Translated to English - Originally in Dutch and enforcable at https://sdstack.com/algemene-voorwaarden/
Article 1 – Definitions
In these general terms and conditions the following definitions apply:
Unless the context indicates otherwise, the singular in this Agreement also means the plural and vice versa. References to Parties shall also include references to their legal successor(s).
A reference to this Agreement means a reference to the articles contained therein and the Appendices associated with the Agreement. In the event of a conflict between the provisions of the Agreement and the associated Appendices, the following prioritization applies, with the higher document taking precedence over the lower document:
Article 2 - Scope and changes to the General Terms and Conditions
2.1. These General Terms and Conditions apply to all Quotations, Orders and Agreements from and with SILVA DIVES for the delivery of Products and/or Services, as well as to their implementation.
2.2 The Client's general terms and conditions do not apply under any circumstances, not even in addition to these General Terms and Conditions, and their possible applicability is hereby expressly excluded.
2.3 Deviation and/or addition to these General Terms and Conditions is only possible if and insofar as SILVA DIVES has expressly accepted this in writing in the Order or the Agreement.
Article 3 - Conclusion of the Agreement
3.1 Each Quotation is entirely without obligation, unless the contrary is expressly confirmed in writing and signed by SILVA DIVES. However, if the Quotation has been accepted in writing by the Client, SILVA DIVES has the right to revoke it within two Working Days after notification of the Client's acceptance.
3.2 Verbal commitments from one of the Parties are not binding unless they are confirmed in writing.
3.3 The agreement is concluded by signing the Agreement between the Client and SILVA DIVES or as soon as SILVA DIVES has signed the Quotation signed by the Client, as a result of which an Order is concluded. Agreements or changes made later are only valid if and as soon as the Parties have confirmed them in writing.
3.4 The persons who sign the Agreement for the Client guarantee that they are authorized and have the necessary authority to bind the Client to the Agreement.
Only authorized persons such as directors and representatives authorized by directors can legally bind SILVA DIVES. Other representatives and agents have no closing authority and SILVA DIVES is entitled not to accept such Agreements.
Article 4 – Changes to the Quotation and/or Order
4.1 The Client guarantees to SILVA DIVES the correctness and completeness of the dimensions, requirements, performance specifications and other data provided by him to SILVA DIVES on which SILVA DIVES bases its Quotation. The images, specifications and technical data stated by SILVA DIVES are for information purposes only and do not bind SILVA DIVES.
4.2 Changes to the size and/or quality of Products and/or Services to be provided, as well as changes to drawings, specifications and the like, can only be agreed in writing by both Parties. If, in the opinion of SILVA DIVES, a change has consequences for the agreed price, delivery time and/or quality, including but not limited to any agreed Service Levels, it will, before implementing the change, notify the Client as soon as possible after notification of the required change, inform in writing.
4.3 SILVA DIVES has the right to make improvements and changes to the Products and/or Services that SILVA DIVES considers useful or necessary, for example for continuity, development and security. The Client undertakes to accept these improvements and changes and to closely follow SILVA DIVES' instructions regarding their implementation.
4.4 Cancellation of an Order in whole or in part by the Client is not possible.
Article 5 - Prices and rates
5.1 Except for Products and/or Services concluded at fixed and non-revisable prices, the delivery of Products and/or Services takes place at the prices and rates applied by SILVA DIVES at the time of delivery.
5.2 If the price is determined on the basis of time actually spent, the price will be calculated according to the usual rates of SILVA DIVES, applicable for the period in which the Services are provided, unless a different rate has been agreed.
5.3 An hourly or daily rate of 100% applies to standard working hours on Working Days. Outside standard working hours on Working Days, the following overtime rate applies: An hourly or daily rate of 150% applies on Monday to Friday between 6:00 PM and midnight and between 12:00 AM and 8:00 AM. An hourly or daily rate of 150% applies on Saturdays between 00:00 and 24:00. An hourly rate of 200% applies on Sundays and public holidays between 00:00 and midnight. Work is preferably carried out during standard working hours on working days.
5.4 Unless expressly agreed otherwise in writing with the Client or explicitly indicated otherwise by SILVA DIVES, all prices and rates charged by SILVA DIVES are exclusive of VAT and any other government levies and exclusive of administration, Small Order Fee, Delivery & Administration Fee, port -, customs, installation, assembly, training, transport, travel, accommodation or shipping costs. For orders less than EUR 2500 ex VAT, a Delivery & Administration fee of EUR 25 is charged. For orders less than EUR 500 ex VAT, a Small Order Fee of EUR 50 is charged.
5.5 If prices are recorded in price lists used by SILVA DIVES, those prices apply. The most recently dated price list is binding. Prices deviating from the price list can only be expressly agreed in writing.
5.6 For all Agreements, the prices apply for a maximum of one calendar year and may be adjusted annually on January 1 at the initiative of SILVA DIVES based on parameters that represent the underlying real costs, including but not limited to the wage cost evolution. This price adjustment will be made in accordance with the following formula: new amount = previous amount x (0.2 + 0.8 x new index/previous index). The index referred to in this formula is the Agoria index.
5.7 SILVA DIVES is also entitled to adjust rates at any time due to price increases imposed by third parties or due to changed (market) conditions
5.7.1. Prices and rates for Services and/or Products that are directly or indirectly dependent on purchase prices and rates from third parties can be charged to the Client to the same extent as the adjustment charged to SILVA DIVES by third parties, from the moment the third parties notify them. has charged SILVA DIVES.
5.7.2. Prices and rates for Services and/or Products that are adjusted by SILVA DIVES due to changed (market) conditions will be submitted to the Client prior to the price change and can only be charged after written agreement between both Parties.
5.8. Changes to the agreed volumes (of Services) as a result of a decision by the Client or failure to achieve the agreed volumes (of Services), only lead to a pro rata adjustment of the price in the event of written approval from SILVA DIVES, if the lower volume does not exceed 20% less volume than the initially agreed volumes (of Services), regardless of whether this is the result of a one-off or successive adjustments. The Client confirms that in the event of a price adjustment as a result of a lower volume (of Services) by more than 20% with regard to the initially agreed volumes (of Services), regardless of whether this is the result of a one-off or successive adjustments, the price will not increase further. ratio will be adjusted and the total pricing of the Products and/or Services delivered by SILVA DIVES can be redetermined taking into account the lower effective volume.
Article 6 - Invoicing and payment
6.1 SILVA DIVES invoices Products upon shipment of the good, unless an advance payment is required. SILVA DIVES invoices Services on a monthly basis prior to the Services or, if this has been expressly agreed with the Client, after the Services.
6.2 The Client pays all invoices in accordance with the payment conditions stated on the invoice. The payment term is thirty (30) calendar days after the invoice date for the delivery of Services and a term of eight (8) calendar days after the invoice date for the delivery of Products, unless otherwise stated on the invoice or expressly agreed otherwise in writing. SILVA DIVES may, at its sole discretion, always require an advance payment before delivering Products or Services.
6.3 Payments made by the Client will firstly serve to settle all interest and costs owed and only then to settle the oldest outstanding and due invoices, even if the Client states that the payment relates to a later invoice.
6.4 The Client is not permitted to offset his payment obligation towards SILVA DIVES against a claim of the Client against SILVA DIVES, for whatever reason. Amounts paid remain due and can never give rise to a refund.
6.5 The payment term referred to in Article 6.2 is a strict deadline. In the event of late payment, the Client is therefore in default without notice of default and SILVA DIVES is entitled to suspend the performance of the Services and/or the delivery(s) of Product(s) from the due date of the invoice and to pay a late payment interest of 1%. per month (or, if higher, the statutory late payment interest). If payment is not made on the due date, the entire price or the balance of the price and the additional interest and/or costs become immediately due and payable, as well as the balance of all other invoices, even those that have not expired. Furthermore, non-payment by the due date implies that a lump sum compensation of 15% of the principal amount, excluding VAT, of the overdue invoice is due in favor of SILVA DIVES, with a minimum of EUR 100, as well as the legal and collection costs incurred if this exceeds the lump sum. exceed.
6.6 If the Client fails to pay an outstanding invoice within ten (10) Calendar Days after sending a registered notice of default, SILVA DIVES has the right to terminate the Agreement with immediate effect, without being obliged to pay any compensation to the Client and without prejudice to the Client's obligation to pay all (outstanding) invoices.
6.7. Disputes against the invoice must be notified to SILVA DIVES by registered letter at the latest within ten (10) Calendar Days from the date of the invoice.
Article 7 - Duration and termination
7.1 The Agreement has been entered into for the duration agreed between the parties, failing which the duration of one (1) year applies.
7.2 After the initial duration, the duration of the Agreement will be tacitly extended for the duration of the originally agreed period, unless the Client or SILVA DIVES terminates the Agreement in writing with due observance of a notice period of at least three (3) months before the end of the relevant period. period of time.
7.3 Each Party is entitled to terminate the Agreement in the event of a material shortcoming of the other party with regard to a provision of the Agreement and the other party fails to report such attributable shortcoming within a period of thirty (30) days after receipt of a written notice of the other party, without prejudice to the right to compensation and without prejudice to any other right of the terminating Party.
7.4 Parties are entitled to unilaterally terminate the Agreement by registered letter addressed to the other party, without judicial intervention and without notice period, without prejudice to the right to compensation and without prejudice to any other right of the terminating Party if the other party: (i) becomes bankrupt declared or is in the event of apparent inability or cessation of payment; (ii) ceases its activities, temporarily or otherwise, in whole or in part; (iii) is terminated or dissolved; or (iv) a liquidator or administrator is appointed to manage the property or assets of the other Party.
7.5. SILVA DIVES has the right to terminate the Agreement in whole or in part if the behavior of the Client has (or threatens to have) a negative influence on the reputation of SILVA DIVES, or if there are facts or indications regarding the Client regarding the unlawful, fraudulent or deceptive use of Client's Products and/or Services.
7.6 Upon termination of the Agreement by one of the Parties, SILVA DIVES will cease providing the Services and the Client must immediately pay SILVA DIVES for all Services provided up to and including the date of termination. At the explicit written request of the Client, all Client data that are at SILVA DIVES on the date of termination will be returned to the Client in standard format at the Client's expense, unless the Client requests in writing that this data be destroyed. If this is deemed necessary by the Parties, SILVA DIVES will, for a fee and in consultation with the Client, cooperate in a qualitative and quantitative transfer of the data to the Client and/or third party. When transferring the data, SILVA DIVES also transfers the properties and responsibilities to the Client (and therefore not directly to the third party) and is released from all responsibilities.
7.7 Interim termination of the Agreement by the Client is not possible outside the cases referred to in Articles 7.3, 7.4 and 7.5. In any case, in the event of early or late termination, the fees remain due until the next due date.
7.8. If, during the term of the Agreement, as a result of a decision by the Client, changes are made to the agreed volumes (of Services), the volumes (of Services) change to such an extent or the agreed volumes (of Services) are not achieved so that the execution of the Agreement becomes unprofitable for SILVA DIVES, SILVA DIVES has the right to terminate the agreement unilaterally, without compensation and subject to a notice period of (6) six months.
7.9. In the event of early termination of the Agreement, for whatever reason, if SILVA DIVES has made specific investments for the Client or specific agreements have been concluded, the investments made will be taken over by the Client at the residual value and/or the contracts concluded. .
Article 8 – Responsibilities
8.1 The parties acknowledge that the success of the delivery of Services and/or Products depends on correct mutual cooperation. The Client will always provide all reasonable cooperation required by SILVA DIVES in a timely manner.
8.2 SILVA DIVES carries out the Services to be provided by or on behalf of it in a professional and independent manner. The obligations entered into by SILVA DIVES are obligations of means. Only SILVA DIVES is responsible for its employees and the Client under no circumstances exercises any authority, direction or supervision over the employees of SILVA DIVES. The Client will inform the employees deployed by SILVA DIVES of the house and security rules applicable within its organization before the start of the work.
8.3 The Client bears the risk of the selection and suitability of the Products and/or Services to be supplied by SILVA DIVES.
8.4 If the Client uses its own staff and/or subcontractors in the performance of the Agreement, these staff and subcontractors will have the necessary knowledge and experience. In the event that SILVA DIVES employees perform work at the Client's location, the Client will provide the necessary facilities in a timely manner and free of charge, such as access to computer rooms and systems and a workspace that will meet the legal requirements, with computer and network facilities.
8.5 If the Client makes software, equipment or other resources available to SILVA DIVES in connection with the Services and/or Products of SILVA DIVES, the Client is responsible for obtaining all necessary licenses or approvals with regard to these resources that SILVA DIVES requires. could have.
8.6 To enable proper execution of the Agreement by SILVA DIVES, the Client will always provide all data or information reasonably requested by SILVA DIVES in a timely manner. The Client guarantees the accuracy and completeness of the data, information, designs and specifications provided by it to SILVA DIVES. SILVA DIVES will periodically provide the Client with information regarding the performance of the Services.
8.7 If and insofar as SILVA DIVES makes software, services and/or licenses from third parties available to the Client, the software, services and/or the (license) conditions of the relevant third party will apply in the relationship between SILVA DIVES and the Client. with the exception of the deviating provisions in these General Terms and Conditions.
Article 9 - Delivery; risk and transfer of ownership of Products
9.1 Each delivery must be regarded as a separate transaction and is carried out at the risk of the Client. In principle, delivery takes place on the scheduled delivery date without SILVA DIVES being able to guarantee this date. SILVA DIVES will, to the best of its ability, inform the Client in a timely manner about possible changes to the delivery date. This delivery date is purely an indication. No delay or event can give rise to any deduction, claim for damages, and/or breach of contract.
9.2 From the moment of shipment, the risk of the Products sold passes entirely to the Client, who will from that moment be responsible for all visible and invisible defects and all damage to or caused by these Products.
Article 10 - Guarantees
10.1 The correctness of the delivery of a Product and/or Service must be checked upon receipt by the Client, who must immediately check upon delivery whether the delivery corresponds with the Order.
10.2 A complaint, both regarding the content and the quantity of the Products and/or Services delivered, can only be taken into account if the error or mistake to which it relates is immediately stated on the delivery note, performance statement or work order and/or at the latest within ten (10) Calendar Days after receipt of the Products and/or Services by registered and substantiated letter to the registered office of SILVA DIVES. Complaints regarding the Products and/or Services do not in any way release the Client from his payment obligations.
10.3 The warranty for hidden or otherwise hidden defects of Products and/or Services is limited to (i) the replacement or repair of the defective merchandise as guaranteed by the manufacturer and within the warranty period provided by the manufacturer and (ii) the further performance of the defective Services. No other compensation or reimbursement of costs or interest can be claimed in addition. The Products must always be returned by the Client in the original packaging. If the Products are not found to be defective after inspection by the manufacturer, a manipulation and administration fee of EUR 100 will be payable.
Article 11 - Liability and indemnification
11.1 If one of the Parties fails to fulfill one or more of its obligation(s) under the Agreement, the other Party will give him notice of default. The notice of default will be given in writing, whereby the negligent Party will be given a reasonable period of at least thirty (30) Calendar Days to still fulfill its obligations. The notice of default must contain a description of the breach that is as complete and detailed as possible so that the other party is able to respond adequately.
11.2 The Party that attributably fails to fulfill its obligation(s) is liable to the other Party for compensation for the damage suffered by the other Party. The condition for the existence of any right to compensation is that the Client reports the damage in writing to SILVA DIVES as soon as possible after it has occurred. Any claim for compensation against SILVA DIVES shall lapse upon the mere expiration of twelve months after the damage occurred.
11.3 The contractual, extra-contractual and/or legal liability and/or indemnification for direct damage referred to in Article 11.2 is, regardless of the number of events, at all times limited to
Under no circumstances will the total compensation for direct damage under any Agreement exceed EUR 5,000.
11.4. The limitation of liability included in Article 11.3 shall lapse in the event of claims by third parties for compensation as a result of death or injury and/or in the event of fraud, intent or gross negligence on the part of the party causing the damage.
11.5 The contractual, non-contractual and/or statutory liability for indirect and/or consequential damage referred to in Article 11.2 is excluded. Consequential damage includes, among other things, loss of profit; loss of turnover; missed savings; damage due to business stagnation; loss of data; reputational damage; costs incurred to prevent, limit or determine consequential damage; damage other than the direct damage referred to in article 11.3.
11.6 If an event may cause damage to one of the Parties, the Parties will make every effort and take measures (including, for example, by making people and resources available) to limit the consequences of this event and the damage. The parties will assist each other in this. SILVA DIVES is furthermore not liable for damage suffered by the Client or any third party as a result of incorrect or inexpert use by the Client or any third party of the Services and/or Products supplied by SILVA DIVES.
Article 12 – Force majeure
12.1 Force majeure is a shortcoming that is not due to the fault of a Party and is also not the responsibility of that Party under law, legal act or generally accepted views. Force majeure is in any case understood to mean: general strikes, force majeure of suppliers, defective goods, materials, software (from third parties) the use of which has been prescribed to SILVA DIVES by the Client, disruptions in the electricity or communications network, fire, explosion, embargo , war, natural disasters and terrorism, epidemics, disruptions caused by the Client and/or third parties.
12.2 If one of the Parties is unable to fulfill its obligations or fails to fulfill its obligations under this Agreement for a period of more than thirty (30) Calendar Days as a result of force majeure, the other Party has the right to terminate the Agreement by registered letter. to terminate with immediate effect, without giving rise to any right to compensation and without prejudice to the payment obligations.
Article 13 - Intellectual Property Rights
13.1 All intellectual property rights, such as techniques, processes, concepts, methodologies, that arise - wherever and whenever - in the context of the Order and/or Agreement and as delivered to the Client, remain at all times with SILVA DIVES.
If SILVA DIVES uses its own Software or Software from third parties for the provision of the Services, the intellectual property rights to this Software as well as modifications, derivative works or additional developments remain exclusively with SILVA DIVES.
Under the Agreement, no intellectual or industrial property rights, including trade names, brand names and logos, are transferred to another Party. Such a transfer requires a separate agreement in which such a transfer is expressly stated in writing.
13.2 If the Client makes Software available to SILVA DIVES for the provision of the Services, the Client grants SILVA DIVES a non-exclusive right to use the software, which right is limited to using, maintaining, improving and further to develop or have developed for the benefit of the Services to the Client. For this purpose, the Client makes the software available to SILVA DIVES, including its source code if required. The Client's software, including the intellectual and industrial property of existing and future software, is, remains or becomes the property of the Client at the time of its creation, even if it has not yet been completed.
13.3 The Client acquires a limited, non-exclusive and non-transferable right of use for the duration of the Agreement with regard to the Software that already existed prior to the start of the Services and/or which were developed outside the scope of the Services, which SILVA DIVES provided during the execution of this Agreement to the Client and of which the intellectual property rights (including all improvements and adjustments thereto) remain with it or its licensors. If the Software is owned by SILVA DIVES' licensor, then this Software will be delivered to the Client in accordance with the third party technology agreement and therefore not under the current General Terms and Conditions.
13.4 If a third party files a claim that the Services provided by SILVA DIVES infringe its intellectual property rights, SILVA DIVES will defend the Client against such legal claim and indemnify it against damage and liability by a court assigned to the third party or established in an amicable settlement as accepted by SILVA DIVES, provided that the Client acts as follows:
However, SILVA DIVES will not indemnify the Client if the infringement is a result of:
If it has been established by court or by amicable settlement that the Services and/or Products infringe the intellectual property rights of a third party, the Client has the choice to change the Services so that they no longer infringe (mainly retention of the possibility of use or functionality) or to obtain a license right to continue the Services, or, if these alternatives are not commercially reasonable, the Client may terminate the Services and/or return the Products and SILVA DIVES must provide the necessary to reimburse the Client for the Fee paid to SILVA DIVES.
This article describes the Client's exhaustive right of action for infringement of intellectual property rights.
Article 14 - Confidentiality
14.1 “Confidential Information” includes all data exchanged in the context of the Agreement, all data and knowledge regarding the relationship between the Parties, as well as regarding the business affairs of the other Party and furthermore all other information and data of a Party, of which this Party has made known. made to be confidential, or which the other party understands or should reasonably understand to be confidential.
14.2 The Parties undertake to take all reasonable measures with the aim of ensuring confidentiality towards third parties with regard to the Confidential Information, which they, their employees or third parties working for them may become aware of during the conclusion and/or execution of the Agreement. The parties will oblige their employees to comply with this confidentiality provision and guarantee that the employees will be obliged to maintain confidentiality of Confidential Information through an employment contract and/or the third parties working for them through a confidentiality agreement.
14.3 The confidentiality obligation included in the previous paragraph does not apply to data with regard to which the Parties can demonstrate that: (i) the data was already known to third parties; (ii) it concerns data of general knowledge; (iii) the disclosure is made on the basis of a legal obligation and/or at the request of a court; (iv) the information was known to the other party before concluding the Agreement without breach of a confidentiality obligation.
14.4 SILVA DIVES is obliged and ensures that all personal data of the Client remain confidential and are not used other than for the purpose for which they are available from SILVA DIVES.
Article 15 - Notifications and other communications
15.1 Without prejudice to the relevant legal provisions, notifications and other communications to the Parties relating to the Agreement must be made to the registered office of each of the Parties by registered letter with acknowledgment of receipt, by courier, or by e-mail with subsequent written confirmation by registered mail. letter.
15.2 Notices and other communications sent in the manner mentioned below are deemed to have been received by the addressee at the following times: i) if sent by courier: at the time of delivery by the courier to the addressee; ii) if sent by registered letter: on the Business Day stated on the receipt; iii) if sent by e-mail (with subsequent confirmation by registered letter): at the time of receipt by the recipient of the e-mail (if this is after 5:00 PM local time at 9:00 AM on the next Business Day ).
Article 16 - Non-recruitment
16.1 During the term of the Agreement, as well as for a period of one (1) year after expiry or termination thereof, the Client will not, in any form whatsoever, directly or indirectly, (i) employ an employee or a former employee of SILVA DIVES until six (6) months after the termination of his (employment) contract or (ii) entering into a collaboration on an independent basis, (directly, through any company or through a third party), with a contractor, employee or a former employee of SILVA DIVES until six (6) months after the termination of his (employment) contract, unless this is done with the express prior written permission of SILVA DIVES.
16.2 If the Client acts contrary to Article 16.1, SILVA DIVES is entitled to an immediately payable compensation, not subject to moderation, of one (1) year's gross wage sum or one (1) year's paid daily or hourly allowances from the employee or contractor involved. , without prejudice to the right to claim additional compensation. The same compensation is due by the Client who achieves the same result in any other way with the intention of circumventing this prohibition.
Article 17 - Other provisions
17.1 Without the prior written consent of the other party, neither Party to the Agreement is permitted to transfer its rights or obligations under the Agreement to third parties. SILVA DIVES is permitted to transfer rights or obligations under the Agreement to its affiliated companies or to call on subcontractors without the prior consent of the Client. SILVA DIVES remains fully responsible for subcontractors in the execution of the Agreement.
17.2 If one or more articles of the Agreement are invalid or otherwise not binding, the validity of the other articles of the Agreement will not be affected. The parties will then, if necessary in joint consultation, comply with the Agreement as much as possible, in the spirit of the intention of the invalid or non-binding articles. Furthermore, the Parties will then, in joint consultation and in the spirit of the Agreement, adjust the Agreement to the extent necessary, in the sense that the non-binding articles are replaced by provisions that are binding and differ as little as possible from the non-binding articles in question. .
17.3 The Agreement contains all agreements between the Parties with regard to the Agreement and replaces all previous written and oral agreements that the Parties have made in this regard.
17.4 SILVA DIVES is entitled to use the name and logo of the Client as well as a description of the Services performed by the Client as reference material for marketing purposes.
Article 18 - Applicable law and dispute resolution
18.1 The general terms and conditions are governed by Belgian law. Application of the 1980 Vienna Sales Convention is expressly excluded.
18.2 Disputes between Parties that are not settled within five (5) Business Days will be submitted immediately to the management of both Parties in order to obtain a management decision. Disputes that have not been settled by management within fifteen (15) Working Days will be settled by the ocmpetent courts in Antwerp at the request of the most diligent Party.
18.3 In urgent cases, each Party always has the right to request a provisional injunction in summary proceedings from the summary proceedings judge in Turnhout.