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1.1 This agreement between, on the one hand, (i) BREEX Europe SA ("BREEX"), with its registered office at 9000 GENT, Moutstraat 54, with company number 0537.365.350, and, on the other hand, the Client, is 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 conditions stated on the rental agreement (hereinafter collectively referred to as the "Rental Agreement"). The Rental Agreement comes into force upon signature of the agreement by the Client and BREEX, the signature of which also constitutes acceptance of these general terms and conditions, and it cancels and replaces all written or verbal contracts, proposals and undertakings relating to the same object and which would have preceded the date of this Rental Agreement. The Rental Agreement excludes the application of the Client's own potential general and/or other terms and conditions. BREEX's commitments are obligations of means.
1.2 The services of the Rental Agreement comprise the rental of the appliances made available to the Customer by BREEX as reflected in the special terms and conditions of the Rental Agreement and the issuance certificate (hereinafter the "Rental"). The fees for the Rental consist of a monthly rental amount, hereinafter the "Rental").
1.3 The agreed rental period as stipulated in the Lease commences on the date of delivery of the appliances as further set out in Article 5.8 below. Unless otherwise stipulated, the Lease is tacitly extended by 12 months, subject to cancellation by registered letter at least 6 months before the expiry of the contractual period.
1.4 The appliances are chosen by the Customer under his sole responsibility. The Client chooses the supplier and the appliances on its own initiative and freely determines the technical characteristics, modalities and place of delivery. The Customer releases BREEX from any information obligation and confirms that he is contracting with full knowledge of the facts. Under no circumstances may the Client invoke difficulties regarding the equipment, its use or performance, or its unsuitability in relation to his needs. BREEX or its appointee, shall only be responsible for setting up, adjusting and testing the appliances and shall provide the Customer with information on putting them into service.
1.5 The Rental Agreement is always subject to the suspensive condition of a positive solvency check of the Client by BREEX. If the solvency check reveals that, in the opinion of BREEX, the Client has insufficient financial capacity to guarantee the proper execution of this Rental Agreement, BREEX shall inform the Client (for information purposes only) that the condition precedent has not been fulfilled. This condition may only be invoked by BREEX and not by the Client.
2.1 De Klant verstrekt BREEX voor de geplande levering alle nuttige en noodzakelijke informatie met betrekking tot de levering en verzekert dat de daartoe bestemde lokalen met de nodige installaties en aansluitingen voorzien zijn. Indien de levering door gebreke hieraan niet op het overeengekomen ogenblik kan plaatsvinden, zullen de kosten die hieraan verbonden zijn ten laste van de Klant komen. De toestellen worden door BREEX rechtstreeks geleverd en in ontvangst genomen door de Klant op de aangeduide plaats. De levering en installatie gebeurt op kosten en op risico van de Klant. Opgegeven leveringstermijnen zijn louter indicatief en maken in hoofde van BREEX een middelenverbintenis uit. Het in ontvangst nemen van de goederen door de Klant, impliceert de aanvaarding van de leveringstermijn, ook indien de indicatieve leveringstermijn daarbij werd overschreden.
2.2 During delivery, the Customer checks the conformity of the appliances and proceeds to all tests and checks agreed or required by the nature of the appliances. The Customer then undertakes to sign a delivery receipt at the time of provision. The Customer's signing of this document is proof that the appliance corresponds to the agreed appliance (including accessories, etc.) as stipulated in the special terms and conditions, that the appliance is in perfect condition and does not have any (visible) defects, and that all the necessary documents, instructions and equipment are present and have been supplied along with it.
2.3 Hidden defects must be reported in writing to BREEX at the latest within 24 hours of their observation and discovery, but at the latest within 12 months of delivery. In the absence of timely and written observations in accordance with the above, the goods delivered shall be deemed to have been delivered in accordance with the rules of the art, in conformity and without defects and shall be deemed to have been thus accepted by the Customer. Under no circumstances shall BREEX be bound to make any intervention or be liable in any way for any non-conformity or defects caused by the Customer himself or resulting from improper use by the Customer or non-compliance with the terms of this Rental Agreement.
2.4 BREEX reserves the right to have its obligations under the Lease Agreement performed by third parties on its behalf.
3.1 The Customer is obliged to use the appliances in accordance with the manuals accompanying the appliances and BREEX's instructions. The Client shall use the said appliances exclusively for business purposes with due diligence. The Client shall ensure that no spare parts, accessories or consumables are used other than those supplied or approved by BREEX. The spare parts and all accessories fitted become the legal property of BREEX without any compensation for the Customer. The Customer may not remove the appliances from the site, where it is installed, except with the prior written consent of BREEX. The Client shall be required to carry out at his own expense all maintenance work and repairs, if necessary in accordance with a separate maintenance agreement with BREEX. Such maintenance agreement is separate from this Lease and any negligence or non-performance of such' maintenance agreement shall have no impact on the Lease.
3.2 Insurance
A. Civil liability
The Client shall, throughout the term of the Rental and until the equipment is returned, have his civil liability arising from the use and storage of the equipment insured by an approved solvent insurance company, for any damage caused to persons or property. The insurance company shall waive any form of recourse against BREEX. The insurance contract shall also cover BREEX's liability to third parties for the rented equipment. The Client instructs his insurer and his insurance intermediary to (i) transmit to BREEX the corresponding insurance certificate annually, for the first time and no later than on the effective date of delivery of the equipment, together with the signed document of receipt of the equipment, and (ii) notify BREEX without delay of the termination, cancellation or suspension of the insurance contract as well as of any non-payment of premiums.
B. Liability for loss and damage
.The Customer shall, during the entire term of the Rental until the appliances are returned, have the rented appliances insured in favour of BREEX against damage caused by fire, by lightning, by explosion, by implosion, by the action of electricity, by water damage, by natural forces, by machine breakdown and by theft. BREEX is entitled at any time to check compliance with this obligation or to have it checked by a third party appointed by it. To this end, BREEX may communicate the necessary contact details of the Customer, the relevant information relating to the rented equipment and the anticipated duration of this Lease to the third party appointed by it, who will contact the Customer. The insured value shall at all times be sufficient to cover the total loss of the rented appliances, in accordance with the article relating to termination of the Lease (article 8) plus the residual value. The Client shall, either on his own initiative or in any event at the first request of BREEX, instruct his insurer and/or his insurance intermediary to (i) transmit to BREEX or a third party designated by BREEX the corresponding insurance agreement as well as the proofs of payment of the premiums and (ii) notify BREEX or a third party designated by BREEX without delay of the termination, cancellation or suspension of the insurance agreement as well as of any non-payment of premiums. If the necessary supporting documents are not provided in due time (30 days after the date of the letter requesting notification from BREEX or the third party appointed by it), or if the documents provided do not sufficiently prove that the equipment is insured in accordance with the present Rental Agreement, BREEX shall be entitled but not obliged to include the equipment in the insurance policy underwritten by BREEX in its own name. BREEX will charge the Client an additional amount for this. BREEX will inform the Customer in advance. This amount will be payable under the same terms and conditions as all other payments due under this Rental Agreement and will be invoiced at the same time as the periodic rental charges. The Customer always retains the option to have the appliances insured through its insurer or insurance intermediary at any time and submit proof thereof.
C. Mortgaging
In order to guarantee the proper performance of his commitments, the Customer declares that he pledges to BREEX, for the entire duration of this Lease, his claims arising from insurance policies taken out for the rented appliances. The Client undertakes not to assign or pledge the sums due or to become due to him in respect of the pledged receivables, and to ensure that they are not the subject of any assignment, set-off, attachment by third parties or opposition, and expressly waives the right to take any action which might hinder or limit the effect of this pledge. The Client hereby authorises BREEX, as the only party entitled to collect, on all due dates and at any time when the pledged receivables become due, to collect all sums relating to these receivables and to charge them to the amounts owed by the Client, and this without judicial intervention. This pledge shall be given as security for all sums which the Client owes or will owe BREEX under leasing contracts and/or renting, and/or arising from the business relationship between the Client and BREEX, up to a maximum amount equal to the number of lease instalments multiplied by the amount of the periodic rental instalment, in principal and incidentals, plus the amount of the purchase option under a leasing contract.
Any event which constitutes an insurmountable obstacle to the normal performance of the Lease or seriously impedes or complicates it shall be considered a case of force majeure, such as, inter alia (but not exhaustively): strike, government measures, (temporary) closure of the company, transport difficulties, delay or impossibility of supply and damage to - or defects in - BREEX operating assets essential to the order, delay or impossibility of supply on the part of BREEX suppliers. In the event of force majeure, BREEX shall be entitled either to suspend the execution of the Lease for a maximum period of three months, or to dissolve the Lease in whole or in part, without being liable for any compensation. Financial obligations of the Client can never be suspended or dissolved as a result of force majeure.
5.1 The Rent is payable in advance according to the modalities agreed in the Special Conditions. If the appliances have been delivered during the calendar month following the signing of the Lease, then the invoicing of the Rent will commence on the first day following the day after the last appliance has been delivered.
5.2 BREEX reserves the right to modify the Rent in the interim, no more than once a year, but no earlier than six months after the commencement of the Lease. Changes may be made, inter alia, as a result of cost increases and/or changes in the exchange rate ratio and/or price-increasing measures taken by the Belgian government.
5.3 All taxes and charges, however named, which are now, or at any time, to be levied on the amounts payable by the Customer, or on the Lease or on the appliances and/or on the use of the appliances, irrespective of whose name they are in, shall be borne by the Customer.
5.4 The Client may not invoke suspension, discount or set-off in relation to the Client's payment obligations to BREEX and expressly waives his rights under article 1184 of the Civil Code
.5.5 Payment of the Rental shall be made by debit from the bank account specified by the Customer. The Customer undertakes to provide a SEPA mandate to BREEX, at BREEX's first request.
5.6 BREEX has the right (but is not obliged) to make invoices available to the Customer electronically by e-mail or through a customer portal.
5.7 BREEX is entitled to require security for the fulfilment of the Customer's payment obligations. This security may be provided by providing, at BREEX's first request, an unconditional and irrevocable bank guarantee in favour of BREEX or by providing personal security in the form of surety or liability declarations (hereinafter collectively the "Guarantee"). In the case of a partnership, the directors shall in any case be personally and jointly and severally liable for the fulfilment of obligations by the partnership under the Agreement. The Client shall notify BREEX by return of registered letter as soon as the Client becomes aware of (the intention to) withdraw a Guarantee.
5.8 The Rental Period commences on the day of delivery of the appliances. Unless otherwise stipulated, the Rent was calculated assuming delivery of the appliances on the first day of the month. In case of delivery on another day, the rental period and rental billing 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 obliged to pay a user fee, which is definitively acquired for BREEX. This user fee is calculated on the basis of the agreed Rental Fee, 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 appliances. Subject to other provisions, this user fee is payable together with the first Rent.
5.9 Without prejudice to BREEX's other rights, in this case it is entitled to demand additional or replacement security from the Customer. The Client shall be obliged to supplement or replace such security. If a Third Party Guarantee for the Customer's obligations is or is withdrawn, BREEX shall be entitled immediately and legally, without notice of default or other formality, to dissolve the Lease and to proceed immediately to the collection of the amounts still owed by the Customer, including the compensation provided for under article 10 in the event of early termination or dissolution.
5.10 Unless stated otherwise, all invoices are payable at the address of the registered office of BREEX and, unless otherwise stipulated, are payable within 14 days of the invoice date. If payment is not made by the due date, interest on arrears of 1.5% per month shall be payable ipso jure and without notice of default, as well as fixed compensation of 10% with a minimum of EUR 65, by way of irrevocable damages and irrespective of legal costs. A reminder fee of EUR 15.00 per reminder sent will be charged in addition to the cost of registered mail. All complaints and protests must be formulated within 7 days of the invoice date.
5.11 The Client must always inform BREEX by return of any changes in the address and billing details communicated when the Lease was signed.
6.1 The Customer irrevocably grants to BREEX the right to transfer ownership of the appliances and of the Rental to a leasing company and/or a partner of BREEX (hereinafter the "Partner"). The Client hereby consents to this transfer and shall be legally bound to the Partner to fulfil the obligations under this Rental Agreement. After notification of the transfer, the Rent shall be paid only in full discharge to the Partner, who shall then assume all the rights and obligations of BREEX in respect of this Lease.
6.2 BREEX is also entitled to waive or pledge the debt arising from this Lease. If the waiver or pledge is made later than when this Lease is signed, the Client declares that he has been sufficiently informed of this waiver or pledge by simple letter from BREEX.
6.3 The Customer is not allowed to sell, pledge, transfer or encumber any rights and obligations arising from the Lease Agreement in whole or in part to third parties.
6.4 In the event of a transfer of the Lease as provided in clause 6.1, the Partner shall not indemnify the Concealed Breach. No recourse may be exercised against the Partner on account of such breach. BREEX (and not the Partner) will continue to indemnify the Customer for hidden defects on an exceptional basis, which the Customer expressly accepts, and this regardless of the transfer of the Hire to the Partner. As a result, the Client shall turn exclusively to BREEX for 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, except if it has permission to do so, is required to do so by law or if an interest so justifies. 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.
.7.1 The Client shall indemnify BREEX against all claims by third parties, including employees, for compensation for damage (partly) caused by, or in connection with, the equipment or the use of the equipment, or the materials, insofar as the damage to third parties is caused by defects in the equipment, or the materials, of which BREEX is not the supplier. The Client waives all recourse against BREEX for any damage caused by the rented equipment to his property. The Client shall indemnify BREEX against all claims by third parties, including the claims of persons whose personal data have been recorded or are processed in the context of a register of personal data kept by the Client or for which the Client is otherwise responsible, for compensation for damage (partly) caused by or in connection with the equipment or the use of the equipment or its condition.
7.2 Under no circumstances shall BREEX be held liable for any loss of enjoyment, loss of profits and/or indirect damages, and under no circumstances shall BREEX be liable for any compensation in this regard. Under no circumstances shall BREEX be liable for damage to the hardware, software and data connected to the equipment. Nor shall it be liable for damage or costs resulting from misuse of the access or identification codes. In the event of non-conformity or defects in the equipment for which BREEX is liable to intervene, BREEX's liability and intervention shall be limited exclusively to repairing or, if necessary, replacing the defective or non-conforming equipment.
7.3 The Client may not claim any suspension or cancellation of the Rental, reduction of a Rental or suspension of payment thereof, or any compensation in the event of total or partial loss of enjoyment of the equipment, for any reason whatsoever, including third-party fault or force majeure. In the event of loss oftenfrom the Leased Equipment, whatever the cause, the Client shall compensate BREEX for all damages suffered by the latter.
7.4 In the case of multiple tenants, each individual tenant is jointly and severally liable for the performance of the Lease
.8.1 The Rental Agreement may be terminated by right by BREEX by simple written notice to the Customer, without any judicial formality:
8.2
If the Customer is in suspension of payments, collective debt settlement, judicial reorganisation or bankruptcy,
in the event of the Customer's death,
In the event of a reduction or loss of the Guarantee,
in the event of an attachment or other forms of enforcement at the expense of the Customer,
If any damage, destruction or loss of the rented appliances is established,
If the Customer has provided incorrect information to BREEX and/or the Partner regarding his business or his financial situation which played a crucial role in the decision of BREEX and/or the Partner to enter into the relationship with the Customer,
In case of non-payment of invoices,
In the event of any default by the Customer under this Lease which is not remedied within a minimum period of 5 days after written notice to that effect.
8.3 If the Client should unilaterally terminate or break the Lease early and prior to the expiry of the contractual term or commit a contractual default, the Client shall owe BREEX at least liquidated damages as stipulated below. In all cases of premature termination, and without prejudice to BREEX's right to full compensation, the Client shall owe BREEX, in addition to the matured and unpaid sums, plus interest on arrears, compensation fixed at the value of the rental instalments still due, plus the residual value, plus EUR 150 + VAT handling fees and a 5% reinvestment fee, less the available balance from the sale of the equipment. The Customer expressly waives the benefit of Article 1231 of the Civil Code. This compensation does not cover the loss of value resulting from the damaged condition of the returned appliances. This loss of value must be compensated separately. Payments made by the Customer shall first be applied to the stipulated compensation and interest on arrears, then to the unpaid costs and finally to the principal sums. This settlement shall also be applied in the event of a total loss, determined and confirmed by an expert assessment.
9.1 The Customer is obliged to make the appliances available to BREEX at the end of the Rental Agreement, for whatever reason, in good and complete condition. Except for normal wear and tear, this condition shall be equivalent to the condition described in the Certificate of Delivery.
9.2 Return transport costs shall be borne by the Customer. These costs are determined on the basis of the table of transport costs per weight group in use at the time by BREEX. Unused consumables 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 Client refuses to make the appliances available to BREEX at the end of the Rental Agreement in accordance with article 9.1, a fixed compensation of EUR 100.00 per appliance per day, including part of a day, for each day that the appliance is not handed over, with a maximum of EUR 5,000.00 per appliance, will be imposed by law and without prior notice of default.
10.1 For the entire duration of the Rental Agreement, the appliances, including all accessories, remain the property of BREEX or its entitled parties.
10.2 The Customer is prohibited from (sub)hiring out the appliances, ceding their use to third parties under any title, pledging, selling, alienating or otherwise encumbering them or ceding them to third parties in any other way. The Customer is not allowed to remove, cover, change (or cause to be changed) or damage the marks, numbers, names and/or other inscriptions affixed to the appliances, or to add others to them. Any necessary or desirable changes to the appliances may only be made by BREEX.
10.3 The Client must immediately inform anyone wishing to exercise any right on or in respect of the appliances that the appliances are the property of BREEX. The Client shall also immediately notify BREEX by registered letter, accompanied by all relevant documents, of (i) imminent enforcement measures, (ii) seizure or retention of all or part of the leased appliances, (iii) accident involving all or part of the leased appliances, (iv) requisitioning, theft or (v) damage to the leased appliances.
11.1 BREEX respects the Customer's privacy and processes the Customer's personal data for customer or prospect management purposes in accordance with applicable regulations (in particular Regulation No. (EU) 2016/679 of 27 April 2016 on the protection of natural persons 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 Client accepts that BREEX may carry out solvency checks, as well as collect data concerning the Client as well as its representatives and other parties involved in the Client's activity. These data may be used by BREEX or its group to execute the Rental Agreement, to fulfil its legal obligations and to send information on products or services which may be of interest to the Client. These data may 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 has the right to be informed about his/her personal data processed by BREEX and/or BREEX and to ask for incorrect data to be rectified, for the data to be deleted and/or for the processing to be restricted, in each case to the extent provided for in the applicable regulations. The Client also has the right to object to processing and to request the transfer of personal data, again in accordance with applicable regulations. The Customer may exercise these rights by sending a written request to BREEX and/or BREEX, dated and signed, with a copy of both sides of the identity card attached. In the event of problems, the Client is entitled to lodge a complaint with the Belgian Data Protection Authority (Rue du Printing Press 35, 1000 Brussels +32 (0)2 274 48 00; +32 (0)2 274 48 35; contact@apd-gba.be).
12.1 For any dispute regarding the Lease, its execution, interpretation and termination, only the Dutch-speaking courts of Dendermonde shall have jurisdiction. The Rental Agreement is governed by Belgian law.
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 via e-mail in .pdf format, will have the same evidential value as an original paper copy with a handwritten signature.
ENG: De partijen komen overeen dat (i) elektronische handtekeningen die in aanmerking komen als geavanceerde of gekwalificeerde e-handtekening onder de eIDAS-verordening (Verordening (EU) nr. 910/2014) of (ii) scankopieën van naar behoren ondertekende pagina's met tegenhandtekeningen bij deze Overeenkomst die per e-mail in .pdf-formaat worden verzonden, dezelfde bewijskracht hebben als een origineel papieren document met natte inkt waarop een handmatig ondertekende handtekening staat.
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