ARTICLE 2: AGREEMENT AND PARTIES
The Offer of Services and all attachments which come from the Supplier and are aimed towards the entity (-ies) named in the Offer of Services (“Client”), as well as these Terms & Conditions (together known as the “Contract”), form the complete agreement between the Client and the Services in connection with the services described in the Offer of Services (the “Services”). The Contract excludes the application of any other documents from the Client such as the business terms of the latter.
The Contract is between the Client and the Supplier. The latter may subcontract any Services under the Contract to any other party (collectively “Subcontractor(s)”). The Client’s relationship is solely with the Supplier as the entity contracting to provide the Services.
Each party is an independent contractor and neither party is, nor shall be considered to be, the other’s agent, distributor, partner, fiduciary, joint venturer, co-owner, or representative.
ARTICLE 3: SERVICES
3.1. Upon the terms and conditions set forth in these Terms, The Supplier shall:
3.1.1. set up and provide The Customer with a Platform, the characteristics of which are described in the Offer of Services;
3.1.2. grant The Customer a secured and restricted access to the Platform allowing The Customer to manage and use the Platform and appoint Administrators and Authorized Users;
3.1.3. License to The Customer the use of the software and provide other services necessary for productive use of such software and the Platform including customization/integration, consulting, user identification and password change management, data import/export, monitoring, technical support, maintenance, training, and backup and recovery, these services being hereinafter collectively referred to as the “Services”.
3.2. Unless otherwise limited in these Terms or links, The Supplier grants The Customer a renewable, nonexclusive, and worldwide right for any Member, Administrator, or any other individual or entity authorized by The Customer to access and use the Services.
3.3 The Supplier shall provide such Additional Services as agreed upon by the Parties, as described in the Offer of Services.
3.4 Except for the Services and the Additional Services, The Customer acknowledges that no provision of these Terms shall have the effect of, or be construed as, creating any obligation upon the Supplier vis-à-vis The Customer as to the Platform, which powers the platform, meaning that The Supplier has no obligation to develop custom modules or to modify the Platform to adapt it to specific needs of The Customer that are not being covered by the Services or Additional Services.
3.5 The Offer of Services is an agreement for the provision of services and thus contains an obligation of means. The Supplier guarantees that it will carry out the Contract in good faith and with the appropriate degree of care. The Supplier rejects all other warranties, either express or implied.
ARTICLE 4: FEES
4.1 In consideration for the Services, The Customer shall pay to The Supplier the Fees set forth in the Offer of Services.
4.2 The Supplier shall invoice the Fees upon signature of The Offer of Services and:
- thirty (30) days before renewal thereof in case of an annual subscription;
- Monthly in case of a monthly subscription.
The signature of the Offer of Services will be set as the Anniversary Date for the recurring Services.
4.3 The Parties agree that the Fees will be subject to an automatic annual revision, with effect on January 1st of each year, based on the Average Inflation for Belgium (available on https://www.inflation.eu/en/inflation-rates/belgium/historic-inflation/cpi-inflation-belgium-2020.aspx). Additionally, the Fees may be revised if The Supplier develops new Services or Additional Services, which The Customer can accept or refuse. Upon notification of acceptance of the new Fees, they shall be applied pro-rata temporis of the duration of the remaining current term of the Agreement, and for every renewal thereof.
4.4 Subject to Article 10.1.1, the Parties agree that the Fees shall be revised in the event The Customer requests a different subscription plan or Additional Services. Such request shall be notified to The Supplier which shall, within twenty (20) Business Days after receipt of the request, (i) implement the requested subscription plan and notify its implementation to The Customer and/or provide the Additional Services, and (ii) invoice the revised Fees, it being understood that the Fees paid by The Customer in relation to the previous subscription plan or Additional Services shall be set-off pro-rata temporis against the revised Fees.
4.5 In the events described in Articles 4.3 and 4.4, the Parties expressly agree that The Offer of Services will be automatically amended accordingly.
4.6 Additional Services may be charged and invoiced separately, in accordance with The Offer of Services.
4.7 The Customer shall pay each invoice submitted by The Supplier within thirty (30) days following its receipt, by transfer of immediately available funds to a bank account nominated in writing by The Supplier in the invoice. The payment will be executed by wire transfer, we do not accept bank checks.
All amounts payable to The Supplier, which have not been received by the due date, will immediately and without prior notice produce interest at the rate of 10% per year and the Supplier will furthermore be entitled to charge a lump sum indemnity of 10% on the unpaid amount (with a minimum of 50 EUR). This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You must pay us interest together with any overdue amount. Moreover, if The Customer fails to make a payment due to The Supplier under this Agreement in full within 30 days of receipt, The Supplier may suspend the supply of Services until the payment is received. We will not be responsible for any costs or losses You sustain or incur arising directly or indirectly from our failure or delay to perform the Services, and it will be your responsibility to reimburse us on written demand for any costs or losses we sustain or incur arising directly or indirectly (including reasonable attorneys’ fees and disbursements, incurred to collect any unpaid amount) if you fail to make a payment under the Agreement by the due date.
4.8 The Client shall be responsible for all taxes, such as VAT, sales and use tax, gross receipts tax, withholding tax, and any similar tax, imposed on or in connection with the Services.
4.9 Performance of the Services or payment of invoices, in whole or in part, implies acceptance of the Terms and of the content of the Offer of Services. The fees and invoices are deemed accepted if they are not contested within a period of eight(8) calendar days after receipt.
ARTICLE 5: MANAGEMENT OF THE PLATFORM
5.1 The Customer is responsible for the management and use of the Platform. The Customer undertakes to manage and use the Platform in accordance with all applicable laws and regulations and ensures that it will put the same obligation upon its Authorized Users and Administrators and any other individual or entity authorized by The Customer to access and use the Services and the Platform.
5.2. The Customer appoints and revokes, in its own discretion, Administrators and Authorized Users, subject to Article 5.4.
5.3 Notwithstanding Articles 5.1 and 5.2, The Supplier is entitled to access the Platform to the extent necessary to provide the Services and Additional Services required under these Terms. The Supplier employees that access the Platform shall be bound by an obligation of confidentiality similar to article 12.7.
5.4 The Customer shall indemnify and hold harmless The Supplier for and against any loss, liability, claim, damage or expense (including costs of investigation and defence, costs of collection and reasonable attorneys’ fees) which The Supplier suffers or incurs and which arises, directly or indirectly, from The Customer’s management of the Platform and use thereof (including by Administrators and Authorized Users and any other individual or entity authorized by The Customer to access and use the Services and the Platform).
5.5 Without prejudice to Articles 5.1 and 5.2, The Supplier expressly reserves the right to suspend and/or revoke the Account of any Authorized User or the access of any Administrator and/or any other individual or entity authorized by The Customer to access and use the Services and the Platform at any time and at its own discretion, to the extent necessary to safeguard (i) the integrity of the Platform (including the Platform or other similar platforms), (ii) the privacy and integrity of The Customer Data, and (iii) The Supplier’s intellectual property rights under Article 6.
5.6 In relation to the Authorized Users, the Client undertakes and warrants that:
(a) unless for reasons of temporary replacement (e.g. illness, holidays), it will not allow the account for an Authorized User to be used by more than one individual Authorized User unless it has been reassigned in its entirety to another individual Authorized User, in which case the prior Authorized User shall no longer have any right to access or use the Platform.
(b) it shall notify the amount and names of Authorized Users and any modifications thereof (including the modifications as set out under point an above), it is understood that any modification must be approved by the Supplier in writing before such modification becoming effective.
(c) it shall permit the Supplier to audit the Client in order to verify the Client’s respect of the Contract.
(d) if at any time it appears that the Client has not notified the correct number of Authorized Users of the Services to the supplier, the Client shall immediately (i) pay an indemnity of an amount equal to the one that should have been paid for the non-declared user(s) for a period of 12 months, without prejudice for the Supplier to prove higher damage, and (ii) take appropriate action to cease this violation of the Contract.
ARTICLE 6: INTELLECTUAL PROPERTY RIGHTS
6.1 The Customer undertakes to manage and use the Platform in accordance with the applicable laws on intellectual property rights (including, without limitation to the generality of the foregoing, copyrights and authors’ rights) and undertakes that all Administrators and Authorized Users shall abide by these laws and will not make available any content or initiate communication that infringes upon the patents, trademarks, trade secrets, copyrights or other proprietary rights, titles or interests of other persons, whether personal, corporate or governmental.
6.2 In no event shall any provision under these Terms have the effect of, or be construed as, creating any obligation upon The Supplier as to the content or use of the Customer Data. The Customer remains solely and entirely liable and responsible, in every possible respect, notably towards all competent authorities and third parties, and shall support all consequences vis-à-vis these authorities, for the content of the Customer Data.
6.3 Any title, right or interest in the Customer Data shall remain the ownership of The Customer or of the Authorized Users respectively, as the case may be.
6.4 To the exception of the Customer Data and The Customer’s logos, trademark, trade names or other proprietary intellectual property that may be used on the Platform at The Customer’s request, The Supplier shall at all times own all rights and interests (including any and all intellectual property rights, whether existing, contingent or future) in respect of the Platform and the Platform including, without limitation, any graphic or literary elements thereof (logos, trademarks or trade names, pictures, photographs, designs, texts, video or audio files, etc.), any database, any software, computer program, routines, scripts, applets, or any directories or files of whatever nature, necessary for the processing or the use of the Platform (hereinafter collectively referred to as “the Protected Materials”). The Supplier shall have the sole right to prosecute and maintain any registrations of any intellectual property rights in the Protected Materials and to defend any claim of infringement related thereto.
6.5 The Supplier shall license The Customer the use of the Protected Materials to the extent strictly necessary to manage and use the Platform under this Agreement.
ARTICLE 7 PERSONAL DATA PROTECTION, PRIVACY, AND E-COMMUNICATION
7.1. We will use any Personal Data you provide to us to among others:
7.3. Both Parties will comply with all applicable Data Protection Legislation.
7.4 When processing Personal Data under or in connection with these Terms, The Customer will be Controller and The Supplier will be Controller.
7.5 The Supplier may collect, process, use or share Personal Data with its affiliates and external service providers, within or outside the country of origin in order to: administer, track and fulfil orders for a Service; implement the Services; manage and protect the security and resilience of its systems, network and the Services; manage, track and resolve incidents with the Services; administer access to online portals relating to the Services; manage these Terms (including, without limitation, invoicing the Services) and resolve any disputes relating to these Terms; respond to general queries relating to the Services or these Terms; run customer and marketing communications and events; and comply with applicable law;
7.6 Where The Customer and The Supplier each act as a Controller in relation to the processing of Personal Data under or in connection with these Terms, the Parties will not act as joint Controllers in relation to such processing.
7.7. Customer agrees to indemnify, defend, and hold harmless The Supplier and its affiliates, its officers, directors, agents and employees (each, an ‘Indemnitee’) from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines or judgments, including reasonable attorney’s fees, costs and expenses related hereto, which may be suffered by, incurred by, accrued against, charged to, or recoverable from any Indemnitee, by reason of any claim arising out of or relating to non-compliance with the laws and regulations relating to the protection of Personal Data, privacy and/or information security.
ARTICLE 8: WARRANTIES & LIABILITIES
8.1 The Supplier undertakes that the Services will be performed in accordance with Article 3.
8.2 The Supplier further undertakes that it shall not send or store material (i) containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (ii) that interferes with or disrupts the integrity or performance of the Platform or The Customer Data (including Personal Data) contained therein; or (iii) that attempts to gain unauthorized access to the Platform or its related systems or networks.
8.3 The Parties acknowledge and agree that these Terms set forth their entire liabilities and remedies with respect to any matter contemplated in these Terms
8.4 The Customer acknowledges that the Services may not meet all of its individual requirements and that The Supplier’s sole obligation is to provide the Services, and the case being the Additional Services, specified in these Terms. Except as set forth in Article 8.1 above, the Supplier makes no representation and warranty as to the quality and speed of data transmission or as to interruptions of service.
The Supplier does not warrant that the Client’s use of the Services will be uninterrupted or error-free, or free of harmful components such as malware, viruses, bugs or any other electronic elements (e.g. hacking) that cannot be blocked by reasonable market conform anti-virus software;
The Supplier is not responsible for Client’s or third party’s network, systems, or network connections or for conditions or problems arising from or related to Client’s or third party’s network connections (e.g., bandwidth issues, excessive latency, network outages), or caused by the internet. The client is responsible for configuration, management, security, and maintenance of its networks and systems and for the security, integrity and backups of the Client Data and Content. The Supplier will not make any backups of the Client Data and Content.
8.5 The Supplier shall not be liable to The Customer for any loss arising out of (and to the extent caused by) any failure by The Customer to keep full and up-to-date security copies of the computer programs and data it uses in accordance with best computing practice.
8.6 The Supplier undertakes to make commercially reasonable efforts to safeguard the confidentiality of The Customer Data in accordance with these Terms and, more generally, the conformity of the Services with the requirements and specifications set in these Terms. The Supplier shall however not be liable for any loss or damage, other than the loss or damage resulting from The Supplier’s gross negligence or wilful misconduct resulting from unauthorized access to, or use of, The Customer Data and /or Platform. Without prejudice to the generality of the foregoing, any access to, or use of, The Customer Data and/or Platform by a third party directly or indirectly resulting from the communication by a Member or Administrator of its account login and/or password shall irrevocably be considered as unauthorized access.
8.7 Notwithstanding anything else contained in these Terms, The Supplier shall not be liable to The Customer for loss of profits or contracts, loss of goodwill, or other special, indirect, or consequential loss whether arising from negligence, breach of contract, or howsoever, except in case of gross negligence or wilful misconduct.
8.8 Without prejudice of the provisions of these Terms and to the extent permitted by law, if The Supplier is held liable under these Terms to The Customer (including The Customer’s employees, shareholders, administrators, Authorized Users, and/or contractors), the damages owed with respect to such liability shall except in case of gross negligence or willful misconduct, be limited to the amount of the Fees effectively paid by The Customer, prior to the occurrence of the event triggering the claim, for the Services rendered during the current term or renewed term of the Offer of Services.
ARTICLE 9: FORCE MAJEURE
9.1 For purposes of these Terms, “Force Majeure” shall mean any occurrence beyond the reasonable control of the affected Party which it could not reasonably have foreseen and avoided or overcome, and which really makes it impossible for the affected Party to perform one or more of its obligations pursuant to this Agreement.
9.2 The affected Party shall, as soon as possible after learning of the occurrence of an event of Force Majeure, notify the other Party of such event
9.3 The affected Party shall use reasonable commercial efforts to mitigate the effects of Force Majeure and shall, during the continuation of Force Majeure, provide the other Party with regular updates, if and when available, of the extent and expected duration of its inability to perform.
9.4 In the event of Force Majeure and if the written statement mentioned under Article 9.2 has been provided, no breach or default by the affected Party shall be deemed to have occurred and the affected Party shall be released from the obligations which Force Majeure prevents it from performing, for the period of time during which, and to the extent that, Force Majeure frustrates such performance.
9.5 In circumstances in which Force Majeure leads to a reduction of the delivery or the quality of any Service, and the other Party nevertheless accepts such Service, appropriate adjustments shall be made to the Fees due for the relevant Service.
ARTICLE 10: TERM AND EARLY TERMINATION
10.1.1 Unless otherwise agreed upon between the Parties in the Offer of Services, this Agreement enters into force on the Effective Date for an initial term of twelve (12) months.
The Agreement will automatically renew for successive renewal periods of twelve (12) months at the Anniversary Date unless this Agreement is terminated earlier in accordance with the other provisions of this Article 10.
Selecting a different subscription plan will not affect the Effective Date. The notification and invoicing by The Supplier of the implementation of such a different subscription plan will be done in accordance with Article 3.4.
As from the end of the first term, The Customer shall be entitled to terminate the agreement with effect on the Anniversary Date by giving The Supplier at least three (3) months’ prior written notice;
The Supplier shall reimburse fees paid in relation to the current renewed term within ten (10) Business Days pro rata temporis as from the month following the termination.
10.3 Early Termination Due to an Event of Default
10.3.1 For purposes of these Terms, “Event of Default” shall mean any of the following events:
10.3.1.1 Any material breach of any covenant or other obligation pursuant to this Agreement if not cured within fifteen (15) days after the non-defaulting Party has notified the defaulting Party in writing of such breach (provided that there shall be no obligation to notify the defaulting Party if such breach is incapable of being cured or incapable of being cured within sixty (60) days);
10.3.1.2 Use of the Services, the Platform or Platform for illegal and/or criminal activities by The Customer.
10.3.1.3 The insolvency or bankruptcy of the defaulting Party or the initiation of any proceedings of insolvency, bankruptcy, court-supervised debt rescheduling or moratorium or analogous proceedings;
10.3.1.4 an event of Force Majeure, which lasts for more than thirty (30) Business Days.
10.3.2. Upon the occurrence of any Event of Default, the non-defaulting Party may terminate this Agreement by giving notice in writing to the defaulting Party within eight (8) Business Days after having become aware of the relevant Event of Default. Such termination shall become effective as of the fifth (5) Business Day after the date of such notification unless otherwise specified by the non-defaulting Party in such notification.
10.4 Consequences of Termination
10.4.1. Notwithstanding Article 10.2, upon the termination of this Agreement for any reason whatsoever, any amounts accrued, due and payable between the Parties shall be paid forthwith.
10.4.2. In the event of termination of this Agreement, The Customer may request electronic support with a copy of The Customer Data within sixty (60) Business Days after the date of termination. Upon receipt of such request, The Supplier will provide The Customer with electronic support containing a copy of The Customer Data within a delay of four (4) weeks under the condition that all outstanding fees of the Supplier are paid.
In the event, The Customer does not request a copy of The Customer Data within the term of sixty (60) Business Days the Supplier shall destroy The Customer Data after 180 Business Days after the date of termination.
Any additional service regarding the export of additional data or in different formats will be charged on a time & material basis, after the prior written consent of The Customer.
ARTICLE 11: MISCELLANEOUS
11.1.1 All notices pursuant to these Terms shall be given by registered letter or express courier service (or by electronic mail confirmed by registered letter or by express courier service) to the address of The Supplier set out in these Terms or such other address as The Supplier may designate by notice given in accordance with this article.
11.1.2 Any notice pursuant to these Terms shall be deemed effective as of the following points in time:
- if sent by registered letter, on the date on which such letter is delivered or a first attempt at delivery is made;
- if sent by courier, on the date on which it is delivered;
- if sent by electronic mail, on the date that such mail is delivered.
The Supplier retains the right to change these Terms unilaterally. The changes are also applicable to the agreements that were already entered into. Changes to the Terms enter into force one (1) month after the written notification thereof. If the Client should not wish to accept the changes of the Terms, the Client has the right until the date of the entry into force to terminate the Contract by registered letter on the date of the entry into force of the changed Terms. If no such registered letter has been received by the Supplier before the date of the entry into force, the Client is deemed to have accepted – tacitly – the changes of the business terms after the date of the entry into force.
The Customer acknowledges that the Agreement is non-exclusive and agrees that The Supplier expressly reserves the right, and shall be entitled, to freely and validly promote and offer its Services to any individual, corporation or entity.
11.4 Entire Agreement
This Agreement constitutes the entire agreement between the Parties and supersedes any prior or contemporaneous communications, representations, or agreements between the Parties, whether oral or written, regarding the subject matter of this Agreement. The Customer’s terms and conditions shall not apply between the Parties.
11.5.1 Neither Party may assign or transfer any of its rights or obligations under these Terms to any person other than a company in which it holds more than 50% of the shares without the prior written consent of the other Party.
11.5.2. The Supplier may appoint any person as its agent or sub-contractor to exercise part or all of its rights, or perform part or all of its obligations, under these Terms, without the prior written consent of The Customer provided that, in such event, The Supplier shall have full responsibility towards The Customer for the performance of its obligations under these Terms, and any person acting as an agent or sub-contractor for The Supplier shall be bound by all terms and conditions of these Terms to which The Supplier is subject.
11.6.1 Any provision of these Terms held to be invalid or unenforceable by a court or arbitration panel of competent jurisdiction shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of these Terms
11.6.2. The Parties shall negotiate in good faith to substitute any such invalid or unenforceable provision with a valid and enforceable provision that is consistent with the intent of the Parties.
The Parties acknowledge that they will have to disclose confidential information to each other during the execution of these Terms
Each Party undertakes that it shall not at any time during and after termination of this Agreement disclose to any person any confidential information disclosed to it by the other Party concerning the business or affairs of the other Party or of any member of its group, including information relating to a party’s operations, processes, plans, product information, know-how, designs, trade secrets, market opportunities and customers (“Confidential Information”), except as permitted in the clause below.
Each Party may disclose the other Party’s Confidential Information:
- to its employees, officers, agents, consultants or subcontractors (“Representatives”) who need to know such information for the purposes of carrying out the Party’s obligations under these Terms, provided that the disclosing Party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this article as though they were a Party to these Terms The disclosing party shall be responsible for its Representatives’ compliance with the confidentiality obligations set out in this article; and
- as may be required by law, court order or any governmental or regulatory authority.
The Supplier can use the name(s), trademark(s) or trade name(s) (whether registered or not) of The Customer as a reference or for other promotional purposes, unless expressly agreed otherwise.
Neither Party’s failure to exercise any of its rights under these Terms shall constitute or be deemed to constitute a waiver or forfeiture of such rights.
11.10 Governing Law and Settlement Of Disputes
This Agreement shall be governed by and construed in accordance with the laws of Belgium.
Any dispute, controversy or claim arising out of or in connection with this Agreement, including without limitation the existence, validity, breach or termination thereof, shall be submitted to the exclusive jurisdiction of the courts of Brussels (Belgium). The proceedings shall be conducted in the French language.
Any provisions of the Contract that either expressly or by their nature extend beyond the expiration or termination of the Contract shall survive such expiration or termination.
Notwithstanding anything herein to the contrary, the Supplier may use the name of the Client and the performance of the Services in marketing and publicity materials, as an indication of its experience, and in internal data systems.
11.13 BINDING NATURE OF THESE TERMS AND RULE OF PRIORITY
The performing of the Services by the Supplier or the complete or partial payment of the fees or invoices by the Client implies that the latter is in agreement with these Terms and with the content of the Offer of Services.
(b) In the case of contradiction between the Offer of Services and the current Terms, the following priority regulation will apply between the above documents:
- the Offer of Services
- the current Terms