Terms and Conditions

Apticom General Terms & Conditions

1 Applicability

These Terms and Conditions constitute an integral part of the Agreement. Reference to the “Agreement” also includes these Terms and Conditions.

2 Definitions

In these General Terms & Conditions the following terms shall have the meaning given below.

“Agreement” shall mean the written agreement entered into by the Parties to purchase goods or any other agreement or purchase order in which reference is made to these Terms and Conditions, of which these General Terms and Conditions constitute an integral part.

“Change” means a modification, addition, or deletion to, in or from the Purchase Order or a variation of the quantity.

“Change Order” means an order in writing issued by the Customer to Apticom, designated to be a Change order and signed by the Customer, ordering, or authorizing a Change.

“Customer” shall mean the party with whom Apticom entered into the Agreement.

“Goods” shall mean any goods supplied by Apticom to the Customer under an Agreement or a Purchase Order.

“Apticom” shall mean Apticom SRL inscribed at the BCE under nr. BE 0789.765.981.

“Intellectual Property Rights” means any and all intellectual and industrial property rights, including but not limited to patents, inventions (whether patentable or not), trademarks and design rights (registered and unregistered), utility models, copyright and related rights, know-how including trade secrets and any similar rights, whether registered or not, as well as rights of enforcement in relation to any of the foregoing;

“Party” shall mean Apticom and the Customer, individually.

“Parties” shall mean Apticom and the Customer, jointly; and

“Purchase Order” shall mean an order for the Goods in accordance with the Agreement.

3 Scope and undertakings

3.1 These Terms and Conditions apply to, and form part of, any and all agreements on the purchase of Goods by a Customer, unless specified otherwise in the relevant agreement.

3.2 No pre-printed general terms on the Customer’s purchase order or other document issued or referred to by the Customer shall apply (even if Apticom has not explicitly objected to their applicability), unless agreed in writing by Apticom as documented by a specific and explicit confirmation in the Agreement.

4 Purchase Orders

4.1 Purchase Orders must be placed by the Customer in writing.

4.2 No Purchase Order is binding until Apticom has confirmed an order. Apticom will state the estimated delivery time in such confirmation within 72hrs.

4.3 Notwithstanding the provisions in the Customer’s Purchase Order, each contract of sale shall be subject to the terms and conditions contained in these Terms and Conditions, which will be sent attached to the confirmation of the Purchase Order and irrevocably accepted by the recipient if not contested by the recipient within 48hrs.

5 Samples

5.1 The length of the evaluation period is thirty (30) days starting from the date of shipment if nothing else is agreed in writing. After this period, Apticom will invoice the units if not purchased or returned by the Customer.
If the returned parts are broken or in any way damaged, Apticom has the right to invoice them.

6 Prices and Payment

6.1 The price for the Goods is set forth in the Agreement and, unless otherwise agreed in writing, exclude any costs of storage, packaging, handling, duties, if applicable, fees, and taxes in the country of origin.

6.2 If no prices are set forth in the Agreement, Apticom’s price list applicable from time to time shall apply.

6.3 The Customer shall make payment to Apticom in accordance with what is stated in the Purchase Order. Payment shall, unless otherwise stated in the Purchase Order or the Agreement, be made no later than thirty (30) days from the day of the receipt of the invoice, however not earlier than on the date of delivery.

6.4 In the event of delayed payment, Apticom shall be entitled to penalty interest on arrears corresponding to the interest rate applicable for overdue payment in the commercial transactions established by the Belgian Law dated August 2, 2002, commencing the due date until such time when payment is made. Apticom shall also be entitled to compensation for actual recovery costs.

6.5 If the Customer fails to pay by the due date and fails to give agreed securities by the stipulated date, Apticom may also, after having notified the Customer in writing, suspend performance of its contractual obligations until payment is made or agreed securities are given.

6.6 If the Customer has failed to pay the amount due within three months after the due date, Apticom may terminate the Agreement by written notice to the Customer, and in addition to the rights according to clause "6.5" and "6.6", claim compensation for the loss Apticom has suffered. The compensation shall not exceed the agreed purchase price.

6.7 Title to, and ownership of, the Goods shall pass to the Customer upon full payment of the Goods (“réserve de propriété - eigendomsvoorbehoud”). Until full payment has been made, Apticom shall retain, and the Customer hereby grants Apticom a security interest in the Goods delivered to the Customer. The Customer shall agree to promptly execute any documents necessary to perfect and protect such security interest on Apticom’s behalf, to the extent that such retention of title is valid under the relevant law.

7 Change Orders

7.1 The Customer may from time-to-time request Change. Apticom has no obligation to accept a request of Change. If Apticom accepts such a request, the Change shall be ordered by a Change Order.

7.2 Apticom shall within a reasonable time respond to the Change Order in writing, outlining whether they accept the Change Order, the consequences foreseen on the price, the quantities and the delivery date specified in the relevant Purchase Order.

7.3 A Change Order will entitle Apticom to an adjustment of the price of the affected Goods and on the agreed delivery time, provided that the Change Order is not made necessary by an event, circumstance or condition for which Apticom carries the risk or which is due to Apticom’s non-compliance with, or breach of, the Purchase Order.

7.4 The Parties shall use reasonable efforts to reach an agreement on any adjustment of the price and the agreed delivery time and/or other provisions of the Purchase Order affected by a Change.

8 Changes in the Goods by Apticom

8.1 Apticom has the right to deliver the Goods with any product changes made after the date of the Agreement. However, if Apticom has reason to assume that changes may cause technical or financial inconvenience to the Customer, prior approval must be obtained from the Customer.

9 Delivery

9.1 Unless otherwise agreed between the Parties, delivery of the Goods shall be made FCA (Incoterms 2022) to the address stated in the Agreement or in the Purchase Order.

9.2 Deliveries shall take place on the delivery date specified in the Purchase Order. The Customer is aware of and acknowledges that Apticom’s delivery capacity varies depending on, inter alia, the general market conditions. As soon as Apticom has reason to assume that a delay in the agreed delivery could occur, Apticom shall notify the Customer thereof and shall in such case be entitled to reasonable prolongation of the delivery date of up to ten (10) Business Days. Notwithstanding the foregoing, Apticom shall always endeavor to maintain a delivery capacity that enables Apticom to deliver the Goods in accordance with accepted Purchase Orders.

9.3 All deliveries shall be properly packed by Apticom and always with packing and protection sufficient to prevent damage to, or deterioration of, the Goods under normal transport condition.

9.4 Packaging materials are included in the pricing with the exception of customized packaging, for which special settlements will be made.

9.5 Irrespective of the provisions above, the Customer is responsible for feeder roads being accessible from public roads to the delivery point, as well as for the unloading of the Goods.

10 Approval

10.1 As soon as possible after receiving the Goods in accordance with Section "8" above, the Customer shall ascertain whether the delivery has been made in accordance with the Purchase Order and visually inspect to ascertain that there are no external defects or damage to the delivery.

10.2 Any defects or deficiencies which are or should reasonably have been discovered upon inspection in accordance in conjunction with the delivery shall immediately be reported in writing to Apticom, and no later than five (5) days after the Customer’s receipt of the Goods, otherwise the Customer shall be deemed to have accepted the defect or deficiency.

10.3 The Customer shall not have the right to refuse acceptance of deliveries due to minor defects or deficiencies unless they render the Goods unfit for their intended use.

10.4 At the request of Apticom, the Customer shall make alleged defective Goods available to Apticom for inspection and control.

11 Delay

11.1 A delay exists when delivery has not taken place on the agreed delivery date in accordance with section 9.2 above.

11.2 The time for delivery shall be extended by a period which having regard to the circumstances is reasonable if the delay in delivery is caused by one of the following reasons:

a) an act or omission on the part of the Customer, or
b) suspension by Apticom according to Clause 6.5, or
c) any other circumstances for which the Customer is
responsible, or
d) a circumstance which under clause 16 constitutes ground for relief.

11.3 If there is a delay in relation to the date for final delivery of the Goods (agreed final delivery date) with more than ten (10) days, the Customer shall be entitled to liquidated damages for each commenced week of delay with an amount equal to 0,5 % of the total price for the delayed Goods. The liquidated damages shall not exceed a total of 5 % of the total price for the delayed Goods.

11.4 If only part of the Goods is delayed, liquidated damages shall be calculated on the part of the price relating to the Goods, which due to the delay cannot be used in the way intended by the Customer.

11.5 The Customer loses its right to liquidated damages if the written claim for such damage has not been lodged within thirty (30) days after the time when delivery should have taken place.

11.6 If the delay is material, the Customer shall be entitled to cancel the Purchase Order and to terminate the Agreement.

11.7 If the Customer fails to accept delivery on the agreed date, the Customer shall nevertheless make any payment which is dependent on delivery as if the Goods have been delivered. Apticom shall arrange storage of the Goods at the Customer’s risk and expense. If the Customer requires, Apticom shall insure the Goods at the Customers expense.

11.8 If, for any reason for which Apticom is not responsible, the Customer fails to accept delivery Apticom may, by written notice to the Customer, terminate the contract in respect of that part of the Goods which is ready for delivery but has not been delivered due to the Customer’s default. Apticom shall then be entitled to compensation for the loss Apticom has suffered due to the Customer’s default.

12 Defects

12.1 A defect exists when the Goods, upon delivery in accordance with Section "9" above, deviate from the Agreement or the Purchase Order or from that which the Customer otherwise could reasonably expect.

12.2 Apticom shall in accordance with the provisions below, by repair, delivery of new Goods or repayment (as Apticom may choose), remedy any defect in the Goods resulting from faulty design, materials, or workmanship. At the request of Apticom, the Customer shall make alleged defective Goods available to Apticom for inspection and control.

12.3 Apticom is not liable for defects arising out of material provided by the Customer or a design stipulated or specified by the Customer.

12.4 The Customer shall be entitled to present claims appearing within one (1) year from the date of delivery of the Goods. For parts of the Goods that are repaired or replaced, a new liability period of one year will apply (however, under no circumstances is Apticom liable for defects in repaired or replaced Goods for more than two (2) years from the beginning of the original liability period).

12.5 Apticom shall be liable for defects in the Goods only where the defect occurred in conjunction with the Customer’s proper handling of the Goods and in conjunction with their intended purpose. Apticom’s liability does not cover defects caused by circumstances that arise after the risk has been passed to the Customer. The liability does not, for example, cover defects due to conditions of operation deviating from those anticipated in the Agreement or to improper use of the Goods. Nor does it cover defects due to faulty maintenance or incorrect installation on the part of the Customer, alternations undertaken without Apticom’s written consent or faulty repairs by the Customer. Finally, the liability does not cover normal wear and tear or deterioration.

12.6 The Customer shall notify Apticom in writing of a defect without undue delay after the defect has appeared and in no case later the expiry of the liability period specified in Clauses "12.4". The notice of defect shall contain a summary description of how the defect manifests itself. If the Customer fails to notify Apticom in writing within the time limits above, the Customer loses its right to make any claim in respect of the defect.

12.7 If there is reason to believe that the defect may cause damage, notice shall be given forthwith. If notice is not given forthwith, the Customer loses the right to make any claim based on damage which occurs and which could have been avoided if such notice had been given.

12.8 The Customer shall at its own expense provide Apticom access to the Goods and arrange for any intervention in equipment other than the Goods, to the extent that this is necessary to remedy the defect.

12.9 All transport in connection with remedial work shall be at Apticom’s risk and expense. The Customer should follow Apticom’ s instructions regarding how the transport shall be conducted.

12.10 Defective parts that are replaced under Clause "12.2" be placed at Apticom’s disposal and shall become Apticom’s property.

12.11 If the Customer gives such notice as referred to in Clauses "12.6" and "12.7", and no defect is found for which Apticom is liable, Apticom shall be entitled to compensation for the work and costs which Apticom has incurred as a result of the notice.

12.12 Regardless of the provisions of Clause "19.1", termination due to a substantial defect that is not refunded or rectified can only be done for the part of the Goods that cannot be taken into service due to the omission on the part of Apticom.

12.13 Apticom shall have no liability for defects of any part of the Goods arising after the end of the liability period referred to in Clause "12.4".

12.14 Apticom shall have no liability for defects save as stipulated in this Section "12".

13 Limitations of Liability

13.1 Apticom’s maximum aggregate liability under these General Terms and Conditions and the Agreement for any damage suffered by the Customer shall be limited to the total price paid by the Customer to Apticom for the relevant Goods.

13.2 Apticom shall under no circumstances be liable to the Customer for any consequential, incidental, economic, or punitive damage or other indirect loss, including but not limited to loss of business or goodwill, loss of data or loss of revenue, production, or profit, arising out of or in connection with these General Terms and Conditions.

13.3 Apticom shall have no liability for damage caused by the Goods to any immovable or movable property, or for the consequences of such damage if the damage occurs while the Goods are in the Customer’s possession. Nor shall Apticom be liable for any damage to any products manufactured by the Customer or products of which the Customer’s products form a part.

13.4 The Customer shall indemnify and hold Apticom harmless to the extent that Apticom incurs liability towards any third party in respect of loss or damage for which Apticom is not liable according to Section "13.3".

13.5 The above limitations of Apticom’s liability shall not apply if Apticom has been guilty of fraud or gross negligence.

13.6 If a third-party lodge a claim for compensation against Apticom or the Customer for loss or damage referred to in Sections "13.3-13.5" the other Party shall forthwith be notified thereof in writing.

13.7 The Parties shall be mutually obliged to let themselves be summoned to the court or arbitral tribunal which examines claims against either of them based on damage or loss alleged to have been caused by the Goods. The liability as between Apticom and the Customer shall, however, always be settled in accordance with Section 20 below.

13.8 Subject to the limitations stated above, Apticom is liable for claims made by a consumer, in accordance with mandatory law for personal injury or damage to property caused by the Goods.

13.9 Both Parties shall keep and maintain product liability insurance in accordance with customary conditions.

14 Liability for Infringement of Intellectual Property Rights

14.1 The Customer acknowledges that Apticom, or any third party from whom Apticom derives its right, owns, and shall retain all rights, title and interest including any and all intellectual property rights in and to the Goods. Nothing in these General Terms and Conditions shall be deemed as an assignment or transfer of any intellectual property rights from Apticom to the Customer.

14.2 Apticom shall indemnify the Customer against any claim from a third party based on infringement of patents, copyrights, or any other intellectual property rights.

14.3 Apticom shall have no liability for infringement of intellectual property rights arising out of:

a) the Goods being used in a manner deviating from that agreed or in a way Apticom should not have foreseen, or
b) the Goods being assembled with equipment or software not supplied by Apticom, or
c) alternations in the Goods undertaken by the Customer.

14.4 Nor is Apticom liable for infringement of intellectual property rights arising out of a design or construction stipulated or specified by the Customer.

14.5 Defense against the claims referred to in Clause "14.2" shall be for Apticom’s account. Apticom shall compensate the Customer for such amounts as the latter is obliged to pay under a final award or a settlement approved by Apticom.

14.6 Apticom shall only be liable if the Customer without delay informs Apticom in writing of any claim which the Customer receives and allows Apticom to decide how the claim shall be dealt with.

15 Personal Data

15.1 Unless otherwise set forth in this Section, each Party shall be responsible, as a data controller, for its processing of personal data conducted as a result of the Agreement. Each Party must ensure that such processing is conducted in accordance with applicable data protection legislation.

15.2 In connection with Apticom’ s performance of an Assignment, Apticom may from time-to-time process personal data on behalf of the Customer. In such a case, Apticom will be the data processor or sub-processor, and the Customer will be the data controller, or data processor in relation to an end customer, in respect of such processing of personal data.

15.3 If Apticom acts as a data processor, the Parties undertake to conclude and enter into the Customer’s data processing agreement. In any case where Apticom acts as a data processor, Apticom’s processing activities shall be conducted in accordance with applicable data protection legislation, the Customer’s written instructions, as well as in accordance with what has otherwise been agreed between the Parties.

16 Force majeure

16.1 A Party shall be discharged from the consequences of failing to fulfill a specific commitment under the Agreement (excluding payment) where the failure to perform is based on a circumstance beyond the Party’s control and which precludes performance thereof (” force majeure" circumstance). Unless proven otherwise, war, acts of war, epidemic, pandemic, mobilization or general military draft, civil war, fire, flood, and circumstances comparable thereto shall be deemed to be "force majeure".

16.2 Where a Party wishes to invoke a "force majeure" circumstance, the Party shall notify the other Party in writing immediately regarding when the event commenced and when it ceased. Where the Party fails to provide such notice, the Party shall not be discharged from the consequences of failing to fulfill a specific commitment where the failure is based on a force majeure circumstance.

16.3 The time for performance of the relevant commitment shall duly be extended by length of the duration of the force majeure situation.

16.4 Notwithstanding the provisions of these General Terms and Conditions, a Party shall, however, be entitled to terminate a Purchase Order and the Agreement with immediate effect where performance of a specific commitment is delayed by more than six (6) months as a consequence of force majeure.

17 Confidentiality

17.1 During the term of the Agreement and thereafter, each Party undertakes not to disclose information to any third party regarding the other Party’s activities and business which has been disclosed in connection with the performance of the Agreement or all other information which may be regarded as business or professional secrets or information that is subject to confidentiality undertaking by law without the other Party’s consent or to use such information for any other purpose than fulfilment of the Agreement. Information which a Party has indicated as confidential, as well as information disclosed by a Party in connection with the performance of the Agreement shall always be regarded as a business or professional secret. The duty of confidentiality does not include information that a Party can prove has come to its knowledge other than through the performance of the Agreement, or which is generally known. Nor does the duty of confidentiality apply where a Party is obligated to disclose any information under law. Where a Party is obligated to disclose information under law, the disclosing party shall notify the other Party thereof prior to disclosure.

17.2 Each Party shall ensure that the duty of confidentiality set out above is observed by the Party’s personnel, consultants, and contractors/suppliers.

18 Miscellaneous

18.1 Neither Party may assign its rights and obligations under the Agreement, fully or partially, to any third party without the other Party's written consent, which shall not be unreasonably withheld.

18.2 Changes and additions to the Agreement shall be in writing and duly executed by the Parties.

18.3 If any provision of the Agreement or the application of it shall be declared or deemed void, invalid or unenforceable in whole or in part for any reason, the remaining provisions of the Agreement shall continue in full force and effect And in the event that one of the clauses, or part of a clause, of this agreement is declared null and void, Parties shall negotiate in good faith the conclusion of a new clause, or part of a clause, that pursues the same economic objectives as those pursued by the invalidated clause or part of the clause "18.4"

18.4 All requests, notifications, demands or other notices under this Agreement must be in writing and sent by one Party to the other Party in the manner set forth in this section, and to the address specified above or other address agreed between the Parties.
Such notices shall be deemed to have been received by the recipient if:

a) delivered by courier, on the day of delivery;
b) sent by registered letter, three (3) business
days after posting if posted in Belgium or five (5) business days after posting if the sender or recipient is outside Belgium; or
c) sent by e-mail, on the day of receipt.

19 Sanctions

19.1 The Customer undertakes to ensure that neither the Customer and none of their members, management, affiliates or any person acting on behalf of the Customers nor its owner(s) is:

(i) listed on any Sanctions List;

(ii) located or organized in any country or territory subject to country or territory-wide Sanctions;

(iii) a person with whom Apticom is prohibited from engaging with by reason of any Sanctions; or

(iv) otherwise a subject of Sanctions.

19.2 If at any time, during the term of this Agreement, Customer is in breach of clause "19.1" above, Apticom may suspend performance under the Agreement, immediately terminate the Agreement and/or claim damages resulting from the breach.

20 Termination

20.1 Without prejudice to any remedy it may have against the other Party for breach or non-performance under the Agreement, either Party shall have the right to terminate the Agreement with immediate effect if the other Party:

a) commits a material breach of an obligation under theAgreement and, if the breach is capable of remedy, fails to remedy the said breach within 30 days following the receipt of written notification referring to this section; or
b) has suspended its payments, is the subject of a bankruptcy petition, commences negotiations for a composition with its creditors, enters into liquidation or applies for any other insolvency related procedure or may otherwise be deemed to be insolvent.

20.2 Notice of termination shall be given without undue delay after the circumstance constituting the breach was or should have been known to the aggrieved party.

20.3 Termination does not entitle the Customer to return any delivered Goods.

21 Disputes and Governing Law

21.1 The Agreement (including these Terms and Conditions) shall be governed by and construed in accordance with the laws of Belgium.

21.2 With exception in the event provided in article "21.4" hereunder, any dispute, controversy or claim arising out of, or in connection with, the Agreement, or the breach, termination, or invalidity thereof, shall be finally settled under the CEPANI Rules of Arbitration. The Arbitral Tribunal shall be composed of three arbitrators The place of the arbitration shall be Brussels and the arbitration shall be conducted in the French language. The parties expressly exclude any application for setting aside the Arbitral Award.

21.3. The amount in dispute includes the claims made in the Request for Arbitration and any counterclaims made in the Answer to the Request for Arbitration.

21.4 If the amount in dispute does not exceed EUR 200.000,00 the dispute shall be settled by the Brussels competent Court and in first instance by the Brussels Undertaking Court (“Tribunal de l’entreprise de Bruxelles – ondernemingsrechtbank Brussel”).