General Terms and Conditions of Iristick NV¶
1.1. These terms and conditions (“Terms and Conditions”) apply to all contracts under which Iristick NV with office at 2018 Antwerp, Lamorinierestraat 123, and registered under the number 589.956.671 (“Iristick”) supplies services or goods (jointly “Products”) to any a physical or legal person, including resellers (“Buyer”). Iristick and Buyer are hereinafter referred to as “Party” individually and “Parties” collectively.
The Terms and Conditions and the Order or Offer accepted in accordance with the Terms and Conditions shall constitute the entire agreement between the Parties (“Agreement”) which shall supersede all prior discussions, agreements and understandings of any nature between them and shall not be modified unless such modification is agreed by Iristick in writing explicitly referencing the modified aspect of the Agreement.
1.2. By accepting an Offer, by placing an Order or executing the Agreement (i.a. by full or partial payment of the Price), Buyer shall be deemed to have unconditionally accepted these Terms and Conditions which shall be binding upon Buyer regardless any stipulations to the contrary in any document issued by Buyer. In case of conflict between the Terms and Conditions and any terms and conditions issued by Buyer, the former shall prevail, notwithstanding any stipulation to the contrary in the latter and no stipulation contradicting the Terms and Conditions shall be binding on Iristick unless explicitly agreed by it in writing.
2. Offers, Orders and Acceptance¶
2.1. Iristick may send an offer (“Offer”) to Buyer. Only Offers made in writing and which identify the Price and the Product specifications may become binding on Iristick. No information provided by Iristick by any other means (including any price information provided by Iristick on its website or in its promotional material, including brochures, technical documents and catalogues) shall be binding on Iristick.
No Offer acceptance by Buyer shall be binding upon Iristick before and unless such Offer is accepted unconditionally Buyer in writing and Iristick may cancel any Offer that has not been unconditionally accepted by Buyer. If Buyer modifies the terms or conditions proposed by Iristick in an Offer, such modifications shall not be binding upon Iristick unless they are accepted by Iristick in writing. Execution of the Agreement by Buyer (i.a. by full or partial payment of the Price) shall de deemed to constitute unconditional acceptance of the Offer.
2.2. All orders made by Buyer (“Order”) shall be made in writing and shall identify the ordered Product, including its specifications, and the ordered quantity. The (confirmation of the) receipt of an Order by Iristick shall not constitute the acceptance of the Order by Iristick and Iristick shall have the right to refuse any Order. Only unconditional confirmation of an Order by Iristick referring to an Order's number and confirming acceptance of the Order shall be binding upon Iristick to the extent that any information, price or quantity indicated in an Order is specifically confirmed by Iristick in writing.
Execution of the Agreement by Iristick (i.a. by delivering the Product) shall however be deemed to constitute acceptance of the Order by Iristick.
2.3. Buyer may not cancel or modify any Order after its acceptance by Iristick or any Offer after its acceptance by Buyer. Should this be the case, all losses, costs and expenses incurred by Iristick in relation to such Offer or Order and/or in relation to such cancellation or modification shall be borne by Buyer and shall de invoiced to him by Iristick.
3. Price, Invoicing and Payment Terms¶
3.1. Buyer shall pay the price for the Product (“Price”) as agreed in the Agreement.
Unless otherwise expressly agreed upon, all Prices shall be Ex Works [place], exclusive of the VAT, net and shall not include shipping costs, taxes, fees, levies, custom duties and the like which are payable in connection with the delivery of the Product which, if they have been advanced by Iristick, Buyer shall refund to Iristick against adequate evidence of payment by Iristick.
3.2. Iristick shall issue invoices to Buyer per confirmed Order or Offer. Each invoice shall set forth in reasonable detail all the necessary information in terms of price calculation and Product specifications. Buyer shall notify Iristick in writing of any objections regarding an invoice within ten (10) business days from the date on which the invoice is issued, failing which Buyer shall be deemed to have accepted the invoice.
3.3. Unless otherwise provided on the invoice or if other payment terms have been agreed in writing, all Iristick invoices are payable within thirty (30) calendar days from the invoice date into the bank account indicated by Iristick, in freely available funds, in EUR and without any deduction for cash discount, expenses, taxes, levies, fees and the like. Payment shall be deemed to be made on the date that the paid sum is available on Iristick's bank account.
If Buyer fails to make a timely payment, Buyer will be liable for payment, without prior notice being required, from the maturity date of the invoice and until payment in full of the invoice, of default interest at a rate of twelve (12)% per year as well as of a compensation for administrative and debt collection expenses equal to fifteen (15)% of the unpaid amount, without detriment to Iristick's right to compensation for losses, damages and costs effectively suffered as a result of Buyer's late payment. Payment of default interests and of the compensation do not free Buyer from its obligations to make full payment of the amounts due.
3.4. A delay in the delivery of Products that is not exclusively attributable to Iristick or that is due to reasons beyond Iristick's control, shall not entitle Buyer to suspend or withhold any payment to Iristick. Buyer shall not set-off any a claim he may have against Iristick against the Price.
3.5. If (a) Buyer fails to make payment in due time, or (b) Buyer fails to provide agreed securities or (c) Iristick has reasons to believe that a Buyer shall fail to make timely payment in full of any amount due under the Agreement to Iristick, then, without prior written notice, all outstanding amounts due by Buyer (including unmatured invoices) shall immediately become due and payable and Iristick shall have the right to terminate and/or to suspend the Agreement and/or the delivery of the Product until, to Iristick's sole discretion, Buyer fully complies with its obligations and/or new terms of payment are agreed and/or Buyer provides satisfactory security for payment, without detriment to Iristick's rights under the applicable law in particular with regard to compensation for losses, damages and costs suffered as a result of Buyer's breach.
4. Supply of the Products¶
4.1. The Products to be supplied under the Agreement are exhaustively specified in the Agreement. Unless agreed to the contrary, Iristick shall supply Products according to its standard specifications and shall not have the obligations to deviate from such specifications. Iristick shall be entitled to make any changes to the Products without Buyer’s agreement provided such changes constitute improvements to the same and do not result in a price increase.
4.2. Buyer shall be exclusively responsible for the compliance of the (use of the) Products with any legal provisions, standards and regulations, including health and safety regulations, applicable in the territory in which the Products shall be used and shall inform Iristick about all such standards and regulations at the latest when placing an Order or accepting an Offer. Iristick shall have no obligation to supply any Product or to modify any Product to comply with the said legal provisions, standards and regulations.
Iristick shall not be liable for and Buyer shall indemnify and hold harmless Iristick for and against the (results of the) non-compliance of the Products with legal provisions, standards and regulations about which Iristick was not informed in accordance with Clause 4.1 and which were not agreed in the Agreement.
4.3. Iristick reserves the right to make partial supplies, which are considered as partial sales and which shall not entitle Buyer to refuse to pay the Price for Products effectively supplied.
4.4. If a supply term or date is agreed in the Agreement, Iristick shall supply the Products within such a term or on such a date. No supply term shall however commence unless on its intended commencement date (i) all documents required for the performance of the Agreement and to be provided by Buyer are in Iristick’s possession, (ii) Product specifications are agreed on and all formalities required for the delivery of the Product, such as, but not limited to, import, export, transit and payment permits, are completed, (iii) Buyer has fulfilled all its obligations under the Agreement (including obligations regarding pre-payments and the agreed securities (if any) and (iv) no force majeure events, acts of god and other circumstances independent of Iristick’s affect Iristick, Buyer or a third party which Iristick cannot prevent using normal required care.
In the said circumstances the delivery time and any deadline imposed on Iristick is extended with the time that such circumstances are in effect.
Buyer shall not be entitled to any compensation for delay in delivery whatsoever unless that delay is attributable to Iristick’s breach of the Agreement and on the condition that Buyer establishes that as a result of such delay it has suffered a damage. Compensation for damage caused by delayed delivery is only due if the delivery is delayed by at least two (2) weeks and, unless the delay is due to Iristick’s unlawful intent or gross negligence, shall not exceed zero point five (0,5)% of the Price of the Products whose supply is delayed for every full week's delay with the maximum of five (5)% of the Price of the Products whose supply is delayed. The above shall constitute Buyer’s sole remedy for delay in delivery of Products.
4.5. Unless agreed to the contrary, the Products shall be deemed to be delivered five (5) after the date on which Iristick informs Buyer that the Product is at Buyer’s disposal and ready for dispatch at Iristick’s premises (“Delivery Date”).
5. Title and Risk of Loss¶
5.1. Iristick shall retain title to all delivered Product until full payment of the Price of each Product by Buyer and until such time Buyer shall not resell, process, alter, intermix the Products or award any rights to a third party regarding the Products. If Products are sold, processed, altered or intermixed, this shall not diminish Iristick’s title in Products which title will be transferred upon the resale price or, as the case may be, the results of the processing, alteration or intermixing, in the same proportion as the proportion between the value of Products and the value of other goods used for processing if Products are processed with goods that are not Iristick’s property.
Buyer shall at its own costs take all necessary measures to safeguard Iristick’s title and to ensure that it is not prejudiced in any way i.a. by maintaining maintain Products in perfect condition and insuring them against any damage or loss, regardless the cause, for the benefit of Iristick.
Buyer authorizes Iristick to enter or to notify the retention of title in or to any public register, book or similar record in accordance with the applicable law and to fulfil all corresponding formalities at Buyer’s cost.
5.2. All risk, including the risk of loss of or damage to the Products, shall pass onto Buyer on the Delivery Date and Buyer shall have the risk from the moment that Iristick transfers the goods to the forwarding agent, the carrier or any other person designated to ship the Products.
A delay in taking possession of the Products by Buyer that is not attributable to Iristick, shall not delay the passing of risk as set out above.
6. Defects and Inspection of the Products¶
6.1. “Defect” in the Products shall mean a defect attributable to Iristick’s that consists of nonconformity of the Products with the Agreement and renders the Products unusable either in whole or in part for the intended purpose due to poor materials, faulty construction or defective manufacturing.
6.2. Buyer shall inspect the Products upon delivery. Buyer shall notify all claims regarding quantities and visible Defects in writing to Iristick at the latest within eight (8) days after the Delivery Date and all claims for hidden Defects with fifteen (15) days from the discovery of such hidden Defect by Buyer, specifying and identifying the alleged shortcomings and accompanied with a sample of the allegedly Defective Product, failing which the Products shall be deemed to be in conformity with the Agreement and Buyer shall have no claim against Iristick for such defects. Buyer shall give Iristick reasonable time and opportunity to verify the claim,
6.3. No Defect in the Product shall be deemed to exist unless it is confirmed by means of a test according to Iristick’s standard methods of analysis and measuring tools, or if the results of such test are contested by Buyer, unless the Defect is confirmed by an independent third-party expert which may be appointed at the request of either Party. The results of the latter test shall be decisive and binding upon Parties.
6.4. In case of Defect accepted or confirmed as provided by previous paragraph, Iristick’s liability shall be limited to, at its sole discretion, either the replacement or repair of the Defect within a reasonable time or the reimbursement of the Price paid for the Defective Product, Buyer having in the latter case the obligation to return the substituted Product to Iristick. The above shall constitute Buyer’s sole remedy for Defects.
7. Buyer Information¶
Buyer represents and warrants that any (act of provision of) information it provides to Iristick in connection with the Agreement shall comply with any applicable law and shall not infringe any thirdparty rights, including Intellectual Property and data privacy rights and that Buyer holds all rights or, as the case may be, third party authorisations, required to use such information and to allow Iristick to use such information for the purposes of the Agreement. Buyer shall indemnify and hold Iristick harmless for and against any costs, damages and third-party claims arising out if the breach of the said warranty.
8.1. Iristick warrants that at the Delivery Date the Products shall be manufactured and delivered in accordance with the normal industry standards, the agreed specifications (if any), and, supplementary, Iristick’s standard specifications and Product documentation. In cases where Iristick is acting as an intermediary for or as a reseller of goods or services delivered by third parties, Iristick does not provide any warranty beyond the warranty provided by such parties.
8.2. Iristick’s provides no warranty and shall not be liable for any events or Defects which were not caused by its breach of the Agreement or were caused by events outside of its control, including, (i) use or handling of Products contrary to the intended use and/or the purposes for which they were designed and/or contrary to documentation supplied by Iristick with the Product, (ii) processing or changes to the Products after the Delivery Date or (iii) if Iristick acted in accordance to instructions, requirements or specifications provided by or required by Buyer or information provided by Buyer (including the use of information, artwork, logos, and/or trademarks provided by Buyer)
8.3. Other than the warranties set forth in this section, Iristick makes no warranty of any kind, expressed or implied, including, without limitation, warranties of merchantability or fitness for a particular purpose, of quality, of performance or that the Product will meet Buyer’s or any other party’s specific needs.
8.4. In the event of any breach of any warranty of Iristick under the Agreement, Buyer’s exclusive remedy shall be that Iristick shall, at its option, repair or replace any defective goods at no cost to Buyer or refund any purchase price paid for such Product.
9.1. Each Party shall be liable towards the other Party for breach of the Agreement or of the applicable law by the former and shall indemnify and hold the latter harmless for all damages, losses, costs and claims arising out of its actions or persons employed or appointed by it, which constitute such a breach.
9.2. To the extent permitted by the law, and with the exclusion of liability for death or personal injury, neither Iristick nor its representatives shall be liable towards Buyer or any third party unless (i) such liability is provided for by the Agreement and (ii) is due to Iristick’s unlawful intent or gross negligence. Neither Iristick nor its representatives shall be liable towards Buyer or any third party for any consequential, indirect, incidental, special, exemplary , punitive, or enhanced damages, arising out of or relating to any breach of the Agreement, whether or not the possibility of such damages has been disclosed in advance by Buyer or could have been reasonably foreseen by the Parties, regardless of the legal or equitable theory (contract, tort, or otherwise) upon which the claim is based, and notwithstanding the failure of any agreed or other remedy of its essential purpose. Iristick shall in no event be liable for any damage, loss, cost or claim incurred by Buyer or any third party as a result of Buyer’s breach of the Agreement or of the applicable law. Without detriment to other provisions of these Terms and Conditions, Iristick’s financial liability for breach of Agreement is in any event limited to the Price paid for the Products affected by the breach.
9.3. In order to avail itself of this indemnity provision, the Party claiming indemnification shall promptly provide notice to the other Party of any such claim, tender the defence of the claim to the latter, and cooperate with the latter at its own cost in the defence of the claim. The indemnifying Party shall not be liable for any cost, expense, or compromise incurred or made by the other Party in any legal action without the former’s prior written consent.
10. Intellectual Property¶
10.1. For the purposes of the Agreement “Intellectual Property” means, without limitation, all rights throughout the world in the nature of intellectual property rights including copyright, trademarks and service marks, trade secrets, trade and business names, domain names, goodwill, registered designs, patents, database rights, topography rights and rights in know-how and trade secrets, whether registered or unregistered and including applications for the grant of any of the foregoing and all rights or forms of protection having equivalent or similar effect to any of the foregoing and shall include all rights in the Confidential Information. Intellectual Property shall also include the know-how, meaning all technical and processing data, information, specifications, and knowledge of an intellectual or industrial nature, concerning products and/or services, including but not limited to specifications, manufacturing instructions, quality control procedures and other like data.
10.2. The Agreement does not affect the Intellectual Property of either Party. The Parties acknowledge that any Intellectual Property that existed by the time they entered into the Agreement shall be and remain owned exclusively by the Party that owned it prior to entering into the Agreement.
10.3. Nothing in the Agreement has as a purpose or shall have as a result that Iristick grants to Buyer, implicitly or explicitly, any right or license to Iristick’s Intellectual Property, regardless of whether such Intellectual Property was developed or created before or in relation to the Agreement or shall lead to the creation for the benefit of the Buyer of a patent, copyright, trademark or trade secret relating to the Intellectual Property owned by Supplier. All Intellectual Property regarding the Products is expressly reserved by Iristick and shall be and remain the sole and exclusive property of Iristick.
The sole right awarded by Supplier to Buyer under the Agreement to Iristick’s Intellectual Property is the license (with the possibility to sub-license) to use Iristick’s Intellectual Property, to the extent that it is incorporated in the Product, for the intended use of the Products in conformity with the documentation provided by Iristick.
Buyer (i) will not license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available in any way to any third party any right licensed to him under the Agreement other than the right to (re)sell the Product as is; (ii) will not modify or make derivative works based upon the Product or any part thereof; and (iii) will not reverse engineer the Product or any part thereof for any purpose, including, among others (a) building a competitive product or service, (b) building a product using similar ideas, features, functions or graphics of the Product or any part thereof, or (c) copying of any ideas, features, functions or graphics of the Product or of any part thereof.
Reseller undertakes to respect and to ensure that Supplier’s Intellectual Property is respected by third parties. Reseller shall notify Supplier of any infringement of Iristick’s Intellectual Property of which it becomes aware.
10.4. In case of breach of this section 10 by Buyer, Iristick shall be entitled to a lump-sum compensation of 50.000,00 EUR per breach of the said article and of 5.000,00 EUR that the breach continues and, without prejudice to Iristick’s right to claim higher compensation for any costs, damages, losses or claims it effectively incurs as a result of such breach.
11.1. Under the Agreement a Part may disclose to the other Party information about its business affairs, goods and services, confidential information, and materials comprising or relating to Intellectual Property, trade secrets, third-party confidential information, and other sensitive or proprietary information. Such information, whether disclosed orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" constitutes “Confidential Information”.
11.2. Confidential Information shall be and remain the property of the disclosing party and in no event shall the receiving Party acquire any right, title or interest in and to any Confidential Information disclosed to it. The receiving Party may use Confidential Information disclosed to it only to the extent necessary to perform the Agreement and shall not disclose Confidential Information to any third party, except to its agents (who have executed confidentiality agreements containing terms substantially similar to the terms) to the extent that such is necessary to perform the Agreement.
11.3. Confidential Information shall not include information which: (i) was in the possession of the receiving Party at the time it was first disclosed by the disclosing Party; (ii) was in the public domain at the time it was disclosed to the receiving Party; (iii) enters the public domain through sources independent of the receiving Party and through no breach of this provision by the receiving Party; (iv) is made available by the disclosing Party to a third party on an unrestricted, non-confidential basis; (v) was lawfully obtained by the receiving Party from a third party not known by the receiving Party to be under an obligation of confidentiality to the disclosing Party; or (vi) was at any time developed by the receiving Party independently of any disclosure by the disclosing Party.
11.4. In case of breach of this section 10 by Buyer, Iristick shall be entitled to a lump-sum compensation of 50.000,00 EUR per breach of the said article and of 5.000,00 EUR that the breach continues and, without prejudice to Iristick’s right to claim higher compensation for any costs, damages, losses or claims it effectively incurs as a result of such breach.
12. Breach of the Agreement¶
In addition to other rights to which Iristick is entitled under the Agreement, if Buyer commits any material breaches of the Agreement, Iristick shall have the right, at its option, to (a) terminate the Agreement immediately upon written notice to the other Party and (b) seek to obtain injunctive relief to stop such breach or to otherwise enforce the terms of the Agreement, without prejudice to Iristick’s right to claim compensation for any costs, damages, losses or claims it effectively incurs as a result of such breach.
13. Particular Provisions if Buyer is a Reseller¶
13.1. If Buyer is a person purchasing Products for the purpose of their resale to third parties, the following provisions shall apply in addition to other clauses of these Terms and Conditions.
13.2. The Agreement does not intend and shall have not have as a result that Buyer receives any exclusivity rights regarding the Products or any territory. Buyer acknowledges that its right to resell the Products under the Agreement is non-exclusive and that Iristick reserves the right to sell and distribute any of its products to any person anywhere in the world and to appoint any third party to do so without giving Reseller notice thereof and without incurring any liability to Reseller.
13.3. Buyer shall at all times market, advertise, promote and resell the Products in consistency with good business practices and applying reasonable efforts, shall not make any (be it false or not) representations, warranties or guarantees on Iristick’s behalf, regarding Iristick or the specifications, features or capabilities of the Products that are inconsistent with the literature distributed by Iristick and shall not engage in any unfair, competitive, misleading or deceptive practices regarding Iristick or the Products.
13.4. Reseller shall not modify the Products and shall resell them as such together with all documentation provided by Iristick.
Any Buyer’s notice, other than daily business communication, under the Agreement, shall be sent by certified mail, return receipt requested or by overnight mail to Iristick NV to 2018 Antwerp, Lamorinierestraat 123.
Except as otherwise provided, the Agreement shall be binding upon and inure to the benefit of the Parties’ successors and lawful assigns. Buyer shall not assign or otherwise transfer the Agreement in whole or in part or any of its rights and obligations under the Agreement without prior written consent of Iristick.
At all times during the term of the Agreement, Buyer shall act as an independent party and neither the execution of the Agreement nor the performance thereof shall be construed to constitute, for any purpose, an agency relationship between the Parties, nor a relation of legal representation in the name of or on behalf of either Party nor a joint venture or a partnership.
If any provision of the Agreement (including the Terms and Conditions) is construed to be invalid or unenforceable, this will not affect the remaining provisions thereof which will remain in effect. The invalid or unenforceable provision will be deemed to be replaced by an alternative valid and enforceable provision that is as closely in line with the Parties’ original intent as allowed under the applicable law.
18. No Waiver¶
The election of any one or more remedies by Iristick shall not constitute a waiver by it of the right to pursue any other available remedies. No failure by Iristick to exercise and no delay by it in exercising (in whole or in part), any right in relation to the Agreement shall operate as a waiver of any such right.
19. Force Majeure¶
Neither Party shall be liable for any failure to perform or delay in performance of the Agreement to the extent that any such failure arises from acts of God, war, civil insurrection or disruption, riots, government act or regulation, strikes, lockouts, labour disruption, cyber or hostile network attacks, inability to obtain raw or finished materials, inability to secure transport, or any cause beyond such party’s commercially reasonable control.
All sections herein relating to payment, ownership, confidentiality, indemnification and duties of defence, representations and warranties, waiver, waiver of jury trial and provisions which by their terms extend beyond the term shall survive the termination or expiry of the Agreement.
21. Jurisdiction and Applicable Law¶
The Agreement (including these Terms and Conditions) shall be governed and will be construed exclusively in accordance with the laws of Belgium. The courts of (Brussels) Belgium shall be the sole and exclusive forum for any dispute arising under or related to the Agreement unless Iristick agrees in writing to an alternative forum.