General terms and conditions of sale
1.Definitions
‘Seller’: Brainscape NV, with registered office at 2900 Schoten, Kanaaldijk 353 and registered in the CBE under number: 0444.532.688.
‘Goods’: All goods offered by the Seller.
‘Buyer’: Any party acting as a buyer of Goods from the Seller, whether a natural person or a legal entity.
‘Party’: Buyer or Seller.
‘Parties’: Buyer and Seller.
‘Consumer’: Any natural person who purchases the Goods made available by the Seller exclusively for non-professional purposes.
2. General
These General Terms and Conditions of Sale apply to all sales of Goods by the Seller to a Buyer. They replace any previous general terms and conditions of sale of the Seller. The possible application of the Buyer's general terms and conditions is hereby also expressly excluded. By placing an order with the Seller, the Buyer is deemed to have accepted these General Terms and Conditions of Sale in full and without reservation. Any deviation from these General Terms and Conditions of Sale is only possible with the specific written approval of the Seller. The possible invalidity of any provision of these General Terms and Conditions of Sale shall in no case entail the invalidity of the other provisions. In that case, the parties shall endeavour to replace any invalid provision with an equivalent and valid provision.
3. Prices, invoicing and payment
The prices quoted and displayed are net amounts and expressed in euros. All taxes, duties or levies are payable by the Buyer, as are any postage or transport costs. If the Buyer is a Consumer, the prices include VAT and all other taxes payable by the Buyer. Each invoice will be sent to the address stated on the order form. Each invoice will be considered accepted in the absence of a written and clearly defined protest within 5 days of the invoice being sent. Unless otherwise stated, invoices are payable in cash and immediately at the Seller's registered office, unless otherwise agreed. The Seller's agents, sales representatives, subcontractors or other appointees are not authorised to collect invoices. However, an incomplete or disputed delivery does not entitle the Buyer to defer payment. Failure to pay a single invoice on its due date shall render the balance due on all other invoices, even those not yet due, immediately payable by operation of law and without notice of default. Any amount remaining unpaid on its due date shall bear interest at an annual rate of 10% from the due date by operation of law and without notice of default. Furthermore, for any late payment, the Buyer shall owe, by operation of law and without notice of default, a fixed compensation amounting to 10% of the total amount, with a minimum of EUR 250, without prejudice to the recoverability from the Buyer of the costs of any legal proceedings.
4. Ordering and delivery of Goods/Services
4.1 Ordering
All quotations for Goods are only valid for 30 days after they have been sent to the Buyer in writing. By signing the quotation or order form, the Buyer makes a definitive and irrevocable commitment to the order. Changes to the order or cancellations at the Buyer's request require the Seller's written consent to take effect. All costs arising from such changes or cancellations shall be borne by the Buyer. The Seller has the right to charge a deposit for each order or to request full payment of the total amount in advance. In such a case, the order will only be considered and executed after payment of the requested deposit or full amount. Payment of the requested deposit or amount shall in any case constitute acceptance of the quotation or order form. The Seller reserves the right to suspend or cancel the order in whole or in part, while retaining the advance payment or amount already paid, if the order is contrary to public order or morality or to any legal or regulatory provision, or if the Buyer fails to fulfil its obligations towards the Seller. The Seller also reserves the right to make changes and additions to the specifications of Goods at any time during the execution of an order, as a result of technical developments of the Goods or economic conditions. However, in the event of a change in specifications, the Seller guarantees equivalent functionality and performance of the Goods.
4.2 Delivery/Availability
The Seller shall specify a (start) date or period for delivery, availability or performance when confirming an order. Dates and periods are indicative only and are not binding on the Seller, unless expressly agreed otherwise in writing. Any exceeding of such a date or period shall in no case give rise to a penalty, compensation or cancellation of the order. Delivery by the Seller shall in any case take place within 30 calendar days of the order. If this is not possible, an additional delivery period will be agreed with the Buyer, or the Buyer will have the option to cancel the order. Unless another place of delivery has been agreed between the Parties, delivery will be ex works (‘EXW’ - Incoterms 2011). All transport or delivery shall be at the expense and risk of the Buyer. The Seller reserves the right to make partial deliveries, make goods available or perform work and issue corresponding partial invoices. The Buyer must facilitate the effective delivery, receipt or execution of the Goods. The Buyer shall bear, by operation of law and without prior notice of default, the costs and risk of all Goods that are not definitively accepted by him or an authorised representative on the agreed date, including at the factories of the Seller or his appointees/subcontractors. Any costs (call-out charges, storage costs, etc.) arising from this shall be charged to the Buyer by operation of law and without prior notice of default from the agreed (start) date. Failure to collect or definitively approve Goods on the agreed (start) date shall not affect the chargeability of the agreed price.
4.3 Retention of title
Notwithstanding Article 1583 of the Civil Code, Goods remain the property of the Seller until the Buyer has paid the relevant invoice(s) in full, regardless of the transfer of risks. The Buyer undertakes to respect the Seller's rights vis-à-vis third parties and not to dispose of, process or incorporate the Goods before payment of the full purchase price, except with the Seller's written consent.
5. Guarantees - Warranty
5.1. Acceptance/delivery of the Goods covers all visible defects with regard to the Seller. The Buyer is also obliged to check the quantity/quality/good condition of the Goods upon delivery. If no written comment is made within a period of 8 calendar days, the delivery will be deemed to have been made correctly. After this period of 8 days, no further complaints will be valid. Following a valid notification of a defect, the Seller must be given the opportunity by the Buyer to investigate this defect and provide the most appropriate solution. The Seller shall have the choice between repair or replacement (if necessary, with an equivalent product due to technical changes). Only if repair or replacement is not possible shall the Goods be taken back by the Seller and only the price of the Goods be refunded. In such a case, the Buyer shall not be entitled to any compensation in excess of this amount.
5.2. If the Buyer is a Consumer, they will be entitled to a 1-year warranty from the date of delivery for any lack of conformity that becomes apparent within 1 year. This warranty can only be invoked if the Consumer reports the defect within 2 months of the day on which the Consumer discovered the defect. After the 1-year warranty period has expired, the rules on hidden defects as set out below shall apply. The Seller is obliged to indemnify the Buyer for any hidden defects in the Goods sold which render them unfit for the use for which the Buyer intends them, or which reduce their use to such an extent that, had the Buyer been aware of the defects, he would not have purchased the Goods or would only have purchased them at a lower price. In the event of a hidden defect, the Buyer has the choice of either returning the Goods and having the price refunded, or keeping the Goods and having part of the price refunded.
6. Liability
6.1. Except in the case of intent or gross negligence on the part of the Seller or its staff or agents, the Seller shall not be liable for any damage suffered by the Buyer or a third party as a result of the failure or improper functioning of the Goods and their functioning after implementation, nor for damage resulting from the failure or improper functioning of the Goods and their functioning after implementation, nor for damage resulting from the failure or improper functioning of the Goods and their functioning after implementation, nor for damage resulting from the failure or improper functioning of the Goods and their functioning after implementation, nor for damage resulting from the failure or improper functioning of the Goods and their functioning after implementation not liable for any damage suffered by the Buyer or a third party as a result of the Goods not functioning or not functioning properly and their functioning after implementation, nor for damage resulting from late, incorrect or incomplete deliveries, provisions or implementations of Goods.
6.2. Although the Seller undertakes to certify the destruction of any personal data that may still be present on the Goods, the Buyer acknowledges that data destruction is not possible for Goods that can no longer be started up (‘dead on arrival’) and are delivered to the Seller as such, as a result of which it is no longer possible to verify whether personal data is still present on the Goods. The Seller shall notify the Buyer of this by labelling the Goods as ‘dead on arrival’. [YC1] Except in the case of intent or gross negligence on the part of the Seller or its staff or agents, the Seller shall not be liable for any damage suffered by the Buyer or a third party as a result of the lack of data destruction, even if the Goods can still be started up after their sale to the Buyer and it appears that personal data is still present on the Goods.
6.3. The Seller shall in no event be liable for any indirect damage, consequential damage, immaterial damage or business damage. In the event of liability for direct damage, any compensation shall never exceed the price of the Goods and services provided by the Seller. However, any limitation of liability shall not apply if the damage concerns physical injury or death.
7. Subcontracting
The Seller shall at all times be entitled to engage subcontractors for the delivery, installation or execution of Goods, in accordance with, among other things, the standards, conditions and guidelines.
8. Force majeure
Any order for Goods may be cancelled by either the Seller or the Buyer with immediate effect upon simple written notification and without compensation, or its execution may be postponed if a situation of force majeure arises after the order has been accepted, such as (but not limited to): labour dispute, natural disaster, fire, mobilisation, requisition, embargo, prohibition on currency transfer, insurrection, lack of means of transport, general supply problem, restriction of employment and energy, pandemic and any other event beyond the Seller's control.
9. Notifications
All notifications between the Buyer and the Seller shall be made in writing to the address stated on the order confirmation.
10. Amendments
The Seller reserves the right to amend these General Terms and Conditions of Sale at any time. In the event of changes during the execution of the order, the Seller shall notify the Buyer of the amended text. In the absence of a written objection within fourteen days of notification of the amended text, the Buyer shall be deemed to have agreed to the amended text and this amended text shall be binding on the Buyer for the current order.
11. Processing of personal data
In the context of a sale of Goods by the Seller to the Buyer, the Seller will process the Buyer's personal data. When processing personal data, the Seller will comply with the Privacy Policy, which forms an integral part of these General Terms and Conditions of Sale and can be consulted on the website [https://www.brainscape.eu/nl/privacy-verklaring].
12. Competent court - Choice of law
The Buyer's order for the Goods and these General Terms and Conditions of Sale are exclusively subject to Belgian law. In the event of a dispute concerning a sale or the General Terms and Conditions of Sale, such dispute shall be submitted exclusively to the competent courts located in Antwerp, Antwerp division (Belgium). If the Buyer is a consumer, this jurisdiction is not exclusive and the court of his place of residence shall have jurisdiction if this differs from the court designated above.
Consumers also have the option of resorting to alternative dispute resolution via the Consumer Ombudsman Service (North Gate II, Koning Albert II-laan 8 Bus 1 1000 Brussels, tel: 02 702 52 00, contact@consumentenombudsdienst.be, www.consumentenombudsdienst.be/nl) . If you are a consumer residing in a European country other than Belgium, please refer to the European Commission's online dispute resolution portal: https://ec.europa.eu/odr.
Last update: 08/06/2022