Terms & Conditions

GENERAL TERMS AND CONDITIONS OF NOXS Belgium n.v.

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CONTENTS:

General provisions
1. Definitions
2. Applicability and formation of Transactions
3. Prices, rates and payment
4. Cancellation
5. Confidential information, taking over employees and privacy
6. Retention of title and rights, specification and lien
7. Performance terms, risk and claims
8. Liability of NOXS
9. Force majeure
10. Termination of a Transaction
11. Intellectual Property Rights
12. Applicable law and disputes
13. Transfer of rights and obligations
14. Conversion and interpretation
User right and maintenance
1. User right
2. Fees
3. Basic maintenance
4. Prohibitions and obligations
5. Software of NOXS’s supplier
6. Term, notice, termination of the user right and maintenance
7. Returning Materials
8. Maximum price increase
Extensive maintenance
1. Extensive maintenance
2. User support
Services
1. Definition
2. Prices and rates
3. Execution
4. Changes and additional work
5. Development, delivery and acceptance of Custom Software
6. Courses and training programmes
Equipment Sale
1. Packaging
2. Installation and acceptance
3. Guarantee and maintenance
4. Export limitation
5. Returned goods
6. Purchase

I. General provisions

Definitions
1.1. NOXS: "NOXS Belgium n.v." or any of its affiliated companies insofar as such company has declared these terms and conditions applicable to its Transactions.

1.2. Other Party: the party that has accepted the applicability of these general terms and conditions by signing a written document or in another way.

1.3. Transaction: an agreement or obligation between NOXS and the Other Party relating to the delivery or provision by NOXS of Software, Equipment, Documentation and/or Services to the Other Party.

1.4. Materials: all the Software and Documentation which has been made available by NOXS to the Other Party, all the parts and adjustments thereof, including the information carriers on which they are recorded.

1.5. Equipment: all the machines and installations including peripheral equipment, with which data is (can be) processed internally or recorded on information carriers, as well as all the parts pertaining thereto not being the cabling for connecting the machines, which has been or will be sold by NOXS to the Other Party.

1.6. Software: all the computer software, including computer software of third parties made available by NOXS to the Other Party, explicitly limited to the executable version (the so-called “object-code”).

1.7. Custom Software: Software which, by order of the Other Party, has been developed or adjusted to the Other Party’s wishes.

1.8. Documentation: the information made available by or on behalf of NOXS to the Other Party in the form of Documentation, designs, reports and papers, which explains the application of the Software and/or how the Software, together with the Equipment, leads to the explicitly agreed result.

1.9. Interoperability: the computerised interaction between the Software including its data structures, other Software and its data structures.

1.10. Services: the services provided by or on behalf of NOXS to the Other Party.

1.11. Party: the Other Party or NOXS.
Applicability and formation of Transactions
2.1. These general terms and conditions shall apply to the content, formation and execution of all the Transactions. These general terms and conditions replace any earlier and/or filed general terms and conditions and/or conditions usually applied between the parties. Stipulations, especially special stipulations, that deviate from these general terms and conditions shall only apply insofar as they have been confirmed in writing by NOXS.

2.2. Any possible purchase or other conditions of the Other Party, shall not apply, not even if such purchase conditions exclude these terms and conditions, unless they have been explicitly accepted in writing by NOXS.

2.3. All offers by or on behalf of NOXS are entirely without engagement, even if a term is mentioned in the offer, unless the offer explicitly states the contrary.

2.4. A Transaction is effected after written confirmation by NOXS and/or after NOXS has started to carry it out. Written or verbal Transactions, agreements and/or stipulations made by NOXS’s employees or intermediaries can be revoked within 5 working days by the persons employed by NOXS who are authorised to represent NOXS according to the Articles of Association.

2.5. These general terms and conditions are divided into chapters I up to and including V. The chapters run from general to specific, which means that a chapter with a low number is supplementary to a chapter with a higher number, unless explicitly stated otherwise.
Prices, rates and payment
3.1. NOXS’s prices and rates apply ex-warehouse (ex works), excluding BTW 21%, packaging, packing, shipment, transport documents, assembly/installation, travel expenses, inspection, insurance and any possible government levies or taxes, unless agreed otherwise in writing. The parties can agree a fixed price for the execution of the activities. Fixed prices are prices which are not subject to change during the execution of the agreed activities, except insofar as stipulated otherwise hereinafter.
3.2. Three months after the Transaction has been concluded NOXS shall have the right to adjust the prices and rates by means of a written notice to the Other Party.

3.3. All payments must be made within 30 days after the invoice date without any deduction or set-off at NOXS’s offices or to a bankaccount to be further specified by NOXS. Claims do not give the Other Party the right to suspend payment of an uncontested part of the amount. Neither can payments be suspended where the Other Party deems it has the right of recourse pursuant to other agreements concluded with NOXS.

3.4. If the Client fails to pay the payable amounts within the agreed term, the Other Party shall, without any notice of default being required, be liable to pay interest of 1 % per month on the outstanding amount, to be calculated as of the day on which the amount should have been made payable according to the invoice. Besides, the Other Party shall pay an extra conventional compensation of 15%, and all this to a minimum of Euro 125, of the invoice if the invoice stays unpaid 8 days after a recommended reminder has been send. All this can be increased eventually by claiming the additional judicial recovery costs conformably the law.

3.5. If the Other Party fails to fulfil its obligations or if the installation ready for operation is delayed due to the Client's negligence, or if the Other Party does not cooperate as required for the execution of the Transaction, or does not cooperate in a timely or proper manner, NOXS shall be authorised to suspend its activities and to charge any additional costs that have arisen at such time to the Other Party’s account, in compliance with its usual rates.

3.6. NOXS shall at all times have the right to demand the Other Party to pay in advance or payment in cash upon delivery or completion or another form of security from the Other Party.
Cancellation
4.1. Cancellation of a Transaction by the Other Party shall be in writing and by registered post to NOXS. The Other Party shall, at any rate, always refund NOXS the costs incurred by NOXS in connection with the cancelled Transaction.
4.2. The Other Party shall, at any rate, depending on the time when the written cancellation is received, pay a percentage of the total agreed contract price in accordance with the arrangement stated below – whereby the payable amounts can be deducted from the contract price pursuant to Paragraph 1:
- 100% if the cancellation notice is received within 2 working days before the agreed date of delivery or completion or the start of the event;
- 75% if the cancellation notice is received within 1 week before the agreed date of delivery or completion or the start of the event;
- 50% if the cancellation notice is received within 1 month before the agreed date of delivery or completion or the start of the event;
- 25% in all other cases.
4.3. If a Transaction was intended to be carried out entirely or partly on the basis of actual cost, the contract price mentioned in Paragraph 2 shall be determined on the basis of the estimated amounts quoted by NOXS and in default thereof on the basis of an estimate of the actual cost.

4.4. Unless agreed otherwise delivered and accepted goods will not be taken back by NOXS.

4.5. If and to the extent that the parties have agreed that the goods will be taken back, NOXS shall have the right to credit the Other Party’s account with the market prices in force on the date at which the goods are taken back.
Confidential information, taking over employees and privacy
5.1. Either Party guarantees that all the information received from the other party, the confidentiality of which it is or ought to be aware shall remain secret, unless a legal obligation requires that party to disclose such information. The Party which receives such confidential information shall only use it for the purpose for which it has been provided. Information shall, at any rate, be considered confidential if either Party has marked it as such.

5.2. During the term of the Transaction as well as for one year after the termination thereof, neither Party shall employ employees of the other party who are or have been involved in the execution of such Transaction or otherwise engage them, directly or indirectly, unless the other party has given prior written permission. NOXS shall not withhold such permission if the Other Party has offered proper compensation.

5.3. Either Party shall indemnify the other party for claims of persons whose personal data are registered or processed by that party for the personal data registration of that party or for which that party is otherwise responsible pursuant to the law, unless that party proves that the facts on which the claim is based can only be attributed to the other party.
Retention of title and rights, specification and lien
6.1. All the goods delivered to the Other Party remain the property of NOXS until all the amounts the Other Party owes for the goods or activities delivered or provided or to be delivered or provided pursuant to the Transaction, as well as the amounts mentioned in Article 3.4, including interest, conventional compensation (15 %) and eventual extra judicial collection costs, have been fully paid to NOXS. If the Other Party acts as a reseller, it will be allowed to sell all goods subject to the retention of title of NOXS and to deliver them insofar as this is usual in the ordinary course of its business.

6.2. Rights shall each time be granted, or, as the case may be, transferred to the Other Party provided that the Other Party fully pays the agreed fees in a timely manner.
Performance terms, risk and claims
7.1. The performance terms stated by NOXS are only indications and shall therefore not constitute deadlines as the latter would mean that NOXS would be put into default when it exceeds the performance term. Default arisen because NOXS has exceeded the performance term shall never give the Other Party the right to claim damages, nor to dissolve a Transaction. If NOXS exceeds a term, this shall never give the Other Party the right to dissolve and/or suspend its obligations pursuant to other agreements, not even if the term exceeded by NOXS is a deadline.

7.2. NOXS has the right to adjust the performance terms if NOXS has not received all the data required to carry out the Transaction in a timely manner.

7.3. If goods are delivered duty paid, not including the unloading of the goods from any transport means, the goods will be transported for NOXS’s risk and account. In all other cases the goods are transported for the Other Party’s risk and account. In the latter case the time of delivery is the time when the goods have left the NOXS location or when NOXS has informed the Other Party that the goods are ready for shipment.

7.4. The terms of delivery shall be interpreted in accordance with the latest publicised "Incoterms", insofar as they do not deviate from that which ensues from these terms and conditions and/or written agreements made between the parties.

7.5. Any war risk shall be for the Other Party’s account.

7.6. If NOXS takes out insurance for one or more Transactions at the Other Party’s request and for the Other Party’s account, the Other Party can never derive more rights from this stipulation than it would have had if it had taken out the insurance itself.

7.7. NOXS can consider the stated address as such until the Other Party notifies NOXS of a new address in writing. Any damage arising from this shall be for the Other Party’s account.

7.8. Claims shall be submitted in writing by recommended letter no later than within 8 days after the Other Party has fulfilled its obligations towards NOXS, stating the grounds on which the claim is based in detail. In default thereof the Other Party shall be deemed to have approved the Transaction. The fact that a claim is being processed does not mean that NOXS considers it timely or justified.

7.9. Minor deviations as regards colour, dimensions, finishing, quantity and quality which are common in trade or which cannot be technically avoided shall never constitute a reason for a claim. The Other Party acknowledges that it cannot expect the Software to be perfect.

7.10. The Other Party is always responsible for making and having at its disposal readable copies of all the files, data and other information carriers. It is recommended that the Other Party take out reconstruction insurance. The Other Party is furthermore responsible for the use and correct application in its organisation of the Equipment, the Software, the Documentation and the Services to be provided by NOXS, as well as for the administration and calculation methods to be applied and the protection of the data.

7.11. The Other Party shall always provide NOXS with data or information that is useful or necessary for the proper execution of the Transaction and fully cooperate, which includes giving access to its buildings. If the Other Party uses its own staff to cooperate with the execution of the Transaction, such staff shall have the required knowledge, experience, competence and quality.
Liability of NOXS
8.1. NOXS accepts the legal obligations to pay damages insofar as this appears from this article.
8.2. NOXS’s total liability for an attributable failure in the performance of the Transaction shall be limited to a reimbursement of the direct damage up to a maximum of the amount of the price agreed for such Transaction (excl. BTW 21%) If the Transaction mainly consists of a continuing performance contract with a term of over one year, the agreed price shall be determined at the total of the reimbursement (excl. BTW 21%) agreed for one year, namely the year in which the damage has arisen. The total reimbursement for the direct damage shall, however, under no circumstances exceed the amount of € 500,000. The term direct damage shall only be taken to mean:
1. The reasonable costs the Other Party would have to incur to ensure that NOXS’s performance conforms to the Transaction. However, this damage will not be reimbursed if the Transaction has been dissolved by or by order of the Other Party;
2. The reasonable costs incurred by the Other Party for keeping its old system or systems and the related facilities operational out of necessity, because NOXS has failed to deliver on a binding date of delivery, less any possible savings caused by the delayed delivery;
3. The reasonable costs incurred to determine the cause and the amount of the damage, insofar as this assessment relates to direct damage in the sense of these terms and conditions;
4. The reasonable costs incurred to determine the cause and the amount of the damage, insofar as the Other Party proves that these costs have lead to a limitation of the direct damage in the sense of these terms and conditions.
8.3. NOXS’s total liability for damage due to death or physical injury or for property damage shall under no circumstances exceed the amount of € 1,250.000 per event, whereby a series of related events shall be considered as one event.

8.4. The liability of NOXS for indirect damage, including consequential damage, loss of profit, lost savings and damage caused by stagnation is excluded. NOXS is not liable for any costs or damage as a consequence of the mutilation, destruction or loss of files, data and other information of the Other Party.

8.5. Except in the cases mentioned in this article NOXS is not liable for any damages, irrespective of the ground on which legal action to claim damages is based. However, the maximum amounts mentioned in this article and other exemptions shall be cancelled if and insofar as the damage is the consequence of gross negligence or intention on the part of NOXS or its management.

8.6. NOXS can only be held liable for an attributable failure in the performance of a Transaction if the Other Party immediately puts NOXS in default in writing, in a proper manner and by recommended letter, stating a reasonable term to remedy the failure, and if NOXS continues to fail to fulfil its obligations after such term. The notice of default shall contain a detailed description of the failure so that NOXS can respond adequately.

8.7. A condition for any right to damages shall always be that the Other Party, immediately after the damage has occurred, reports the damage to NOXS in writing as soon as possible after occurrence of the damage Any claim for damages against NOXS shall be cancelled following the lapse of 24 months after the claim has arisen.

8.8. The Other Party shall indemnify NOXS for any claims of third parties due to product liability as a consequence of a defect in a product or system delivered by the Other Party to a third party, which also consisted of Equipment, Software or other Materials delivered by NOXS, except if and insofar as the Other Party proves that the damage was caused by such Equipment, Software or other Materials.

8.9. The stipulations of this article shall also apply to all the (legal) persons used by NOXS to carry out the Transaction.
Force majeure
9.1. The parties are not under an obligation to fulfil any obligation if fulfilment is impossible as a consequence of force majeure. The term force majeure shall be taken to include force majeure of NOXS’s suppliers, the failure to properly fulfil obligations by suppliers which the Other Party has instructed NOXS to use, as well as any defectiveness of goods, Materials, Software of third parties which the Other Party has instructed NOXS to use.

9.2. If a situation of force majeure lasts longer than ninety days, the Parties shall have the right to terminate the Transaction by dissolving it in writing. Anything which has already been performed pursuant to the Transaction will, in that case, be settled proportionately, without either Party owing anything else to the other party.
Termination of a Transaction
10.1. Either Party is only authorised to dissolve a Transaction if the other Party, after a proper written notice of default that contains as many details as possible, stating a reasonable term to remedy the failure, fails attributably in the fulfilment of essential obligations of the Transaction. Such shall apply without prejudice to the right of such party to claim further compensation of the damage, or to demand security for timely and complete fulfilment. If the other party fails to fulfil any obligation, including the obligation to provide security, all the invoices and/or claims shall be immediately due and payable and the party shall have the right to demand proper security for further fulfilment in addition to its right to suspend its obligations.

10.2. If a Transaction which on the basis of its nature and content does not terminate by its completion and has been entered into for an indefinite period of time, it can, after proper consultations have been conducted, be terminated by either Party by means of a written notice of termination stating the reasons. If no explicit notice period has been explicitly agreed between the parties, a reasonable notice period shall be observed.

10.3. In deviation of the legal provisions of regulatory law in this respect, the Other Party can only give notice to terminate a services Transaction in the cases provided for in these terms and conditions.

10.4. Either Party can terminate a Transaction in writing, wholly or in part, with immediate effect and without any notice of default being required if the other party is granted suspension of payments, whether or not temporary, if bankruptcy is filed for with regard to the other party or if the business of the other party is liquidated or terminated other than in the framework of a reorganisation or merger. NOXS shall never be under an obligation to pay any refund for payments that have already been received or any damages. In the event of the Other Party’s bankruptcy the right to use the Software provided to the Other Party shall be cancelled by operation of law.

10.5. If activities to carry out the Transaction have already been performed for the Other Party at the time the Transaction is dissolved, as mentioned in Article 10.1, these activities and the obligation to pay for them shall not be the subject of any undoing, unless the Other Party proves that NOXS is in default with regard to the performance of such activities. The amounts invoiced by NOXS before the dissolution in connection with that which it has already properly performed or delivered to carry out the Transaction, shall remain fully payable with due observance of the provisions of the previous full sentence and shall be immediately payable at the time of the dissolution.
Intellectual Property Rights
11.1. The term Intellectual Property Rights shall be taken to mean: copyrights, databank rights, patent rights, drawing and model rights, trade name rights, trademark rights, rights to topographies of semi-conductor products and any other intellectual property or proprietary rights. All the Intellectual Property Rights of Software, Equipment, Documentation and/or Services shall, wholly or in part, remain the property of NOXS and only be made available to the Other Party. The Other Party shall refrain from any act that infringes upon an Intellectual Property Right. Imitations, reprints or reproductions in any sense are prohibited. The Other Party shall not remove any copyright notices.

11.2. NOXS indemnifies the Other Party from any legal action of third parties based on the allegation that Software, websites, data files, Equipment or other Materials developed by NOXS itself infringe on an Intellectual Property Right valid in Belgium, provided that the Other Party shall notify NOXS forthwith about the existence and the substance of the legal action and leaves the case, including any settlements, completely to NOXS. To this end the Other Party shall give NOXS the required authorisations, information and cooperation to defend itself against such legal action, if necessary in the name of the Other Party. This duty of indemnification shall be cancelled if the infringement concerned is related to (i) Materials made available to NOXS by the Other Party to use, edit, process or incorporate, and/or (ii) modifications which the Other Party has made in the Software, website, data files, Equipment or other Materials or has ordered third parties to make. If it has been irrevocably established by law that Software, websites, data files, Equipment or other Materials developed by NOXS itself infringe on any Intellectual Property Right belonging to a third party or if, in NOXS’s opinion, there is a serious chance that such infringement will occur, NOXS shall, if possible, ensure that the Other Party can continue to use the delivered, or functionally equivalent other Software, websites, data files, Equipment or other Materials concerned undisturbed, for instance by adjusting the infringing parts or by acquiring a user right for the Other Party. If NOXS, in its sole discretion cannot, or not other than in a manner which is (financially) unreasonable for NOXS ensure that the Other Party can continue to use the delivered goods undisturbed, NOXS shall take back the delivered goods and credit the Other Party’s account with the acquisition costs less a reasonable user fee. NOXS shall only make a decision in this context after consultation with the Other Party. Any other or further-reaching liability or obligation of NOXS to indemnify the Other Party against infringement of an Intellectual Property Right of a third party is excluded, including liability and obligations to indemnify of NOXS for infringements caused by the use of the delivered Software, websites, data files, Equipment and/or Materials (i) in a form not modified by NOXS, (ii) in connection with goods or Software not delivered or provided by NOXS or (iii) in a different way than the one for which the Equipment, Software, websites, data files and/or other Materials have been developed or are intended.
Applicable law and disputes
12.1. All Transactions to which these terms and conditions apply and the legal relations ensuing from them for the parties shall be governed by Belgian law only.

12.2. Any disputes between the Parties shall be submitted to the Commercial Court of Brussels or in the event, to the “Vredegerecht 3rd kanton” of Brussels.
Transfer of rights and obligations
NOXS shall always have the right, after prior notification, to transfer all the rights and obligations arising from the Transactions it has concluded to third parties without the permission of the Other Party. The Other Party can only transfer the rights and obligations arising from the Transactions it has concluded after prior written permission of NOXS, which permission shall not be withheld on unreasonable grounds.
Conversion and interpretation
If any stipulation mentioned in these terms and conditions and which applies to the Other Party is declared null and void, such provision shall be replaced with a valid stipulation with a meaning that is as close as possible to the meaning of the stipulation it replaces. The validity of the other stipulations of these terms and conditions shall remain unchanged. The headings of the separate articles of these terms and conditions are only intended as tools and have no meaning as regards the interpretation of such articles.

II. User right and maintenance

User right
1.1. If NOXS grants a user right to the Other Party, this means that the Other Party is granted a strictly personal, non-transferable and non-exclusive right to load and/or operate the Software. The user right is limited to the rights and authorisations explicitly granted under these general terms and conditions or pursuant to a Transaction. The granting a user right does not lead to the transfer or passing of the copyright or any other Intellectual Property Right to the Software or Documentation. The user right explicitly does not include the so-called “source-code”.

1.2. The Other Party is only granted the user right for its own use. The term “own use” shall be taken to mean the use by the Other Party’s own employees, not including employees of affiliated companies or institutions of the Other Party.

1.3. The user right is only granted to the Other Party for the number of processing units and users or connections for which it has been provided. If there is no agreement between the parties that provides for this, the number of processing units of the Other Party on which the Software was used for the first time and the number of users or connections that were connected to those processing units at the time of the first use shall apply as the processing units and the number of users or connections for which the user right has been granted. In the event of a possible fault, the Software can be used on other processing units until the fault has been corrected.

1.4. Unless the Other Party is involved in a legal merger or division, whereby the Other Party ceases to exist as a legal entity, and irrespective of the provisions of chapter I, Article 13, the user right is not susceptible to transition or transfer, either under universal or singular title. In the event of a legal division, whereby the Other Party ceases to exist as a legal entity, the Other Party shall not have the right to let the user rights transition or transfer to several recipient legal entities.
Fees
2.1. The Other Party shall obtain from NOXS a user right against payment of a purchase price for the user right and a periodical maintenance fee.

2.2. The maintenance fee, to be paid periodically, consist of both a fee paid to use the Software for a certain period, and a fee to be paid periodically for the right, agreed between the parties, to a certain level of maintenance, which at least consists of basic maintenance.

2.3. In return for the payment of the purchase price for the user right, NOXS shall make available the Software, the installation pin-code and its Documentation to the Other Party and ensure that the Software can be used on the number of processing units and by the number of users or connections for which the user right has been granted. This gives the Other Party the right to install, implement and/or test the Software.

2.4. In return for the payment of the periodical maintenance fee the Other Party obtains the right to a user pin-code, which enables the Other Party to use the Software for an agreed period, and the right to the Services of NOXS of the maintenance level as agreed between the parties.

2.5. The user right and the right to maintenance shall come into effect, and the user pin-code will be provided, after the initial purchase price, the periodical maintenance fee and – upon the start of the first period – a Transaction signed by the Other Party have been received.
Basic maintenance
3.1. In the framework of basic maintenance the Other Party is entitled to the following Services:
1. Correction of faults: the correction of faults in the Software developed by NOXS to the best of its abilities and in a manner and within a period of time to be determined by NOXS on the basis of the urgency after the Other Party has reported the fault in accordance with the usual procedures of NOXS, if such is necessary for the envisaged use of the Software based on its nature. The term fault shall be taken to mean the failure to meet the functional specifications communicated by NOXS in writing and, if it concerns the development of Custom Software, the explicitly agreed functional specifications. The term fault only applies if it can be demonstrated and reproduced.
2. Software Updates: the making available to the Other Party of improved versions of the Software developed by NOXS or a part thereof at the Other Party’s request;
3. Documentation Updates: providing information or a manual to the Other Party about the modified Software mentioned under b. above at the Other Party’s request.
3.2. In deviation of the stipulations of Article 3.1 Sub b., extensions, adjustments and/or modifications to the Software of such a nature that NOXS marks them as new Software, do not need to be made available pursuant to the basic maintenance agreement.

3.3. NOXS has the right to use workarounds and/or program diversions or problem-avoiding restrictions in the Software.

3.4. NOXS does not guarantee that the Software will function completely free of any interruptions or errors or that all the errors will be corrected. NOXS does not guarantee that the Documentation is free of errors. If any deviations between the Software and the Documentation are the consequence of incorrect Documentation, NOXS shall adjust the Documentation. NOXS can remedy minor defects that do not hamper the operation in a next version of the Software or Documentation. Three months after an improved version of the Software has been made available NOXS is no longer under an obligation to support the Other Party with the use of an older version of the Software, unless the parties agree otherwise in writing. Before a version with new possibilities and functions is made available NOXS can demand that the Other Party enters into a new Transaction with NOXS and that a new fee is paid for providing the new version.

3.5. NOXS can charge its usual rates and the costs of correction or repair of errors or injudicious use by the user or other causes that cannot be attributed to NOXS, if the Software has been modified by others than NOXS, or if the errors could have been detected during the agreed acceptance test. The maintenance does not include the repair of mutilated or lost data.
Prohibitions and obligations
4.1. The Other Party shall not multiply or disseminate the Software and Materials pertaining to it. Unless NOXS defines deviating stipulations, the Other Party can, only for continuity purposes, make a reasonable number of backup copies of the Software. These copies shall not be used by the Other Party but only used to replace the original material that has become unusable.

4.2. The Other Party shall not be allowed to let any third parties use the Software and the Materials delivered with it in any way or to give permission or opportunity to third parties to use the Software or the Materials pertaining to it, to adjust or modify it, to multiply or disclose it.

4.3. The Other Party shall not maintain, extend, adjust, modify or disassemble the Software itself, nor shall the Other Party, whether or not using the delivered Materials reconstruct the Software's object code or source code or to condone that third parties create such reconstruction and/or give third parties the opportunity to do so, other than legally permitted.

4.4. NOXS is allowed to take technical measures to protect the Software. If NOXS has used technical means to protect the Software, the Other Party shall not be allowed to remove or avoid such protection.

4.5. The Other Party shall ensure that, if its Equipment is alienated or put at a third party’s disposal, NOXS’s Software has been removed from it.

4.6. If the Other Party develops Software or if a third party develops Software for the Other Party, and/or if the Other Party intends to do this and needs information in connection with the Interoperability of the Software to be developed in order to realise this Interoperability, the Other Party shall send NOXS a specified and written request for the required information. NOXS shall then inform the Other Party within a reasonable term whether the Other Party will be provided with the requested information and on which conditions, including the financial conditions and conditions regarding the third parties possibly to be engaged by the Other Party.

4.7. If any of the stipulations of this chapter are violated, the Other Party’s user rights shall immediately and automatically be terminated, without any notification thereto being required, and the Other Party shall forfeit to NOXS an immediately payable penalty amounting to € 100,000.00 without prejudice to NOXS’s right to demand fulfilment and without prejudice to the Other Party’s obligation to pay damages in addition to the penalty.
Software of NOXS’s supplier
If NOXS grants the user right for the Software only in compliance with the stipulations of the user right or licence agreement of a supplier or if the maintenance is carried out in compliance with the stipulations of such agreements of the supplier, the stipulations of such agreements shall apply except for the stipulations that are contrary to these general terms and conditions. The Other Party accepts the aforementioned terms and conditions of third parties.
These terms and conditions are open for inspection for the Other Party at NOXS’s offices and NOXS shall send these terms and conditions to the Other Party without charge at its request. If and insofar as the aforementioned terms and conditions of third parties are deemed not to be applicable in the relationship between the Other Party and NOXS for whatever reason or are declared not to be applicable, the stipulations of these general terms and conditions shall apply in full force. Stipulations that complement the terms and conditions of the supplier shall also remain in force.
Term, notice, termination of the user right and maintenance
6.1. If, for whatever reason, the user right is terminated, the maintenance agreement shall be terminated as well. If, for whatever reason, the maintenance agreement is terminated, this does not automatically imply that the user right is terminated.

6.2. Unless agreed otherwise, the user right and the maintenance agreement pertaining to it is each time entered into for the following period of time. If the contract value is less than or equal to € 15,000.00, the user right and the maintenance agreement pertaining to it is initially entered into for the period of one year. If the contract value is over € 15,000.00, the user right and the maintenance agreement pertaining to it is initially entered into for the period of 3 years. The above-mentioned contract value is the sum of the purchase price of the Software + the total of all the periodical user fees for a period of 1 year.

6.3. Notice of termination of the Transaction can only be given by either party in writing by registered letter by the end of the term, with due observance of a notice period of three months. In default of timely notice the term shall be tacitly renewed, each time for the period of one year.

6.4. The obligation to pay the periodical maintenance fee by the Other Party shall, however, only end after the Other Party has fulfilled its obligations upon termination as laid down in Article 7 of this chapter. NOXS shall not refund and/or credit the Other Party’s account with the purchase price, nor refund any maintenance fees paid or invoiced in advance to the Other Party.
Returning Materials
Upon the termination of the user right the Other Party shall remove all the Software from its Equipment and hand the Software and Materials together with the copies the Other Party has made of them to NOXS within fourteen days after the termination of the user right, at NOXS’s offices without any claim for reimbursement, in default whereof the Other Party shall forfeit to NOXS an immediately payable penalty of € 10,000.00 per event, without prejudice to NOXS’s right to demand fulfilment and without prejudice to the Other Party’s obligation to pay damages in addition to the penalty.
Maximum price increase
If NOXS intends to increase the prices and rates of the periodical maintenance fee for existing Software, the functionality of which has not changed, by more than the consumer price index, the Other Party, in addition to Article 3.2 of chapter I of these terms and conditions, shall be entitled to terminate the Transaction within 14 days after receipt of the notice by the time when the prices or rates are to be increased.

III. Extensive maintenance

Extensive maintenance
1.1. The Parties can conclude a Transaction which entitles the Other Party to receive a certain level of maintenance that extends beyond basic maintenance, hereinafter referred to as “extensive maintenance”.

1.2. The stipulations of Articles 3.3 up to and including 3.5, Article 6 and 8 of Chapter II of these terms and conditions shall apply by analogy to extensive maintenance.

1.3. The Other Party shall use competent staff for the envisaged use of the Software. If it appears to NOXS that the Other Party’s staff is insufficiently qualified, NOXS can charge the actual costs of extra activities caused by this fact to the Other Party’s account according to the usual rates of NOXS.

1.4. If the Other Party has not entered into a Transaction for extensive maintenance simultaneously with the purchase of the user right of the Software, NOXS cannot be obliged by the Other Party to enter into such agreement at a later date.
User support
2.1. The Parties can enter into a Transaction which entitles the Other Party to user support when using the Software. This support will be provided during normal office hours in Belgium.

2.2. NOXS’s obligation is an obligation to answer questions with regard to the use of the Software to the best of its abilities. NOXS does not guarantee that it can always immediately be reached for support and that it can always answer the questions.

2.3. If Services are provided that go beyond answering questions with regard to the use of the Software, NOXS can charge its usual prices and rates.

2.4. If, in NOXS’s opinion, the Other Party’s knowledge is insufficient for the user support NOXS reserves the right to cease or suspend the user support.

IV. Services

Definition
The term services shall be taken to mean all the Services to be carried out for the Other Party, including consultancy, courses and training programmes and developing and providing Custom Software.
Prices and rates
If no fixed price has been agreed for the execution of the activities, NOXS will charge the hours spent and the costs incurred periodically to the Other Party’s account on the basis of the agreed rates and/or the rates in force at the time when the activities are carried out.
Execution
3.1. NOXS shall try to the best of its abilities to carry out the Services with due care, where appropriate in compliance with the agreements and procedures laid down in writing with the Other Party.

3.2. If it has been agreed that the services will be provided in phases, NOXS shall have the right to postpone the start of the Services that pertain to a next phase until the Other Party has approved the results of the preceding phase in writing.

3.3. Only if this has been explicitly agreed in writing, NOXS shall be under an obligation to follow the Other Party’s timely instructions, given in a responsible manner, during the execution of the services. NOXS is not under an obligation to follow instructions that change or add to the content or scope of the agreed services; however, if such instructions are followed, the activities concerned shall be paid according to NOXS’s usual rates.

3.4. If the Transaction has been entered into with the wish to have it carried out by a particular person, NOXS shall always have the right to replace such person with one or more other persons with the same qualifications.
Changes and additional work
4.1. If NOXS, at the Other Party’s request or with the prior agreement of the Other Party, has carried out activities beyond the content or scope of the agreed services, the Other Party shall pay NOXS for this work or these activities according to NOXS’s usual rates. However, NOXS is not under an obligation to meet such a request and can demand that a separate written agreement be concluded for that purpose.

4.2. The Other Party accepts that the agreed or expected time of completion of the services and the mutual responsibilities of the Other Party and NOXS can be affected by the work or activities mentioned in Article 4.1.

4.3. Insofar as a fixed price has been agreed for the services and the parties intend to conclude a separate agreement for additional work or activities, NOXS shall inform the Other Party in advance about the financial consequences of such additional work or activities.

4.4. In the context of Custom Software the term additional work shall be taken to mean: any change of the functional specifications that were the basis of the original agreement or specifications that have been agreed after that.

4.5. Necessity or desirability of additional work can never be a reason for the Other Party to dissolve the Transaction.
Development, delivery and acceptance of Custom Software
5.1. In deviation of Article 2.4 of Chapter I, a Transaction concluded for the development of Custom Software shall only come into effect after the Other Party has accepted the specifications described by NOXS in writing. NOXS shall develop the Custom Software with due care on the basis of the specifications, functional requirements and data provided by the Other Party.

5.2. The Other Party guarantees the correctness, completeness and consistence of the data provided by it. NOXS shall have the right, but not the obligation, to examine the correctness, completeness or consistence of the data or specifications provided to it and if it detects any errors, suspend the agreed activities until the Other Party has corrected the errors.

5.3. Contrary to the stipulations of Article 2.1 of Chapter II, the Other Party shall obtain a user right from NOXS for the Custom Software against payment of an agreed price for its development. The Other Party is not entitled to receive maintenance of the Custom Software, unless this has been explicitly agreed between the parties. If Custom Software is developed to complement other Software, NOXS does not guarantee that the Custom Software will function without any interruptions or errors in combination with new, improved or modified versions of the Software, unless agreed otherwise.

5.4. NOXS shall deliver and install the Custom Software to the Other Party in compliance with the written specifications; the latter only if it has been agreed in writing that NOXS will carry out the installation. An obligation to carry out the installation does not constitute an obligation to perform a data conversion. When NOXS performs a test its responsibility shall be based on and limited to the data provided by the Other Party.

5.5. If an acceptance test has been agreed in writing, the test period shall be fourteen days after delivery or, if it has been agreed in writing that NOXS will carry out the installation, after the completion of the installation. During the test period the Other Party is not allowed to use the Custom Software for productive or operational purposes.
5.6. The Custom Software shall be considered to be accepted between the Parties:
1. If no acceptance test has been agreed between the parties: upon delivery, if it has been agreed in writing that NOXS will carry out the installation, upon completion of the installation, and/or;
2. If an acceptance test has been agreed between the parties in writing: on the first day after the test period and/or;
3. If NOXS, before the end of the test period receives a test report as mentioned in Article 5.8: at the time when the errors mentioned in the test report have been corrected, except for the presence of imperfections which do not hamper acceptance in accordance with Article 5.9.
In deviation of the above, Custom Software shall already be considered to be fully accepted as of the time when the Other Party has started to use it for productive or operational purposes, if the Other Party has taken it into use before the date of acceptance.
5.7. If, during the execution of the agreed acceptance test, it appears that the Custom Software contains errors that hamper the progress of the acceptance test, the Other Party shall notify NOXS in writing and in detail to that effect, in which case the test period will be interrupted until the Custom Software is adjusted in such a way that the problem has been eliminated.

5.8. If, during the execution of the agreed acceptance test, it appears that the Custom Software contains errors in the sense of Article 3.1 Sub a. of Chapter II, the Other Party shall inform NOXS no later than on the last day of the test period about the errors in a written and detailed test report. NOXS shall correct errors in the Custom Software to the best of its abilities and on the basis of the urgency and in a manner and within a term to be determined by NOXS, if such is necessary for the envisaged use of the Custom Software based on its nature. The correction shall be performed at no charge if it concerns Custom Software that has been developed for a fixed price. Articles 3.3 up to and including 3.5 of Chapter II shall apply by analogy.

5.9. Acceptance of the Custom Software shall not be withheld on any other grounds than those which are related to specifications that have been explicitly agreed between the parties and furthermore not because of the existence of minor errors, being errors that do not reasonably hamper the operational or productive taking into use of the Custom Software.

5.10. If the Custom Software is delivered and tested in phases and/or in parts, the non-acceptance of a certain phase and/or part shall not affect a possible acceptance of an earlier phase and/or another part.

5.11. The acceptance of the Custom Software in any of the manners mentioned in Article 5.6 shall fully discharge NOXS as regards its fulfilment of the development and delivery of the Custom Software and, if installation by NOXS has also been agreed, its obligations with regard to the installation of the Custom Software.
Courses and training programmes
6.1. Registration for courses or training programmes shall take place by sending NOXS a fully completed (digital) NOXS registration form. The Other Party is responsible for the participants’ foreknowledge required for the course or training programme and the lack thereof shall under no circumstances give the Other Party the right to dissolve or terminate the Transaction wholly or in part and/or to claim a refund of the amount payable for the course or training programme.

6.2. NOXS can require that the amount to be paid for the course or training programme be paid prior to the start of the course or training programme.

6.3. If the number of participants, in NOXS’s opinion, justifies this, NOXS shall have the right to cancel the course or training programme, combine it with one or more courses or programmes or postpone it to a later date or a later time.
6.4. Cancellation of participation in a course or training programme by the Other Party shall be in writing to NOXS and received by NOXS prior to the start of the course. Participation can be cancelled for a fee of a € 35.00 administration fee (ex VAT) if the written cancellation notice is received by NOXS at least two weeks prior to the start of the course or training programme. In other cases the Other Party shall pay NOXS a percentage of the amount to be paid for the course or training programme depending on the time when the written cancellation notice is received, according to the schedule below:
- 100% if the cancellation notice is received less than 1 working day before the start of the course or training programme;
- 50% if the cancellation notice is received less than 2 weeks before the start of the course or training programme.
6.5. Requests of the Other Party to NOXS to transfer a participant to a course or training programme on a different date shall be in writing. The transfer can take place for a € 35.00 administration fee if the written request for a transfer has been received by NOXS at least 2 weeks before the start of the course or training programme. In other cases the Other Party shall pay NOXS a percentage of the amount to be paid for the course or training programme depending on the time when the written request for a transfer is received, according to the schedule below:
- 50% if the written request for a transfer is received less than 1 working day before the start of the course or training programme;
- 25% if the written request for a transfer is received less than 2 weeks before the start of the course or training programme.
6.6 The Other Party is allowed to replace a participant of a course or training programme by another participant after prior written notice to NOXS.

V. Equipment Sale

Packaging
1.1. NOXS shall (order to) package the Equipment for delivery in accordance with its or its supplier’s usual standards. If the Other Party requires special packaging, the additional costs shall be for the Other Party’s account.

1.2. The Other Party shall treat the packaging of Equipment delivered by NOXS in a manner that complies with the relevant government regulations. The Other Party indemnifies NOXS for any claims of third parties because of non-compliance with such regulations.
Installation and acceptance
2.1. If agreed in writing, NOXS shall install or order to install the Equipment (and therefore not the Software). The stipulations of Chapter IV shall apply to the installation of the Software. Unless agreed otherwise, the installation shall be carried out on working days during office hours.

2.2. In all cases the Other Party shall provide a suitable installation location with all the required facilities such as cabling, power and telecommunications facilities before the delivery of the Equipment.

2.3. The Other Party shall give NOXS access to the installation location to carry out the necessary activities.

2.4. The Equipment shall be deemed to be accepted between the parties on the delivery date and/or, if installation has been agreed in writing, on the date of the installation.
Guarantee and maintenance
3.1. NOXS does not give any guarantees beyond those of NOXS’s supplier for goods or parts not manufactured by NOXS itself. The guarantee stipulations laid down by NOXS’s supplier shall apply. NOXS shall provide these provisions to the Other Party at the Other Party’s request. If and insofar as NOXS delivers Equipment of third parties to the Other Party, the terms and conditions of such third parties shall apply to such Equipment except the stipulations of these terms and conditions that deviate from them, provided that NOXS has communicated this to the Other Party in writing. The Other Party accepts the above-mentioned terms and conditions of third parties. These terms and conditions are open for inspection for the Other Party at NOXS’s offices and NOXS shall send them to the Other Party without charge at its request. If and insofar as the above-mentioned terms and conditions of third parties are deemed to be inapplicable or have been declared inapplicable with regard to the relationship between the Other Party and NOXS for whatever reason, the stipulations of these general terms and conditions shall apply in full force. Stipulations of these general terms and conditions that complement the terms and conditions of NOXS’s supplier shall also remain in force.

3.2. NOXS can provide the Equipment’s maintenance. To this end an agreement shall be concluded.

3.3. Insofar as the Other Party selects the purchased Equipment, it shall bear the risk of such selection.
Export limitation
When Equipment or parts are exported by the Other Party the relevant export regulations shall apply. The Other Party shall indemnify NOXS for any claims of third parties related to violations of the applicable export regulations.
Returned goods
5.1. Without having given its prior written permission, NOXS is not under an obligation to accept returned goods from the Other Party.

5.2. The receipt of returned goods shall under no circumstances imply an acknowledgement by NOXS of the reason for returning the goods stated by the Other party. The risk of returned Equipment shall continue to be the Other Party’s until it has been credited by NOXS.

5.3. NOXS reserves the right to credit the Other Party’s account with the amount for returned goods whilst deducting 15% of the price of the returned Equipment, with a minimum of € 100.
Purchase
If, when a Transaction is concluded, no term has been agreed within which the Other Party shall purchase, the Other Party shall be under an obligation to purchase within one week after the goods are ready to be purchased. If the Other Party fails to purchase within the agreed term, both in the former and in the latter case, the Other Party shall be in default by operation of law, and therefore without any warning or notice of default being required. In such an instance NOXS shall have the right to demand fulfilment or dissolve the Transaction, without prejudice to NOXS’s right to claim damages.

General Terms of Delivery NOXS BE - Version July 2006