General Terms & Conditions: The present document titled “General Terms & Conditions”, including its appendices.
General (License) Terms & Conditions of Third-Party Suppliers: The applicable general (license) terms & conditions (including payment terms) relating to the products delivered by Service Provider and/or embedded Products of Third-Party Suppliers, as well as any Third-Party terms of service provided by the maintenance services, as amended from time to time, which the Customer hereby expressly and completely accept and which forms an integral part of this Contract.
Bugs: An error, flaw, malfunction or defect in a computer program or system, as a result of which it does not (entirely) fulfil its function according to specifications and leads to incorrect and/or unexpected results and/or program crashes or shutdowns.
Data: The totality of data belonging to the Customer and/or the Users to which the Service Provider gains or can gain access to within the framework of the service. The Customer remains at all times fully responsible for this Data.
Third-Party Suppliers: Third parties, more specifically producers and/or suppliers of hard and/or software specified in the Specific Terms & Conditions, for which the Service Provider acts as a reseller and/or the one included by the Service Provider in its Services, including the maintenance services of these Third-Party Suppliers for the hardware and/or software.
Services: The services that the Service Provider shall provide to the Customer, as described in the Specific Terms & Conditions. These services are governed at all times by the General and Specific Terms & Conditions.
Services on Time & Material Basis: Services provided by the Service Provider to the Customer, which are invoiced to the Customer per hour and/or per day.
Services on a Fixed Price Basis: Services provided by the Service Provider, for which the Parties have agreed on a fixed price and for which, if applicable, the General Terms & Conditions of Solvice – Fixed Price also applies.
Service Provider: Solvice NV, with its registered office at Prins Boudewijnlaan 41, 2650 Edegem and registered in the register of legal entities in Antwerp (Antwerp department) under number 0552.540.605.
Own Development Products: The software developed by the Service Provider, and to which the General (license) Terms & Conditions of the Service Provider apply in full, and which may also include Third-Party Products, to which the General (License) Conditions of Third-Party Suppliers apply in full. The Own Development Products include the Solvice Platform.
User(s): The end consumer(s). Depending on the Services provided, these are the customers of the Customer and/or the employees/appointees or other (third) authorised representatives of the Customer to whom the Customer gives permission to use the Products, Services and/or the Solvice Platform. The Customer is exclusively responsible for the Users to whom it provides access.
Customer: The Customer stated in the Specific Terms & Conditions/purchase order.
Employees: Personnel Members, personnel members of Affiliated Companies, independent employees, subcontractors, consultants, and any other natural or legal persons directly or indirectly involved in the provision of the Services.
Contract: These General Terms & Conditions, the Specific Terms & Conditions and the General (License) Terms & Conditions of Third-Party Suppliers, as well as the appendices of this contract, which form an integral part thereof, if and insofar applicable.
Force Majeure: The situation in which one of the Parties is impeded in the performance of the Contract, whether in whole or in part and whether temporarily or permanently, beyond the control of the Party or Parties. This includes (but is not limited to): fire, war, terrorist attacks, unfavourable weather conditions, natural disasters, force majeure of the suppliers/subcontractors, Service Provider, failure to properly fulfil obligations of suppliers prescribed by Customer to Service Provider, defective goods, equipment, software or materials of third parties whose use is prescribed by the Customer to the Service Provider, government measures, Internet disruption, data network or telecommunications facilities, the unavailability of third-party servers, Bugs in the software of third parties, strikes, unavailability of Employees, general transport problems and power failure. All this regardless of whether the force majeure occurs at the Service Provider or at one of its suppliers.
Party/Parties: Service Provider and/or the Customer.
Products: The Products of Third-Party Suppliers and/or Own Development Products.
Products of Third-Party Suppliers: The software for which the Service Provider acts as a reseller and/or (partly) contained in the Own Development Products offered by the Service Provider and to which the General (License) Terms & Conditions of Third Party Suppliers apply in full.
Assignment: The totality of reciprocal services and cooperation between the Parties as described in the Specific Terms & Conditions.
Solvice Platform: The entirety of Solvice software modules, such as the modules described in the Specific Terms & Conditions.
Specific Terms & Conditions: Contract/purchase order subject to these General Terms & Conditions and describing the specific performance modalities of this Contract.
Consultant: The Employee(s) who the Service Provider appeals to for the performance of this Contract.
Affiliated Company/Companies: Companies within the definition of articles 1:20 and 1:21 of the Belgian Companies and Associations Code.
Confidential Information: All information, in any form whatsoever (oral, written, graphic, electronic, etc.) exchanged between the Parties within the context of this Contract.
2.1 All offers and other expressions by the Service Provider are without obligation, unless the Service Provider states otherwise in writing. The Customer guarantees the correctness and completeness of the data provided by or on behalf of the Service Provider on which the Service Provider has based its offer.
2.2 The Service Provider is only bound to perform the Contract after its explicit acceptance of the order for the Products and/or Services in writing.
2.3 If the Service Provider deals with the order or the Services stated in the Specific Terms & Conditions at the request of the Customer before the Contract has been signed, then the processing of the order and/or the start of the Services shall be deemed to be an acceptance of the General Terms & Conditions, the Specific Terms & Conditions and the applicable General (License) Terms & Conditions of Third-Party Suppliers. By installing the Products or by downloading or using them, the Customer accepts and takes notice of these General Terms & Conditions, the Specific Terms & Conditions, as well as any General (License) Terms & Conditions of Third-Party Suppliers and/or any general license terms & conditions of the Service Provider.
2.4 The Contract is entered into for a period of three (3) years, unless expressly agreed otherwise in the Specific Terms & Conditions. The term of the Contract will be extended repeatedly for a period of one (1) year, unless the Customer or Service Provider terminates the Contract in writing with due observance of a three months notice period before the end of the applicable period.
2.5 Without prejudice to its entitlement to compensation of damages, the Service Provider may, at its own discretion, suspend the Contract, or terminate or rescind the Contract by operation of law, with no notice of breach required, with immediate effect and without judicial intervention, by the simple delivery of a registered letter:
(a) in the event of repeated or serious violation of the contractual obligations (such as late payment and/or non-payment on any individual payment deadline) by the Customer;
(b) in the event that the Customer does not comply with the obligations regarding the AUP and/or the right of use of the Solvice Platform;
(c) in the event that the Customer – whether or not provisionally – is granted a suspension of payment, or is in a state of bankruptcy or discontinuation of payment, or his credit line is in jeopardy or is obviously insolvent, or if the Customer’s company is liquidated or terminated other than for the purpose of reconstruction or a merger of companies;
(d) if the decisive control over the business of the Customer directly or indirectly changes;
(e) in the event the Customer refuses to sign, confirm or accept the time sheet or any other time accounting system without valid reason;
(f) the Customer offers an agreement to its creditors or discontinues the business;
(g) should any or all of the assets of the Customer be under foreclosure and/or a garnishment order at the request of a creditor or in the event of other executive or protective measures with respect to the Customer’s assets;
(h) in the event of proof or serious suspicions of fraud committed by the Customer;
(i) in the event that the Customer refuses to provide the requested information or has provided incorrect and/or false information.
The Service Provider is never obliged to refund any amounts already received or to pay damages due to the termination as referred to in Article 1.6.
In the event that the Customer is irrevocably bankrupt, the Customer’s right to use the software, websites and other products supplied by the Service Provider will automatically end, as well as the Customer’s right to access and/or use the services of the Service Provider, without a cancellation procedure being required on the part of the Service Provider.
2.6 Further, either Party may terminate the Contract if the other Party commits a demonstrated serious error or material Contractual failure and does not rectify this within a period of thirty (30) calendar days after being notified by registered letter of default by the Party invoking the error or failure. Extension of the aforesaid period for remedy of the default shall not be refused on unreasonable grounds if during the remedy period of thirty (30) calendar days the Party in default has commenced remedying the default and is making reasonable efforts to continue to do so.
2.7 The Service Provider is entitled to suspend its obligations automatically by sending a mere notification to the Customer by registered letter, if the Customer does not fulfil its obligations under this Contract, so the Service Provider can suspend the services provided and/or cease and/or disable software.
2.8 Unless the Customer terminates the Contract due to a proven gross and unjustifiable error or material shortcoming on the part of the Service Provider, the Customer shall reimburse the Service Provider for all Products ordered and the Services and working hours actually performed at the time of the termination. The effective work hours performed at the moment of termination shall be billed at the Service Provider’s applicable hourly rates, without prejudice to the Service Provider’s option to use any and all legal means to demonstrate any damages suffered in excess thereof.
2.9 If the Contract is rescinded by one of the Parties, this rescission is considered to be effective as from the date of the postmark of the registered letter giving notice that the Contract is rescinded.
2.10 If the Contract is entered into for a definite period of time, the Customer is not entitled to terminate the Contract prematurely.
3.1. The Customer undertakes the obligation to pay a fee equal to the number of (hours) days of performance times the rates for consultancy services agreed in the Specific Terms & Conditions. Unless otherwise agreed in the Specific Terms & Conditions, a minimum intervention shall be at least four (4) hours. Any estimates in, for example, price or time quotations from the Service Provider are purely indicative.
The price and payment modalities for the Products are laid down in the Specific Terms & Conditions.
The Service Provider is in all cases entitled to adjust the prices for Products and Services by means of a written notification to the Customer if this is the result of a price adjustment by its Third-Party Suppliers or due to exchange rate differences.
3.2. The fees are in euros and exclude VAT (revenue tax) and any other levies imposed or to be imposed by the government. Unless otherwise stated in the Specific Terms & Conditions, these fees exclude travel times, incidental expenses and all other reasonable costs. All these costs are to be borne by the Customer.
3.3. If, according to the Contract concluded between the Parties, the Customer consists of several natural persons and/or legal entities, each of those (legal) persons shall be jointly and severally liable towards the Service Provider to perform the Contract.
3.4. The Service Provider may adjust the fees annually on 1 January based on the following formula:
New price = Base price * (0.2 + 0.8 * New index (Initial index))
For which the following definitions apply:
3.5. The Service Provider shall take all reasonable steps to perform the Services in accordance with the Customer’s work schedule. Barring any agreement to the contrary between the Parties, the work schedule will be assumed to be 38 hours per week. Where the work schedule is more than 38 hours per week, the following increases will be applied (non-cumulative):
3.6. Barring a Contract in writing between the Parties to the contrary, the Consultant shall have his/her performance hours signed off by the Customer in the form of timesheets or some other timekeeping system agreed between the Parties.
3.7. In the event of a sudden fundamental change in circumstances with an effect on the agreed price that was both unforeseeable at the time of the determination of the price and that constitutes a disruption of the contractual equilibrium, then, upon demand by either Party, the Parties will meet to agree on a reasonable adjustment of the Contract. If the Parties are unable to reach a consensus after thirty (30) calendar days from the moment of the request to adjust the Contract, either Party has the option to cancel the Contract by virtue of notice by registered letter with a notice period of thirty (30) calendar days, without giving rise to any obligation for compensation on the part of the cancelling Party.
3.8. The Parties shall determine the date or dates in the Specific Terms & Conditions on which the Service Provider shall invoice the fees for the agreed performance to the Customer. Excepting where agreed otherwise in the Specific Terms & Conditions, the Service Provider shall invoice the Customer on a monthly basis. All invoices are payable thirty (30) calendar days after the date of invoice, unless specified otherwise in the Specific Terms & Conditions. The absence of written contestation of an invoice within eight (8) business days from the date of sending of the invoice constitutes irrevocable acceptance of the invoice, the Products mentioned therein, any corresponding maintenance agreements and/or the Services listed therein.
3.9. After expiry of the payment period, the Customer is automatically in default without any prior notice being required. Upon the expiry of the payment period, the Customer incurs conventional interest charges equalling the interest rate as defined in Article 5 of the Belgian Act on payment arrears (Act 2 August 2002, Belgian Official Journal 7 August 2002), increased by 3%. This interest is calculated from the deadline for payment of the invoice up until the date of full payment.
3.10. In the event of late payment of an invoice:
This is without prejudice to the other legal and contractual rights of the Service Provider.
Should the Customer fail to meet its payments, the Service Provider reserves the right to disconnect access to the Solvice Platform until payment has been received. Temporary disconnection of the Solvice Platform does not grant the Customer the right to terminate the Contract and/or to cease (further) payments.
3.11. The Customer is not entitled to settlement of the amounts owed or suspension of any payment.
3.12. Payments made by the Customer to the Service Provider will be charged initially to the costs incurred by the Customer, then to the interest owed and, only in the last instance, to the principal owed.
3.13. If in the opinion of the Service Provider, the Customer’s creditworthiness so dictates, the Service Provider may, even after the signing of the Contract, require the Customer to furnish security requested by the Service Provider for the payment of the Services yet to be provided, and the Service Provider may suspend performance as long as the security is not furnished.
3.14. The Customer may not derive any rights or expectations from a preliminary calculation or budget issued by the Service Provider unless the Parties have agreed otherwise in writing. An available budget made known by the Customer to the Service Provider only applies as a (fixed) price agreed between the Parties for the services to be provided by the Service Provider if and insofar as this has been expressly agreed in writing.
3.15. If, without valid reason, the Customer cancels its order in whole or in part or remains in default of receiving and accepting any or all of the Products and/or Services provided without valid reason, the Service Provider is entitled to rescind the Contract or demand fulfilment. The damages suffered by the Service Provider will be a minimum of 50% of the value of the order or the unfulfilled portion thereof, without prejudice to the Service Provider’s right to demonstrate actual damages suffered, using any and all means to do so, if such damages are greater.
4.1 The Service Provider undertakes to execute the Services to the best of its ability on behalf of the Customer and/or the Products listed in the Specific Terms & Conditions and to provide any (maintenance) services that may be required. The Service Provider shall take the technical instructions and guidelines it receives from the Customer into account.
4.2 The Customer declares that it has been fully informed by the Service Provider concerning the options for the Products and/or Services (type, characteristics, operation, use potential and limitations, warranties, required environment, costs) as well as in regard to the issues of modification, installation or integration and expansion that may arise and the impact of this on the existing hardware and/or software and/or licenses already installed at the Customer’s. The Parties agree that the Service Provider cannot be held liable for this.
4.3. The Customer bears full liability for the selection of the Products and/or Services as well as for errors and/or omissions in the order of the Products and/or Services. The Service Provider is fully informed concerning the needs and expectations of the Customer exclusively in the form of the Specific Terms & Conditions. The contractual obligations of the Service Provider can only be derived from the Contract. The Products and Services shall be developed and/or delivered by the Service Provider in the state in which they are at the moment of delivery (as is), and therefore with all visible and invisible errors and defects. Under no circumstances does the Service Provider warrant the suitability or marketability of the Products and/or Services for the performance of specific tasks envisioned by the Customer unless said tasks are explicitly covered in the Specific Terms & Conditions and/or the description of the functional specifications. As a consequence, the Customer is itself responsible for the order, the suitability of the Products and/or Services rendered to achieve the results intended by the Customer. Under no circumstances can the Service Provider be held liable in the event of incorrect services and/or an incorrect choice of product or failings in product specialisation in the Specific Terms & Conditions.
4.4 In so far as the Specific Terms & Conditions do not refer to any other capacity of the Customer, the Customer is irrevocably deemed to be a professional user acting in the context of its professional activities. The Customer is deemed to possess the relevant know-how in relation to the Products and/or Services to be performed, and to provide personnel with the relevant expertise.
4.5 For the performance of this Contract the Service Provider will draw on the services of one or more Consultants. The Service Provider reserves the right to determine what Consultant shall be assigned to the performance of the Services, and to replace the Consultant as the Service Provider sees fit throughout the duration of the Contract.
4.6 Where deemed necessary or desirable by both Parties, the Parties may also agree to charge another Consultant with the performance of the Contract, either temporarily or permanently.
4.7 If the Consultant does not or no longer meets the set requirements, brings the Customer’s good name into disrepute or does not perform or no longer performs the Contract in accordance with any reasonable definition, the Customer is entitled to request the Service Provider to replace the Consultant. This does not discharge the Customer from its obligation to continue to pay for the Services performed by the Consultant. If the Service Provider agrees to the replacement of the Consultant, it undertakes the obligation to provide the Customer with a replacement as quickly as reasonably possible. If the Service Provider is unable to provide a qualified replacement within a term of two (2) weeks, the Customer is entitled to terminate the portion of the Contract pertaining to the Consultant to be replaced.
4.8 If during the term of the Contract the material specifications for the performance of the Contract change, the Customer shall compensate the Service Provider for the additional training of the Consultant. If the Customer itself provides a training to the Consultant, then barring any provision to the contrary in the Specific Terms & Conditions the costs for this training are to be borne by the Customer.
4.9 To the extent possible, the Service Provider must report any scheduled interruptions of the performance of the Services (such as short-term illness, Consultant leave days, etc.) to the Customer in a timely manner.
4.10 Unless otherwise specified in the Specific Terms & Conditions, the Services are to be performed in the spaces of the Customer. The Customer shall give the Service Provider free access to the work environment and provide the necessary facilities, such as a workspace with computer, printer, data, Internet, telephone and network facilities. If required, the Customer must provide all necessary security measures, such as but not limited to VPNs and tokens. Additionally, the Customer will make arrangements for the required facilities for the design, testing and operational use of the ICT system to be developed. If the Service Provider deems this necessary, the system and related services (system administration) of the Customer must also be available outside normal business hours. the Service Provider is not liable for damage or costs due to transmission errors, malfunctions or non-availability of these facilities, unless the Customer proves that such damage or costs are the result of intent or deliberate recklessness on the part of the Service Provider’s management.
4.11 The work space and facilities shall be in compliance with all requirements of law. The Customer indemnifies the Service Provider against claims of third parties, including the Employees of the Service Provider, who suffered damages in connection with the performance of the Contract and resulting from the acts or omissions of the Customer or from unsafe situations in the Customer’s organisation. The Customer shall notify the Consultant(s) of the house rules and safety procedures prior to the start of the Services.
4.12 The setup and alteration of the location where the Services shall be carried out, at the Customer’s expense, with the Customer being liable for all damages and associated costs incurred by the Service Provider as a result of late, incorrect or faulty performance thereof.
4.13 If the unavailability of employees and/or facilities and/or material of the Customer reasonably deemed necessary for the performance of the Services result in extra costs, including but not limited to extra time spent by Employees of the Service Provider, these extra costs shall be invoiced to the Customer.
4.14. The Parties acknowledge that the success of activities in the field of information and communication technology depends on timely cooperation. The Customer shall at all times promptly grant all reasonable cooperation desired by the Service Provider. The Customer shall at all times promptly grant all reasonable cooperation desired by the Service Provider and/or provide crucial information.
4.15. If the Customer employs his own personnel and/or auxiliary staff during the execution of the Contract, these personnel shall have the necessary knowledge and experience at their disposal.
4.16. The Service Provider provides the Services within the limits of this Contract and the information provided by the Customer. The Customer warrants the accuracy, completeness and timeliness of the information it provides, stated dimensions, requirements, specifications of the Services and other data crucial to allow the Services Provider to fulfil the obligations under this Contract. The Customer indemnifies the Service Provider for all damages resulting from incorrect, late or incomplete provision of information.
4.17. If the Customer provides software, equipment or other resources to the Service Provider in connection with the Products and Services of the Service Provider, the Customer is solely responsible for obtaining all necessary licenses and/or approvals with regard to these resources that the Service Provider may require.
4.18. The Customer is responsible for the management, including monitoring of the settings, the correct use of the Products and/or Services provided by the Service Provider and the manner in which the results of the Products and Services are used. The Customer is also responsible for the instruction of Users, as well as their use.
4.19. The Customer shall install, set up, parametrise, refine the (auxiliary) software needed on its own hardware and, if necessary, adapt the equipment used for this, including other auxiliary equipment, other auxiliary software operating environments and ensure the interoperability required by customers.
4.20. The Service Provider is only obliged to periodically provide the Customer with information on the execution of the work through the contact person appointed by the Customer.
4.21. Under normal circumstances the Customer shall at all times bear the end responsibility for the running projects of which the Products and Services of the Service Provider may be a part.
4.22. The performance is rendered by the Service Provider with all due care that can be reasonably expected in accordance with the state of the art.
5.1 Products of Third-Party Suppliers and/or open source technology may be required for the delivery of the Services.
5.2 If Products of Third-Party Suppliers and/or open source technology is being offered as a part of the Services provided by the Service Provider, the Customer agrees that such Products from Third-Party Suppliers and open source technologies are licensed under the terms & conditions and modalities of the respective Third-Party Supplier’s General (License) Terms & Conditions and not under the Terms & Conditions of this Contract. Any General (License) Terms & Conditions of Third-Party Suppliers shall apply fully and form an integral part of the present Contract.
5.3 The Customer hereby expressly accepts the applicability of the General (License) Terms & Conditions of Third-Party Suppliers as amended from time to time, and the Customer acknowledges to have taken notice. If Parties agree that new Products from Third-Party Suppliers and/or open source technology shall be used in the implementation of the Services, the applicable General (License) Terms & Conditions of Third-Party Suppliers shall automatically become part of the present Contract and shall be applicable to the Customer, who shall strictly comply with them.
5.4 The Customer accepts that the Service Provider is not liable for Products of Third-Party Suppliers and/or open source technology, nor the related maintenance agreements.
5.5 The Customer may no longer exercise rights regarding the open source technology and/or Products provided by the Third-Party Suppliers than in the corresponding General (License) Terms & Conditions of Third-Party Suppliers.
5.6 The Customer acknowledges that the Service Provider is not liable for any Third-Party Products and open source technology introduced in the environment by the request of the Customer himself and the related maintenance services. The Customer shall only be able to address the Third-Party Suppliers within the limits of the relevant General (License) Terms & Conditions of the Third-Party Supplier or of the maintenance agreement. The Customer guarantees that he has received the commercial rights to use the rolled-out applications on the virtual machines. The above provisions also apply to any changes, updates or upgrades.
5.7 The Customer is aware that installation of the Third-Party Supplier Products supplied by the Service Provider may have consequences for the existing hardware and/or software and/or the licenses already installed at the Customer. The Parties agree that the Service Provider cannot be held liable for this.
5.8 The Customer indemnifies the Service Provider against any claims by Third Party Suppliers against the Service Provider for violations of the Third Party Suppliers General (License) Terms & Conditions for any reason, and the Customer shall fully indemnify the Service Provider for all costs, damages, expenses and outlays incurred by the Service Provider as a result of this, including its attorney’s fees.
6.1. The (interim) delivery dates specified by the Service Provider or agreed between the Parties always apply as target dates, are not binding for the Service Provider and are always indicative in nature. Late delivery cannot give rise to compensation, refusal to accept the Services or Products or cancellation of the order.
7.1 Confidential information is defined as all information of any form whatsoever (oral, written, graphic, electronic, etc.) exchanged between the Parties in the context of this Contract. Information shall be regarded as confidential if it has been designated as such by one of the Parties or regarded as confidential by a reasonably careful and trustworthy person. The Customer acknowledges that the software originating from the Service Provider is always of a confidential nature and that it contains business secrets of the Service Provider, its suppliers or Third-Party Suppliers.
7.2 Each Party and its Employees must keep confidential all confidential information received from the other Party in the performance of this Contract. Additionally, the Parties may only use the confidential information for the purposes of this Contract. The Parties may not disclose the confidential information to third parties without the written consent of the other Party.
7.3 The confidentiality obligation shall continue to exist for a period of three (3) years after disclosure, and shall in any event end no later than three (3) years after the end of this Contract, regardless of the cause of the termination of the Contract.
7.4 The following are not considered to be confidential information:
7.5 The Service Provider may also include the Customer in its customer list, publish a brief description of the assignment and use the Customer’s name and trademark for publicity purposes and PR activities.
8.1 All intellectual property rights on the Products and/or the results of the Services of the Service Provider are exclusively vested in the Service Provider and/or Third-Party Suppliers, its licensors or its suppliers. Unless stated otherwise in the Specific Terms & Conditions, the Service Provider grants the Customer a limited, non-exclusive, non-sub-licensable and non-transferable right of use with regard to the Products and/or the results of the Services performed from the moment of full payment of all invoices, as well as all other amounts the Customer owes due to the payment obligation, as well as all other amounts the Customer owes due to the failure to pay, and this for the duration of the Contract. The Customer shall only use the Products and/or results of the Services in the manner prescribed by the Service Provider.
8.2 The General Terms & Conditions and modalities related to the intellectual property rights and usage rights, as contained in the relevant General (License) Terms & Conditions of these Third-Party Suppliers, are fully applicable to the Products of Third-Party Suppliers. The Customer indemnifies the Service Provider against all damage, claims and liability resulting from an infringement of the intellectual property rights of Third Party Suppliers by the Customer and/or Users.
8.3 The risks associated with the Products and Services provided transfer to the Customer at the moment of delivery. The delivery Terms & Conditions of Third-Party Suppliers are directly applicable to the Customer.
8.4 The Customer is not permitted to remove or alter any indication concerning the confidential nature pertaining to copyright, trademark, trade name or any intellectual or industrial property right from the software, websites, databases, equipment or materials.
8.5 If a third party institutes a claim against the Customer because of a deliberate violation of his or her intellectual property rights by the Service Provider, the Service Provider shall, at its own expense, either(i) defend the Customer against such legal action and indemnify damage and costs assigned by a court to the claimant third party, or(ii) reach an amicable settlement with this third party regarding the dispute with the Customer.
The aforementioned obligation is only entered into if and in so far as:
8.6 If the Product and/or the result of the Services delivered by the Service Provider violates the intellectual property rights of third parties or, in the opinion of the Service Provider, could potentially violate them, the Service Provider has the choice to at its expense:
- replace or change the Product and/or the result of the Services (with significant retention of the use options and functionalities) to ensure there is no doubt concerning an infringement, or;
- acquire the right to continue its use on behalf of the Customer;
- accept the return of the Product and/or the result of the Services and reimburse the payments made by the Customer under the Contract with deduction of a reasonable fee for the period that the Customer has used the Product and/or the result of the Services.
The Customer acknowledges and accepts that the regulation referred to in articles 7.5 and 7.6 contains the exhaustive right of recourse for the Customer with respect to an infringement of the intellectual property rights and/or the resulting damage.
8.7 The obligation to indemnify infringements if the infringement is related (i) to materials made available to the Service Provider by the Customer for use, processing, handling or maintenance, or (ii) if the Customer made or had changes made to software, website, data files, equipment or other materials.
8.8 The Customer warrants that no rights of third parties obstruct making equipment, software, material intended for websites, data files and/or other materials and/or designs available to the Service Provider, with the aim of use, maintenance, processing, installation or integration. The Customer indemnifies the Service Provider against any claim by a third party that is based on the assertion that such provision, use, maintenance, processing, installation or integration infringes any right of that third party.
8.9 The Customer acknowledges and agrees to the fact that development of the Products has cost a substantial amount of money and time and that these Products are confidential for, and a trade secret of, the Service Provider and/or Third-Party Suppliers and/or third parties. The Customer commits to keeping the Products absolutely confidential, to not disclose the Products to third parties, and to prevent access being gained to them, unless explicitly agreed otherwise.
10.1 The Customer agrees not to actively approach the Employees of the Service Provider, directly or indirectly, for the purpose of engaging or recruiting them, during the entire term of the Contract, as well as for a period of twelve (12) months after termination of the Contract, excepting where agreed otherwise in writing by the Parties.
10.2 If the Customer Contracts an Employee of the Service Provider or recruits or use the Services of any such Employees, whether under an employment relationship, on an independent basis and/or through a company, the Customer shall pay to the Service Provider an amount equivalent to six (6) months of fees/compensations owed to that Employee. This sum shall be payable on the date on which the Employee is first engaged or on which the Employee’s Services are first used.
10.3 The Customer undertakes to impose the obligations under this article on third parties with which it partners and/or contracts. The Customer commits to ensuring that these third parties shall not approach any of the Employees of the Service Provider with the purpose of engaging or recruiting these persons.
11.1 Each Party must at all times adhere to its respective obligations under applicable law in regards to the processing of personal data in connection with personal data processed pursuant to this Contract. The Customer undertakes to refrain from granting the Service Provider and the Consultant access to personal data within the framework of this Contract, except when the performance of the Contract would be impossible without such access. The Customer undertakes in such a case only to grant access to the personal data that are strictly necessary for the execution of the Contract. The Customer is solely responsible at all times for the determination of the objectives for which the Service Provider processes personal data pursuant to the Contract. For the sake of clarity, the Parties acknowledge that the Customer acts as the party responsible for the data processing, and the Service Provider acts as the processor of the personal data that must be stored, used or otherwise processed at the instruction of the Customer for the offices of this Contract, as these terms are defined in the legislation governing the processing of personal data. All costs related to and/or arising from the application and/or implementation of the applicable legislation governing the processing of personal data are exclusively at the expense of the Customer.
If this is necessary for the performance of the Contract, the Customer shall, upon request, inform the Service Provider in writing about the manner in which the Customer performs his obligations under the legislation on the protection of personal data.
11.2 The Customer declares that it has obtained all approvals necessary for the use and processing of the personal data transferred to the Service Provider for the purposes of the Contract, and the Customer further warrants that the content, use and/or processing of the personal data is not wrongful and does not violate the rights of third parties. The Customer shall indemnify the Service Provider against claims from persons whose personal data is registered or processed in the context of a personal registration held by the Customer or for which the Customer is otherwise responsible under the law, unless the Customer proves that the facts that are relevant to the claim are exclusively attributable to the Service Provider.
11.3 The responsibility for the personal data processed by the Customer using a Product and/or Service of the Service Provider service lies entirely with the Customer. The Customer indemnifies the Service Provider against any legal claim by a third party, on any grounds whatsoever, in connection with this personal data or the performance of the Contract.
11.4 On the grounds of the legislation governing the processing of personal data, the Customer has obligations towards third parties, such as the obligation to provide information and provide access to, correcting and deleting the personal data of data subjects. The responsibility for the fulfilment of these obligations rests entirely with the Customer. The Service Provider shall, as far as technically possible, provide support for the aforementioned obligations to be met by Customer. The costs associated with this support are not included in the Service Provider’s agreed prices and fees and are borne by the Customer.
11.5 The Customer acknowledges and accepts that the conditions, modalities and (possible) guarantees in the sphere of privacy, as included in the General (License) Terms & Conditions of Third-Party Suppliers, are applicable in full and as a priority.
11.6 The Parties have acknowledged that Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC prescribe strict standards regarding the contractual matters to be regulated. The Parties shall therefore, in due course, take the necessary steps to come to terms on a “Processor Contract”.
11.7 The Customer gives consent to the Service Provider to process the customer data that it receives in the context of the implementation of this Contract. The main purpose of processing the data of the Customer is to manage the future and current customers of the Service Provider, which – among other things – includes management of and access to the section of the website(s) reserved for the customers as well as offering and promoting products and services. The Customer can gain access to his data or request correction(s) by sending the Service Provider a registered letter accompanied by a copy of the identity card in question. The Customer can notify the Service Provider in the same manner should they no longer wish to receive promotional offers concerning the products and services by telephone, e-mail or post. Please specifically indicate the intended means of communication.
12.1 The Service provider does not guarantee that the information security will be effective under all circumstances. If an explicitly described method of security is lacking in the Contract, the security shall meet a level which, in view of the state of the technology, the sensitivity of the data and the costs involved in achieving a secure environment is not unreasonable.
12.2 The access or identification codes and certificates provided to the Customer by or on behalf of the Service Provider are confidential and must be treated as such by the Customer and shall only be shared with authorised personnel from the Customer’s own organisation. The Service provider is entitled to change assigned access or identification codes and certificates.
12.3 The Customer shall adequately secure his systems and infrastructure and shall always ensure that antivirus software is in operation. The Service Provider can never be held liable for viruses in the Customer’s system and the consequences thereof.
12.4 Only the Customer is responsible for setting up procedures that allow them to reconstruct lost or modified files, data or programs at any time, regardless of the cause of the loss or modification. On a daily basis, the Customer must be able to dispose of the necessary back-up copies of its computer programs, files and data. In the event of loss of Data, the Service Provider can only be held liable for the Data lost between the time of the last daily back-up and the time of establishment of the proven defect in the software delivered.
12.5 The Customer at all times bears the responsibility for its existing infrastructure (including, but not limited to: hardware, software, websites, databases, monitoring and security procedures, adequate system management, etc.) and the proper functionality and safety of all its working materials.
13.1 The liability that the Service Provider may incur is derived from a best effort obligation that in cases of claim must be appropriately demonstrated by the Customer.
13.2 Considering the nature and technical character of computer programs, the Customer acknowledges and accepts that it is not possible according to the current state of technology and knowledge to guarantee that the Products and/or Services shall be free of defects, inaccuracies or Bugs or that these shall work uninterrupted in all circumstances in accordance with what was agreed or expected. Products and/or Services are delivered “as is” and the Service Provider in no way guarantees that the Products and/or Services meet the actual purpose and/or intended use of the Customer.
13.3 To the maximum extent permitted by applicable law, the total liability of the Service Provider due to an attributable failure to comply with the Contract is limited to the compensation for direct damage, up to a maximum of 20% of the compensation payable by the Customer for the specific Products or Service that caused the damage (exclusive of BTW). If the Contract were to run for several years, then the Service Provider may, for the compensation of the direct damage, be held to a maximum of 20% of the value of the amounts invoiced under this Contract for the specific Products and/or Services (excluding VAT) during a period of twelve (12) months prior to the day that the harmful event occurred. For damage incidents partly attributable to the Customer and/or a third party, the Service Provider may be held liable towards the Customer up to a maximum amount, within the limits defined above, of the share caused by the Service Provider’s demonstrated error, to the exclusion of any joint and several liability with the other debtors. This provision applies regardless of whether the claim is brought on a contractual or extra-contractual basis. Related, similar or linked damages are always considered as a single damage case.
13.4 The Customer must inform the Service Provider in writing of any event that may call upon the latter’s liability or of any disadvantage the Customer suffers within the shortest possible time and at the latest within fifteen (15) calendar days from the occurrence of this event or disadvantage, or at least to be counted from the moment the Customer becomes aware of or reasonably could have been aware of this event or disadvantage and shall grant the Service Provider a reasonable period to remedy the shortcoming. This is in order to enable the Service Provider to determine the origin and cause(s) of the damage within a reasonable period, or possibly to rectify the shortcoming of its obligations. The notice of default must contain as complete and detailed a description of the shortcoming as possible, so that the Service Provider is given the opportunity to respond adequately. In the event of failure to comply with the written notification, the Service Provider reserves the right to refuse any compensation and it cannot be held liable.
13.5 Under no circumstances shall the Service Provider be liable for(i) circumstantial, indirect, incidental or consequential damage, including but not limited to financial or commercial losses, loss of profit, increase of general costs, missed savings, loss of goodwill, damage due to business interruption, damage as a result of claims from customers of the Customer, failure of planning, loss of expected profit, loss of capital, loss of Customers, missed opportunities, loss of data, loss of benefits, corruption and loss of files resulting from the execution of the current Contract;(ii) damage caused by an error or negligence of the Customer and/or its Users;(iii) compensation for all direct and indirect damage caused by the (incorrect) use of the Product and/or the result of the Services;(iv) compensation for all direct and indirect damage caused in whole or in part by software or hardware supplied or made by third parties, or brought into the Customer’s company by any other element upon conclusion of the Contract;and(v) all claims by third parties, including Users, directed against the Customer;(vi) damage for third parties that cannot use or access the data;(vii) damage caused by an unavailability/interruption of connectivity, the GPS signal, GPRS network and/or defective SIM card;(viii) damage caused by temporary unavailability/interruption of the Products:(ix) damage caused by loss of data;(x) damage caused by a defect in the Products that is also caused by the fault of the Customer or by a person for whom the Customer is responsible.
13.6 The limitation of liability as set out in these General Terms & Conditions shall not apply with respect to damages caused by an intentional and/or fraudulent error by the Service Provider.
13.7 The Service Provider can in no way be held liable for the purchase and/or proper functioning of the infrastructure of the Customer, any Users and/or other third parties.
13.8 The liability limitations of this article remain applicable to the event that the Service Provider is informed by the Customer of the existence of a realistic risk of damages. The Parties acknowledge that this constitutes a reasonable distribution of risk.
13.9 In the event that the delivered developments are used for further development or commercialisation, the Customer shall hold the Service Provider harmless against any third-party damages claims, even if it were established that such originated from the services and developments supplied by the Service Provider.
13.10 The Service Provider is not liable for any claims of intellectual property rights infringement based upon:
(a) use of a modified or old version of any or all of the developments, if the infringement could have been prevented by using the unmodified or last version which the Service Provider has made available; or
(b) information, design, specifications, instructions, software, data or other materials that were not developed by the Service Provider.
13.11 The Customer shall indemnify the Service Provider against all third-party claims due to product liability as a result of a defect in a product or system supplied to a third party by the Customer and which also consisted of equipment, software or other materials supplied by the Service Provider, unless and insofar as the Customer proves that the damage is exclusively caused by that equipment, software or other materials.
13.12 Except as otherwise agreed between the Parties, the Customer is responsible for its use of the Services and the manner in which the results of the Services are deployed. The Customer is also responsible for instructions provided to possible end users and their use of this information.
13.13 The provisions of this article, alongside all other limitations and exclusions of liability specified in this Contract, are stipulated in part for the benefit of the Service Provider, the Employees of the Service Provider and its Affiliated Companies.
14. Force Majeure
14.1 Neither Party is obliged to fulfil any obligation, including any statutory and/or agreed warranty obligation, if it is prevented from doing so as a result of Force Majeure.
14.2 However, if full or partial performance of the obligations of a Party under this Contract is delayed or prevented as a result of Force Majeure for a period expected to last longer than fourteen (14) consecutive calendar days, the Parties shall consult and endeavour to reach an amicable solution with a view to the continued execution of the Contract. If a situation of Force Majeure lasts longer than sixty (60) calendar days, either Party is entitled to rescind the Contract in writing. In that event, all performances already rendered under the Contract will be settled in proportion to the state of completion, without the Parties owing anything to each other beyond this proportionate compensation.
15. Changes and additional work
15.1 If the Service Provider has performed Services and/or delivered Products that are outside the content or scope of the agreed Services and/or Products at the request or with the prior consent of the Customer, these additional Services and/or Products shall be reimbursed by the Customer in accordance with the agreed rates and, if these have not been agreed, according to the Service Provider’s usual rates. The Service Provider is not obliged to comply with such a request and may require that a separate written agreement be concluded to this end.
15.2 In so far as a fixed price has been agreed for the service, the Service Provider shall inform the Customer in writing about the financial consequences of the additional Services as referred to in this article.
16. Transfer – Subcontracting
16.1 Neither this Contract nor the rights or obligations arising from it may be transferred in whole or in part without the express written consent of both Parties. Without prejudice to the foregoing, the Service Provider is at all times authorised to transfer this Contract or the rights or obligations derived from it, in whole or in part, to an Affiliated Company without requiring the explicit and written consent of the Customer.
16.2 For the performance of the Contract, the Service Provider may call upon the services of subcontractors without requiring the written consent of the Customer in advance.
16.3 The Service Provider is entitled to sell, transfer or pledge his claims for compensation payment to a third party.
17. Other provisions
17.1 The nullity of any provision or part of a provision under this Contract shall in no way affect the validity of the remaining portion of the provision or the rest of the provisions and clauses. By mutual Contract, the Parties shall make every effort to replace the invalid clause with a valid one with the same, or largely the same, economic impact as the invalid clause had.
17.2 A Party cannot be deemed to have waived a right or claim under this Contract or relating to a default of the other Party excepting where this waiver is made explicitly and in writing. If under application of the preceding paragraph a Party waives rights or claims that are derived from continuing breach of Contract or other default of the other Party, this waiver can never be interpreted as waiver of any other right under this Contract or concerning a continuing breach or other default of another Party, even if the two situations exhibit significant similarities.
17.3 Barring any stipulation to the contrary, all legal remedies provided in the Contract are cumulative and above and beyond (and not a replacement of) any other legal remedies available to the Parties.
17.4 These General Terms & Conditions, together with the Specific Terms & Conditions and the General (License) Terms & Conditions of Third-Party Suppliers and any other appendices are a full and complete reflection of the rights and obligations of the Parties and take the place of all previous agreements and proposals, whether oral or in writing. In the event of contradictions between the General Terms & Conditions, the Specific Terms & Conditions and the General (License) Terms & Conditions of Third-Party Suppliers, the Specific Terms & Conditions shall take precedence over the General Terms & Conditions and the General (License) Terms & Conditions of Third-Party Suppliers regarding the Specific Terms & Conditions.
If and in so far as the General (License) Terms & Conditions of Third-Party Suppliers in the relationship between the Customer and Third-Party Supplier for whatever reason are deemed inapplicable or are declared inapplicable, the provisions in the General and Specific Terms & Conditions shall apply in full.
Departures from and additions to this Contract are only valid if agreed between the Parties in writing. Deviations from and additions to the General (License) Terms & Conditions of Third-Party Suppliers are, in principle, not possible. The applicability of the Customer’s purchase conditions or any other general conditions are explicitly rejected, even if these conditions state otherwise.
17.5 All notifications, requests and other communication under this Contract (excluding everyday operational communications) shall be in writing by registered letter with proof of receipt or in another conventional method of communication agreed between the Parties.
17.6 All provisions of the Contract explicitly identified as extending beyond the termination (including rescission) or expiry of the Contract, as well as all provisions of the Contract, the performance of or compliance with which is intended after the termination or expiry of the Contract, shall continue and remain fully in force beyond the termination or expiry of the Contract. Specifically, but not exhaustively, all provisions relating to liability, confidentiality and non-solicitation continue after the termination of the Contract under any and all circumstances.
17.7 Regardless of the nature and value of the juristic act to be demonstrated, the Service Provider may at all times demonstrate said act based on the following additional evidence: copies or reproductions in any form whatsoever (carbon copy, photocopy, microfilm, scan, etc.), via information carrier, fax, telex and email. This evidentiary material has the same basic force as a private instrument drafted in accordance with the provisions of the Belgian Civil Code. In the event a signed copy of the Contract is disclosed by email in a PDF or JPEG file or another form of exact copy, the signature included within it shall create a valid and binding obligation on the part of the signer (or the person in the name of whom and on whose account the document is signed) with the same value, force and effect as an original signature.
17.8 The titles and headings in this Contract are solely indicative and do not in any way affect the content or scope of the provisions or the rights and obligations derived therefrom.
17.9 The Service Provider will enjoy complete freedom and independence in the performance of the Contract. There is no hierarchical relationship between either the Service Provider and the Customer or the Customer and Consultant(s) on whom the Service Provider depends. Under no circumstances does the Service Provider transfer any employer’s authority to the Customer excepting insofar as permitted by the applicable legislation.
17.10 The Customer warrants that it will comply with all applicable import and export regulations. Further, the Customer indemnifies the Service Provider against all liability on the basis of violation of applicable import or export regulations. The Customer, with the explicit exclusion of the Service Provider, is deemed to be the exporter and/or importer in case of import or export of the Products.
17.11 The agreements between the Service Provider and Customer are governed by Belgian law, with the exclusion of the Vienna Sales Convention of 11 April 1980.
17.12 In the event of disputes concerning the implementation and/or interpretation of the present Contract which cannot be resolved amicably, only the competent Courts of Antwerp (Division Antwerp) shall be considered competent. Any claim by the Customer relating to the Products and/or Services provided expires six (6) months after the date on which the Customer becomes aware or reasonably could have become aware of the damage-causing events giving rise to the claim.