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Article 1 – Object
1.1 Deze overeenkomst tussen enerzijds (i) de NV BREEX Europe (“BREEX”), met zetel te 9000 GHENT, Moutstraat 54 met ondernemingsnummer 0537.365.350 and the Customer shall be governed by the terms and conditions of the rental agreement concluded between the parties, including these general terms and conditions, the invoices and any special terms and conditions set out in the rental agreement (hereinafter collectively referred to as the “Rental Agreement”). The Rental Agreement will come into force upon signature of the agreement by the Customer and BREEX, and the signing of the agreement will constitute acceptance of these general terms and conditions and will annul and replace all written or oral contracts, proposals and undertakings relating to the same subject and predating the date of this Rental Agreement. The Rental Agreement excludes the application of the Customer’s own potential general and/or other terms and conditions.
1.2 The services of the Rental Agreement include the rental of the equipment made available to the Customer by BREEX as evidenced by the particular terms of the Rental Agreement and the certificate of issue (hereinafter the “Rental”). The fees for the Rental consist of a monthly rental amount, hereinafter “Rent”).
1.3 The agreed rental period as stipulated in the Rental Agreement shall commence on the date of delivery of the appliances as further set out in Article 5.8 below. Unless otherwise stipulated, the Rental Agreement is tacitly extended by 12 months, unless terminated by registered letter at least 6 months before the expiry of the contractual period.
1.4 The appliances are chosen by the Customer under its sole responsibility. The Customer chooses the supplier and equipment on his own initiative, and is free to determine the technical characteristics, procedures and place of delivery. The Customer releases BREEX from any obligation to provide information and confirms that he/she is acting in full knowledge of the facts. Under no circumstances may the Customer invoke difficulties related to the equipment, its use or performance, or its unsuitability to meet his needs. BREEX, or its authorised representative, will only be responsible for setting up, adjusting and testing the equipment and providing the Customer with information on putting the equipment into service.
1.5 The rental agreement is always subject to the suspensive condition of a positive solvency check on the Customer by BREEX. If a solvency check reveals that, in BREEX’s opinion, the Customer lacks the financial capacity to ensure the proper execution of this Rental Agreement, BREEX will notify the Customer (for information purposes only) that the condition precedent has not been met. This condition may only be invoked by BREEX, not by the Customer.
Article 2 – Delivery and reception
2.1 Before the scheduled delivery, the Customer shall provide BREEX with all useful and necessary information relating to the delivery and shall ensure that the premises intended for that purpose are equipped with the necessary installations and connections. If, failing this, the delivery cannot be made at the agreed time, the costs associated with this will be charged to the Customer. The equipment will be delivered directly by BREEX and collected by the Customer at the place indicated. Delivery and installation shall be at the Customer’s expense and risk. Delivery dates quoted are purely indicative and constitute an obligation of means on the part of BREEX. Acceptance of the goods by the Customer implies acceptance of the delivery period, even if the indicative delivery period has been exceeded.
2.2 During delivery, the Customer checks the conformity of the devices and proceeds to all tests and checks agreed upon or required by the nature of the devices. The Customer then undertakes to sign a delivery receipt at the time of provision. The Customer’s signature on this document shall serve as proof that the device corresponds to the agreed device (including accessories, etc.) as stipulated in the Special Terms and Conditions, that the device is in perfect condition and has no (visible) defects, and that all necessary documents, instructions and equipment are present and have been provided along with it.
2.3 Hidden defects must be reported in writing to BREEX within 24 hours of their discovery and identification, but at the latest within 12 months of delivery. In the absence of timely written comments in accordance with the above, the goods supplied will be deemed to have been delivered in accordance with the rules of the trade, in conformity with the specifications and without defects, and will be deemed to have been accepted by the Customer. Under no circumstances shall BREEX be required to intervene or be liable in any way for any non-conformity or defects caused by the Customer or resulting from improper use by the Customer or failure to comply with the terms of this Rental Agreement.
2.4 BREEX reserves the right to have its obligations under the Rental Agreement performed by third parties on its behalf.
Article 3 – Method of use and insurance
3.1 The Customer is required to use the appliances in accordance with the manuals accompanying the appliances and BREEX’s instructions. The Customer shall use said appliances solely for business purposes with due diligence. The Customer shall not use any spare parts, accessories or consumables other than those supplied or approved by BREEX. Spare parts and all accessories fitted automatically become the property of BREEX without any compensation to the Customer. The Customer is not permitted to remove the equipment from the site where it is installed, except with BREEX’s prior written consent. The Customer shall be required to carry out all maintenance and repairs at his own expense, in accordance, where applicable, with a separate maintenance agreement concluded with BREEX. Such a maintenance agreement is separate from this Rental Agreement, and any failure to comply with or implement such a maintenance agreement will have no impact on the Rental Agreement.
3.2 Insurance
The Customer shall, during the entire term of the Rental until the return of the equipment, have its civil liability arising from the use and custody of the equipment insured by a recognized solvent insurance company for any damage caused to both persons and property. The insurance company will waive any recourse against BREEX. The insurance contract will also cover BREEX’s liability to third parties in respect of leased equipment. The Customer instructs its insurer and insurance agent (i) to forward the corresponding insurance certificate to BREEX annually, for the first time and no later than the effective date of delivery of the equipment, together with the signed document acknowledging receipt of the equipment and (ii) to notify BREEX immediately of the termination, cancellation or suspension of the insurance contract and of any non-payment of premiums.
The Customer shall, throughout the duration of the Rental and up to the moment of return of the equipment, arrange for BREEX to insure the rented equipment against damage caused by fire, lightning, explosion, implosion, the impact of electricity, water damage, natural forces, breakage of machinery and theft. BREEX is entitled at any time to check compliance with this obligation or to have it checked by a third party designated by it. In this context, BREEX may communicate the Customer’s contact details, relevant information relating to the equipment hired and the period of this rental agreement to the third party designated by it, who will contact the Customer. The insured value must at all times be sufficient to cover the total loss of the rented appliances, in accordance with the article relating to breach of the Rental Agreement (Article 8), increased by the residual value. The Customer shall, either on its own initiative or upon BREEX’s first request, instruct its insurer and/or its insurance agent (i) to provide BREEX or a third party designated by BREEX with the relevant insurance contract and proof of payment of premiums and (ii) to notify BREEX or a third party designated by BREEX without delay of the termination, cancellation or suspension of the insurance contract and of any non-payment of premiums. If the necessary documentary evidence is not provided in good time (30 days after the date of the letter in which BREEX or the third party appointed by it requested notification of the documents) or if the documents provided do not provide adequate proof that the equipment is insured in accordance with the present rental agreement, BREEX shall be entitled, but not required, to include the equipment in the insurance policy taken out by BREEX in its own name. BREEX will charge the Customer an additional amount for this purpose. BREEX will inform the Customer of this beforehand. This amount must be paid under the same conditions and arrangements as those laid down for all other payments due under this rental agreement and will be invoiced at the same time as the periodic rental fees. The Customer always retains the option of having the appliances insured at any time through its insurer or insurance intermediary and submitting proof thereof.
As security for the proper performance of its obligations, the Customer hereby agrees to pledge to BREEX, for the entire duration of this Lease, its claims arising from insurance policies taken out for the leased equipment. The Customer undertakes not to assign or pledge the sums due to him under the receivables pledged, and to ensure that they are not subject to assignment, set-off, attachment by third parties or opposition, and he expressly waives the right to take any action that might hinder or limit the effects of this pledge. The Customer hereby authorizes BREEX, as the sole party entitled to collect, on all due dates and at any time when the pledged debts fall due, to collect all sums relating to these debts and to charge them against the amounts owed by the Customer, without any judicial intervention. This pledge shall be made as security for all sums owed or to be owed by the Customer to BREEX by virtue of leasing contracts and/or rent and/or the business relationship between the Customer and BREEX, up to a maximum amount equal to the number of rental periods multiplied by the amount of the periodic rental period, in principal and accessory amounts, plus the amount of the purchase option under a leasing contract.
Article 4 – Force Majeure
Any event which constitutes an insurmountable obstacle to the normal execution of the Contract or seriously impedes or hinders it will be deemed to be an instance of force majeure, which will include (but not be limited to): strikes, government measures, (temporary) shutdowns, transport difficulties, delays in or impossibility of supply and damage to – or defects in – BREEX assets essential to the contract, delays in or impossibility of supply by BREEX suppliers. In the event of force majeure, BREEX will be entitled either to suspend the execution of the Rental Agreement for a maximum period of three months, or to dissolve the Rental Agreement in whole or in part, without being required to pay any compensation. Financial obligations of the Customer may never be suspended or dissolved as a result of force majeure.
Article 5 – Price and payment
5.1 The Rent is payable in advance in accordance with the terms agreed in the special conditions. If the appliances are delivered during the calendar month following the signing of the Lease, invoicing for the Rental will commence on the first day following the day after the last appliance has been delivered.
5.2 BREEX reserves the right to change the Rent in the interim, no more than once a year, but no earlier than six months after the Lease takes effect. Changes may be made as a result of, among other things, cost increases and/or changes in the exchange rate and/or price-increasing measures taken by the Belgian Government.
5.3 All taxes and costs, by whatever name, which are now or at any time to be levied on the amounts to be paid by the Customer, or on the Lease Agreement or on the appliances and/or on the use of the appliances, irrespective of whose name they are registered, will be for the account of the Customer.
5.4 The Customer may not invoke any suspension, discount or set-off in respect of the Customer’s payment obligations to BREEX and expressly waives its rights under article 1184 of the Civil Code.
5.5 Payment of the Rental will be made by debit to the bank account specified by the Customer. The Customer undertakes to provide BREEX with a SEPA mandate upon BREEX’s first request.
5.6 BREEX is entitled (but not required) to make invoices available to the Customer electronically by e-mail or by means of a customer portal.
5.7 BREEX is entitled to demand security for compliance with the Customer’s payment obligations. This security may be provided by issuing, at BREEX’s first request, an unconditional and irrevocable bank guarantee in favour of BREEX or by providing personal security in the form of guarantees or statements of liability (hereinafter collectively referred to as the “Guarantee”). In the case of a partnership, the Directors will at all times be personally and jointly and severally liable for compliance by the partnership with its obligations under the Contract. The Customer shall notify BREEX by registered letter as soon as it becomes aware of a Guarantee or the intention to withdraw it.
5.8 The Rental period shall commence on the day of delivery of the equipment. Subject to other provisions, the Rental Price was calculated assuming delivery of the appliances on the first day of the month. In the event of delivery on a different day, the rental period and rental invoicing will start on the first day of the month following the delivery of the appliances.
Between the date of delivery and the first day of the month following the delivery of the appliances, the Customer shall be required to pay a usage fee, which shall be definitively acquired by BREEX. This usage fee shall be calculated on the basis of the agreed Rental Price, pro rata for the number of days elapsed between the date of delivery and the first day of the month following the delivery of the equipment. Unless otherwise stipulated, this usage fee shall be payable together with the first Rent.
5.9 Without prejudice to BREEX’s other rights, in this case BREEX shall be entitled to demand additional or replacement security from the Customer. The Customer shall be required to supplement or replace such security. If a Guarantee from a third party covering the Customer’s obligations has been or is withdrawn, BREEX shall be entitled to terminate the Rental Agreement immediately and ipso jure, without notice of default or other formality, and to proceed immediately to the recovery of any amounts still owed by the Customer, including the compensation provided for in Article 10 in the event of early termination or dissolution.
5.10 Unless otherwise stated above, all invoices shall be payable at the address of BREEX’s registered office and, unless otherwise stipulated, must be paid within 14 days of the invoice date. In the event of late payment, interest on arrears of 1.5% per month shall be payable, ipso jure and without notice of default, as well as a fixed indemnity of 10% with a minimum of EUR 65, by way of irrevocable damages and irrespective of legal costs. Each reminder that is sent will incur an additional cost of 15.00 euros in addition to the cost of registered mail. All complaints and protests must be made within 7 days of the invoice date.
5.11 The Customer must always inform BREEX by return of any changes to the address and billing details communicated when the Rental Agreement is signed.
Article 6 – Transfer of the Hire to a Partner
6.1 The Customer irrevocably grants BREEX the right to transfer ownership of the equipment and the Lease to a leasing company and/or a partner of BREEX (hereinafter the “Partner”). The Customer hereby consents to this transfer and shall be legally bound to the Partner to perform the obligations under this Lease. After notification of the transfer, the Rental shall only be paid in full to the Partner, who shall then assume all of BREEX’s rights and obligations in respect of this Lease.
6.2 BREEX shall also be entitled to assign or pledge the debt arising from this Lease. In the event that the assignment or pledge is made later than when this Lease is signed, the Customer shall declare that it has been adequately informed of this assignment or pledge by simple letter from BREEX.
6.3 The Customer shall not be permitted to sell, pledge, transfer or encumber all or part of its rights and obligations under the Lease to third parties.
6.4 In case of a transfer of the Lease as provided for in Article 6.1, the Partner shall not indemnify the hidden break. No recourse may be exercised against the Partner on account of such defect. BREEX (and not the Partner) will continue to indemnify the Customer for hidden breakages in an exceptional capacity, which the Customer expressly accepts, and this regardless of the transfer of the Hire to the Partner. Consequently, the Customer shall address himself/herself solely to BREEX with respect to such claims and shall exercise all recourse against the latter.
6.5 The Partner shall not disclose to third parties any information regarding the execution of the Lease Agreement, unless it is authorised or required to do so by law or if an interest justifies it. By signing the Lease Agreement, the Customer expressly accepts that an interest exists on the part of the Partner if it would suffer a disadvantage if it did not provide the aforementioned information (such as, but not limited to, defaults of payment by the Customer or protest of invoices). In any event, the Customer agrees that BREEX may be notified of any non-payment.
Article 7 – Liability and damages
7.1 The Client shall indemnify BREEX against all claims by third parties, including employees, for compensation for damages caused (in whole or in part) by or in connection with the equipment or the use of the equipment or materials, to the extent that such damages to third parties are caused by defects in the equipment or materials of which BREEX is not the supplier. The Customer shall waive all recourse against BREEX for any damage caused by the rented equipment to its own property. The Customer shall indemnify BREEX against all third party claims, including claims by persons whose personal data have been recorded or processed in the context of a register of personal data kept by the Customer or for which the Customer is otherwise responsible, for compensation for damages caused (partly) by or in connection with the equipment or the use of the equipment or its condition.
7.2 BREEX’s liability for any loss of enjoyment, loss of earnings and/or indirect damage is excluded in any case and BREEX may not under any circumstances be required to pay any compensation for this. BREEX shall under no circumstances be liable for damage to hardware, software and data associated with the equipment. Nor shall it be liable for damage or costs arising from misuse of access or identification codes. In the event of non-conformity or malfunction of equipment for which BREEX is required to intervene, BREEX’s liability and intervention shall be limited solely to repair or, where applicable, replacement of the defective or non-conforming equipment.
7.3 The Client may not claim the suspension or annulment of the rental, the reduction of a Rental or the suspension of payment thereof, nor any indemnity in the event of total or partial loss of use of the equipment, for any reason whatsoever, including fault of a third party or force majeure. In the event of the loss or destruction of the equipment leased, whatever the cause, the Customer shall indemnify BREEX for all damage suffered by the latter.
7.4 In the event of multiple tenants, each individual tenant shall be jointly and severally liable for the execution of the Rental Agreement.
Article 8 – Right of rescission and termination
The Rental Agreement may be terminated ipso jure by BREEX by simple written notice to the Customer, without any judicial formality:
– if the Customer is in cessation of payments, collective debt settlement, judicial reorganization or bankruptcy,
– upon the death of the Customer,
– in the event of a reduction or loss of the Guarantee,
– in the event of an attachment or other forms of compulsory execution against the Customer,
– if damage, destruction or loss of the rental equipment is observed,
– if the Customer has provided BREEX and/or the Partner with incorrect information relating to his business or financial situation which has played a crucial role in BREEX and/or the Partner’s decision to enter into the relationship with the Customer,
– in the event of non-payment of invoices,
– in the event of any breach by the Customer of this Rental Agreement which has not been remedied within a minimum period of 5 days following written notice to this effect.
Should the Customer unilaterally terminate or breach the Lease prior to the expiry of the contractual term or commit a contractual breach of contract, the Customer shall be liable to pay BREEX at least a fixed amount of compensation as provided for below. In all cases of early termination, without prejudice to BREEX’s right to full compensation, the Customer shall be required to pay to BREEX, in addition to the sums due and not paid, plus interest on arrears, an indemnity fixed on the one hand at the value of the lease instalments yet to fall due, plus the residual value, plus EUR 150 + VAT handling charges and a 5% reinvestment penalty, less the balance available from the sale of the equipment. The Customer expressly waives the benefit of art. 1231 of the Civil Code. This compensation does not cover the loss of value resulting from the damaged condition of the returned appliance. This loss of value must be compensated separately. The payments made by the Customer shall first be applied to the stipulated compensation and to the interest on arrears, then to the unpaid costs, and finally to the principal sums. This settlement will also be applied in case of a total loss, determined and confirmed by an expert.
Article 9 – Termination of the Agreement
9.1 The Customer is required to make the equipment available to BREEX in good and complete condition at the end of the Rental Agreement, for any reason whatsoever. With the exception of normal wear and tear, this condition shall be as described in the receipt.
9.2 The costs of return transport will be borne by the Customer. These costs will be determined on the basis of the table of transport costs per weight group then in use at BREEX. Consumables not yet consumed remain the property of BREEX and must be returned to BREEX at the end of the term of the Rental Agreement.
9.3 If the Customer refuses to make the equipment available to BREEX at the end of the Rental Agreement in accordance with article 9.1, a fixed penalty of EUR 100.00 per equipment per day, including part of the day, will be imposed as of right and without prior notice of default, for every day that the equipment is not handed over, with a maximum of EUR 5,000.00 per equipment.
Article 10 – Right of ownership
10.1 The equipment, including all accessories, shall remain the property of BREEX or its rightful claimants for the entire duration of the Rental Agreement.
10.2 The Customer shall not be permitted to lease or sublease the equipment, allow it to be used by third parties under any circumstances, or to pledge, sell, dispose of, or otherwise encumber it or allow it to be used by third parties in any other way. The Customer is not permitted to remove, cover, alter or damage the marks, numbers, names and/or other inscriptions applied to the devices, nor to add others to them. Any changes to the equipment which are necessary or desirable may be made only by BREEX.
10.3 The Customer is required to inform anyone wishing to exercise any right over or in relation to the equipment immediately that the equipment is the property of BREEX. The Customer shall also inform BREEX without delay by registered letter and by submitting all relevant documents of (i) the threat of enforcement action, (ii) the seizure or retention of all or part of the leased equipment, (iii) an accident involving all or part of the leased equipment, (iv) the theft of the equipment or (v) damage to the leased equipment.
Article 11 – GDPR
BREEX respects the Client’s privacy and processes the Client’s personal data for the purposes of customer or prospect management in accordance with the applicable regulations (in particular Regulation No. (EU) 2016/679 of 27 April 2016 on the protection of individuals with regard to the processing of personal data). These processing operations are carried out on the basis of the Customer’s consent and the agreements made. By signing this Rental Agreement, the Customer accepts that BREEX may conduct solvency checks, as well as collect data concerning the Customer as well as its representatives and other parties involved in the Customer’s activity. These data may be used by BREEX or its group for the purposes of executing the rental agreement, fulfilling legal obligations and sending information on products or services which may be of interest to the Customer. These data can also be transferred to the Partner in the context of a transfer of the Rental. This collection will take place in accordance with the privacy policy of the BREEX concerned. The Customer is entitled to be informed of any personal data relating to him processed by BREEX and/or BREEX, and to request rectification of inaccurate data, deletion of data and/or restriction of processing, in all cases where this is provided for by applicable regulations. The Customer also has the right to object to processing and request the transfer of personal data, again in accordance with applicable regulations. The Customer may exercise these rights by sending a written request, dated and signed, to BREEX and/or BREEX, with a copy of both sides of the identity card attached. In the event of any difficulty, the Customer is entitled to lodge a complaint with the Belgian Data Protection Authority (rue du Peinture 35, 1000 Brussels +32 (0)2 274 48 00; +32 (0)2 274 48 35; contact@apd-gba.be).
Article 14 – Applicable law and choice of forum
For any dispute with respect to the Lease, its execution, interpretation and termination, only the Dutch courts of Brussels will be competent. The Rental Agreement is governed by Belgian law.
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Parties agree that (i) electronic signatures which qualify as an advanced or a qualified e-signature under the eIDAS Regulation (Regulation (EU) N°910/2014) or (ii) scan copies of duly signed counterpart signature pages to this Agreement transmitted by email in .pdf format, will have the same probative value as a wet ink original paper document bearing a manually signed signature.
Article 1 – Object
1.1 Deze overeenkomst tussen enerzijds (i) de NV BREEX Europe (“BREEX”), met zetel te 9000 GHENT, Moutstraat 54 met ondernemingsnummer 0537.365.350 and the Customer shall be governed by the terms and conditions of the rental agreement concluded between the parties, including these general terms and conditions, the invoices and any special terms and conditions set out in the rental agreement (hereinafter collectively referred to as the “Rental Agreement”). The Rental Agreement will come into force upon signature of the agreement by the Customer and BREEX, and the signing of the agreement will constitute acceptance of these general terms and conditions and will annul and replace all written or oral contracts, proposals and undertakings relating to the same subject and predating the date of this Rental Agreement. The Rental Agreement excludes the application of the Customer’s own potential general and/or other terms and conditions.
1.2 The services of the Rental Agreement include the rental of the equipment made available to the Customer by BREEX as evidenced by the particular terms of the Rental Agreement and the certificate of issue (hereinafter the “Rental”). The fees for the Rental consist of a monthly rental amount, hereinafter “Rent”).
1.3 The agreed rental period as stipulated in the Rental Agreement shall commence on the date of delivery of the appliances as further set out in Article 5.8 below. Unless otherwise stipulated, the Rental Agreement is tacitly extended by 12 months, unless terminated by registered letter at least 6 months before the expiry of the contractual period.
1.4 The appliances are chosen by the Customer under its sole responsibility. The Customer chooses the supplier and equipment on his own initiative, and is free to determine the technical characteristics, procedures and place of delivery. The Customer releases BREEX from any obligation to provide information and confirms that he/she is acting in full knowledge of the facts. Under no circumstances may the Customer invoke difficulties related to the equipment, its use or performance, or its unsuitability to meet his needs. BREEX, or its authorised representative, will only be responsible for setting up, adjusting and testing the equipment and providing the Customer with information on putting the equipment into service.
1.5 The rental agreement is always subject to the suspensive condition of a positive solvency check on the Customer by BREEX. If a solvency check reveals that, in BREEX’s opinion, the Customer lacks the financial capacity to ensure the proper execution of this Rental Agreement, BREEX will notify the Customer (for information purposes only) that the condition precedent has not been met. This condition may only be invoked by BREEX, not by the Customer.
Article 2 – Delivery and reception
2.1 Before the scheduled delivery, the Customer shall provide BREEX with all useful and necessary information relating to the delivery and shall ensure that the premises intended for that purpose are equipped with the necessary installations and connections. If, failing this, the delivery cannot be made at the agreed time, the costs associated with this will be charged to the Customer. The equipment will be delivered directly by BREEX and collected by the Customer at the place indicated. Delivery and installation shall be at the Customer’s expense and risk. Delivery dates quoted are purely indicative and constitute an obligation of means on the part of BREEX. Acceptance of the goods by the Customer implies acceptance of the delivery period, even if the indicative delivery period has been exceeded.
2.2 During delivery, the Customer checks the conformity of the devices and proceeds to all tests and checks agreed upon or required by the nature of the devices. The Customer then undertakes to sign a delivery receipt at the time of provision. The Customer’s signature on this document shall serve as proof that the device corresponds to the agreed device (including accessories, etc.) as stipulated in the Special Terms and Conditions, that the device is in perfect condition and has no (visible) defects, and that all necessary documents, instructions and equipment are present and have been provided along with it.
2.3 Hidden defects must be reported in writing to BREEX within 24 hours of their discovery and identification, but at the latest within 12 months of delivery. In the absence of timely written comments in accordance with the above, the goods supplied will be deemed to have been delivered in accordance with the rules of the trade, in conformity with the specifications and without defects, and will be deemed to have been accepted by the Customer. Under no circumstances shall BREEX be required to intervene or be liable in any way for any non-conformity or defects caused by the Customer or resulting from improper use by the Customer or failure to comply with the terms of this Rental Agreement.
2.4 BREEX reserves the right to have its obligations under the Rental Agreement performed by third parties on its behalf.
Article 3 – Method of use and insurance
3.1 The Customer is required to use the appliances in accordance with the manuals accompanying the appliances and BREEX’s instructions. The Customer shall use said appliances solely for business purposes with due diligence. The Customer shall not use any spare parts, accessories or consumables other than those supplied or approved by BREEX. Spare parts and all accessories fitted automatically become the property of BREEX without any compensation to the Customer. The Customer is not permitted to remove the equipment from the site where it is installed, except with BREEX’s prior written consent. The Customer shall be required to carry out all maintenance and repairs at his own expense, in accordance, where applicable, with a separate maintenance agreement concluded with BREEX. Such a maintenance agreement is separate from this Rental Agreement, and any failure to comply with or implement such a maintenance agreement will have no impact on the Rental Agreement.
3.2 Insurance
The Customer shall, during the entire term of the Rental until the return of the equipment, have its civil liability arising from the use and custody of the equipment insured by a recognized solvent insurance company for any damage caused to both persons and property. The insurance company will waive any recourse against BREEX. The insurance contract will also cover BREEX’s liability to third parties in respect of leased equipment. The Customer instructs its insurer and insurance agent (i) to forward the corresponding insurance certificate to BREEX annually, for the first time and no later than the effective date of delivery of the equipment, together with the signed document acknowledging receipt of the equipment and (ii) to notify BREEX immediately of the termination, cancellation or suspension of the insurance contract and of any non-payment of premiums.
The Customer shall, throughout the duration of the Rental and up to the moment of return of the equipment, arrange for BREEX to insure the rented equipment against damage caused by fire, lightning, explosion, implosion, the impact of electricity, water damage, natural forces, breakage of machinery and theft. BREEX is entitled at any time to check compliance with this obligation or to have it checked by a third party designated by it. In this context, BREEX may communicate the Customer’s contact details, relevant information relating to the equipment hired and the period of this rental agreement to the third party designated by it, who will contact the Customer. The insured value must at all times be sufficient to cover the total loss of the rented appliances, in accordance with the article relating to breach of the Rental Agreement (Article 8), increased by the residual value. The Customer shall, either on its own initiative or upon BREEX’s first request, instruct its insurer and/or its insurance agent (i) to provide BREEX or a third party designated by BREEX with the relevant insurance contract and proof of payment of premiums and (ii) to notify BREEX or a third party designated by BREEX without delay of the termination, cancellation or suspension of the insurance contract and of any non-payment of premiums. If the necessary documentary evidence is not provided in good time (30 days after the date of the letter in which BREEX or the third party appointed by it requested notification of the documents) or if the documents provided do not provide adequate proof that the equipment is insured in accordance with the present rental agreement, BREEX shall be entitled, but not required, to include the equipment in the insurance policy taken out by BREEX in its own name. BREEX will charge the Customer an additional amount for this purpose. BREEX will inform the Customer of this beforehand. This amount must be paid under the same conditions and arrangements as those laid down for all other payments due under this rental agreement and will be invoiced at the same time as the periodic rental fees. The Customer always retains the option of having the appliances insured at any time through its insurer or insurance intermediary and submitting proof thereof.
As security for the proper performance of its obligations, the Customer hereby agrees to pledge to BREEX, for the entire duration of this Lease, its claims arising from insurance policies taken out for the leased equipment. The Customer undertakes not to assign or pledge the sums due to him under the receivables pledged, and to ensure that they are not subject to assignment, set-off, attachment by third parties or opposition, and he expressly waives the right to take any action that might hinder or limit the effects of this pledge. The Customer hereby authorizes BREEX, as the sole party entitled to collect, on all due dates and at any time when the pledged debts fall due, to collect all sums relating to these debts and to charge them against the amounts owed by the Customer, without any judicial intervention. This pledge shall be made as security for all sums owed or to be owed by the Customer to BREEX by virtue of leasing contracts and/or rent and/or the business relationship between the Customer and BREEX, up to a maximum amount equal to the number of rental periods multiplied by the amount of the periodic rental period, in principal and accessory amounts, plus the amount of the purchase option under a leasing contract.
Article 4 – Force Majeure
Any event which constitutes an insurmountable obstacle to the normal execution of the Contract or seriously impedes or hinders it will be deemed to be an instance of force majeure, which will include (but not be limited to): strikes, government measures, (temporary) shutdowns, transport difficulties, delays in or impossibility of supply and damage to – or defects in – BREEX assets essential to the contract, delays in or impossibility of supply by BREEX suppliers. In the event of force majeure, BREEX will be entitled either to suspend the execution of the Rental Agreement for a maximum period of three months, or to dissolve the Rental Agreement in whole or in part, without being required to pay any compensation. Financial obligations of the Customer may never be suspended or dissolved as a result of force majeure.
Article 5 – Price and payment
5.1 The Rent is payable in advance in accordance with the terms agreed in the special conditions. If the appliances are delivered during the calendar month following the signing of the Lease, invoicing for the Rental will commence on the first day following the day after the last appliance has been delivered.
5.2 BREEX reserves the right to change the Rent in the interim, no more than once a year, but no earlier than six months after the Lease takes effect. Changes may be made as a result of, among other things, cost increases and/or changes in the exchange rate and/or price-increasing measures taken by the Belgian Government.
5.3 All taxes and costs, by whatever name, which are now or at any time to be levied on the amounts to be paid by the Customer, or on the Lease Agreement or on the appliances and/or on the use of the appliances, irrespective of whose name they are registered, will be for the account of the Customer.
5.4 The Customer may not invoke any suspension, discount or set-off in respect of the Customer’s payment obligations to BREEX and expressly waives its rights under article 1184 of the Civil Code.
5.5 Payment of the Rental will be made by debit to the bank account specified by the Customer. The Customer undertakes to provide BREEX with a SEPA mandate upon BREEX’s first request.
5.6 BREEX is entitled (but not required) to make invoices available to the Customer electronically by e-mail or by means of a customer portal.
5.7 BREEX is entitled to demand security for compliance with the Customer’s payment obligations. This security may be provided by issuing, at BREEX’s first request, an unconditional and irrevocable bank guarantee in favour of BREEX or by providing personal security in the form of guarantees or statements of liability (hereinafter collectively referred to as the “Guarantee”). In the case of a partnership, the Directors will at all times be personally and jointly and severally liable for compliance by the partnership with its obligations under the Contract. The Customer shall notify BREEX by registered letter as soon as it becomes aware of a Guarantee or the intention to withdraw it.
5.8 The Rental period shall commence on the day of delivery of the equipment. Subject to other provisions, the Rental Price was calculated assuming delivery of the appliances on the first day of the month. In the event of delivery on a different day, the rental period and rental invoicing will start on the first day of the month following the delivery of the appliances.
Between the date of delivery and the first day of the month following the delivery of the appliances, the Customer shall be required to pay a usage fee, which shall be definitively acquired by BREEX. This usage fee shall be calculated on the basis of the agreed Rental Price, pro rata for the number of days elapsed between the date of delivery and the first day of the month following the delivery of the equipment. Unless otherwise stipulated, this usage fee shall be payable together with the first Rent.
5.9 Without prejudice to BREEX’s other rights, in this case BREEX shall be entitled to demand additional or replacement security from the Customer. The Customer shall be required to supplement or replace such security. If a Guarantee from a third party covering the Customer’s obligations has been or is withdrawn, BREEX shall be entitled to terminate the Rental Agreement immediately and ipso jure, without notice of default or other formality, and to proceed immediately to the recovery of any amounts still owed by the Customer, including the compensation provided for in Article 10 in the event of early termination or dissolution.
5.10 Unless otherwise stated above, all invoices shall be payable at the address of BREEX’s registered office and, unless otherwise stipulated, must be paid within 14 days of the invoice date. In the event of late payment, interest on arrears of 1.5% per month shall be payable, ipso jure and without notice of default, as well as a fixed indemnity of 10% with a minimum of EUR 65, by way of irrevocable damages and irrespective of legal costs. Each reminder that is sent will incur an additional cost of 15.00 euros in addition to the cost of registered mail. All complaints and protests must be made within 7 days of the invoice date.
5.11 The Customer must always inform BREEX by return of any changes to the address and billing details communicated when the Rental Agreement is signed.
Article 6 – Transfer of the Hire to a Partner
6.1 The Customer irrevocably grants BREEX the right to transfer ownership of the equipment and the Lease to a leasing company and/or a partner of BREEX (hereinafter the “Partner”). The Customer hereby consents to this transfer and shall be legally bound to the Partner to perform the obligations under this Lease. After notification of the transfer, the Rental shall only be paid in full to the Partner, who shall then assume all of BREEX’s rights and obligations in respect of this Lease.
6.2 BREEX shall also be entitled to assign or pledge the debt arising from this Lease. In the event that the assignment or pledge is made later than when this Lease is signed, the Customer shall declare that it has been adequately informed of this assignment or pledge by simple letter from BREEX.
6.3 The Customer shall not be permitted to sell, pledge, transfer or encumber all or part of its rights and obligations under the Lease to third parties.
6.4 In case of a transfer of the Lease as provided for in Article 6.1, the Partner shall not indemnify the hidden break. No recourse may be exercised against the Partner on account of such defect. BREEX (and not the Partner) will continue to indemnify the Customer for hidden breakages in an exceptional capacity, which the Customer expressly accepts, and this regardless of the transfer of the Hire to the Partner. Consequently, the Customer shall address himself/herself solely to BREEX with respect to such claims and shall exercise all recourse against the latter.
6.5 The Partner shall not disclose to third parties any information regarding the execution of the Lease Agreement, unless it is authorised or required to do so by law or if an interest justifies it. By signing the Lease Agreement, the Customer expressly accepts that an interest exists on the part of the Partner if it would suffer a disadvantage if it did not provide the aforementioned information (such as, but not limited to, defaults of payment by the Customer or protest of invoices). In any event, the Customer agrees that BREEX may be notified of any non-payment.
Article 7 – Liability and damages
7.1 The Client shall indemnify BREEX against all claims by third parties, including employees, for compensation for damages caused (in whole or in part) by or in connection with the equipment or the use of the equipment or materials, to the extent that such damages to third parties are caused by defects in the equipment or materials of which BREEX is not the supplier. The Customer shall waive all recourse against BREEX for any damage caused by the rented equipment to its own property. The Customer shall indemnify BREEX against all third party claims, including claims by persons whose personal data have been recorded or processed in the context of a register of personal data kept by the Customer or for which the Customer is otherwise responsible, for compensation for damages caused (partly) by or in connection with the equipment or the use of the equipment or its condition.
7.2 BREEX’s liability for any loss of enjoyment, loss of earnings and/or indirect damage is excluded in any case and BREEX may not under any circumstances be required to pay any compensation for this. BREEX shall under no circumstances be liable for damage to hardware, software and data associated with the equipment. Nor shall it be liable for damage or costs arising from misuse of access or identification codes. In the event of non-conformity or malfunction of equipment for which BREEX is required to intervene, BREEX’s liability and intervention shall be limited solely to repair or, where applicable, replacement of the defective or non-conforming equipment.
7.3 The Client may not claim the suspension or annulment of the rental, the reduction of a Rental or the suspension of payment thereof, nor any indemnity in the event of total or partial loss of use of the equipment, for any reason whatsoever, including fault of a third party or force majeure. In the event of the loss or destruction of the equipment leased, whatever the cause, the Customer shall indemnify BREEX for all damage suffered by the latter.
7.4 In the event of multiple tenants, each individual tenant shall be jointly and severally liable for the execution of the Rental Agreement.
Article 8 – Right of rescission and termination
The Rental Agreement may be terminated ipso jure by BREEX by simple written notice to the Customer, without any judicial formality:
– if the Customer is in cessation of payments, collective debt settlement, judicial reorganization or bankruptcy,
– upon the death of the Customer,
– in the event of a reduction or loss of the Guarantee,
– in the event of an attachment or other forms of compulsory execution against the Customer,
– if damage, destruction or loss of the rental equipment is observed,
– if the Customer has provided BREEX and/or the Partner with incorrect information relating to his business or financial situation which has played a crucial role in BREEX and/or the Partner’s decision to enter into the relationship with the Customer,
– in the event of non-payment of invoices,
– in the event of any breach by the Customer of this Rental Agreement which has not been remedied within a minimum period of 5 days following written notice to this effect.
Should the Customer unilaterally terminate or breach the Lease prior to the expiry of the contractual term or commit a contractual breach of contract, the Customer shall be liable to pay BREEX at least a fixed amount of compensation as provided for below. In all cases of early termination, without prejudice to BREEX’s right to full compensation, the Customer shall be required to pay to BREEX, in addition to the sums due and not paid, plus interest on arrears, an indemnity fixed on the one hand at the value of the lease instalments yet to fall due, plus the residual value, plus EUR 150 + VAT handling charges and a 5% reinvestment penalty, less the balance available from the sale of the equipment. The Customer expressly waives the benefit of art. 1231 of the Civil Code. This compensation does not cover the loss of value resulting from the damaged condition of the returned appliance. This loss of value must be compensated separately. The payments made by the Customer shall first be applied to the stipulated compensation and to the interest on arrears, then to the unpaid costs, and finally to the principal sums. This settlement will also be applied in case of a total loss, determined and confirmed by an expert.
Article 9 – Termination of the Agreement
9.1 The Customer is required to make the equipment available to BREEX in good and complete condition at the end of the Rental Agreement, for any reason whatsoever. With the exception of normal wear and tear, this condition shall be as described in the receipt.
9.2 The costs of return transport will be borne by the Customer. These costs will be determined on the basis of the table of transport costs per weight group then in use at BREEX. Consumables not yet consumed remain the property of BREEX and must be returned to BREEX at the end of the term of the Rental Agreement.
9.3 If the Customer refuses to make the equipment available to BREEX at the end of the Rental Agreement in accordance with article 9.1, a fixed penalty of EUR 100.00 per equipment per day, including part of the day, will be imposed as of right and without prior notice of default, for every day that the equipment is not handed over, with a maximum of EUR 5,000.00 per equipment.
Article 10 – Right of ownership
10.1 The equipment, including all accessories, shall remain the property of BREEX or its rightful claimants for the entire duration of the Rental Agreement.
10.2 The Customer shall not be permitted to lease or sublease the equipment, allow it to be used by third parties under any circumstances, or to pledge, sell, dispose of, or otherwise encumber it or allow it to be used by third parties in any other way. The Customer is not permitted to remove, cover, alter or damage the marks, numbers, names and/or other inscriptions applied to the devices, nor to add others to them. Any changes to the equipment which are necessary or desirable may be made only by BREEX.
10.3 The Customer is required to inform anyone wishing to exercise any right over or in relation to the equipment immediately that the equipment is the property of BREEX. The Customer shall also inform BREEX without delay by registered letter and by submitting all relevant documents of (i) the threat of enforcement action, (ii) the seizure or retention of all or part of the leased equipment, (iii) an accident involving all or part of the leased equipment, (iv) the theft of the equipment or (v) damage to the leased equipment.
Article 11 – GDPR
BREEX respects the Client’s privacy and processes the Client’s personal data for the purposes of customer or prospect management in accordance with the applicable regulations (in particular Regulation No. (EU) 2016/679 of 27 April 2016 on the protection of individuals with regard to the processing of personal data). These processing operations are carried out on the basis of the Customer’s consent and the agreements made. By signing this Rental Agreement, the Customer accepts that BREEX may conduct solvency checks, as well as collect data concerning the Customer as well as its representatives and other parties involved in the Customer’s activity. These data may be used by BREEX or its group for the purposes of executing the rental agreement, fulfilling legal obligations and sending information on products or services which may be of interest to the Customer. These data can also be transferred to the Partner in the context of a transfer of the Rental. This collection will take place in accordance with the privacy policy of the BREEX concerned. The Customer is entitled to be informed of any personal data relating to him processed by BREEX and/or BREEX, and to request rectification of inaccurate data, deletion of data and/or restriction of processing, in all cases where this is provided for by applicable regulations. The Customer also has the right to object to processing and request the transfer of personal data, again in accordance with applicable regulations. The Customer may exercise these rights by sending a written request, dated and signed, to BREEX and/or BREEX, with a copy of both sides of the identity card attached. In the event of any difficulty, the Customer is entitled to lodge a complaint with the Belgian Data Protection Authority (rue du Peinture 35, 1000 Brussels +32 (0)2 274 48 00; +32 (0)2 274 48 35; contact@apd-gba.be).
Article 14 – Applicable law and choice of forum
For any dispute with respect to the Lease, its execution, interpretation and termination, only the Dutch courts of Brussels will be competent. The Rental Agreement is governed by Belgian law.
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Parties agree that (i) electronic signatures which qualify as an advanced or a qualified e-signature under the eIDAS Regulation (Regulation (EU) N°910/2014) or (ii) scan copies of duly signed counterpart signature pages to this Agreement transmitted by email in .pdf format, will have the same probative value as a wet ink original paper document bearing a manually signed signature.
PART I – GENERAL
Article 1 – Object
1.1 The maintenance agreement between, on the one hand, (i) the NV BREEX EUROPE (“BREEX”), with registered office at 9000 GHENT, Moutstraat 54, company number 0537.365.350, and, on the other hand, the Customer, is governed by the terms and conditions of the maintenance agreement concluded between the parties, including these general terms and conditions, the invoices and any special terms and conditions specified in the maintenance agreement (hereinafter referred to collectively as the “Maintenance Agreement”). The Maintenance Agreement shall come into force following the signing of the maintenance agreement by the Customer and BREEX, the signing of which shall also constitute acceptance of these general terms and conditions, and shall annul and replace all written or oral contracts, proposals and undertakings relating to the same subject and predating the date of this Maintenance Agreement. The Maintenance Agreement excludes the application of the Customer’s own potential general and/or other terms and conditions.
1.2 BREEX’s commitments are obligations of means.
Article 2 – GDPR
BREEX respects the Customer’s privacy and processes the Customer’s personal data for the purposes of customer or prospect management in accordance with the applicable regulations (in particular Regulation No. (EU) 2016/679 of 27 April 2016 on the protection of individuals with regard to the processing of personal data). These processing operations are carried out on the basis of the Customer’s consent and the agreements made and with a view to executing the Maintenance Agreement. By signing this Maintenance Agreement, the Customer accepts that BREEX may carry out solvency checks. These data may be used by BREEX or its group for the purposes of executing the Maintenance Contract, fulfilling legal obligations and sending information relating to products or services which may be of interest to the Customer. This collection will take place in accordance with BREEX’s privacy policy. The Customer is entitled to be informed of any personal data relating to him processed by BREEX and/or BREEX, and to request that incorrect data be rectified, that data be deleted and/or that processing be restricted, always provided that this is permitted by the applicable regulations. The Customer also has the right to object to processing and request the transfer of personal data, again in accordance with applicable regulations. The Customer may exercise these rights by sending a written request, dated and signed, with a copy of both sides of the identity card attached, to BREEX. In the event of any difficulty, the Customer is entitled to lodge a complaint with the Belgian Data Protection Authority (rue du Peinture 35, 1000 Brussels +32 (0)2 274 48 00; +32 (0)2 274 48 35; contact@apd-gba.be).
Article 3 – Force Majeure
Every event that forms an insurmountable obstacle to the normal execution of the Maintenance Contract or seriously impedes or hinders it shall be regarded as an event of force majeure, including (but not limited to) strikes, government measures, (temporary) shutdowns, power cuts, transport difficulties, delays or impossibilities in the supply and damage of – or defects in – BREEX assets essential to the order, delays or impossibilities in the supply of BREEX suppliers. In the event of force majeure, BREEX shall be entitled either to suspend the execution of the Maintenance Contract for a maximum period of three months, or to cancel the Maintenance Contract in part or in full, without being required to pay any compensation. The Customer’s financial commitments may never be suspended or dissolved as a result of force majeure.
Article 4 – Price and payment
4.1 BREEX reserves the right to change its prices in the interim, no more than once a year, but no earlier than six months after the Maintenance Contract takes effect. Changes may be made as a result of, among other things, cost increases and/or changes in the exchange rate and/or price-increasing measures taken by the Belgian government.
4.2 All taxes and costs, by whatever name, which are now or at any time to be levied on the amounts to be paid by the Customer, shall be for the Customer’s account.
4.3 The Customer may not invoke any suspension, reduction or set-off in respect of its payment obligations to BREEX, and expressly waives its rights under article 1184 of the Civil Code.
4.4 BREEX is entitled (but not required) to make invoices available to the Customer by e-mail or through a customer portal.
4.5 Unless otherwise stated above, all invoices shall be payable at the address of BREEX’s registered office and, unless otherwise stipulated, must be paid within 14 days of the invoice date. In the event of late payment, interest on arrears of 1.5% per month shall be payable, ipso jure and without notice of default, as well as a fixed indemnity of 10% with a minimum of EUR 65, by way of irrevocable damages and irrespective of legal costs. Per reminder that is sent, an additional cost of 15.00 EUR will be charged, in addition to the cost of registered mail. All complaints and protests must be made within 7 days of the invoice date.
4.6 The Customer must always inform BREEX by return of any changes to the address and invoicing details communicated when the Maintenance Contract is signed.
4.7 BREEX is entitled to send interim advance invoices to the Customer. The amount of these advance invoices will be determined by BREEX within reason and/or on the basis of any available usage data in the particular terms and conditions of the Maintenance Agreement. In this case, BREEX will issue an annual final invoice to set off advance invoices. In the event that BREEX receives no data or incorrect data, or if such data is not provided to BREEX in a timely manner, BREEX may estimate usage and invoice on that basis. The Customer’s actual use will then be invoiced at a later date. Finally, BREEX is entitled to modify the advance payments on each annual anniversary of the Maintenance Agreement according to the usage data available.
Article 5 – Dissolution
The Maintenance Agreement may be terminated ipso jure by BREEX by simple written notice to the Customer, without any judicial formality:
in the event of a cessation of payments, collective debt settlement, judicial reorganisation or bankruptcy of the Customer,
in the event of seizure or other forms of enforcement against the Customer,
in case of non-payment of invoices,
in case of any non-performance of the Customer under this Maintenance Agreement not remedied within a term of minimum 5 days after written notice of default.
Should the Customer unilaterally terminate or breach the Maintenance Contract prior to the expiry of the contractual term or commit a contractual breach, the Customer shall be liable to pay BREEX at least a fixed amount of compensation as provided for in Articles 11 and 15 (depending on the exact maintenance services purchased by the Customer).
Article 6 – Liability
BREEX’s liability for any loss of enjoyment, loss of earnings and/or indirect damage is excluded in all cases and BREEX will not, under any circumstances, be required to pay any compensation for this. For direct damages, BREEX’s liability shall be limited to that for which it is insured, i.e. a maximum of EUR 100,000,00 for material damage and EUR 20,000,00 for bodily injury. Under no circumstances shall BREEX be liable for damage to hardware, software and data attached to the devices. Nor shall it be liable for damage or costs arising from misuse of access or identification codes. In the event of non-conformity or malfunction of equipment for which BREEX is required to intervene, BREEX’s liability and intervention shall be limited solely to repair or, where applicable, replacement of the defective or non-conforming equipment.
Article 7 – Applicable law and choice of forum
For any dispute with respect to the Lease, its execution, interpretation and termination, the Dutch courts of Brussels shall have exclusive jurisdiction.
Brussels will be exclusively competent. The Rental Agreement is governed by Belgian law.
The parties agree that (i) electronic signatures qualifying as an advanced or a qualified electronic signature under the eIDAS Regulation (Regulation (EU) No. 910/2014) or (ii) scans of the signed signature page of this Agreement delivered by e-mail in .pdf format, shall have the same evidential value as an original paper copy with a handwritten signature.
signature.
PART II – MAINTENANCE OF HARDWARE AND SOFTWARE
Article 8 – Maintenance
8.1 BREEX shall maintain the equipment in an operational condition and perform any maintenance or repair work necessary for this purpose. To this end, BREEX shall make technical service personnel available during BREEX’s working hours, and on average within 8 working hours of notification by the Customer that the equipment is not operating properly (“Maintenance”).
8.2 The agreed period provided for in the Special Terms and Conditions shall commence on the date on which the equipment is made available, as set out in the issue document. Unless otherwise stipulated, the Maintenance Agreement shall be tacitly extended by 12 months, unless terminated by registered letter at least 6 months before the expiry of the contractual period.
8.3 The Customer shall at all times during normal business hours allow one or more persons designated by BREEX access to the site where the equipment is located and shall ensure that the equipment can be easily maintained.
8.4 Any damage observed during Maintenance which results in a reduction in the lifespan of (parts of) the equipment and/or incurs costs as a result of improper use shall be borne by the Customer. Repairs, changes, relocations, connections to other equipment or adjustments carried out by persons other than those appointed by BREEX shall release BREEX from all obligations arising from the Maintenance Agreement. The Customer shall be required to pay full compensation for any damage caused by the use of parts, paper and consumables other than those supplied or approved by BREEX.
8.5 The maintenance charge shall be a minimum of EUR 15.00 and shall be included in the printing costs set out in the special terms and conditions of the Maintenance Agreement (“Printing Costs”) and shall include the cost of replacing equipment parts and the cost of maintenance and repairs and consumables, with the exception of paper, staples, call-out charges and licence fees, amongst other things. Maintenance carried out by BREEX shall not be grounds for a reduction in rent, compensation or termination, even if this is the result of a defect or in the event of non-use or downtime due to maintenance or repair. Furthermore, BREEX shall be entitled to bill any interventions additionally if one or more of the following cases occurs:
Late response, incorrect use or manipulation of equipment which does not comply with BREEX’s instructions, regulations or manuals;
Attempts, repairs, modifications or any other equivalent intervention not provided for in BREEX’s instructions, regulations or manuals;
Any movement or transport of the equipment without BREEX’s knowledge;
External causes such as lightning, water damage, fire, power cuts, internet failures, etc.
Article 9 – Print Counter
9.1 The consumable material made available is presumed to be sufficient to produce, under normal use, the agreed number of counter ticks (“Counter Tick(s)”). Counter tick means a printout and/or scan of A4 size or smaller. In case of a copy printer, both the Counter Tap and the master consumption are registered as an A4 counter tap. When an A3 drum is installed, both the Counter Tap and the master consumption are registered as twice A4. In the case of printing machines equipped with an A3 drum, the A3 counter is also recorded as twice A4. The Customer shall provide BREEX with a correctly and fully completed (digital) meter reading card or a (digital) collection list issued by BREEX, before the fifth day following the end of each payment period stipulated in the Maintenance Agreement. These form the basis for the periodic settlement of the agreed number of Counter Ticks and additional Counter Ticks. If the Customer fails to notify BREEX of the counter card or collection list within the prescribed period, BREEX reserves the right to invoice the period elapsed on the basis of the average number of Counter Ticks invoiced in the preceding periods. Any difference occurring will then be corrected in the following period on the basis of the Counter Ticks received. The costs relating to the processing of the data as reported on the counter reading card or collection list shall be borne by the Customer.
9.2 Until the delivery of the last device, only the actual prints of the devices to be delivered will be charged to the Customer based on the issued multi-copy prices.
Article 10 – Use of software
10.1 The Customer may, if he wishes, use various software applications offered by BREEX for online administration and management of businesses (for example, accounting support, creation and storage of offers and invoices, CRM, etc.) (“Software Application”). The duration of this right of use (“License”) is equal to the duration of the Maintenance Agreement. Upon termination of the Maintenance Agreement, for whatever reason, the License automatically ends.
10.2 Use of a Software Application is subject to payment of a fee specified in the special terms and conditions of the Maintenance Agreement (“License Fee”). In this regard, BREEX grants the Customer a sublicense This sublicense is non-transferable. The Customer undertakes (i) not to copy or delete the software, (ii) not to cause or permit the distribution of the software to third parties, and (iii) to delete the software and anything stored in it upon termination of the collaboration.
10.3 BREEX guarantees that data entered by the Customer using a Software application will be backed up regularly. BREEX will do its utmost to protect the data entered by the Customer using a Software Application against loss, theft, unauthorised access and modification by non-users.
10.4 The Client is responsible for taking the necessary measures to protect its hardware and software configuration and telecommunications and internet connections against viruses, computer crime and unlawful use by its own users or by third parties.
10.5 The Client shall in no way use a Software Application for purposes other than those for which the Software Application in question is intended. The Client is not permitted to use a Software Application in violation of statutory provisions or the General/Special Terms and Conditions. The Customer is responsible for the content and accuracy of the data he has placed with BREEX by means of a Software Application. The Customer undertakes vis-à-vis BREEX to use a Software Application in such a way that the volume of information stored by it and the volume of data transported by it do not deviate from what BREEX reasonably considers to be appropriate to provide the volume of users with a more reasonable experience of use appropriate to the foreseeable pattern of use. If, in BREEX’s judgment, such use by the Customer deviates, more fees may be charged for the additional use by mutual agreement with the Customer.
10.6 All copyright, patent rights, trade name rights, trademark rights, other intellectual and industrial property rights and all similar rights protecting information relating to a Software Application are the exclusive property of BREEX or its licensor(s). None of the provisions contained in the general or special terms and conditions may be construed as leading to a total or partial transfer of such rights to the Customer. The Customer is not permitted to modify, remove or render unrecognizable any indication of BREEX’s intellectual property rights on or in a Software Application. The Customer is not permitted to use or register in any country, anywhere in the world, any BREEX trademark, design or domain name or any similar name or sign.
10.7 The Customer acknowledges that the source code and/or object code of a Software Application is a trade secret within the meaning of the Law of 30 July 2018. If, for any reason, the Customer becomes aware of this source code and/or object code, the Customer undertakes to keep it strictly confidential and not to use it unlawfully (such as copying it without BREEX’s consent) and/or make it public (such as making it available to third parties without BREEX’s consent).
Article 11 – Compensation for early termination
In the event that the Customer unilaterally terminates or terminates the Maintenance Contract early and prior to the expiry of the contractual term, or commits a contractual breach of contract (whether or not the Maintenance Contract has been commenced), the Customer shall be liable to BREEX for at least a fixed amount of compensation equal to the average number of monthly copies and prints made at the agreed Printing Price up to the date of termination or cancellation of the Maintenance Contract, the Customer shall be liable to pay BREEX at least a fixed amount of compensation equal to the average monthly number of copies and prints made at the agreed Printing Price up to the date of termination or cancellation, plus the months remaining up to the contractual end date or expiration date, with a minimum of EUR 750.00. Furthermore, in the cases of termination referred to in this Article 5, the Customer shall be liable to pay BREEX an additional administrative charge of either EUR 175.00 in the event of termination before a Software Application is activated, or EUR 379.00 in the event of termination after a Software Application has been activated.
PART III – MAINTENANCE OF WEBSITE AND HOSTING
Article 12 – Webdesign and hosting
12.1 These services include the development, the non-exclusive right to use and the final transfer by BREEX to the Client of a website and/or web-shop (possibly with additional graphic design and support services) as set out in the special terms and conditions of the Maintenance Agreement, as well as (server) hosting and maintenance and the possible registration of domain names (where BREEX may work with a specialist partner to whom BREEX may transfer its obligations both during and after the Maintenance Agreement without the Client’s consent).
12.2 The agreed term provided for in the Maintenance Agreement shall commence on the date of delivery of the (hosting) server and shall end automatically on the scheduled end date. Parties may always mutually agree in writing to extend the term.
12.3 The Customer acknowledges and accepts that BREEX may suspend or limit its obligations in the event of an emergency or if there are reasonable grounds for believing that there is a threat or risk to the security or integrity of the network concerned.
Article 13 – Delivery and maintenance
13.1 The Client shall provide BREEX with all useful and necessary information, documents, originals, images, logos, feedback, input, etc. Delivery dates quoted are purely indicative and constitute an obligation of means for BREEX. Any delay in delivery cannot therefore entitle the Customer to compensation, a price reduction or termination of the Maintenance Contract.
13.2 Any complaint or protest regarding the delivery must be made to BREEX by registered letter, stating reasons, within a period of 7 (seven) days of the delivery. In the absence of a timely protest, the delivery shall be deemed to have been accepted.
13.3 The maintenance or development of certain services may require BREEX to limit or suspend its obligations. In this case, BREEX will limit the period of limitation or suspension to the time required for the interventions concerned.
Article 14 – Liability
14.3 Without prejudice to Article 6, the operation of a computer configuration (a combination of hardware and software) can never be fully guaranteed for websites, web shops and server hosting. Both external factors (power cuts, internet and IT system failures, etc.) and factors specific to the Client’s and/or BREEX’s IT and computer configuration (breakdowns, network failures, non-compliant use by users, etc.) may result in, among other things, the unexpected loss of data, programs and/or information. However, the Customer undertakes to provide processes for the protection, conservation and restoration of data (such as, but not limited to, back-ups). In any event, BREEX shall not be held responsible for any such loss.
Article 15 – Compensation for early termination
In all cases of early termination, without prejudice to BREEX’s right to full compensation, the Customer shall be required to pay to BREEX, in addition to the sums due and unpaid, plus interest on arrears, an indemnity fixed on the one hand at the value of the monthly prices still due. Payments made by the Customer shall first be applied to the compensation stipulated and to the interest on arrears, then to the unpaid costs, and finally to the principal sums.
Article 16 – Intellectual property rights
16.3 BREEX shall remain the owner of the Intellectual Property Rights associated with Works at all times during the term of the Maintenance Contract and shall grant a temporary and non-exclusive right of use of its Intellectual Property Rights to the Customer, who shall accept them, throughout the world for the duration of the Maintenance Contract.
16.4 When the Maintenance Agreement has reached its end date, and to the extent that all payment obligations of the Customer have been fulfilled, the Intellectual Property Rights associated with the website and/or web shop (but expressly limited to the website and/or web shop) are automatically transferred to the Customer.
16.5 The Customer acknowledges that he/she is at all times the owner of, or has the transferable right to use, Intellectual Property Rights linked to documentation and information, in the broadest sense, which he/she sends to BREEX for the purpose of executing the services. The Customer authorizes BREEX to use this documentation and information for the purposes of providing the services and indemnifies BREEX against any third party claims.
Article 17- Portfolio and references
17.1 The Client accepts that the website and/or web shop developed by BREEX may be included in BREEX’s portfolio.
17.2 The Client agrees that BREEX may include a link, for example: “Design by BREEX”, on the website and/or web shop supplied.
Article 18 – Registration of domain names
10.1. The registration of domain names at the request of the Customer shall take place at its expense, in its name, on its own responsibility and according to the general conditions of domain name registration available on the registry that manages these domain names. The Customer is aware of and accepts these general terms and conditions. BREEX shall not, under any circumstances, be held liable for the registration of domain names whose registration is deemed to be in bad faith or unlawful, the registration of incorrect domain names or domain names which would infringe the rights of third parties, loss of data, unavailability of the domain name, etc. The Client shall, at all times, indemnify BREEX against any third party claims arising from the registration of the domain name in question.
10.2. The Client hereby authorises BREEX, in the Client’s name and on its behalf, to take all administrative, factual and legal initiatives necessary to effect transfers of domain names on behalf of the Client.
Article 19 – Hosting
19.1 A Client using the hosting services provided by a BREEX subcontractor or BREEX external partner offering hosting services directly to the Client may not in any way use these services or facilities, including the storage space provided, to commit legal offences or to cause damage or inconvenience to BREEX. Nor may the Customer’s activities give rise to any such cause. For example, the Customer shall not permit the use of illegal pornographic material or of data which is contrary to public order or morality or which constitutes an unlawful practice. Nor shall any activity be carried out which infringes on protected works or which is punishable by the Computer Crime Act.
19.2 If the Customer wishes to use the hosting offered by a BREEX subcontractor, BREEX will make the general terms and conditions of this subcontractor available to the Customer. The hosting service will not be provided until the Customer has had the opportunity to examine these general terms and conditions and has expressly accepted them.
19.3. The Customer shall indemnify BREEX against any claims made by third parties (including but not limited to BREEX’s subcontractor or external partner) arising from use of the server.
BREEX est la référence en matière de solutions commerciales intelligentes pour les PME. Notre objectif premier est d’aider nos clients à se développer.