This contract is made up of the following documents:
- This Agreement, incl. Specific Conditions
- General Conditions
- All orders that result from this Agreement
In the event of any contradiction between the conditions mentioned in the aforementioned documents, priority shall be given to this Agreement and then to any orders.
Start and duration of the Agreement
This Agreement shall enter into force from the moment the CUSTOMER allows Continu-IT to start delivering the services defined herein. Both Parties hereby explicitly acknowledge that the start of the services delivered by Continu-IT shall be deemed sufficient evidence that a) this Agreement is accepted by Customer name, b) that the conditions have been accepted and c) that an approval is given to produce invoices for the corresponding services. This Agreement shall apply for a period of minimum one (1) year. Without prior notice, the annual Agreement shall be automatically renewed for a new period of minimum one (1) year. Customer name can cancel the extension in writing four (4) weeks prior to the ending of the current period.
The first three (3) months of this Agreement shall be considered a grace period. During this period, initial health checks will be carried out and a definitive scope will be defined. During the grace period, the Service Levels defined in this Agreement shall not apply. During the two (2) weeks following this grace period, both Parties may cancel this Agreement without any (additional) compensation.
Invoices and payment
Continu-IT shall submit an invoice to Customer name for services executed at the end of each month. Payment shall be made within thirty (30) days of the date of invoice. The one-off costs shall be invoiced at the end of the month after receipt of this signed Agreement. The prices stated in this Agreement are without VAT or any other charges. Prices are expressed in EURO (€). They can be reconsidered annually by application of the following formula: Initial price x [0.2 + 0.8 x (new index/initial index)] where new index = the Agoria index "Referteloonkost nationaal gemiddelde" (Reference national average cost of labour) of the month preceding the renewal date of the Agreement; and initial index = the Agoria index "Referteloonkost nationaal gemiddelde" of the month preceding the Agreement signature date.
Neither of the Parties shall be liable - whether in whole or in part - to the other Party for delays or defects in performance if such delays or defects are due to causes that were beyond the control of a Party, were not foreseeable and could not have been anticipated or avoided ("force majeure"). In the event of force majeure, the Party which invokes force majeure shall notify the other Party thereof in writing within seven (7) days, stating the nature of the force majeure and of the underlying circumstances. In the event of force majeure which persists for more than three (3) months, the Party against which force majeure is invoked shall be entitled to terminate the Agreement in whole or in part. Notwithstanding the occurrence of force majeure, the affected Party shall mitigate the effects of the particular force majeure event and shall recommence performance of its obligations under this Agreement as soon as possible.
Continu-IT shall only be liable for direct damage caused by its shortcomings. In no case shall Continu-IT be liable for indirect damage or resulting damage such as, but not limited to, loss of data, loss of profit or any increase in overheads suffered by Customer name or any third parties. Continu-IT shall not be liable for damage caused by malfunctioning of the systems to be maintained. In addition, Continu-ITcannot be held liable for any compensations for damage fully or partly caused by the software or hardware delivered or produced by third parties, or by any other asset at the premises of Customer name's company Continu-IT's liability will be limited to the amount that equals the fees which Continu-IT has received within the framework of this Agreement from in the twelve (12) months before the occurrence of the event for which Continu-IT is made liable.
Customer name agrees that the software in scope is delivered by Continu-IT 'as is'. Continu-IT cannot, therefore, guarantee that the functions contained in the by Customer name used software (delivered through external and through known Customer name software vendors) in scope of this contract, meet the requirements of Customer name or that the software works without errors or interruptions. Customer name undertakes to pay all costs for services necessary to correct or adapt the software to the requirements of Customer name.
The signature of a Party via a scan or digitisation of the original signature (e.g. a scan in PDF format) or an electronic signature (e.g. via HelloSign), is deemed to be an original signature with the same validity, enforceability and admissibility. Each Party shall receive a fully signed copy of the Agreement. The transfer of this copy via e-mail or an electronic signature system shall have the same legal force and effect as the transfer of the original copy of the Agreement.
General Terms and Conditions for the delivery of services and/or hardware and/or software
- Definitions General Terms and conditions: the present document entitled “General Terms and Conditions for Supplying Services and/or Hardware and/or Software”
Consultancy: the delivery of Services by the Contractor on an hourly and/or daily basis (Time & Material), whereby the Services provided are remunerated at the agreed hourly and/or daily rate multiplied by the number of hours and/or days worked. The Consultancy services of Contractor are provided by one or multiple executors (hereinafter referred to as “Consultant(s)”). The Consultant(s) conducts/conduct the Consultancy Services, as the case may be:
(a) work exclusively on systems provided by the Customer;
(b) work on systems of the Customer and on systems of the Contractor.
Third Party Suppliers: Third parties, more specifically manufacturers and/or suppliers of software and/or hardware specified in the Project Order, including the maintenance services of these Third-Party Suppliers for software and/or hardware.
Services: all services provided by the Contractor to the Customer, as described in the Specific Terms and Conditions. The Services are always subject to these General (and the Specific) Terms and Conditions.
Services on Time & Material base: Services directed by the Contractor delivered to the Customer, whom be invoiced to the Customer pro hour.
Services on Fixed Price Base: Services delivered to the Customer wherefore Parties agreed a fixed price.
Operating Services: the provision of services by the Contractor for the purpose of keeping business applications available and accessible, including any required underlying platforms and infrastructure, including IaaS, PaaS and SaaS services, with the exception of brokerage services where the Contractor does not have access to operating data.
Data Protection Regulation: (a) Regulation (EU) 2016 of the European Parliament and of the Council from 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 the repeal of Directive 95/46/EC ("General Data Protection Regulation" or "GDPR") from its entry into force, (b) Directive 2002/58/EC of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector, (c) all other applicable laws and regulations and official binding recommendations of the relevant data protection authorities that affect the processing of personal data and privacy as established in the countries where the data originate and/or are processed and (d) any changes to or the replacement of the previous legislation, if applicable.
IaaS: IaaS (“Infrastructure as a Service”) is the most "stripped down" form of Cloud Computing, in which a processing capacity (a virtual server) and/or storage capacity is offered as a service. The Customer is thus not required to invest in its own IT hardware. The storing of applications or data within the infrastructure (the purchased processing and/or storage capacity) is the full responsibility of the Customer. This concerns the capacity provided to the Customer for the provision of processing, storage, network and other basic IT resources with which the Customer can run and roll out any software, which may include operating systems. The underlying cloud infrastructure is not managed or controlled by the Customer.
Contractor: Continu-IT NV with official seat located in 2650 Edegem, Prins Boudewijnlaan 41, registered in the register of legal persons in Antwerp (Department Antwerp) under number BE 0895.216.166.
Goods: hard –and/or software of the Producer(s).
Customer: the customer stated in the Project 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 and Conditions and the Project Order (and/or the specific conditions set out therein).
Force Majeure: the situation in which one of the Parties is impeded in the performance of the Contract, either in whole or in part and temporarily or permanently, beyond the control of the Party or Parties. This includes (but is not limited to): fire, war, terrorist attack, unfavourable weather conditions, force majeure on the part of the vendors of the Contractor, failures in goods, equipment, software or materials of third parties the use of which the Customer prescribes to the Contractor, government measures, disruption of internet, data network or telecommunications facilities, unavailability of third party servers, strike, unavailability of Employees, general transportation problems and electricity outages.
PaaS: The development platform that consists of a collection of standard services on the basis of which a developer can quickly develop (own) (web) applications. The PaaS services enable the Customer to quickly develop new (web) applications. The final application remains the exclusive responsibility of the Customer.
Party/Parties: the Contractor and/or the Customer.
Project: the totality of reciprocal services and cooperation between the Parties as described in the Project Order.
Project Services: the delivery of services by the Contractor, in which a predetermined IT product is developed in mutual consultation.
Project Order: an agreement/order form/offer subject to these General Terms and Conditions and describing the specific performance modalities and specific conditions of this Contract and the Project.
Project Team: the Employees of the Customer and the Contractor who are directly involved in the performance of the Services and/or the Project.
SaaS: Saas (“Software as a service”) is a ready-made application of the Cloud Computing services, whereby the Customer uses the standard functionality as offered by the Contractor. In most cases, the Contractor in turn uses one or more underlying cloud services. It concerns the capacity provided to the Customer to use the Contractor's applications running on the cloud infrastructure. The applications are accessible from various devices of the Customer via an interface provided by the Customer (such as a web browser) or a program interface. The underlying cloud infrastructure, including the network, the servers, the storage, the operating systems and even the individual application possibilities, is not managed or controlled by the Customer, with the possible exception of limited user specific configuration settings of applications.
Subprocessor: an external processor appointed by the Contractor or by another subprocessor of the Contractor who processes Personal Data as part of the Contractor's role in the context of this Contract.
Technical and Organisational Measures: the technical and organisational measures taken by each of the Parties to protect the Personal Data processed under this Contract and as set out in relation to the Contractor in the Contract.
Consultant: the Employee(s) stated in the Project Order whom the Contractor draws on for the performance of this Contract.
Affiliated Company/Companies: the affiliated and associated companies within the definition of articles 11 and 12 of the Belgian Company Code.
Terms and Conditions of the producer: the general (license) terms of the Producer applicable at the hard- and/or software which are an integral part of the Contract, together with the, possible, terms and conditions of the Producer concerning the maintenance services provided by the Producer.
Confidential Information: all information, in any form whatsoever (oral, written, graphic, electronic, etc.) exchanged between the parties within the context of this Contract.
Controller, Processor, Process, Data Subjects, Personal Data, Personal Data Breach, Special categories of personal data, Supervisory Authority: have the meaning assigned to that term by the applicable Data Protection Regulation. 2. Contracting and termination
2.1. The Contractor is only bound to perform the Contract after its acceptance, explicitly and in writing, of the purchase order of the Goods and/or Services.
2.2. If the Contractor on demand of the Customer treats the order, as stated in the Specific Order, or commence the Services as stated in the Project Order before the Contract is signed, then the treatment of the order and/or commencement of the Services applies as acceptance (and/or sufficient evidence of acceptance) by the Customer of the Project Order, the General Terms and Conditions and the General Terms and Conditions of the Producer.
2.3. Without prejudice to its entitlement to compensation of damages, the Contractor may, at its own discretion, suspend the Contract 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 has requested deferment of payment, is under a bankruptcy or suspension of payment procedure, is in an unstable credit position or is manifestly insolvent;
(c) in the event of dissolution and liquidation of the Customer's company;
(d) 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;
(e) in the event of proof or serious suspicions of fraud committed by the Customer;
(f) in the event that the Customer refuses to provide the requested information or has provided incorrect and/or false information.
2.4. 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 will 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.
2.5. The Customer explicitly waives the application of article 1794 of the Belgian Civil Code.
2.6. 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 Services provided without valid reason, the Contractor is entitled to rescind the agreement or demand fulfilment. The damages suffered by the Contractor will be a minimum of fifty percent (50%) of the value of the order or the unfulfilled portion thereof, without prejudice to the Contractor’s right to demonstrate actual damages suffered, using any and all means to do so, if such damages are greater.
Consequences of termination
2.7. Excepting where the Customer terminates the Contract based on serious error or material failing on the part of the Contractor, the Customer shall pay the Contractor for all Services provided for unfinished components. The effective Services and work hours performed at the moment of termination shall be billed at the Contractor’s hourly rates as applicable at that moment, without prejudice to the Contractor’s option to use any and all legal means to demonstrate any damages suffered in excess thereof.
2.8. 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. 3. Intellectual property rights
Intellectual property rights regarding the delivered Services
3.1. Unless stated otherwise in the Project Order, the Contractor grants the Customer a a limited, non-exclusive and non-transferable right of use in relation to the results of the Services, as from the moment of payment in full of all invoices as well as any other amounts due by the Customer as a result of a shortcoming in any of its payment obligations. The Customer shall only use the results of the Services in the manner prescribed by the Contractor.
3.2. The Customer is not permitted to remove or alter any indication concerning the confidential nature or pertaining to copyright, trademark, trade name or any intellectual or industrial property right on the software, websites, databases, equipment or materials.
Intellectual property rights regarding the delivered Goods
3.3. The Customer takes cognisance of the license terms, the intellectual property terms and the restrictions on both of them as stated in the Terms and Conditions of the Producer regarding the ordered Goods, which are integral applicable.
3.4. The Customer will be liable for breaching the terms as stated in 3.3. The Customer waives the Contractor for every claim asserted by the Producer against the Contractor, because of breaches against the Terms and Conditions of the Producer, for any reason whatsoever. The Customer shall completely indemnify the Contractor for all costs, damage and expenses due to the above stated, including all attorney fees. 4. Confidentiality
4.1. Confidential information is defined as all information of any form whatsoever (oral, written, graphic, electronic, etc.) whom are exchanged between the Parties in the context of this Agreement.
4.2. Each party and its Personnel must keep all confidential information received from the other Party in the performance of this Agreement confidential. Additionally, the Parties may only use the confidential information for the purposes of this Agreement. The Parties may not disclose the confidential information to third parties without written consent of the other Party. Information will, in any event be considered confidential, if so designated by either of the Parties.
4.3. The obligation of confidentiality shall continue to exist for a period of three (3) years from termination of this Agreement, regardless of the cause of the termination of the Agreement.
4.4. The following are not considered to be confidential information:
(a) information obtained in a lawful manner from a third party who’s not bound by any confidentiality obligation or secrecy;
(b) information which is already known to a Party before its disclosure in the context of this Agreement;
(c) information which is independently developed by a Party, without breaching this Agreement;
(d) information which entered the public domain without the intervention or fault of the Party that received it;
(e) information which must be disclosed pursuant to a judicial or administrative decision.
4.5. The Contractor may also include the Customer in its customers list, publish a brief description of the assignment and use the Customer's name and brand for publicity purposes and PR activities.
4.6. Hereby, the Customer explicitly approves and accepts the confidentiality clauses as states in the Terms and Conditions of the Producer 5. The performance modalities
5.1. The Contractor must commit to perform the Services for the Customer and/or the Goods as stated in the Project Orders and the delivering, in accordance with the Terms and Conditions of the Producer, of the possible related (maintenances) costs of the Producer. The Contractor will take the technical instructions and guidelines which it receives form the Customer into account.
5.2. Regarding the possibilities of the Goods and/or Services (model, characteristics, controls, manual possibilities and –restrictions, warranties, required environment), as well as the adapting problems, installations or integrations and expanding’s that may arise and the consequences hereof at the existing hard- and/or software and/or licences installed by the Customer, the Customer declares to be fully informed by the Contractor.
5.3. Except other legal provisions of compulsory law or public order, the Contractor bears no responsibility regarding the Goods and maintenance services delivered by the Producer. The Customer will only be able to refer to the Producer, within the scope of its Terms and Conditions. The Contractor cannot be called upon the delivery of the Goods and maintenance services that are delivered by the Producer. The delivery is an exclusive responsibility of the Customer.
5.4. The Customer bears the complete liability for mistakes and/or omissions of the delivery of the Goods and/or Services. The Contractor was only, true the Project Order, fully informed concerning the needs and expectations of the Customer. The contractual obligations of the Contractor can only appear from the Project Order or the General Terms and Conditions. Therefore, the Customer is responsible for the ordering and suitability of the delivered Goods and/or Services necessary for achieving the intendent results. In case of a wrongful choice of Goods, inadequate product specialisation or description in the Project Order, the Contractor will, in no circumstances, be liable for the above.
5.5. Insofar as the Specific Terms and 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 knowhow in relation to the Services to be provided and to engage committed Personnel with the relevant expertise.
5.6. If during the term of the Agreement the specifications for the performance of the Agreement would change, the Customer will compensate the Contractor for additional training of the Consultant. If the Customer itself provides a training to the Consultant, barring any provision to the contrary in the Specific Terms and Conditions, the costs for this training are to be borne by the Customer.
5.7. To the extent possible, the Contractor 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.
Place of performance
5.8. Unless stated otherwise in the Project Order, the Services will be performed in the spaces of the Customer. The Customer shall grant the Consultant(s) free access to the work environment as required.
5.9. The work space and facilities of the Customer will be in compliance with all requirements of law. The Customer indemnifies the Contractor against claims of third parties, including the Employees of the Contractor, 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.
5.10. Setup and alteration of the location where the Services will be carried out, at the Customer’s expense, with the customer being liable for all damages and associated costs incurred by the Contractor as a result of late, incorrect or faulty performance thereof.
5.11. The Parties acknowledge and accept 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 Contractor. If, as a part of granting cooperation to the execution of the Contract, the Customer deploys own Employees, this Employees will have the necessary knowledge, expertise and experience.
5.12. The Customer shall provide the Contractor with all information, technical or general documentation or other intelligences necessary for the Services.
5.13. The necessary cooperation of the Customer can, in some cases, be very intense. During the Project, the Customer shall take this into account. The Customer must reserve a sufficient amount of people and funds.
5.14. The Contractor provides the Services within the limits of this Agreement and the information provided by the Customer. The Customer warrants the accuracy and completeness of the by Customer provided information, stated dimensions, requirements, specifications of the Services and any other information, crucial for fulfilment of the Contractor’s obligations under this Agreement. The Customer indemnifies the Contractor for any damages as a result of incorrect or incomplete provision of information.
5.15. The Customer needs to appoint Employees who can provide this information. Furthermore, the Customer needs to appoint a person who is capable of assessing the accuracy and completeness of this information, and who is, in case of a discussion, capable of deciding which information will be used as the rule. The Contractor assumes that the submitted information by the Employees is complete and correct. The Customer is liable for the information submitted by him.
5.16. Whenever a special commitment of Employees or material from the Customer is necessary for the Project, this will be, in writing, agreed in the Project Order.
5.17. 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 Contractor, these extra costs will be invoiced to the Customer.
5.18. The Customer will make arrangements for the required facilities for the design, testing and operational use of the information system to be developed. This refers to hardware, system software, and peripherals (including PCs and printers). The Project Team must have access through a number of PCs to the computing, printer and data facilities of the Customer.
If the Contractor deems necessary, the system and related services (system administration) must also be available to the Project Team outside normal business hours. 5.19. if the Services are a part of a broader implementation of new IT systems, the overall planning will partly depend on the correct delivery of the other systems. The Client and the Contractor mutually undertake the follow up and respect of all plans as described in the Specific Terms and Conditions, taking into account that any delays that may arise directly or indirectly from this delay will be considered as an adaptation of the Specific Terms and Conditions as described in Articles 5.32 to 5.38. maintenance- and upgrade agreement 5.20. Where appropriate the Customer will be able to establish a maintenance- and upgrade agreement with the Contractor and/or the Producer regarding to the delivered Goods. 5.21. Whenever the Customer doesn’t want to establish a maintenance agreement with the Contractor regarding to the Services, will, every intervention, after completion and, if applicable, after a warrant period, based on the hourly rates applicable at that moment will be charged. Consultant 5.22. The Contractor will rely on one or more Consultants for the performance of this Agreement. The Contractor reserves the right (i) to determine which Consultant shall be assigned to the performance of the Services, and (ii) to replace this Consultant, if they so desire, throughout the term of the Agreement as the Contractor sees fit. Replacement of the Consultant for Time & Material Services 5.23. The clauses 5.23 until 5.25 are exclusively applicable on Services on Time & Material basis. 5.24. If both Parties consider it to be desirable or necessary, they may, by mutual agreement, either temporary or permanently, appoint another Consultant for the performance of the Services. 5.25. If the Consultant does not meet or no longer meets the set requirements, discredits the Customer’s good name, or can reasonably be considered to not perform or no longer perform the Services in accordance with the Agreement, the Customer is entitled to request the Contractor to replace the Consultant. This does not discharge the Customer from its obligation to continue to pay for the Services performed by the Consultant. 5.26. If the Contractor 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 Contractor is unable to provide a qualified replacement within a term of two (2) weeks, the Customer is entitled to terminate the portion of the Agreement pertaining to the Consultant to be replaced. Steering Group 5.27. If the Parties, in written form, have agreed in the Project Order a Steering Group will meet up during the time of the Project. This Steering Group is responsible for tracking the work activities, making adjustments in the Project and assisting the Project Team in strategic decision-making. 5.28. This Steering Group will consist of at least the following core members: a) a user representative; b) a delegated project leader for the Customer; and c) a project leader for the Contractor. The Steering Group may at any time invite other persons to attend the meetings. 5.29. Within the context of the Project Order, only this Steering Group has decision-making power to approve any changes and/or expansions of the Services as described in the Project Order. To facilitate progress of the Project, both Parties will delegate one person who will have the capacity to make any urgent decisions required in the name of the Customer and the Contractor respectively without consulting with the Steering Group. These persons may also convene meetings of the Steering Group outside of the normal meeting calendar to discuss specific issues and force any decisions that may be required. The Steering Group must evaluate and, as required, approve all proposed changes and/or expansions in accordance with the change procedure described below. 5.30. Decisions of the Steering Group signed by the authorised persons of both Parties are deemed to be binding addenda to the Contract. 5.31. In every Steering Group meeting, the Contractor must discuss the progress of the Project with the members and present any problem areas, issues and options. Change procedure 5.32. All changes and/or expansions to the original specifications and changes in the underlying conditions of the Services as described in the Project Order fall under these clauses (a change in the underlying conditions is, for example, a clear change in the working conditions of the Project Team, that will have the result of a demonstrable loss in production). 5.33. If the Customer desires a change or addition to the specifications as agreed in the Project Order, this change must be formalised by means of this change procedure. The same procedure must be followed whenever the criteria that the Services must meet as provided for in the Project Order are changed by the Customer. 5.34. The change procedure entails that first, the change in the specifications or the order are described, followed by an assessment of the impact of the change on the efforts and timeline of the Project. After approval of the documents describing the changed specification, the Customer must also approve the new budget in the form of an Addendum to the Project Order. 5.35. The time required for these activities and Services will be invoiced to the Customer on the basis of hours spent, in accordance with the Contractor’s applicable rates. The Contractor’s project manager will determine in advance how many hours this will require and submit this determination to the Customer for approval. Allowing the Contractor to commence these additional activities is qualified as sufficient evidence of the Customer’s ordering this work and as the Customer's consent to invoice these activities and Services. 5.36. A change is carried out after the Customer issues an instruction for the change. 5.37. A change proposal will typically include elements such as the following:
- a description of the change;
- the submitter and date of the change request;
- the reason for the change;
- if possible, an estimate of the time required to determine the impact and consequences of the change;
- if available, the approval of the estimate under point 4;
- a complete description of the change, including specifications and use options;
- if applicable, the cost impact (additional cost/reduced cost) of the change;
- a timeline for the implementation and any applicable test procedure for the change;
- a payment schedule (if applicable);
- any consequences on other components of the Project;
- space for Customer and Contractor signatures.
5.38. Situations and underlying conditions that fall under the responsibility of the Customer and which necessitate extra efforts will be invoiced to the Customer. Delivery, risk – and transfer of ownership and acceptance 5.39. Excepting where explicitly stated otherwise in the Project Order, all Goods are directly delivered, at the Customer and/or a location indicated by the Customer, by the concerning Producer. The Terms and Conditions regarding the delivery and fees of the Producer are directly applicable for the Customer. The Contractor is in no way possible liable regarding the delivery of the Goods delivered by the Producer. 5.40. The Customer commits itself to take receipt of the Goods immediately following the delivery of them and to research if the quality and quantity answers to what has been agreed. The Customer undertakes to inform the Contractor, on receipt, if the delivery is in accordance with was has been agreed. If afterwards it would appear that the delivery was non-compliant, the Customer compensate the Contractor for possible costs (like, but not limited to unnecessary movements or performed services) who are attached to it. 5.41. The Customer is responsible for the accessibility of the buildings in which the delivery takes place and the request of parking tickets. All other costs (like extra people, a ladder lift, etc.) due to the non-accessibility are at the Customers expense. 5.42. If applicable the Customer vouch for the application of possible urban planning permissions and the appointment of an architect and/or an expert and safety proscriptions. If, for the execution of the order, a planning permission is necessary, the Customer shall inform the Contractor before signing the Project Order and shall, before starting the constructions, deliver the planning permissions to the Customer. If the Customer was in default to mention the planning permissions and/or did not obtain one, the Contractor has the right to end to Contract without a notice period and without the payment of any compensation of damages. 5.43. If applicable the Customer will ensure an appropriate installation location for the Goods which satisfies all technical and legal prescriptions, like, but not limited to the stability and firmness of the building and the terms and conditions of the Producer. The Customer shall have studies done and shall dismiss and indemnify the Customer for any relevant liability. 5.44. The risks of loss, theft or damage to the Goods and/or Services which are the subject of this Contract will pass to the Customer at the moment they are brought into the actual disposal of the Customer or of an auxiliary person used by the Customer. 5.45. The risks associated to the delivered Goods and/or Services pass to the Customer at the time of delivery by the Contractor or the Producer. 5.46. The Customer bears a duty of care with regard to the Goods subjected to the retention of title and must store them in perfect condition at a suitable and well-maintained location in accordance with the highest standards and safety conditions prevailing in the sector. The Customer shall also insure these Goods, at the time of the actual transfer of ownership, against all risks customary in the sector (including, but not limited to, any form of decay, fire, water damage and theft) and the submit, for inspection, the relevant insurance policy at first request the Contractor. 5.47. The Customer shall notify any third party wishing to deposit the attachment and/or enforcement of the delivered Goods as soon as possible and at the latest at the time of the attachment of the attachment to the existence of the retention of title. The Customer will immediately inform the Contractor of any intention of a third party to seize. 5.48. All additional costs for the removal of the Goods in the event of non-payment by the Customer are at the expense of the Customer and will be due and payable without further notice of default, as well as the costs for storage of the Goods, if the Customer refuses or fails to receive the Goods. 5.49. The delivery terms which - if applicable per component - are stated in the Project Order are purely indicative and not binding for the Contractor, unless explicitly stated otherwise. The Contractor shall, except in the event that the Parties expressly deviate from this in the Project Order, in writing, only the obligation to perform to the best of one’s abilities to each part deliver as soon as possible after completion. Partial deliveries are allowed. The partial delivery of the order can under no circumstances justify the refusal to pay for the delivered Goods and/or Services. 5.50. Any delay caused by a delay in the supply of necessary information and necessary hardware and/or software infrastructure by the Customer or third party is beyond the responsibility of the Contractor. Consequently, in such a case the Customer can not terminate the Agreement. 5.51. In the event that the Project Order explicitly provides for an acceptance test, the Customer itself is responsible for organising and performing this test, and doing so in consultation with the Contractor and in accordance with the clauses and timeline of the Project Order. 5.52. If this acceptance test, which in all cases must be performed in the presence of the Consultant, is passed in whole or in part, the passing component of the deliverable is deemed to have been accepted by the Customer. In the event that the acceptance test is not performed in a timely manner, the deliverable is deemed to have been accepted by the Customer. 5.53. If no acceptance test is provided, the Customer accepts the Services and/or the Goods in the state in which they are at the time of delivery, therefore with all visible and invisible errors and defects. The commissioning of the Services result by the Customer implies its full acceptance.
5.54. The acceptance procedure is an evaluation of whether the deliverables received are in compliance with the specific conditions stipulated in the Project Order. Additional acceptance criteria may be added insofar as approved in writing in advance by both Parties. 5.55. Acceptance may be in three forms: (a) unconditional acceptance; (b) conditional acceptance; (c) unconditional non-acceptance. Conditional acceptance must be accompanied by a list with the Customer’s considerations regarding the acceptance of the Services submitted. After modification and resolution of these issues or after the Contractor’s refutation of the considerations, the deliverables will be presented again for re-evaluation and will be deemed to have been accepted failing written notice to the contrary within five (5) business days.
Unconditional non-acceptance must be accompanied by a clear description of the justified reasons for non-acceptance. After modification by the Contractor in observance of these reasons, the Contractor is once again entitled to obtain acceptance from the Customer.
5.56. The parties acknowledge that it is essential for knowledge of failures in the Services to be exchanged in a timely manner so as to allow the appropriate adjustments to be made at the earliest possible stage. Late evaluation and acceptance will automatically result in extra costs, which may be treated as a change request, this without prejudice to the Contractor’s right to hold the Customer liable for all direct and indirect damages resulting therefrom. 5.57. The provisions in these General Terms and Conditions regarding the acceptance test do not apply to Services delivered on Time & Material basis, since no acceptance applies. Warranty 5.58. In case of delivery of Goods, the Customer also explicitly takes note of the guarantee provisions in the Terms and Conditions of the Producer, which apply exclusively. The Customer acknowledges that the Contractor can not be held to any warranty obligations with regard to the delivered Goods. 5.59. Without prior written permission, the Contractor is not obliged to accept return shipments due to defects in the Customer's warranty period. Receipt of return shipments does not imply any acknowledgment by the Contractor of the ground stated by the Customer for the return shipment due to defects in the warranty period. The risk of returned goods remains with the Customer. After the warranty period, the Contractor and / or the Manufacturer can no longer be held liable for hidden defects. 5.60. If a warranty period has been agreed in the Project Order for Services, the Customer shall report any imperfections regarding the services delivered by the Contractor within the warranty period as soon as possible and on pain of lapse within seven (7) days in writing and in detail after the identification of these imperfections. 5.61. If a warranty period has been agreed in the Project Order for the Services, the Customer will report any inadequacies connected to the Services delivered by the Contractor within the warranty period, as soon as possible and on pain of expiry within seven (7) days. after establishing these imperfections. 5.62. If there are warranty claims in the Project Order, the Contractor, its employees or subcontractors have the right to test or inspect the Services delivered. The Customer shall provide all required cooperation to allow the Contractor, its agents or subcontractors to fulfill its obligations. 5.63. The Contractor will, to the best of its ability, make every effort to repair any imperfections in the Service within a reasonable period if these have occurred within the agreed warranty period. 5.64. The repair is executed free of any charges, unless the Services have been executed on behalf of the Client, other than on the basis of Fixed Price, in which case the Contractor will charge the costs of repair according to its usual rates. The Contractor may, in accordance with his usual rates, charge the costs of repair if there are errors of use or improper use by the Customer or other causes not attributable to the Contractor or if the errors could have been discovered in the execution of the agreed acceptance test. The repair obligation lapses if the Customer, without the written permission of the Contractor, makes changes or has made changes, which permission will not be withheld on unreasonable grounds. 5.65. In view of the technicality of computer programs, the Contractor can not guarantee its uninterrupted operation. Moreover, given the nature of each computer program, it is admitted and acknowledged by the Customer that it is not possible according to the current state of technology and knowledge to guarantee that a certain software will be free of any error or bugs or that it will function in all circumstances in accordance with what was agreed or provided for. 5.66. No guarantee is given for Services on a Time & Material basis, or when Parties do not have a guarantee in the Project Order. These services are provided 'as is', with all visible and invisible errors and defects. 5.67. The Contractor does not, under any circumstances, guarantee the suitability or marketability of the Services to perform specific tasks provided by the Customer, if they are not expressly included in the Project Order and/or the description of the functional specifications. 5.68. Not covered under any circumstances are interventions due to any cause external to the Services rendered, including but not limited to:
- incorrect or abnormal use or operation; negligence of the Customer or its agents; fire; power outages; accidents; use in a dusty atmosphere; static electricity; inappropriate environment; the Customer’s failure to meet specifications of the environment in which the deliverable is to be used;
- any repair or maintenance, adjustment or alteration performed by personnel and/or subcontractors not working for the Contractor and without the permission of the Contractor, in which case the Customer bears all risks of any damages resulting therefrom;
- force majeure;
- data file recovery;
- non-modified infrastructure (hardware, software, etc.) of the Customer and/or irregular functioning thereof, and more generally, damages caused by material and/or software not supplied by the Contractor;
- The fee and payment modalities 6.1. The price for the Goods and the Services are defined in the Project Order. The Contractor is, in all cases entitled, to adjust these prices for Goods and/or the maintenance services of the Producer by means of a written notification to the Customer if this is the result of a price adjustment of its Producers or due to exchange rate differences. 6.2. The price is exclusive of VAT, charges and taxes, excise duties, transport prices (of the Producer), import duties and any other levies imposed or to be imposed by the government. All these taxes will only be the financial responsibility of the Customer. Unless otherwise stated in the Project Order, the price does not include travel times and / or costs, incidental expenses and all other reasonable costs. All these costs are for the account of the Customer. 6.3. The price for Services performed by the Contractor can be invoiced both on the Time & Material basis or the Fixed Price basis as determined in the Project Order. In the case of Services on a Time & Material basis, these Services are invoiced on the basis of the day/hourly rate stated in the Project Order, multiplied by the number of days/hours worked. Unless otherwise agreed in the Project Order, a minimum intervention will be at least four (4) hours. Any estimates in, for example, price or time quotations from the Contractor are purely indicative. 6.4. When signing the Project Order, the Customer undertakes to pay an advance of 20% of the price for the ordered Goods and for Services based on a Fixed Price. the Contractor is only bound to execution upon payment of the aforementioned advance payment. 6.5. Unless otherwise agreed in the Project Order, will, after delivery of the Goods to the Customer, the outstanding balance, be invoiced by the Contractor both for the Goods and for the Services on the basis of a Fixed Price. The Services on the basis of a Fixed Price will be invoiced on a monthly basis unless a payment schedule is agreed in the Project Order. 6.6. Unless otherwise agreed in the Project Order, the maintenance services of the Producer of the Goods are invoiced on an annual base. 6.7. Articles 6.4. and 6.5. do not apply for Services on Time & Material base. If the Services only last one (1) month, the Contractor will invoice the Customer at the end of these Services. If the Services cover a longer period than one (1) month, the Contractor will invoice the Services performed by it to the Customer each month on the basis of a day/hourly rate as agreed in Project Order. 6.8. The Contractor will take all reasonable measures to execute the Services in accordance with the Client's work schedule. Unless otherwise agreed between the Parties, a work schedule of 38 hours per week is assumed. If there are more than 38 hours per week, the following increases are applied (not cumulated): • performance> 38 hours / week: + 50%; • performance> 7.6 hours / day: + 50%; • performance between 22 and 07 hours: + 100%; • performance on Saturday: + 50%; • performance on Sunday or public holiday: + 100%
6.9. Unless otherwise agreed, in writing, between the Parties, the Contractor shall have the work performed by the Client signed for approval by means of timesheets or any other system for time registration agreed between the Parties. 6.10. Parties can explicitly agree in the Project Order that the Goods are sold on a trial basis (subject to the condition that they are suitable for the use for which they are intended) within the meaning of article 1588 Belgian Civil Code. This means that the Customer must proceed to the testing of the Goods within a period of one (1) month (i.e. the trial period) from the day of the delivery of the Goods to determine whether the Goods correspond with the use to which they are intended. If the test shows, on the basis of objective elements, that Goods are not suitable for their destination, then the sale will not take place, provided that the Customer reports this , by registered letter, within the period of one (1) month from the day of delivery, whereby the postmark will count as proof of the date. In the absence of registered mail, the sale becomes final by the mere expiration of the trial period of one (1) month. The Contractor will remain the owner of the goods as long as the Customer does not inform the Contractor by registered letter within one (1) month from the day of delivery that the test has not been successful. If the test is successful or the Customer does not report, by registered letter, within the period of one (1) month that the Goods are not suitable for the use for which they are intended, the property will automatically be transferred to the Customer. If the test is unsuccessful, the Customer must return the goods to the Contractor at their own expense within a period of two (2) working days in the same state in which they were delivered. During the trial period, the Customer will manage the Goods as a prudent men. If during the time of the trial the delivered Goods are damaged or destroyed, the Customer will fully compensate the Contractor for this. The Customer bears the use risks of the Goods for which he must insure with a solvent insurer. The return costs are at the expense of the Customer. In case of late return delivery, all return, tracking and stocking costs are at the expense of the Customer. The parties agree that the Contractor may invoice the implementation of the Goods on trial separately on a Time & Material basis. If the test is unsuccessful, demolition / de-implementation services will also be invoiced on Time & Material basis. After the expiry of the trial period, the Contractor can not be held liable for the visible and invisible defects in the Goods. 6.11. The Contractor may adjust the prices 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: • Base price: price at the start of the Contract; • Initial index: the index published by Agoria "national average reference wage cost" for the month preceding the signing of the Contract; • New index: the index published by Agoria "national average reference wage cost" for the month preceding the date of indexation. 6.12. 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. 6.13. Each month, the Contractor will invoice the Customer the above-mentioned fee. All invoices are payable thirty (30) calendar days after the invoice date, unless otherwise stated in the Project Order. Adjustment of the payment term in the Project Order is only possible if the Conditions of the Producer prescribe a shorter payment term. 6.14. The lack of written protest of an invoice within eight (8) working days from its sending, implies the irrevocable acceptance of the invoice and the Goods mentioned therein, any associated maintenance agreements and / or Services. 6.15. 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 as from the deadline for payment of the invoice up until the date of full payment. 6.16. In the event of late payment of an invoice: (i) the Contractor is entitled to increase the amount of invoice by 15% as compensation; (ii) all costs, the extrajudicial collection of the invoice, and the costs of legal proceedings and enforcement are to be borne by the Customer; (iii) all claims against the Customer not yet due are immediately incurred, exigible and payable; and (iv) The Contractor is entitled to suspend all its Services in regard to the Customer without prior notification. 6.17. The Customer is not entitled to settlement or suspension of a payment. 6.18. The Contractor reserves the ownership of the delivered Goods until the Customer has fully paid the invoice, including interest and damage clause. 6.19. The Contractor is entitled to suspend its obligations automatically by sending a mere notification to the Customer by registered letter, if the Customer does not fulfill its obligations under this Contract, so the Contractor can suspend the delivered services and/or hard- and/or disable software. 6.20. If in the opinion of the Contractor the Customer’s creditworthiness so dictates, the Contractor may, even after the signing of the Contract, require the Customer to furnish security requested by the Contractor for the payment of the Services yet to be provided, and the Contractor may suspend performance as long as the security is not furnished. 6.21. The Customer guarantees and indemnifies the Contractor for any claim of the Producer against the Contractor due to unpaid invoices from the producer of the Goods and/or associated maintenance services for whatever reason and the Customer shall fully indemnify the Contractor for all costs, damage, and expenses incurred by the Contractor as a result, including its lawyer's fees. 7. Relationship between the parties 7.1. The Contractor will enjoy complete freedom and independence in the performance of the Contract. There is no hierarchical relationship between either the Contractor and the Customer or the Customer and Consultant(s) used by the Contractor. Under no circumstances does the Contractor transfer any employer’s authority to the Customer excepting insofar as permitted by the applicable legislation as set out below. 7.2. The Parties acknowledge and accept that they are familiar with the Act of 24 July 1987 governing temporary labour, the secondment and posting of employees for users, the changes implemented by the Programming Act of 27 December 2012 and the changes that may be made from time to time and published in the Belgian Official Journal (Belgisch Staatsblad). The Parties undertake the obligation to comply with the provisions of these acts of legislation. 7.3. The Customer may therefore not give other instructions to the employees of the Contractor (and/or employees of the subcontractors to which the Contractor refers) than the indications referred to in this Contract with regard to behavioral and safety standards, time management, the conditions mentioned in this Agreement or applicable policy standards and procedures of the Customer or the work carried out by these employees. 7.4. The Customer is not authorized to make decisions regarding: • the recruitment process; • the compensation package (definition of salaries and emoluments, reimbursement of expenses, etc.); • disciplinary matters; • training and policy related to training (with the exception of those aspects that are necessary for the execution of the Services); • dismissal and related policy; • management of attendance and absence of work (vacation, sick leave and other forms of absence); • employments and aspects of organization that relate to employees of the Contractor (and / or employees of the subcontractors to which the Contractor appeals).
7.5. Any instructions given by the Customer to the employees of the Contractor (and/or employees of the subcontractors to which the Contractor refers) concerning the work to be performed, must be strictly limited to the operational and technical aspects of the delivery of the services. Services may under no circumstances amount to the authority of an employer and should only relate to the following: • planning of Services to be delivered; • timeframe in which the Services must be delivered, if applicable; • Customer's processes and procedures as agreed by the Parties and must be taken into account in the delivery of the Services (for example with regard to security or access rules); • access to locations and facilities of the Customer for the delivery of the Services; • use of materials, infrastructure, tools or facilities of the Customer for the delivery of the Services.
In case of doubt, the Parties must consult on the applicability of an instruction from the Customer.
7.6. The Project Order may contain more specific details about the instructions that can be given by the Customer. This list can be adjusted at any time during the term of the Agreement. 7.7. The Customer shall indemnify the Contractor against all claims, damages and liabilities resulting from noncompliance with this article 7 of these General stipulations. 8. Liability 8.1. The liability that the Contractor may incur is derived from a best effort obligation that in cases of claim must be appropriately demonstrated by the Customer. 8.2. Insofar as maximally permitted by applicable law, the total liability of the Contractor based on attributable failure in the fulfilment of the Contract is limited to the reimbursement of direct damages up to a maximum of the compensation owed by the Customer for the specific Services that gave rise to the damages (excluding VAT). If the services extend over multiple years, then for the compensation of direct damages the Contractor may be held to a maximum of the value of the amounts invoiced for the performance of this Contract for the specific Services (excluding VAT) over a period of twelve (12) months prior to the date that the damages-causing event occurred. Under no circumstances shall the total liability for all direct damages during the entire duration of the Contract exceed the fee paid by the Customer for the specific Services (excluding VAT). For damages incidents partly attributable to the Customer and/or a third party, the Contractor may be held liable towards the Customer up to a maximum amount, within the limits defined above, of the share caused by the Contractor’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. 8.3. The Customer must inform the Contractor 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. This is in order to enable the Contractor to determine the origin and cause(s) of the damage within a reasonable period. In the event of failure to comply with the written notification, the Contractor reserves the right to refuse any compensation and it cannot be held liable. 8.4. Under no circumstances shall the Contractor be liable for (i) indirect, incidental or consequential loss, including but not limited to financial or commercial losses, loss of profit, increase of general expenses, missed savings opportunities, diminished goodwill, damages resulting from business stoppage, damages resulting from claims of customers of the Customer, disruptions in scheduling, loss of expected profit, loss of capital, loss of customers, missed opportunities, loss of information, loss of advantages, or compromising and loss of files resulting from the performance of the present Contract, (ii) damages resulting from error or negligence of the Customer, (iii) compensation of any direct and indirect damages caused by the use of the result of the Services, (iv) compensation of any direct and indirect damages caused in whole or in part by software or hardware supplied or created by third parties, or any other element introduced into the Customer’s business after the signing of the Contract, and (v) all claims of third parties brought against the Customer. 8.5. 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 Contractor. 8.6. In the event that the delivered developments are used for further development or commercialisation, the Customer will hold the Contarctor harmless against any third party damages claims, even if it were established that such originated from the services and developments supplied by the Contractor. 8.7. The Contractor 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 Contractor has made available; or (b) information, design, specifications, instructions, software, data or other materials that were not developed by the Contractor. 8.8. These limitations of liability remain applicable in the event that the Contractor is informed by the Customer of the existence of a realistic risk of damages. The Parties acknowledge that this constitutes a reasonable spread of the risk. 8.9. The provisions of this article, alongside all other limitations and exclusions of liability specified in these General Terms & Conditions, are stipulated in part for the benefit of the Employees of the Contractor and its Affiliated Companies. 8.10. 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 Contractor 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. 8.11. In reference to viruses, the Contractor’s responsibility is limited to installing anti-virus programmes where explicitly ordered in the Project Order. The Contractor can never be held liable for viruses in the Customer's system and the consequences thereof. 8.12. 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. 9. Force Majeure 9.1. Neither party is obliged to fulfil any obligation if prevented from doing so by Force Majeure. 9.2. 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, or work hours still to be performed will be charged at the Contractor’s applicable average hourly rates, without the Parties owing anything to each other beyond this proportionate compensation. 10. Non-solicitation 10.1. The Customer agrees that it will not actively approach the Employees of the Contractor directly or indirectly with the intention of engaging these Employees, and that this obligation commences as from the start of performance of the Services and continues until twelve (12) months after the end date of the Services and/or termination of the Contract, whichever is later, excepting where agreed otherwise by the parties in writing. 10.2. If the Customer Contracts an Employee of the Contractor 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 Contractor an amount equivalent to 6 months’ salary or the compensation 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 the obligation to impose the obligations under articles 10.1 and 10.2 of these General Terms & Conditions on the third parties with which it partners and/or contracts. The Customer commits to ensuring that these third parties will not approach any of the Employees of the Contractor with the purpose of engaging or recruiting these persons. 11. Provisions concerning the Processing of Personal Data 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 that is to be processed pursuant to this Contract. The Customer undertakes to refrain from granting the Contractor 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 remains solely responsible for the determination of the objectives for which the Contractor 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 Contractor acts as the processor of the personal data that must be stored, used or otherwise processed 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 resulting from the application and/or implementation of the legislation with respect to the processing of personal data will be exclusively borne by the Customer. 11.2. The Customer declares that it has obtained all approvals necessary for the use and processing of the personal data transferred to the Contractor 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. 11.3. Parties are able to further determine additional modalities of the Processing by mutual agreement in the Project Order to these General Terms and Conditions, to the extent that they are necessary for the execution of the specific services. Purpose of the Data Processing 11.4. The Contractor delivers one or more of the following services for the performance of the Project Order:
- Project Services;
- Operating Services. 11.5. If applicable, the Contractor will process certain Personal Data in the performance of Services on behalf of and in accordance with (i) the documented instructions of the Customer, (ii) other modalities as set out in these provisions (11. Provisions concerning the Processing of Personal Data) and; (iii) the obligations set forth in the applicable Data Protection Regulation that applies directly to Processors. 11.6. In relation with and for the performance of the services as mentioned in the Project Order, the Customer will transfer personal data to the Contractor in order to process the personal data in accordance with the terms of this Contract. The personal data can be processed by the Contractor for the purpose of delivering the services under the Project Order and more specific in accordance with the purposes as described in the Project Order. 11.7. The processing of personal data concerns the personal data of (potential)/(ex)clients, applicants and (ex)employees, interns, (potential) and (ex)business partners and/or their clients, as well as every other data subject stated in the Project Order. The afore mentioned processing concerns the following categories of personal data: • Identification data e.g. name, address, etc.; • Financial data e.g. income, posessions, identification- and bankaccountnumbers, credit card numbers, loans, solvency, etc.; • Personal characteristics, e.g. gender, age, date of birth, martital status, etc.; • Lifestyle habits, e.g. tabacco use and alcohol use, etc.; • Relational data like name of the husband or wife, marital overview, etc.; • Leisure activities and interests; • Education; • Education and formation; • Occupation and employment; • Every other categorie of personal data as agreed between the Parties in the Project Order or otherwise agreed in writing. Rights and obligations of the Customer 11.8. The Customer is solely responsible for determining the purposes of the Processing and is responsible for establishing the documented instructions according to which the Contractor has the right to process Personal Data during the term of the Contract. 11.9. The Customer designates a single point of contact in the Project Order (hereinafter referred to as the "Data Protection SPOC") for matters relating to data processing on the basis of this Contract. The Data Protection SPOC has been duly authorised by the Customer to discuss confidential matters with the Contractor and to inform the Contractor about all data processing activities under this Contract. All decisions and instructions of the Data Protection SPOC are deemed to have been approved by the Customer and the Contractor can fully rely on all communication and decisions taken by the SPOC for data processing. The Contractor must comply with all reasonable and lawful instructions regarding its processing activities under this Contract, provided by the Data Protection SPOC. 11.10. If necessary, the Customer introduces Technical and Organisational Measures, and will continue to introduce them, to protect Personal Data from accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access. Accordingly, the Costumer will ensure that he implements the necessary directives for the protection of Personal Data. These measures must ensure an adequate level of protection, taking into account the state of the art, the costs of the implementation of the measures and risks associated with the Processing. Under no circumstances, the Contractor can be held liable for (i) a breach of the directives, (ii) not complying with the directives (iii) or not implementing the necessary Technical and Organisational Measures by the Customer. If the Contractor is required to take such Technical and Organisational Measures, the Customer must check and approve these Technical and Organisational Measures before Processing starts. The Customer is responsible for supervising compliance by the Contractor with the applicable Data Protection Regulation. 11.11. The General Terms and Conditions and the processing agreement of Third Party Suppliers are fully applicable to the Customer. The Customer cannot gain any more rights with regard to the Contractor in terms of technology, software and/or services provided by the Third Parties than are contained in the relevant general terms and conditions and processing agreement of Third Parties.
Rights and obligations of the Contractor
11.12. The Contractor only processes the Personal Data on documented instruction of the Customer or insofar as this would be necessary to be able to execute the Services. 11.13. If the Contractor considers that the instructions of the Customer violate the requirements of the applicable Data Protection Regulation or the legislation of the member state, the Contractor shall immediately inform the Customer of this, unless the law forbids disclosure of this information for important reasons of public interest. 11.14. The Contractor guarantees that the persons in his organisation who are authorised to Process Personal Data, have committed themselves to observe confidentiality or are bound by an appropriate statutory confidentiality obligation. 11.15. The Contractor must at all times implement the following Technical and Organisational Measures to protect Personal Data from accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access to Personal Data: (a) The Contractor is responsible for the access security of its systems and has implemented the necessary procedures for this. Only the Consultants involved in the assignment will have access to the operating data in the context of this assignment. Access rights are only granted to those Consultants for the duration of the Services and all access to the system is logged. The Contractor's systems are physically and logically secured; (b) The Customer is responsible for the access control policy, registration, de-registration and withdrawal of the access rights of the Consultant(s) to its systems. The Customer is also responsible for the complete physical security of its environment. (c) The Consultant(s) shall comply with the rules of conduct that apply within the organisation of the Customer and will always act in a responsible manner in relation to the Processing of Personal Data. (d) The Consultant(s) will at all times follow the clear and lawful instructions of the Customer with regard to the Processing of Personal Data and, at the request of the Customer, submit reports about this.
11.16. Depending on the types of services delivered by the Contractor and mentioned in the Project Order, the following specific measures always apply. Consultancy Services 11.17. In the event the Consultant(s) works/work on systems of the Contractor, prior agreement shall be reached regarding which systems will be used by the Contractor for performing the service. No other systems will be used. Project Services 11.18. The various environments (development, test, production, etc.) that will be used for the execution of the Project Services and which are managed by the Contractor, will be clearly separated. These environments will be protected against malware by the Contractor. Logging and access monitoring will be provided for these environments. 11.19. For the development of the software, the principle of 'privacy by design' will be applied in mutual consultation between the Parties. 11.20. If changes have to be made to the software, this will be done according to processes and procedures that have been determined in mutual consultation. Operating Services 11.21. The responsibilities and authorisations for the execution of the Operating Services have been determined in mutual consultation. This includes at least how the responsibilities of the Consultants and/or Parties are arranged. This is evaluated periodically in mutual consultation and revised if necessary. 11.22. The Parties agree on an encryption policy, both for data in transit and stored data, and will also define and arrange key management. Unless otherwise agreed in the Project Order, all Personal Data in the context of the Operating Services are encrypted by the Contractor and the (master) key management is the responsibility of the Customer at all times. 11.23. The Contractor is responsible for implementing and monitoring security for its part of the network. The different network domains, including access control, are separated. 11.24. The Contractor is not responsible for the regulation of the software of third parties with the applicable Data Protection Regulation. 11.25. Taking into account the state of the art, the costs of the implementation of the measures and the nature, scope, context and purposes of the Processing, as well as the risk of varying likelihood and the severity for the rights and freedoms of the Data Subjects, the Contractor has the right to invoice the Customer for additional requested and/or legally required Technical and Organisational Measures in the event that the Customer requires these stricter Technical and Organisational Measures as a result of the policy, guidelines, regulations or laws, etc., applicable to the Customer. Any deviations or additions resulting from a specific request from the Customer and/or requirement on the basis of the Data Protection Regulation will be added in the Project Order. 11.26. At the request of the Data Protection SPOC of the Customer, and taking into account the nature of the Processing, the Contractor must assist the Customer by enacting appropriate Technical and Organisational Measures, insofar as possible, to comply with the obligation of the Customer to reply to requests pertaining to the exercise of the Data Subject's rights as laid down in the applicable Data Protection Regulation; the Contractor must inform the Customer of all requests that it receives from Data Subjects with regard to the Processing. The Customer is responsible for handling and responding to such requests. The Contractor is entitled to compensation for such assistance, based on his hourly rates or other rates agreed between the Parties. 11.27. At the request of the Data Protection SPOC of the Customer and taking into account the nature of the Processing and the information available to the Contractor, the Contractor will provide all reasonable assistance to the Customer to enable the Customer to meet its obligations in relation to (i) the security of the Processing, (ii) notification of a Personal Data Breach to the Supervisory Authority or the Data Subject as set out in clauses 11.39-11.41 (iii) the performance of a data protection impact assessment and the prior notification to the Supervisory Authority. The Contractor is entitled to compensation for such assistance based on the rates agreed between the Parties in the Project Order. 11.28. The Contractor shall make all information available to demonstrate compliance with the obligations laid down in this Contract and will provide its full assistance for audits, including inspections carried out by the Customer or its authorized inspector, in accordance with clause 11.31-11.38. Subprocessing 11.29. The Customer agrees to the use of the Subprocessors as stated in the Project Order and grants his general authorisation to the Contractor to make use of his Affiliated Companies. The Contractor informs the Customer of all intended changes with regard to the addition or replacement of other Subprocessors. If the Customer objects to such changes, the Customer will inform the Contractor of its objection within five (5) days of notification of the change. The Parties shall jointly agree whether (i) the Subprocessor will still be deployed, (ii) the Subprocessor will be replaced by another Subprocessor selected by the Contractor, or (iii) the Subprocessor will not be appointed (or no Personal Data will be disclosed to such Subprocessor), until reasonable steps have been taken to deal with the objections of the Customer and until the Customer has received reasonable explanations about the steps taken. It is possible that the Contractor will not be able to guarantee continuous delivery of services in case of disagreements regarding a Subprocessor, and Contractor cannot be held liable for such implementation delays due to discussions related to the Subprocessor. 11.30. If the Contractor makes use of a Subprocessor, the following applies: (a) The obligations with respect to the Processing of Personal Data as to which Contractor is bound by this Contract apply in full on the Subprocessor. (b) The Contractor confirms that the Subprocessor was elected in consideration of the suitability of the Technical and Organisational Measures used by the Subprocessor.
Audit 11.31. At the request of the Customer, the Contractor can demonstrate compliance with its obligations by providing the Customer with the latest certifications and/or summary audit reports on the Technical and Organisational Measures. The Customer may ask additional questions and the Contractor must reasonably cooperate with the Customer by providing additional information. The Contractor may charge the Customer for its cooperation at the rates stipulated in the Project Order or according to its usual hourly rates. 11.32. If such certifications and/or summary audit reports are not available, the following procedure shall apply. The Customer has the right to check compliance with this Contract itself or to have it checked. Such an audit may not take place more than once per contract year. Customer shall provide Contractor with at least thirty (30) days prior written notice via registered mail of its intention to perform an audit. The notification must include the name of the auditor, a description of the purpose and the scope of the audit. The audit will take place during the regular business hours as applicable at the location of the Contractor. 11.33. The audit may be performed by an internal auditor or an external auditor chosen by the Customer, provided that the external party cannot be considered a competitor of the Contractor or provided there is no conflict of interest. The Contractor has the right to approve the auditor in advance. 11.34. The Contractor may limit the access of the Customer to the premises of the Contractor to a space provided by the Contractor and the auditor may not copy or delete documents from the Contractor without the prior approval and consent of the Contractor. 11.35. The Customer shall guarantee that the audit is carried out in such a way that the inconvenience for the Contractor and its company is kept to a minimum. 11.36. The Customer will impose sufficient confidentiality obligations on its auditors. In addition, the Contractor has the right to require the auditors to sign a non-disclosure agreement before the start of the audit, in a form set out by the Contractor. In all cases, it is essential to protect the confidential information of the Contractor. 11.37. The Customer must, or will request that its external auditors, send a draft version of the audit report to the Contractor. The Contractor has the right to submit its comments within a timeframe as agreed between the Parties. The auditor shall take the comments of the Contractor into account and include these comments in its final report submitted to the Contractor. 11.38. All audit costs are exclusively borne by the Customer. Notifications about Personal Data Breaches 11.39. In the event of notifications of Personal Data Breaches, the Contractor will inform the Customer without undue delay as soon as it has become aware of a Personal Data Breach. 11.40. The notification includes, insofar as this information is readily available to the Contractor: (a) the nature of the Personal Data Breach, if possible with reference to the categories and the estimated number of records of Data Subjects and Personal Data; (b) the name and contact details of the Data Protection Officer or any other contact point from which further information can be obtained; (c) the likely consequences of the Personal Data Breach; (d) the measures proposed or taken by the Customer to address the Personal Data Breach, including, where appropriate, the measures to limit any adverse effects thereof. 11.41. Insofar as the preparation of the notification places undue burdens on the Contractor, the Contractor has the right to invoice the Customer for its assistance according to its regular hourly rates stated in the Project Order or according to the rates agreed between the Parties. Transfer 11.42. Any transfer of Personal Data to a third country or international organisation may only take place in accordance with the principles set out in the applicable Data Protection Regulation and these General Terms and Conditions. 11.43. The Customer grants the Contractor permission to transfer Personal Data to a third country or to an international organisation, as set out in the Project Order. Any change or addition to the list as stated in the Project Order, as proposed or required by the Contractor, will be communicated to the Customer before such transfer takes place. The Customer has the right to object to such transfer within five (5) days of notification of the change. The Parties agree on whether or not to proceed with the transfer and the consequences thereof for the provision of the Services in terms of scope, timing and budget. 11.44. Any transfer as referred to in Article 11.45 can take place on the following grounds: (a) An adequacy decision by the Commission; (b) Appropriate safeguards, including the availability of enforceable rights of Data Subjects and effective legal means. Appropriate safeguards must be adhered to in the following cases: (i) binding corporate rules; (ii) standard data protection clauses adopted by the Commission or by a Supervisory Authority and approved by the Commission; or (iii) an approved code of conduct or an approved certification mechanism. 11.45. The Data Protection SPOC of the Customer may instruct the Contractor to transfer Personal Data to a third country or an international organisation for reasons other than those mentioned in the previous clause. The Customer is solely responsible for ensuring that such transfers comply with the conditions of the Data Protection Regulation. The Contractor will, based on the instructions of the Customer, implement guarantees required by the Customer, insofar as possible and upon payment of the fees agreed between the Parties. Such instructions will be included in or treated as an amendment to the Project Order if these instructions have been issued during the term of the Contract. The Parties mutually decide on the consequences of this on the delivery of the Services in terms of scope, timing and budget. Liability 11.46. If the Contractor and the Customer are held jointly liable by the Data Subject, the Customer will fully reimburse the Data Subject. The Customer is entitled to compensation from the Contractor insofar as there is an attributable and proven shortcoming by the Contractor in regards to the Contract or Data Protection Regulation that is specifically aimed at the Contractor, insofar as (i) the Customer has fulfilled its own obligations as set out in this Contract or the applicable Data Protection Regulation and (ii) in relation to the impact ratio of the proven error of the Contractor. Such compensation is subject to the liability limit as stated in article 8.2 of these General Terms and Conditions. 11.47. The liability provision set out in article 8.2 of these General Terms and Conditions is fully applicable. Termination and consequences 11.48. After termination of this Contract, the Contractor shall cease its Processing activities. In case of partial termination of the Project Order, the Processing shall cease for activities that are affected by the partial termination at the time of the partial termination or at another time stipulated in agreement between the Parties. 11.49. The Contractor will, at the discretion of the Customer, delete or return all Personal Data relating to the terminated Services (in so far as these Personal Data are not required for non-terminated Services in case of partial termination) and delete existing copies as far as technically possible. The Contractor may keep copies if the storage of Personal Data is required for legal or regulatory reasons. 12. General stipulations 12.1. The present Contract is governed by Belgian law. Application of the Vienna Sales Convention of 11 April 1980 (CISG) is excluded. 12.2. 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 in the event the Customer conducts its own import/export. In situations of import or export by the Customer, the Customer is considered to be the exporter and or importer, to the explicit exclusion of the Service Provider. 12.3. In the event of disputes concerning the implementation and/or interpretation of the present Contract which cannot be resolved amicably, only the Courts of Antwerp (division Antwerp) will be considered competent. Any claim of the Customer relating to the Services provided expires six (6) months after the date on which the Customer becomes aware or reasonably could have become aware of the damages-causing events giving rise to the claim. 12.4. 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. 12.5. The Contractor may call upon subcontractors for the performance of the Agreement without the Client's prior written consent. 12.6. The nullity of any provision or part of a provision under this Contract will in no way affect the validity of the remaining portion of the provision or the rest of the provisions and clauses. By mutual agreement, the Parties will 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. If the invalid provision is of fundamental importance to the purpose of article 11, the Parties will negotiate in good faith to remedy the invalidity, unlawfulness or unenforceability of the provision or to alter the provision to be able to execute the purpose of article 11 of these General Terms and Conditions. 12.7. A Party cannot be considered 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 under this Contract 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 the other Party, even if the two situations exhibit significant similarities. 12.8. Barring any stipulation to the contrary, all legal remedies provided in the Contract are cumulative and above and beyond (and not in replacement of) any other legal remedies available to the Parties. 12.9. These General Terms and Conditions, together with the Project Order 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. Departures from and additions to this Contract are only valid if agreed between the Parties in writing. The applicability of the Customer's purchase conditions or any other general conditions are explicitly rejected, even if these conditions state otherwise. Deviations from and additions to the General Terms and Conditions and the Specific Conditions are only valid if agreed in writing between the Parties. Deviations from and additions to the Terms and Conditions of the Producer are not possible. In the event of any contradiction between the General Terms and Conditions, the Project Order and the Terms and Conditions of the Producer, the Project Order will take precedence over the General Terms and Conditions and the Terms and Conditions for the Producer on the Specific Terms and Conditions. If and insofar as the aforementioned conditions of the Producer in the relationship between the Customer and the Producer for whatever reason are deemed not to apply or are declared inapplicable, the provisions in the General Terms and Conditions and the Project Order shall apply in full. 12.10. The applicability of purchase or other conditions of the Customer are explicitly rejected, even if these conditions would otherwise determine. 12.11. 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. 12.12. 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. 12.13. 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. 12.14. 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.