Terms & Conditions
Article 1. Definitions
The following terms beginning with a capital letter shall have the meaning set out in this article 1, unless the context hereof clearly requires otherwise:
'Consultancy Pack’ means consultancy for a certain specific project or time allocation purchased in advance and to be performed on demand.
‘Consultant’ means the employee appointed to perform the Services;
‘DIASBYTES’ means the company BV DIASBYTES, with its registered office at 9772 KRUISEM, Kleinestraat 1 bus L000, company number: 0698.884.604.
‘Services’ means the services to be provided by DIASBYTES.
The ‘Customer’ means the (legal) person who enters into the agreement with DIASBYTES. In case of multiple (legal) persons, each will be jointly and severally liable to fulfil the contractual obligations.
The ‘Agreement’ means the contract terms as set out in the offer or tender and in these general terms and conditions.
'Force Majeure' means the event or circumstance beyond a Party's control, which has occurred without fault or negligence of the Party and which the Party could not reasonably have prevented, which results in the affected Party being temporarily or permanently prevented from performing the Agreement, in whole or in part.
DIASYBTES and the Customer are hereinafter referred to together as the "Parties" or each separately as the "Party".
Applicable Data Protection Legislation': (a) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (‘GDPR’), (b) the Belgian law of 30 July 2018 on the protection of natural persons with regard to the processing of personal data, (c) all other applicable data protection and privacy laws and regulations applicable to the processing of personal data under the Agreement and (d) any amendments to or replacement of the previous legislation, if applicable.
Article 2. Services
2.1. All obligations of DIASBYTES under the Agreement are to be considered best-efforts obligations.
2.2. At DIASBYTES' request, the Customer shall provide the necessary information, cooperation, facilities or infrastructure in a timely manner. If the Services are to be delivered at the Customer's location and DIASBYTES is unable to commence its work due to non-compliance with this obligation by the Customer, DIASBYTES shall be entitled to charge its lost time to the Customer at the hourly rate for work on a time-and-expense basis applicable at that time, which shall be invoiced in accordance with article 6.2.
2.3. DIASBYTES will inform the Customer in advance of any replacement or possible delay in the provision of Services (e.g. holiday, illness).
2.4. The Services and, where applicable, goods (tangible / intangible) are delivered “AS IS” (in the condition in which they are at the time of delivery).
2.4.1. Complaints relating to the Services or goods provided must, under penalty of forfeiture of rights, be submitted to DIASBYTES in writing, stating reasons, within eight days of delivery and/or installation. The eight-day period is an expiry period.
2.4.2. Complaints relating to hidden defects must, under penalty of forfeiture of rights, be submitted to DIASBYTES in writing, stating reasons, within eight days of the discovery of the defect. The eight-day period is an expiry period.
2.4.3. If a complaint is justified, DIASBYTES shall always have the right to choose between replacement, repair or return of the defective goods in exchange for a refund of the price (if justified complaint about defective goods) or between additional services or refund of the part of the price relating to the defective services (if justified complaint about services).
Article 3. Delivery
3.1. All delivery times communicated by DIASBYTES at the time of the conclusion or execution of the Agreement are purely indicative. DIASBYTES will do its utmost to deliver the goods and/or Services within the planned delivery times, but a delay in delivery can never constitute grounds for any claim by the Customer against DIASBYTES.
3.2. If the Customer has purchased a Consultancy Pack, the Customer has a period of two (2) years following the conclusion of the Agreement to demand performance of the Services from DIASBYTES (expiry period). If DIASBYTES does not receive a request from the Customer within the aforementioned period of two years, the Customer's right shall expire, in which case DIASBYTES shall neither be obliged to provide the Services nor to refund the amounts paid and without prejudice to DIASBYTES' right to collect any unpaid balance relating to the Consultancy Pack.
Article 4. Relationship between partners
4.1. DIASBYTES shall perform its obligations in complete independence and shall choose the manner and means by which it will deliver the Services. There is no hierarchical relationship between DIASBYTES and the Customer or the Customer and the Consultant. DIASBYTES does not transfer any employer authority to the Customer.
4.2. If an instruction is unclear, the Parties will settle a meeting at the first request of a Party to clarify the instruction.
Article 5. Remunerations
5.1. All agreed fees in return for the Services are, unless expressly stated otherwise, exclusive of VAT and exclusive of all other costs and expenses that DIASBYTES may incur, such as travel time and expenses.
5.2. If the Agreement foresees work on a time-and-expense basis, DIASBYTES is entitled to index its rates annually on the anniversary of the conclusion of the Agreement. DIASBYTES will apply the following formula in this regard: V1 = (V0 * S1) / S0.
V1 stands for the 'new price', V0 for the ‘initial price at the conclusion of the Agreement', S1 for 'the new consumer price index in Belgium applicable for the month preceding the adjustment' and S0 for 'the consumer price index in Belgium of the month preceding the date of the conclusion of the Agreement'.
5.3. If the Customer would terminate the Agreement prematurely without legitimate reason or if DIASBYTES terminates the Agreement for legitimate reason, DIASBYTES shall be entitled to collect all amounts that the Customer would have owed to DIASBYTES if the Agreement had continued until the lawful end date of the Agreement. This debt will be immediately due and payable and is without prejudice to DIASBYTES's right to claim compensation for additional damages it would have suffered.
Article 6. Invoicing and payment
6.1. If the Agreement foresees the payment of one or more fixed prices for DIASBYTES' Services, the fixed prices, unless expressly stated otherwise, are always payable in advance. DIASBYTES will send its invoice to the Customer after the conclusion of the Agreement. DIASBYTES shall not commence delivery of the Services until the Customer has fulfilled its payment obligations in full.
6.2. If the Agreement foresees Services on a time-and-expense basis, the Services rendered will be invoiced monthly.
6.3. DIASBYTES's invoices are payable within thirty (30) days from invoice date, unless expressly stated otherwise.
6.4. If the Customer believes it has found an error in the invoice, the Customer must notify DIASBYTES before the due date of the invoice and indicate its reason for contestation. The Parties will engage in good faith negotiations to resolve the dispute.
6.5. If an invoice is not fully paid on the due date, unsettled invoices shall be subject, judicially and without prior notice of default, to late payment interest at the interest rate determined in application of Article 5 of the Belgian Law of 2 August 2002 on combating late payment in commercial transactions. In case of non or incomplete payment of an invoice on the due date, the invoice shall furthermore, automatically and without prior notice of default, be increased by a fixed compensation amounting to 10% of the outstanding balance with a minimum of 75 EUR, by way of compensation for additional administrative costs, collection costs and debtor management.
6.6. In case of non or incomplete payment of an invoice on the due date, all invoices of DIASBYTES shall become immediately due and payable in full and DIASBYTES shall be entitled, without being liable for any damages, to suspend its Services until receipt of full payment of all outstanding invoicing (including any accessoria due under clause 6.5).
Article 7. Intellectual property rights
7.1. DIASBYTES retains all intellectual property rights (including, but not limited to patents, trademarks, copyrights, trade secrets and know-how) developed or acquired by itself prior to entering into this Agreement or created or acquired outside this Agreement.
7.2. If intellectual property rights are created during the performance of the Services, in whatever form, these rights will belong integrally and exclusively to DIASBYTES. DIASBYTES is entitled to use these intellectual property rights in other contractual relations.
7.3. The Parties acknowledge that the protection of DIASBYTES' intellectual property rights is an essential part of the Agreement. In case of violation of this Article 7, DIASBYTES is, automatically and without prior notice of default, entitled to claim a damage compensation from the Customer which is fixed at a lump-sum of 25.000 EUR per infringement, without prejudice to DIASBYTES' right to claim higher damages if the actual damages turn out to be higher and without prejudice to any other remedies available to DIASBYTES.
Article 8. Confidentiality
8.1. The Customer shall keep confidential all information it receives regarding DIASBYTES, its technical and operational structure, its products and services, its financial information, its personal data, its intellectual property and the results of the Services.
8.2. All information exchanged may only be used by the Customer for the performance of the Agreement and may only be shared with employees within the organisation who have a need to know such information. The Customer shall not have the right to disclose confidential information to any third party without the prior written consent of DIASBYTES. The Customer shall take all reasonable measures to protect DIASBYTES's confidential information, provided, however, that such measures shall be no less stringent than measures taken to protect its own confidential and proprietary information.
8.3. The following types of information do not constitute confidential information:
(i) information that was lawfully obtained or that is part of the public domain at the time of disclosure to the other Party;
(ii) information that has become part of the public domain after disclosure to the other Party in a lawful manner and without any breach of contract or infringement of the rights of third parties or of the other Party;
(iii) information that is independently developed without violating the Agreement, provided that this is proven in an unambiguous manner by the Party invoking this exception;
(iv) information that is lawfully obtained from a third party that is not itself bound by any confidentiality obligation.
8.4. If a Party is required by law or order of a regulatory, administrative, judicial or otherwise authorised authority to disclose confidential information, such Party shall notify the other Party of such request, unless not permitted, in order to allow the latter Party to take all measures necessary to prevent or limit disclosure. If the Party required to make such disclosure does not have the right to inform the other Party, the disclosure of confidential information will be limited to what is strictly necessary to comply with the relevant law or (court) order and will inform the other Party that it has made a disclosure as soon as it is permitted to do so. The Party making the disclosure will notify the confidential nature of the confidential information to the public authorities.
8.5. In case of violation of this article 8, DIASBYTES is, automatically and without prior notice of default, entitled to claim a damage compensation from the Customer which is fixed at a lump-sum of 25.000 EUR per infringement, without prejudice to DIASBYTES' right to claim higher damages if the actual damages turn out to be higher and without prejudice to any other remedies available to DIASBYTES.
8.6. The Customer's obligation of confidentiality remains in full force after the end of the Agreement until the latest of the following moments:
(a) the moment at which all confidential information is, in a lawful manner, part of the public domain;
(b) 30 years after the conclusion of this Agreement.
Article 9. Data protection
Each Party must at all times comply with its respective obligations under Applicable Data Protection Legislation in respect of any personal data processed under the Agreement. To the extent that DIASBYTES would process personal data on behalf of the Customer in capacity of processor, the Customer, in its capacity as controller, shall remain responsible for determining the purposes and means of processing and DIASBYTES shall comply with all reasonable instructions given by the Customer in this respect. The Parties shall, at the Customer's or DIASBYTES's first request, enter into a data processing agreement.
Article 10. Termination
10.1. DIASBYTES is entitled to terminate the Agreement with immediate effect by registered letter without being liable for any damages, in case of:
· default of payment by the Customer, provided that the Customer, after notice of default by DIASBYTES, fails to make full payment of the debt (including any accessoria due under clause 6.5) within a period of fourteen (14) days.
· breach of article 7 (intellectual property rights) or article 8 (confidentiality) of the Agreement.
· any other breach of the Agreement by the Customer, provided that such breach is not remedied within a period of thirty (30) calendar days after notice of default.
The Customer is and remains liable to DIASBYTES for any damage or loss resulting from its breach of contract.
10.2. DIASBYTES is entitled to terminate the Agreement with immediate effect without being liable for any damages by the mere sending of a written notice of termination:
· if the Customer is declared bankrupt, files for bankruptcy or has a claim for bankruptcy filed against it or if the Customer is manifestly insolvent;
· in the event of the dissolution and/or liquidation of the Customer's corporation;
· in case of executive or conservatory seizure of part or all of the Customer's assets or if other executive or protective measures have been taken.
· In the event of judicial reorganisation of the Customer, DIASBYTES retains the right to terminate the Agreement pursuant to article XX.56 of the (Belgian) Code of Economic Law if the Customer fails to pay its invoices within 15 days of being notified in writing to do so.
Article 11. Consequences of termination
11.1. As soon as the Agreement is terminated, for whatever reason, the Customer will stop using DIASBYTES's confidential information and intellectual property rights.
11.2. The Customer must further fulfil all payment obligations towards DIASBYTES.
Article 12. Liability
12.1. DIASBYTES shall only be liable for its wilful misconduct, its gross negligence or that of its agents or, except in cases of Force Majeure, for the non-performance of the essential obligations that that are the subject-matter of the Agreement.
12.2. In the event DIASBYTES is held liable, DIASBYTES shall in all cases initially be granted the right to proceed to a repair or remediation. If repair or remediation turns out not to be possible, DIASBYTES's liability shall always be limited to compensation of direct damage of the Customer up to a maximum of the invoice value of the defective goods and services delivered to the Customer, i.e. that part of the invoice to which the liability relates.
12.3. DIASBYTES is not liable for indirect damages, including (non-exhaustive) consequential damages, lost profits, missed savings or damages to third parties.
12.4. If DIASBYTES depends on the cooperation, services and / or supplies of third parties in the performance of its obligations, DIASBYTES cannot be held liable for any damage resulting from the fault of the third party, including their gross or intentional fault.
12.5. For damages attributable to both DIASBYTES and the Customer or a third party, DIASBYTES shall only be liable to the Customer for compensation of that part of the damage caused by the fault of DIASBYTES and this within the contours of this Agreement, excluding any liability in solidum with the other debtors.
12.6. This article applies without prejudice to the other provisions, conditions and limitations set out in the Agreement.
Article 13. Force majeure
13.1. DIASBYTES cannot be held to fulfil its obligations under the Agreement if this is prevented by Force Majeure.
13.2. The Parties agree that at least (non-exhaustively) the following situations shall constitute Force Majeure:
- Natural disasters (such as flood, storm, hurricane, lightning, etc.);
- Armed conflicts (such as war, revolution, insurrection, military operation, occupation, ...);
- Social unrest (such as strike, demonstration, lockout, trade conflict, ...);
- Crimes (such as theft, terrorism, ...);
- Disease, epidemic or pandemic;
- Power and telecommunications interruption;
- Economic factors (such as delivery delays, shortage of (trained) human resources at DIASBYTES, raw materials, ...)
- Accidents (such as fire, explosion, ...)
- Government intervention
13.3. When an event of Force Majeure occurs, the affected Party shall immediately notify the other Party in writing. The performance of the obligations affected by a Force Majeure Event shall be suspended for the period during which the Force Majeure event continues.
13.4. Upon termination of the Force Majeure, the affected Party shall immediately notify the other Party, whereafter DIASBYTES shall resume performance of the Services within a reasonable period of time.
13.5. If the Force Majeure event continues for a period exceeding sixty (60) calendar days, each Party shall be entitled to terminate the Agreement free of charge, without prejudice to DIASBYTES' right to claim payment for Services already provided. However, the right to terminate the Agreement free of charge shall expire as soon as the Force Majeure event has ended and DIASBYTES has resumed its Services.
Article 14. Non-solicitation
14.1. Without the express consent of DIASBYTES, the Customer is not entitled to employ, contract or otherwise cooperate with DIASBYTES's employees during the term of the Agreement and until twenty-four (24) months after the end of the Agreement (early termination of the Agreement or after full performance of the Services).
14.2. If, in breach of the above, the Customer employs, contracts with or otherwise cooperates with any such employee, the Customer shall pay to DIASBYTES an amount equal to three times the gross annual salary of the concerned employee at DIASBYTES. This amount shall be due and payable on the date the person is employed or hired or otherwise cooperates with the Customer.
Article 15. Applicable law and jurisdiction
15.1. The Agreement shall be interpreted in accordance with and governed exclusively by the laws of Belgium, without giving effect to any other choice of law or conflict-of-laws rules or provisions (Belgian, foreign or international) that would cause the laws of any jurisdiction other than Belgium to be applicable.
15.2. All disputes arising out of or relating to this Agreement shall be exclusively and finally settled by the Courts territorially competent for the place where DIASBYTES has its registered office.
Article 16. Miscellaneous provisions
16.1 The Agreement constitutes the entire agreement between the Parties and supersedes all previous understandings, agreements and proposals of the Parties, whether oral or written, relating to the subject matter of the Agreement.
16.2. The Customer may not assign or transfer the Agreement to a third party without the prior written consent of DIASBYTES.
16.3 If any of the articles or clauses of this Agreement are found to be invalid or void, this shall not affect the validity of the other articles or clauses of the Agreement and the existence and validity of the Agreement. If any of the articles and/or clauses are found to be invalid or void, it shall be up to the Parties and, where appropriate, the Court to reduce the invalid or void clause to what is legally permissible, in order to allow the widest possible application of the relevant clause and to embody as closely as possible the initial purpose of the Parties.
16.4. The provisions expressly designated to survive the termination, expiry or cancellation of the Agreement or which by their nature should reasonably survive the termination, expiry or cancellation of this Agreement will retain their full effect.
16.5. Amendments to the Agreement shall only be valid if agreed in writing and signed by authorised representatives of both Parties.
16.6. DIASBYTES's failure or omission to enforce any rights or impose any sanctions under this Agreement shall not be deemed a waiver of DIASBYTES's rights. A waiver shall be valid only if expressly made in writing by DIASBYTES. Such a waiver shall never be construed as a waiver of any other right or claim under the Agreement.
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