GENERAL TERMS & CONDITIONS FOR THE SUPPLY OF HARDWARE AND/OR SOFTWARE AND/OR SERVICES
Agreement: these General Terms and Conditions, the Specific Terms and Conditions of The Contractor and the Manufacturer’s Terms and Conditions (including the licence conditions) for the hardware and/or software to be supplied and any maintenance agreements with the Manufacturer of the hardware and/or software.
Contractor: Zebanza is part of Exitas nv, with registered office at Veldkant 31, 2550 Kontich, and company number BE 0544.808.121.
Client: the Client referred to in the Specific Terms and Conditions.
Manufacturer: the manufacturer of the hardware and/or software referred to in the Specific Terms and Conditions including the maintenance services of this Manufacturer for the hardware and/or software.
Manufacturer’s Terms and Conditions: the general (licence) conditions of the Manufacturer applicable to the hardware and/or software that form an integral part of the Agreement, and also any conditions of the Manufacturer regarding the maintenance services he supplies.
Order: the approval and acceptance by the client of the Special and General Terms and Conditions and the Manufacturer’s Terms and Conditions (including
maintenance) or the commencement of the Agreement by Contractor.
Goods: the Manufacturer’s hardware and/or software.
Services: the services as described in the Specific Terms and Conditions;
Services on a Time & Material basis: Services provided by The Contractor on a time and material basis and invoiced to the Client at an hourly rate;
Services on a Fixed Price basis: Services provided by The Contractor for which the Parties have agreed a fixed price;
Project: the entirety of the reciprocal Services and cooperation between the Parties in the context of this Agreement as described in the Specific Terms and Conditions;
Consultancy: the supply by The Contractor of Services on a time and material hourly basis, where the services supplied are paid at the agreed hourly rate multiplied by the number of hours performed;
Party/ies: The Contractor or/and the Client.
APPLICABLE CONDITIONS – These General Terms and Conditions together with the Specific Terms and Conditions and the Manufacturer’s Terms and Conditions for hardware and/or software and any maintenance represent the entirety of the rights and obligations of the Parties and replace all prior Agreements and proposals, both oral and written. The Client confirms that he has taken cognisance of the Manufacturer’s product and maintenance conditions and that he accepts them. Deviations and additions to these General Terms and Conditions are only valid if agreed by the Parties in writing.
The Parties agree that these General Terms and Conditions shall apply to all current and future commercial relations between the Parties. If the Client, after receiving the Agreement, places an order with The Contractor by means of an own purchase order or another agreement with his own terms and conditions, then this shall under no circumstances constitute a tacit acceptance by The Contractor, not even if The Contractor commences the Services or supplies the Products to the Client. The conditions in the underlying Agreement drawn up by The Contractor shall always prevail.
The General Terms and Conditions and the Specific Terms and Conditions as well as the Manufacturer’s Terms and Conditions for the hardware and/or software and any maintenance apply to the exclusion of any other conditions – even if the Client’s general terms and conditions state otherwise or if these are mentioned on invoices or purchase orders etc.
In case of conflict between the General Terms and Conditions, Specific Terms and Conditions and the Manufacturer’s Terms and Conditions for the hardware and/or software, the Specific Terms and Conditions shall prevail over the General Terms and Conditions, and the Manufacturer’s (licence) Terms and Conditions for the hardware and/or software shall prevail over the Specific and General Terms and Conditions.
If and insofar as for any reason whatsoever the aforementioned Manufacturer’s Terms and Conditions shall be deemed not to apply to the relations between the Client and the Manufacturer, or are declared inapplicable, the provisions of these General Terms and Conditions shall apply in full.
Deviations from these General and Specific Terms and Conditions are only valid if they are expressly agreed in writing in the respective Order or Agreement. Deviations from the Manufacturer’s (licence) Terms and Conditions for the hardware and/or software are not possible.
FORMATION – The Contractor is only bound by this Agreement after The Contractor has accepted the Client’s Order in writing. The Client remains bound by his Order until The Contractor has accepted the Client’s Order in writing. Allowing the Contractor to commence this Agreement shall constitute sufficient proof that the Client has accepted the Agreement in its entirety and as consent to invoice the Goods and/or Services in question.
Should the Contractor begin the assignment mentioned in the specific conditions, by request of the client, before the signing of this proposal, the commencement of the assignment will count as an acceptance of the general and specific conditions.
CLIENT – Unless some other capacity of the Client is mentioned, the Client will irrevocably be deemed to be a professional user, acting in course with his professional activities.
COOPERATION – Parties acknowledge that in the field of information and communication technologies, success of activities generally depend on an accurate and timely cooperation. In order to allow the Contractor to properly execute its obligations, Client shall at all times provide Contractor timely with the useful, necessary and desirable data or information, and shall give its full cooperation. In the event that Client – within the framework of its obligation to cooperate with the execution of this Agreement – would make use of its own employees and/or staff, these employees and/or staff shall have the necessary knowledge, expertise and experience.
The cooperation required from the Client may be very intensive at certain times of the Project and the Client needs to take this into account during the Project. The Client needs to reserve sufficient resources and people for this.
Client bears the risk of the selection, use, utilization and administration in its organisation of the equipment, software, websites, databases and other products and materials and of the services to be provided by the Contractor. Only Client is responsible for the proper installation, assembly, and initiation, as well as for the correct settings of the equipment, software, databases and other products and materials
The Contractor undertakes to arrange for the delivery of the Goods and the associated maintenance and other Services mentioned in the Specific Terms and Conditions in accordance with the Manufacturer’s Terms and Conditions.
The Client confirms that he has taken knowledge of the Manufacturer’s (licence and/or maintenance) Terms and Conditions and declares to accept them. These conditions constitute an inextricable part of this Agreement and apply directly to the Client. The Client cannot derive any rights from these Manufacturer’s Terms and Conditions other than those contained therein. The Client shall indemnify and hold The Contractor harmless against all compensations, losses, liabilities, damage, costs or expenses that The Contractor may suffer or incur as a consequence of a breach of any (licence) Manufacturer’s Terms and Conditions and claims resulting therefrom.
The Client accept and understands that the installation of the Products supplied by The Contractor may have an impact on the already existing hardware and/or already installed software and/or licences at the Client. The Parties agree that The Contractor cannot be held liable for this.
Except for provisions of imperative law or public order to the contrary, the Contractor is not liable in any way whatsoever regarding the Goods and maintenance services provided by the Manufacturer. The Client can only approach the Manufacturer within the limits of the relevant standard licences and/or conditions for the supplied standard hardware and software or the maintenance agreement. The Contractor cannot be held liable for the supply of the Goods and maintenance services by the Manufacturer. The delivery thereof is the exclusive responsibility of the Client.
The Client is fully liable for errors and/or omissions in the Order of Goods and/or Services. The Contractor’s contractual obligations can only be derived from the Specific Terms and Conditions and these General Terms and Conditions. The Client is therefore himself responsible for the Orders and the suitability of the supplied Goods and/or Services with regards to the result the Client wishes to achieve. The Contractor can under no circumstances be held responsible for incorrect product selection, product specialisation or description of Services in the Specific Terms and Conditions.
Unless provided otherwise in the Manufacturer’s Terms and Conditions, the Client shall when cancelling the order for Goods and any associated maintenance services be liable for the entire purchase price. If the Client cancels his order for the provision of Services in full or in part or fails to take receipt of all or part of the Services provided or fails to accept them without good reason, the Contractor may demand the dissolution of or compliance with the Agreement. The loss incurred by the Contractor shall be at least 50% of the value of the order or the part not complied with, without prejudice to the Contractor’s right to prove the actual loss by all legal means if this is greater.
In the event that The Contractor provides Services to the Client, the Contractor undertakes to implement the Services referred to in the Specific Terms and Conditions for the benefit of the Client.
Unless otherwise determined in the Specific Terms and Conditions, the Services shall be performed at the Client’s premises as stated in the Specific Terms and Conditions.
The price of Goods and Services is established in the Specific Terms and Conditions. The Contractor is at all times entitled to modify these prices for the Goods and Services by means of a written notification to the Client if this is the result of a price adjustment by its manufacturers or as a result of exchange rate variations.
The price excludes VAT, recupel recycling fee, taxes and levies, excise duties, transport prices (of the manufacturer), import duties and incidental expenses and all other reasonable costs. If the Services are performed outside The Contractor’s premises, a lump-sum travel reimbursement will be charged for every day per consultant if agreed in the Specific Terms and Conditions. The Client shall bear all these costs. The Contractor is not liable for taxes which the Client is legally obliged to pay. All such taxes are the sole responsibility of the Client.
The price for Services performed by the Contractor may be invoiced either on a ‘time & material’ basis or ‘fixed price’ basis, as specified in the Specific Terms and Conditions. In the case of Consultancy ‘time and material’ services, such services will be invoiced at the hourly rate determined in the Specific Terms and Conditions, multiplied by the number of hours worked. Unless agreed otherwise in the Specific Terms and Conditions, a minimum intervention shall last at least 4 hours. Any estimates in price or time quotations made by The Contractor are purely indicative.
All prices are in Euro (€), unless explicitly otherwise mentioned.
The prices may depend on the US Dollar to Euro conversion rate at time of order
The Client undertakes to pay 20% of the price of the ordered Goods and for Projects on a ‘Fixed Price’ basis in advance at the moment of the signing of the Specific Terms and Conditions. The Contractor is only bound to execute after payment of the said advance.
Unless otherwise agreed in the Specific Terms and Conditions, The Contractor will invoice the outstanding balance for Goods and ‘Fixed Price’ Projects to the Client following delivery of the Goods. Unless a payment schedule is agreed in the Specific Terms and Conditions, services on a ‘Fixed Price’ basis will be invoiced monthly.
Unless otherwise agreed in the Specific Terms and Conditions, the Manufacturer’s Maintenance contracts for the Goods will be invoiced annually.
Articles 5.1 and 5.2 do not apply to services on a Time and Material basis.
If the Services only last one month, the Contractor will invoice these to the Client at the end of the Services. If the Services last longer than one month, the Contractor will invoice the Client monthly for Services it has performed, on the basis of an hourly rate / daily rate, as agreed in the Specific Terms and Conditions.
The Contractor undertakes to fit in with the Client’s work schedule when implementing Services. Notwithstanding the foregoing, The Contractor assumes a work schedule of 38 hours per week and 7.6 hours per day.
The performances will be paid on the basis of the following schedule. If there is a work schedule which exceeds 38 hours per week or 7.6 hours per day, these hours will be paid on the basis of the following schedule (the hourly rate agreed in the Specific Terms and Conditions will form the basis for the following schedule):
- Work between 07 – 18 ⇒ 100%
- Work between 18 – 22 ⇒ 150%
- Work between 22 – 06 ⇒ 200%
- Work between 06 – 07 ⇒ 150%
- Work between 06 – 22 ⇒ 150%
- Work between 22 – 06 ⇒ 200%
- Sunday & Holidays
The Client will sign off the work performances for approval by means of the appropriate timesheet forms.
The Parties may expressly agree in the Specific Terms and Conditions to sell the goods on a trial basis (under the condition precedent that they are suitable for the use for which they are intended) pursuant to Article 1588 of the Belgian Civil Code. This means that the Client must proceed to test the goods within a time limit of one month (the trial period) from the delivery date of the goods to determine whether the goods are fit for their intended purpose. If the test shows that, on the basis of objective factors, the Goods are fit for their intended use the sale will not take place, on condition that the Client notifies this by registered letter within a period of 1 month starting from the delivery date (the postmark serves as proof of the date). In the absence of a registered letter, the sale will become final by the mere passing of the trial period of 1 month. The Contractor remains the owner of the goods as long as the buyer/client does not inform the Contractor by registered letter that the trial has not been successful within one month from the date of delivery. If the trial has been successful or if the Buyer does not notify the Contractor within a period of 1 month by registered letter that the Goods are not fit for purpose, the ownership of the Goods will automatically pass to the Client. If the trial is unsuccessful the Client shall return the Goods to the Contractor at his own expense and in the condition in which they were delivered within a time period of 2 working days. During the trial period, the Client shall take diligent care of the Goods. If during the trial period, the delivered Goods are damaged or destroyed, the Client shall compensate the Contractor for this.
The risk of use for the Goods remains with the Client for which he must insure himself with a reputable insurer.
The Client shall bear the costs of returning the Goods. In the event of late return, all return, detection and storage costs are at the Client’s expense.
The Parties agree that the Contractor entitled to invoice the implantation of Goods on trial separately on a time and material basis. If the trial is unsuccessful, the removal (de-implementation) services will also be invoiced on a time and material basis.
After the expiration of the trial period, it is no longer possible to file a claim against the Contractor for visible or hidden defects in the Goods.
The prices for Services (in time and material and fixed price) may be reviewed annually on the anniversary of the Agreement by the Contractor on the basis of the following formula:
Base price: price at the start of the Agreement;
Initial index: the ‘national average reference wage’ index published by Agoria for the month preceding signature of the Agreement;
New index: the ‘national average reference wage’ index published by Agoria for the month preceding the anniversary of the Agreement.
Invoices for Goods and any associated maintenance agreements as well as invoices for Services, must be contested within a within 8 working days of its dispatch. Absence of a written contest of those invoices within the aforementioned period will imply the irrevocable acceptance of those invoices and the therein mentioned services.
The Client is not entitled to set off or suspend payment nor is he entitled to invoice the Contractor for the costs of engaging third parties.
The Contractor retains the ownership of the delivered Goods until the Client has paid the invoice in full, including interest and penalty clauses(retention of ownership).
The Contractor is entitled to suspend its obligations automatically by notifying the Client via registered letter. If the Client does not comply with his obligations under this Agreement, the Contractor can suspend the services provided and/or disable the hardware and/or software.
The Client undertakes to pay the invoice for both Goods and Services at the latest 30 calendar days after the invoice date, unless otherwise agreed in the Specific Terms and Conditions. The payment terms as determined in the Specific Terms and Conditions may only be adjusted if the Manufacturer’s Terms and Conditions provide for a shorter payment term.
The expiry of the payment term holds the Client liable by operation of law and without any prior formal notice. From the moment of expiry of the payment term conventional late payment interest shall be due equal to the interest rate as stipulated in the Article 5 Wet Betalingsachterstand (Wet 02/08/2002, B.S 07/08/2002), augmented with 3%.
Besides this, a fixed amount of damages is due on the unpaid amount equal to 15% for the first tranche of EUR 4.000, 10% for the second tranche of EUR 4.000 to EUR 12.500 and 7,5% above EUR 12.500; Legal fees are not included in this clause.
Payments made by the Client to the Contractor will in firstly be used to settle the costs, which the Client is due, secondly to settle the interest due, and in final instance, to settle the principal amount due.
In the case of late payment, the Client, in addition to the interest due, will be hold to pay 10% of the principal sum to cover the extra-judicial recovery costs which were caused by the non-payment, without prejudice to the right of the Contractor to demand payment for the judicial recovery costs which result from a failure to pay and without prejudice to the Contractor’s right to claim compensation for other losses which were not by a breach of the aforementioned payment obligation.
Contractor reserves the right to claim higher damages provided that there is evidence of higher actual loss.
If Contractor considers the Client to be in financial difficulties, Contractor may, also after the conclusion of the Agreement, either in connection to the Goods or Services, request the Client to provide the by Contractor required security for the payment of the Goods and/or Services yet to be provided and Contractor may suspend performance as long as such security has not been provided. If the Client refuses to comply with this request within a reasonable time, the Contractor reserves the right to terminate the Agreement immediately, unilaterally and without any compensation. The Contractor also reserves the right to claim for damages.
The Client warrants and indemnifies the Contractor against any claim by the Manufacturer against The Contractor for unpaid invoices from the Manufacturer for the Goods and/or for associated maintenance services for any reason whatsoever. The Client shall hold the Contractor entirely harmless for all costs, damage, expenses and outlays that the Contractor incurs as a consequence thereof, including its legal fees.
In the event fundamental changes in circumstances occur which affect the agreed price and which were not foreseeable at the time when the price was set and which also disturb the contractual equilibrium (e.g. highly variable exchange currency rates, increased land and fuel prices, higher production costs) the Parties will meet at first request to seek for an equitable amendment of the Agreement. If the Parties do not reach an amicable agreement within 30 days from the request to amend the Agreement, the requesting party has the right to terminate the Agreement by sending a registered letter with a notice of thirty days and this without any compensation due.
If the Specific Terms and Conditions between the Parties provide that associated companies of the Client may call upon the services of the Contractor, the Client will remain jointly and severally liable for the fulfilment of the payment and other obligations arising from the General and Specific Terms and Conditions.
- Delivery, transfer of risk and title, acceptance:
Unless otherwise agreed in the Specific Terms and Conditions, all Goods will be delivered directly by the respective manufacturer to the Client or to a location indicated by the Client. The manufacturer’s delivery terms and conditions and tariffs will apply to deliveries and apply directly to the Client. The Contractor rejects any liability whatsoever for Goods supplied by the manufacturer.
The Client undertakes to take immediate receipt of the sold goods upon delivery and to check whether the quality and/or quantity of the delivered goods correspond to what was agreed. The Client undertakes to notify the Contractor on receipt if the delivery corresponds to what was agreed or not. If it turns out later that the delivery was non-compliant, the Client shall compensate the Contractor for any costs (such as but not limited to unnecessary journeys or services performed) associated with this.
The Client is responsible for the accessibility of buildings where the delivery has to be made and shall request parking signs if necessary. Any additional cost such as additional deployment of people, ladder lift etc. as a consequence of inaccessible buildings are at the expense of the Client.
If applicable, the Client shall apply for all necessary building permits and appoint an architect and/or expert and for safety instructions. If a building permit is necessary to implement the order (the Client shall approach the municipality’s technical services for this), the Client must notify this before signature of the Specific Terms and Conditions and send the building permit to the Contractor before works commence. If the Client does not notify the Contractor of the building permit and/or does not obtain one, The Contractor has the right to terminate the Agreement without notice without having to pay compensation.
If applicable, the Client shall make available a suitable installation site for the Goods which complies with all technical and statutory requirements, such as the soundness and stability of the building and the Manufacturer’s Terms and Conditions. The Client shall arrange to have the necessary studies carried out for this and discharges and indemnifies The Contractor for any liability in this respect.
The risk of loss, theft or damage to the ‘Goods and Services’ which constitute the subject of this Agreement shall pass to the Client at the time when these are actually placed at the disposal of the Client or its agents/employees.
The ownership of to the delivered Goods and Services shall passes to the Client after full payment of the price as specified in the Specific Terms and Conditions, as the case may be increased by interest and a penalty clause as specified in Article 5.9, if the Client does not pay on time. Nevertheless the risks of loss or destruction of the sold Goods and results of the Services shall be borne in their entirety by the Client from the time of delivery (by either the Contractor or the Manufacturer).
The Client has a duty of care with regard to the Goods falling under the retention of ownership clause and shall store and retain these in perfect condition at a suitable properly maintained location in accordance with the highest standards and safety conditions usual in the industry. Moreover, the Client shall insure such Goods at the time of the actual transfer of title against all usual risks in the industry (including, but not limited to, any form of deterioration, fire, water damage and theft) and present the relevant insurance policy on first demand for examination to the Contractor.
The Client shall inform any third party that wishes to file for a precautionary or executive attachment on delivered Goods as soon as possible, and at the latest at the time of establishment of the attachment, of the existence of the retention of title clause. The Client shall notify the Contractor without delay of any intention by a third party to levy attachment.
All additional costs for removing Goods in case of non-payment by the Client shall be for the Client and shall be due and payable without further notice of default, as well as any storage costs of Goods, if the Client refuses or fails to take delivery of Goods.
Any delivery times either for Services or for Goods – if necessary per part – mentioned in the Specific Terms and Conditions or in connection with Article 6.4 do not bind the Contractor. The Contractor only enters into a best effort obligation (inspanningsverbintenis) to perform the Services and to arrange for the delivery of Goods or parts of Goods as quickly as possible (whether or not via the Manufacturer). Partial deliveries are permitted. A partial delivery of an order can under no circumstances justify a refusal to pay for delivered Goods and/or Services.
All delivery terms given by The Contractor, either for Services or for delivery of Goods are made in good faith and on the basis of the data which were known to the Contractor at time of the conclusion of the Agreement, and they shall be taken into account to the extent possible. The mere passing of a delivery term for Goods or Services cannot be considered as a breach by the Contractor. The Client and the Contractor undertake to make all reasonable commercially efforts comply with all planning as described in the Specific Terms and Conditions, taking into account that any delays shall be regarded as an amendment of the Specific Terms and Conditions and a postponement of the Planning.
If there is any risk of a term being exceeded, The Contractor and the Client shall consult each other as soon as possible.
The Contractor cannot be held responsible for any delay due to a delay in supplying the necessary information and/or hardware or software infrastructure by the Client or a third party. Consequently the Client cannot proceed to dissolve the Agreement.
If an acceptance test was agreed in the Specific Terms and Conditions, the Client is himself responsible for organising and implementing this test and this in consultation with the Contractor and in accordance with the provisions and the schedule of the Specific Terms and Conditions. If this acceptance test – which must be performed in the presence of the Contractor’s Project Leader – succeeds partly or wholly, the relevant part of the services are deemed to be accepted by the Client. In case the acceptance test is performed out of time, the services are deemed to be accepted by the Client. During the test period, the Client is not permitted to use the software for any production or operation purposes.
The Client shall appoint a contact person who is responsible for the acceptance of every part of the Services and notify him to The Contractor.
If the Parties have not agreed in a test for acceptance, the Client accepts the Goods and Services in the condition as it is at the time of delivery (‘as is’), therefore with all visible and invisible faults and defects Putting into operation of the software and/or hardware and/or services by Contractor implies the full acceptance thereof.
At the time of acceptance the assessment will be made as to whether the delivered services comply with the Specific Terms and Conditions. It is only possible to add acceptance criteria in so far as both parties agree on this in advance and in writing.
The acceptance can occur in 3 ways: unconditional acceptance, conditional acceptance or unconditional rejection. Conditional acceptance shall include a list with the Client’s comments regarding the services submitted for acceptance. After updating and resolving these issues, or after refuting the comments made, the services that have been submitted will be deemed to be accepted taking into account a 5-day assessment period. In case of an unconditional rejection it is necessary to include reasons which justify the rejection. After an update by the Contractor, which takes these issues into account, the Contractor is entitled to receive acceptance from the Client.
The parties recognise that it is essential to notify shortcomings in performances in due time in order to enable that adjustments can be made at the earliest possible stage. Late assessment and acceptance will automatically lead to extra expenses which will be treated as a request for change, without prejudice to the right of Contractor to address the Client for resultant direct and indirect damage.
Articles 6.5 to 6.10 do not apply to Consultancy time and material services, given that no acceptance applies to these.
Efficient provision of information
During the implementation the Client shall always provide the information as quickly and completely as possible in order not to disrupt the progress of the Project due to lack of information. The Client shall appoint those members of staff who can provide this information. The Client shall also appoint one person who is in a position to assess the accuracy and completeness of this information, and who, in case of debate, can determine which information is to be used as a rule.
The Contractor always assumes that information provided by employees of the Client is complete and correct. The Client is always liable for information provided by him or by third Parties.
If the Parties have agreed thereto in writing in the Specific Terms and Conditions then a Steering Group will meet periodically during the Project. This Steering Group is responsible for following up the work, keeping the Project on track, and supporting the Project team with strategic decisions.
This Steering Group will consist of at least the following core members:
- a representative of the users
- a mandated project leader for the project by the Client
- a project leader for the project by Contractor
The Steering Group may invite other persons to attend meetings at any time.
Within the framework of the Project Order the Steering Group is the only body that has the authority to approve adjustment and/or extensions of the Services and/or Products as described in the Specific Terms and Conditions. To ensure an efficient progress of the Project both parties will authorise one person who can take urgent decisions on behalf of the Client and Contractor without having to consult the Steering group in advance. These persons can also convene the Steering Group outside its normal timetable to discuss specific issues and to force possible decisions
The Steering Group shall assess and – as the case may be – approve all proposed changes and/or extensions in accordance with the change procedure described below.
The decisions of the Steering Group, signed by the authorised parties of both Parties, are considered to be addenda of the General and Specific Terms and Conditions.
Contractor shall discuss the progress of the Project at each Steering Group meeting with its members and can discuss possible problem areas, bottlenecks and potions at the meeting
The Client and The Contractor shall each appoint contact persons who are mandated to take decisions in the name of the Steering Group.
Any changes or extensions notified by the Client whether orally or in writing to the original specifications and changes to the preconditions for the order described in the Specific Terms and Conditions are covered by these provisions (a change to the preconditions is, for example, a clear change to the work circumstances of the Project team which will result in demonstrable production loss).
If the Client wishes to make changes or additions to the specifications as agreed in the Specific Terms and Conditions, this will be formalised via this change procedure. This will also be the case if the Client wishes to change the criteria, which the delivered services must comply with as stated in the Specific Terms and Conditions.
The change procedure requires that the change in specification or order must be described first and then, consequently make an assessment of the consequences with regards to the effort and the duration of the Project.
Apart from the approval of the documents in which the changed specification is described, the Client shall also approve the new budget in the form of an Addendum to the Specific Terms and Conditions.
The time required for these activities and services will be invoiced to the Client at an hourly basis according to the applicable rates of the Specific Terms and Conditions. The project manager of Contractor will determine the required time units in advance and will submit it for approval by the Client.
The mere fact that the Contractor may commence these additional activities and Services, (given by the Client either orally or in writing) shall constitute sufficient proof that the Client has ordered these and of approval by the Client to invoice these activities and Services.
A change will be implemented on the instructions of the Client.
A change proposal may include the following elements:
- a description of the change
- the proposer and the date of the request for change
- the reason of the change
- the possible estimate of the time needed to determine the impact and consequences of the changes
- the possible approval of the estimation under point 4
- a full description of the change, including the specifications and use possibilities
- if relevant, the additional or reduced price of the change
- a time schedule for the implementation and possible testing procedure for the change
- if relevant, a payment schedule
- the potential consequences for other parts of the Project
- space for signing by the Client and the Contractor
Situations and surrounding conditions which fall under the responsibility of the Client and which give rise to additional efforts will be invoiced in addition to the Client.
Compliance with planning
If the Services to be performed by The Contractor are part of a broader implementation of new IT systems, the planning will partly depend on satisfactory cooperation and provision of these other systems, whether or not supplied by third parties. The Contractor cannot be held liable for damages caused by a delay in planning which is beyond its control.
- If the work activities have to be performed at the premises of the Client, the Client shall, on condition that the Contractor’ personnel complies with the reasonable safety instructions issued by the Client, grant the Contractor’s personnel free access to the work environment.
- The Client shall provide Contractor with all cooperation, information, data and support, expertise and support via its own personnel or agents that are reasonably necessary for Contractor to comply with its obligations, including the access to a suitable computer configuration, internet, telephony, VPN, tokens etc. In the case of services provided outside the Client’s offices, the Client shall be responsible for all security measures necessary to supply the services via an internet connection.
- If special deployment of the Client’s personnel or material is required for the Project, this will be agreed in writing in the Specific Terms and Conditions. Insofar as necessary, the Client shall arrange for all necessary security measures such as, but not limited to, VPN and tokens.
- In the event that a failure to deploy personnel or material by the Client results in additional costs, including but not limited to additional time spent by Contractor personnel, the Client will be invoiced for these additional costs.
- Both Parties warrant that, if in the execution of this Agreement the deployment of the personnel of one of the parties is necessary, this personnel will have the proper skills and necessary experience for the tasks assigned to him.
- The Client is responsible for the necessary facilities for designing, testing and operational use of the information system that is to be developed. This includes hardware, system software and resources (such as PCs and printers). The foregoing will be specified in detail below.
The Project Team will, whilst working, need to have a number of PCs, which have access to computer-, printer- and data facilities. The priorities have been set in a way that the response times remain within reasonable limits.
If the Contractor considers this to be necessary, the system and associated services (system management) must also be available for the Project Team outside the normal working times.
The Project will be executed basically in the Client’s premises.
- No solicitation and no recruitment of employees:
The Client undertakes not to approach employees, self-employed workers, consultants or other staff (referred to below as ’employees’) of The Contractor or its associated companies, either directly or indirectly via third parties, who are directly or individually involved in the Project, with a view to engaging such employees, from the start of performance of work until 12 months after the Agreement ends, unless the Parties agree otherwise in writing.
In the event that the Client recruits an employee of The Contractor or makes use of the services of employees, the Client shall pay an amount equivalent to 6 months of salary or compensation for that employee, and pay this amount on the day when the employee is first engaged or use is made of his services.
The Client undertakes to impose the above obligations on third Parties with whom he cooperates or enters into contracts. The Client procures (‘sterkmaken’) that these third Parties will not approach any of the above-mentioned persons at The Contractor with a view to engaging or recruiting such persons.
- Replacement of employees with time and material services:
If both Parties consider it to be desirable or necessary, they may, by mutual agreement, either temporary or permanently, appoint another employee who will execute the Agreement.
In the event that the employee does not (longer) complies with the prescribed requirements, discredits the name of the Client or not (longer) performs the Services in accordance with this Agreement, the Client has the right to request the substitution of the employee by Contractor. This does not, however, relieve the Client from its obligation to compensate the already performed Services by the employee.
If the Contractor agrees with the substitution, the Contractor undertakes that it will seek for a substitute as soon as possible. If the Contractor could not provide such qualified substitute within two weeks, the Client has the right to terminate the Agreement in relation to the Service provided by the employee.
In the case of supply of Goods, the Client has also expressly taken cognisance of the guarantee conditions of the Manufacturer of the Goods in relation to the Goods it has ordered, which shall be exclusively applicable. The Client accepts that the Contractor cannot be bound by any guarantee obligations as regards the Goods supplied.
Unless after prior written permission of the Contractor, the Contractor is under no obligation to accept any return shipments from the Client for defects during the guarantee period. Taking delivery of return shipments in no event implies that the Contractor accepts the reasons for the return shipment as stated by the Client for defects during the guarantee period. The risk of Goods returned shall remain with the Client. Following the guarantee period, the Contractor and/or the Manufacturer can no longer be held liable for hidden defects.
If a warranty period has been agreed in the Specific Terms and Conditions for Services, the Client shall report any imperfections relating to the Services provided by the Contractor within the warranty period as quickly as possible within 7 days in writing and in detail, under penalty of forfeiture of rights, after the imperfections have been detected. If any warranty claims are made under the Specific Terms and Conditions, the Contractor, its agents or subcontractors shall have the right to test or inspect the delivered Services. The Client shall grant all necessary cooperation to allow the Contractor, its agents or subcontractors to comply with their obligations. The Contractor shall make every effort to rectify any imperfections in the Services within a reasonable time if these occur during the agreed warranty period. Rectification shall be performed free of charge unless the Services were not performed at a fixed price, in which case the Contractor shall charge the Client at its then current rates. The Contractor may charge its usual rates for the costs of rectification in case of operating errors or injudicious use on the part of the Client or other causes for which the Contractor cannot be held liable, or if the errors could have been found during the performance of the agreed acceptance test. The rectification obligation shall terminate if the Client makes or causes changes to be made without the Contractor’s written permission, which shall not be withheld on unreasonable grounds.
In no event, shall be covered: the interventions resulting from causes which have no relation with the provided services, including:
- improper or abnormal use or operation; negligence of the Client or its employees; fire; electrical problems, accidents, use in dusty atmospheres, static electricity, inadequate environment, failure of the Client to comply with the specifications of the room;
- Any repair or maintenance, alteration or modification performed by non- Contractor’s staff and/or subcontractors without the consent of the Contractor. In this event, the Client will bear all risk for any damage resulting there from;
- force majeure;
- recovery of data files;
- non-suitable infrastructure (amongst others hardware, software, …) of the Client and/or irregular operation of that infrastructure and more in general, damage cause by material and/ or software that was not supplied by Contractor;
Given the technicality of the computer programme, the Contractor cannot guarantee that the programme will operate continuously. Moreover, given the nature of all software, the Client recognises and accepts that it is impossible – given the current state of art and knowledge of it- technology – to ensure that a certain Software will be free from flaws, errors or bugs or even that it will function in all circumstances with what was agreed or foreseen
No warranty will be given for Services provided on a time and material basis or if the Parties did not agree on a warranty in the Specific Terms and Conditions. These services are provided ‘as is’.
- Maintenance and Upgrade Agreement:
If applicable, the Client can enter into a maintenance-upgrade Agreement with the Contractor and/or the Manufacturer with regard to the supplied Goods.
If the Client does not wish to enter into a maintenance agreement with regard to the Services with the Contractor, the Contractor shall – after delivery or (if applicable) after the guarantee period – charge the Client for every intervention on the basis of the then hourly rates at the time.
- Intellectual property rights and licence rights:
The Client has taken note of the licence conditions, the intellectual property conditions and restrictions thereof of the Manufacturer on the ordered Goods, which shall apply in their entirety.
The Client will be solely liable towards the Manufacturer in case of any infringements of the foregoing. The Client guarantees and indemnifies the Contractor against any claim by the Manufacturer against the Contractor for infringements of the Manufacturer’s Terms and Conditions for any reason whatever and the Client shall hold the Contractor harmless for any and all costs, damage, expenses and outlays that the Contractor may incur as a consequence thereof, including legal fees.
Unless stated otherwise in the Specific Terms and Conditions, the Contractor shall grant the Client a non-exclusive and non-transferable right of use for the results of the Services performed by the Contractor at the time that all invoices are paid in full.
If a third party makes a claim against the Client for fraudulent infringement of his intellectual property rights by the Contractor, the Contractor shall at its own expense (i) either defend the Client against such a claim and hold the Client harmless for damage and costs awarded by a court to the third party claimant, or (ii) reach an amicable agreement with the third party regarding the dispute that has arisen with the Client. The aforementioned obligation is only entered into if and insofar as:
- The Client notifies the Contractor in writing at the latest within 20 days after the Client has received the claim or that much earlier as required by law, and;
- The Contractor has exclusive control over the defence against or settlement of such claim, and;
- The Client assists the Contractor and cooperates with the Contractor at the Contractor’s request and expense in the defence or settlement of such claim.
In all other cases the following will apply. If a specific part of the Services provided by the Contractor infringes the rights of third parties or, if in the Contractor’s view, could harm the rights of third parties, the Contractor may at its own expense as it sees fit:
- Replace or modify the concerned specific part of the Services (while maintaining the majority of use possibilities or functionalities) so there is no longer any question of an infringement, or;
- Acquire the right to continue the use for the benefit of the Client, or;
- Accept return of the concerned specific Services and refund the payments which the Client made under the Agreement for this specific part of the Services after deducting a reasonable payment for the period that the Client has used the result of the Services.
The Client recognises and accepts that the summary in Article 12.4 exhaustively describes the rights of recourse of both Parties as regards infringement of intellectual property rights or damage caused thereby.
- Limitation on The Contractor’s liability:
The liability, which the Contractor may incur for the delivery of Goods and/or Services derives from a best effort obligation (inspanningsverbintenis/obligation de moyen).
The Contractor shall only be required to remunerate direct damage it causes due to its specific activities in connection with this Agreement for both the supply of Goods and Services, but up to a maximum 20 per cent of the value of the order made by the Client (excl. VAT) and this regardless of whether the claim is made on a contractual or non-contractual basis, insofar it is allowed by law. If the Agreement runs over several years, the Contractor can only be held to pay a maximum of 20% of the value of the amounts invoiced for performance of this Agreement (excl. VAT) during a period of one year prior to the day that the harmful event occurred.
Insofar as the Contractor depends on the cooperation, services and deliveries of third Parties for the execution of its obligations, it cannot be held liable for any damage arising from their mistakes, including serious or deliberate mistakes.
The Client must inform the Contractor in writing of any event which can engender the Contractor’s liability or of each loss suffered by the Client, and this as soon as possible and at the latest fifteen (15) days from the onset of such event or loss or, at least, from the moment the Client was aware or should have been aware of this event or loss. This must enable the Contractor to determine the origin and causes of the detriments within a reasonable period of time. Failure to do so entitles the Contractor to refuse any payment of damages and to reject any liability
The following are excluded from liability:
- The reimbursement by the Contractor for all indirect or consequential damage, including financial or commercial losses, loss of profit, the increase in general costs, disturbance of the planning, loss of anticipated profits, loss of capital, loss of customers, lost opportunities, loss of data, loss of benefits, damage to and loss of files, etc., that result from the execution of this agreement
- damage caused by the Client’s fault;
- compensation for any direct or indirect damage caused by the use of the supplied product itself;
- damage caused by lack of availability/interruption to internet connections and/or telephone connections and/or communication lines in general;
- compensation of damage that is wholly or partially caused by software or hardware supplied or made by third parties or any other element in the Client’s business, or which has entered the Client’s business after the Agreement was concluded;
- all claims brought by third parties against the Client;
- Civil unrest, strikes, force majeure, third party events or any other circumstances beyond The Contractor’s control.
The Client is solely responsible for setting up procedures, which allow the Client at any time to reconstruct lost or altered files, data or programmes, regardless of the cause of loss or alteration. Unless agreed otherwise between the Parties, the Client shall keep the necessary back- up copies of its computer programs, data and files on a daily basis. In the event of loss of date, the Contractor will only be held liable for the data lost between the time of the most recent daily back- up and the time that the proven defect in the delivered software was detected. The Client is obliged to take a full back up of its entire IT environment and all his data before the Contractor commences its Services and/or before each important alteration of its IT environment (such as but not limited to important software updates, implementation of new hardware…)
The Contractor is not liable for any claim concerning the infringement of intellectual property rights based on:
- the use of a modified or old version of (a part of) the developments, if the infringement could have been prevented by using the unmodified or most recent version made available by the Contractor; or
- information, designs, specifications, instructions, software, data or other materials which were not developed by the Contractor.
- Changes to the title to software of third parties that are the consequences of changes as a result of the implementation of the goods based on this agreement.
The liability restrictions in Article 13 apply to both deliveries of Goods and Services and remain in effect in case the Client informs the Contractor of the existence of a real risk of damage. The Parties acknowledge that this constitutes a reasonable allocation of the risk.
This clause will not be applicable on fraudulent actions of the Contractor but will be applicable on any possible serious misconduct of the Contractor.
- Breach of contract:
Notwithstanding its right to claim damages the Contractor has the right to terminate the Agreement by operation of law and without prior formal notice by the mere sending of a registered letter to the Client in the following cases:
- a repeated or serious breach of the contractual obligations (such as late payment) by the Client;
- In case the Client has requested a postponement of payment, is bankrupt, has suspended its payments, has an unstable credit or is manifestly insolvent;
- In case of dissolution and liquidation of the Client’s company;
- If the Client’s assets or a part of the Client’s assets are executive and/or precautionary seized at the request of a creditor, or in case of other executive or precautionary measures against the assets of the Client.
- Where there is evidence or strong suspicion of fraud by the Client;
- If the Client refuses to provide the requested information or where the Client provides incorrect and/or false information.
The termination will take immediate effect.
Each Party may terminate the Agreement if the other party, after being held liable by a register letter, after 30 days continues to be guilty against a clearly defined gross negligence concerning the obligations under this agreement.
Prolongation of the remedial period will not be unreasonably be refused if, during the above mentioned period of 30 days, the defaulting part has commenced remedies and continues these in all reasonableness and fairness.
In the event of breach of contract, the Client shall in any event be required to make immediate payment for all of the ordered Goods, any associated maintenance agreements and the Services supplied. If the dissolution occurs in implementation of this provision and not as a consequence of serious failure on the part of the Contractor, all Services provided for unfinished parts must be paid at that time applicable hourly rates of the Contractor, without prejudice to the right of the Contractor to prove actual damage by all legal means if the damage is greater.
If the Client cancels his order in whole or in part or fails to take receipt of all or part of the Services or Goods supplied or fails to accept them without good reason, the Contractor has the right to demand dissolution of or compliance with the Agreement. The damage incurred by the Contractor shall be at least 50% of the value of the order for Services or the part not complied with and shall be the entire purchase price if this concerns Goods and maintenance services, without prejudice to the Contractor’s right to prove the actual loss by all legal means if this is greater.
The Contractor’s Services are defined as successive assignments, for which reason the dissolution of the Agreement in the abovementioned instances shall have no retrospective effect.
- Force majeure:
Neither Party shall be obliged to fulfil any of its obligations if that party was prevented from doing so as a consequence of force majeure. Force majeure includes force majeure affecting suppliers of the Contractor, the improper performance of obligation of suppliers which the Client had ascribed to the Contractor, defects in object, equipment, software or materials of third parties which the Client required the Contractor to use, or circumstances that arise outside the control of one of the Parties, that could not have been foreseen and could not have been avoided.
If a situation of force majeure has lasted for more than ninety days, the Parties shall be entitled to terminate the Agreement by dissolving it in writing. In that case any implementation that has already taken place pursuant to the Agreement shall be settled proportionately without either Party being thereafter indebted to the other in any other amount.
- Confidentiality and protection of Personal Data and Privacy Legislation:
By confidential information is meant all information in any form whatsoever (oral, written, graphic, electronic etc.) exchanged between the Parties in the context of this Agreement.
The Parties and their employees shall keep secret confidential information they receive from the other Party during the execution of this Agreement. Furthermore the Parties may only use the confidential information in the context of this Agreement. The Parties shall not disclose confidential information to third Parties without the written consent of the other Party.
The obligation of confidentiality shall continue to apply for a period of 1 year after the termination of this Agreement, regardless of the cause of termination.
During the Agreement, after the termination or expiry of the Agreement or once the obligations of the Parties have been fulfilled under the Agreement, the Client shall, at the Contractor’s request, return or destroy any material on any storage medium that contains, refers to or relates to confidential information of the Contractor, as instructed by the Contractor, and shall not retain any copies thereof.
The following are not considered confidential information:
- information that is obtained in a lawful manner from a third party who is not bound by any confidentiality obligation or secrecy;
- information that a Party already knew before this was communicated to it in the context of this Agreement;
- information that a Party has itself developed without infringing any provisions of this Agreement;
- information that has entered the public domain without the intervention or fault of the receiving Party;
- Information that has to be made public by court order.
After the termination or expiry of the Agreement, the Contractor cannot be obliged to (re) deliver any (parts of the) software and/or documentation.
The Contractor may also include the Client in its client list, publish a concise description of the assignment and use the Client’s name and brand for publicity purposes and PR activities.
The Client also hereby expressly acknowledges and accepts the confidentiality clauses in the Manufacturer’s General Terms and Conditions.
Each Party shall at all times comply with its respective obligations under the Belgian Act of 8 December 1992 on the protection of privacy. The Client remains exclusively responsible for determining the purpose and the means used by The Contractor to process the personal data under the Agreement.
The Client grants permission to The Contractor to process data that it receives in the context of the execution of this Agreement. The Client guarantees that it will comply with the requirements of the Belgian Act of 8 December 1992 on the protection of privacy with regard to the processing of personal data, given that it is responsible for the processing in the meaning of Article 1.4 of the aforementioned act. The Contractor will in such instance act as the processor of personal data.
The main purpose of processing the Client’s data is to manage future and current clients of the Contractor, which includes the administration of and access to the part of the website(s) reserved for clients and offering and promoting products and services. The Client may gain access to his data or request correction thereof by sending the Contractor a registered letter, accompanied by a copy of the identity card in question. The Client may use the same means to notify the Contractor if it no longer wishes to receive promotional offers of products and services by telephone, e-mail or post, in particular indicating the means of communication in question.
- Implementation arrangements:
For the implementation of this Agreement, the Contractor will rely on a consultant to provide Services.
The Contractor shall in due time inform the Client of any planned interruptions to the implementation of the Services.
The Contractor shall perform its assignment in the context of this Agreement to the best of its abilities and shall take account of the instructions and guidelines it receives from the Client.
Relations between the Parties
The Contractor is entirely free and independent in performing the Agreement. There is no hierarchical relationship between the Contractor, the Client or the Manufacturer. Nothing in this Agreement can be construed as the setting up of a partnership, joint venture and agency agreement or otherwise between the Parties themselves or with regard to the Manufacturer. Each of the Parties is itself responsible for the payment of salaries and the associated social security contributions, insofar as employees are permanently employed.
Unless expressly stipulated otherwise in the Specific Terms and Conditions, the Contractor has the right to rely on third parties to perform its contractual obligations.
This Agreement is governed by Belgian law. The Vienna Sales Convention of 11 April 1980 and the New York Convention on the Limitation Period in the International Sale of Goods and the additional protocol, insofar as these apply, are expressly excluded.
The Parties shall always attempt to reach an amicable solution in case of any disputes concerning the implementation and/or interpretation of this Agreement. If no amicable solution can be found within a reasonable time, the Parties’ rights will be fully restored. In the latter case the Courts of Antwerp will be exclusively competent to hear the dispute.
The Client cannot file any claim with regards to the supplied services 6 months after the event that gave rise to that claim or if the Client did not notify the Contractor of this by registered mail within one month after the event occurred
All written notifications in relation to this Agreement, including changes of address, are valid if sent to the above-mentioned address or to the address stated in the Specific Terms and Conditions and shall be deemed to have been received if they are sent by registered post or courier.
If any provision (or part thereof) of this Agreement would be null and void, unenforceable or in conflict with any provision of imperative law, this shall not affect the validity and enforceability of the other provisions of this Agreement or the validity and enforceability of the part of the provision in question which is not unenforceable or not in conflict with a provision of imperative law. In such event the Parties shall negotiate in good faith in order to replace the null and void, unenforceable or contradictory provision with an enforceable and valid provision which has the same or largely the same economic effect as the null and void or unenforceable (or partly null and void or unenforceable) provision.
Forfeiture of rights, Waiver of rights
The failure by any Party to enforce any provision in this Agreement shall in no way affect the right of the Party in question to still demand full compliance by the other Party. Acquiescence in an infringement by the other Party of an obligation in no way implies waiver of the rights arising from that obligation.
Import and Export
The Client warrants that he will comply with all applicable import and export regulations. Moreover the Client shall indemnify the Contractor against any liability resulting from the infringement of the applicable import or export regulations. The Client will be deemed, to the express exclusion of The Contractor, to be the exporter or importer in the event of import or export of the Goods.
All provisions of the Agreement that are expressly designated as surviving the termination or expiry of the Agreement, as well as all provisions of the Agreement which are intended to be implemented or complied with after the termination or expiry of the Agreement, shall survive such termination or expiry of the Agreement and shall remain in full force.
The Contractor may also include the Client in its client list, publish a concise description of the assignment and use the Client’s name, brand and logo for publicity purposes and PR activities.
The signatory who, in his own name or in the capacity of mandatory, places an order for Goods, maintenance or Services, or a person who pays for either Goods, maintenance or Services in whole or in part, procures for those third parties and accepts joint and several liability with them in accordance with Articles 1120 et seq. and 1200 et seq. of the Belgian Civil Code.
The descriptive words or sentences in the heading of the various provisions and parts thereof are only included to facilitate the reading of the Agreement and the references to the provisions. They are not part of the Agreement and do not in any way define, restrict or describe the scope or content of the article or paragraph to which they relate.
Regardless of the nature and/or value of the legal act to be proven, the Contractor can at all times prove this by means of the following additional evidence: copies or reproductions in any form whatsoever (carbons, photocopies, microfilms, scans etc.), on a data carrier, by fax, telex or e-mail.
This evidence has the same evidentiary value as a private deed drawn up in accordance with the provisions of the Belgian Civil Code.