Article 1. Scope and definitions
1.1. These General Conditions (hereinafter “the General Conditions”) apply to all services (hereinafter “the Services”) performed by KPD Services (hereinafter “KPD”) for an individual – or legal entity (whether or not under public law) (hereinafter “the Client”).
1.2. No provision in any documents of the Client (including his general terms and conditions) shall apply to the performance delivered/to be delivered by KPD. If written preference would be given to other general conditions, the General Conditions shall apply additionally.
1.3. By entering into an agreement with KPD, the Client acknowledges that he has read and acknowledges the applicability of the General Conditions. The Client declares to know and understand the meaning of all technical terms contained in the General Conditions, any supplements thereto and in the offer.
Article 2. Quotation, order and agreement
2.1. Unless otherwise stated, price quotations issued by KPD shall have a validity of maximum 1 month.
2.2. Quotations are provided by way of information on request, without obligation and without commitment on the part of KPD.
2.3. The price is that which appears in the quotation and/or order. Price calculations are indicative and not binding
2.4. The price does not include travel expenses, training costs and VAT, unless expressly stated otherwise in writing.
2.5. Orders are valid only if they have been expressly accepted in writing by KPD. A separate written and express acceptance is
required for each order.
2.6. The Customer shall be bound by its acceptance of a price offer or by confirmation of KPD’s order confirmation. The agreement between KPD and the Customer shall be established only upon the express acceptance or unreserved performance of the services by KPD.
2.7. In case of cancellation of the order, rescission of the agreement or inability to execute it due to the fault of the Customer, KPD’s damages shall be estimated at least at 30% of the price, without prejudice to KPD’s right to prove any higher damages or to claim performance of the agreement. If KPD has already started the execution of the order/Services, the Customer shall owe the compensation for the Services already provided, plus 30% of the amount representing the remaining Services, without prejudice to KPD’s right to prove any higher damage or to claim further execution of the agreement. If the Services are the subject of a continuing performance contract, the Customer shall be liable to pay the fee corresponding to the remaining duration of the contract.
2.8. From the date of the notice of default to pay such damages, a default interest of 10% shall be payable on the amount of damages.
2.9. Scheduled appointments at which KPD will provide Services may be cancelled without cost if the cancellation is made by electronic mail at least 24 hours in advance. Failing this, the scheduled service will be invoiced in full without prior notice. If the cancellation takes place before 14 hours of the day before the planned intervention, only 50% of the planned service will be charged.
2.10. KPD reserves the right to suspend the execution of an order and/or its Services when an invoice is not paid by the due date or when the Customer demonstrates financial insolvency or negative solvency.
2.11. In any case, KPD retains all its intellectual property rights to the concept of the delivered software. Without the prior written consent of KPD, they may not be further used, copied or traded in any way.
Article 3. Payment
3.1. Invoices are payable on the due date indicated on the respective invoices. Invoices are payable at the registered office of KPD in Halen unless expressly stated otherwise. Unless otherwise stated, invoices are payable by the Customer as follows:
− SaaS agreements: annually for the following year’s Services
− Licence and hardware agreements: 30% upon order (immediately), 70% upon delivery/installation
− Maintenance: annually before the applicable due date
− Customisation: on a monthly basis in proportion to the work performed or on the basis of the price determined in quotation
− Accompanying and other services: on a monthly basis in proportion to the service performed
3.2. The invoice is paid when the full amount mentioned on the invoice is received in KPD’s bank account. All bank charges associated with the collection of the amount shall be borne by the Customer. Appointees of KPD are not authorised to receive payments.
3.3. Invoices that are not disputed by registered letter within eight days of dispatch are considered to be definitively accepted.
3.4. If an invoice is not or not fully paid on the due date, it shall automatically and without prior notice be increased by a fixed compensation of 10% on the outstanding balance with a minimum of 50 EURO. Default interest shall also be due ipso jure and without prior notice of default at 10% from the due date of the invoice (if the legal interest rate is higher, it shall be applied). In addition, lawyer’s fees, and any other relevant collection costs, incurred for the collection of outstanding invoices will be charged to the Customer.
3.5. Late, incomplete or non-payment of one due invoice automatically makes all non-due invoices due. Delay interest is due from the moment the non-due invoices become due.
3.6. KPD may at any time require the necessary safeguards from the Client.
3.7. To the extent the Customer fails to comply with any payment terms or other commitments, KPD has the right to suspend its obligations in relation to other ongoing contracts between the parties.
3.8. The Customer cannot apply set-off.
Article 4. Execution of the agreement – availability – guarantee – support – training
4.1. KPD shall perform its undertakings contained in the Agreement to the best of its ability. KPD only guarantees that the Services have been developed with normal professional care in a careful and competent manner. KPD does not offer any guarantee regarding commercial and/or other risks related to the Services.
4.2. Unless otherwise agreed between the parties, the Services are provided and/or licensed “as is”, “with all faults” and “as available”.
4.3. If the agreement provides for (delivery) periods, these are always indicative, unless otherwise agreed between the parties. Delay in payment by the Customer of certain advance payments, may give rise to a proportional extension of the execution or delivery period.
4.4. All cases of force majeure discharge KPD from liability as far as the non-performance of its obligations within the set time period is concerned. In case of force majeure, KPD shall be entitled to either suspend or cancel the agreement insofar as it has not yet been performed during the period of force majeure without KPD being liable for compensation. “Force majeure”, for the purposes of the General Conditions, shall mean any event beyond the reasonable control of KPD, including but not limited to strikes, lockouts, delays or interruptions in transport, acts of war, riots, fire, orders, ordinances or regulations of the government or the administration, weather conditions which temporarily make performance of the agreement difficult or impossible, acts of third parties,… regardless of whether these problems occur at KPD or at Customer and without KPD being obliged to demonstrate their influence.
4.5. Regarding warranty, KPD only applies the standard warranties granted by manufacturers on their products. With regard to guarantee on software development, services or installations performed by KPD, KPD shall provide guarantee and support on the software, services and installations delivered by KPD for a maximum period of 1 month after delivery and/or commissioning by the client. This guarantee and support shall only be free of charge and at the expense of KPD insofar as it concerns actual and demonstrable production errors in software, services or installations delivered by KPD. In all other cases, this support is payable. KPD cannot be held responsible for incorrect use, manipulations and negligence by the client nor in cases of force majeure. KPD considers it the responsibility of the client-client to provide it with all, complete and clear information and cooperation necessary for the successful implementation and operation of software development, services or installations by KPD. KPD distances itself from all responsibility and liability if this has not been respected by client-client.
4.6. KPD does not provide training in its delivered software, services and installations unless expressly stated in the offer.
4.7. Deviations from all these provisions can only be made on an exceptional basis and subject to the express written agreement of each of the parties.
Article 5. Liability
5.1. In no event shall KPD be liable for any damages arising indirectly from the use of the Services. In no event shall KPD be liable for any indirect damages (including but not limited to loss of profits, loss of savings or professional opportunities, loss of data or Data, third party damages, business interruption, business stagnation, personnel costs).
5.2. The Customer acknowledges that KPD cannot be held liable for erroneous, incorrect or unforeseen use of the Services by the Customer.
5.3. In any case, KPD’s liability shall be limited to the refund of the price of the non-conforming part of the Services/Delivery and cannot give rise to any other compensation.
5.4. The Customer shall indemnify KPD against all claims from third parties. KPD shall in no way be held liable for defects and dysfunctions in products or services originating from third parties or for negligence, omission or default of such third parties.
Article 6. Retention of title and risk regulation
6.1. The materials delivered shall remain the property of KPD until payment in full, including, where applicable, default interest and liquidated damages. If the Customer has not yet paid the purchase price of the materials (in full), the Customer shall notify third parties (e.g. a receiver or creditors) by registered letter of KPD’s ownership, whenever circumstances so require, including, but not limited to, the case in which a third party threatens to seize or has seized the goods. The Client shall immediately notify KPD by registered letter and, at its own expense, take the necessary actions to safeguard the property of KPD.
6.2. In case of non-payment of an invoice on the due date, in addition to the immediate termination of the agreement in accordance with Article 7 of the General Terms and Conditions, KPD shall have the right to reclaim the materials already delivered while retaining the sums already settled as compensation.
6.3. Client agrees that, upon first request by KPD, the location of the materials will be communicated and that they will be made available again to KPD at the expense and risk of Client, if requested by KPD. To the extent necessary, Client grants KPD an irrevocable mandate to repossess as well as a mandate to enter the necessary premises for this purpose.
6.4. The risk of the Services and the materials sold shall pass to the Customer at the time of the conclusion of the agreement. This also includes the risk in case of strange cause, coincidence and force majeure, or similar circumstances on the part of any party.
Article 7. End of agreement
7.1. KPD shall have the right to terminate the agreement by the simple expression of its will without a reminder or any formality in the following cases: 1. Dissolution or transfer of the Client’s business or indication that the Client ceases his professional activity, 2. Cessation of payment by the Client, 3. Application for a moratorium by the Client, 4. Bankruptcy of the Client, 5. Death of the Client, 6. seizure at the customer’s expense
7.2. Parties have the right, in case of non-compliance with any commitment provided in the agreement, to proceed to extrajudicial dissolution (without prior notice of default being required), or – at the choice of the parties concerned – to request forced execution of the agreement, all this without prejudice to KPD’s right to compensation for damages in case of (premature) termination of the agreement. Such damage shall be assessed on KPD’s behalf at a flat rate of 30% of the agreed invoice amount, without prejudice to KPD’s right to prove any higher damage.
7.3. The Client shall have to bear any consequences, harmful or costly to KPD, of his negligence. All that the Customer owes to KPD shall become immediately due and payable in full in such case.
Article 8. Other provisions
8.1. The nullity or non-applicability of one or more of these provisions shall in no way affect the validity of the other terms and conditions. The nullity or non-applicability of one or more of these provisions shall under no circumstances constitute a reason to terminate the agreement.
8.2. If KPD has not or not fully exercised one or more of its rights under the General Conditions or the Agreement during a period, the Customer cannot derive any rights therefrom. If KPD does not deny the Customer access to the Services after the determination of non-compliance with any commitment by the Customer, this shall in no case constitute a waiver of rights. Where departures from the General Terms and Conditions and/or the Agreement have been expressly or tacitly granted by KPD for a shorter or longer period of time on any point, this shall not affect KPD’s right to strict compliance with the General Terms and Conditions and/or the Agreement for the future and/or otherwise.
8.3. Unless otherwise agreed, the Customer cannot transfer the Agreement to a third party without the prior written consent of KPD.
Article 9. Competent court and applicable law
9.1. In the event of a dispute concerning an agreement between the Customer and KPD, whatever the nature and place of delivery or performance, the Courts of Leuven shall have exclusive jurisdiction. The parties shall elect domicile at the addresses indicated in the agreement, invoice or order form. If the addresses differ, the aforementioned order will determine the correct address. All deeds and writs will be served at these addresses. However, KPD reserves the right to serve the documents at the last address provided by the Client to KPD.
9.2. The agreement is subject to Belgian law.
Impotant : Only the Dutch version of our General Conditions is legally binding. Please contact us if you have any pecific questions. Version: Oct ’22