1.1 "Specific Conditions": For each Project and/or Assignment requiring the Services of the Service Provider, the Parties shall enter into a Services Framework Agreement (statement of work (SOW), purchase order, execution agreement, etc.), which shall describe the specific conditions governing the execution of the relevant Assignment and/or Project.
1.2 "Service Provider": Amplifino BV, with registered office at Bloemgatstraat 5, 8850 Ardooie, Belgium, and registered under company number 0545.951.335.
1.3 "Client": The contracting party purchasing the Services from the Service Provider, as identified in the relevant Services Framework Agreement.
1.4 "Services": The services to be provided by the Service Provider to the Client, as described in the Services Framework Agreement. The Services shall at all times be governed by the relevant Services Framework Agreement, these General Terms and Conditions and any other contractual document, such as, for example, a data processing agreement (DPA).
1.5 "Third-Party Suppliers": Third parties, more specifically manufacturers and/or suppliers of hardware and/or software referred to in the Specific Conditions, including any maintenance services provided by such third-party suppliers in respect of software and/or hardware.
1.6 "Intellectual Property Rights": All intellectual, industrial and other proprietary rights (whether or not registered and including applications for registration thereof) and all rights in and to such intellectual property, including but not limited to designs, trademarks, drawings, sketches and (utility) models, patents, copyrights, neighbouring rights, logos, domain names, database rights, rights in computer programs, software rights, algorithms, modules and code (including source code), rights in web pages and websites, as well as trade secrets, trade names and all related rights in the broadest sense of the term.
1.7 "Notice": Any written notice, which shall be deemed to take effect as from the date of the postmark of the registered letter or as from the first business day following dispatch by email.
1.8 "Personnel": Employees, self-employed collaborators, subcontractors, consultants of either of the Parties and/or of their Affiliated Companies.
1.9 "Agreement": These General Terms and Conditions and the Specific Conditions set out in the Services Framework Agreement, including all appendices forming an integral part thereof.
1.10 "Force Majeure": Any event whereby the performance of the Agreement by one of the Parties is rendered wholly or partially, temporarily or permanently, impossible due to circumstances beyond the reasonable control of the Parties. Force Majeure shall include, without limitation: fire, strikes, war, terrorism, adverse weather conditions, immediate termination of cooperation with or force majeure affecting the Service Provider's suppliers, defects in goods, equipment, software or materials of third parties whose use was imposed by one Party on the other, government measures, disruption of internet, data network or telecommunication facilities, unavailability of third-party servers, unavailability of Personnel not attributable to the Parties and/or their equipment, general transport disruptions and power failures.
1.11 "Third-Party Products": Hardware and/or software supplied by Third-Party Suppliers as referred to in the Specific Conditions, as well as any related (maintenance) services and/or any open-source components, in respect of which the Service Provider acts solely as a reseller.
1.12 "Project" or "Assignment": The entirety of the reciprocal Services and cooperation between the Parties as described in the Services Framework Agreement.
1.13 "Services Framework Agreement": The agreement, of which these General Terms and Conditions form an integral part, setting out the specific conditions applicable to the requested services, projects, etc., between the Parties.
1.14 "Contractor": The member(s) of Personnel engaged by the Service Provider for the performance of the Agreement.
1.15 "Affiliated Companies": Affiliated and associated companies within the meaning of Articles 1:20 and 1:21 of the Belgian Code of Companies and Associations.
1.16 "Confidential Information": All non-public information (commercial, financial, technical or otherwise), in any form whatsoever, exchanged between the Parties (including their Affiliated Companies) in the context of the Agreement, which is marked or designated as confidential or which may reasonably be expected to be of a confidential nature.
2.1 For each Project and/or Assignment requiring the involvement of the Service Provider, the Parties shall enter into a Services Framework Agreement. These General Terms and Conditions shall be deemed to form an integral part of each Services Framework Agreement, unless expressly and specifically agreed otherwise in writing between the Parties.
2.2 Upon acceptance of the terms set out herein, the Service Provider undertakes to perform, on behalf of the Client, information-processing projects and/or assignments forming the subject matter of duly executed Services Framework Agreements.
3.1 The Services Framework Agreement shall be entered into for a fixed term or for an indefinite term. The duration and the notice period shall, for each project and/or assignment, be stipulated in the applicable Specific Conditions. Each Party shall be entitled, at any time, to terminate the Services Framework Agreement subject to compliance with the notice period as set out in the relevant Services Framework Agreement.
3.2 The Services Framework Agreement shall terminate automatically, without prior notice of default, without judicial intervention and with immediate effect, by means of Notice and without prejudice to any other rights or remedies of the terminating Party under the Agreement, in respect of the Party that:
3.2.1 commits a serious and irremediable breach;
3.2.2 is no longer able to meet its payment obligations, or whose creditworthiness is jeopardised or who is manifestly insolvent;
3.2.3 is declared bankrupt;
3.2.4 becomes subject to any procedure relating to its liquidation, dissolution or insolvency;
3.2.5 becomes subject to the appointment of an administrator, receiver, trustee or similar officer, or is subject to any enforcement or conservatory attachment at the request of a creditor over all or part of its assets, or to any other enforcement or conservatory measures in respect of its assets;
3.2.6 becomes subject to criminal proceedings for fraud, or where there is evidence or serious suspicion that the relevant Party is committing fraud; or
3.2.7 refuses to provide the information necessary for the performance of the Agreement, or where such Party has intentionally provided incorrect and/or false information in this respect.
3.3 In addition, the Parties may terminate the Services Framework Agreement by means of Notice if the other Party commits a breach of any contractual obligation and fails to remedy such breach within a period of thirty (30) calendar days after having been served with a formal notice of default by registered letter by the Party invoking the breach. An extension of the aforementioned period shall not be unreasonably withheld where the defaulting Party has commenced remedial action within the thirty (30) calendar-day period and continues such remedial action in a reasonable and diligent manner.
4.1 Unless the Client terminates the Services Framework Agreement due to a proven gross fault or material breach on the part of the Service Provider, the Client shall compensate the Service Provider for all ordered Third-Party Products and for all working hours effectively performed up to the date of termination, which shall be charged at the Service Provider's applicable hourly rates, without prejudice to the Service Provider's right to prove and recover higher actual damages by any lawful means.
4.2 Where the Client terminates or cancels the cooperation prior to the expiry of the first half of the agreed term, or where the Client postpones the scheduled commencement date of the Services, the Parties shall furthermore agree on reasonable compensation to cover, inter alia, the resources that had been allocated by the Service Provider.
5.1 Each Party shall respect all Intellectual Property Rights of the other Party and of any third party (including Third-Party Suppliers).
5.2 Unless otherwise provided in the Services Framework Agreement, the Service Provider shall assign to the Client, in a full, definitive and exclusive manner, all Intellectual Property Rights in and to all works created or to be created in the context of the Agreement, as from the moment of full payment of all invoices, as well as of any other amounts due by the Client as a result of a failure to comply with its payment obligations. Such assignment shall be made in the most extensive manner possible, for all forms of exploitation, for the entire duration of the relevant rights and for the entire world.
5.3 Notwithstanding the assignment referred to above, the Service Provider shall at all times be entitled to use its general knowledge, skills, experience and all concepts, methodologies, processes and know-how developed, acquired or otherwise used in the performance of the Agreement, insofar as such use does not conflict with the Service Provider's confidentiality obligations.
5.4 The Client shall not be entitled to remove or modify any indication relating to the confidential nature, copyrights, trademarks, trade names or other intellectual or industrial property rights contained in software, websites, databases, equipment, materials and/or Third-Party Products.
5.5 If the result of the Services provided by the Service Provider infringes, or in the opinion of the Service Provider is likely to infringe, the Intellectual Property Rights of a third party, the Service Provider shall, at its own expense and at its discretion, be entitled to:
5.5.1 replace or modify the result of the Services (while substantially preserving the usability or functionality thereof) so that no infringement occurs; or
5.5.2 obtain for the Client the right to continue using the result of the Services; or
5.5.3 accept the return of the result of the Services and refund the payments made by the Client under the relevant Services Framework Agreement, after deduction of a reasonable fee for the period during which the Client used the result of the Services.
5.6 The indemnification obligation referred to above shall lapse if the alleged infringement is related to (i) materials made available to the Service Provider by the Client for use, modification, processing or maintenance, or (ii) modifications made by or on behalf of the Client to software, websites, databases, equipment or other materials without the prior written consent of the Service Provider.
5.7 The Client acknowledges and accepts that the arrangement set out above constitutes its sole and exclusive remedy in respect of any infringement of Intellectual Property Rights and/or any damage resulting therefrom.
5.8 The Client represents and warrants that no third-party rights oppose the provision to the Service Provider of equipment, software, website-related materials, databases and/or other materials and/or designs for the purposes of use, maintenance, modification, installation or integration. The Client shall indemnify and hold harmless the Service Provider against any third-party claim based on the allegation that such provision, use, maintenance, modification, installation or integration infringes any right of such third party.
5.9 Third-Party Products: If applicable, the Client expressly acknowledges and agrees that (i) all Third-Party Products are subject to the applicable General (Licence) Terms and Conditions, SLA's, AUP and any other applicable terms and conditions of the relevant Third-Party Supplier, and that (ii) the Service Provider assumes no liability whatsoever in this respect. With regard to the Third-Party Products, the Client shall not derive or claim any rights other than those expressly granted pursuant to the General (Licence) Terms and Conditions and other applicable terms agreed between the Client and/or the Service Provider and the relevant Third-Party Supplier.
6.1 The Parties and their Personnel shall keep strictly confidential all Confidential Information received from the other Party in the performance of the Agreement and shall use such Confidential Information solely for the purposes of the Agreement. In this respect, each Party shall ensure that its Personnel are bound by confidentiality obligations of a similar nature.
6.2 The Parties undertake not to disclose Confidential Information to any third party without the prior written consent of the other Party, except where disclosure is made to auditors, professional advisers or any other persons or entities involved in the Agreement, on a strict "need-to-know" basis.
6.3 The confidentiality obligation shall remain in force for a period of three (3) years following disclosure of the Confidential Information and shall in any event expire no later than three (3) years after termination or expiry of the Agreement, irrespective of the cause of such termination or expiry.
6.4 Information shall not be deemed to constitute Confidential Information if and insofar as the receiving Party can demonstrate, by means of written evidence, that such information:
6.4.1 was lawfully obtained from a third party that was not bound by any confidentiality obligation;
6.4.2 was already known to the receiving Party prior to its disclosure in the context of the Agreement;
6.4.3 was independently developed by the receiving Party without breach of the Agreement;
6.4.4 is or becomes part of the public domain other than through an act or omission of the receiving Party; or
6.4.5 must be disclosed pursuant to a judicial or administrative decision.
7.1.1 Unless the Services Framework Agreement expressly provides otherwise, the Client shall irrevocably be deemed to act as a professional user, acting within the scope of its professional activities. The Client shall be deemed to possess the relevant know-how relating to the Services and Third-Party Products and to employ Personnel with the necessary expertise.
7.1.2 If, during the term of the Agreement, the substantive specifications for the performance of the Agreement are amended, the Client shall compensate the Service Provider for any training or upskilling required for the Contractor. Where the Client itself provides training to the Service Provider's Personnel, the costs of such training shall be borne by the Client, unless otherwise agreed in the Specific Conditions.
7.1.3 The Service Provider shall, where reasonably possible, timely inform the Client of any planned interruptions in the performance of the Services (including, without limitation, short-term illness or leave of the Service Provider's Personnel).
7.2.1 Unless otherwise provided in the Services Framework Agreement, the Services shall be performed at the Client's premises and/or remotely. Where applicable, the Client shall grant the Service Provider unrestricted access to the working environment and shall provide the necessary facilities, including a workspace equipped with computer, printer, data, internet, telephony and network facilities.
7.2.2 The Client's workspace and facilities shall comply with all applicable legal requirements. Where necessary, the Client shall implement all required security measures, including, without limitation, VPN access and authentication tokens.
7.2.3 The Client shall indemnify and hold harmless the Service Provider against any third-party claims, including claims by the Service Provider's Personnel, arising from damage suffered in connection with the performance of the Agreement as a result of acts or omissions of the Client or unsafe conditions within the Client's organization.
7.2.4 Prior to the commencement of the Services, the Client shall provide the Contractor in writing with the internal house rules and security policies applicable within its organization.
7.2.5 The Client shall be liable for any damage and/or additional costs incurred by the Service Provider as a result of delayed, incorrect or defective performance of the Services caused by an unsuitable working environment.
7.3.1 The Service Provider shall perform the Agreement to the best of its ability and shall take into account the technical instructions and guidelines provided by the Client in the context of the Agreement.
7.3.2 The Services shall be developed and/or delivered by the Service Provider in the condition in which they are at the time of delivery ("as is"), with all visible and hidden errors and defects.
7.3.3 The Service Provider does not warrant the suitability or merchantability of the Services for any specific purpose unless such purpose is expressly included in the Services Framework Agreement and/or the functional specifications.
7.3.4 The Services shall be provided with all care reasonably possible in accordance with the current state of the art.
7.4.1 The Parties acknowledge and accept that the successful performance of information and communication technology services depends on proper and timely cooperation between them. The Client shall at all times provide all cooperation reasonably required by the Service Provider.
7.4.2 Where the Client deploys its own Personnel in the context of such cooperation, such Personnel shall possess the necessary knowledge, expertise and experience.
7.4.3 The Service Provider shall provide the Services within the limits of the Agreement and on the basis of the information supplied by the Client. The Client guarantees the accuracy, timeliness, completeness and lawfulness of all information, measurements, requirements, specifications and other data provided by it that are essential for the Service Provider to fulfil its obligations under the Agreement. The Client shall indemnify the Service Provider against any damage arising from inaccurate, delayed, incomplete or unlawful information.
7.4.4 Any additional costs incurred as a result of the unavailability of Client Personnel, facilities and/or materials reasonably required for the performance of the Services, including but not limited to additional time spent by the Service Provider's Personnel, shall be invoiced to the Client.
7.4.5 The Client shall at all times bear full end responsibility for the ongoing projects of which the Services provided by the Service Provider may form part. The Service Provider shall not be responsible for incorrect, missing, delayed, unlawful or conflicting instructions from the Client.
7.4.6 The Client shall at all times remain responsible for its existing infrastructure (including, without limitation, hardware, software, websites, databases, control and security procedures and adequate system management), as well as for the proper functioning and security of all its working materials.
7.4.7 Where the Client requires specific security measures to be applied by the Service Provider in the performance of the Services, the Client shall notify the Service Provider thereof in advance. In such case, the Parties shall consult on the feasibility, timing and any additional costs associated with implementing such measures. Upon agreement, such measures shall be recorded in the Services Framework Agreement.
7.4.8 The Client shall be solely responsible for establishing procedures enabling it to reconstruct lost or altered files, data or programs at any time, regardless of the cause of such loss or alteration. The Client shall maintain appropriate daily back-ups of its software, files and data.
7.5.1 For the performance of the Agreement, the Service Provider shall engage one or more Contractors. The Service Provider reserves the right to determine which Contractor shall be assigned to perform the Services and to replace such Contractor at its discretion during the term of the Agreement.
7.5.2 Where both Parties deem it desirable or necessary, they may, by mutual agreement, either temporarily or permanently appoint a different Contractor to perform the Agreement.
7.5.3 Where a Contractor no longer meets the agreed requirements, brings the Client into disrepute or fails to perform the Services in a manner that is reasonably consistent with the Agreement, the Client shall be entitled to request the Service Provider to replace the Contractor. Such request shall not release the Client from its obligation to pay for the Services already performed by the Contractor.
7.5.4 Where the Service Provider agrees to the replacement of the Contractor, it undertakes to make a replacement Contractor available to the Client as far as reasonably possible. Where the Service Provider is unable to provide a qualified replacement Contractor within a period of two (2) weeks, the Client shall be entitled to terminate the relevant Services Framework Agreement insofar as it relates to the Contractor to be replaced.
8.1 The Client undertakes to pay a fee corresponding to the number of hours/days effectively performed, multiplied by the hourly/daily rate agreed in the Services Framework Agreement. Any estimates included in the Specific Conditions or in other documents of the Service Provider are purely indicative.
8.2 All fees are expressed in euro and are exclusive of VAT, duties and taxes, excise duties, transport costs (for example those charged by Third-Party Suppliers), import duties and any other levies imposed or to be imposed by governmental authorities. All such taxes and charges shall be borne exclusively by the Client.
Where invoices are paid in another currency and/or from outside Belgium, sufficient funds must be transferred so that the net amount received by the Service Provider in the required currency, after exchange costs and other bank charges, corresponds to the amount stated on the relevant invoice. The Service Provider shall be entitled to invoice the Client for any shortfall.
All payments under the Agreement shall be made without any withholding or deduction on account of any tax ("Tax Withholding"), except where such withholding or deduction is required by law. Where a Tax Withholding must be applied, the Client shall carry out such Tax Withholding for the amount and within the period prescribed by law and shall pay an additional amount such that the Service Provider receives the amount it would have received had no Tax Withholding been applied. Where a credit or refund in respect of the Tax Withholding is available to the Service Provider, the Service Provider shall use reasonable efforts to obtain such credit or refund and, once obtained, shall reimburse the Client so that the Service Provider is in the same overall position as if no Tax Withholding had been applied.
8.3 Unless otherwise provided in the Services Framework Agreement, the fees are exclusive of travel time and/or (accommodation) expenses, incidental expenses and any other reasonable costs. All such costs shall be borne by the Client.
8.4 The fees may be adjusted annually as of 1 January by the Service Provider in accordance with the following formula:
New price = Base price × (0.2 + 0.8 × (New index / Initial index))
Where the following definitions apply:
• Base price: the price applicable at the commencement of the relevant Specific Conditions;
• Initial index: the index "reference labour cost for companies in the digital sector, Agoria DIGITAL" based on Joint Committee 200, as published by Agoria, for the month preceding the signing of the relevant Specific Conditions;
• New index: the same reference labour cost index for the month preceding the date of indexation.
8.5 Unless otherwise agreed in writing between the Parties, the Contractor shall provide the Client with an overview of the Services performed and/or submit such overview for approval by the Client, by means of timesheets or any other time registration system agreed between the Parties. The Service Provider shall be entitled to suspend the Services where the Client refuses, without valid reason, to sign or approve such overview.
8.6 The Service Provider shall invoice the fees referred to above on a monthly basis. All invoices shall be payable within thirty (30) calendar days from the invoice date, unless otherwise provided in the Specific Conditions. The absence of written protest of an invoice within fifteen (15) calendar days following its dispatch shall constitute irrevocable acceptance of the invoice and of the Services stated therein.
8.7 As of 1 January 2026, invoices issued between Belgian VAT-liable legal entities shall, in accordance with applicable statutory requirements, be transmitted and received exclusively via the Peppol network. Peppol ensures the secure and irrefutable delivery of invoices to the recipient.
The Client shall therefore be capable of receiving invoices from the Service Provider via Peppol. The Service Provider shall only accept invoices from Belgian VAT-liable legal entities insofar as such invoices have been transmitted through Peppol. Only invoices received by the Service Provider via Peppol shall be deemed valid and opposable to the Service Provider.
Invoices exchanged with VAT-liable legal entities established in countries where Peppol has not yet been implemented or is not yet mandatory may, for the time being, continue to be exchanged by email in PDF format.
8.8 Upon expiry of the payment term and subject to prior notice of default, the Client shall be liable to pay a contractual interest equal to the statutory interest rate determined in the Belgian Act of 2 August 2002 on combating late payment in commercial transactions. Such interest shall accrue from the due date until the date of full payment.
8.9 In the event of late payment of an invoice and subject to prior notice of default:
i. the Service Provider shall be entitled to increase the invoice amount by way of compensation by ten per cent (10%) with a minimum of €75;
ii. all costs relating to the extrajudicial collection of the invoice, as well as the costs of judicial proceedings and enforcement, shall be borne by the Client;
iii. all outstanding but not yet due claims against the Client shall become immediately due, payable and enforceable; and
iv. the Service Provider shall be entitled to suspend all Services vis-à-vis the Client.
8.10 The Client shall not be entitled to set-off any amounts or to suspend any payment.
8.11 Where the Service Provider has serious reasons to doubt the Client's solvency, or where the Client fails to pay two (2) undisputed invoices or invoices disputed in bad faith by the relevant due date, the Service Provider shall be entitled, even after conclusion of the Agreement, to require the Client to provide security for payment of the Services yet to be performed. The Service Provider may suspend the performance of the Services until such security has been provided.
9.1 The Service Provider shall perform the Agreement in full freedom and independence. No hierarchical relationship shall exist between the Service Provider and the Client, nor between the Client and any Contractor engaged by the Service Provider. Under no circumstances shall the Service Provider transfer any employer's authority over its employees to the Client, except insofar as permitted under applicable law as set out below.
9.2 The Parties acknowledge and accept that they are familiar with the Belgian Act of 24 July 1987 on temporary work, interim work and the making available of employees to users, as amended by the Programme Act of 27 December 2012, as well as with any subsequent amendments thereto as published in the Belgian Official Gazette. The Parties undertake to comply with the provisions of said legislation.
9.3 The Client shall not give any instructions to the employees of the Service Provider (and/or to employees of subcontractors engaged by the Service Provider) other than the instructions expressly permitted under the Agreement, relating to behavioural and safety rules, time management, the Client's applicable policies and procedures referred to in the Agreement, or the activities carried out by such employees.
9.4 The Client shall comply with the obligations imposed on the "user of services" under the aforementioned Programme Act.
9.5 The Client shall indemnify and hold harmless the Service Provider against any claims, damages or liabilities resulting from the Client's failure to comply with the provisions of this Article.
10.1 Any liability that may be incurred by the Service Provider shall arise solely from an obligation of means (obligation de moyens), which must be duly demonstrated by the Client.
10.2 To the maximum extent permitted by applicable law, the total liability of the Service Provider (including in the context of any hold harmless clause) for any attributable breach in the performance of the Agreement shall be limited to compensation for proven direct damage, up to a maximum amount equal to the fees due by the Client for the specific assignment and/or specific project that gave rise to the damage (exclusive of VAT).
Where the Services are provided over several years, the Service Provider's liability for direct damage shall in any event be limited to the total amount invoiced under the Agreement for the relevant assignment and/or project during the twelve (12) months preceding the date on which the event giving rise to the damage occurred (exclusive of VAT). Under no circumstances shall the total liability for all direct damage during the entire term of the Agreement exceed the fees paid by the Client for the relevant Assignment and/or Project (exclusive of VAT).
Where damage is also attributable to the Client and/or a third party, the Service Provider shall only be liable, within the above limits, for the portion of the damage caused by its proven fault, to the exclusion of any joint and several liability with other debtors. This shall apply regardless of whether the claim is brought on a contractual or non-contractual basis.
10.3 In the context of its duty to mitigate damage, the Client shall notify the Service Provider in writing of any event that may give rise to liability or of any loss suffered by the Client as soon as reasonably possible and, in any event, no later than fifteen (15) calendar days from the occurrence of such event or loss, or at least from the moment the Client became aware or should reasonably have become aware thereof. This is to enable the Service Provider to determine the origin and causes of the damage within a useful timeframe. Where the Client fails to comply with its duty to mitigate, the Service Provider shall not be liable for any increase in damage from the moment the Client should have notified the Service Provider.
10.4 Each Party shall take all reasonable measures to mitigate any loss or damage (including in the context of a potential indemnification) that could otherwise be recovered from the other Party under the Agreement, including by taking measures to limit or reduce the amount of any losses and/or damage suffered.
10.5 Under no circumstances shall the Service Provider be liable (including in the context of any hold harmless case) for indirect, consequential, incidental or special damage, including, without limitation, financial or commercial losses, loss of profit, increase in general overheads, loss of savings, loss of goodwill, business interruption, claims by customers of the Client, disruption of planning, loss of anticipated profit, loss of capital, loss of customers, loss of opportunities, loss of data, loss of benefits, or corruption or loss of files arising from the performance of the Agreement.
10.6 Any claim by the Client relating to the Services shall be time-barred twelve (12) months after the date on which the Client became aware, or should reasonably have become aware, of the event giving rise to such claim.
10.7 The limitations of liability set out in the Agreement shall not apply in the event of fraud, willful misconduct or deceit of a Party, nor with respect to any liability that cannot be excluded or limited under applicable law.
10.8 Where the results of the Services are used for further development or commercialization, the Client shall indemnify and hold harmless the Service Provider against any third-party claim for damages, even where such claim is found to originate from the Services provided by the Service Provider.
10.9 The Service Provider shall not be liable for any direct or indirect damage wholly or partly caused by Third-Party Products or by software or hardware supplied or created by third parties, or by any other element introduced into the Client's environment after the conclusion of the Agreement.
10.10 The Service Provider shall not be liable for any claim relating to infringement of Intellectual Property Rights based on:
a) the use of a modified or outdated version of (any part of) the developments, where the infringement would have been avoided by use of the unmodified or latest version made available by the Service Provider; or
b) information, designs, specifications, instructions, software, data or other materials not developed by the Service Provider.
10.11 The liability limitations set out in this Article shall also apply where the Service Provider was informed by the Client of the existence of a real risk of damage. The Parties acknowledge that the allocation of risk and the liability regime are reasonable and balanced in all circumstances, taking into account all relevant factors, including the prices and the nature of the Services.
10.12 The provisions of this Article, as well as all other limitations and exclusions of liability set out in the Agreement, shall also apply for the benefit of the Service Provider's Personnel and its Affiliated Companies.
11.1 Each Party shall, at all times, comply with its respective obligations under applicable legislation relating to the processing of personal data in connection with any personal data processed under the Agreement.
11.2 The Client undertakes not to grant the Service Provider or any Contractor access to personal data in the context of the Agreement, except where the performance of the Agreement would be impossible without such access. In such case, the Client undertakes to provide access only to the personal data that is strictly necessary for the performance of the Agreement.
11.3 The Client shall remain solely responsible for determining the purposes for which the Service Provider processes personal data under the Agreement. For the avoidance of doubt, the Parties acknowledge that the Client acts as the data controller and the Service Provider as the data processor of the personal data that are to be stored, used, or otherwise processed in the context of this Agreement, as such terms are defined under applicable legislation relating to the processing of personal data.
11.4 The Client declares that it has obtained all necessary approvals and legal bases for the use and processing of the personal data transferred in the context of the Agreement. The Client furthermore guarantees that the content, use and/or processing of such personal data is lawful and does not infringe any third-party rights.
11.5 The Service Provider shall be entitled to invoice the Client where the Client requests support in relation to applicable personal data legislation (including, for example, assistance where the Client receives a request from a data subject, in the context of an audit, or where the Client requires additional technical and organizational measures from the Service Provider).
11.6 Where and insofar as personal data are processed in the performance of the Services, the Parties shall enter into a separate data processing agreement.
12.1 Neither Party shall be obliged to fulfil any obligation under the Agreement if it is prevented from doing so as a result of Force Majeure.
12.2 Where a Force Majeure event continues for more than sixty (60) calendar days, either Party shall be entitled to terminate the Services Framework Agreement in respect of the affected assignment and/or project by means of Notice in writing.
In such case, the Services already performed under the Agreement shall be settled on a pro rata basis, and no further compensation shall be due or payable between the Parties.
12.3 Such termination shall take immediate effect upon receipt of the relevant Notice.
13.1 Where, after signing of the Agreement, fundamental changes in circumstances occur which render the performance of the Agreement excessively onerous and thereby disturb the contractual balance between the Parties ("Hardship"), the Party invoking Hardship shall provide the other Party with an analysis of the issues and their impact.
13.2 In such case, the Parties shall, upon first request, negotiate in good faith a revision of the Agreement, taking into account the above-mentioned analysis. The Parties shall endeavour, in a constructive manner, to reach an equitable adjustment of the Agreement.
13.3 Where the Parties are unable to reach an amicable agreement within thirty (30) calendar days from the request for adjustment of the Agreement, or where the other Party refuses to negotiate, the Party best placed to do so shall be entitled to terminate the Agreement by means of Notice, subject to a notice period of thirty (30) calendar days, without any compensation being due as a result thereof.
14.1 The Client agrees not to approach or solicit (whether directly or indirectly) any (proposed) Personnel of the Service Provider involved in the provision of the Services, with a view to engaging such Personnel.
This non-solicitation obligation shall apply from the commencement of the Services until twelve (12) months after the end date of the Services and/or termination of the Agreement, whichever occurs last, unless otherwise agreed in writing between the Parties.
14.2 Where the Client contracts with, employs or makes use of the services of any such (proposed) Personnel of the Service Provider, whether as an employee, as a self-employed contractor and/or through a company, the Client shall pay to the Service Provider an amount equal to one hundred and twenty (120) times the daily fee as determined in the Specific Conditions.
Such amount shall be payable on the date on which the (proposed) Personnel member was first engaged or on which use was first made of their services.
15.1 Insurance. The Parties shall at all times maintain insurance with a reputable insurer covering all insurable liabilities arising under the Agreement. Upon written request of a Party, the other Party shall provide the requesting Party, within ten (10) calendar days, with insurance certificates evidencing adequate coverage.
15.2 Assignment. Neither the Agreement nor any rights or obligations arising therefrom may be assigned or transferred, in whole or in part, without the prior written consent of both Parties. Notwithstanding the foregoing, the Service Provider shall at all times be entitled to assign or transfer the Agreement, or any rights or obligations arising therefrom, in whole or in part, to an Affiliated Company without the Client's prior written consent.
15.3 Subcontractors. The Service Provider may engage subcontractors for the performance of the Agreement without the Client's prior written consent. Within the limits of Article 10 of the Agreement, the Service Provider shall remain responsible for the acts and omissions of its subcontractors.
15.4 Severability. The nullity or invalidity of any provision (or part thereof) of the Agreement shall not affect the validity of the remainder of such provision or of the Agreement. The Parties shall use their best efforts to negotiate, in good faith and by mutual agreement, a valid and enforceable replacement provision having the same or substantially similar economic effect.
15.5 Waiver. No Party shall be deemed to have waived any right or claim arising under the Agreement or relating to a breach by the other Party unless such waiver is expressly made in writing.
Where a Party waives any right or claim arising from a failure or breach by the other Party, such waiver shall not be construed as a waiver of any other right under the Agreement or relating to any other failure or breach, even where both cases are similar.
15.6 Remedies. Unless otherwise provided, all remedies available under the Agreement shall be cumulative and in addition to (and not in substitution for) any other remedies available to the Parties.
15.7 Entire Agreement. The Agreement, together with the Services Framework Agreement, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes, cancels and replaces all prior agreements, proposals or understandings between the Parties, whether oral or written.
Any deviation, amendment or supplement to the Agreement shall only be valid if agreed in writing between the Parties.
15.8 Conflict of Documents. In the event of any conflict between the Services Framework Agreement and these General Terms and Conditions, the Services Framework Agreement shall prevail.
With regard to Third-Party Products, only the applicable general (licence) terms and conditions of the relevant Third-Party Suppliers shall apply. Where such general (licence) terms and conditions are, for any reason, deemed inapplicable or declared unenforceable, the provisions of the Agreement shall remain fully applicable.
15.9 Exclusion of Certain Provisions of Book 5 of the Belgian Civil Code. Unless otherwise provided in the Agreement and insofar as permitted by law, the Parties expressly exclude the application of the following provisions of Book 5 "Obligations" of the Belgian Civil Code: Articles 5.23; 5.74; 5.85 in conjunction with Article 5:235; Article 5.88 §1; Article 5:90, second paragraph; Articles 5.93 and 5.97.
By executing the Agreement, the Parties also exclude the applicability of their own purchase, delivery or other general terms and conditions, even where such terms would provide otherwise or where such terms are communicated to the other Party after execution of the Agreement (for example via invoices, purchase orders, etc.).
15.10 Notices. All notices, requests and other communications under the Agreement (excluding day-to-day operational communications) shall be made in writing by registered letter with acknowledgement of receipt or by any other customary means of communication agreed between the Parties.
15.11 Survival. All provisions of the Agreement expressly stated to survive termination or expiry, as well as those which by their nature are intended to remain applicable after termination, shall survive and remain in full force and effect.
15.12 Evidence. Regardless of the nature and/or value of the legal act to be proven, the Parties may at all times provide evidence by means of the following additional forms of proof: copies or reproductions in any form whatsoever (including photocopies or scans), electronic storage media, SMS, chat messages and email. Such evidence shall have the same evidentiary value as a private deed drawn up in accordance with the Belgian Civil Code.
15.13 Governing Law. The Agreement shall be governed by and construed in accordance with Belgian law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).
15.14 Jurisdiction. Any disputes relating to the validity, performance, interpretation and/or termination of the Agreement which cannot be settled amicably shall fall under the exclusive jurisdiction of the Commercial Court of Ghent, Kortrijk Division.