General Terms and Conditions for the Purchase of Equipment

1.General

1.1 These terms determine the rights and obligations between Escaux S.A., with registered address 408, Chaussée de Bruxelles, 1300 Wavre, BTW/TVA BE 0452498367 RPR/RPM Nivelles (hereafter 'ESCAUX') and its resellers and end-users ('Clients') in respect of the purchase of Escaux UCS Equipment, related Equipment and software. Escaux UCS and Equipment is solely for professional use. These General Terms and Conditions shall take precedence over any general terms and conditions established by the Client.

1.2 Unless otherwise agreed, these general conditions will govern purchase by Client of any Equipment from ESCAUX. The Equipment is described in the Purchase Order ('Purchase Order') and Equipment descriptions that the Client will sign for acceptance. Any installation, maintenance or support service shall be governed by separate terms for the delivery of these support services by ESCAUX. In case of any contradiction between various documents the following order of precedence will apply:

* Purchase Order (plus poss. additional specific clauses or agreed addendum) * These General Purchase Terms and Conditions * Maintenance contract, if applicable * Equipment or Product Description

2. Purchased Object

Unless otherwise specified by prior written agreement between the parties, any Purchase Orders placed with ESCAUX, shall consist of (a) purchase of the Equipment, components, and (b) a non-exclusive license to use the software provided together with, or incorporated in, the delivered Equipment ('Equiment').

3. Ordering of Equipment

Client may address a written request to Escaux to supply new Equipment to Client from time to time. Escaux will confirm Client's request, if Escaux is able to supply this Equipment under these general conditions. Each Purchase Order will therefore be subject to ESCAUX's acceptance. Escaux may accept or reject an Purchase Order at its sole discretion. If Escaux cannot accept an Purchase Order, Escaux will inform Client as soon as reasonably possible and, if applicable, provide the terms under which Escaux can accept the Purchase Order. The Purchase Order may entail additional specific clauses.

Escaux can under no circumstances whatsoever be held liable on account of costs, losses or damage sustained by the Client as a consequence of ESCAUX's omission to accept a specific order.

4. Termination

4.1 In addition to any other right or remedy, Escaux may at any time stop the delivery of Equipment and/or suspend any delivery, if:

  1. bankruptcy or insolvency proceedings are brought against Client, a receiver is appointed over any of Client's assets or Client goes into liquidation (or any similar event in Client's country of incorporation takes place);
  2. Escaux is obliged to do so by a decision or direction of any governmental body or regulatory authority.
  3. the Customer does not comply with its payment obligations in accordance with section 5.
  4. In case of a breach by Client of any of the contractual obligations which are not remedied within 5 days after the written notice.
  5. In the event of 'Force Majeure', which means any event (other than in relation to payment) beyond a party's reasonable control affecting the performance of that party's obligations under these Terms or any Service Contract and that such party is unable, by the exercise of reasonable diligence, to remove or avoid. Such events include but are not limited to any act of God or Government, flood, fire, explosion, lightening, terrorism, any damage to the Escaux System deliberately or negligently caused by a third party, acts of a third party causing material disruption to the voice networks and industrial action outside the direct control of the affected party, provided such event shall not constitute a breach of this Agreement due to failure of performance and shall consequently not give rise to Client's liability.

4.2 Escaux reserves the right to charge a fixed penalty at least equal to the original purchase value for termination after Purchase Order Acceptance, by law and without notice being served, in the event that the Client cancels, in full or in part, an order placed on Escaux premises or after seven (7) days in case the contract is concluded on other than Escaux premises.

5. Invoicing and payment

5.1. Invoicing

5.1.1. Client agrees to keep these charges confidential during this Agreement and for 2 years after the cooperation has ended.
5.1.2. All prices are F.O.B. Escaux facility, Wavre, Brussels, Belgium. Prices are in its entirety payable before shipment, unless otherwise agreed in writing by an authorized Escaux representative. Prices are exclusive of any freight, taxes (sales, use, personal property tax, etc.), duties or 'impôts', all of which are the responsibility of Client. Client agrees to pay immediately all amounts due upon receipt of the invoice. In general the invoice needs to be paid before delivery or shipment of the Equipment, unless otherwise agreed. If Client claims that value added or other applicable tax should not be chargeable and/or that he is otherwise exempted from such taxes, he has to prove so to the complete satisfaction of ESCAUX.
5.1.3. Escaux will invoice the Client at the billing address shown in the Purchase Order or as Client notifies to Escaux in writing from time to time. Escaux will only accept payment of charges by bank transfer or by direct debit drawn from a bank account held in a registered name of your business or payment by credit card held in a registered name of your business.
5.1.4. Client explicitly waives the right to process chargebacks on their credit card for Escaux purchases.,

5.2. Price and payment

5.2.1. Unless otherwise stipulated, the costs are drawn up in euros and are understood exclusive of VAT or any other applicable tax in force when the order form is concluded or during the provision of the services.
5.2.2. Unless otherwise stipulated, the invoices issued by the service provider are payable in euros within the period stated thereon, exclusively into one of the following two bank accounts: KBC IBAN BE39 7350 1220 5719 (BIC KREDBEBB) or ING IBAN BE46 3630 8644 6036 (BIC BBRUBEBB), the parties excluding cash payments or payment by third parties.
5.2.3. Any complaint relating to the invoice must be duly justified and sent to the service provider in writing, at the latest within ten days of having been drawn up, otherwise it will not be taken into account and the invoice will be deemed to have been accepted.
5.2.4. In the event of the non-payment of any invoice within the period indicated thereon, the client will be liable, in addition to the capital amount, for payment to the service provider, ipso jure and without prior formal notice, for interest on arrears at the rate of 10 % per annum, as well as flat-rate compensation amounting to a total of 10 % of the amount in principal of the order, including VAT, interest and costs, with a minimum amount of EUR 75.
5.2.5. In the event of a judicial debt collection procedure, the service provider may also claim, as preferred, all legal expenses (procedural costs, etc.) or all reasonable collection expenses, in addition to the legal expenses.
5.2.6. Should the client fail to meet a single payment due date, for any reason whatsoever, all subsequent settlements will be made, at the latest, when the client places the next order. Moreover, in this case the service provider reserves the right to suspend the provision of services as of the eighth day following the dispatch of the formal notice concerning the payment. Finally, in the event of persistent non-payment after the 30th day following this formal notice, the service provider reserves the right to terminate the contract, without prejudice to the compensation for termination to be borne by the client.

Please refer to our applicable General Terms and Conditions of Payment for full details.

6. Warranty

6.1 Equipment is covered by a warranty against any material flaws or manufacturing defects.

6.2 The warranty shall however not cover:
  • damage of any kind whatsoever the cause of which does not predate the sale;
  • damage, faults and defects attributable to the Client, accidental damage, improper usage or poor maintenance, failure to comply with the instructions given in the user manual, lightning, humidity, temperature conditions outside accepted range, power surges or any Force Majeure whatsoever;
  • the repair or replacement of loose parts (cords, wires, outlets, antennas, etc.), the replacement of accessory elements that require regular replacement (batteries, paper, ink, etc.) and the supply of cleaning products.

6.3 All other obligations of Escaux to maintain or provide any warranty or repair to the Equipment, components or software shall terminate 12 months after delivery date, unless otherwise specified in the Purchase Order or Maintenance Contract. The warranty period shall come into effect at the date of delivery of the material. The warranty on repaired and/or replacement parts shall lapse on the expiry date of the original Equipment warranty, but shall never be less than three months.

6.4 The Client shall report any defect to the appropriate Escaux technical services as soon as it is noted. Escaux shall make every endeavor to repair and/or replace the Equipment or parts as soon as possible. Escaux shall have sole discretion as to the repairs to be undertaken to ensure that the Equipment again operates according to the Equipment description.

Escaux may choose to refund defective Equipment at its sole discretion in lieu of repairing or replacing it.

6.5 The warranty shall not apply if:

  • the Client cannot prove that the purchase was done via ESCAUX. Such proof needs to be established by providing a copy of the bill, receipt or ad hoc certificate provided by ESCAUX;
  • the Client, or a person not designated by ESCAUX, changes or repairs the Equipment;
  • the Equipment serial numbers and/or the brand names are removed or changed.
  • if Client returns Equipment without having obtained a Return Authorization (RMA Number) from ESCAUX;
  • returned products are not marked with the RMA number and accompanied by a complete description of the nature of the defect;
  • returned items are damaged beyond normal wear and tear usage;
  • the Client does not ship back all materials including, boxes, wires, manuals, etc. or in 'like new' condition.
  • If it is established that a failure or the continuation of a failure can be attributed to a third party (neither the Client, nor ESCAUX, nor a supplier to ESCAUX).

All returned goods must be shipped prepaid, clearly marked with the RMA number, and be accompanied by a complete description of the nature of the defect.

6.6 All returns outside the above scope will be subject to a 20% 'reconfiguration/restocking' fee and will be returned to the Client at the Client's expense.

6.7 The foregoing warranty is in lieu of, and Client waives, all other express or implied warranties of merchantability or fitness for purpose, and sets forth the exclusive and entire liability or Escaux with respect to any defective product or component, whether based on contract, tort negligence or otherwise. In no event shall Escaux be liable for special, incidental, indirect or consequential damages.

7. Transfer of ownership and risk

7.1 The Equipment bought by the Client shall remain the property of Escaux until it has been paid for in full, notwithstanding any partial payment by Client. Until then, the Client shall not transfer, alter, give as security or a guarantee, or lend the Equipment in any way whatsoever to a third party, nor shall the latter have any right of ownership thereto. In the event of seizure of or any other claim by a third party with respect to the Equipment, the Client shall inform Escaux immediately to enable the latter to safeguard its rights.

If Client defaults in the payment of any charges under section 5 when due, Escaux may remove and repossess any and all such goods delivered, in addition to any other legal remedies Escaux may have.

7.2 The risks shall transfer to the Client when the Equipment is delivered. As of delivery, Client shall be liable for any and all risks such as among others loss, theft and destruction, in full or in part, of the Equipment.

8. Limitation of liability

8.1 Escaux shall not be liable for any indirect, immaterial or consequential damage sustained or incurred by the Client or any third party attributable to an operating failure or a faulty operation of the Escaux UCS, including any loss of production, earnings, goodwill, business or data, even if Escaux has been advised of the possibility thereof and whether arising from gross negligence, breach of contract or howsoever. Escaux shall not be liable for any direct or indirect damage attributable to the software delivered with or installed in Escaux UCS.

8.3 Under no circumstances shall Escaux be deemed to be a party to any contracts concluded between a third party and the Client, unless specified otherwise and agreed in writing by ESCAUX.

8.4 No guarantee can be provided as to the quality of the connections and/or service if the Client connects, directly or indirectly, to an operator or service Client via interfaces and/or signaling. Escaux shall not, under any circumstances, be liable for any lack of quality.

8.5 The maximum liability of Escaux for any and all claims of any kind, including gross negligence, for loss or damages arising out or with this Agreement, shall in no case exceed 75% of the price allocable to the item of Equipment which gives rise to the claim. In the event it is not possible to ascertain the level of charges payable in any calendar year then the charges payable shall be deemed to be 15.000 euro in such calendar year.

9. Documents and software: Intellectual Property Rights

9.1 Escaux shall own all right, title, and interest to the software, technology, information or code relating to the Equiment, provided to Client, including all portions, copies or modifications thereof ('Software'). Escaux shall grant the Client a non-exclusive license to the use of the diagrams and any other technical and commercial documents related to the Equipment sold. These documents shall not be given to a third party without ESCAUX's consent in writing.

9.2 Client explicitly acknowledges that all Software contains technical and confidential information that are the property of Escaux or its supplier. The standard version of the Software may be provided by Escaux to the Client, giving the latter a simple, non-exclusive and non-transferable license to use the Software and any other software provided separately for the making & receiving of telephone calls..The rights granted hereunder or use of Escaux products does not convey any rights or ownership in Escaux patents, copyrights, trademarks, intellectual property or know-how.

9.3 The Client acknowledges that it is licensed to use the licensed Software in accordance with the terms of the General Terms and Conditions but not further or otherwise. Client has no right or interest in the Software except the non-exclusive right to use it in the product in which it was delivered. Use of software delivered as a separate item shall be subject to a separate license agreement that Client shall be required to accept prior to delivery.

9.4 The license to use the Software is only applicable after fulfilling all the payment conditions.

9.5 The Client shall use the Software for its own purposes only. The Client shall not permit any third party to use the Software in any way whatever. The Client shall treat the licensed Software as strictly confidential and shall not divulge the whole or any part thereof to any third party. The Client shall ensure that its employees comply with such confidentiality and non-disclosure obligations. The Client shall keep exclusive possession of and control over the copies of the licensed software in its possession and shall effect and maintain adequate security measures to safeguard the licensed software from access or use by any unauthorized person.

9.6 The Client shall not without the prior written consent of Escaux use the Software at any location other than the installation address specified in the Purchase Order.

9.7 Except to the extent and in the circumstances expressly required to be permitted by law, the Client shall not alter, modify, adapt or translate the whole or any part of the Software in any way whatever nor to decompile, disassemble or reverse engineer the software or any part thereof nor attempt to do any of such things.

9.8 Client agrees not to directly or indirectly reproduce, decompile or provide or otherwise make available to any third party any Escaux intellectual property. Client shall be liable for all damages, including loss of anticipatory profits, incurred by Escaux as a result of such unauthorized use, copy or replication.

9.9 Escaux shall supply 1 copy of the Software and the diagrams and other technical and commercial documents. In addition, the Client may make 1 copy of the Software for operational security and back-up purposes but shall make no other copies thereof. The Client shall ensure that all such copies bear the same proprietary notices as the original. The provisions of this Agreement shall apply to all such copies as they apply to the originals. No copies may be made of the documentation without the prior written consent of ESCAUX.

9.10 The use of the Software is restricted to use on the computer system which is under direct control of the Client ('The Computer System'). The Client acknowledges that an additional license fee is payable for each additional Computer System on which the Software are to be used or additional concurrent user which is to have access to the Software

9.11 Escaux shall be entitled to terminate the license forthwith by notice in writing to the Client if the Client shall commit any breach of the terms of these Terms or shall become insolvent or shall have a liquidator, receiver, administrator or administrative receiver appointed or if the Client permanently ceases to use the Software. Upon such termination the Client shall return the Software and all copies thereof to Escaux or, at the option of ESCAUX, shall destroy the same and certify that they have been so destroyed. The Client shall also cause the Software to be erased from its Computer System and shall certify to Escaux that the same has been done.

9.12 The Software, when delivered to the Client, shall provide the facilities and functions described in the prod uct description and the documentation. The Client agrees that the Client's sole remedy in respect of a defect shall be for Escaux to provide correction of documented program errors which ESCAUX';s investigation indicates are caused by a defect in an unaltered version of the Software, and are not due to a defect or deficiency in, or a failure of, the equipment upon which the Software are operated or hardware or software not recommended or approved by ESCAUX, or incorrect handling or employment of the Software by the Client. All warranties hereunder extend only to the Client and are for the benefit only of the Client.

9.13 Escaux makes no warranties or representations concerning the computer equipment used in conjunction with the Software.

9.14 Escaux shall indemnify the Client against any claim that the normal use or possession of the Software infringes the intellectual property rights of any third party provided that Escaux is given immediate and complete control of such claim, that the Client does not prejudice ESCAUX's defense of such claim, that the Client gives Escaux all reasonable assistance with such claim and that the claim does not arise as a result of the use of the Software otherwise than in accordance with these Terms or in combination with any equipment or programs not supplied or approved by ESCAUX. Escaux shall have the right to replace or change all or any part of the Software in order to avoid any infringement. The foregoing states the entire liability of Escaux to the Client in respect of the infringement of the intellectual property rights of any third party

9.15 The Client shall notify Escaux if the Client becomes aware of any unauthorized use of the whole or any part of the Software by any person

9.16 The Client will permit Escaux to check the use of the Software by the Client at all reasonable times and for that purpose and the purpose of verifying the discharge of the Client's obligations, Escaux shall be entitled to enter any of the Client's premises (and so that the Client hereby irrevocably licenses ESCAUX, their employees and agents to enter any such premises for any such purpose)

9.17 Client shall not remove, deface or obscure any copyright, trademark or other proprietary notice in the Software.

9.18 The right to receive support services and upgrades for the Software is available under a separate support service contract in accordance to clause 11

10 Hardware Maintenance contract

The Client can conclude at any time a maintenance contract with ESCAUX. Acceptance of the request for a maintenance contract shall be subject to a prior technical examination, at the Client's expense and billed at the rates then applying.

11 Support Service contract

Following the purchase of Equipment, Escaux UCS services, software maintenance and support are only available to Clients who conclude a support service contract in order to configure, maintain and use Escaux UCS through the Service Management Platform (SMP).

12 Confidential Information

12.1 The Client agrees to treat any data or information which the Client or its employees and/or subcontractors would have been informed or would have gained knowledge of during the execution of these Terms as confidential information (hereafter called "Confidential Information") during the order and for a period of two (2) years after the termination of this Agreement. The receiving party of any Confidential Information of the other party agrees not to use said Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and avoid disclosure and unauthorized use of the disclosing party's Confidential Information to the same degree that it takes to protect its own confidential information and in no event less than reasonable care.

12.2 The Client shall not reproduce, copy, publicise or otherwise disclose such Confidential Information, in whatever form or way, to any third party, unless expressly authorised in advance and in writing by ESCAUX, which consent Escaux may withhold in its sole discretion

12.3 The Client shall immediately notify Escaux in the event of any disclosure, loss, or destruction of Confidential Information

12.4 Shall not be considered as Confidential Information:
  • information that Escaux publicly and in a written manner disclosed in the past;
  • information known by Client, under no obligation of confidence, at the time of disclosure by Escaux or its staff;
  • information that becomes publicly known through no wrongful act of Client or its personnel;
  • information that is lawfully obtained by Client from a third party who, in making such disclosure, breaches no obligation of confidence; and
  • information that is independently developed by the Client without reference to the Confidential Information.

13 Miscellaneous

13.1 Any notice required or permitted to be sent under these Terms shall be delivered by first class mail, return receipt requested, or via an international courier service (e.g. FedEx, DHL, UPS, etc.) to the addresses of the parties set forth in this order. Notice so sent will be deemed effective three days following deposit in the mail, proper postage prepaid or one day following delivery to an international courier, prepaid for overnight delivery.

13.2 No delay or failure by Escaux to exercise any of its powers, rights or remedies under these Terms will operate as a waiver of them, nor will any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them.

13.3 If any provision of these Terms is found by a court of competent jurisdiction or other competent authority to be invalid, unlawful or unenforceable then such provision will be severed from the remainder of these Terms, which will continue to be valid and enforceable to the fullest extent permitted by law. Parties shall endeavour to replace the provision in question by a provision which has the nearest economic effect of the provision in question.

14 Assignment clause

Client agrees not to assign, or otherwise transfer, a Service Contract or any rights and obligations hereunder without Escaux prior written consent. The Client must request ESCAUX's consent giving at least three months' written notice, which notice shall detail the full reasons for the request. Escaux may assign, transfer or otherwise dispose of any or all of its rights hereunder to any third party and Affiliate of equivalent financial standing.

15 Notice

Notices hereunder shall be in writing and addressed to Company at the address provided when purchasing this license, or, in the case of ESCAUX, when addressed to ESCAUX, Inc., Attn. Legal Counsel, Chaussée de Bruxelles 408, 1300 Wavre, Belgium.

16 Applicable law and competent courts

The provisions of these General Terms and Conditions shall be governed by Belgian law.

Any disputes arising from the conclusion, performance, interpretation of these terms shall be amicably settled between the parties. Should the parties fail to reach an agreed solution, any disputes arising from this agreement shall be submitted to the exclusive jurisdiction of the courts of Namur, Belgium.
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