Terms and Conditions

This document contains the terms & conditions that will exclusively apply to the supply by Alpha Innovations S.A., Avenue Alexander Fleming n°1, B-1348 Ottignies-Louvain-La-Neuve, Belgium, to Purchaser of the equipment (“Equipment”), software (”Software”) and services (“Services”) set out elsewhere in the offer (the “Offer”). These conditions shall apply to all contracts between Alpha Innovations and/or an affiliated company (together referred to as “Alpha Innovations”) and the Purchaser. Contracts shall be deemed to be concluded upon order confirmation from Alpha Innovations. Alterations made by the Purchaser to the offer shall be valid only if confirmed in writing by Alpha Innovations. The applicable general condition that applies is the one in force at the point of the acceptance of the order. Unless otherwise expressly agreed in writing by Alpha Innovations, the present terms & conditions will prevail over any deviating conditions as may be proposed.

1. DELIVERY AND TITLE

1.1 The Equipment and Software will be delivered FCA Ottignies under the terms of the International Chamber of Commerce’s INCOTERMS 2010. Unless otherwise specified, title in the Equipment shall pass on to and vest in the Purchaser upon full payment. Risk of loss or damage to the Equipment shall pass upon delivery thereof, in accordance with the applicable INCOTERMS.
1.2 Unless otherwise specified in the Offer, the Purchaser shall clear the Equipment and Software through customs, pay all customs duties and associated costs.
1.3 Alpha innovations shall inform the Purchaser in sufficient time in writing of the date on which the goods are available for delivery (hereafter “confirmation of availability”). If the Purchaser requests Alpha Innovations to hold the goods at the moment of shipment and ship at a later date or in the event the Purchaser has not reacted to Alpha Innovations confirmation of availability within 15 days, risk is deemed to pass to the Purchaser upon such request or at the expiry of those 15 days; whereby Alpha Innovations shall store the goods at the expense and risk of the Purchaser. (Should the Purchaser so request, Alpha Innovations shall arrange to have the goods insured on behalf of the Purchaser). Even if the Purchaser does not take delivery of the goods when they are available, he may nonetheless not postpone the date normally set for the payment associated with the delivery.

2. DELAY

2.1 The time schedule and delivery dates are approximate only and merely represent Alpha Innovations’ best estimate of the time required to make delivery. Subject to the foregoing, if, for reasons solely attributable to a default by Alpha Innovations (excluding force majeure), there is a delay exceeding two weeks, in the date on which the Equipment or Software is ready for acceptance testing, in accordance with the Time Schedule, then the Purchaser may claim from Alpha Innovations, as liquidated damages in respect of the delay, a sum equivalent to 0.1% of the price of the delayed Equipment or Software per full week of additional delay, up to a maximum of 5% of the price of the delayed Equipment or Software, subject to prior written notification from the Purchaser. Damages will run only from the date of the written notification.
2.2 Payment of this amount shall fully satisfy the Purchaser in respect of delay and no further amounts may be claimed for damages or any loss or expense (incidental, indirect, economic, consequential or otherwise) from Alpha Innovations in respect thereof. Such amounts shall not be set-off against amounts due by the Purchaser but shall be paid separately by Alpha Innovations. Payment does not absolve Alpha Innovations from completing its obligations under the Contract. If there is a delay in the performance of the Purchaser’s obligations, the Time Schedule shall automatically be extended for a period of time equal to the delay and the Purchaser shall reimburse Alpha Innovations for any additional costs incurred as a result thereof.

3. PRICES, PAYMENT AND TAXES

3.1 Prices
Prices for the Equipment, Software and/or Services are quoted and shall be paid in EURO, unless otherwise indicated in the Special Conditions of Offer. Prices are quoted for the quantities set out in the Offer. Prices are firm for Equipment and Software delivered and Services rendered up to the date limit set out in the Special Conditions of Offer. Any modification of volumes and/or any change of technical and/or commercial conditions may result in price adjustments. Alpha Innovations’ standard packing is included in the price. Any special packing requested by the Purchaser will be charged for. Any service calls or other service work performed by Alpha Innovations shall be at Purchaser’s expense in accordance with Alpha Innovations’ standard rates for such services.
3.2 Administrative charges
All orders below 1000 Euro are subjected to an administrative charge of 75 Euros VAT excluded.
3.3 Taxes
3.3.1. Prices exclude customs duties, sales tax, VAT (if applicable), and other taxes or duties (‘Taxes”) imposed on the supply of Equipment and Software or the rendering of Services, which shall be borne by the Purchaser in addition to the prices quoted.
3.3.2 Should Alpha Innovations be obliged to pay any Taxes in respect of the provision of Equipment, Software or Services, the Purchaser shall refund the same within 30 days of receipt of the documents justifying their payments. Should this be prevented by local legislation, Alpha Innovations shall reserve the right to increase the prices quoted in proportion to the tax load actually borne. If any payment by the Purchaser is subject to withholding tax, the Purchaser agrees to increase the amount of any payment which is subject to a withholding or pay an additional amount, as is necessary to ensure that Alpha Innovations receives the same amount it would have received if there had been no withholding. Prices may be adjusted to reflect changes to the tax laws.
3.4 Payment
3.4.1 Payment to Alpha Innovations shall be made as follows: 100% of the value of the invoice shall be paid by bank transfer within thirty (30) days of the invoicing date.
3.4.2 All payments shall be made in Euro unless otherwise specified and according to the terms of payment set out in the Offer. Late payments shall automatically and without prior notice, bear interest at an annual rate equal to eight percent (8.00%) above the European Central Bank reference interest rate at the time of default, calculated from the due date until date of full payment. The rate minimum will however never be lower than 8% /an. Without prejudice to the foregoing, in the event that the Purchaser fails to effect any payment when due and fails to pay the outstanding amounts within fifteen (15) days following formal notice to pay, Alpha Innovations may suspend the performance of the Services and/or all or part of the deliveries of Equipment or Software until such time the payment is made. Alpha Innovations will not be responsible for delays due to the suspension of Services and/or deliveries of Equipment or Software for non-payment by the Purchaser.
3.4.3 All payments, including all payments made in a currency other than the Euro, are due net of banking and other payment costs. These costs remain at the charge of the Purchaser. Incomplete payment by the Purchaser may result in Alpha Innovations retaining delivery of the goods / services until full payment is received.

4. ACCEPTANCE

4.1 As soon as possible after the delivery of the Equipment, software or the rendering of Services, the Purchaser shall perform a visual and quantitative check of the Equipment, Software and Services on delivery and shall notify Alpha Innovations in writing of any apparent defect, omission or damage, describing the non conformity in reasonable detail. If such notice is not given within ten (10) working days following the receipt of the Equipment, software or the rendering of Services, the Equipment, Software and Services shall be deemed accepted and in conformity with the packing list and free from apparent defects.
4.2 Acceptance as aforesaid shall constitute acknowledgment of full performance by Alpha Innovations of all its obligations hereunder.

5. WARRANTY

5.1 The defects in materials and workmanship under normal use and service are guaranteed for a period of twenty four (24) months after FCA-delivery, where the Equipment is sold without installation or after the date of commissioning if included in the contract, subject to the following: (i) the said warranty shall not extend to any damage arising in consequence of negligence or improper manipulation of or repair to the Equipment by the Purchaser or a third party, nor to consumable parts of the Equipment and (ii) the Purchaser shall have notified Alpha Innovations of the defects in writing within ten (10) working days after the defects are discovered.
5.2 Alpha Innovations reserves the right to supply replacement parts which will give equivalent system performance without being identical to the parts replaced.
5.3 Alpha Innovations’ warranty is strictly limited to the repair or replacement of defective parts and shall in no event exceed in the aggregate the total purchase price received by Alpha Innovations for the Equipment.
5.4 Limitations
5.4.1 The fulfilment of the obligations set out in this Clause 5 shall satisfy in full Alpha Innovations’ liability for defects with regard to the Equipment and the Software and the Purchaser shall hold harmless and/or indemnify Alpha Innovations from any claim by third parties in this respect. Alpha Innovations shall in no event be liable to Purchaser or any other person or entity, whether in contract, strict liability, tort or otherwise, for special, indirect or consequential damages of any kind whatsoever, or claims by any third parties. The above warranties do not extend to any warranty of merchantability or fitness for a particular purpose. All other warranties, express or implied are excluded.
5.4.2 Alpha Innovations’ obligations and warranties hereunder are subject to the Purchaser carrying out the recommended operation and maintenance of the Equipment by adequate and competent personnel and handling any problems that can reasonably be handled by it without expert assistance from Alpha Innovations.
5.5 Maintenance
In the event the Purchaser wishes Alpha Innovations to provide maintenance and support services during or after the expiry of the above mentioned warranties, the Parties will enter into a separate annual maintenance and support contract on terms and conditions to be agreed.

6. ORDER CANCELLATION AND ORDER MODIFICATION

6.1 Order Cancellation
Order cancellation is in no way accepted. In case Purchaser cancels the initial order after receiving the order confirmation from Alpha Innovations, the Contract will be considered as terminated and indemnities as outlined in 7.2.2 will come into force.
6.2 Order Modification
6.2.1 In the event that Purchaser wants to change the order after order confirmation from Alpha Innovations, Alpha Innovations will evaluate the impact on parts and material ordered, cost of work in progress and where applicable additional R&D costs. Changes to the specifications of the initial order will be subject to a new offer.
(Rev 16/04/2018)

7. COMING INTO FORCE AND TERMINATION

7.1 No contract shall come into force and no time periods for delivery shall be binding until:

• the order confirmation is given by Alpha Innovations , and , if necessary, until:
• the down payment is received;
• the receipt by Alpha Innovations of all approvals and/or licenses by relevant governmental and/or financial bodies;
• any other condition precedent set out in the Contract is fulfilled.

7.2 Termination
7.2.1 Either party may terminate the Contract if the other party becomes insolvent or files or suffers the filling of a petition in bankruptcy, or is the subject of a compulsory order for administration or winding up by a court and such petition or order is not contested in good faith, rejected or withdrawn within thirty (30) days from the date it was made.
7.2.2 In all the cases of termination, the parties shall agree the sums which are to remain vested in Alpha Innovations or which are further to be paid to Alpha Innovations on the basis of the degree of progress in the performance of the Services or of the delivered Equipment or Software. These sums will include parts and materials ordered and all costs of work in progress. On top of these sums, a lump sum indemnity of 20% of the part up to 125.000 EUR and of 5% of the part exceeding this amount, shall automatically and immediately be due, without prejudice to the right of Alpha Innovations to any additional costs incurred as a result of the termination

8. LIABILITY

8.1 Notwithstanding any other provision to the contrary, Alpha Innovations, its agents and sub-contractors shall not be liable for any consequential or indirect damages, loss of profit, loss resulting from business disruption or penalties imposed by third parties (even if foreseeable or specifically notified to Alpha Innovations), whether such liability is based on any breach of the obligations of Alpha Innovations under the Contract, or any negligent act or omission of Alpha Innovations, its agents or sub-contractors.
8.2 Where Alpha Innovations’ equipment is equipped with a port allowing remote downloads of software and settings, any fault due to the goods /services provided by Alpha Innovations that can be resolved using this link must be facilitated by the Purchaser, failure to do so removes any liability of Alpha Innovations.
8.3 Alpha Innovations shall not be held responsible for any disruptions whatsoever due to the telecommunication links.
8.4 Alpha Innovations’ total cumulative liability under the Contract for damages or alleged damages whether in contract (including non-compliance or breach of its contractual obligations) or tort (including strict liability and negligence) or otherwise shall not exceed in the aggregate ten percent (10%) of the price of the Contract.

9. OTHER PROVISIONS

9.1 Documentation Documentation shall be provided in English, as described in the Offer.
9.2 Purchaser’s Support In order to permit Alpha Innovations to meet its obligations with respect to installation, technical support and maintenance, the Purchaser shall ensure that Alpha Innovations shall be (i) provided with full access to all relevant sites, delivered Equipment and Software, spare parts, testing equipment, software and system documentation and records and (ii) informed in due time of all system or interface modifications which could have a material impact on the Services to be rendered by Alpha Innovations.
9.3 Ownership and Right to Use
9.3.1 Software
Alpha Innovations shall grant the Purchaser a non-exclusive, non-transferable right to use delivered Software solely for use on or in conjunction with the Equipment supplied by Alpha Innovations and for the number of users and/or quantities indicated in the Contract, provided that the Purchaser shall not, without the prior written authorization of Alpha Innovations (i) make permanent copies, translations or adaptations of the Software, (ii) modify the Software in any way, (iii) de-compile the Software, (iv) sell or distribute the Software. Legal ownership of the Software shall remain with Alpha Innovations or its licensor(s). All Software will be provided in machine-readable form (object code).
9.3.2 Know-how and other Intellectual Property Rights
Alpha Innovations shall retain ownership of all descriptions, plans, designs and other documents as well as all methods, patents, know-how and tools (including software tools) which
a) are proprietary to Alpha Innovations,
b) have been used by Alpha Innovations to develop and provide the Equipment or to perform the Services
c) which Alpha Innovations may have included in such Equipment or Software.
9.3.3 Inventions
Should any invention be made by Alpha Innovations in connection with the performance of the Contract, Alpha Innovations alone shall be entitled to file any patent application or utility models on such invention in its name, at its expenses and in all countries.
9.3.4 License to Alpha Innovations
The Purchaser shall grant to Alpha Innovations a non-exclusive, non transferable and free of charge right to use all information (such as interface information) under any of its intellectual property rights such as but not limited to patents, inventions, copyrights provided by the Purchaser to Alpha Innovations solely for the purposes of Alpha Innovations performing its obligations, provided that Alpha Innovations shall ensure that its employees and third parties having a need to know shall maintain the confidentiality of these information and data.
9.4 Infringement Claims
Alpha Innovations shall hold harmless and defend the Purchaser against any claims for infringement of any third party industrial or intellectual property rights, provided that
– the Equipment and Software have been used in conformity with the technical specifications attached to the Contract,
– the Equipment and Software has not been modified without Alpha Innovations’ prior written consent and
– the Purchaser has given Alpha Innovations the earliest possible notice of claims made or actions threatened or brought against it and has communicated to Alpha Innovations all relevant documents and information in its possession.
In the event that the Purchaser receives a Court injunction that the Equipment or Software supplied by Alpha Innovations infringes the patent or other intellectual property rights of a third party, Alpha Innovations shall at its own expense and option:
(a) procure for the Purchaser the right to use the said Equipment or Software supplied by Alpha Innovations, or
(b) change such Equipment or Software in a way that it is not infringing, or
(c) if neither of the foregoing is available on reasonable terms and conditions, Alpha Innovations shall take back the infringing part of the supplied Equipment or Software and refund the purchase price which has been paid in respect thereof, less a depreciation based on five (5) years straight line depreciation.
This article sets forth Alpha Innovations’ entire liability and Purchaser’s entire remedies with respect to infringement of intellectual property rights of any kind of a third Party arising out of the Equipment, Software and/or Services, and/or the possession and/or use thereof.
9.5 Force majeure
Alpha Innovations shall have no liability for any failure to perform, or the delay in the performance of its obligations due to an impediment beyond his control such as but not limited to a governmental decision, war (including acts of terrorism and warlike acts, even if no formal state of war has been declared), civil or military uprising, sabotage, fire, flood, droughts, monsoon, natural calamities, epidemics, quarantine restrictions, disturbance in supplies from normally reliable sources (including, but not limited to electricity, water, fuel and the like), strike and lockout. If the delay resulting from force majeure exceeds three (3) months, either Party may cancel the unperformed part with written notice. Payment shall remain due for the performed part, and the Parties shall promptly settle their accounts accordingly.
9.6 Changes in Specifications
Alpha Innovations is committed to continuous development and evolution of its products and may modify the specifications of the Equipment or Software without prior notice, provided that agreed performance specifications and interface conditions are respected.
9.7 Interpretation
If one or more of the provisions hereof are determined to be legally invalid or ineffective, these conditions shall be reinterpreted as a whole and amended in order to reinstate its essential objectives and balance.
9.8 Applicable Law
The Contract shall be governed by and construed in accordance with the substantive laws of Belgium unless otherwise agreed by the Parties. The Convention of The Hague regarding the Unification of Law governing the International Sale of Goods (1964) and the Convention of Vienna regarding the International Sales Contracts of Goods (1980) shall not apply.
9.9 Subcontracting
Alpha Innovations reserves the right, upon simple notification to the Purchaser, to assign the Contract, in whole or in part, to an Affiliated Company for any purpose Alpha Innovations may deem fit and/or to a third party. Alpha Innovations may sub-contract all or part of its right and obligations hereunder to its Affiliated Companies. Affiliated Companies means the companies directly or indirectly under the same ultimate control, and any company holding a controlling interest at any time during the term of the Contract by owing a majority of voting stock or by exercising control otherwise than through shareholding in the said controlled companies.
9.10 Arbitration
9.10.1 Any disagreement or dispute which may arise in connection with the present Contract and which the Purchaser and Alpha Innovations are unable to settle by mutual agreement, will be finally settled under the rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with said rules. All proceedings will take place in English.
9.10.2 Notwithstanding the foregoing, either party shall have the right at any time to apply to any court of competent jurisdiction for injunctive relief to protect its confidential information and intellectual property rights and the subject matter of any such application shall be excluded from the scope of any arbitration hereunder.

These contractual conditions of offer supersed all prior written and oral agreements and understandings between Alpha Innovations and the purchaser. No addition to or waiver, modification, termination or cancellation of any provision hereof shall be binding upon Alpha Innovations unless in writing and signed by a duly authorised representative of Alpha Innovations.