General Terms & Conditions
TF Tech NV
GENERAL TERMS AND CONDITIONS OF SALE
Unless explicitly stated otherwise in a specific agreement, these General Terms and Conditions of Sale, together with the Sales Order, represent the entire agreement (“Agreement”) between you or the entity you represent, and TF Tech NV, a Belgian limited liability company with registered office at Antwerpsesteenweg 19, B-9080 Lochristi, Belgium, registered with the Crossroads Bank of Enterprises under company number BE 0712.845.674 (RPR Gent, district Gent) (the “Company”).
“Acceptance” means that any Deliverable has successfully completed the Acceptance process set forth in Section 4. Such Acceptance may be either explicit or implicit, i.e. in the absence of an explicit Rejection.
“Acceptance Period” means fifteen (15) days as from the Delivery Date, unless otherwise agreed to in the Sales Order or as provided under statutory law.
“Customer” means you or the customer entity identified in the Sales Order, as the case may be.
“Deliverables” means the Hardware, Software, Services (if any), or any deliverable specified in a Sales Order.
“Delivery” means the act of making the Deliverables available for reception by the Customer in accordance with Section 4.1.
“Delivery Date” means the ultimate date on which the Delivery may take place, as determined in the Sales Order.
“Documentation” means all manuals, instructions and other documents (whether in hard copy, soft copy or web-based form) relating to, or necessary for, the use, operation or maintenance of the Deliverables, together with all enhancements, corrections, modifications and amendments to such documents that are furnished to Customer under this Agreement.
“Effective Date” means the date when the Agreement starts to operate, corresponding to the issuance date of the Sales Order.
“Hardware” means any hardware to be provided by Company as specified in a Sales Order or Specific Agreement.
“Party” means any party to this Agreement;
“Rejection” means the explicit rejection of Deliverables by Customer, provided that the following cumulative conditions have all been completed:
the Rejection has been notified by Customer to Company within the Acceptance Period (i.e. at the latest on the last day of the Acceptance Period);
Customer has returned to Company all rejected Deliverables immediately after the Rejection notice;
Any rejection that does not meet both aforementioned cumulative conditions shall not qualify as a Rejection and shall be deemed an implicit Acceptance.
“Sales Order” means any Sales Order generated electronically by Company as detailed in Section 2, including the details specified by Customer in the checkout of the Company website, or any document that the Parties mutually agree upon as the vehicle for procuring Hardware, Software and/or Services pursuant to this Agreement.
“Services” means any services to be provided by Company to Customer as stipulated in the Sales Order.
“Software” means the open source software connecting the Hardware to the ThreeFold network, all in machine readable, object code form, together with all enhancements, modifications, corrections and amendments thereto.
“Specifications” means the technical requirements for, and performance standards of, the Deliverables as set forth in the Sales Order or Documentation provided to Customer.
2. SALES ORDERS
2.1 Sales Orders. Company will issue a Sales Order (either electronically or otherwise in writing), and such Sales Order must be explicitly accepted by the Customer. In order to qualify as a Sales Order, the relevant document shall specify, without limitation, at least:
The identity of the Customer;
The Effective Date;
The Acceptance Period; and
The prices and fees to be paid in respect of the Deliverables.
In addition, each Sales Order issued may set forth (i) the applicable quantities, (ii) the unit prices, (iii) the bill-to address, (iv) the site(s) where any Services are to be performed (if applicable), and (v) any additional special terms or instructions.
3. PRICING AND PAYMENT
3.1 Pricing. The prices and fees for Deliverables shall be as set forth in the Sales Order. All prices will be displayed in the Customer’s local currency where they have chosen that option. In such case prices are displayed in the Customer’s local currency for information purposes only. The final contracted price shall be in EUR and may be subject to bank charges and/or currency exchange fees which will be borne by Customer.
3.2 Invoicing. Company shall issue an invoice against each accepted Sales Order (the “Invoice”). The Invoice shall be made available either electronically, in writing or online through the Company’s electronic invoicing system (if any).
3.3 Payment term.
Each Invoice shall automatically become due and payable on the date of issuance of the Sales Order.
3.4 Late Payments. In the event that Customer fails to make any payment of undisputed amounts on or prior to the applicable invoice due date (as determined in accordance with this Section 3), then those undisputed amounts shall accrue interest from the due date at a rate of eight percent (8%) per annum (or such lesser rate as may be the maximum permissible rate allowed under applicable law), calculated from the first day when such amount became due and owing until the date on which such amount is paid. The Company’s right to claim additional damages shall remain unaffected.
3.5 Taxes. Customer shall pay all federal, state or local sales or use taxes and any other government taxes, fees, duties or charges that are imposed upon the fees and charges paid by Customer to Company pursuant to this Agreement. Company will be responsible for all other taxes arising from the transactions contemplated by this Agreement, including, without limitation, any taxes based upon Company’s property, net income or gross receipts. Customer shall pay all such amounts directly to the taxing authority unless the taxing authority requires that Company collect and remit payment, in which event Customer shall pay such amounts to Company and Company shall remit such amounts to the authority and provide Customer with a certificate stating that such amounts were so remitted. Customer and Company shall reasonably cooperate in order to take actions to minimize, or to qualify for exemptions from, any applicable taxes, duties or tariffs. Such cooperation shall include, without limitation, the furnishing of certifications that purchases by Customer are for purposes of resale, if applicable, and must be used in accordance with any local and international laws. Customer and Company shall each have the right to protest or appeal any tax or charge assessed against it by any taxing authority with respect to the subject matter of this Agreement.
4. DELIVERY AND ACCEPTANCE
4.1 Delivery. Unless otherwise agreed, prices and delivery are ExWorks (INCOTERMS 2010) from the production premises of the Company in Lochristi (Belgium) or the third party designated in the Sales Order. Any charges Company may be required to pay or collect on the sale, purchase, delivery, storage, use or transportation of the goods shall be paid by Customer.
4.2 Export regulations. Customer is responsible for complying with all applicable export and/or re-export restrictions and regulations.
4.3 Title; Risk of Loss. Unless otherwise agreed, the risk of loss passes to Customer on the date when the goods are delivered to the carrier, as described in INCOTERMS 2010 (the “Delivery Date”). Where the risk of loss has passed to Customer, Customer must obtain redress for freight losses, shortages or damages from the carrier or its insurer. Company is not responsible for any such losses. Notwithstanding any provision of INCOTERMS 2010 or contained herein, equitable title and accession to the goods shall, where permitted by law, remain with Company until Customer has paid in full. This shall be the case even if legal title to the goods shall be deemed by law to have passed to Customer at the time of delivery and prior to performance of all of Company’s obligations. Customer shall grant and by acceptance of the goods is deemed to have granted to Company a first security interest in all goods to secure payment of amounts owed by Customer. In certain circumstances for instance for very large orders Customer agrees to execute a financing statement at Company's request. Company may reclaim any goods delivered or in transit if Customer fails to make payment when due.
4.4 Inspection and Acceptance. Customer will evaluate any Deliverable that has been delivered to Customer or performed in accordance with this Agreement to determine whether it complies with all applicable Specifications. Customer shall give Company written notice of Acceptance or Rejection within the Acceptance Period.
Upon notice of Rejection, Customer may:
immediately return to Company the relevant Deliverables, provided such Deliverables are in good working condition and without damage, in which case the Invoice will be cancelled through a credit note;
direct Company to correct the nonconformity, in which case Company (at no cost to Customer) shall correct the nonconformity within thirty (30) days of Customer’s request; or
upon mutual agreement of the Parties, pay Company a reduced amount for the nonconforming item (in which case the Invoice will be partially cancelled accordingly through a credit note).
Deliverables provided to Customer will be deemed accepted:
in the absence of any notice of Rejection within or at the expiration of the Acceptance Period; or
in the absence of any return of the Deliverables within the Acceptance Period.
5. USAGE RESTRICTIONS
Customer acknowledges that any use or purchase of the Hardware or Services for fraudulent or illegal purposes or purchases Hardware or Services in a fraudulent manner will irrevocably invalidate any Agreement between the Customer and Company and may lead to prosecution.
6.1 Hardware Warranty by Company to Customer. The Hardware supplied by Company pursuant to this Agreement is manufactured and/or developed by third party vendors and will carry the warranties specified by the applicable third party vendor, which warranties Company shall extend to Customer to the full extent permissible under such warranties or as provided under statutory law.
6.2 Services Warranties. Company warrants that all Services performed hereunder shall be performed in a timely, professional and workmanlike manner, in conformance with industry practices, and Company warrants the workmanship of such Services for a period of ninety (90) days from the date on which the applicable Services are provided.
6.3 Eligibility. Any warranties shall be invalid and the company shall have no responsibility or liability whatsoever for any Hardware or Software, or part thereof, that (a) has had the Serial Number, Model Number, or other identification markings altered, removed or rendered illegible; (b) has been damaged by or subject to improper installation or operation, misuse, accident or neglect; (c) has become defective or inoperative due to its integration or assembly with any equipment or products not supplied by Company; (d) has been repaired, modified or otherwise altered by anyone other than Company and/or has been subject to the opening of the Hardware without Company’s prior written consent; (e) has had any item removed from the Hardware including any storage device including USB drives. If any warranty claim by Customer falls within any of the foregoing exceptions, Customer shall pay Company its then current rates and charges for such services.
6.4 Termination. Cancellation or termination of this Agreement by either Company or Customer shall void this warranty.
6.5 Remedies and repair. Company’s liability and responsibility under this warranty is limited to the obligation, at Company’s option, to either repair or replace the relevant Deliverables. In the event that after repeated efforts Company is unable to repair or replace a defective Deliverable, then Customer’s exclusive remedy and Company’s entire liability in contract, tort, or otherwise shall be the payment by Company of Customer's actual damages after mitigation, but shall not exceed the purchase price or fee actually paid by Customer for the relevant defective Deliverable.
The Company shall have no obligation to repair, replace, or refund the relevant Deliverable until the Customer returns the defective Deliverable to the Company. Before returning any Deliverable to the Company, the Customer must contact the Company for a return authorization and other appropriate instructions.
The Company warrants a repaired Deliverable only for the unexpired term of the original warranty for the defective Deliverable. The Company warrants parts exchanged in connection with a repair, only for the unexpired term of the original warranty for the defective Deliverable.
6.6 Warranty Procedure. The Customer shall notify the Company immediately in writing of any obvious or potential defects in the Deliverables, following the acceptance thereof, as soon as such defects have been discovered in the ordinary course of business within the aforementioned warranty terms. Company shall only remedy defective Deliverables under these Warranty provisions provided the defects are notified to Company within the relevant Warranty period.
6.7 Disclaimer. THE ABOVE WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. COMPANY SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES (WHETHER FOR LOSS OF PROFIT, LOSS OF BUSINESS, LOSS OF OPPORTUNITY, MISSED SAVINGS, DEPLETION OF GOODWILL, RECALL, DISMANTLING OR OTHERWISE); EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.8 Limitations. To the fullest extent permitted by law, Company’s total and aggregate liability in respect to direct damages, whether in contract or tort (including negligence or breach of statutory duty), for each respective breach or series of related breaches or any and all losses, shall not exceed in the aggregate (i) the actual amount paid for the specific Deliverables giving rise to the claim; or (ii) EUR 10,000, whichever amount is lower. The existence of one or more claims under this Agreement shall not enlarge the limit.
The limitations and exclusions referred to in this clause will not apply in the event the liability results from the Company’s deliberate intent (or that of its subordinates or assistants).
The limitations and exclusions of liability, as well as indemnity stipulated for Company itself in the above paragraphs are also stipulated for and on behalf of its directors, employees, agents and other intermediaries and/or any other person employed by it or delivering services to it within the framework of the Agreement.
7.1. Severability. If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision, it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
7.2. Governing Law. All disputes will be governed by the laws of Belgium. The venue for litigation will be the appropriate courts of Ghent, Belgium. Choice of law rules of any jurisdiction and the United Nations Convention on Contracts for the International Sale of Goods will not apply to any dispute.
7.3 Changes. TF Tech NV reserves the right to vary these T&Cs at any time. TF Tech NV will inform customers by email if the T&Cs change using the contact email provided at the time of purchase, or using any email subsequently provided by the customer as their main email. The customer agrees that they will always ensure such emails are up to date and monitored. Any variations to the T&Cs will be deemed to have been accepted unless TF Tech NV is informed to the contrary.