Terms & conditions

Version March 2019

1. Preamble

The terms and conditions in this document are applicable, though subject to changes which can be made by both parties, by a written express agreement.

2. Formation of Contract

1. The contract shall be deemed effective when, after receiving an order, Powerdale has sent a written confirmation within the time limit, if any, set by the buyer.
2. If, when making a firm proposal, Powerdale sets a deadline for acceptance, the contract shall be deemed effective when the purchaser has sent a written confirmation before the expiry of that period. However, the contract is only effective if this confirmation arrives at the latest one week after the expiry of that period.
3. A change to the proposals of Powerdale shall only be made if it is confirmed in writing.

3. Audit

The buyer shall be entitled to have the quality of used materials and portions of the hardware audited and inspected by his or her authorized representatives both during manufacture and when completed. These audits and inspections are carried out on the manufacturing site during normal working hours, according to the agreement with Powerdale on the date and time. The costs of this exam, including those resulting from the intervention of an inspecting or testing authority, will be charged to the buyer.

4. Transfer of risk

1. Goods are sold FCA (Incoterms 2010) even if they are shipped prepaid.
2. Powerdale shall inform the buyer in writing of the date on which the latter must accept delivery of the material. The notice by Powerdale must be given sufficiently in advance to permit the buyer to take the typically necessary measures to this end.
3. Goods travel at the risk of the buyer.

5. Reservation of title

1. Without prejudice to the provisions of Article 4 (page 1), goods remain the property of Powerdale until full payment of the price.
2. The buyer is bound not to sell or transfer them to third parties as long as the goods remain the property of Powerdale. In the event of non-compliance with this prohibition, a fixed indemnity of 50% of the selling price shall be due from the buyer (over and above the selling price and possible interest for delay).

6. Delivery periods

1. Unless otherwise stipulated, the delivery periods shall run from the latter of the following two dates:
a. the date of formation of the contract, as defined by Article 2 (page 1)
b. the date of reception by Powerdale of the deposit, if the contract provides for one before beginning of manufacture.
2. Unless otherwise stipulated in the contract, delivery periods are given for reference only and a possible delay cannot lead to or cancellation or compensation of any kind.
3. If the buyer does not accept delivery of the goods at the time they are placed at the buyer's disposition by Powerdale, he shall nevertheless not delay any normally scheduled payments connected to delivery. Powerdale shall provide storage for the material at the buyer's risk and expense. On request of the buyer, the material will be ensured by Powerdale, but at the buyer's expense.

7. Payment

1. Payments are to be made in EUROS or in the currency stipulated in the contract, net and without discount.
2. Prices are based on the daily exchange rate of materials, salaries and social costs. Unless otherwise agreed in the contract, these prices will be reviewed under the terms and conditions in this document.
3. All current and future taxes as well as all additional costs, whatever the nature, connected to the sale are at the expense of the buyer.
4. Unless otherwise agreed, invoices are payable within a period of 30 days starting the day following:
a. reception, by the buyer, of the invoice or an equivalent request for payment, or
b. reception of goods or delivery of services, if the date of receipt of the invoice or the equivalent request for payment is not determined or if the buyer receives the invoice or equivalent request for payment before the goods or services, or
c. acceptance or verification which certify compliance of the goods or services with the contract, if the law or the contract provides for an acceptance or verification process, and if the purchaser receives the invoice or equivalent request for payment earlier than or on the date of acceptance or verification

When the buyer does not pay within the agreed payment period or, failing that, within the legal payment period, Powerdale has the right, beginning the following day, ipso jure and without prior notice, to the payment of interest on the policy rate increased by eight percent and rounded up to the next half point.

The policy rate is the interest rate applied by the European Central Bank to its main refinancing operation as defined by the law of 2 August 2002. When the buyer does not pay within the agreed payment period or, failing that, within the legal payment period, Powerdale is, furthermore, entitled, without prejudice to its right, to the reimbursement of legal costs complying with the provisions of the Judicial Code, to demand from the buyer reasonable compensation for all relevant recovery costs incurred following the delay in payment.

The stipulation of the payment of interest does not invalidate the payability of the terms of payment at the time of their maturity.

8. Financial guarantees

Should it occur, after the contract has been concluded and until full payment of the price, that the buyer's credit is questioned or while credit is deteriorating and specifically in the following cases: request for the prolongation of maturity of the notice of protest, seizure of all or part of the buyer's goods at the initiative of a creditor, delay in payment of contributions owed to NSSO, etc.; Powerdale reserves the right, even after partial dispatch of goods, to require from the purchaser the guarantees that it deems suitable for the satisfactory fulfilment of the buyer's engagement. The refusal to satisfy these guarantees gives the right to Powerdale to terminate all or part of the goods without the need for formal notice.

9. Cancellation clause

In the event of non-payment of the invoice at the due date or in the case of application of Article 8 (page 1), the agreement shall be resolved ipso jure and by the sole fact of the notification of its will by Powerdale to the buyer by registered letter and without formal notice. Powerdale shall have the right to take back the delivered goods without intervention of the courts. In addition and for damages and interest claims, a sum equal to 15% of the price with a minimum of EURO 250 shall be due.

10. Warranty

1. Powerdale warrants its equipment and software against material and manufacturing errors and defects during a period of twenty-four (24) months from the shipping date. During this period, Powerdale will proceed with the correction of any faults or will provide alternative 1 End-user license agreement solutions. However, potential issues encountered for which the cause is not attributable to Powerdale will remain at the expense of and under the responsibility of the buyer.
2. In the event of a technical problem, the buyer must, at his or her own expense, send the faulty equipment or software to the facility of Powerdale for verification. If the problem is recognised by Powerdale as being covered by the warranty, repairs will be made without additional expenses for the buyer. Return shipping charges will be at the expense of the buyer.
3. In the first six (6) months following delivery, it will be the responsibility of Powerdale to prove that the claim is not admissible. From the seventh month, it will be the responsibility of the buyer to prove the malfunction of the product or acquired service.
4. The buyer will be able, provided the payment of additional costs, to opt for on-site verification. In this case, Powerdale will send a technician to the premises of the buyer. Powerdale may, at its sole discretion, decide to repair faults or to replace the defective equipment during the warranty period.
5. Powerdale may, at its sole discretion, proceed with the warranty services in any place and may apply corrections or temporary services and/or warranty restrictions relative to the equipment or to the software.
6. The present warranty does not cover defects and damage resulting from a fault or careless handling or misuse, improper initial operation or any operation conducted by a non-qualified person who did not complete a certificate training course of Powerdale, improper storage or improper unloading, unauthorised modifications, abusive or incorrect use of the equipment or software, and improper or defective environmental conditions, or by a failure caused by a product for which Powerdale is not responsible. Powerdale does not guarantee that the equipment and software will function without fault and without interruption.
7. Warranty claims will not be admissible and Powerdale will not have the obligation to provide warranty benefits except under the condition that the buyer fully complies with his or her contractual obligations regarding Powerdale and that Powerdale has received a detailed warranty claim within ten (10) days of the date of initial detection of the defect.
8. Powerdale will not assume any other guarantee obligation than that indicated in point 10.1 (page 1).Powerdale will not be required to pay monetary damages for damages caused to goods used for business purposes or losses linked to business activities of the buyer or those for which he bears liability under Article 1384 CC.
9. Furthermore, Powerdale shall not be required to pay monetary damages for extra-contractual liabilities. With regard to physical injury and damage cause to goods used for personal practise, Powerdale shall not be required to pay monetary damages when:
a. it has not been proven that the defect existed at the time the product was put into circulation;
b. Powerdale, considering the state of science and technology was not in a position to be aware of the defect;
c. the defect is due to the design of the item in which the sold product was incorporated or while the defect is caused by the buyer's instructions;
d. the damage is resulting from an error by the buyer, the injured person or someone for which the buyer or injured person is responsible (e.g. incorrect handling, wrongful use, alterations made by the buyer or third parties, etc.);
e. the damage is the result of product compliance with binding rules issued by public authorities;
f. the damage is caused by a lack of maintenance or a servicing contrary to the operation manual or maintenance directives established by Powerdale or the manufacturer;
g. the damage is the result of an intervention of a third party non approved by Powerdale or the manufacturer.
10. The buyer will indemnify Powerdale of any actions or demands that third parties claim against it for damages listed under point 10.9 (page 2). While following the manufacturing plans established by the buyer, the responsibility of Powerdale (manufacturer) shall in any event be limited to the delivery of products following the strict guidelines of these plans.

11. Limitation of liability

1. Powerdale waives all liability for any possible damage resulting from inspection flaws or lack of maintenance, shock, humidity, corrosion, contamination, heat or resulting from the fact that the products were used for purposes other than those for which they were originally intended.
2. Powerdale will not in any instance be liable for loss of profits or halting of activities, for loss of data (including but not limited to any costs whatsoever for data recovery and restoration), loss of contracts, loss of activity, loss of goodwill, financial costs, loss of financial interest or any indirect or consequential damage, whatever the cause of action or the legal basis on which this claim is based.
3. The cumulative liability of Powerdale with respect to the scope of application of the present conditions, for both contractual and extracontractual damages, will in any case be limited to EUR 250,000 (two hundred fifty thousand euros) or to the selling price if this is lower.

12. Grounds for exemption

1. Are considered causes of exemption if they occur after the conclusion of contract and prevent performance: labour disputes and all other circumstances such as fire, mobilisation, requisition, embargoes, suspension of currency transfer, insurrection, lack of transportation, general lack of supplies, restrictions on energy use while these other circumstances are not under the control of the parties.
2. The party that cites the above-mentioned circumstances must immediately provide a written warning to the other party about their intervention as well as their termination.
3. The occurrence of one of these causes relieves both Powerdale and the buyer from liability.

13. Applicable law

The contract is governed by the belgian law unless the parties have stipulated otherwise.

In the event of any dispute, only the courts of Brussels will have jurisdiction.