These general terms and conditions (“General Conditions”) are of Cogn-IT BVBA, with registered office at Gasthuisstraat 54, 1760 Roosdaal, Belgium, VAT BE 0891.127.518 (“Cogn-IT”) and all its legal successors.
1.1. These General Conditions apply to all offers, proposals, propositions (“Offer”), orders, agreements, and deliveries for the supply of goods and/or services by Cogn-IT to its customer (hereafter referred to as the "Customer"). Deviations from these General Conditions will only be enforceable against Cogn-IT if Cogn-IT has expressly agreed thereto in writing. In that case, the other provisions of these General Conditions shall remain in full force and effect. The Customer may not derive any rights for future or other transactions from agreed derogations. Any use of general conditions of the Customer are explicitly excluded, unless otherwise agreed in writing between the parties.
1.2. By placing an order, by the approval of the Customer with an Offer, or by signing or (start of) executing the agreement by Cogn-IT or the Customer, the Customer unconditionally and irrevocably accepts these Generals Conditions, which are binding upon it.
1.3. These General Conditions apply as of 1 January 2018 and replace all previous ones.
1.4. The Customer may not assign its agreement or any part of it to any third party, without the explicit written agreement of Cogn-IT.
2. OFFERS AND ORDERS
2.1. Offers Every Offer, is free of obligation and only applies for a B2B market. Unless expressly stated otherwise, every Offer has a validity of 30 calendar days after the date of the Offer and automatically ends after such date. All terms, references to technical data or other elements stated in an Offer are purely indicative and non-binding for the execution of the Offer, unless otherwise agreed in writing. Cogn-IT has the right to rectify any mistakes made in an Offer or to withdraw an Offer at any point in time. Cogn-IT cannot be held liable for exceeding a term or for modifying technical data or other elements and this is not a valid ground for termination, severance or suspension of the Customer's execution of the agreement nor for a price reduction or compensation for damage. Cogn-IT will inform the Customer to the best of its knowledge of the (probable) failure to comply with the time-limit or technical data or other elements. The Offer is based on information provided by the Customer. In case Cogn-IT discovers that the information provided is not correct, the Customer will be notified hereof. In case additional services need to be performed by Cogn-IT, an additional Offer will be provided. Cogn-IT has the right to suspend the execution of the project in the meantime until agreement on the additional services to be performed.
2.2. Orders By placing an order or accepting an Offer, the Customer acknowledges to be fully informed and to understand the content of the Offer. Every order will be binding upon the Customer. Cogn-IT will only be bound by an order from the Customer if Cogn-IT has explicitly confirmed its acceptance in writing.The agreement will only be effective as of such acceptance of the order. In case of cancellation by the Customer of an order, a compensation will be due by the Customer of 30 % of the total price for the supply of goods or services, unless otherwise proven by Cogn-IT.
3. DELIVERY OF GOODS AND SERVICES
3.1. The Customer accepts partial deliveries of goods and services. Ppartial invoices can be issued for this.
3.2. The signing by the Customer of the delivery slip involves the delivery and acceptance of the delivered goods or the delivered services. The risk relating to the goods is transferred to the Customer at the time of delivery. The risk related to the services is transferred to the Customer upon delivery or acceptance of the services. In case the Customer does not sign the slip invoice, the risk is transferred to the Customer on the day of delivery of the goods or on the day of announcement by Cogn-IT of the execution of the services. The transfer of ownership of the goods takes place only after the total payment of the price and of any interests or compensations due to late payment.
3.3. Cogn-IT has the right, during its performance, to make certain technical improvements or changes in accordance with the applicable regulations, on ordered goods and services, as long as these are necessary to make or do not entail any substantial modifications. If during the performance of the services it becomes clear that the Offer can technically not be executed, Cogn-IT reserves the right to cancel such Offer, without any right on indemnification on behalf of the Customer.
3.4. Cogn-IT may outsource the execution of certain services to a subcontractor, without the prior written consent of or notification to the Customer.
4. OBLIGATIONS OF THE CUSTOMER
4.1. The Customer will in due time provide Cogn-IT with all necessary information and documentation for the execution of the project and shall cooperate with Cogn-IT, as required, for the execution of the project, in accordance with the applicable laws and regulations. The Customer needs to have all necessary licenses for all software which it uses, including software of third parties. The Customer shall at all times hold Cogn-IT harmless for all possible claims of third parties related to this software. The Customer shall also make sure that its hardware meets the minimum requirements, as communicated by Cogn-IT.
4.2. The Customer agrees to allow the appointees of Cogn-IT, which will execute the project, to access during normal working hours and in accordance with the access regulations of the Customer, all premises and installations (hardware, software, network, etc.) and to provide for all resources which are necessary for Cogn-IT to perform the project as agreed upon. In case the Customer does not comply herewith, the term could be extended and the price could be amended.
5. PRICES, INVOICES AND PAYMENTS
5.1. All prices and other amounts are expressed in euro and excluding VAT and other taxes and charges. If these taxes and charges increase after the conclusion of the agreement, this could be passed on to the Customer. Additional work and updating will be charged at the rates used at that time. Except as otherwise agreed in the Offer, the goods will be charged at fixed prices and the services will be performed at hourly rates (at the rates used at that time) or at fixed prices as mentioned in the Offer. Other costs will be charged separately. An Offer can always be requested with Cogn-IT at info @cognit.be
5.2. All invoices are payable at the address of the registered office on their due date and on the account number as mentioned in the invoices. Appointees are not authorized to receive payments. Before the start of the project or during the performance of the project one or more advanced payments in the form of fixed rates or hourly rates can be requested. These advanced payments will be deducted from the final invoice. In case of non-payment at maturity, an interest of 10% on the total amount of the invoice calculated on an annual basis will be due automatically and without notice. Furthermore, in case an invoice is not paid in whole or in part within the month following its due date, the Customer must, automatically and without legal notice, pay a compensation of 10% on the total price of the invoice with a minimum fee of 250 euro. All legal and extrajudicial collection costs of invoices are at the Customer's expense, with a minimum fee of 10% of the total amount of each invoice. In case of total or partial non-payment of an invoice upon its due date Cogn-IT (i) has the right to suspend its obligations and to terminate this and any other agreement it has with the Customer and (ii) may claim immediate payment of all debts, including those not yet due.
5.3. The Customer is not entitled to set off its outstanding amounts with amounts due by Cogn-IT.
5.4. Any complaint regarding invoices, in order to be valid, must be formulated in detail by registered mail within seven (7) days as of the invoice date. In case no timely complaint has been made, the invoice will be deemed to be accepted. The Customer can only suspend payment if he can prove that Cogn-IT has not fulfilled a contractual obligation and if he has previously notified Cogn-IT by registered letter. In any case, the amount of the suspended payment can only relate to that part of the property or service that relates to the alleged non-performance of the contractual obligation. A suspension of payment by the Customer is only possible if (part of) the goods or service cannot be separately identified on an invoice.
5.5. The Customer agrees that, in the event of late payment of invoices, Cogn-IT shall, without prior notice of cancellation, immediately return the goods delivered to Cogn-IT, allow access to its premises and bear all transport costs.
6. FORCE MAJEURE
6.1. Cogn-IT is not obliged to comply with contractual obligations whose implementation has become impossible. In any event, Cogn-IT cannot be held liable for failure to fulfil its contractual obligations or for consequential damages caused to the Customer as a result of strikes, total or partial stagnation of transport, electricity and telecommunication disturbances, malfunctions, maladministration and/or force majeure of its suppliers, licensing requirements and other legal and administrative requirements, all of which apply as force majeure.
6.2. If the force majeure lasts longer than 10 working days, Cogn-IT has the right to automatically terminate the agreement by registered letter, without prior appeal to a court and without compensation. In such event, Cogn-IT will be entitled to payment from the Customer of all delivered goods or services and of the costs incurred for future implementation of the agreement.
6.3. The non-compliance by Cogn-IT of its contractual obligations arising from such force majeure is not a ground for termination, severance or suspension of the Customer's performance of the agreement, nor for a price reduction or compensation for damage.
7. CONFIDENTIAL INFORMATION
7.1. The parties shall treat all information, obtained orally or in writing, in whichever form, that may reasonably be believed to be confidential in strict confidence and not disclose it to third parties without the prior, express, written consent of the other party, unless in case disclosure would be obliged by law or by a judicial authority. In such case, the disclosing party will immediately inform the other party hereof.
7.2. Cogn-IT will have the right to disclose the existence of the agreement with the Customer for publicity and other commercial purposes.
8. INTELLECTUAL AND PROPERTY RIGHTS
8.1. Any intellectual, industrial or other proprietary right (registered or not registered) of work, goods or services that are owned, used or created by Cogn-IT, its employees, consultants or subcontractors in the context of the performance of the agreement (including software, material, technology, skills, know-how and information about its use), remain the exclusive property of or licensed to Cogn-IT and/or its licensors, as applicable. The delivery of goods and/or services by Cogn-IT to the Customer does not imply any transfer of any such right. The fees paid by the Customer shall not be considered as payment for the transfer of any such right. In case the Customer obtains a license to use from Cogn-IT or from a third party through Cogn-IT, such Customer may only use this license in accordance with its terms and conditions. In case the Customer provides material to Cogn-IT, such as software, texts, images, etc. in the framework of the performance of the project, the Customer guarantees that the use hereof will not infringe any intellectual property rights.
8.2. If the parties have expressly and in writing agreed to the transfer of such right, Cogn-IT will remain entitled to this right until the payment of the total price and all additional costs by the Customer (including interest and compensation due to late payment of invoices).
9.1. All contractual obligations of Cogn-IT are obligations to use best endeavours. Cogn-IT does not provide any explicit or implicit warranty regarding the goods or services, including warranties as to fitness for a particular purpose, goal or its merchantability and any software will be provided to the Customer “as is”
9.2. The Customer will always take the necessary measures to safeguard the integrity, safety and maintenance of the software, hardware and all other materials.
9.3. In case of alleged malfunction of the goods or services, the Customer will actively cooperate in all investigations aimed at identifying the cause and taking all steps to ensure evidence that may be relevant.
9.4. All goods or services delivered to the Customer by a subcontractor of Cogn-IT or delivered to Cogn-IT by a third party and which Cogn-IT in turn delivers to the Customer are subject to the terms of warranty and liability which apply between the subcontractor or third party and Cogn-IT.
9.5. Immediately upon delivery or acceptance, the Customer must control the goods and services on their conformity and possible defects. All claims, in order to be valid, related to visible defects must be made by the Customer in detail by registered mail, within seven (7) days after delivery or acceptance of the goods and services and in case of goods with latent defects, any claims must be made in detail by registered mail within two (2) days after discovery of such latent defects and by the latest within two (2) months after delivery of the goods. Cogn-IT is solely responsible for any defect in the delivered goods or the service provided at the time of delivery which manifests itself within a period of 2 months from the date of delivery. In the event of a defect, the Customer is not entitled to a compensation. The Customer is only entitled to the free repair of the goods or the service, or the free replacement of the goods or service, at the choice of Cogn-IT. If the free replacement or improvement is impossible or out of proportion, the Customer only has the right to claim an appropriate price reduction.
10.1. Cogn-IT is not liable for any consequential loss or any indirect damage or loss, or loss of data, data recovery, profits, income, sales or other financial or commercial losses, regardless of whether it is due to non-compliance with its obligations. Cogn-IT will also not be liable in case of damage suffered by any actions or negligence which are not directly and exclusively attributable to Cogn-IT.
10.2. In any case, Cogn-IT's liability to the Customer is limited to 1000 euro per incident, provided that the total liability of Cogn-IT resulting from the agreement will always be limited to 50% of the total value of the agreement.
11. DURATION AND DISSOLUTION
11.1. The duration of the agreement will in principle be until the end of the project, unless another period of time has explicitly been agreed upon in writing.
11.2. In any case, Cogn-IT always has the right to immediately early terminate the agreement without any compensation, without further notice or default notice and without prior appeal to a court: (a) if the Customer is in breach of a contractual obligation and fails to resolve this within 10 working days of Cogn-IT's notification of the defect, (b) in case of a file for bankruptcy, bankruptcy, liquidation, lack of means, or dissolution of the Customer, or (c) if the judicial control of the Customer changes.
11.3. In case of early termination of the agreement, all debts of the Customer, including those not yet due or not yet invoiced, become immediately due and payable.
12.1. During the duration and for 12 months after termination of the agreement, the Customer will not employ, recruit, or directly or indirectly contact any employees, consultants, representatives or subcontractors of Cogn-IT or their personnel involved in the performance of the agreement for recruitment or for a direct or indirect cooperation in any form.
12.2. If the Customer violates this article, he will be automatically liable for a lump sum indemnity equal to the total gross salary of the employee, consultant, representative or subcontractor in question over a period of 12 months prior to the non-compliance of this article by the Customer, which the parties consider as an estimate of the reasonable damage resulting from a violation of this article.
13. APPLICABLE LAW AND COMPETENT AUTORITHY WITH JURISDICTION
13.1. These General Conditions and any other contractual terms between Cogn-IT and the Customer are governed by Belgian law.
13.2. Any dispute will be exclusively settled by the courts of Brussels.