1. APPLICATION AND INTERPRETATION
These are the only general terms and conditions that govern contractual relations between ZEUS SOFT S.P.R.L. incorporated under the company number BE 0647 962 374 and located at Rue Jean Sonet 25/3 – 5032 Isnes in Belgium (hereafter referred to as “ZEUS SOFT”) and the customer. The customer’s general and special conditions are not applicable to ZEUS SOFT. Any agreement between the parties shall automatically mean acceptance of these general terms and conditions. Only special conditions specified in the contract or agreed in writing between the parties may depart from them.
Depending on the context and unless agreed otherwise, in these general conditions (i) the term “customer” also covers the following: prospect, buyer, purchaser, importer, distributor, licensee or any party entering into an agreement with ZEUS SOFT; (ii) the term “contract” also covers the following: offer, proposal, order form, sales, delivery, service (including or not including after-sales, hotline, upgrade or update services), license, distribution contract or any agreement between the parties; (iii) the term “products” also covers the following: IT service, solutions, software, programs, modules, electronic books, codes, keys, databases, proof of concept, applications, hardware, equipment, parts, tools, products, items, packaging, boxes and other accessories, performed, supplied, developed and/or marketed by ZEUS SOFT. These terms shall be construed in the singular or the plural.
2. ORDER AND CONFIRMATION
Offers are not binding. Specifications and data presented in ZEUS SOFT’s service or product information, brochure, price lists or any other documents are purely informative and not binding. Service or product specifications and prices can be modified at any time without prior notice.
3. PRODUCTS, SOFTWARE OR HARDWARE
3.1. Scope of ZEUS SOFT’s obligations: ZEUS SOFT undertakes to do its best to take all reasonable measures to respect its obligations according to the terms and conditions agreed by the parties in their written contract. No commitment of ZEUS SOFT shall be construed as a guarantee of results, except where otherwise specified.
Unless otherwise agreed by the parties, the products will be delivered or the services will be performed only when full payment has been received by ZEUS SOFT. The delivery date(s) is/are not binding. ZEUS SOFT shall be liable only if the delay is the exclusive and direct consequence of flagrant and willful misconduct on the part of ZEUS SOFT. The customer does not have the right to refuse products, to claim for damages or to terminate the contract due to a delay in delivery which is not unreasonably long considering the circumstances. The customer agrees that any change required by him/her that departs from the initial contract may extend the delivery term and increase the price.
In the event that the customer refuses or delays accepting or receiving the products, he/she shall make the payment(s) in accordance with the terms and conditions initially agreed by the parties and reimburse ZEUS SOFT all costs caused by the refusal or delay caused by him/her. ZEUS SOFT has the right to suspend its own obligations to deliver products or to make them available, in the event there is any evidence of insolvency or non-payment on the part of the customer.
3.2. Software: If the contract concerns software, ZEUS SOFT grants the customer an ordinary non-exclusive and non-transferable right to install and use the software product. The user is granted the right to install and use the software on one computer only, except for network licenses which allow use on several computers.
Unless otherwise agreed by the parties, the license rights on the software will be granted to the customer only when full payment has been received by ZEUS SOFT.
Unless otherwise agreed by the parties, the software is delivered by downloading it through Internet, and shall be installed by the customer pursuant to the technical documentation of the contractual software. The software may also be delivered on USB stick at additional cost.
Except where there is specific prior agreement, ZEUS SOFT shall be entitled but is not obliged to develop updates and upgrades of its products. Updates and upgrades may be made available at a charge at the discretion of ZEUS SOFT. The customer may not reverse engineer, decompile or disassemble the software, except and only to the extent that it is expressly permitted by ZEUS SOFT.
3.3. Hardware Products: Unless otherwise agreed by the parties in the order form, hardware products shall be delivered to and received by the customer at ZEUS SOFT’s premises in Isnes, Belgium (EXW – Incoterm CCI 2010). Ownership of a hardware product shall be transferred from ZEUS SOFT to the customer once the latter has paid the price in full, even if the hardware product has been delivered already. The customer shall neither dispose of nor transform hardware products until all sums due have been paid in full to ZEUS SOFT.
4. PRICES AND PAYMENT TERMS
Prices do not include VAT (local sales tax), unless indicated in writing. Prices are only indicative and shall not be construed as fixed or set.
Prices of products are ex-works (EXW – Incoterm CCI 2010), excluding transport, VAT, taxes, special packaging and any costs that are not expressly specified in the contract, unless it is indicated in writing that the transport costs are included.
Unless otherwise agreed by the Parties, all invoices are payable immediately. Payment shall be made in Euros – or another currency previously agreed in writing – by IBAN/BIC/SWIFT wire transfer or other electronic payment method to the account specified on the invoice or otherwise agreed by the parties in writing. All bank transfer costs are to be covered by the Buyer.
Any payment not made on the due date or in accordance with the conditions specified in the contract or on the invoice shall accrue interest at a rate of 1 % per month, with a minimum of 250 EUR per breach, without prejudice to the right to reimbursement of costs or compensation for higher damage. In case of non-payment on the due dates, ZEUS SOFT reserves the right to suspend its own obligations until full payment has been made by the customer or to terminate the contract and keep all installments or payments already made by the customer to ZEUS SOFT, without prejudice to the right to reimbursement of costs or compensation for any direct or indirect damage resulting from a delay of payment suffered by ZEUS SOFT, its customers, or a third party.
5. CONFORMITY AND WARRANTY
Unless otherwise specified in the contract, products are delivered and services performed according to the specifications agreed in the contract or in written agreement(s) made afterwards by the parties. The products are developed and/or manufactured according to Belgian and European requirements. Any additional costs related to change(s) required by the customer which depart from the contract agreed by the parties shall be borne by the customer and may extend the delivery term(s).
ZEUS SOFT does not warrant that use of products will be uninterrupted, timely, secure or free from error, bugs or loss of data or data failure.
ZEUS SOFT reserves the right to make changes in specifications of the products without prior notice or agreement as long as such changes do not affect the performance of the products.
Warranty claims must be made in writing to ZEUS SOFT during the Warranty Period and within seven (7) calendar days of observing the defect, accompanied by satisfactory evidence. All products must be returned to the ZEUS SOFT S.P.R.L. distributor from which they were purchased (if not purchased directly from ZEUS SOFT) and should be shipped by the returning party freight and insurance paid. After the period of seven days, any defect that was not notified to ZEUS SOFT will be considered as being definitively accepted by the customer. The customer may not refuse the products for minor or futile reasons.
ZEUS SOFT warrants for a period of six (6) months from the date of delivery, that the products will be free from hidden defects due entirely and exclusively to a fault of ZEUS SOFT.
ZEUS SOFT is not obliged to warranty defects caused by external elements: wear and tear, alteration, abuse, negligence, misuse, improper or non-reasonable use, transport, loading/downloading, abnormal conditions of temperature or humidity, dirt, caused by the customer or by a third party, intentionally or otherwise.
In the event of a breach of this warranty, ZEUS SOFT’s sole obligation is, at its discretion, to replace or repair, any defective product or component thereof, free of charge, or to refund the cost of the defective product less freight and normal handling charges.
ZEUS SOFT may suspend its obligation of warranty as long as the customer does not meet entirely his/her own obligations. Such suspension does not extend the initial warranty period.
6. LIMITATION OF LIABILITY
If any liability is implied for whatever reason, ZEUS SOFT’s liability shall be strictly limited to direct, typical and foreseeable damages suffered by the customer (excluding loss of data, earnings, profit, goodwill, savings, reputation or clientele, increase in costs and expenses or any indirect damage and loss) that are the exclusive and direct consequences of gross and willful misconduct of ZEUS SOFT. If compensation is due by ZEUS SOFT, it shall not exceed the value of the product delivered and paid.
7. FORCE MAJEURE
The parties are not liable if they do not fulfill their contractual obligations when prevented from doing so by force majeure and where it cannot reasonably be expected of them to have taken such events into consideration at the time of drawing up the contract or to overcome them. This also applies in cases of force majeure that do not entirely prevent the execution of the contract, but nevertheless make it substantially more difficult or more onerous. For example, in the event of a fire, strikes, accidents, illness, natural disasters, destruction of installations or equipment, general lack of supplies or means of transport; delay or non-performance of the obligations of ZEUS SOFT’s suppliers or sub-contractors, computer bugs, technical problems or legal or administrative procedure which delays the fulfillment of one of the party’s obligations.
Under these circumstances the defaulting party must warn the other party as soon as possible, in writing, including satisfactory proof of the case of force majeure. The obligations of the parties who are thus unable to fulfill their part of the contract due to force majeure can be suspended provisionally or renegotiated. In the event that the force majeure lasts for more than 6 months, the contract will automatically be terminated, without indemnity, unless agreed to the contrary by the parties.
8. CONFIDENTIALITY AND INTELLECTUAL PROPERTY
ZEUS SOFT is and shall remain the exclusive and sole owner of its products. The customer shall observe strict confidentiality, shall not disclose to a third party use, copy, imitate, modify, disassemble, decompile, reverse engineer, revise or enhance any technical, development or manufacturing information, technique, process, experimental work, software, program, IT solution, demo, code sources, proof of concept, upgrade(s), improvement, access code, key, trade secret, know-how of ZEUS SOFT or other confidential matters relating to the products, to ZEUS SOFT or to the contract, except where required to fulfill the contract. ZEUS SOFT’s brand names, trade names and logos shall also remain the exclusive and entire property of ZEUS SOFT.
These conditions remain valid even if the contract is cancelled, terminated or nullified and shall continue to do so for an unlimited period of time.
Upon purchasing the product, the customer agrees for ZEUS SOFT to retain the customer’s information (name, surname, address, email and any other data supplied by the customer during the purchase process) in order to contact the customer for commercial and non commercial reasons regarding ZEUS SOFT products as well as any products and information of ZEUS SOFT’s partners. This information may also be shared with ZEUS SOFT’s local reseller in the client’s territory, in order for the client to receive customer care and other useful information. ZEUS SOFT shall not pass any of the customer’s information to any third parties unless specified in writing by the customer.
ZEUS SOFT reserves the right to terminate the contract or suspend its own obligations and recuperate the products delivered, at any time, without prior notice or damages due to the customer, without forgoing its right to reimbursement of costs or compensation for any direct or indirect damage resulting from termination. This includes loss of earnings suffered by ZEUS SOFT, its customers or a third party, for the following reasons:
– in the event the customer does not respect his obligations, delays in respecting them or if it becomes reasonably certain that the customer is not going to respect his obligations or will delay in doing so, according to the terms of the contract;
– in the event of incapacity, bankruptcy, insolvency, protest, seizure, cessation of payments, application for a payment moratorium, amicable or compulsory composition or any other financial difficulties on the part of the customer.
– in the event ZEUS SOFT ceases or changes its professional activities; in the event of force majeure lasting more than 6 months.
In the event of termination or cancellation by the customer not due to flagrant and willful misconduct on the part of ZEUS SOFT, all installments already paid by the customer will be kept by ZEUS SOFT. ZEUS SOFT is entitled to request a minimum indemnification of 30% of the total price, without prejudice to the right to compensation in the event that actual damages are higher for ZEUS SOFT.
10. APPLICABLE LAW AND COMPETENT JURISDICTION
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of Belgium. Any legal suit, action or proceeding arising out of or relating to these Terms will be instituted in the Court of Namur.