Last update 30 October 2020.
Except where otherwise expressly agreed in writing, these General Terms and Conditions of Services, as may be amended from time to time (the “GTCS”) apply to each assignment entrusted to and accepted by ZN SRL, a company incorporated and existing under the laws of Belgium, with registered offices at Chaussée de Boondael 6, 1050 Brussels (Belgium), and registered with the Crossroads bank for enterprises under company number 861.063.753 ( “ZN”). These GTCS supersede any other general terms and conditions, including those general or particular conditions that may be included in any of Customer’s commercial documents. Any request for services from ZN after the Customer was provided with our Offer and the GTCS implies the Customer’s acceptance of the terms and conditions contained therein (except where otherwise expressly agreed in writing).
The exact scope and particular conditions of the services to be provided to the Customer (the “Services”) as well as the practical aspects thereof and the related fees and expenses shall be specified in a separate document (the “Offer”).
The Offer and these GTCS together are being referred to as the “Agreement”.
3.1. ZN shall provide the Services in a competent and professional manner, in accordance with all applicable legislation, rules and regulations, to the best of its ability and in the best interest of the Customer. Within the framework of the provision of Services, ZN may call upon one or more subcontractors as it sees fit, provided that ZN remains responsible for the performance of such sub-contracted tasks vis-à-vis the Customer.
The Customer undertakes to collaborate with ZN during the entire provision of Services. In particular, the Customer will provide, without delay, any clarification, assistance, explanation and documentation necessary or useful for the fulfillment of the provision of Services and will answer, without delay, any question asked by ZN. If necessary and upon ZN’s request, the Customer will nominate a project manager who will be the exclusive party to answer ZN’s questions.
ZN has an obligation of means and not an obligation of results to perform the Services.
3.2. The estimates, plans, models and tests given to the Customer are purely indicative and are prone to revision, cancellation or increase, in particular in case of an increase in wages, social contributions, raw materials (software licenses, etc), increase in hosting space or use of bandwidth, or in the event of a modification of the initial project by the Customer. In the latter case, ZN will first provide the Customer with a complementary Offer which shall be duly approved by the Customer.
With respect to the hosting provided by ZN (if any), the Customer will be advised in writing of the price modification at least three months before the annual renewal of the hosting, in accordance with Arrticle 5.2. hereafter. The Customer will then have one month to terminate the hosting if it so wishes by sending a written termination notice to ZN. If the Customer does not react within this time, it shall be deemed to have accepted the new conditions.
ZN’s commitment will only take effect on the date of receipt of the Offer, duly signed by the Customer or its representative, except if an installment must be paid, in particular in accordance with Article 7. hereafter. In this event, the implementation phase will start from the date on which the installment is cashed in, provided that all materials/information/texts are in ZN’s possession by such time at the latest, failing which, the implementation phase will start from the date of reception of the aforesaid materials/information/texts.
The implementation timetable is always expressed in working days and are given to the Customer as an indication, except as otherwise stipulated in the Offer and/or specifications. Any delay, whatever its cause, shall not constitute a valid reason for cancelling or modifying the initial order, nor give rise to damages.
3.3. The Services provided will be deemed to have been definitely approved by the Customer as of the end of the provision of Services, as indicated in the Offer and/or specifications. In order to be valid, any complaint must be lodged in writing to ZN’s registered offices within five (5) calendar days following the end of the provision of Services.
4.1. Unless otherwise expressly agreed in writing, ZN and its licensors remain the owner of know-how as well as any and all other elements protected by intellectual and/or industrial property right developed or used during the course of the provision of Services. ZN will therefore be entitled to freely reuse the software and/or informational elements realized for the Customer in other projects (diagrams, method, strategic plan and marketing, etc.), without prejudice to ZN’s confidentiality obligations under Article 6. Unless otherwise expressly agreed in writing, the Customer benefits of a limited, non-exclusive and royalty-free (subject to payment of the applicable fees and costs) license to use the deliverables under the Services, personally and for its own benefit, for the duration specified in the Offer.
In the event that the Customer wishes to obtain additional licenses and/or the transfer of ownership of intellectual and/or industrial property rights with respect to specific elements used or developed by ZN and/or a subcontractor, the Customer shall make a prior request in writing to ZN. The texts, images and in general any material given by the Customer are either considered free of copyright and other intellectual and/or industrial property right, or belonging to the Customer who consequently expressly authorizes ZN to adapt this material to the needs of the provision of Services. Consequently, the Customer guarantees that it holds all the rights and/or authorizations necessary, and that it will clear ZN of all possible claims from a third party alleging an intellectual and/or industrial right on any of the elements, in particular of all texts, images, logos, graphs, pictures, audio or video films, files, software, databases that the Customer entrusts ZN to use within the framework of the provision of Services.
4.2. ZN will be entitled to request that its name appear, in an appropriate manner, as the producer of the project either by means of a hypertext link to its home page, or by reproducing ZN’s brand name on any other suitable medium after validation by ZN. In the event that the provision of Services is intended for a third party other than the Customer, the latter guarantees that the third party will strictly respect this provision.
The Customer and/or the third party will ensure that the brand name and/or hyperlink remain at the appropriate place, and are not covered up by other texts or elements.
For publicity and information purposes, ZN will also be allowed to quote the name of the Customer and/or third party in the list of Customers and/or third parties having retained ZN and the verbal and/or figurative brand name/trademark of the Customer and/or third party.
5.1. ZN only guarantees that it will employ all reasonable means at its disposal to ensure that the Web site or the application (if any) is hosted in a professional and effective manner, according to the industry’s generally recognized standards and, where applicable, in accordance with the Offer and/or specifications. Specific Service Level Agreements (SLAs) may be agreed upon as specified Offer and/or specifications.
ZN’s guarantee is strictly limited to returning the system on-line should it suddenly become unavailable, in the state it was in at the time of the last backup.
The Customer accepts that ZN does not offer any guarantee, expressly or implicitly, with respect to:
– the Web server, the Web site, their functioning, their hardware and software components, as well as their access via Internet;
– the repercussions, financial or otherwise, real or expected, positive or not, resulting or capable of resulting from the use and the posting of the Web site or a in a more general way, the application hosted on the ZN servers.
5.2. Hosting becomes effective from the date specified on the Offer for a one-year period starting from the date at which the necessary space for hosting is made available. The hosting will be tacitly renewed every year and can be cancelled by ZN or the Customer by giving notice to the registered offices of the other party at least 3 months before the expiry of the then current period, by way of certified mail.
Except in the event of fraud or gross negligence on its part, ZN shall not be held liable towards the Customer for any fault or damage, direct or indirect, which could be caused by the hosting, and the Customer clears and frees ZN of all claims, including principal claims, interests and costs, including without limitation in any of the following cases:
6.1. Each party retains ownership of the data that it communicates to the other party. Consequently, the Customer will undertake to preserve and regularly update a backup copy of the data communicated to ZN within the framework of the provision of Services or hosting.
The Customer will be solely responsible towards third parties for ensuring the strict respect of legal obligations related, for example, to protecting privacy or sending non-solicited advertising e-mails or, in a more general way, to all legal provisions which could affect the provision of Services.
The parties undertake to ensure the confidentiality of all data to which they have or will have access to within the framework of the provision of Services. Moreover, the parties undertake to ensure the respect of this obligation, in particular by transmitting all useful instructions and, if necessary, by having their personnel and/or subcontractors sign a confidentiality agreement.
The present obligation of confidentiality remains valid during a one-year period after the end of the provision of Services. However, third parties can be made aware of the existence and methods of the provision of Services in the interest of each party, including for promotional ends, without having to divulge its contents.
6.2. Processing of personal data of the Customer’s representatives, agents and/or employees by ZN: Personal data of the Customer’s representatives, agents and/or employees (“Data Subjects”) are processed by ZN as controller for the purposes of performing the Agreement, managing the Customer’s relationship and answering to the Customer’s requests. The legal basis of this processing is the necessity for the purposes of the legitimate interests pursued by the Provider, i.e. to perform the Agreement and its obligations vis-à-vis the Customer.
The following categories of personal data relating to the Data Subjects may be processed: name, surname, position with the company, professional email address, professional phone number and address and requests. ZN will not transfer any personal data to third parties, except to its subcontractors on a need-to-know basis. Data Subjects are entitled to access personal data related to them and request their modification or suppression if they are incorrect or unnecessary. To exercise these rights, Data Subjects should send an email to ZN at email@example.com together with the necessary information to enable the Data Subject identification.
The Customer undertakes to provide a copy of the content of this Article 6.2., as well as ZN’s full denomination and address, to Data Subjects for their information.
6.3. Processing of personal data by ZN on behalf of the Customer: In the performance of the Agreement, ZN may process personal data on behalf of the Customer. In such case, ZN acts as processor on behalf of the Customer (acting as controller, except where the Customer itself acts as processor) and EXHIBIT A – DATA PROCESSING will apply. The Customer warrants that the personal data were collected in compliance with the applicable Data Protection Law (as defined in EXHIBIT A – DATA PROCESSING) and that it is entitled under the Data Protection Law to permit ZN to process the personal data. This includes, without limitation, the Customer’s compliance with its obligations to process personal data on the basis of a valid legal ground and to provide the mandatory information under Data Protection Law to the data subjects. The Customer further guarantees ZN against any claim or complaint made by a data subject in relation to the Services and the processing of personal data.
For invoices of an amount above or equivalent to 10.000 Euros, an installment invoice equivalent to 50 % will be addressed to the Customer.
ZN’s invoices are payable within 30 days of receipt. In the event of non-payment within the timeframe stipulated, a late payment fee of 10% per month of delay of the total amount, or the equivalent to the interest rate applied by the European Central Bank, will be automatically applied without formal notification pursuant to the conditions defined by the law and an additional 100.00€ will be invoiced for administrative costs.
If, at the Customer’s request, ZN’s invoices are addressed to a third party, the Customer will be jointly and severally liable for the payment of principal, interests and costs.
If the Customer wishes to cancel the order before the start of the provision of Services, it must imperatively inform ZN in writing in the briefest delay. A fixed compensation equivalent to 10% of the value of the cancelled Services with a minimum of 250.00 euros will be due in addition to the cost of the hours already worked for the Customer on the basis of time-sheets presented by ZN.
Each party hereby agrees that it shall not for the duration of the Agreement and for a period of twelve (12) months immediately following the termination of the Agreement, whether on its own behalf or in conjunction with or on behalf of any other person, company, entity or other organisation (whether as an employee, director, principal, agent, consultant or in any other capacity) directly or indirectly (i) induce, (ii) solicit, (iii) entice or (iv) cause any person who is an employee, consultant or director of the other party to leave the latter if such person is an employee, consultant or director on the date of termination of the Agreement.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED ELSEWHERE IN THE AGREEMENT, but without prejudice to applicable law, the parties agree that ZN’s maximum aggregate liability to the Customer under the Agreement for any loss or damages whatsoever caused by ZN shall be limited to the amount of fees actually paid by the Customer to ZN under the Agreement for the relevant Services in the twelve (12) months-period immediately preceding the event giving rise to liability. The above limitations and exclusions of liability do not apply in case of fraud or gross negligence.
Under no circumstance shall ZN be held liable for indirect damages suffered by the Customer or a third party in connection with the Services provided under the Agreement, in particular in the event of operating loss, loss of profit, loss of contract, loss of data or any other damage of this type, caused by the faulty operation/hosting of the application, nor of any other damage whatsoever caused by an element of content.
ZN shall not be held liable for the consequences and damages, whatever they may be, which can result from the fact that the safety, confidentiality or the entirety of the data, transactions or payments were compromised following a violation, by any third party, of the security system (except a member of ZN’s personnel). In this case, the Customer remains solely liable with respect to third parties and ensures the coverage of his/her liability and of the risks related to the use and access to the application by an appropriate insurance policy.
For the avoidance of doubts, the existence of more than one claim will not enlarge or extend the limits set forth in this Article 9.
The above limitations and exclusions of liability do not apply in case of fraud or gross negligence.
Without prejudice to applicable law, claims for damages shall expire after a period of three (3) months from the day on which the Customer became aware of the damages.
If any provision in the Agreement is held to be illegal, invalid or unenforceable, in whole or in part, under any applicable law, that provision shall be deemed not to form part of the Agreement, and the legality, validity or enforceability of the remainder of the Agreement shall not be affected. Each party shall use its best efforts to immediately negotiate in good faith a valid replacement provision with an equal or similar economic effect.
No party shall be liable to the other party if the provision of Services is delayed or prevented due to a case of force majeure, a fortuitous event or an external cause such as, in particular: natural disasters, strikes, social conflicts, state of war, pandemic, etc.
No failure or delay of a party to exercise any right or remedy under the Agreement shall be considered a final waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise thereof. Any waiver of a right must be express and in writing..
Any communication between the parties can be made through electronic means and the parties agree to consider between them that electronic mails and files, if stored on a solid and inalterable support, are valid, save proof to the contrary.
Without prejudice to specific provisions to the contrary in the Agreement and any other rights or remedies available under the applicable law or the Agreement, either party has the right to terminate the Agreement at any time by written notice and without further formality upon a breach by the other party in the performance of the provisions of the Agreement, provided such breach is not cured within thirty (30) days following receipt by the defaulting party of a written notice from the non-defaulting party to remedy such breach.
Without prejudice to any other rights or remedies available under the applicable law or the Agreement, either Party has the right to terminate the Agreement, effective immediately, at any time and without providing notice or compensation in lieu thereof in the event the other party:
The Customer shall pay for any Services actually delivered to the date of the termination.
Parties agree that the following Articles of the GTCS shall survive the termination or expiration of the Agreement until they are satisfied or by their nature expire: 4, 6.1, 8, 9 and 16.
The Agreement contains the entire agreement and understanding between the parties with respect to the subject matter thereof and supersedes and replaces all prior agreements or understandings, written or oral, with respect to the same subject matter still in force between the parties. Any amendment to the Agreement, as well as any additions or omissions, can only be agreed in writing with the mutual consent of the parties.
The Agreement shall be governed by and construed in accordance with the laws of Belgium, and no effect shall be given to any other choice of law or any conflict-of-laws rules or provisions (Belgian, foreign or international) that could cause the laws of any jurisdiction other than Belgium to be applicable.
The Customer agrees that any dispute concerning the validity, interpretation, performance or termination of the Agreement and/or the Services shall be submitted to the exclusive jurisdiction of the competent French speaking courts of Brussels, Belgium.