GENERAL TERMS AND CONDITIONS OF DELIVERY OF SERVICES AND GOODS
Of Ugani Prosthetics BV, a Belgian company having its registered office at O.-L.-Vrouwstraat 6, 3054 Oud-Heverlee
and with company number 0762.982.697 (hereinafter “Ugani Prosthetics”)
1. Acceptance of the General Terms and Conditions of Delivery of Services and Goods. Acceptance of an order by a customer irrevocably entails the acceptance of the present general terms and conditions of delivery of services and goods (the “General Terms and Conditions”) by such customer. The customer therefore waives any and all rights whatsoever based on any provision appearing in its own documents, whether printed or handwritten, if they are inconsistent with the General Terms and Conditions. Any reservations by the customer in this respect shall be deemed not to have been included. Deviations from the General Terms and Conditions shall only be valid if agreed in writing and signed by both Ugani Prosthetics and customer. Any provision not appearing in the General Terms and Conditions shall be subject to an express and specific agreement.
2. Formation of the contract. An order shall form a binding contract upon acceptance of such order by the customer; any reservations or refusals by the customer shall need to be communicated within a period of three (3) business days following receipt of the order. Absence of the customer’s response within said period shall be deemed an acceptance of the order. Orders and conditions communicated orally or by telephone will only be valid after written confirmation signed by the parties. Any change by the customer to any element of the order shall only be binding on Ugani Prosthetics upon the latter’s formal written consent.
3. Quotation and order. Subject to any written confirmation of the contrary, every quotation issued by Ugani Prosthetics is without any obligation until consented in writing. Orders can be placed in writing or by e-mail but will only be binding as far as they have been confirmed (with the quotation form of Ugani Prosthetics or otherwise). Order confirmation by Ugani Prosthetics implies the commencement of the contract. No modification to the order or to the quotation can be made unless both parties agree in writing. Verbal commitments by and agreements made with staff of Ugani Prosthetics and/or its representatives are not binding upon Ugani Prosthetics until and in so far as they have been confirmed in writing.
4. Pricing. All mentioned prices are in Euro or United States Dollars and are given without VAT or taxes. All other duties or taxes applicable now or in the future will be due by the customer. All subscription fees or prices per device manufactured are subject to change every six (6) months based on inflation and the internal cost structure of Ugani Prosthetics.
6. Payment. Unless explicitly agreed otherwise, the offer is payable in two separate parts based on the process and deliverables of Ugani Prosthetics as follows: (i) upon purchase order confirmation by Ugani Prosthetics, an advance payment of 80% of the offer total sales price is invoiced before the start of production and ordering; (ii) upon delivery, Ugani Prosthetics will invoice the balance of the purchase price after the deduction of the advance payment. Ugani Prosthetics will have the right to postpone any shipments as long as the payment has not been made. Payment due dates are fourteen (14) days starting from the invoice date. In the event of non-payment or late payment of the invoices, default interests will accrue at a rate of 12% per year calculated daily and without the need for prior written notice or demand. Furthermore, Ugani Prosthetics will have the right, at its sole discretion, to cancel any outstanding purchase orders, request additional advance payment for new or outstanding purchase orders, refuse to accept purchase orders or refuse to deliver or delay the delivery of any of the products. In the case of providing services, Ugani Prosthetics shall send monthly invoices for services provided, which are due within fourteen (14) days starting from the invoice date.
7. Transfer of ownership and risk. Transfer of ownership of the goods shall take place as soon as the order has been accepted by the customer. Any ownership retention provision proposed by the customer shall be deemed non-existent. All risk relating to the goods shall be borne by the customer up to and until delivery.
8. Documents attached to the order. Upon delivery of the services and goods that are the subject matter of the order, all technical, administrative and ancillary documents referred to in the order and its schedules shall be remitted to Ugani Prosthetics, together with all technical documentation required for the use and maintenance of the goods in accordance with any applicable regulations.
9. Delivery. All responsibilities and liabilities associated with the transportation and packaging of the goods, including but not limited to the financial costs and risks of loss, damage during transit or other force majeure cases, shall be borne solely by the customer. Furthermore, the carrier engaged in the transportation of the goods shall be considered, for all intents and purposes, as acting on behalf of, and as a contractor for, the customer. This designation implies that the customer assumes full responsibility for any acts or omissions of the carrier. The customer hereby agrees and commits, as an integral obligation under the terms of the contract, to take all necessary steps to ensure that the carrier engaged for the transportation of goods, along with its respective drivers, are duly informed of, and are directed to strictly adhere to, the standard loading procedures and safety practices that have been established and are customarily observed by Ugani Prosthetics.
The standard Incoterm used for the delivery of good is Ex Works. It is expressly required that the customer undertake a diligent examination of the goods immediately upon their receipt to ensure the earliest possible detection of any discrepancies.
Delivery at the place indicated may, in some very specific cases (force majeure or not), vary without affecting the execution of the contract. Should there be any alterations to the previously specified date or location for delivery, Ugani Prosthetics is committed to notifying the customer through written notice. Subsequently, a revised delivery date and, if necessary, a new location will be established.
10. Ugani Network. Ugani Prosthetics makes every reasonable effort to ensure that the content of the Ugani Network is kept up to date, and that it is accurate and complete. Nevertheless, Ugani Prosthetics makes no guarantees regarding the possibility of errors. All information on the Ugani Network is provided “as is” in good faith, without representation or warranty of any kind, express or implied, regarding the accuracy, adequacy, validity, reliability, availability or completeness of any information on the Ugani Network. Additionally, the Ugani Network is always evolving, so it is important that you periodically check for updates. To use the Ugani Network, users are required to create a personal user account. In this regard, any processing of personal data will be done in compliance with the applicable data protection and privacy laws, including Regulation 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). The user acknowledges the confidential nature of the information provided on the Ugani Network. Therefore, the user guarantees that no information will be downloaded, no screenshots will be taken, no login credentials will be shared, etc. The user of the Ugani Network agrees that Ugani Prosthetics may, for any reason, at its sole discretion (and without notice), terminate or block any access to the Ugani Network and remove all rights associated with such access. In this context, Ugani Prosthetics is not obliged to refund any fees paid by the user. Ground for such termination may include, but shall not be limited to: (i) extended periods of inactivity, (ii) violation of the letter or spirit of these General Terms and Conditions, (iii) fraudulent or illegal behavior.
11. uFit. uFit is a 3D modelling interface that is available on any computer and used by healthcare providers to make customised prosthetics and immobilisation devices that fit the patient's (residual) limbs and the orthopaedic needs of people with orthopaedic disabilities. The process encompasses the following sequential steps: (i) the User conducts a scan of the patient's limb, (ii) based on 3D scan, a design is modelled, (iii) such design may be adjusted and finalised, and (iv) the final design may be manufactured via 3D printing technology.
First, the User makes a scan of the patient's limb. The User is responsible for the quality of the scan. If the quality of the scan is not sufficient, UFit by Ugani is not responsible for the quality of the digital model or end-product. Second, based on a 3D scan, a design is modelled by the User. The User is responsible for completing all information related to the patient and pathology necessary to create an adequate orthotic or prosthetic. Third, this design can then be adjusted and finished. As the design is modified by the User, at any point in time, Ugani is not responsible for the problems that can occur because of the modifications. Fourth, after the User has finalised the design, the device can be 3D-printed according to the final design (the "Product"). As the User prints the Product at their workshop, even if such is done using Ugani 3D-printing technologies, the client will be considered the legal manufacturer and hence should comply with the applicable legal rules (in particular the European Medical Devices Regulation n°2017/745 when in Europe).
The User shall bear sole responsibility for the scan quality. If the scan quality is deemed insufficient, uFit by Ugani shall be exempt from any liability pertaining to the quality of the digital model or resultant end-product. Furthermore, the User shall be solely responsible for providing all requisite patient information and uFit pathology data necessary for the creation of an adequate orthotic or prosthetic device. As design modifications are executed by the User, Ugani shall not bear any liability for complications arising from such modifications. Upon the User's manufacture of the Product at their facility, notwithstanding the utilisation of Ugani 3D-printing technologies, the client shall be deemed the legal manufacturer and shall thereby be obligated to comply with all applicable legal requirements, particularly the European Medical Devices Regulation No. 2017/745 when operating within European jurisdiction.
11.1 Fees. Ugani offers “uFit Basic” free of charge to any prosthetist who wants to use it. For clients who want additional features, “uFit Premium” is offered at a fee. Ugani charges a fee per used unit in uFit Premium, depending on the World Bank classification of the client’s country, to ensure affordability for those with the highest need. The client bears all current and future taxes, additional charges and charges, whatever their nature, relating to the sale of the Products. The fees for the last month are invoiced on the fifteenth day of the next month.
11.2 Accessibility and operation of uFit. Ugani shall, to the extent reasonably practicable, endeavor that uFit is up-to-date and remains accessible to a standard user volume. Ugani makes no warranties regarding the timely availability of uFit features, uninterrupted service, error-free operation, immediate defect remediation, or freedom from viruses or other malicious components on the serving infrastructure. If a User finds an error, virus or other harmful elements on uFit, he/she is required to inform Ugani at the following address: info@ugani.org, so that the necessary measures can be taken. Ugani advises the users to install firewalls, antivirus and other necessary security software on their digital computer or laptop to prevent damage.
11.3 Access to uFit. To access uFit and to make use of its functionalities, each user will need to create a user account. To do this, the user must fill out a form and choose a login name and password. The user must provide (at least) the following information: username, legal name of the user/ client, e-mail address. All other information is not required, and the user is not required to provide this information to create the user account. However, Ugani may recommend that the User provides such information, in particular to improve the functioning of uFit and to provide a customised service to the user. When creating a user account, Ugani links the user account to the relevant client. The user then receives an e-mail with the request to define a password and then access uFit. If the user already has a user account, the user can log in with a login name (e-mail address or username) and password. The user account is unique, and each user may have only 1 (one) user account. One client (workshop, hospital, NGO) can have each of their employees create their own user account to facilitate tracking.
11.4 Use of uFit. The user agrees to use uFit only in accordance with the purpose specified in this Article, excluding any other purpose. The user is obliged to ensure that all information he communicates to Ugani, in particular through uFit, is accurate and kept up to date. The user undertakes to use uFit in good faith and to respect the applicable legislation, and in particular to refrain from:
i) sending to Ugani false or misleading content (and updating it as necessary to ensure that it does not become false or misleading), or communications that occur as obscene, racist or xenophobic, offensive illegal, deceptive, intrusive, abusive, harmful, violent, threatening, harassing, defamatory, infringing intellectual property rights or any of these matters;
ii) providing e-mail addresses or other types of content to Ugani without the prior consent of the persons concerned;
iii) sending to Ugani any content that infringes or in any way harms the rights of a third party (e.g. intellectual property rights, privacy, trade secrets);
iv) sending to Ugani any content that refers to illegal websites/applications or websites/applications with inappropriate content;
v) the use of uFit to send unsolicited spam, pyramid schemes or similar fraudulent processes;
vi) circumventing technical protection measures for documents and multimedia;
vii) taking any action that may adversely affect the proper functioning of uFit, the Service, including the use of computer viruses, ransomware or mass mailing;
viii) obtaining (or attempting to obtain) unauthorised access to (part of) uFit or equipment (hardware and software) used for the proper functioning of uFit;
ix) the use of a false name, a pseudonym or the use of the identity of someone else or of an entity; and/or
x) the use of uFit for purposes other than those described in these Terms or in a manner that Ugani considers objectively unacceptable.
The use of uFit by the users is entirely at the client's risk. uFit, the components and all information, software, facilities and associated services are offered "as is", with all defects, subject to availability without any kind of warranty (explicit or implicit) and within the limits of the applicable legislation. Ugani cannot be held liable for any loss or damage (direct or indirect damage, material or intangible) resulting from the use of uFit and its components or the inability to use uFit in whole or in part.
The user is required to inform Ugani in writing immediately if he/she becomes aware of inappropriate behaviour or prohibited use in relation to uFit, by sending an e-mail to info@ugani.org.
12. Warranty. The warranty period for defects is twenty-four (24) months from the date of delivery. After that warranty period, Ugani Prosthetics is no longer obliged to comply with any claim whatsoever based on the warranty. If the warranty claim is made within the permitted period, Ugani Prosthetics may, alternatively, either repair or repay the delivered items that are defective or replace them in full or in part. Warranty for replacement or repaired goods expire at the same time as the original warranty period, but shall not be less than six (6) months and no more than eighteen (18) months after the delivery date.
Ugani Prosthetics will not be liable for defects (i) if the customer or a third party makes changes or performs repairs to the goods and/or services provided without the prior consent of Ugani Prosthetics; (ii) if the customer does not immediately take all necessary measures taken to reduce the damage caused by a defect or prevents Ugani Prosthetics from remedying a defect; (iii) if the customer used the goods or services for any purpose other than the purpose for which the goods or services were; (iv) caused by surrounding accidents, fire, natural disasters, and external electrical malfunction. Ugani Prosthetics will not be liable for any devices manufactured by the partner.
For each sale of goods, the warranty for hidden defects within the meaning of Articles 1641 - 1649 of the Belgian Civil Code is applied to a hidden defect that (i) makes it impossible to use it for the purpose for which it is intended; and (ii) of which Ugani Prosthetics has been notified within four (4) business days after the date of discovery of the defect or date of the defect should have been discovered. The provisions of the first paragraph also apply to hidden defects.
13. Limited liability. Ugani Prosthetics shall only be held liable for any damage caused by a defect in its products. Ugani Prosthetics thus disclaims any liability for any other damages not resulting from the good’s quality itself (e.g. lack of supervision or maintenance). The total liability of Ugani Prosthetics in connection with the scope of the contract and the General Terms and Conditions for both contractual and non-contractual damage is in all cases limited to the amounts paid in the last 12 months under the contract.
14. Intellectual property rights. Any intellectual property rights relating to the equipment (including, but not limited to trade secrets and know-how) and services provided remain the property of Ugani Prosthetics and may not be transferred to third parties without the prior written consent of Ugani Prosthetics. Ugani Prosthetics grants the customer a non-exclusive, non-transferable personal right to use the items, goods, software, drawings and other technical and commercial documents delivered to him under the contract.
The customer shall indemnify and hold Ugani Prosthetics harmless from and against all infringement actions based on the use of equipment, supplies, drawings, documents and information (hereinafter referred to collectively as “Results”) that are the subject matter of the contract. The customer shall therefore indemnify and hold Ugani Prosthetics harmless from and against all claims, damages, judgments, costs and expenses (including, without limitation, any and all court costs, advisors’ fees and experts’ fees) relating to an infringement action, the establishment of an infringement and/or the violation of a patent, copyright and/or any other similar right.
The customer shall ensure that the Results do not infringe or violate any existing patents, copyright and/or any similar rights.
Where infringement proceedings are commenced against Ugani Prosthetics as a consequence of the use of the Results, the customer shall either cause Ugani Prosthetics to be granted the right to use the Results free of charge or modify or replace the Results without any cost to be borne by Ugani Prosthetics.
All costs, fees and/or damages directly or indirectly relating to infringement actions and/or indemnification claims, as well as the consequences of such actions and/or claims, shall be borne by the customer.
15. Use of our name. The use of the name of Ugani Prosthetics for any advertising or publicity purposes is permitted solely with the specific prior written permission of Ugani Prosthetics.
16. Confidentiality. All delivered items, goods, drawings and other technical and commercial documents delivered to the customer under the contract may only be used for the agreed purposes and may only be copied or transmitted to third parties with the specific written permission of Ugani Prosthetics. All information exchanged between Ugani Prosthetics and the customer in the context of the contract, the order, the General Terms and Conditions or the offer shall all the time be treated as strictly confidential and shall not be disclosed to third parties in any way and may be used solely for the contract.
17. Termination. Should the customer fail to carry out any of its obligations, the contract may be terminated by Ugani Prosthetics, subject to prior notice remaining without effect for a period of ten (10) days, without prejudice to other rights any such customer may have.
18. Force Majeure. The expression of force majeure shall include any failure of Ugani Prosthetics not due to its fault (e.g. telecommunication problems, prohibitions of the authorities). A case of force majeure needs to be notified as soon as possible, in writing, to the customer. Ugani Prosthetics shall not be bound to meet any obligation if prevented from doing so as a consequence of force majeure. In such a case, the agreed obligations are suspended in total for the term of force majeure. Ugani Prosthetics shall not be bound to any indemnity.
19. Third parties. The customer is not permitted to partially or completely transfer its rights and obligations as stated in these conditions to third parties without the prior written consent of Ugani Prosthetics.
20. The right to refuse. Ugani Prosthetics acts according to its mission, which is to give every amputee the right to a decent life by facilitating access to affordable and high-quality prosthetics. Therefore, Ugani Prosthetics reserves the right to refuse at its discretion and at all times an order that conflicts with its mission and value statement. Creating firearms, their components, or any other prototype or model intended for the weapon industry, or models for which Ugani Prosthetics has ethical concerns in general, are rejected to be quoted or produced. Ugani Prosthetics reserves the right to discontinue the execution process of those orders.
21. Training. Using digital equipment, especially 3D tools, is a highly technical skill which not everybody can successfully learn. Ugani will always put all possible effort into training students but cannot guarantee success. If the offered training is insufficient, Ugani Prosthetics will inform the customer and seek a joint solution. Extra training, consultancy or follow-up can come at additional costs. If the offered training is insufficient, Ugani Prosthetics will inform the customer and seek a joint solution. Extra training, consultancy or follow-up can come at additional costs.
22. Insurance. The customer shall subscribe insurances covering any liability the customer could incur as a result of the performance, non-performance and/or partial performance of this contract and for all possible damages, including direct and indirect damages, personal injury, material and consequential damages.
23. Severability. If any provision of the General Terms and Conditions is held to be invalid or unenforceable, then the General Terms and Conditions will be deemed amended to the extent necessary to render in the opinion of the relevant court the otherwise void or unenforceable provision, and the rest of the General Terms and Conditions, valid and enforceable and to accomplish to the largest extent possible the original business purpose of the offending provision. The invalidity or unenforceability of any provision of the General Terms and Conditions shall in any event not affect the validity or enforceability of the remaining provisions, which shall be enforced as if the offending provision had not been included in the General Terms and Conditions.
24. Anti bribery and anti-corruption. The customer shall comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption, including but not limited to such laws of the countries in which the customer has operations and of the countries where Ugani Prosthetics and its affiliates have operations (“Anti Bribery Laws”) and shall not engage in any activity, practice or conduct that would constitute an offence under any applicable Anti Bribery Laws. Ugani Prosthetics shall have and maintain in place throughout the term of this contract its own policies and procedures to ensure that it and any of its employees, agents, suppliers and (sub)contractors, who provide services under, or in connection with, this contract, comply with the Anti-Bribery Laws and will enforce them where appropriate. At the request of Ugani Prosthetics made at any time, the customer shall demonstrate its compliance with this provision, by providing documents and data requested by Ugani Prosthetics, and by other reasonable means requested by Ugani Prosthetics. Any breach of, or non-compliance with, any undertakings under this provision shall be reported by the customer to Ugani Prosthetics as soon as it becomes aware of such occurrence. Breach of this provision shall be deemed a material breach of this General Terms and Conditions and the contract.
25. Severability. If any provision of the General Terms and Conditions is held to be invalid or unenforceable, then the General Terms and Conditions will be deemed amended to the extent necessary to render in the opinion of the relevant court the otherwise void or unenforceable provision, and the rest of the General Terms and Conditions, valid and enforceable and to accomplish to the largest extent possible the original business purpose of the offending provision. The invalidity or unenforceability of any provision of the General Terms and Conditions shall in any event not affect the validity or enforceability of the remaining provisions, which shall be enforced as if the offending provision had not been included in the General Terms and Conditions.
26. Governing law and jurisdiction. Belgian law applies to these conditions and the offer. Any dispute will be evaluated under the jurisdiction of the French speaking courts of Brussels, Belgium.