Conditions of sale

1. Definitions

1.1 For the application of the present General Conditions, it must be understood by:

fifthplay: the limited company with its operating headquarters at 184 Uitbreidingstraat, 2600 Antwerp (Belgium) and its registered office at 40 Industriepark West, 9100 Sint-Niklaas (Belgium).

fifthplay Services: the services of fifthplay consist in fifthplay as the service aggregator making available to the Customer via the Website and in particular the Website Portal an on-line platform via which the Customer obtains access to various applications and to a broad range of products and services from Service Providers. The fifthplay Services do not contain the products and services which are offered to the Customer by the Service Providers via the Website.

Customer: any individual or legal entity who makes use or wishes to make use of the fifthplay Services and for this purpose has entered into an agreement with fifthplay in accordance with Article 7.1.

Service Provider: any third party who offers products or services via the Website to the Customer. Fifthplay is not a Service Provider.

Conditions: the present General Conditions of Service of fifthplay.

Website: www.fifthplay.be or www.fifthplay.com

Website Portal: www.myfifthplay.com part of the Website.

In these Conditions the Customer and fifthplay are called collectively the Parties and individually the Party.

2. Object

2.1 The Conditions are only applicable to the contractual relationship between the Customer and fifthplay for the supply of the fifthplay Services via the Website.

2.2 The Conditions are not applicable to:

(a) the purchase of products or services of fifthplay other than via the Website (e.g. purchase of fifthplay hardware from a shop); and

(b) the purchase of products or services from a Service Provider via the Website.

3. Price and Payment

3.1 In order to be able to make use of the fifthplay Services the Customer must pay the tariffs stated on the Website or Website Portal to fifthplay or its Service Provider.

3.2 The fifthplay Services are activated by fifthplay or the Service Provider at the latest at the moment of receipt of the payment by the Customer, irrespective of the manner of payment.

3.3 If fifthplay provides the Customer with the possibility of paying by means of a bank transfer, such a payment must be received at the latest within seven (7) calendar days from concluding the agreement in accordance with Article 7.1, failing which fifthplay may reasonably assume that the Customer has renounced entering into the agreement.

3.4 Invoices are payable promptly in cash and in the event of late payment or non-payment, the Customer is indebted to fifthplay, without any prior official notification, for:

(a) interest on arrears of 12% a year pro rata calculated from the due date until payment of the amount in full; and

(b) a lump-sum compensation of 10% of the amount due with a minimum of 25 Euros.

3.5 Article 3.4 does not affect fifthplay’s right to suspend or terminate the fifthplay Services in the event of late payment or non-payment.

3.6 FIFTHPLAY RESERVES THE RIGHT TO CHANGE THE TARIFFS AT ANY TIME. If fifthplay changes the tariffs, these are applicable to any new agreement which the Customer enters into with fifthplay or to any extension of an existing agreement PROVIDED THE CUSTOMER HAS BEEN NOTIFIED BY E-MAIL OF THE ENTRY INTO EFFECT OF THE NEW TARIFFS AT THE LATEST 45 CALENDAR DAYS BEFORE THE EXTENSION. In the event of failure to give notice by the Customer in accordance with Article 7.2, the Customer is regarded as having accepted the tariff change.

3.7 The Customer accepts that, when the Customer has made no use of the fifthplay Services or the service provision becomes impossible due to circumstances for which fifthplay is not responsible in accordance with Article 5, the Customer cannot claim a refund in full or in part in execution of any agreement concluded between the Customer and fifthplay in accordance with Article 7.1.

3.8 The Customer accepts that, WHEN FIFTHPLAY SERVICES ARE OFFERED FREE OF CHARGE BY FIFTHPLAY OR THE SERVICE PROVIDER FOR A LIMITED OR UNLIMITED PERIOD, THE CONDITIONS ARE APPLICABLE WITHOUT CURTAILMENT AND BY ANALOGY.

4. Intellectual Property Rights

4.1 The Customer recognises that the intellectual property rights of this Website and the on-line platform belong to or have been given on licence to fifthplay and that fifthplay or the third-party licensor are the owners of these intellectual property rights.

4.2 fifthplay grants the Customer only the right to use the Website in order to be able to use fifthplay Services and in order to purchase and use the products and services of the Service Providers.

4.3 The Customer is forbidden to reproduce or change, in any way whatsoever, the design, lay-out, text, data, databanks, domain name, software (both the binary and the source-code), the drawings, logos and/or the images on the Website, without the prior written consent of fifthplay.

5. Liability

5.1 FIFTHPLAY IS NOT RESPONSIBLE FOR and can in no case be held liable for any kind of loss or damage caused by:

(a) the actions or negligence of the Customer, including without being exhaustive, a faulty or unsuitable use of the Website or the fifthplay Services, any carelessness in keeping or divulging to third parties the unique user identification and password.

(b) the actions or negligence of the Service Providers.

(c) the bankruptcy, suspension of payment, liquidation, cessation or change of business activities, products or services by Service Providers.

(d) THE PRODUCTS AND SERVICES OF THE SERVICE PROVIDERS, THE WAY IN WHICH THESE ARE OFFERED, SOLD, LEASED, USED, DELIVERED OR CARRIED OUT, INCLUDING THE LOSS OR THEFT OF PRODUCTS.

(e) the faulty functioning of the Internet connection, broadband connection or any other service or infrastructure whatever, over which fifthplay has no control.

(f) defects in the hardware which the Customer uses in order to be able to use the Website or the fifthplay Services.

(g) viruses, Trojan horses or bugs in the software which the Customer uses and which was not supplied or made available by fifthplay.

(h) the incorrect use of the Website, the fifthplay Services or of the hardware which the Customer uses in order to be able to use the Website or fifthplay Services.

(i) brief interruptions in the availability or the functioning of the Website or of the fifthplay Services as a result of a technical intervention (e.g. maintenance).

(j) any break-in or hacking into the Website or the Website Portal, on condition that fifthplay has taken all reasonable protective steps according to the state of the art.

(k) phishing, pharming or any other forms of Internet fraud or other criminal activities.

(l) situations of force-majeure, including without being exhaustive, fire, explosions, flood, storm damage, lightning strikes, power-cuts, strikes and government measures.

(m) SERVICES WHICH ARE BOUND UP WITH THE SURVEILLANCE OF PUBLIC SPACES, MEDICAL SERVICES OR LIFE-THREATENING OR VITAL PURPOSES FOR WHICH FIFTHPLAY SERVICES ARE NOT INTENDED.

5.2 The total liability of fifthplay under this agreement for any loss as a result of any contractual shortcoming, fault or negligence on the part of fifthplay is limited to a maximum amount of three times the value of the relevant service subscription.

5.3 FIFTHPLAY CAN IN NO CASE BE HELD LIABLE FOR ANY KIND OF DIRECT OR INDIRECT LOSS AS A RESULT OF A CONTRACTUAL SHORTCOMING, fault or negligence by fifthplay, including but not limited to the loss of clientele, loss of data, loss of turnover or profit, loss of business opportunities, and loss of any opportunity.

5.4 fifthplay is not responsible for and can in no way be held liable for unlawful actions by the Customer or violations by the Customer of rights of others via the Website or the fifthplay Services. The Customer indemnifies fifthplay against any actions, claims or demands:

(a) which are the result of such unlawful actions by the Customer; or

(b) by third-parties who allege that a violation of their rights has been committed by the Customer via the fifthplay Services or the Website.

5.5 fifthplay does not guarantee the uninterrupted availability of the Website and the fifthplay Services.

6. Protection of Personal Privacy and Confidentiality

6.1 fifthplay processes the personal data of the Customer for the following purposes:

(a) to allow the Customer to use the Website or to make the fifthplay Services possible, whether or not through Service Providers;

(b) to improve the content and user-friendliness of the Website and to adapt to the Customer’s preferences;

(d) accounting and invoicing;

(e) to inform the Customer personally about new fifthplay Services and about the products and services of the enterprises associated with fifthplay;

(f) to inform the Customer personally about new products and services of the Service Providers and the enterprises associated with the Service Providers;

(g) to sell or communicate the personal data of the Customer to third parties for marketing purposes or interactive services.

6.2 The personal data of the Customer may be communicated for one or more of the aforementioned purposes to enterprises associated with fifthplay, the Service Providers and enterprises associated with the Service Providers, list-brokers and fifthplay suppliers.

BEFORE THE PERSONAL DATA ARE USED FOR THE PURPOSES OF ARTICLE 6.1 (E), (F), (G), A WARNING MESSAGE WILL ALWAYS APPEAR ON THE WEBSITE OR THE WEBSITE PORTAL AND THE CUSTOMER WILL BE ASKED FOR HIS/HER CONSENT.

The aforesaid clause does not affect the undiminished right of fifthplay to place general on-line advertisements on the Website or Website Portal, both by fifthplay and others, without the prior warning message.

6.3 The Customer has a right to access his/her personal data. The Customer also has the right (i) to ask for correction of incorrect personal data and (ii) to ask for the removal of his/her personal data which, in view of the purposes described above, are incomplete or irrelevant or of which the acquisition, communication or storing are forbidden or which are kept for longer than necessary in order to fulfil the purposes described above. The Customer also has the right to object to the processing of his/her personal data for publicity purposes.

6.4 In order to exercise the rights summarised above, the Customer can make contact with fifthplay by post or via the contact-field on the Website.

6.5 fifthplay uses cookies in order to make use of the Website easier. Cookies are files which our web-server can send to the Customer’s computer, so that the computer can be identified for the duration of the session. Most browsers are set up to accept these cookies automatically. The Customer can, however, de-activate the storing of cookies or set up his/her browser so that the Customer is notified before the cookie is or is not stored on his/her computer.

6.6 When the Customer uses fifthplay Services in order to process or distribute personal data, which are not intended for fifthplay, then:

(a) the Customer is responsible for that processing; and

(b) fifthplay will only technically process such personal data on the instructions of the Customer.

6.7 When the Customer uses the fifthplay Services in order to process data which are not intended for fifthplay, then fifthplay shall take no cognisance of such data, unless:

(a) when cognisance of such data is necessary for the good performance of the fifthplay Services or for the satisfactory operation of the Website; or

(b) if fifthplay has reasons to believe that such data relate to unlawful or unpermitted activities, or if a third party is of the opinion that such data violate its rights.

7. Contract Conclusion, Duration and Termination

7.1 BY CLICKING ON THE “I AGREE” BUTTON WHENEVER THE CUSTOMER WISHES TO ACTIVATE A FIFTHPLAY SERVICE, THE CUSTOMER ACCEPTS THESE CONDITIONS AND THE CUSTOMER ENTERS INTO AN AGREEMENT WITH FIFTHPLAY WHICH IS GOVERNED BY THESE CONDITIONS.

7.2 WITHOUT AFFECTING ARTICLES 3.5, 3.6, 7.3, 7.4 AND 8.1, THIS AGREEMENT HAS BEEN ENTERED INTO FOR A SPECIFIED DURATION (INITIAL PERIOD) AS STATED ON THE WEBSITE, WEBSITE PORTAL OR ON ANY OTHER DOCUMENT, A VOUCHER OR AN ACTIVATION CARD. AFTER THE INITIAL PERIOD THE AGREEMENT IS TACITLY EXTENDED FOR AN IDENTICAL PERIOD (EXTENDED PERIOD), UNLESS ONE PARTY CANCELS THE AGREEMENT BY REGISTERED LETTER AT LEAST 30 CALENDAR DAYS PRIOR TO THE EXPIRY OF THE INITIAL PERIOD, IN WHICH CASE THE AGREEMENT SHALL BE TERMINATED AT THE TIME OF EXPIRATION OF THE INITIAL PERIOD. DURING THE EXTENDED PERIOD EITHER PARTY HAS THE RIGHT TO CANCEL THE AGREEMENT BY OBSERVING A PERIOD OF NOTICE OF 30 CALENDAR DAYS, WITHOUT ANY COMPENSATION FOR TERMINATION BEING DUE. SUMS WHICH HAVE BEEN PAID BY THE CUSTOMER IN ADVANCE OF THE TERMINATION FOR THE DURATION OF THE EXTENDED PERIOD WILL NOT BE CHARGED PROPORTIONALLY NOR REFUNDED.

7.3 Each Party has the right without any legal intervention and without being bound to any compensation to terminate the agreement immediately by registered letter if the other Party has committed a material fault and that fault cannot be remedied, or, where such a fault can be remedied, the other Party remains in default of remedying the fault within 15 calendar days counting from receipt of a written notification of the shortcoming with a request to remedy the fault.

7.4 fifthplay has the right to suspend fifthplay Services or, without any legal intervention and without being liable for any compensation, to terminate the agreement immediately by registered letter or by e-mail if:

(a) the Customer neglects to pay the amount due;

(b) it is necessary in order to meet a force-majeure situation as specified in Article 5.1(c);

(d) the Customer is in a situation of suspending payment, insolvency, has obtained a judicial comprise, is declared bankrupt, or put into liquidation in any way, is knowingly in a state of bankruptcy or of suspension of payments or if an attachment order has been placed on the whole or part of his/her goods which is not raised within a period of 1 month counting from its imposition.

8. Miscellaneous Clauses

8.1 Amendment of the Conditions

fifthplay reserves the right to amend these Conditions at any time. If fifthplay does amend the Conditions, then fifthplay shall notify the Customer of this via e-mail or letter at the latest 45 calendar days before the entry into effect of the amended Conditions. If the Customer does not agree to the amended Conditions, the Customer has the right within a period of 15 calendar days counting from receipt of the notification to terminate the agreement by registered letter without any legal intervention and without being bound to any compensation subject to observing a period of notice of 30 calendar days.

8.2 Complaints

For complaints concerning the fifthplay Services or the Website, the complaints procedure described on the Website must be followed.

8.3 Applicable Legislation and Competent Court

Irrespective of the way in which and the place from which the Customer has access to the Website, the contractual relationship between the Customer and fifthplay is exclusively governed by Belgian law. Any dispute concerning the interpretation and the application of these Conditions falls under the exclusive competence of the Courts of Dendermonde (Belgium).

8.4 Nullification, Impracticability or Unenforceability

The nullification, impracticability or unenforceability of any clause of these Conditions leaves the validity, practicability and enforceability of the Conditions unaffected, unless the Conditions cannot continue to exist without that clause.

8.5 Legal Entries

fifthplay nv
Industriepark West 40
9100 Sint-Niklaas
Belgium

Company No. 0442833209
Dendermonde Commercial Court
information@fifthplay.com

Last revised on 7th March 2008.

1. General

1.1. The following definitions apply to these General Sales Conditions:

Vitalsys: the public limited company Vitalsys NV with registered office at Industriepark West 40, 9100 Sint-Niklaas (Belgium).

Vitalsys Solutions: the goods, hardware and/or software of Vitalsys.

Customer: each natural or legal person who wishes to purchase Vitalsys Solutions, regardless of whether this is for private or professional use, resale or distribution, own use or use for third parties.

General Sales conditions: the present Vitalsys general sales conditions.

Intent: knowingly and deliberately seeking to do an action and gain its results.

Web site: www.vitalsys.be

1.2. The Customer and Vitalsys are referred to collectively in these General Sales Conditions as Parties, and individually as Party.

1.3. These General Sales Conditions apply unless agreed otherwise in writing by the Parties or any special conditions for apply specifically to Vitalsys Solutions.

1.4. The Customer renounces the application of any of its provisions under its general or special terms, even if they claim to be the only ones valid.

2. Drawings and descriptions

Weights, dimensions, design, quality, capacity and other details, listed in catalogues, prospectuses, circulars, advertisements, images, websites and price lists are an approximate indication only. These details are only binding insofar as the contract specifically refers to them and expressly describes them as binding.

3. Orders

3.1. An order is only valid after written confirmation by Vitalsys.

3.2. For orders by the Customer only references listed in Vitalsys’s catalogues shall be taken into account. In the event of errors in the order no return of Vitalsys Solutions will be accepted without prior written permission of Vitalsys. This applies to all returns. In addition a contribution to expenses will be charged at the equivalent of twenty per cent (20%) of the sales price.

3.3. Vitalsys reserves the right to apply minimum quantities to orders at least equal to the smallest packaging unit.

4. Packaging

4.1. Unless agreed otherwise in writing between the Parties, the prices are deemed to apply to goods packaged in standard packaging.

4.2. Additional packaging (sea-proof, etc.) will be provided at the express written request of the Customer and shall be invoiced to the Customer.

5. Transfer of risk

5.1. Unless otherwise agreed in writing delivery shall take place “ex works INVULLEN” (EXW) in compliance with Incoterms 2000. Subject to Article 6, property and risk shall be transferred then.

5.2. In the event Vitalsys has acted at the request of the Customer to arrange for transport or customs formalities, he may not be held liable. All resulting costs will be invoiced to the Customer.

5.3. The Vitalsys Solutions shall be shipped at the Customer’s risk. In the event the goods must be insured at the Customer’s express request, for storage and shipping, Vitalsys shall make arrangements and invoice the resulting costs to the Customer without any liability.

6. Reservation of title

6.1. WITHOUT PREJUDICE TO THE PROVISIONS UNDER ARTICLE 5, THE VITALSYS SOLUTIONS SHALL REMAIN THE PROPERTY OF VITALSYS UNTIL FULL PAYMENT OF THE SALES PRICE. Vitalsys reserves the right to reclaim the Vitalsys Solutions, wherever they may be.

6.2. Any advances, partial payments of the sales price, made by the Customer, may be used as compensation for losses suffered by Vitalsys as a result of default or other sums owed to Vitalsys.

7. Intellectual property

7.1. The Customer recognises that the intellectual property rights of the Vitalsys Solutions belong to or are licensed to Vitalsys, and that Vitalsys or the third party licenser is owner of these intellectual property rights.

7.2. Vitalsys grants the Customer only the right to use the Vitalsys Solutions for the purpose for which they are intended.

7.3. The Customer is prohibited from reproducing or changing in any way the hardware, software, texts, files or data, codes, topographies, brands, logos and/or images without the prior, written authorisation of Vitalsys.

7.4. All software in the Vitalsys Solutions is and remains the exclusive property of Vitalsys and/or its suppliers. The software may not be reproduced or copied, not even for internal use by the Customer. The rights of Vitalsys are valid for all versions and successive updates.

7.5. The Customer shall maintain in good condition the indications of ownership in the Vitalsys Solutions, manuals and maintenance instructions, and agrees to respect the confidential character of the software.

8. Claim transfer clause

In the event of the resale of the Vitalsys Solutions to a third party, the Customer shall transfer his claims against this third party to Vitalsys, without prejudice to Vitalsys’s right to claim payment from the Customer, who shall remain liable.

9. Lead times

9.1. Unless otherwise agreed in writing between the Parties, the lead time shall take effect from the date of receipt and acceptance of the order by Vitalsys.

9.2. Lead times do not run during Vitalsys’s collective leave periods, or when delivery is prevented as a result of force majeure.

9.3. Unless otherwise agreed in writing between the Parties, the lead time provided in the agreement is only an estimate. Delays may never lead to termination of the agreement, cancellation of an order or compensation.

9.4. In the event that the Customer does not accept the Vitalsys Solutions when they are made available or delivered by Vitalsys, Vitalsys is nevertheless authorised to claim payment of the invoice and in the above case reimbursement of all expenses, including those for storage and safekeeping, as well as compensation from the Customer. Vitalsys provides the storage of the Vitalsys Solutions for the account and risk of the Customer.

9.5. Vitalsys is authorised to deliver partial shipments without the Customer being able to refuse delivery.

10. Invoicing and payment

10.1. All amounts due are invoiced to the Customer or to a third party appointed by it, after approval by Vitalsys. The appointment of a third party to pay does not discharge the Customer of the obligation to pay if this third party fails to pay.

10.2. All payments shall be made in euros unless agreed otherwise in writing between the Parties and shall be made into the bank account chosen by Vitalsys mentioning the references.

10.3. Unless agreed otherwise in writing between the Parties or except for any mention to the contrary on the front of the invoice, invoices become due immediately upon receipt. After their due date, they shall legally and without any reminder legally yield an interest of twelve percent (12%) yearly. The Customer may under no circumstances invoke set-off.

10.4. Any protest regarding the invoiced amounts shall be made by registered letter within 8 days of receipt of the invoice.

10.5. All current and future taxes, levies and duties, of any nature whatsoever, linked to the sale of the Vitalsys Solutions delivered by Vitalsys shall be borne by the Customer.

10.6. In the event of non-payment of the invoice on its due date, Vitalsys shall also have the right, without prior reminder, to supplementary compensation of ten per cent (10%) of the sales price or a minimum of twenty-five euros (EUR 25). Non-payment of a single invoice on the due date shall make the balances due from the other invoices immediately payable, even if they have not yet fallen due for payment.

10.7. Prices are net, not including VAT.

10.8. Sales prices are those valid on the date of delivery to the Customer.

11. Financial guarantees

11.1. In the event that Vitalsys believes that the Customer’s credit has been affected, for example when legal measures are taken against the Customer and/or when matters occur that make the correct performance of the agreed obligations difficult or impossible, Vitalsys has the right, even upon partial or full shipment of the Vitalsys Solutions, to suspend the order in whole or in part and to demand additional guarantees.

11.2. In the event of refusal by the Customer Vitalsys has the right to cancel the order in full or in part, without it affecting Vitalsys’s rights to claim compensation.

12. Annulment clause

12.1. In the event of gross misconduct on the part of the Customer such as, among others, late payment or non-acceptance of ordered Vitalsys Solutions or breach of intellectual property rights, Vitalsys may annul the agreement without prior formal notice, without legal intervention and without harming Vitalsys’s rights to claim compensation. Vitalsys shall indicate his desire to annul simply by sending a registered letter referring to this fact.

12.2. In all other cases besides late payment to which Articles 10.3 and 10.6 apply, Vitalsys is entitled to compensation of fifteen per cent (15%) of the purchase price, with a minimum of one hundred and twenty-five euros (EUR 125), without prejudice to Vitalsys’s right to prove greater losses.

13. Hidden defects – guarantee - liability

13.1. Without prejudice to the application of the common right concerning hidden and visible defects, Vitalsys will rectify an undisputed visual or hidden defect or lack of conformity upon delivery of Vitalsys Solutions that is not the result of invincible ignorance on the part of Vitalsys or of an incorrect intervention on the part of the Customer or third parties, by replacement with the same or equivalent item (if out of production or stock) or repair, at the option of Vitalsys.

13.2. Customer is required to inform Vitalsys in writing concerning a lack of conformity, a visible or hidden defect, within two (2) months after detection, and at the latest within two (2) years from the delivery date. The invoice date of the sale to the Customer counts as delivery date. A clear description of the defect is required. Without a description of the defect, Vitalsys only performs a short test of the basic functions of the product. The expiration of the periods count as expiry date.

13.3. Vitalsys is the owner of the replaced parts.

13.4. Except for that which is established in Article 13.1, Vitalsys is bound by no other guarantee or damage compensation scheme unless in case of Intent on the part of Vitalsys.

13.5. Without prejudice to all other rights, Vitalsys is not liable for any damages caused:

(a) if it cannot be demonstrated that the defects were present at the moment the Vitalsys Solutions were put into service;

(b) if in view of the state of science and technology, Vitalsys could not have been aware of the presence of the defects;

(d) due to the design of the system in which the Vitalsys Solutions are incorporated, installed or mounted;

(e) as a result of a poorly operating Internet connection, broadband connection, or any other service or infrastructure over which Vitalsys has no control;

(f) due to defects in the hardware or software that the Customer uses in combination with the Vitalsys Solutions;

(g) due to viruses, Trojan horses or bugs in the hardware or software used by the Customer that was not delivered or made available by Vitalsys;

(h) due to mistakes or negligence on the part of the Customer, or any third party, including faulty instructions, incorrect manoeuvres, wrong operation, modifications;

(i) due to a lack of maintenance, or maintenance in violations of the maintenance instructions drawn up by Vitalsys, the producer or importer;

(j) due to use by the Customer or any third party that is contrary to the purpose for which the Vitalsys Solutions are intended, or that violates proper usage or prevailing rules, including especially, but without being exhaustive, any criminal or deceptive actions or violation of privacy regulations, or safety standards;

(k) due to the intervention of a third party not recognised or certified by Vitalsys;

(l) due to the products and services of third parties, and the way in which these are offered, sold, leased, used, delivered or implemented;

(m) if the cause of the defect is intrinsic to the normal functioning or useable life of the Vitalsys Solution;

(n) in the case of a defective fuse or dead battery that could have been easily replaced by the Customer;

13.6. The Customer explicitly acknowledges to know the regulations concerning privacy and the use of personal data for medical purposes, and agrees to obtain all preliminary approvals and make notifications (via pictograms) before the Vitalsys Solutions are used for medical purposes.

13.7. The Customer shall safeguard Vitalsys against any demands or claims that could be directed at him on the basis of any defect or damage resulting from circumstances as summed up above.

13.8. IN GENERAL VITALSYS SHALL NOT BE HELD LIABLE FOR ANY INDIRECT COMPENSATION, such as for example damage to other Customer goods, loss of opportunity or losses connected to the Customer’s professional activity, loss of revenue, decrease in turnover and loss of customers or data, except in the event of Intent.

14. Assembly and installation

14.1. Assembly and installation are never part of the agreement. Vitalsys may, however, at the Customer’s request agree in writing to, under specific circumstances, ask specialised workers, fitters or assemblers to carry out this assembly and installation. In this case the services provided by said workers, fitters, or assemblers will be carried out at the expense and under the responsibility of the Customer.

14.2. The Customer shall make available all assistance, equipment and materials required for assembly at his expense.

15. Force majeure

15.1. Force majeure is understood to mean any circumstances beyond the control of one of the Parties and occurring after the conclusion of the agreement, which may not be attributed to them and prevent the performance of the agreement, such as natural disasters, terrorism, political unrest or war, fire, mobilisation, confiscation, embargo, shortage of transport, general shortage of raw materials, shortage of suppliers, limitation in energy consumption, etc..

15.2. The Party claiming the aforementioned circumstances shall immediately inform the other Party in writing of their starting and end dates.

15.3. In the event that a situation of force majeure for one of the Parties lasts longer than forty (40) days, the agreement may be ended by the other Party by registered letter without any compensation being owed.

15.4. The existence of any such circumstances removes any liability with respect to the non-performance of the agreement during incidents of force majeure, from Vitalsys as well as from the Customer.

16. Applicable law

The agreement shall be exclusively governed and is drawn up according to Belgian law, with the exception of the United Nations Convention for the International Sale of Goods of 11 April 1980.

17. Competent courts

In the event of disputes, the courts of Dendermonde, Belgium shall have sole jurisdiction, without prejudice to Vitalsys’s right to bring any dispute before another competent court.

18. Language

The Dutch-language General Sales Terms shall be decisive in any interpretation of the terminology used. Translations into French, English, German or any other language are only drawn up by Vitalsys for the Customer’s information.

19. Personal details

19.1. The personal details provided by the Customer will be electronically processed by Vitalsys in the framework of the management of customer files.

19.2. The details may also be processed for promotion and prospecting purposes and to inform the Customer about Vitalsys’s company, products and services. If the Customer does not wish to participate, he can oppose any further processing of his personal details for direct marketing reasons at no extra cost by addressing a simple request to Vitalsys via letter.

19.3. The Customer’s personal details may be shared with other federations and related enterprises, of which the Customer may obtain a list upon simple request via letter.

19.4. The Customer may at any time ask to consult and update his personal details. To this effect it is also sufficient to contact Vitalsys via letter.

19.5. A public list is kept by the Commission for the Protection of Privacy with all electronic processes used with personal details. In the event that the Customer requires further information on the way in which Vitalsys processes data, he may consult this list.

20. Invalidity, unfeasibility or lack of enforceability

The invalidity, unfeasibility or lack of enforceability of a stipulation in these General Sales Conditions does not affect the validity, feasibility or enforceability of the General Sales Conditions, unless the General Sales Conditions cannot continue to exist.

21. Environment

VITALSYS SOLUTIONS MAY NOT BE DISPOSED OF VIA UNSORTED WASTE. PRODUCTS TAKEN OUT OF SERVICE MUST BE TAKEN TO A WASTE PICKUP STATION OR CERTIFIED COLLECTION POINT. Like Vitalsys or the producer, the Customer plays an important role in promoting the sorting, recycling and reuse of electrical and electronic equipment. In order to finance collection and processing, in certain cases the government requires payment of a recycling fee (included in the selling price of this product).

22. Legal information

Vitalsys N.V.
Registered office:
Industriepark West 40,
9100 Sint-Niklaas (België)
RPR 0478.363.517, RPR Brussel

1. General

1.1. For the application of the present General Conditions of Sale, it must be understood by:

fifthplay: the limited company with its operating headquarters at 184 Uitbreidingstraat, 2600 Antwerp (Belgium) and its registered office at 40 Industriepark West, 9100 Sint-Niklaas (Belgium).

fifthplay Solutions: the goods, hardware and/or software, which is sold by fifthplay to the Customer.

Customer: any individual or legal entity who wishes to purchase or use, or who has purchased or used fifthplay Solutions, irrespective of whether this is for private or professional use, onward sale or distribution, own use or use for the benefit of others.

General Conditions of Sale: the present General Conditions of Sale of fifthplay.

Website: www.fifthplay.be or www.fifthplay.com.

In these Conditions the Customer and fifthplay are called collectively the Parties and individually the Party.

1.2. These General Conditions of Sale are applicable unless agreed otherwise in writing by the Parties.

1.3. The Customer renounces any application of the terms of his own general or special conditions, even if the latter stipulate that they alone are valid.

2. Drawings and Descriptions

2.1. The weights, measurements, form, quality, capacity and other details included in catalogues, prospectuses, circulars, advertisements, illustrations, websites and price lists have the character of an approximate indication. Such details are only binding insofar as an agreement makes express reference to them and they are expressly branded as binding.

3. Orders

3.1. For orders by the Customer only the references which appear in the fifthplay catalogues are taken into consideration. In the event of a mistake in the order, no return of any fifthplay Solutions can be accepted without the prior written agreement of fifthplay. This indeed applies to all returns. Moreover any intervention will be charged in the costs of twenty per cent (20%) on the selling price.

3.2. fifthplay reserves the right to apply minimum quantities to the quantities ordered, which are at least equivalent to the smallest packing unit.

4. Packing

4.1. Unless agreed otherwise in writing by the Parties, the prices are regarded as valid for the goods packed in standard packing.

4.2. Any extra packing (including seaworthy packing) will be provided at the express written request of the Customer and charged to the Customer.

5. Transfer of Risk

5.1. Unless agreed otherwise in writing, delivery is made “ex Works” (EXW) in accordance with Incoterms 2000. Subject to Article 6, title and risk are transferred then.

5.2. If fifthplay has acted at the request of the Customer to arrange transport or deal with Customs formalities, it cannot be held liable for this. All costs arising therefrom shall be charged to the Customer.

5.3. The fifthplay Solutions are in any case conveyed at the Customer’s risk. If at the express written request of the Customer the goods have to be insured for storage and transport, fifthplay will take care of this and charge on any costs arising and without any liability.

6. Reservation of Ownership

6.1. WITHOUT DETRACTING FROM THE TERMS OF ARTICLE 5, THE FIFTHPLAY SOLUTIONS REMAIN THE PROPERTY OF FIFTHPLAY UNTIL THE TIME OF PAYMENT OF THEIR SALES PRICE IN FULL. fifthplay reserves the rights to claim back the fifthplay Solutions from whomever they may be with.

6.2. Any deposits, portions of the sales price, paid by the Customer, may be applied to offset any loss or damage suffered by fifthplay on account of default or any other sums due to fifthplay.

7. Intellectual Property

7.1. The Customer recognises that the intellectual property rights of the fifthplay Solutions belong to or have been given on licence to fifthplay and that fifthplay or the third-party licensor are the owners of these intellectual property rights.

7.2. fifthplay grants the Customer only the right to use the fifthplay Solutions for what they are intended.

7.3. The Customer is forbidden to reproduce or change, in any way whatsoever, the hardware, software, texts, files or data, codes, topographies, brand names, logos and/or the images, without the prior written consent of fifthplay.

7.4. All software in the fifthplay Solutions is and remains the exclusive property of fifthplay and/or of its suppliers. The software may not be reproduced or copied, not even for internal use by the Customer. The rights of fifthplay apply to all versions and subsequent updates.

7.5. The Customer shall keep the ownership statements in the fifthplay Solutions, manuals and maintenance instructions in good condition and guarantees to preserve the confidential nature of the software.

8. Transfer of Debt Clause

8.1. In the event of the onward sale of fifthplay Solutions to a third party, the Customer transfers his claim for debt on that third party to fifthplay, without prejudice to the right of fifthplay to hold the Customer, who remains severally liable, liable for payment.

9. Delivery Periods

9.1. Unless agreed otherwise in writing by the Parties, the delivery period runs from the date of receipt and acceptance of the order by fifthplay.

9.2. The delivery period never runs during collective holiday periods of fifthplay, nor when delivery is prevented by force-majeure.

9.3. Unless agreed otherwise in writing by the Parties, the delivery period stated in the agreement is only a possible estimate. Any delay can never give rise to the breach of the agreement, cancellation of the order or any compensation.

9.4. If the Customer does not take delivery of the fifthplay Solutions at the time they are made available or delivered, fifthplay is nonetheless entitled to claim from the Customer payment of the invoice and if applicable the reimbursement of all costs, including those of storage and custody, and any damages. The storage of the fifthplay Solutions provided by fifthplay is for the account and risk of the Customer.

9.5. fifthplay is entitled to make part-deliveries of orders without the Customer being able to refuse the delivery.

9.6. Complaints regarding visible defects on fifthplay Solutions must be submitted to fifthplay within a period of five (5) calendar days from the date of receipt of the fifthplay Solutions. The expiry of this period counts as forfeiture. Each complaint must be made in writing.

10. Payment

10.1. All payments shall be made in Euros unless agreed otherwise by the Parties.

10.2. Unless agreed otherwise in writing by the Parties or unless stated otherwise on the invoice, invoices are immediately payable on receipt. As from their due date and without any official notification they shall lawfully incur interest as provided for in the law on arrears of payment dated 2nd August 2002. The Customer may in no case invoke offsetting.

10.3. All present and future taxes, levies or duties, of whatever nature, associated with the sale of the fifthplay Solutions supplied by fifthplay are for the Customer’s account.

10.4. In the event of non-payment of the invoice on its due date, fifthplay also has the right, without any prior warning, to supplementary compensation of ten per cent (10%) of the sales price with a minimum of twenty-five Euros (25 EUR).

10.5. The prices are net, exclusive of VAT.

10.6. The selling prices are those valid on the date of delivery to the Customer.

11. Financial Guarantees

11.1. If it appears to fifthplay that the credit of the Customer has been impaired, for example when judicial measures have been taken against the Customer and/or when matters arise which make the good performance of the agreed obligations difficult or impossible, then fifthplay has the right, even in the event of partial or complete dispatch of the fifthplay Solutions, to suspend the order in whole or in part and demand additional guarantees.

11.2. In the event of refusal by the Customer, fifthplay has the right to cancel the order in whole or in part, all this without detracting from fifthplay’s right to claim compensation.

12. Resolutory Clause

12.1. In the event of any serious shortcoming by the Customer in the performance of his obligations, such as inter alia late payment, not taking delivery of the fifthplay Solutions ordered or violation of intellectual property rights, fifthplay can rescind the agreement without any prior official notification, without any legal intervention and without detracting from fifthplay’s right to claim compensation. fifthplay’s wish to rescind shall be sufficiently apparent from the fact of sending a registered letter making mention of this.

12.2. In all other cases than that of late payment, for which Articles 10.2 and 10.4 apply, fifthplay has the right to compensation of fifteen per cent (15%) of the purchase price, with a minimum of one hundred and twenty-five Euros (125 (EUR), without prejudice to fifthplay’s right to prove a higher loss.

13. Warranty

13.1. The warranty covers the repair or replacement of a fifthplay Solution and does not cover any loss or damage or costs associated with the lack of compatibility, including the costs of third parties (who have become involved whether or not on the instructions of the Customer).

13.2. THE WARRANTY PERIOD IS TWO (2) YEARS FROM THE DATE OF DELIVERY. The invoice date of the purchase by the Customer is valid as the delivery date. If there is no invoice, the production date applies.

13.3. The Customer is obliged to inform fifthplay in writing about the lack of compatibility at the latest within two (2) months from its discovery. A clear description of the fault is required. Without a description of the fault fifthplay only conducts a short test of the basic functions of the unit. For the description, preferably make use of the “Return Material Authorization” form, which can be called up from the fifthplay Support Service.

13.4. The warranty conditions are not applicable:

(a) when the cause of the fault is inherent in the normal working or service life of the fifthplay Solution;

(b) in the case of a faulty fuse or exhausted battery, which can be simply replaced by the Customer;

14. Hidden Defects – Liability

14.1. Without prejudice to the application of common law concerning hidden and visible defects, fifthplay shall remedy any undisputed hidden defect or lack of compatibility on delivery of fifthplay Solutions, which is not the result of insuperable ignorance of fifthplay or of incorrect intervention by the Customer or a third party, by replacement with the same or an equivalent unit (in the case of end of production or stock) or by repair, in the choice of fifthplay.

14.2. fifthplay is the owner of the replaced parts.

14.3. Apart from what is stated in Article 13 and Article 14.1 fifthplay shall not be bound by any other guarantee or compensation, except in the case of deliberate intent by fifthplay.

14.4. With all other rights reserved, fifthplay is in no case liable for any kind of loss or damage caused:

(a) if it cannot be demonstrated that the faults were present at the time of bringing the fifthplay Solutions into circulation;

(b) in the event that, given the state of knowledge and technology, fifthplay could not have been aware of the faults;

(d) due to the design of the unit in which the fifthplay Solutions have been incorporated, installed or fitted;

(e) as a result of the faulty functioning of the internet connection, broadband connection or any other service or infrastructure over which fifthplay has no control.

(f) due to defects in the hardware or software which the Customer is using in combination with the fifthplay Solutions;

(g) due to viruses, Trojan horses or bugs in the hardware or software which the Customer uses and which has not been supplied or made available by fifthplay;

(h) due to faults or negligence by the Customer or any third party, including inter alia faulty instructions, faulty manoeuvres, incorrect operation, transformations;

(i) due to a lack of maintenance or maintenance that is contrary to the maintenance instructions issued by fifthplay, the producer or importer;

(j) due to use by the Customer or any third party which is contrary to the purpose for which the fifthplay Solutions are intended, to good practice or to valid regulations, including in particular, without being exhaustive, any criminal or deceitful actions, violation of privacy regulations, camera legislation or any security standards;

(k) due to the intervention by a third party not recognised or certified by fifthplay;

(l) due to the products and services of third parties, the way in which they have been offered, sold, leased, used, delivered or carried out.

14.5. The Customer expressly acknowledges being aware of the regulations concerning privacy and the use of (web)cameras and undertakes to obtain all prior approvals and give notification (by means of pictograms) before using the fifthplay Solutions for surveillance purposes.

14.6. The Customer shall indemnify fifthplay against all claims or demands which third parties might bring against it on the basis of any fault or damage arising out of the circumstances as summarised above.

14.7. IN GENERAL FIFTHPLAY SHALL NOT BE LIABLE, EXCEPT IN THE CASE OF DELIBERATE INTENT, FOR ANY COMPENSATION FOR ANY DIRECT OR INDIRECT LOSS OR DAMAGE, such as inter alia to other goods belonging to the Customer, loss of an opportunity or losses associated with the professional activities of the Customer, loss of profit, drop in turnover, and loss of customers or data.

15. Assembly and Installation

15.1. Unless agreed otherwise in writing by the Parties the assembly and installation never constitute part of the agreement. Nonetheless fifthplay may agree in writing on certain conditions, to request specialised workers, installers or fitters, at the request of the Customer, to do such assembly and installation. In this case the services of such workers, installers or fitters shall be at the Customer’s expense and responsibility.

15.2. The Customer must at his own expense make available all equipment and material necessary for the assembly.

16. Force majeure

16.1. By force majeure is understood all circumstances which occur outside the control of one of the Parties after the coming into existence of the agreement, which cannot be ascribed to them and which prevent the performance of the agreement, such as: natural disasters, terrorism, political unrest or war, fire, mobilisation, confiscation, embargo, shortage of means of transport, general scarcity of raw materials, shortcomings of suppliers, restrictions on energy use, etc.

16.2. The Party which appeals to the aforesaid circumstances must immediately inform the other Party of the occurrence as well as the discontinuance of the same.

16.3. If the force majeure situation lasts with one of the Parties for more than forty (40) days, the agreement may be ended by the Other Party by means of a registered letter, without any compensation being due.

16.4. The existence of one of these circumstances removes all liability in respect of non-performance of the agreement during the force majeure situation, both of fifthplay and of the Customer.

17. Applicable Law

In the event of any dispute, the Courts and Appeal Courts of the judicial district in which the registered office of fifthplay is based have exclusive jurisdiction, without prejudice to fifthplay’s right to bring any dispute before another competent Court.

19. Language

Only the General Conditions of Sale in the Dutch language are decisive for any interpretation of the wording used. Translations in French, English, German or any other language have only been prepared by fifthplay for the comprehension of the Customer.

20. Personal Data

20.1 The personal data provided by the Customer shall be computer-processed by fifthplay within the framework of the management of the customer-base file.

20.2 The data may also be process for promotional and prospection purposes and in order to inform the Customer about the company, products and services of fifthplay. If the Customer does not wish for this, he can object at no cost to any further processing of his/her personal date for direct-marketing reasons by fifthplay by sending a simple request to this end by letter.

20.3 The personal data of the Customer may be communicated to other affiliated and associated enterprises. The Customer may obtain a list of these by a simple letter of request.

20.4 The Customer may always ask for the communication to him/her and correction of his/her personal data. For this too it is sufficient to contact fifthplay by letter.

20.5 A public register of computer-processed personal data is kept by the Commission for the Protection of Personal Privacy. If the Customer wants additional information about the manner in which fifthplay processes the data, he/she can consult this register.

21. Nullification, Impracticability or Unenforceability

The nullification, impracticability or unenforceability of any clause of these General Conditions of Sale leaves the validity, practicability and enforceability of the General Conditions of Sale unaffected, unless the General Conditions of Sale cannot continue to exist.

22. Environment

FIFTHPLAY SOLUTIONS MAY NOT BE DISPOSED OF IN UNSORTED WASTE. TAKE ANY DISCARDED PRODUCT TO A CONTAINER-PARK OR A RECOGNISED COLLECTION POINT. Just like fifthplay or the producer, the Customer plays an important role in promoting the sorting, recycling and re-use of electric and electronic equipment. In order to finance collection and processing, the Government in certain cases levies a recycling contribution (included in the purchase price of the product).

23. Legal Entries

fifthplay nv
Industriepark West 40
9100 Sint-Niklaas
Belgium

Company No. 0442833209
Dendermonde Commercial Court
information@fifthplay.com

Last revised on 7th March 2008.

fifthplay

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