Terms & Conditions of Sale [v. 1.0 – 28.01.2025}
These are the general terms & conditions of sale (hereinafter “T&Cs”) of the following legal entities in the ESC Group: ESC bv (Kortrijksesteenweg 1093C, 9051 Gent – K.B.O. 0469.649.056); NET IT nv (Gentse Steenweg 281, 9620 Zottegem – K.B.O. 0466.765.186); SDP Retail bv (Kortrijksesteenweg 1093C, 9051 Gent – K.B.O. 1012.410.576), hereinafter: “ESC”.
1.1. These T&C apply to any offer, quotation and any contract concluded that relates to the provision of products and/or services by ESC. (hereinafter “Project”)
1.2. The applicability of the Customer’s general terms and conditions is excluded. Special terms and conditions may also apply in addition to these T&Cs. In the event of ambiguity, inconsistency or conflict between the provisions of the quotation or cooperation agreement (hereinafter: “the (Cooperation) Agreement”), the license terms of the Standard Software, the Master Plan and/or these T&Cs, the following precedence shall apply: (i) Agreement; (ii) Master Plan; (iii) license terms of Standard Software; (iv) T&Cs.
The quotations of ESC are indicative and may be subject to review of the infrastructure, services, etc. of the Customer. Quotations only become valid as an agreement if both Parties confirmed by the Customer. All mentioned prices are exclusive of VAT and costs (such as licenses, travel expenses,…) unless otherwise indicated.
3.1. A Project may involve the implementation of generally available and not specially developed software such as e.g. (but not limited to) provided by Microsoft, Exact Software,… or certain SaaS solutions (hereinafter: “Standard Software”) and/or software developed by ESC as a result of customization performed to meet the Customer’s specific needs (hereinafter: “Custom Software”). Standard Software and Custom Software are hereinafter collectively referred to as “Software”.
A project may also consist of a combination of Standard Software and Custom Software. In that case, the provisions of these T&Cs to the respective part of the Project shall apply, i.e.: the provisions relating to Custom Software for that part of the Project and the provisions relating to Standard Software for that part of the Project. A Project may also involve the provision of managed services, whether or not in combination with Standard or Custom Software. (Hereinafter collectively referred to as “Services”).
3.2. A Project may also involve the provision of products (hereinafter “Products”) such as, for example, hardware, whether or not in combination with Services.
4.1. ESC undertakes to provide for the Customer the Services according to the specifications stipulated in the Agreement (hereinafter “Specifications”). The Customer undertakes to compensate ESC for the Services delivered in accordance with the Agreement and to provide ESC with the necessary information and personnel to enable the timely and correct delivery of the Services.
4.2. ESC undertakes to provide the Services, which are considered resource commitments, in a professional manner with all reasonable skill and care, in accordance with relevant standards and requirements (including good industry practices) and in accordance with these T&Cs and the Agreement.
4.3. The Customer expressly agrees that ESC may use subcontractors to perform (parts of) the Agreement.
5.1. Scheduling – ESC undertakes to make all reasonable efforts to realize the Project in accordance with the agreed schedule. In the event that changes are expected in the predetermined schedule, ESC will inform the Customer as soon as possible and report the cause of delay. Meetings will be arranged on a regular basis between the Customer and ESC, during which ESC will report to the Customer on the progress of the Project and during which mutual information will be exchanged.
5.2. Change Request – If during the execution period of the Project the Customer wishes to have changes or additional performance with respect to the Project as described in the Agreement, the Customer shall address its request to ESC to this effect by means of a “Change Request”. In that case, the Customer shall provide ESC with the Change Request completed and with exact description of the desired change or additional performance. Upon receipt of this Change Request, ESC will evaluate the requested changes or additional performances in terms of their feasibility, given the standard functionalities and/or work already performed and consequences in terms of price, execution method and deadline, and inform the Customer thereof.
ESC will proceed to execution only after the Customer has signed the “Change Request” in which the Customer agrees to the reported consequences on price, execution method and deadline. ESC reserves the right to refuse the requested modifications, to the extent that these modifications endanger the processes or not comply with the legislation.
5.3. Customer Cooperation – The Customer agrees to provide in writing all requested information in a timely manner to enable ESC to correctly estimate and perform the deliverables under the Project.
During the term of a Project, the Customer shall provide ESC employees with the necessary facilities to perform the work efficiently. This includes necessary desk space and communication facilities and the necessary hardware. The Customer shall assign to each Project a sufficient number of qualified employees (hereinafter “Key-Users”) with the required qualifications. The Key-Users will not be replaced during the term of a Project except in the event of resignation, prolonged illness or force majeure. If they are nevertheless replaced, the new employees shall have similar qualifications and the Customer shall be responsible for any costs associated with the training of the new Key-Users.
The Customer will appoint a Project Manager who will be the only person authorized make decisions for the Customer and for the fulfillment of the attached responsibilities.
5.4. Security – Unless explicitly and otherwise provided for in the Quotation or Agreement, the Customer itself is responsible for the security of its systems. For the security measures of the Standard Software we refer to the guarantees given in this respect by the suppliers of that Software and/or of the hosting.
The Customer undertakes to follow all guidelines emanating from ESC regarding the security of Custom or Standard Software.
6.1. Delivery and Acceptance Custom Software – After implementation of the Custom Software, ESC will proceed to test it within a simulated test environment. In this testing, the Customer shall provide customized, specific, business-specific data sets to simulate subsequent operational operation if requested by ESC.
From the moment of commissioning by the Customer, or at most one month after the date of delivery, a Warranty Period of one month starts during which the Key-Users will test whether or not defects in the form of reproducible errors (or “bugs”) are present. In that case, the Customer will notify ESC in writing and clearly identify the reproducible errors. ESC will then try to correct the reported reproducible errors in the Custom Software to the best of its ability as soon as possible. All other (support) questions, RfCs (Requests for Change), … fall outside this test and will be reported via the ESC support desk. These will be billed separately.
If the test period for the Custom Software is successfully completed and no reproducible errors were discovered and communicated to ESC, the Customer will sign the acceptance document, which constitutes acceptance of the Custom Software.
If reproducible errors have been discovered and communicated to ESC, once corrected, the aforementioned period starts again, on the understanding that the second and all subsequent test periods are only 2 weeks.
If the Customer has not signed the acceptance document two weeks after the expiration of the testing period, the Custom Software will considered tacitly accepted.
6.2. Complex Projects – In case of complex Projects, it may be agreed to implement the Project in phases. This will be agreed upon in the Master Plan. If a Project is carried out in phases, the same procedure of Acceptance as under 6.1 will be used for each respective part of the developed Custom Software.
6.3. Delivery and Acceptance of Standard Software – The Standard Software is assumed to be tacitly accepted at the time of its delivery to the Customer. Any complaints regarding the Standard Software can only be addressed to the seller of the Standard Software, who alone can be held liable for it.
6.4. Retention of Title – All delivered Products and Services remain the property of ESC until all invoiced amounts relating to the goods delivered or to be delivered or work performed or to be performed, as well as any interest and collection costs, in the event of non-payment, are paid in full in accordance with the Agreement.
7.1. Standard Software – The intellectual property relating to the Standard Software shall be governed exclusively by the license or SaaS agreement thereto, which shall be entered into by the Customer with Microsoft, Exact Software or other.
7.2. Custom Software – The programs and documentation provided in relation to Custom Software are not transferred in ownership to the Customer. The Customer only acquires a right of use of indefinite duration that is non-exclusive, inalienable and personal, to the Custom Software for the needs of its business. ESC retains ownership of the source code.
The Customer shall employ the Custom Software for internal use only and shall not use them in any way or make available, directly or indirectly, for a fee or free of charge, to third parties. The Customer may not make any copies of the Custom Software except for backup and archiving purposes.
The Customer is prohibited from improving, translating, editing, or otherwise changing the Custom Software itself or by third parties, without the prior, written consent of ESC, which retains ownership of the source code.
ESC expressly reserves the right to sell the specific working methods developed by it, procedures applied, source codes, programming techniques as well as all ideas and rights to intellectual property, to third parties or incorporate them into projects of other clients.
7.3. Third Party Claims – ESC indemnifies the Customer against any claims by third parties claiming to be holders of intellectual property rights to any of the elements of the Custom Software developed by ESC. Insofar as the Customer notifies ESC of the existence of such claims within the shortest possible time, and insofar as ESC is in charge of the procedure and/or negotiations with this third party, ESC will, at its own expense, assist the Customer in his defense.
In case a third party would object to the use of any of the elements of the Custom Software, ESC will take the necessary measures in order to: i) be able to obtain the required rights to these elements for the Customer; or ii) replace elements with others that, in a global , offer the same capabilities as the litigious elements. The Customer shall not be entitled to any compensation or damages other than as provided in this Article 7.3.
8.1. User Documentation Standard Software – User documentation for the Standard Software is provided in the language(s) provided by the supplier.
8.2. User Documentation Custom Software – The provision of User Documentation for the Custom Software is not the subject of the agreement with the Customer, unless other arrangements are made with the Customer in the Quotation or Agreement.
8.3. Training – ESC provides for the possibility of training for the Customer on the use of the Standard and/or Custom Software if stipulated in the Quotation, Cooperation Agreement or Master Plan.
8.4. Publicity – ESC reserves the right, unless the Customer expressly objects, to use the Customer’s name and logo as a reference in its brochures, advertisements, website and socials, always taking into account the honor, good name and reputation of the Customer. Moreover, the Customer may revoke this use at any time.
9.1. Rates – The rates for the work to be performed by ESC are included in the Agreement. Performance outside the Project, which may or may not be the subject of a Change Request, will be billed at the then current rates.
All rates quoted are exclusive of VAT, which shall be borne by the Customer. Unless otherwise indicated on the invoices, invoices are payable, net and without discount, in Euro on the bank account of ESC.
9.2. Payment – ESC’s invoices are payable within 30 days of receipt of the invoice.
If the invoice has not been paid by the due date, the Customer shall automatically and without notice be liable for contractual interest on arrears at a rate of 1% per month, with each month begun counting as a full month. In addition, liquidated damages of 10% of the invoice amount, with a minimum of EUR 150, shall be payable.
9.3. Indexation – ESC has the right to index its rates and prices based on the Agoria DIGITAL index. Indexation will be applied annually on 1 based on the following formula: P = PO (0.2 + (S/S0)*0.8)
However, the indexation can never result in an amount less than the amount of the last price applied.
9.4. Price Revision – ESC suppliers (e.g. Microsoft) may change prices for their products or services at any time. We will inform the Customer as soon as reasonably possible.
9.5. Protest – Any complaint must be made within 8 calendar days of receipt of the invoice relating to the services, goods or software delivered by registered mail, stating the reasons for the protest. After the expiration of this period, the invoice can no longer be disputed.
10.1. The duration of the agreement is determined in the Quotation or Cooperation Agreement. Termination of an agreement of indefinite duration is possible subject to 3 notice. A fixed-term agreement will be automatically renewed for the same period, unless one of the parties terminates the agreement no later than one month before the expiration of the current term. Regarding licenses for Standard Software, the duration and termination modalities shall be as provided by the supplier.
10.2. Premature termination – In case the Customer wishes to terminate an Agreement before the expiration of the foreseen duration and/or before paying the agreed budgets, ESC is entitled to compensation as follows: 25% of the amount that would reasonably still be invoiced if the Agreement had been fully executed. The foregoing compensation shall also apply if the Customer wishes to terminate the Agreement prior to the commencement of performance.
10.3. Dissolution – In case of bankruptcy or liquidation of a party, in case of judicial reorganization or in case the solvency of the other party is seriously compromised, the other party is entitled to terminate the Agreement by written notice without being liable for damages. ESC reserves the right, if the Customer fails to pay 2 invoices from ESC and also fails to make payment within 14 days after being reminded by ESC, to dissolve the Agreement, without being liable for damages.
10.3. Suspension – ESC may decide to suspend the performance of (a phase of) an ongoing Project if, during the performance of (a phase of) an ongoing Project, the Customer fails to fulfill its obligations under the Agreement, and even after having been served with a notice of default, still fails to fulfill its obligations. Any damages that would result from this suspension cannot be recovered from ESC.
10.4. Force Majeure – Neither Customer nor ESC shall be responsible for delays or failure to perform its responsibilities under these T&Cs due to causes beyond its reasonable control, including but not limited to acts of government, floods, fires, earthquakes, pandemic, civil unrest, acts of terror, labor disputes, internet service provider or hosting facility failures or any other causes not attributable to ESC or Customer, respectively; provided, however, that the party affected thereby shall promptly resume performance as soon as reasonably possible.
11.1. In case of delivery of Products and because of our capacity as intermediary, the warranty on the Products delivered by us is limited to the warranty determined by the manufacturer. In case of defects, we will contact the manufacturer who will then propose a solution himself. Any repairs will be carried out at the manufacturer’s premises and the shipping costs of the appliance as well as the reinstallation or relocation costs will always be borne by the Customer unless the manufacturer intervenes in the costs.
11.2. ESC is in no way responsible for the damages resulting from insufficient maintenance, of both hardware and software, normal wear and tear, misuse of the devices, lack of supervision, lack of updates of the software, repair or change performed by a third party, as well as by accidental facts or by software not supplied and installed by seller or by other unknown cause.
11.3. No other compensation or indemnification of any kind can be charged to ESC.
12.1. Exclusions – ESC shall not be liable for: (i) The correction of reproducible errors that occur after the acceptance by the Customer, but are the result of insufficient testing by the Customer; (ii) the damage resulting from errors to a defective formation at and on behalf of the Customer; to erroneous, improper or unauthorized use of the Software by the Customer or his appointees; interventions caused by fire, accident, natural disasters, power failures and in general any cause foreign to the Software; (iii) errors due to manipulation errors by the end user or the lack of necessary data and/or parameterization; (iv) the incorrect functioning of the Software as a result of future legal changes or as a result of a future evolution of the Customer’s company or its way of working; (v) the cracking or access by unauthorized persons of the Customer’s system of which the Software is a part; (vi) damage by viruses to the Customer; vi) any defects or errors (due) to the Standard Software.
12.2. Indirect damages – Neither party shall be liable to the other party for any indirect, consequential or special damages (all such terms include without limitation pure economic loss, reputation damage, loss of profits,…and similar damages).
12.3. Notice of Default – If ESC fails to fulfill one or more obligations under the Agreement, the Customer must point this out to ESC adequately and in writing, with a clear explanation of the failure. After consultation, ESC will be granted a reasonable period of time to still fulfill its obligations. If, even after a written notice of default and after the expiry of a reasonable period of time, ESC still fails to fulfill its obligations, ESC is liable to the Customer for in-kind recovery (if possible). If recovery in kind is not possible or would be unreasonable vis-à-vis ESC, ESC shall be obliged to compensate the direct damage suffered by the Customer within the limits and conditions set forth in this Article 12.
12.4. Limitation – ESC’s liability to any claim for damages arising from the Agreement is always limited to direct damages and shall not exceed the fees due and paid by the Customer to ESC during the twelve (12) months preceding the claim with a maximum of EUR 50,000. Any claim for compensation for extra-contractual liability is always excluded within the limits of the law.
12.5. Liability of auxiliary persons – In the context of the performance of the Agreement, the Customer expressly waives the application of Art. 6.3. new Civil Code on the extra-contractual liability of auxiliary persons, except in the case of claims for compensation for damage caused by an impairment of physical or psychological integrity or by intent.
13.1. The Customer undertakes not to directly or indirectly employ (former) employees or (former) consultants of ESC or its affiliates. This provision applies both during the term of the Agreement and for two years after the termination of the Agreement.
13.2. In case of breach of this clause, the Customer shall pay ESC a compensation equal to 24 months’ gross salary of the employee, former employee or consultant, as last paid by ESC.
14.1. Definition – “Confidential Information” means any information communicated by one party to the other party, whether directly or indirectly, in writing, orally or by examining objects or data (including and not limited to documents, presentations, prototypes, samples, plans, software, hardware and other material), marked “Confidential,” “Confidential,” “Proprietary,” or similar wording and/or information that the parties should reasonably know is considered Confidential Information.
14.2. Confidential information includes technical data, trade secrets, know-how, including and not limited to studies, plans, concepts, ideas, products, services, suppliers, customer lists, customer information, prices, costs, markets, software, developments, inventions, procedures, formulas, technology, designs, drawings, engineering, hardware configuration, marketing information, licenses, financial information, budgets and other business information).
14.3. The Customer and ESC undertake vis-à-vis each other, to regard all Confidential Information received in connection with the performance of the Agreement as strictly confidential and to keep it strictly secret.
15.1. If one or more provisions of these T&Cs should at any time be illegal, void or for any other reason unenforceable in whole or in part, that clause shall be deemed severable from these T&Cs and shall not affect the validity and enforceability of the remaining provisions.
15.2. Notices and other communications under these T&Cs or the Agreement are valid when sent electronically to the email addresses the parties commonly use in their communications, unless the Agreement expressly provides for the email addresses to which official communications are to be sent. Each party acknowledges and accepts the use of electronic communications and agrees that notices to the email addresses provided by the parties shall be deemed received at the time of transmission if no notice of delivery error is received.
15.3. In the event of an imbalance in the rights and obligations of the parties, the provisions of these T&Cs or the Agreement shall be construed so that there is no clear imbalance arises.
15.4. The fact that the Customer has not received these T&Cs or any document related to the execution of the Agreement in his native language not exempt him from their application. In particular, the Customer declares to have a sufficient command of English and accepts that ESC may deliver to the Customer all documentation related to the performance of the Agreement in English.
However, the translation of the T&Cs to any other language than Dutch, is only provided for convenience and the Customer cannot derive any rights from it.
15.5. The Agreement with the Customer may be transferred at any time by ESC to another legal entity within the ESC Group.
16.1. These T&Cs are governed by Belgian law. The applicability of the Vienna Sales Convention is expressly excluded.
16.2. In the event of a dispute between the Parties regarding the validity, interpretation or performance of these T&Cs and/or the Agreement, the following rule shall apply: In any dispute, the Parties agree to first seek an amicable solution through negotiation by management (C-level).
16.3. If no solution can be reached after mediation, either party may bring the matter before the courts of the judicial district of ESC’s registered office, which shall have exclusive jurisdiction.
