1. Scope
1.1.
These terms and conditions (“Terms and Conditions”) apply to all contracts under which Iristick NV
with office at 2018 Antwerp, Lamorinièrestraat 123 B102, and registered under the number 0589.956.671
(“Iristick”) supplies services or goods (jointly “Products”) to any 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 modifications 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 Byer, 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 by 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 modification 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 be 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 be 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/USD (as the invoice states) 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 percent (12%) per year as well as a
compensation for administrative and debt collection expenses equal to fifteen percent (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 interest 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 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 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 right
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 as 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 to Iristick’s 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 percent (0,5%) of the Price of the Products
whose supply is delayed for every full week’s delay with the maximum of five percent (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) workdays 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 to 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 gods that are not Iristick’s property.
Buyer shall at
its own expense take all necessary measures to secure Iristick’s property and ensure that is not
damaged in any way, including keeping the Products in perfect condition and insuring them against
damage or loss, regardless of the cause, in favor 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 to 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. Defect 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 conformed 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 a 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
7.1.
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 third
party rights, including Intellectual Property and data privacy rights and that Buyer holds all rights
or, as the case may be, third party authorizations, 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. Warranties
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 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. Liability
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 extend 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 Irisitick nor it 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 in 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 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 defense of the claim to the latter,
and cooperate with the latter at its own cost in the defense 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 this Agreement has 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 incorp 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 the 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 per day 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. Confidentiality
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, ad 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 this 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 lawful obtained
by the receiving Party from a third party not known by the receiving Party to be under 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. 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 its effectively incurs
as a result of such breach. 13. Particular Provisions if the 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 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. 14. Notices
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, Lamorinièrestraat
123 B102, Belgium. 15. Assignment
Except as otherwise provided, the Agreement shall be binding upon and inure to the benefit of the Parties’
successors and lawful assigned. 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. 16. Status
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. 17. Validity
If any provision of the Agreement (including 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 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, labor 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. 20. Survival
All sections herein relating to payment, ownership, confidentiality, indemnification and duties of
defense, 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.