GENERAL CONDITIONS
General
These conditions contain the key stipulations that the parties have agreed, form an integral part of all offers and quotations issued by Kappa Data bv, with its registered office at 9810 De Pinte, Grote Steenweg 18 (Belgium), registered in the Crossroads Bank for Enterprises under the number 0463.715.428, Kappa Data Holding bv, with its registered office at 9810 De Pinte, Grote Steenweg 18 (Belgium), registered in the Crossroads Bank for Enterprises under the number 0667.661.886 and all entities of the Kappa Data Group (which can be found on https://www.kappadata.be/kappa-data-holding/)(together referred to as ‘KAPPA DATA’), and apply to all agreements concluded between KAPPA DATA and its customer (‘Customer’) and to all invoices issued by KAPPA DATA, unless expressly agreed otherwise in writing, regardless of whether the Customer’s place of residence or registered office is in Belgium or abroad and regardless of whether the contract is to be performed in Belgium or abroad. These conditions take precedence over all the Customer’s conditions, even if the Customer’s conditions stipulate otherwise.
Subject to proof to the contrary, the Customer is deemed to have taken note of these conditions and to accept them simply by placing their order.
If KAPPA DATA does not apply one or more provisions of these general conditions, this can never be considered as a waiver of these general conditions.
If there is any uncertainty about the interpretation of these conditions, the Dutch text will always prevail.
Prices
Unless agreed otherwise in writing, quotations or offers are valid for eight days and prices exclude delivery, transport and insurance costs, VAT, import and export duties, and other taxes, charges and levies. Quotations or offers are binding only after KAPPA DATA confirms the order in writing.
If all or part of the costs that influence the price rise due to circumstances beyond the control of KAPPA DATA, such as increased duties, increased freight costs, increased energy, prices of components, increased labour costs, changes in the currency exchange rate, etc., KAPPA DATA is entitled, by means of a simple notification, to charge the Customer a proportionate price increase. The quantities sold must be purchased in full. If this is not the case, KAPPA DATA is entitled to demand payment of compensation of an amount equal to the purchase value of the unpurchased goods in question.
Execution
Delivery times are always indicative and determined according to our best prognoses. Failure to comply with these delivery times due to various circumstances cannot give rise to termination of the contract by the Customer and shall not entitle to Customer to claim compensation or refuse to pay. Under no circumstances can a delay in the execution of an order result in any liability for KAPPA DATA.
Shipments
Unless agreed otherwise in writing, the goods will be delivered Ex Works (Incoterms 2020) and shipping is at the risk and expense of the Customer. Depending on the size and type of the shipment, administration and/or shipping costs may be charged.
If KAPPA DATA may deliver the order in parts, it may also invoice each part separately.
Cancelling an order prior to delivery requires KAPPA DATA’s prior written consent. If this consent is given, the Customer will owe KAPPA DATA a fixed compensation equal to 10% of the agreed selling price of the goods, notwithstanding KAPPA DATA’s right to claim more compensation subject to proof of greater damage actually suffered.
If the Customer fails to take delivery of the available ordered goods, KAPPA DATA will be entitled to a fixed compensation for storage, financing and insurance costs equal to 0.10% of the selling price of the goods for each calendar day of delay in taking delivery. This fixed compensation may not exceed 10% of the total selling price of the goods and will not affect KAPPA DATA’s right either to demand specific performance of the agreement with the Customer or to terminate the agreement with the Customer by operation of law, with no prior notice of default and without being liable to pay any compensation to the Customer.
Complaints
The Customer must check conformity of the delivery and for visible defects immediately upon delivery in the presence of the carrier. If applicable, the Customer must reserve its position in writing on the consignment note.
Any delivery shortages or visible defects must also be notified to KAPPA DATA within no more than two business days of delivery, within no more than two business days of delivery with an accurate and specific description of the defect. If no complaint is received within this deadline, the delivery shall be deemed accepted.
Complaints concerning hidden defects must be notified to KAPPA DATA by registered letter with an accurate and specific description of the defect, within no more than eight days of discovering the defect and no later than ten business days after delivery, failing which the complaint will not be deemed admissible.
Late complaints are inadmissible. Putting the sold goods into use, modifying, processing or disposing of them implies their acceptance. The Customer is solely liable if the directions for use and maintenance or instructions of KAPPA DATA and/or its suppliers have not been followed or if the goods have not been handled properly.
If the Customer makes an admissible and justified complaint relating to defects in the delivered goods, KAPPA DATA’s liability will be limited to replacing the goods or reimbursing the price that the Customer has paid for those goods, at KAPPA DATA’s discretion, without KAPPA DATA being liable for any other compensation.
Complaints about defects do not suspend the Customer’s payment obligation.
Defective goods can be returned only with KAPPA DATA’s express written consent and in accordance with KAPPA DATA’s instructions.
Any warranty that KAPPA DATA provides in respect of goods delivered is limited to and will never exceed the warranty that KAPPA DATA receives from its suppliers. The warranty claim applies only after the Customer has paid the invoice in full.
Payments
All our invoices are payable in euros or in dollars according to the invoice which is in euros or in dollars, cash and without discount on the registered office of KAPPA DATA, unless expressly stated otherwise in the agreements concluded between the parties. All costs of collection and protesting, whether of accepted or unaccepted bills of exchange or of bank and discount charges, are payable by the Customer. Invoices unpaid on the due date shall be increased immediately without notice of default by operation of law by an interest of 15% per annum. If an invoice that has fallen due remains fully or partially unpaid on its due date with no justification, the amount due will be increased immediately without notice of default by operation of law by a fixed fee of 15% with a minimum of EUR 12.40, without prejudice to KAPPA DATA’s right to claim more compensation subject to proof of greater damage actually suffered.
If one invoice is not paid on time, (i) all other unpaid invoices become immediately and fully payable by operation of law and with no prior notice of default, regardless of whether these invoices have already fallen due, and (ii) KAPPA DATA may, with no prior notice of default and without being liable for compensation, suspend the Customer’s other orders until the invoice has been paid in full.
Regardless of the agreed payment terms and as soon as KAPPA DATA’s confidence in the Customer’s creditworthiness has been shaken, KAPPA DATA reserves the right, even if all or some of the goods have already been dispatched, to fully or partially suspend further performance and to demand suitable guarantees from the Customer at the Customer’s expense. If the Customer refuses to provide guarantees, KAPPA DATA reserves the right to terminate all or part of the agreement by operation of law, without the Customer being entitled to any compensation, notwithstanding KAPPA DATA’s right to compensation for the damage it has suffered, which is estimated at a fixed rate of 15% of the selling price invoiced or yet to be invoiced for the goods concerned, without prejudice to KAPPA DATA’s right to claim more compensation subject to proof of greater damage actually suffered.
Setoff by the Customer is expressly excluded.
Unless invoices are contested by registered letter within eight days of being sent, they are deemed to have been accepted. Contesting an invoice does not suspend the payment obligation.
Payment conditions Training
Each subscription for a training has to be paid for at least 2 weeks before the training starts. If you subscribe within the two weeks before the training, proof of payment will be asked for before subscription is made. Your subscription must be paid before the training starts.
Rebates
Every rebate programme between KAPPA DATA and a Customer is drawn up in mutual consultation. The terms and conditions of the rebate contract are sent in writing by e-mail and/or post before the start of the period in which the rebate will apply. The Customer shall send its invoice to KAPPA DATA at the latest within six (6) months after the expiry of the period to which the rebate applies. After expiry of these six (6) months, the Customer can no longer claim the rebate.
Retention of title
The delivered goods remain property of KAPPA DATA until they have been paid for in full, including any interest and costs. Even so, force majeure, loss, destruction or theft of the goods are entirely at the Customer’s risk from the moment the goods are delivered, or the Customer fails to take delivery of the goods.
The retention of title also extends to all claims that take the place of the goods subject to retention of title.
The Customer must inform KAPPA DATA of any attachment of the goods delivered under retention of title.
Liability
KAPPA DATA is liable only for damage resulting from its failure to comply with its contractual obligations if and insofar as this damage has been caused by its fraud, deceit, major or deliberate error. KAPPA DATA’s liability is always limited to the amount invoiced. If the damage is covered by insurance, KAPPA DATA’s liability will be limited to the amount paid by its insurer. KAPPA DATA is never liable for indirect damage, including, but not limited to, consequential damage, lost profits, lost savings, production restrictions or stoppages, administration or staff costs, higher overheads, loss of customers, damage to property or animals of the Customer or third parties, third-party claims or damage to third parties.
The Customer is solely responsible for using the goods. The Customer expressly accepts that KAPPA DATA cannot be held liable, and that the Customer will not be entitled to demand termination of the contract or any compensation if damage results from using the goods other than as agreed or as prescribed by KAPPA DATA and/or its suppliers.
Force majeure
KAPPA DATA is not liable if the failure to perform all or part of its obligations, whether temporary or permanent, is due to force majeure, even if this circumstance was foreseeable, including, but not limited to, war, riots, terrorism, general or partial strikes or lock-outs, operational accidents, extreme weather conditions, fire, pandemics, contagious diseases, the failure of KAPPA DATA’s suppliers to comply with their obligations, insolvency of suppliers, electricity, internet, computer network or telecommunication breakdowns, government measures such as a trade boycott or embargo on the goods to be delivered or a component of them, and general transport problems.
If force majeure occurs, KAPPA DATA may, at its discretion and at any time, suspend delivery or terminate the agreement with the Customer with immediate effect, by operation of law, with no prior judicial intervention, with no prior notice of default, and without paying any form of compensation.
Prescription
Any claim that the Customer has against KAPPA DATA will prescribe by operation of law if the related action is not brought before the competent court within six months of the date on which the Customer became aware, or should have become aware, of the facts on which the claim is based, although this cannot be later than twelve months after delivery.
Contractual relationship
All agreements between the Customer and KAPPA DATA form part of a single overall contractual relationship. If the Customer fails to fulfil their obligations under one agreement, KAPPA DATA may suspend the further performance of both that agreement and any other current agreements.
KAPPA DATA may also terminate all agreements with the Customer, with immediate effect, by operation of law, with no prior notice of default, and without paying any compensation, in these cases:
(i) if the Customer continues to fail to fulfil one or more of their obligations under an agreement or continues to fail to do so punctually;
(ii) if the Customer suspends its payments, petitions for or is declared bankrupt, or undergoes any reorganisation;
(iii) if the Customer is liquidated or ceases their activities;
(iv) if all or some of the Customer’s assets are attached.
If termination occurs, all of KAPPA DATA’s claims against the Customer will become immediately payable by operation of law and the Customer must pay KAPPA DATA a fixed compensation equal to 15% of the selling price of the goods, notwithstanding KAPPA DATA’s right to claim more compensation subject to proof of greater damage actually suffered. Amounts that KAPPA DATA has already invoiced before the termination remain due in full.
Applicable law – Jurisdiction
Belgian law governs these general conditions and the agreements to which they apply, to the exclusion of the Convention of 11 April 1980 on the law applicable to the international sale of goods.
Any dispute, either national or international, that arises between the parties, can only be settled by the court of Ghent, Belgium.
Severability
The invalidity or unenforceability of one or more provisions of these general conditions, or part of them, does not affect the validity and enforceability of the remaining provisions. In this case, KAPPA DATA and the Customer confirm that the competent tribunal may moderate that provision to the maximum extent permitted under the applicable law.
Privacy
If KAPPA DATA processes personal data, this will be done in accordance with the privacy statement (https://www.kappadata.be/en/privacy-statement/),of which the Customer may obtain a copy on written request, and in accordance with the General Data Protection Regulation and other applicable regulations.
Network services
In the case of on-site intervention by KAPPA DATA, the Customer is responsible for providing correct information concerning the requested intervention. If this information is not provided, KAPPA DATA will conduct a technical analysis in advance, if deemed necessary, in consultation with the Customer.
The Customer will ensure at its own expense and risk that KAPPA DATA can carry out the on-site intervention under normal conditions and at the agreed time and that the place where KAPPA DATA has to carry out its tasks is freely accessible and fitted with all necessary connections, in the absence of which the Customer will be solely liable for any damage and/or costs arising from this. In no case, KAPPA DATA can be held liable for any loss of data or any indirect damage.