General Terms and Conditions OCULAR BV
Article 1: Applicability
The present general terms and conditions apply to all quotes from, agreements with and orders to OCULAR BV, with registered office at 8750 ZWEVEZELE, Hille Zuid 1B and company number 0477.501.504. Deviation from the general terms and conditions is only possible by prior written agreement between Ocular and the Customer. By accepting a quote from Ocular, placing an order with or signing a contract with Ocular, the Customer declares to have read and understood the present general terms and conditions of sale, to agree in full and irrevocably to their content and applicability to all legal relations with Ocular and the Customer expressly and irrevocably waives its own general terms and conditions (of purchase), if any.
Article 2: Definitions
Ocular Software: software programs developed by Ocular.
Third-party Software: third-party platforms, structures, operating systems, tools and any other third-party software programs, resold by Ocular.
Software: Ocular Software and/or Third-party Software
User: any natural person who is entitled to use the Ocular Software and/or Third-party Software, within the limits of the (licence) agreement entered into with Ocular.
Customer: any natural person to whom Ocular delivers goods or services.
Deficiency: failure of Ocular Software and/or other goods supplied (e.g. Hardware) to function according to specifications.
Hardware: computers, video players, audiovisual equipment and any other computer hardware or related devices, consumables, peripherals, accessories and/or spare parts.
Maintenance conditions: the general maintenance conditions of Ocular
Backup: safeguarding imported data and/or Software by making a backup copy
Article 3: Price and quotes
The prices mentioned in the price lists, quotes and agreements are always exclusive of VAT. Only the costs that are expressly mentioned in a quote or agreement accepted by Ocular are included in the price. Quotes are valid for a period of one month after being sent. Quotes only represent a proposal by Ocular and are not binding for Ocular, not even after acceptance by the Customer. Only the acceptance by Ocular will create a contract. Ocular
is entitled to refuse orders at all times. If a quote is made into an agreement, the latter will replace all prior oral or written proposals.
Article 4: Terms
The terms of delivery and execution mentioned in quotes and/or agreements are purely indicative. Terms are given on the basis of the data and circumstances known to Ocular at the time the quote and/or agreement is made. In case of non-compliance with the terms of delivery and/or execution, the Customer cannot claim damages, dissolution or breach of the contract.
Article 5: Delivery and transfer of ownership of physical goods
Upon delivery of Hardware and/or other physical goods, the Customer expressly acknowledges and accepts that Ocular retains ownership of the goods until full payment of the price. Until after full payment of the price, the Customer shall not make the goods immovable by incorporation, resell or otherwise dispose of them. If justified by the creditworthiness of the Customer, Ocular may request further guarantees. If these are not provided, Ocular may suspend performance of the Agreement. However, the risk of loss, decay or damage to the Hardware and/or physical goods (regardless of the cause) shall pass to the Customer at the time of delivery by (or on behalf of) Ocular to the Customer or upon collection by the Customer. Complaints about directly observable Deficiencies of the Hardware and/or physical goods must be notified in writing to Ocular within 8 days following delivery, otherwise the Customer shall be deemed to have accepted this delivery in full and without reservation.
Ocular shall deliver the Ocular Software and/or Third-party Software in accordance with the specifications mentioned in the quote and/or the written agreement with the Customer accepted by Ocular. If an implementation and/or integration process for the Software has been agreed upon with the Customer, the Customer shall provide all necessary cooperation, including but not limited to assigning qualified staff to carry out the tests and attend the education and training courses agreed with Ocular, so that the Software can become operational in an efficient manner and within the indicative implementation deadlines. During the implementation and/or integration process, the Customer shall be responsible to report in writing and in accordance with the applicable procedures, any Deficiencies and/or negative tests. During the agreed implementation and/or integration process, Ocular guarantees to make all necessary adjustments to the Software that are required to eliminate Deficiencies and negative tests. In case the work in the implementation and/or integration process is executed in different phases, Ocular is entitled to postpone the start of the activities that are part of a next phase until the Customer has accepted the previous phase in writing and paid for it. Each implementation and/or integration process always ends with an acceptance test by the Customer, unless otherwise agreed upon with the Customer. The Customer shall not start using the Software before the implementation and/or integration process is finalised with a successful acceptance test. As soon as the Customer starts to use the Software, it will automatically be considered as accepted. Deficiencies that are reported by the Customer after having accepted the Software are subject to maintenance by Ocular and to the maintenance contract (including the Maintenance conditions) entered into by the Customer with Ocular.
Article 7: Services
All services – other than implementation and/or integration of the Software – performed by Ocular on behalf of the Customer, including but not limited to customisation, shall be performed by Ocular with care, in accordance with the agreements and procedures agreed upon in writing with the Customer. In case the work is executed in different phases, Ocular is entitled to postpone the start of the activities that are part of a next phase until the Customer has accepted the results of the previous phase in writing and paid for it. The customer accepts that an extension or modification of the agreed services may affect the time of completion of the services. Moreover, if a fixed price has been agreed for the services, this may result in price changes. Should additional work arise in the performance of the work agreed for a fixed price, which is caused by problems or interferences with systems or software not supplied by Ocular or with systems or software not covered by Ocular's warranty, such work shall be charged additionally.
Article 8: Invoicing and payment
All invoices from Ocular are payable on the due date stated on the invoice. If no due date is specified, invoices are payable within 30 days following the invoice date. Payment is made by bank transfer to one of the bank accounts indicated on the invoice, mentioning the invoice number. Any protest of the invoice must be made by registered letter addressed to Ocular's registered office within 8 days following the receipt of the invoice. In case of non-payment or incomplete payment of the invoice within the stipulated period, the Customer shall automatically, and without prior notice, owe a default interest of 12% per annum from the due date. Where applicable, this interest shall be calculated on a pro rata temporis basis. Moreover, in case of non-payment or incomplete payment of the invoice within the set term, a fixed compensation of 10% of the invoice amount shall be charged with a minimum of EUR 125.00, without prejudice to Ocular’s right to claim higher compensation. In case of non-payment of the invoice, Ocular is entitled to suspend any further performance of the contract.
Article 9: Liability of Ocular
Ocular cannot in any way be held responsible for the proper application and/or use of the Software and physical goods (e.g. Hardware) by the Customer and Users. To the fullest extent permitted by applicable law, Ocular shall not be liable for any direct or indirect damage arising as a result of the use of the Software and/or physical goods and the results generated by the Software and/or physical goods based on the Customer's data.
Ocular shall not be liable either for damage caused by:
- delay or loss of data (whatever the cause) if the Customer fails to take (daily) Backups, or takes them with faulty material or the wrong procedures;
- reasonable exceeding of delivery and execution deadlines and exceeding due to changed circumstances;
- lack of cooperation by the Customer;
- non-performance or late performance of the agreements, if this is impossible due to force majeure, labour disputes or any other unforeseen circumstances, including delays caused by Ocular's suppliers, delays necessary for Ocular or its suppliers to order parts and/or new versions of Third-party Software and all delays caused by any act of third parties, as well as strikes, natural disasters, lack of transport and others.
In any case, Ocular shall never be liable for indirect damage (including but not limited to loss of data, revenue, profit or other economic benefits). Ocular's maximum liability to the Customer, on whatever ground, shall be limited to the total amount of Ocular's invoices paid by the Customer to Ocular in the year before the claim or the amount of EUR 25,000.00 (twenty-five thousand), the lower of the aforementioned amounts always determining the maximum liability.
Article 10: Warranty
Ocular guarantees that the Ocular Software has been developed and made available in accordance with applicable standards in the IT sector. The Customer acknowledges to have been fully informed about the features of the Ocular Software and declares that Ocular has fully fulfilled its information obligation to the Customer. Third-party Software and Hardware are subject to the warranties made by the third party from whom Ocular purchases the Third-party Software and Hardware. As of its installation, Ocular Software is subject to the Maintenance agreement as concluded with Ocular. In the absence of a maintenance agreement, any post-installation intervention shall be paid for by the Customer on a time and expense basis at Ocular's hourly rate applicable at the time of intervention.
Article 11: Intellectual Property
Ocular (or its supplier, if applicable) shall at all times retain ownership of all intellectual property rights, including but not limited to copyrights, software rights, database rights, design rights, patent rights, trademark rights and semiconductor product rights, to the Software and/or Hardware provided, including all manuals, installation guides, integration and implementation documents, reports, test results, analyses and all other documentation provided by Ocular to the Customer (hereinafter called "Intellectual Property Rights"). Unless otherwise agreed in writing, Ocular shall at all times remain entitled to freely reuse and reproduce the Ocular Software and accompanying documentation in other projects. The Customer acknowledges that the delivered Software contains confidential information and trade secrets that cannot be disclosed or given into use to third parties. The Customer only acquires a right to use the Software that is limited to the conditions stipulated in the applicable licence or use conditions. In the absence of particular licence or use conditions, Ocular grants the Customer a non-exclusive and non-transferable right of use of indefinite duration of the Ocular Software within the Customer's company for internal professional purposes. Such right of use can be terminated by the Customer and/or Ocular at any time taking into account a 12 months' notice. The Customer is only allowed to take copies of the Software for Backups and for testing the Software. In case of violation of the Intellectual Property Rights of Ocular, the Customer shall pay fixed damages of ten times (10) the price paid by the Customer for the Ocular Software (including implementation and integration), without prejudice to Ocular's right to claim higher damages. All logins and passwords given to the Customer by Ocular are personal and confidential. The Customer is fully responsible for the use and confidentiality of these logins and passwords and engages, and to the extent necessary, makes sure that the Users will not disclose the login and password to any third party and will not allow any person other than the Users to access the Software. The Customer is responsible for respecting the agreed number Users designated by name and/or Users designated by number who have access to the Software at the same time. The Customer is not allowed to remove and/or change any indications regarding the Intellectual Property Rights from the Software and/or Hardware. The Customer is not allowed to use Ocular's brands or Ocular's trade name for advertising purposes without Ocular's written consent. In the event of infringement by the Ocular Software of intellectual rights of third parties, Ocular undertakes either to make an arrangement with such third party allowing the Customer to continue using the Ocular Software or to modify the Ocular Software so that it does not further infringe the rights of the relevant third party.
Article 12: Cooperation of the Customer
The Customer shall provide Ocular with all necessary data in a timely manner and provide sufficient skilled personnel internally to ensure that Ocular can perform its agreement with the Customer. The Customer is responsible for providing a competent and authorised internal project manager who is sufficiently available to accompany the Ocular work. If the data or personnel are not available or not available in time, in accordance with the agreements made for the execution of the agreement, Ocular is entitled to suspend the agreement and charge the resulting additional costs according to the then current rates.
Article 13: Manual
A functional manual for the operation of Ocular Software will be provided to the Customer. Unless otherwise agreed in writing, this manual only relates to the operation of the default software. The Customer himself is responsible for describing the procedure of how the Ocular Software is deployed in its business.
Article 14: Termination of contract
- the customer is in a state of bankruptcy, sequestration, dissolution or liquidation;
- an invoice from Ocular remains unpaid 30 days after the expiry of the payment period provided for in Article 8 of these General Terms and Conditions.
After termination of an agreement, the Customer shall remain bound by the Intellectual Property and Confidentiality provisions at all times.
Article 15: Confidentiality
Any information that comes to the knowledge of the Customer and Ocular in the execution of agreements and that is confidential or should be considered confidential under the circumstances, shall be handled confidentially and shall not be disclosed to any third party. Confidential information shall not include information that (i) becomes publicly available in a legitimate way and/or in a way that is not in breach of the terms of the agreement with the Customer; (ii) has been lawfully obtained from third parties, or (iii) has been developed or discovered by the other party entirely independently of the other party. Both parties ensure that their staff members (or hired third parties) strictly observe this obligation of confidentiality. The Customer himself is responsible for the degree of security applied when transmitting confidential data electronically or otherwise to Ocular. The Customer acknowledges that the higher the degree of security (e.g. encryption), the lower the risk of interception or unlawful use of the transmitted data by third parties.
Article 16: Miscellaneous
The nullity, invalidity or non-enforceability of any of the provisions of the present general terms and conditions shall under no circumstances affect the validity or enforceability of the other provisions of these general terms and conditions. In case of nullity, invalidity or non-enforceability of any provision, Ocular and the Customer engage to replace the provision with a valid and enforceable provision that corresponds the best to the intentions of the parties. The present terms and conditions cannot be deviated from tacitly. The mere toleration of a Customer's behaviour contrary to the agreed terms and conditions does not constitute a waiver by Ocular of the contents of the general terms and conditions.
Article 17: Applicable law and competent court
Quotes, assignments, orders and agreements between Ocular and the Customer shall be governed and interpreted exclusively in accordance with Belgian law. Any disputes concerning the validity, interpretation or execution of such quotes, assignments, orders and agreements shall fall within the exclusive jurisdiction of the Court of Ghent, division Bruges.