The Parties shall be entitled to terminate the Agreement unilaterally by registered mail addressed to the counterparty, without judicial intervention and without notice period, without prejudice to the right to compensation and without prejudice to any other right of the terminating party if the counterparty: (i) is declared bankrupt or is in the event of apparent insolvency or cessation of payment; (ii) its activities are temporarily or permanently discontinued, wholly or partially; (iii) is terminated or liquidated; or (iv) a liquidator or an administrator is appointed to manage the property or assets of the counterparty.

7.5 Upon termination of the Agreement by one of the parties, Cheops shall cease the provision of the Services and the Client shall promptly pay Cheops for all Services rendered up to and including the date of termination. All data belonging to the Client that are in the possession of Cheops on the date of termination shall be returned to the Client in standard format at the expense of the Client, unless the Client requests in writing to have this data destroyed. If deemed necessary by the Parties, Cheops shall cooperate in a qualitative and quantitative transfer to the Client and/or third party for a fee and in consultation with the Client. Cooperation with this transfer shall be granted starting immediately after termination of the Agreement. Cheops shall then transfer the property and responsibilities to the Client, not to third parties, and shall be free from all responsibilities.

7.6 Interim cancellation of the Agreement by the Client shall not be possible except in the cases provided for in Articles 7.2, 7.3 and 7.4. Nevertheless, in the event of premature or late termination, the fees shall remain payable in full until the next due date.

7.7 Changes to the agreed volumes (of services) as a result of a decision by the Client or failure to meet the agreed volumes (of services), will only lead to a pro rata adjustment of the price if these downward adjustments do not exceed 20% of the initially agreed volumes (of services), regardless of whether this is the result of a one-off or successive adjustments. The client confirms that in case of downward adjustments of the volumes (of services) by more than 20% with respect to the initially agreed volumes (of services), regardless of whether this is the result of a one-off or successive adjustments, the price will no longer be adjusted on a pro rata basis and that the price setting of the delivered products and/or services can be entirely reviewed by Cheops taking into account the lower actual volume.

If, during the term of the Agreement, as a result of a decision by the Client the agreed volumes (of Services) are amended or if the agreed volumes (of Services) are not achieved, to such an extent that the execution of the Agreement becomes unprofitable for Cheops, Cheops shall have the right to terminate the Agreement unilaterally, without compensation and taking into account a notice period of (6) six months.

7.8 In the event that the Agreement is terminated, for whatever reason, if Cheops has made specific investments or concluded specific agreements for the Client, the investments made at residual value and/or the contracts concluded shall be taken over by the Client. For investment, the residual value is based on a depreciation period of 60 months; for contracts, the remaining contract periods shall apply.

Article 8 – Responsibilities

8.1 The Parties acknowledge that the success of activities in information and communication technology shall depend on proper mutual cooperation. The Client shall, at all times and in good time, provide full cooperation as reasonably required by Cheops.

8.2 Cheops shall provide the Services to be carried out by it or on its behalf in a competent and independent manner. The obligations entered into by Cheops are obligations of means. Only Cheops shall be responsible for its employees and the Client shall not exert any authority, guidance or supervision on the employees of Cheops under any circumstances. The Client shall inform Cheops’ employees about the house and security rules applicable within its organisation before the commencement of work.

8.3 The Client shall bear the risk of the selection and suitability of the goods, Products and/or Services to be delivered by Cheops.

8.4 If the Client employs personnel and/or auxiliary persons during the execution of the Agreement, these personnel and auxiliary persons shall have the necessary knowledge and experience. In the event that Cheops employees perform work on the Client's premises, the Client shall provide the necessary facilities, such as access to computer rooms and systems and a workspace, which shall meet the legal requirements, with computer and network facilities, in a timely manner and free of charge.

8.5 If, in terms of Services and Products of Cheops, the Client makes software, equipment or other resources available to Cheops, the Client shall be responsible for obtaining all necessary licences or approvals relating to these resources which Cheops may require.

8.6 To enable Cheops to execute the Agreement properly, the Client shall always provide all data or information reasonably required by Cheops in a timely manner. The Client shall guarantee the correctness and completeness of the data, information, designs and specifications provided to Cheops by the Client. Cheops shall periodically provide the Client with information about the performance of the work.

8.7 If and insofar as Cheops makes software available to the Customer by third parties, the (licence) conditions of the third party in question shall apply to the relationship between Cheops and the Customer relating to the software, with the exception of deviating provisions contained in these general terms and conditions.

Article 9 – Delivery; risk and transfer of ownership

9.1 Each delivery shall be considered a separate transaction and carried out at the Client's risk, even if the Products travel free of freight charge. Products are delivered on the scheduled delivery date in principle, without Cheops guaranteeing this date. Cheops shall inform the Client in good time about possible changes to the delivery date. This delivery date shall be purely an indication. No delay or event shall give rise to any deductions or any claim for damages, or any breach of contract.

9.2 From the moment of delivery to the Client, the risk of the Products sold shall be transferred in full to the Client, who from that moment on shall be responsible for all visible and invisible defects and all damage to or caused by these Products.

9.3 The transfer of ownership of Products sold to the Client only takes place after full payment of all claims arising from the commercial relationship with the Client.

Article 10 – Guarantees

10.1 The correctness of the delivery or Service must be checked by the Client upon receipt, who must immediately check whether the delivery corresponds to the order at the time of delivery.

10.2 A complaint, both in terms of content and the quantity of the Products and Services delivered, shall only be taken into account if the error to which it relates is immediately stated on the delivery note, statement of performance or work order and is communicated to the registered office of Cheops by registered mail at the latest within five (5) calendar days after receipt of the Products or Services. Complaints about the Products or Services shall in no way exempt the Client from its obligations.

10.3 The guarantee for all or hidden defects of products shall be limited to the replacement or repair of defective merchandise as guaranteed by the manufacturer within the warranty period provided by the manufacturer. No other damages or reimbursement of costs or interest can be claimed. Products must always be returned by the Client in the original packaging. If, after inspection by the manufacturer, the Products are found to be defective, a handling and administration fee of EUR 100 shall be due.

Article 11 – Liability and indemnification

11.1 If one of the parties fails to comply with one or more of its obligation(s) from this Agreement, the counterparty shall give notice of default. Notice of default shall take place in writing and the negligent party shall be given reasonable time of at least thirty (30) days in which to comply with its obligations. A notice of default must contain a complete and detailed description of the defect, so that the counterparty can respond adequately.

11.2 The Party that fails to fulfil its obligation(s) shall be liable for compensation to the counterparty for damage suffered or to be suffered by the counterparty. The condition for any right to compensation shall always be that the Client must report the damage in writing to Cheops as soon as possible. Any claim for damages against Cheops shall expire after a period of twelve (12) months after the claim has arisen.

11.3 The liability for direct damage referred to in Article 11.2 is, regardless of the number of events, limited to a maximum of the amount equal to the fees (excluding VAT) that are due annually for the relevant defaulted Service, with the exception of staffing Services for which the liability is limited to a maximum of the amount equal to the fees (excluding VAT) that are due during six (6) months for the defaulted staffing Service. In no event shall the total compensation for direct damage under any Agreement exceed EUR 50,000.

11.4 The liability referred to in Article 11.2 for indirect and consequential damages is excluded. Consequential damage shall include loss of profit; turnover loss; missed savings; damage due to business stagnation; loss of data; reputational damage; costs incurred to prevent, limit or establish consequential damage; damage other than the direct damage mentioned in article 11.3.

11.5 The limitation of liability included in Article 11.3 shall lapse in the event of claims by third parties for compensation as a result of death or injury and/or in the event of fraud, malicious intent or gross negligence on the part of the party providing the damage.

11.6 Should an event result in damage to one of the Parties, the Parties shall endeavour and take measures (including, for example, the provision of manpower and resources) to limit the consequences of such event and damage. The parties shall support each other in this. Moreover, Cheops shall not be liable for damage suffered by the Client or any third party as a result of incorrect or incompetent use by the Client or any third party of the Services or Products delivered by Cheops.

11.7 Cheops indemnifies the Client against claims that the Services or part thereof infringe intellectual property rights of third parties. The Customer indemnifies Cheops against any claims in terms of which the purchase of Services and/or software, which the Customer makes available to Cheops for the delivery of Services or part thereof, infringes on the rights of third parties. Cheops shall indemnify the Client and the Client shall indemnify Cheops against all damages and costs (including the reasonable costs of legal assistance) of the Client or Cheops in this respect.

Article 12 – Force majeure

12.1 Force majeure is a shortcoming, which is not due to the fault of a Party and which is not at the expense of that Party in terms of the law, legal act or generally accepted practice. Force majeure is nevertheless understood to mean: general strikes, force majeure of suppliers, defectiveness of goods, materials, software (of third parties) the use of which has been prescribed by the Customer to Cheops, failures in the electricity or communication network, fire, explosion, embargo, war, natural disasters and terrorism, disruptions caused by the Customer and/or third parties.

12.2 If one of the Parties cannot fulfil its obligations under this Agreement for a period of more than 30 (thirty) days as a result of force majeure, or fails to fulfil its obligations under this Agreement, the counterparty shall have the right to terminate the Agreement by means of a registered letter with immediate effect out of court, without incurring any right to compensation and this without prejudice to the payment obligations.

Article 13 – intellectual and industrial property rights

13.1 No intellectual or industrial property rights, including trade names, brand names and logos, shall be transferred to another Party due to this Agreement. A separate agreement, which explicitly deals with such a transfer, is required for such a transfer.

13.2 If the Client makes software available to Cheops for the provision of Services, the Client shall grant to Cheops a non-exclusive right to use the software, this right shall be limited to the use, maintenance, improvement and further development for the benefit of the Services to the Client. For this purpose, the Client shall make the software available to Cheops, including the source code, if required. The Client's software, including the intellectual and industrial property rights to existing and future software, shall be, remain or become the property of the Client at the time of their creation, even if they have not yet been completed; these rights shall be transferred to the Client in advance in accordance with this Agreement.

13.3 Techniques, processes, concepts, methodologies and suchlike shall remain the exclusive intellectual property of Cheops and fall under Cheops' confidential information, which shall include know-how, knowledge, skills and ideas, and can continue to be used by Cheops in its business operations and for the provision of Services to other clients.

13.4 The results from the Services rendered shall become the property of the Client after payment of all amounts due. If, however, Cheops uses its own software or software from third parties to render the Services, the intellectual property rights to this software, as well as amendments, derivative works or additional developments shall remain exclusively with Cheops or the third supplier. The Client shall only acquire a limited, non-exclusive and non-transferable right of use for the duration of the Agreement and solely for the receipt of the Services.

Article 14 – Confidentiality

14.1 "Confidential Information" shall include all data exchanged in terms of this Agreement, all data and knowledge concerning the relationship between the Parties, as well as the business affairs of the counterparty, and all further other information and data of a Party, which that Party has disclosed to be confidential or which the counterparty understands or should reasonably understand to be confidential.

14.2 The Parties agree to take all reasonable measures to mutually ensure confidentiality vis-à-vis third parties in terms of Confidential Information, of which they, their employees or third parties working for them may become aware during the conclusion and/or execution of this Agreement. The parties shall oblige their employees to comply with this confidentiality provision and guarantee that the employees will be obligated by an employment contract and/or confidentiality agreement to maintain the confidentiality of confidential information.

14.3 The secrecy obligation in the previous paragraph shall not only apply to data in relation to which the Parties can demonstrate that: (i) the information was already known to third parties; (ii) it concerns data of general knowledge; (iii) the disclosure is made on the basis of a legal obligation; (iv) the information was known to the other party before the conclusion of the Agreement without breaching a confidentiality obligation.

14.4 Cheops is obliged and shall ensure that all personal details of the Client remain confidential and are not used in any other way than for the purpose for which they are available at Cheops. The parties are obliged and shall ensure that all laws and regulations relating to personal data (such as the Personal Data Protection Act) are strictly observed.

14.5 In terms of data protection legislation, the Client has obligations towards third parties, such as the obligation to provide information, as well as giving access to, correcting and deleting personal data of those involved. The responsibility for fulfilling these obligations rests entirely and exclusively with the Client. In terms of processing personal data, Cheops shall be possibly and exclusively regarded as a 'processor' within the meaning of the Data Protection Act. In the event that Cheops processes personal data on behalf of the data controller, only the conditions of the Data Processing Agreement that can be requested shall apply.

14.6 Cheops shall support the obligations to be fulfilled by the Client in Article 14.5 as far as technically and operationally possible. The costs associated with this support are not included in Cheops’ agreed prices and fees and are for the Client's account.

14.7 Cheops shall be entitled to the name and logo of the Client as well as a description of the Services performed at the Client as reference material for marketing purposes.

Article 15 – Notices and other communications

15.1 Without prejudice to the relevant legal provisions, notifications and other communications must be made to the Parties in connection with the Agreement at the registered office of each of the Parties, by registered mail with acknowledgement of receipt, by courier, or by email with subsequent written confirmation by registered mail.

15.2 Notifications and other communication sent in the following ways are deemed to have been received by the addressee at the following moments: (i) if sent by courier: at the time of delivery by courier to addressee; ii) if sent by registered mail: on the Business Day stated on the notice of receipt; iii) if sent by mail (with subsequent confirmation by registered mail): at the moment of receipt by the addressee of the mail (if this is after 17:00 local time at 09:00 on the next Business Day).

Article 16 – Non-solicitation

16.1 During the term of the Agreement, as well as for a period of one (1) year after the expiry or termination of the Agreement, neither Party shall in any form whatsoever, directly or indirectly, proceed to (i) employ an employee or a former employee of the other Party until six (6) months after the termination of his (employment) contract or (ii) enter into a cooperation on an independent basis, (directly, via any company or via a third party), with an employee or a former employee of the other party for six (6) months after the termination of his (employment) contract, unless this is done with the other party's express prior written consent.

16.2 The Party acting in breach of Article 16.1 shall forfeit an immediately due and non-mitigable compensation of one (1) year's gross wage and salary of the employee concerned, without prejudice to the right to claim additional compensation. The same compensation shall be payable by the Customer, in order to circumvent this prohibition, in any other way to reach the same result.

Article 17 – Other provisions

17.1 Subject to the prior written consent of the counterparty, none of the Parties to the Agreement shall be permitted to transfer its rights or obligations to third parties in terms of this Agreement. However, Cheops shall indeed be permitted to transfer rights or obligations from the Agreement to its affiliated companies or to use subcontractors without the prior consent of the Client. Cheops shall remain fully responsible for subcontractors in the performance of the Agreement.

17.2 If one or more provisions of this Agreement is invalid or otherwise not binding, the validity of the other provisions of the Agreement shall not be affected. The parties shall then, if necessary in joint consultation, fulfil the Agreement as far as possible in the spirit of the intention of the invalid or non-binding articles. Furthermore, the Parties shall then, in mutual consultation and in the spirit of the agreement, amend the Agreement to the extent necessary, in the sense that the non-binding articles are replaced by provisions that are binding and differ as little as possible from the non-binding articles concerned.

17.3 The Agreement contains all agreements between the Parties relating to the Agreement and replaces all previous written and oral agreements that the Parties have made in this respect.

Article 18 – Applicable law and dispute resolution

18.1 The general terms and conditions are governed by Belgian law. The applicability of the United Nations Convention on Contracts for the International Sale of Goods of 1980 is expressly excluded.

18.2 Disputes between Parties that are not arranged within five (5) Business Days will be submitted to the management of both Parties without delay in order to obtain a management decision. Disputes that are not settled by the management within fifteen (15) Business Days shall, at the request of either Party, be settled by the competent court in Antwerp.

18.3 In urgent cases, each Party shall always have the right to apply to the Interim Injunction Judge in Antwerp for a provisional injunction in summary proceedings.