General Service Conditions

1. SCOPE

These are the terms and conditions for Service and Support of Digonaut BV, a company under Belgian law, with its registered office at Sparrenhofstraat 18, 9100 Sint-Niklaas, with VAT number BE0778867834 (hereinafter referred to as Digonaut).

Digonaut provides services with or without a service level agreement (SLA or NON-SLA).

For the terms and conditions for the sale of equipment, software, spare parts and accessories, we refer to the document “Terms and Conditions for Equipment, Software, Spare Parts and Accessories”, which can be found on our website.

1.1 NON-SLA services

The NON-SLA services are ordered by the Customer on an ad hoc basis and may include:

Corrective maintenance services on the Equipment;
Preventive maintenance services in order to keep the Equipment operating in accordance with the manufacturer’s specifications;
Support Days on an ad hoc or on-call basis, being additional support services provided by Digonaut for specific tasks.

Preventive Maintenance will be carried out according to the manufacturer’s recommended schedule. Preventive Maintenance generally includes checking mechanical and electrical safety, lubrication, functional testing, and adjustment for optimum performance as specified in the detailed Preventive Maintenance work plan.

In the case of Preventive Maintenance, Digonaut may inspect the Equipment to determine whether the Equipment is in good operating condition prior to the commencement of services.

Corrective and Preventive Maintenance may be carried out only after inspection prior to the commencement of services. Any inspection, as well as any repairs or adjustments deemed necessary by Digonaut during such inspection, shall be performed at Digonaut’s per-call rates and terms then in effect and shall include charges for parts, with all such repairs or adjustments to be completed prior to the commencement of service.

The Support Days on an ad hoc or on-call basis may consist of a variety of support services for specific tasks such as support activities for Performance Qualification, training and coaching of users, relocation, retesting, and requalification of existing Digonaut systems.

1.2 SLA SERVICES

The SLA services are part of an agreement during which, for a specified predetermined period of time, i.e. the principal coverage period (“PCP”), the Customer can request one or more services:

Hardware maintenance: Preventive Maintenance services in order to keep the Equipment operating in accordance with the manufacturer’s specifications;
Software maintenance: maintenance and updates for operating system software;
Support Days on a fixed number of days per year basis: additional support services provided by Digonaut under an SLA.

An SLA shall be in effect during the PCP. The PCP is defined in the Task Order / Statement of Work. The PCP excludes public holidays such as New Year’s Day, National Holiday, Christmas Day, and similar holidays. If one of the foregoing holidays falls on a Saturday, then the holiday will be observed on the previous Friday, and if the holiday falls on a Sunday, the holiday will be observed on the following Monday.

Unless an extended-hours coverage option has been selected, labor and travel required outside the PCP will be considered NON-SLA and charged at Digonaut’s per-call rates and terms then in effect.

In the case of an SLA, the applicable services and the Equipment to which it applies are determined in the Task Order (TO) / Statement of Work (SoW).

Nothing in the SLA (TO/SoW) shall in any way grant to the Customer any right to or license in any diagnostic service software used by Digonaut in servicing the Equipment. Such service software is and remains the property of Digonaut and is made available to the Customer pursuant to the terms and conditions of a separate diagnostic materials license agreement, which may require payment of a license fee. This service software shall be disabled by Digonaut upon cancellation or termination of the SLA (TO/SoW).

1.2.1 Preventive Maintenance (PM)

In the event that:

the term of the SLA (TO/SoW) does not include the Equipment warranty period; or
the term of the SLA (TO/SoW) does not commence immediately upon the expiration of the Digonaut warranty; or
the Equipment was serviced prior to commencement of the term by anyone other than Digonaut or an authorized Digonaut dealer or service provider; or
the Equipment was moved from its original location or is not connected to its original power supply, other than portable or mobile Equipment,

then the Equipment shall be subject to inspection by Digonaut to determine whether it is in good operating condition prior to the commencement of services. Any inspection, as well as any repairs or adjustments deemed necessary by Digonaut during such inspection, shall be performed at Digonaut’s per-call rates and terms then in effect and shall include charges for parts, with all such repairs or adjustments to be completed prior to the commencement of service under the SLA (TO/SoW).

1.2.2 Software Maintenance

Whenever the Equipment covered by the SLA (TO/SoW) uses Digonaut’s operating system software, Icarus, Digonaut will provide all maintenance and updates for such operating system software as part of the SLA (TO/SoW).

Such updates shall solely enhance previously purchased capacities of the Equipment. Operating system software upgrades that provide new features or capabilities or that require hardware changes shall be offered to the Customer at purchase prices established by Digonaut. In addition, some upgrades may require application training performed by Digonaut personnel, which shall be offered at Digonaut’s rates and terms then in effect. Digonaut retains the sole right to determine whether an upgrade requires such training.

1.2.3 Support Days – fixed days per year

The Support Days on a fixed days per year basis consist of a variety of specialized support services by having a Digonaut engineer or expert on site during a predefined PCP period.

2. GENERAL PROVISIONS

These Terms and Conditions shall govern all legal relationships concerning Service and Support between Digonaut and the Customer.

Proposals by Digonaut shall not constitute a commitment. Statements made by representatives and the orders that are placed shall be valid only if accepted and confirmed by Digonaut in writing.

Changes and/or additions to orders or maintenance contracts shall bind Digonaut only after and to the extent accepted and confirmed by Digonaut in writing.

If these Terms and Conditions conflict with those of the Customer, the conditions of Digonaut shall take precedence.

If any provision of these Terms and Conditions is held to be null and void either in full or in part, this shall not affect the validity of the other provisions of the Terms and Conditions. The provisions contained in the Terms and Conditions shall be interpreted in a way that makes them valid and enforceable under the applicable law.

Derogations from these Terms and Conditions by Digonaut in favor of the Customer shall never entitle the latter to seek subsequent recourse to such derogations or to invoke their application.

If Digonaut derogates from certain clauses or sub-clauses of these Terms and Conditions, the other clauses and sub-clauses shall remain fully in force. The rights of Digonaut shall not be impaired by any omission on its part to require strict compliance with the Terms and Conditions.

Any waiver of a right or an entitlement under these Terms and Conditions, or concerning a failure by the other party, may occur only by means of explicit written communication. The waiver of a right or an entitlement shall never be interpreted as a waiver of any other right, even if the two cases exhibit great similarity.

The SLA (TO/SoW), including all exhibits and addenda attached thereto, constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior and contemporaneous oral or written representations or communications between the parties. The SLA (TO/SoW) may not be modified or amended except in writing executed by the appropriate designated officers of the parties.

Any variation in the terms and conditions contained in the SLA (TO/SoW), including but not limited to the inclusion of the Customer’s own terms and conditions in any purchase order or other document issued by the Customer in response to and/or referencing Digonaut’s quotation for NON-SLA or SLA services, shall not be deemed part of the SLA (TO/SoW) and shall not be binding upon Digonaut unless set forth in writing and executed by the appropriate designated officer of Digonaut. Subject to the limitations expressed herein, the SLA (TO/SoW) shall be binding upon and inure to the benefit of the parties, their successors, legal representatives, and permitted assigns.

3. EQUIPMENT; LOCATION; REMOTE ACCESS

Digonaut service personnel shall be given full and free access to the Equipment in order to perform inspections and service, maintenance, or support on the Customer’s premises, and shall make specific appointments for such maintenance or support. If the Equipment is not made available at the appointed time, waiting time beyond a reasonable allowance shall be charged at Digonaut’s per-call rates and terms then in effect.

The Customer shall provide Digonaut with both on-site and remote access to the Equipment. The remote access shall be provided through the Customer’s network as reasonably necessary for Digonaut to provide services. Remote access shall be established through a broadband internet-based connection to a Customer-owned secure endpoint. The method of connection shall be a Digonaut-provided tool with state-of-the-art data communications encryption.

3.1 Additional provisions in case of an SLA

The Equipment covered under the SLA is limited to the Digonaut-furnished Equipment described in the TO/SoW. The Equipment shall not be moved to another location unless the Customer obtains the prior written consent of Digonaut, subject to the following exceptions:

Portable Equipment (e.g. routine microscopes, but not including any equipment housed in a mobile vehicle, van, or trailer) may be moved to other locations within the same facility, provided that the Customer informs Digonaut of the location of the Equipment when Digonaut is scheduled to provide on-site service.
If Equipment is located in a trailer, van, or other form of mobile vehicle, the Equipment may be moved from the Equipment Location defined in the SLA (TO/SoW), provided, however, that Digonaut shall not be required to service such Equipment, and the Response Time and Uptime Performance Guarantees (if any) shall not apply, if either:
- the Customer does not notify Digonaut at least one (1) month in advance of the Equipment’s mobile route; or
- the Equipment is moved more than 25 miles from the original Equipment Location.
If fixed Equipment is moved to any other location within the Customer’s facility, then either:
- the Customer shall engage Digonaut to relocate the Equipment, at Digonaut’s then-current rates and charges; or
- if Digonaut does not perform the services necessary to relocate the Equipment, Digonaut may suspend services with respect to such Equipment until Digonaut performs an inspection of the Equipment, at the Customer’s cost, to determine whether any repairs are required as a result of such relocation, in which case the Customer shall be separately charged for such repairs, including parts and labor, at Digonaut’s rates and charges then in effect.

In the event the Customer fails to provide or maintain the remote access connection, any Uptime Performance Guarantee shall be void if the remote access connection is not provided and available 24 hours per day, 7 days a week.

4. PAYMENT CONDITIONS

Digonaut shall send invoices by regular mail, postage prepaid, to the address of the Customer.

Stated prices shall be net prices. All expenses, taxes, and costs additional to or resulting from the sale shall be payable entirely by the Customer.

Invoices shall be payable on receipt and within NET 45 days of the invoice date by transfer to one of the bank accounts of Digonaut without any discount, reduction, lien, or set-off. Payments shall be deemed to have been made in Belgium.

Any amounts not received by the due date shall automatically incur 8% interest without prior reminder. Additionally, the amount owed shall be increased by a fixed penalty equal to 10% of the outstanding amount, subject to a minimum of EUR 40 for administrative and other costs.

Non-payment by the due date shall automatically invalidate any permitted payment terms without prior reminder and shall render amounts owed to Digonaut immediately payable on demand. In such cases Digonaut may cancel all outstanding orders without prejudice to any of its rights or receivables.

Prices stated in offers and/or order confirmations shall be valid for 30 days, unless expressly otherwise stated or unless the prices of suppliers of Digonaut are increased.

If payment is not made in material breach of the agreed payment conditions and if the Customer is bankrupt or insolvent, Digonaut shall have the right, where applicable and acting fairly and reasonably, to repossess the delivered goods or to retain repaired goods until the date of full payment.

4.1 Payment Terms

Orders for the purchase of services totaling less than EUR 1,000 (exclusive of VAT) shall be subject to an administrative and postage charge covering the sending costs and administrative handling.

Unless otherwise specified, for services provided by Digonaut under NON-SLA terms, all payments shall be made after performance of the services.

Unless otherwise specified, for services provided by Digonaut under the SLA (TO/SoW), all payments shall be made in advance based on the payment frequency defined in the SLA (TO/SoW).

5. ACCEPTANCE AND COMPLAINTS

All complaints concerning the services shall be made known in writing, accurately describing the complaints, and must be sent within fifteen (15) calendar days after the performance of the service. The date of posting (postmark) shall be the date of dispatch. After expiry of this term, the service shall irrefutably be deemed accepted.

Complaints concerning invoices shall be made known in the same way and within the same period of time, in the absence of which the invoice shall irrefutably be deemed accepted.

6. SPARE PARTS AND WARRANTY

Digonaut will supply the necessary parts provided that the parts are available from the factory. All replaced parts will be noted on the technician’s work order.

All parts shall be new standard parts, or used, reworked, or refurbished parts that comply with applicable performance and reliability specifications. Exchange parts removed from the Equipment shall become the property of Digonaut, unless such exchange parts constitute “hazardous wastes,” “hazardous substances,” “special wastes,” or other similar materials, as such terms are defined by any applicable laws, rules, or regulations, in which case, at the option of Digonaut, the exchange parts shall remain the property of the Customer and shall be disposed of by the Customer in strict compliance with all applicable laws, rules, and regulations.

6.1 Warranty

6.1.1 Limitations

The warranty shall not cover Defects that result from normal wear and tear or from inappropriate use, nor Defects that occur after the spare parts have been altered or repaired by persons other than engineers and approved agents of Digonaut.

The warranty shall cover only spare parts manufactured by Digonaut (i.e. Digonaut warranty). Other spare parts shall be covered only by the warranties of the manufacturers concerned in accordance with their own provisions (i.e. third-party warranty).

6.1.2 Scope of warranty

The spare parts shall be warranted against all defects in material or manufacturing (“Defects”), except for consumables. All Defects reported during the warranty period shall be rectified by Digonaut free of charge either by repairing the spare parts or by replacing them with spare parts that are not defective. The Digonaut warranty period shall be suspended for the duration of the repair or replacement and shall recommence thereafter.

6.1.3 Warranty period

Unless otherwise specified, the Digonaut warranty period for spare parts shall be 6 calendar months. The warranty period shall start on the day of delivery of the spare parts.

6.1.4 Complaints

The warranty shall be invoked by sending Digonaut a motivated written protest, including by email if applicable, immediately after the defect occurs.

6.1.5 Computer programs

Computer programs shall be warranted against all Defects that do not significantly prevent their use. Moreover, computer programs shall be warranted for their compliance with the program descriptions made available to the Customer. However, this shall apply only insofar as they were installed in accordance with the instructions given by Digonaut.

Digonaut cannot warrant that the computer programs will work in all combinations chosen by the Customer if those combinations are not included in the descriptions. If a Defect comes to light in the computer programs, Digonaut shall inform the Customer of ways of rectifying the problem or shall carry out a repair or install an equivalent version. Digonaut shall not accept any kind of liability and shall not provide any kind of warranty for programs, interfaces, and similar software originating from other manufacturers. Digonaut cannot be held responsible for the loss of data due to a repair.

6.1.6 Refurbished, demonstration, and second-hand equipment

Unless otherwise agreed in writing, no warranty shall be given on deliveries of refurbished, demonstration, or second-hand equipment.

6.2 Additional provisions in case of an SLA

Digonaut will supply the necessary parts, except as indicated in the SLA (TO/SoW), provided replacement of the parts is required because of normal wear and tear or is otherwise deemed necessary by Digonaut. All replaced parts will be noted on the technician’s work order and submitted for approval, and a separate invoice for the parts will be presented to the Customer where applicable.

7. SLA-SPECIFIC PROVISIONS

7.1 Causes for Exclusion / Separate Charges

The SLA (TO/SoW) specifically excludes labor, parts, and expenses necessary to repair Equipment:

damaged by fire, accident, misuse, abuse, negligence, improper application or alteration, or by a force majeure event as described in Section 10 “FORCE MAJEURE”, or by the Customer’s failure to operate the Equipment in accordance with the manufacturer’s instructions or to maintain the recommended operating environment and line conditions;
defective due to unauthorized attempts to repair, relocate, maintain, service, add to, or modify the Equipment by the Customer or any third party, or due to the attachment and/or use of non-Digonaut supplied parts, equipment, or software without Digonaut’s prior written approval;
defective due to any repair or service of the Equipment by the Customer or any third party prior to the commencement of the term of the SLA (TO/SoW);
which failed due to causes originating in non-Digonaut supplied equipment, parts, or software, including but not limited to problems with the Customer’s network;
which is worn out and cannot be reasonably repaired due to the unavailability of spare parts from the original equipment manufacturer; or
which is, for example, a handpiece and which is damaged, defective, or failed due to any of the foregoing causes or due to improper cleaning or disinfecting.

If Digonaut is called upon to service or repair Equipment that falls under this Section, a separate invoice will be issued for labor, parts, and expenses at Digonaut’s rates and terms then in effect.

The SLA (TO/SoW) does not entitle the Customer to services related to information technology, imaging workflow design and analysis, or problem diagnosis unless otherwise agreed upon between the parties. Digonaut’s responsibility under the SLA (TO/SoW) does not extend beyond the outbound or inbound sockets of the Equipment.

In addition, changes, adjustments, additions, or repairs required to or with respect to the Equipment resulting from issues, matters, items, or concerns that are the responsibility of the Customer, such as changes related to the Customer’s network infrastructure, are not covered by the SLA (TO/SoW). This may include, but is not limited to, network IP address changes. Although the Equipment may have limited short-term storage capacity, the storage of data is the responsibility of the Customer.

7.2 Notices

Except for the issuance of invoices as set forth in Section 4 “PAYMENT CONDITIONS”, all notices required to be provided hereunder shall be in writing and shall be sent by overnight delivery via a nationally recognized delivery service or by certified or registered mail, postage prepaid, to Digonaut at the address set forth on the first page of the SLA (TO/SoW) and to the Customer at the address stated in the SLA (TO/SoW).

Notice given in compliance with this Section shall be sufficient for all purposes under the SLA (TO/SoW), and such notice shall be effective when sent. Either party may change its notice address only if notification is sent in writing pursuant to this Section.

7.3 Governing Law

Any dispute, controversy, or claim arising out of or relating to the SLA (TO/SoW), including its conclusion, interpretation, performance, breach, termination, or invalidity, shall be finally settled under the laws of Belgium by the commercial state courts of Oost-Vlaanderen, section Dendermonde. The language of the procedure shall be Dutch.

7.4 Damages, Costs, and Fees

In the event that any dispute or difference is brought arising from or relating to the SLA (TO/SoW) or the breach, termination, or validity thereof, the prevailing party shall not be entitled to recover from the other party punitive damages. The prevailing party shall be entitled to recover from the other party all reasonable attorney’s fees and collection agency fees incurred, together with such other expenses, costs, and disbursements as may be allowed by law.

7.5 Severability; Headings

No provision of the SLA (TO/SoW) or of these Terms and Conditions which may be deemed invalid, illegal, or unenforceable shall in any way invalidate any other portion or provision of the SLA (TO/SoW) or these Terms and Conditions. Paragraph headings are for convenience only and shall have no substantive effect.

7.6 Waiver

No failure, and no delay in exercising, on the part of any party, any right under the SLA (TO/SoW) shall operate as a waiver thereof, nor shall any single or partial exercise of any right preclude the further exercise of any other right.

7.7 Confidentiality

Digonaut and the Customer shall maintain the confidentiality of any information provided or disclosed to the other party, its employees, or agents (a “receiving party”) relating to the business or customers of the disclosing party, including but not limited to know-how, technical data, processes, software, techniques, developments, inventions, research products, and plans for future developments, proprietary matters of a business or technical nature, as well as the SLA (TO/SoW) and its terms, including pricing and other financial terms under which the Customer obtains the services hereunder.

Confidential Information shall also include all written materials, including correspondence, memoranda, manuals, training materials, notes, and notebooks, and all computer software, models, mechanisms, devices, drawings, or plans that may be disclosed or made available embodying Confidential Information.

All Confidential Information shall be and remain the sole and exclusive property of the disclosing party. Each party shall use reasonable care to protect the confidentiality of the information disclosed, but no less than the degree of care it would use to protect its own confidential information, and shall disclose the other party’s Confidential Information only to its employees and agents having a need to know such information.

Confidential Information shall not include any information or data which:

is or becomes public knowledge through no fault of the receiving party or any of its employees or agents;
is made available to the receiving party by an independent third party without any obligation of confidentiality;
is already in the receiving party’s possession at the time of receipt from the disclosing party, as such prior possession can be properly demonstrated; or
is required by law to be disclosed, provided that the receiving party gives the disclosing party advance notice of the disclosure requirement so that the disclosing party can take whatever action it deems necessary to protect the disclosure of its Confidential Information.

This confidentiality provision shall not apply to any action brought by either party to enforce the terms of the SLA (TO/SoW) against the other party.

Any unauthorized use, disclosure, or misappropriation of any Confidential Information by the receiving party in violation of the foregoing may result in irreparable and continuing damage to the disclosing party. In the event of such breach, the disclosing party shall be entitled to obtain immediate injunctive relief and any other relief or remedies to which it may be entitled. The receiving party waives any requirement that the disclosing party post a bond or other security in connection with any petition filed by the disclosing party for injunctive relief. In the event that a court of competent jurisdiction determines that the receiving party has breached this provision, then the receiving party shall reimburse the disclosing party for the costs of any court proceedings and all reasonable attorney’s fees.

7.8 End of Guaranteed Support Announcement

Notwithstanding anything to the contrary contained herein, in the event that Digonaut makes a general announcement that it will no longer offer an SLA for an item of Equipment or components thereof, or provide a particular SLA option or feature, whether due to the unavailability of spare parts or otherwise (an “EOS Announcement”), then upon not less than twelve (12) months’ prior written notice to the Customer, Digonaut may, at its option:

cancel the SLA (TO/SoW); or
remove any affected Equipment, components, options, or features from coverage under the SLA (TO/SoW), with, if applicable, a corresponding adjustment of the Annual Agreement Price.

At the end of this twelve (12) month period and at the request of the Customer, Digonaut will use commercially reasonable efforts to provide service or parts on a time-and-materials basis only, at Digonaut’s rates and terms then in effect, for any Equipment, components, options, or features subject to an EOS Announcement.

7.9 Removal of Equipment from Coverage

The Customer may remove Equipment from coverage under the SLA (TO/SoW) at any time upon not less than thirty (30) days’ prior written notice to Digonaut if the use of the Equipment is permanently discontinued and the Equipment is removed from service. There is no fee for this cancellation. If applicable, a prorated credit shall be issued for any advance payments made by the Customer for the period after the effective date of removal, based on the notice requirement.

In addition, if the Customer sells or otherwise transfers any of the Equipment to a third party and the Equipment remains installed and in use at the same location, but such third party does not assume the obligations of the Customer under the SLA (TO/SoW) or enter into a new SLA (TO/SoW) with Digonaut for a term at least equal to the unexpired term of the SLA (TO/SoW), then the Customer may terminate the SLA (TO/SoW) with respect to such Equipment upon not less than thirty (30) days’ prior written notice to Digonaut, in which case the Customer shall pay to Digonaut:

all amounts due under the SLA (TO/SoW) through the effective date of termination, based on the notice requirement; and
as liquidated damages and not as a penalty, an amount equal to 25% of the remaining payments due under the SLA (TO/SoW) for such Equipment from the date of termination through the scheduled expiration of the term of the SLA (TO/SoW).

7.10 Non-Assignment

The Customer may not assign the SLA (TO/SoW) unless it obtains the prior written consent of Digonaut, which consent shall not be unreasonably withheld or delayed. Digonaut may not assign the SLA (TO/SoW) unless it obtains the prior written consent of the Customer, which consent shall not be unreasonably withheld or delayed, except that Digonaut may assign without Customer approval to any subsidiary or affiliated company or any of its authorized dealers.

7.11 Reimbursement for Training Courses upon Early Termination

If the SLA (TO/SoW) includes any training courses and the SLA (TO/SoW) is terminated or Equipment is removed from coverage as provided herein prior to the expiration of the term, then Digonaut may bill the Customer for any balance due and owing with respect to those training courses that have been completed by the Customer, and the Customer agrees to pay the same.

7.12 Execution; Counterparts

If the Customer is a corporation or partnership, the person signing the SLA (TO/SoW) on its behalf certifies that such person is an officer or partner thereof, that their action was duly authorized by appropriate corporate or partnership action, that such action does not conflict with the corporate charter or bylaws or the partnership agreement, as the case may be, or any contractual provision binding on such corporation or partnership, and that no consent of any shareholders is required.

The SLA (TO/SoW) may be executed in two (2) or more counterparts, each of which shall constitute an original document, but all of which together shall constitute one and the same agreement.

8. RIGHTS ATTACHED TO COMPUTER PROGRAMS

Digonaut shall grant the Customer a non-exclusive right to use the programs, additions to programs, and accompanying documentation.

The Customer shall use the programs only for the equipment specified in the TO/SoW.

The granted rights may not be assigned to third parties without the prior written consent of Digonaut. Moreover, the Customer shall refrain from copying any part of the programs, additions to programs, and accompanying documentation, from making copies of copies, from reproducing them, and from allowing their inspection by third parties.

9. THIRD-PARTY LIABILITY AND COMPENSATION FOR DAMAGE

Except for the liability provided for under these Terms and Conditions, and subject to the application of mandatory or public order laws, the Customer shall not be entitled to claim any compensation from Digonaut.

Unless otherwise stipulated in these Terms and Conditions, the liability of Digonaut shall be limited in all instances to the invoiced amount.

Digonaut shall not be liable for losses of or changes to data as a result of program errors and shall not be under any obligation to restore lost or changed data.

Without limiting the limitation of liability set forth in the preceding paragraph, Digonaut expressly disclaims all warranties, express or implied, including but not limited to any implied warranties of merchantability and warranties of fitness for a particular purpose. In no event shall Digonaut be liable for any lost profits, lost savings, lost revenues, loss of use or downtime (except as otherwise provided herein), lost data, or for any indirect, incidental, unforeseen, special, punitive, or consequential damages, whether based on contract, tort (including negligence), strict liability, or any other theory or form of action, even if Digonaut has been advised of the possibility thereof, arising out of or in connection with the service contract or the use or performance of the Equipment.

9.1 Additional provisions in case of an SLA

Digonaut’s entire liability and the Customer’s exclusive remedy for any direct damages incurred by the Customer from any cause whatsoever, and regardless of the form of action, whether liability in contract or tort, arising under the SLA (TO/SoW) or related thereto, shall not exceed an amount equal to the Annual Agreement Price for the specific item of Equipment under the SLA (TO/SoW) that caused the damage or is the subject matter of, or is directly related to, the cause of action.

Such maintenance charges shall be those in effect for the specific item of Equipment when the cause of action arose. The foregoing limitation of liability shall not apply to claims by the Customer or third parties for bodily injury or damage to real property or tangible personal property caused solely and directly by the gross negligence or willful misconduct of Digonaut.

In addition, Digonaut shall have no liability hereunder to the Customer to the extent that the Customer’s or any third party’s acts or omissions contributed in any way to any loss sustained, or to the extent that the loss or damage is due to a force majeure event as described in Section 10 “FORCE MAJEURE” or any other cause beyond the reasonable control of Digonaut.

9.1.1 Additional provisions in case of Support Days

The SLA Support Days offered by Digonaut constitute an obligation of means and not an obligation of results. Therefore, Digonaut can never be held responsible for incorrect outcomes, results, or diagnoses.

10. FORCE MAJEURE

If either party is unable to meet its obligations towards the other party due to force majeure lasting more than 45 calendar days, both parties shall have the right, at their election, to suspend performance of the agreement for not more than six months, or to consider the agreement fully or partly dissolved, without owing the other party any compensation for damage, even if both parties may derive any kind of benefit from the force majeure.

For the present purposes, “force majeure” shall mean any circumstance beyond the control of the parties or any unforeseeable circumstance as a result of which the other party cannot reasonably be expected to fulfill the agreement.

Digonaut shall not be liable to the Customer for any failure to fulfill its obligations under the Service Agreement due to causes beyond its reasonable control and without its fault or negligence, including but not limited to governmental laws and regulations, acts of God or the public, war or other violence, civil commotion, blockades, embargoes, calamities, floods, fires, earthquakes, explosions, accidents, storms, strikes, lockouts, work stoppages, labor disputes, or unavailability of labor, raw materials, power, or supplies.

In addition, in the event of any determination pursuant to the provisions of a collective bargaining agreement between the Customer and any labor union representing employees of the Customer preventing or hindering the performance of any of the obligations of Digonaut under the Service Agreement, or determining that performance of any such obligations violates provisions of that collective bargaining agreement, or in the event that a trade union or unions representing employees of the Customer otherwise prevent Digonaut from performing any such obligations, then Digonaut shall be excused from the performance of such obligations unless the Customer makes all required arrangements with the trade union or unions to permit Digonaut to perform the work. The Customer shall pay any additional costs incurred by Digonaut that are related to any labor dispute involving the Customer.

11. DEFAULT – DISSOLUTION

The Customer shall be in default upon:

a failure by the Customer to make any payment due to Digonaut within ten (10) days of receipt of notice from Digonaut that the payment was not made within the applicable payment period;
a failure by the Customer to perform any other obligation under the SLA (TO/SoW) within thirty (30) days of receipt of notice from Digonaut;
a failure to grant Digonaut access to the Equipment as set forth in Section 3 “EQUIPMENT; LOCATION; REMOTE ACCESS”;
a default by the Customer or any affiliate of the Customer under any other obligation to or agreement with Digonaut or any assignee thereof, including but not limited to a promissory note, lease, rental agreement, license agreement, or purchase contract; or
the commencement of any insolvency, bankruptcy, or similar proceedings by or against the Customer, including any assignment by the Customer for the benefit of creditors.

Upon the occurrence of any event of default hereunder, Digonaut may, in addition to any and all other remedies available under law, elect to:

immediately cease providing services under the SLA (TO/SoW) and any and all other agreements between the parties, or suspend any training courses, until the default is cured or corrected;
terminate the SLA (TO/SoW), in which case the Customer shall pay to Digonaut:
- all amounts due under the SLA (TO/SoW) through the effective date of termination;
- as liquidated damages and not as a penalty, an amount equal to 25% of the remaining payments due under the SLA (TO/SoW) from the date of termination through the scheduled expiration of the term of the SLA (TO/SoW); and
- all costs and expenses of collection, including without limitation reasonable attorneys’ fees and court costs incurred by Digonaut as a result of the Customer’s default; and/or
commence collection actions, including court actions, for all sums due under the SLA (TO/SoW) or NON-SLA arrangements.

All rights and remedies available to Digonaut hereunder, by law or equity, shall be cumulative and there shall be no obligation for Digonaut to exercise any particular remedy.

In the event that the Customer cures all defaults hereunder, then prior to the resumption of services under the Service Agreement, Digonaut may inspect the Equipment to determine whether it is in good operating condition. Such inspection shall be charged to the Customer at Digonaut’s per-call rates and terms then in effect.

Any repairs or adjustments which Digonaut determines are required due to:

the use of any non-Digonaut parts;
the repair or service of the Equipment by the Customer or any third party during the suspension of services by Digonaut; or
any of the exclusions from coverage set forth herein,

shall be charged to the Customer at Digonaut’s rates and terms then in effect and shall include charges for parts, with all such repairs or adjustments to be completed prior to the resumption of service under the Service Agreement.

12. DISPOSAL OF PROFESSIONAL ELECTRICAL AND ELECTRONIC APPLIANCES

For the performance of the acceptance obligation for professional electrical and electronic appliances, Digonaut is a member of RECUPEL and pays an administrative contribution for this. The Customer shall undertake to bear any possible costs for the collection and processing of both the professional electrical and electronic appliances that form the subject of the order when these are discarded and for the discarded electrical and electronic appliances that are thereby replaced.

In order to comply with waste products legislation, the Customer may call upon an operator with whom RECUPEL has concluded a Charter (www.recupel.be). If desired, Digonaut can put the Customer in contact with an operator for a price quote.

The acceptance obligation applies only to decontaminated appliances for which the Customer is solely responsible.

13. FORUM

The commercial state courts of Oost-Vlaanderen (Belgium), section Dendermonde, shall hold exclusive jurisdiction to hear any disputes that arise from the contractual relationship with Digonaut, including disputes regarding the application or interpretation of these Terms and Conditions.

Any disputes arising from the contractual relationship with Digonaut, including disputes regarding the application or interpretation of these Terms and Conditions, shall be governed solely by the laws of Belgium.

The language of the procedure shall be Dutch.

Personal data shall be processed in accordance with privacy regulations. The personal data that we obtain about you shall primarily be used for the purposes of the legal relationship that we maintain with you, in particular with regard to the sales or maintenance agreements that you have with Digonaut.

This information may also be used:

to fulfill any service that you require;
to market Digonaut products and services and associated products and services, among other things through direct marketing, notably for personalized marketing purposes; and subsequently
to improve the way that we as a company serve you.

This information shall not be disclosed to third parties outside Digonaut, its branches or associated companies, agents, dealers, or licensees, and other enterprises with which Digonaut has agreed service provisioning on your behalf, nor to any acquirer, agent, or substitute of the parties mentioned above.

The information shall originally be processed and managed by Digonaut BV, Sparrenhofstraat 18, 9100 Sint-Niklaas, and may be forwarded to other countries, within or outside the European Union, where it may also be processed and stored. Subject to presentation of means of identification, you have the right as an individual to inquire about the information we have stored about you and to require corrections if necessary. To do this you must contact Digonaut BV, Sparrenhofstraat 18, 9100 Sint-Niklaas. Additionally, you may contact the Privacy Commission, Waterloolaan 115, 1000 Brussels.