General terms and conditions of sale Brainscape NV

1. Definitions

‘Seller’: Brainscape NV, a public limited company having its head office at Kanaaldijk 353, 2900 Schoten and registered in the Crossroads Bank for Enterprises under the number 0444.532.688.
‘Goods’: All goods offered by the Seller.
‘Buyer’: Any party acting as a buyer of Goods from the Seller, whether a natural person or a legal entity.
‘Party’: The Buyer or the Seller.
‘Parties’: The Buyer and the Seller.
‘Consumer’: Any natural person who, exclusively for non-professional purposes, buys the Goods offered for sale by the Seller.

2. General

These General Terms and Conditions of Sale apply to all sales of Goods by the Seller to a Buyer. They replace any and all previous general terms and conditions of sale of the Seller. The application of any general terms and conditions of the Buyer is also hereby expressly excluded. By placing an order with the Seller, the Buyer is deemed to accept these General Terms and Conditions of Sale in full and without reservation. Deviation from these General Terms and Conditions of Sale is possible only with specific written approval from the Seller. The invalidity of any provision of these General Terms and Conditions of Sale cannot under any circumstances result in the invalidity of the other provisions. In such a situation, the Parties will work to replace the invalid provision with an equivalent, valid provision.

3. Prices, invoicing and payment

The specified, advertised prices are net amounts and are expressed in euros. All taxes, charges and levies will be paid by the Buyer, along with any postage or transport costs. If the Buyer is a Consumer, the prices will be inclusive of VAT and all other charges payable by the Buyer. All invoices will be sent to the address specified on the order form. All invoices will be deemed to be accepted in the absence of any written and specific objection lodged within five days of the sending of the invoice. Unless stated otherwise, invoices are payable immediately and in cash at the head office of the Seller, unless otherwise agreed. The agents, sales representatives, subcontractors or other appointees of the Seller are not empowered to collect invoices. An incomplete or disputed delivery does not entitle the Buyer to postpone payment. Failure to pay one invoice by its due date will result in the outstanding balance of all other invoices, even those that have not yet fallen due, becoming payable immediately, automatically and without notice of default. Any amount that remains unpaid on its due date will incur interest of 10% per annum from the due date, automatically and without notice of default. Moreover, in respect of any late payment, the Buyer must pay fixed, flat-rate compensation at the rate of 10% of the total amount with a minimum of EUR 250, automatically and without notice of default, without prejudice to the Seller’s right to recover the costs of any court proceedings.

4. Ordering and delivery of Goods/Services

4.1 Ordering

All prices quoted for Goods are valid for only 30 days after being sent in writing to the Buyer. By signing the quote or order form, the Buyer definitively and irrevocably commits to the order. Changes to the order or cancellations at the request of the Buyer require written consent from the Seller. All costs resulting from such changes or cancellations must be paid by the Buyer. The Seller is entitled to require a deposit for any order or request full payment of the total amount in advance. In such a case, the order will be processed and executed only upon payment of the requested deposit or full amount. In any event, payment of the requested deposit or amount will be regarded as acceptance of the quote or order form. The Seller reserves the right to fully or partially suspend or cancel the order and keep any deposit or amount already paid, in the event that the order is contrary to public order or common decency or conflicts with any statutory or regulatory provision, or if the Buyer fails to fulfil its obligations to the Seller. In executing an order, the Seller also reserves the right to make amendments or additions to the specifications of the Goods at any time, as a result of the technical evolution of the Goods or economic conditions. However, the Seller guarantees equivalent functionality and performance of the Goods following any amendment to the specifications.

4.2 Delivery/Provision

Upon confirmation of an order by the Seller, the Seller will indicate a date, start date or timeframe for delivery, provision or execution. Dates and timeframes are only indicative and the Seller is not bound by them, unless otherwise expressly agreed in writing. Under no circumstances may failure to comply with such a date or timeframe result in a fine, compensation or cancellation of the order. Delivery by the Seller will always take place within 30 calendar days of the order. If this is not possible, an additional delivery timeframe will be agreed with the Buyer, or the Buyer has the option of cancelling the order. Unless another place of delivery is agreed on by the Parties, delivery will be made Ex Works (“EXW” – Incoterms 2011). Any transport or delivery will occur at the Buyer’s risk and expense. The Seller reserves the right to carry out a partial delivery, provision or execution and to issue a corresponding partial invoice. The Buyer must enable the effective delivery, handover or implementation of the Goods. The Buyer automatically and without notice of default bears the risk and expense of all Goods that are not definitively accepted on the agreed date by the Buyer or an authorised representative, including at the factories of the Seller or its appointees/subcontractors. Any resulting costs (travel costs, storage costs, etc.) will be charged to the Buyer from the agreed date or start date, automatically and without notice of default. Failure to collect or definitively accept the Goods on the agreed date or start date does not affect the obligation to pay the agreed price.

4.3 Retention of title

Contrary to Article 1583 of the Civil Code, the Goods remain the property of the Seller until the Buyer has paid the corresponding invoice(s) in full, regardless of the transfer of risk. The Buyer undertakes to respect the rights of the Seller vis-à-vis third parties and not to process, incorporate or dispose of the Goods before payment of the full purchase price, other than with the written permission of the Seller.

5. Guarantee – Warranty

5.1 The handover/delivery of the Goods covers all visible defects with respect to the Seller. When the Goods are delivered, the Buyer is also required to check their quantity/quality/condition. If no written remarks are made within eight calendar days, the delivery is deemed to have been carried out correctly. After this eight-day period, any complaints will no longer be valid. Following a valid report of a defect, the Seller must be given an opportunity by the Buyer to investigate this defect and provide the most appropriate solution. In this regard, the Seller may choose to repair or replace the Goods (with an equivalent product if necessary due to technical changes). Only if repairs or a replacement cannot be performed will the Goods be taken back by the Seller and the price of the Goods refunded. In such a situation, the Buyer cannot claim compensation higher than this amount.

5.2 If the Buyer is a Consumer, he or she may benefit from a warranty of one year from the date of delivery for any lack of conformity that may become apparent within the one-year period. The warranty may be invoked only if the Consumer reports the defect within two months of the day on which the Consumer identified the defect. Once the one-year warranty period has expired, the arrangements concerning hidden defects will apply as explained below. The Seller is responsible for hidden defects in the purchased Goods that make them unsuitable for the use to which the Buyer had intended to put them, or that impair this use to such an extent that the Buyer, if it had known about the defects, would not have bought the Goods, or would only have done so at a reduced price. In the event that a hidden defect is discovered, the Buyer may choose to return the Goods and receive a refund of the purchase price, or keep the Goods and receive a refund of part of the purchase price.

6. Liability

6.1 Except in the event of an intentional act or gross negligence on the part of the Seller or its staff or appointees, the Seller is not liable for any harm that the Buyer or a third party may suffer as a result of the failure of the Goods to function or to function properly, or of the functioning of the Goods after implementation, nor for harm resulting from the late, incorrect or incomplete delivery, provision or implementation of the Goods.

6.2 Although the Seller undertakes to perform certified destruction of any personal data that may still be present on the Goods, the Buyer recognises that the destruction of data is not possible for Goods that can no longer be started up (“dead on arrival”) and are delivered to the Seller as such, which consequently means it can no longer be determined whether any personal data is still present on the Goods. The Seller will notify the Buyer of this situation by affixing a label with the words “dead on arrival” to the Goods. Except in the event of an intentional act or gross negligence on the part of the Seller or its staff or appointees, the Seller is not liable for any harm that the Buyer or a third party may suffer as a result of a failure to destroy data, even if, after the Sale to the Buyer, the Goods can in fact be started up and it turns out that personal data is still present on the Goods.

6.3 Under no circumstances will the Seller be liable for any indirect, consequential, intangible or economic loss. In the event of liability for direct harm or loss, any damages can never exceed the price of the Goods and services supplied by the Seller. However, any limitation of liability will not apply if the harm in question relates to physical injury or death.

7. Subcontracting

The Seller is entitled at any time to use subcontractors for the delivery, installation or implementation of the Goods, in accordance with the standards, conditions and guidelines.

8. Force majeure

Any order of Goods may be rescinded by either the Seller or the Buyer with immediate effect following a simple written notification and without compensation, or the execution of the order may be postponed on the same conditions, if a situation of force majeure arises after the acceptance of the order, including but not limited to: a labour dispute, natural disaster, fire, mobilisation, requisition, embargo, ban on foreign exchange transfer, uprising, absence of means of transport, general supply problem, restrictions on employment and energy, pandemic or any other event outside of the Seller’s control.

9. Notifications

All notifications between the Buyer and the Seller will be made in writing to the address stated on the order confirmation.

10. Amendment

The Seller reserves the right to amend these General Terms and Conditions of Sale at any time. In the event that an amendment is made during execution of an order, the Seller will notify the Buyer of the amended text. In the absence of any written objection within fourteen days of notification of the amended text, the Buyer will be deemed to have accepted the amended text, and this amended text will bind the Buyer in respect of the execution of the pending order.

11. Processing of personal data

In the context of a sale of Goods by the Seller to the Buyer, the Seller will process the personal data of the Buyer. While processing personal data the Seller will comply with its Privacy Policy, which forms an inseparable part of these General Terms and Conditions of Sale and can be viewed on the website [https://www.brainscape.eu/en/privacy-statement].

12. Jurisdiction – Choice of law

The ordering of Goods by the Buyer and these General Terms and Conditions of Sale are exclusively subject to Belgian law. In the event of a disagreement about a sale or the General Terms and Conditions of Sale, the dispute may exclusively be submitted to the appropriate courts in Antwerp, Antwerp Division (Belgium). If the Buyer is a consumer, this jurisdiction is not exclusive and the courts in the consumer’s town or city of residence will have jurisdiction, if different from the courts indicated above.

Consumers may also opt to engage in alternative dispute resolution via the Consumer Mediation Service (North Gate II, Koning Albert II-laan 8 Box 1, 1000 Brussels, Tel.: 02 702 5200, contact@consumerombudsman.be, consumerombudsman.be/en). If you are a Consumer and you reside in a European country other than Belgium, we refer you to the European Commission’s portal for online dispute resolution: https://ec.europa.eu/odr.

Last updated: 08/06/2022