General terms & conditions

General Terms and Conditions of Sale of BorgInsole BV

 3110 Rotselaar, Torenstraat 89,

CBE Nr. 887.561.480 ,

VAT Nr. BE 0887.561.480

1. Applicability and deviations

These general terms and conditions of sale are deemed known and accepted from and by the placing of the order.

Buyers (hereinafter always referred to as “buyers” or, in the singular, “buyer”) are deemed to be professional podiatrists - paramedics within the meaning of the Royal Decree of 7 March 2016 concerning the professional title and qualification requirements for practicing the profession of podiatrist and establishing the technical performances and acts with which the podiatrist may be entrusted by a physician.

The buyers hereby confirm and accept that they are familiar with all our products/software, that they meet the requirements for practicing the profession of podiatrist, and that they have obtained, where applicable, the necessary detailed medical prescriptions to perform the technical acts enabled by what we supply.

The buyers are licensees of the supplied software and/or users of Podocloud-services; they may be buyers (or in exceptional cases lessees) of hardware, including scanners, cameras, sensors and/or a imprint system to which the software may or may not relate; they may also be buyers of the functional insoles (the Borginsole functional insoles) supplied by us.

Unless otherwise agreed in writing, our own terms and conditions of sale shall always prevail over the terms and conditions of the buyer, even if the latter contain conflicting provisions.

Any deviations from these terms and conditions of sale, even if stated in documents originating from the buyer or our representatives, shall only be enforceable against us if we have confirmed them in writing in advance. Even in such cases, these general terms and conditions of sale shall remain applicable for all matters not expressly covered by the deviation.

2. Patent

We are the exclusive holders of all rights relating to, among others i) the Belgian patent no. 1019005A3, ii) the Spanish patent no. ES2436848T3, iii) the Danish patent no. DK2501251T3, and iv) the European patent no. EP2501251B1.

Both the hardware and software, as well as the end product, the Borginsole functional insoles, are covered by these patents and are known and accepted by the buyer.

We are also the exclusive holders of all rights to the trade names and trademarks BORGINSOLE and PODOCLOUD.

The buyer undertakes never to infringe i) the provisions of the aforementioned patents and ii) the aforementioned trade names and trademarks.

3. Products/Software/Services and methods of use

General:

We act on behalf of the buyer and under the buyer’s responsibility as podiatrist.

We supply, among other things, hardware (scanner and imprint system) with or without integrated software (together: the goods).

The hardware is sold to the buyer (or, in the case of the scanner, leased if agreed between the parties); for the software, the buyer receives a non-exclusive license for use in Belgium, for which all royalties are paid upon delivery of the hardware.

The hardware and software must be used for the purposes known and accepted by the buyer and according to our instructions.

The license does not grant any right to modify the software. All updates, upgrades or modifications must be carried out by us or be authorized by us in writing beforehand.

The software may not be sublicensed unless authorized by us beforehand in writing.

The license may be cancelled without notification in case of breach of the provisions of this agreement, particularly in case of non-payment, as well as under the circumstances referred to in Article 16 below.

The buyer acknowledges that it has no rights to the supplied software other than those granted under the license.

Our trade names and trademarks are not the property of the buyer and may only be used with our prior written consent, in accordance with our instructions, and may in no event be removed from the hardware.

Specific:

(a) Scanner, imprint system and integrated software

The goods are supplied with the CE label.

The buyer undertakes not to make any modifications to the hardware or software.

Any installation shall always and exclusively be carried out by our own employee or contractor. The buyer is responsible for keeping the goods in a safe and stable place at all times.

The buyer must implement all necessary safety measures towards patients when taking impressions and scans.

The buyer must ensure that all persons remain at least one meter away from the devices when the laser scanner is moving.

The seller cannot be held liable for any accidents that may occur during the taking of impressions or scans.

The goods may only be connected and remain connected using the power cable supplied by us and connected to a computer using the USB cable supplied by us.

Any problems resulting from the use of other cables shall be at the buyer’s expense.

The “dongle key” embodies the software license. In case of loss or damage, a new license will be charged.

Reinstallation may be required due to a change of computer, relocation, or other reasons.

Reinstallation must always be carried out by us and, unless otherwise agreed in writing, shall be at the buyer’s expense and risk.

Costs include labor hours and travel expenses if reinstallation must take place outside the registered office of Borginsole.

The location of a reinstallation must be agreed upon in writing prior to any reinstallation.

(b) Scans and forms

Scans and forms must be created and sent in accordance with our instructions as updated from time to time. Mistakes made by the buyer are at the buyer’s expense and must in any event be reported within one working day to support@borginsole.com to still be considered, although we do not guarantee that corrections can still be implemented.

(c) Storage of specific digital files by BorgInsole

BorgInsole only stores scans and production-ready insoles (STL files) for a minimum of three years, solely to allow additional orders.

(d) Borginsole functional insoles

We supply functional insoles made on the basis of the scans and forms provided by the buyer.

We are not responsible for the instructions provided to us by the buyer.

We are only responsible for producing insoles in accordance with the buyer’s scans and forms.

We are likewise not responsible for the use of Borginsole functional insoles in circumstances not recommended by us, such as use in open shoes.

(e) Functional insoles, second pair and additional pairs

Additional orders of Borginsole functional insoles are supplied without any guarantee regarding timing or pricing.

The price for an identical additional pair only applies where the additional pair is identical and based on an original pair no older than three years, with only possible deviations in material hardness and/or color.

(f) Podocloud

Podocloud® is a management and storage system by Borginsole consisting of various modules: i) overview and management of customer data, ii) agenda management, iii) invoicing, iv) media, and v) data tools.

This system is made available to the buyer as a service (SaaS – Software as a Service), whereby the buyer may choose one or more modules and have data stored and maintained therein (the costs depend on the amount of data to be stored).

4. Processing of personal data

During the cooperation between Borginsole and the buyer, Borginsole shall process personal data on behalf of the buyer.

The buyer acknowledges and confirms that they are the sole “data controller” for this processing within the meaning of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) – (hereinafter the “GDPR”) and that Borginsole always acts on behalf of the buyer as its “processor” within the meaning of the GDPR.

As required by Article 28 GDPR, the buyer and Borginsole shall therefore conclude a separate agreement regarding the processing of personal data by Borginsole on behalf of the buyer.

5. Quotations and order confirmation

Unless otherwise agreed in writing, our quotations are provided for information purposes only.

Any order placed with us binds the buyer, but only binds us after our written confirmation.

Any inaccuracies in our confirmation must, under penalty of forfeiture, be notified to us in writing within 8 days from the date of our confirmation.

6. BORGinsole Podiatrists

If a buyer has its functional insoles made exclusively by Borginsole and therefore supplies only Borginsole functional insoles to its patients/clients, the buyer obtains the status of “BORGinsole Podiatrist” and enjoys various advantages:

-            Permission to advertise as a BORGinsole Podiatrist;

-            Free listing on the official BORGinsole website with a link to the practice website;

-            A free package of promotional materials (flags, banners, brochures, etc.);

Free use of the Podocloud modules and functionalities listed at https://shop.borginsole.com/en/podocloud-2 except for the online agenda and storage fee.

o   The online agenda is provided free of charge during the first year of cooperation between Borginsole and the BORGinsole Podiatrist; thereafter, a subscription will automatically commence, under which the BORGinsole Podiatrist pays a monthly fee for this module, unless the BORGinsole Podiatrist notifies in writing, no later than one month before the end of the first year of free use, that he or she does not wish to take out this subscription. The subscription may, in any case, be terminated at any time, provided that written notice is given and a one-month notice period is observed (commencing from the first month following the month in which notice of termination was given).

o   Storage fees remain payable at all times for all buyers.

These benefits are commercial favors and do not create a permanent right. If BORGinsole determines that the BORGinsole Podiatrist is not working exclusively with BORGinsole functional insoles and/or has not ordered any functional insoles from BORGinsole for three consecutive calendar months without the BORGinsole Podiatrist having given prior written notice of a temporary period of inactivity, stating its duration, BORGinsole shall be entitled to terminate these benefits following written notification by BORGinsole to the BORGinsole Podiatrist.

In practical terms, BORGinsole will then remove the BORGinsole Podiatrist’s name from the official BORGinsole website; the BORGinsole Podiatrist must return any unused items from the promotional materials package and notify BORGinsole in writing of which Podocloud modules and storage they wish to continue using (at the rates applicable at that time). Naturally, the buyer may no longer present themselves as a BORGinsole Podiatrist. If the BORGinsole Podiatrist discontinues modules/storage, this may mean that BORGinsole is no longer responsible for storing their data in the cloud. Either the BORGinsole Podiatrist will then have to arrange for the data to be transferred themselves, or BORGinsole may export the data and hand it over to the BORGinsole Podiatrist in a standard format, for a fixed fee of EUR 1,500 (excl. VAT) – this fee covers the actual cost of the work required.

7. Samples, description

Unless otherwise agreed in writing, our samples, drawings, dimensions, weights and other details are to be regarded merely as an approximate description of our products, and any deviations from these, of whatever nature, may under no circumstances be invoked by the buyer to refuse either acceptance or payment, or to claim termination of the contract or compensation. Similarly, unless otherwise agreed in writing, we cannot be held liable for the unsuitability of our products for purposes other than those for which they are specifically intended and which are known and accepted by the buyer.

8. Delivery terms

Unless otherwise agreed in writing, the delivery times quoted by us are always approximate and never binding.

Even if the delivery times have been explicitly agreed in writing, barring gross negligence on our part, a delay in delivery shall only give rise to compensation if this compensation has been agreed in advance and in writing.

In that case, only direct compensation shall be considered, and in any event the amount of such compensation shall never exceed 10% of the total price.

Even if a binding delivery period has been agreed subject to compensation, we shall not be liable in the event of extraordinary circumstances, such as, without limitation, war, civil unrest, fire, flooding or other forms of destruction, total or partial disruption to transport, illness amongst our staff, strikes within our company or elsewhere, operational disruption due to a lack of utilities or otherwise, or failure on the part of our subcontractors, we shall always be entitled either to suspend delivery until the circumstances in question have ceased, provided that delivery is subsequently made within a newly agreed period, or to cancel the sale, without the buyer being entitled to claim any compensation or costs in either case.

9. Transport, risk and acceptance

Unless otherwise agreed in writing, all our deliveries are always EX WORKS 3110 Rotselaar, Torenstraat 89, Incoterms 2020, and shipment or transport is always at the buyer’s expense and risk, unless otherwise stated.

Even if sold on the terms of a different delivery location, carriage paid or FOB, the goods shall always travel at the buyer’s risk and expense. Unless a different period has been agreed in writing, the purchased goods must be taken delivery of no later than 14 days after we have made them available.

If this has not been done within this period or any specially agreed period, we shall be entitled, without prior notice of default, at our discretion either to invoice the goods sold and demand payment for them, or to regard the sale as automatically rescinded.

In the first instance, the goods shall be stored at our premises or with third parties at the buyer’s expense and risk, and we shall be entitled to charge the buyer, in addition to the purchase price, for all costs arising from this measure.

In the second instance, the buyer shall owe us lump-sum compensation equal to 30% of the sale price.

10. Retention of title upon sale

Ownership of the goods supplied shall only pass to the buyer once the buyer has paid us all sums due in respect of our supply, including any costs and interest.

The buyer may therefore not dispose of the hardware that has not yet been paid for in full in any way: more specifically, they may not pledge it to third parties or transfer ownership of it. Where a scanner is hired as part of the hardware, there is never any transfer of ownership in respect of the scanner.

11. Provision of security and suspension of delivery

Notwithstanding the agreed terms of payment, the buyer authorises us at any time, i.e. prior to delivery or before proceeding with delivery, to demand a bank guarantee to secure the fulfilment of their payment obligations.

Until such a guarantee has been provided, we are entitled to suspend all further deliveries.

The same applies as long as the buyer has not fulfilled their payment obligations for other deliveries already received.

12. Complaints

Unless a different period has been agreed in writing, our goods are guaranteed against visible defects for a period of 8 days following delivery or presumed acceptance, provided that a written complaint is submitted to us.

Hidden defects must be reported to us in writing as soon as possible and in any event within 8 days of their discovery.

We shall always be entitled to a reasonable period of time to investigate the complaint, including inspecting the goods at their location.

If the complaint is found to be justified, our obligations shall always be limited to the replacement or repair, free of charge, of the goods delivered or the defective parts thereof, without us being liable for any compensation or costs, for whatever reason.

We do not guarantee against normal wear and tear of products or parts, or against damage resulting from use outside the scope known and accepted by the buyer, or from alterations or installations carried out by the buyer or third parties.

13. Resale of purchased hardware

In the event of the resale of purchased goods, the buyer undertakes to make our general and special warranty conditions enforceable against its own customer. In any event, the buyer agrees to indemnify us against all consequences, whatever they may be, of any claims that may be made against us by their customer in respect of the purchased goods and which exceed the claims that the buyer themselves could have asserted against us. Any resale of hardware shall in any event terminate the software licence relating to the software integrated into that hardware, unless otherwise agreed (see further under 16.)

14. Prices

If, between the time of our confirmation and the time of its fulfilment – even if this time falls after the expiry of the agreed delivery period, provided this is not due to gross negligence on our part – our costs have increased as a result of changes in exchange rates, increases in wages, increases in the price of raw materials, increases in the prices charged by our suppliers, or as a result of measures taken by our own or foreign governments, we shall be entitled to pass on this increase to our buyer, provided that the originally agreed price is not thereby increased by more than 10%.

Should this be the case, we shall notify the buyer, and the buyer may, if they so choose, cancel the sale in writing within 8 days of such notification, but without being entitled to claim any compensation or costs.

15. Payment

A distinction is made between hardware and software, and the Borginsole functional insoles. Unless otherwise agreed in writing, payment of any invoiced amount, including taxes of any kind, must be made in Rotselaar, at no cost to us and without any discount, no later than 30 days after the invoice date. Where delivery is made in two or more instalments, each instalment shall be invoiced separately. The buyer’s payment obligations shall not be suspended by the submission of any complaint regarding the goods under this agreement or regarding other goods.

16. Late payment

In the event of non-payment of invoices by the due date, interest for late payment shall be payable by operation of law and without prior notice of default, in accordance with the Act of 2 August 2002 on combating late payment in commercial transactions.

Interest is calculated at the statutory interest rate for commercial transactions, as set every six months, from the due date until the date of full payment.

In addition, in the event of late payment, a fixed compensation of 10% of the outstanding invoice amount is payable, subject to a minimum of EUR 40, without prejudice to our right to claim higher damages actually incurred.

17. Termination

The foregoing does not constitute a waiver of our right, in the event of non-payment and if we so choose, to claim damages and rescind the sale.

18. Limitation of liability

BORGinsole’s liability is, except in cases of wilful misconduct or gross negligence, limited in all cases to direct loss that is the direct and exclusive consequence of an attributable breach of contract.

BORGinsole’s total liability is in any event limited to the lower of the following amounts: i) the amount paid by the buyer for the relevant delivery to which the liability relates, ii) the total amount invoiced by BORGinsole to the customer in the last 6 months prior to the event giving rise to the damage, or iii) the amount covered by BORGinsole’s insurance.

BORGinsole shall in no event be liable for indirect or consequential damage, loss of profit, loss of turnover, loss of clientele, loss of data, damage to reputation, loss of production, costs of replacement goods or services, or damage resulting from business interruption.

Insofar as the agreement between BORGinsole and the customer relates to software (including the Podocloud services), BORGinsole does not guarantee that the software/Podocloud is entirely free from errors or will function without interruption. Any defects shall only entitle the customer to repair or replacement, at BORGinsole’s discretion, and shall under no circumstances give rise to additional compensation.

19. End of the agreement

The agreement shall be terminated by operation of law and without notice or formal notice of default on our part in the event of non-payment or breach. The agreement shall also lapse by operation of law and without notice if the buyer ceases to be a podiatrist within the meaning of the regulations referred to above, in the event of a breach of these regulations by the buyer, in the event of the bankruptcy of either party, or if either party invokes the Business Continuity Act, following a decision to liquidate either party, if the buyer invokes any collective debt settlement scheme, as well as in the event of the resale of the goods by the buyer and upon its cancellation for any reason whatsoever.

The buyer may terminate the agreement by giving one year’s written notice.

During the notice period, any amounts due, for example in respect of rent or for the supply of Borginsole functional soles, shall remain payable.

20. Applicable Law and Jurisdiction

This agreement is governed exclusively by Belgian law.

Any disputes arising from the interpretation or performance of this agreement shall be brought exclusively before the courts of Brussels.