General terms and conditions
Last update 16/06/2020
These General Terms and Conditions are applicable to all services delivered by SpotIT BV, Guldensporenpark 30, Blok C, 9820 Merelbeke, Belgium registered under company number 0553.580.186 and VAT number BE0553.580.186 (further: “SpotIT”).
1.1 The acceptance of an offering, implies the approval of these general terms and conditions and the explicit exclusion of any other terms and conditions.
1.2 Exemptions can only be considered valid when mutually agreed in written form. Unilaterally exceptions to these General Terms and Conditions, are not accepted.
2.1 All offerings are non-committal and solely bind SpotIT when accepted and signed by Customer within a period of fourteen (14) days. Both e-mail and post are considered as valid communication channels.
2.2 If Customer wishes to confirm a SOW with a Purchase Order (“PO”), such Purchase Order will only be accepted when sent to [email protected] General Terms and Conditions mentioned on a PO, will not be accepted, as mentioned in 1.2.
3. EXECUTION AND TERM
3.1 SpotIT reserves the right to carry out its assignments and services according to its insight and working methods, insofar this does not affect the rights of the customer and the obligations of SpotIT.
3.2 In performing services under the Agreement, Supplier may call upon subcontractors, such as freelancers, working for Supplier on a regular basis, or Associated Companies, without prior written consent of the Customer.
3.3 SpotIT can only be held accountability for timely delivery when all necessary data, documents, acceptances and feedback is provided within the agreed form and timeframe. Any additional costs justified by SpotIT are at the expense of the Customer.
3.4 The Customer is responsible for the timely provision of the necessary facilities for the computer environment, failing which entitles SpotIT to postpone delivery of assignments or services. All costs arising from this delay will be borne by the Customer.
3.5 Services are delivered on a best effort basis (“inspanningsverbintenis”); due to the nature of the delivered services, SpotIT cannot be bound by an obligation of results (“resultaatsverbintenis”).
4. Delivery and complaints
4.1 Deliveries of materials are at foreseen at the Customer’s address, unless agreed otherwise.
4.2 Before proceeding with the operational use of the processing results, the customer is obliged to perform a reasonable check on the soundness of the results based on his knowledge. In the absence of this check, SpotIT cannot be held responsible for any processing errors and their possible adverse consequences.
4.3 To be admissible, disputes related to the delivery of services, should be notified in writing to our offices as quickly as possible and at the latest within a period of fourteen (14) days from delivery date. E-mail is recognised as a valid communication channel.
4.4 To be admissible, disputes related to the delivery of materials, should be notified in writing to our offices as quickly as possible and at the latest within a period of forty-eight (48) hours from delivery date. E-mail is recognised as a valid communication channel.
4.5 Disputes never give the right to postpone payments or to change the modalities thereof.
5. BUSINESS HOURS AND RATES
5.1 Business hours are between 8h00 and 18h00 on working days. If customer wishes the services to be delivered outside of these hours, this will be charged to the following conditions, unless agreed otherwise in writing in advance:
- on working days after 18h00: applicable rates + 50%
- on Saturdays during business hours: applicable rates + 50%
- on Sundays and holidays: applicable rates + 100%
5.2 Services delivered within above mentioned business hours shall be invoiced at the applicable rates + 50% as soon as the hours performed, calculated per day, exceed the amount of eight (8).
6. CANCELLATIONS AND CHANGES
6.1 Depending on the type of Services, specific performance days might be planned for resources of Supplier. Customer shall be requested to approve the proposed planning and Customer will not unreasonably withhold its approval.
6.2 After approval of the planning, specific days can only be rescheduled or annulled under the condition that the written request has been launched and accepted at least ten (10) Business Days before the occurrence of the performance day. In exemption of these ten (10) Business Days a term of three (3) Business Days applies for managed services.
6.3 If performances are rescheduled or annulled, at the request of the Customer, outside the periods mentioned above, the following cancellation fees apply: (i) For all request launched between ten (10) Business Days and three (3) Business Days prior to the performance day, a cancellation fee of 50% of the planned performances will be invoiced (not applicable to managed services). (ii) For all requests launched within three (3) Business Days prior to the performance day, a cancellation fee of 100% of the planned performances will be invoiced. Determination of timeframe is based on the receival of the written request by SpotIT.
7. PRICES AND EXPENSES
7.1 Taxes and VAT are not included and charged to the Customer. All invoices are subject to the tax regime in force when performing the services.
7.2 The costs of travel and relocations to and abroad are charged based on travel and expenses.
7.3 The cost of travel for onsite service delivery within Belgium, for a period less than 8 hours, will be charged at a flat rate.
7.4 During the onsite delivery of Services, Customer is responsible to provide parking facilities for Supplier’s Personnel onsite. If no parking facilities can be foreseen, Customer agrees to reimburse all costs related to parking and/or the use of public transport. Proof of expenses can be requested via [email protected] within one (1) month following its invoice.
7.5 Shipping costs to and from the finishing centres of SpotIT are, unless otherwise specified in the offering, borne by the customer.
7.6 With the exception of flat-rate prices included in our offering, prices are subject to indexation on a yearly basis, following the evolution of the national reference hourly wage costs (wages and social security charges) published by Agoria. The Agoria-index is available for consultation on https://www.agoria.be/nl/Refertelonen-overzichtstabellen.
8. INVOICE - PAYMENT
8.1 Unless agreed otherwise, invoicing takes place after the delivery of performances.
8.2 Unless agreed otherwise, invoicing will be done electronically.
8.3 Unless agreed otherwise, invoices are due within 30 days after the invoice date. They can be settled, without any discount, on one of our bank accounts.
8.4 In the event of non-payment on the due date, the following will apply by operation of law and without notice of default: (i) all amounts due become immediately payable, regardless of the agreed payment conditions; (ii) a default interest of 1% per month on the outstanding balance and with a minimum of EUR 40, together with a flat-rate reimbursement of 10% on the outstanding balance, whereby each started month counts as one. In addition, SpotIT will have the right to suspend all services under this Agreement until settlement of all outstanding invoices. (iii) In addition, SpotIT will be entitled to reasonable compensation for all other relevant costs, in accordance with the Belgian Law of 2 August 2002 regarding the combat of late payment in commercial transactions.
8.5 Deviations from these payment terms and conditions are only valid when explicitly approved in written form.
9. PROPERTY RIGHTS
9.1 With the exception of information provided by the customer, SpotIT will retain ownership of all copyrights and other intellectual property rights that exist worldwide within the services delivered by SpotIT.
9.2 Unless explicit deviations are foreseen in the offering or in another mutual agreed document, no rights are transferred to the customer on all systems, programs, working methods, and any other means used or developed by SpotIT. The Customer cannot claim any ownership of used techniques in programming, analysis and work execution, as well as with regards to the applied ideas.
9.3 SpotIT is exempted from all research into the source, legal validity or reality of this data.
9.4 Hardware remains the property of SpotIT until full payment of the relevant invoices. Yet, Customer acknowledges that all risks are shared, starting from the moment of delivery.
10.1 Customer and SpotIT explicitly engage in keeping all factory secrets, business secrets or secrets related to personal and/or confidential matters of which they may be aware during this Agreement, both during and after the delivery of services.
10.2 Parties expressly declare and acknowledge that 10.1 applies to both SpotIT’s own secrets and to those of customers, prospects, suppliers and affiliated companies. It is agreed that data about equipment, software and their working methods are considered as trade secrets, as well as all information concerning the operations of relations, customers, prospects, suppliers and affiliated companies of both parties. An exception to the above is made for data that is generally known in the trade circles or when prior agreement to disclosure has been given.
10.3 This paragraph remains applicable for five (5) years after the termination of the Agreement.
11.1 Any delay in performances cannot give rise to the payment of a compensation. SpotIT cannot be held liable for the (partial) non-execution of an assignment due to limitations specific to the subject of the assignment/investigation and/or limitations imposed by an authority.
11.2 The assignment carried out by SpotIT is considered best effort and cannot be deemed as an obligation to results. The liability for all damages resulting from non-compliance with agreed obligations and applicable legal obligations should be proven to be in relation with an error that can be attributed to SpotIT. Indemnification will be limited to 1 million euros for the totality of all agreements, reduced to amount approved by the insurance company in the event this would be lower than 1 million euros.
11.3 Under no circumstances will SpotIT be liable for indirect damage such as loss of profit or any other financial or business damage caused by loss or destruction of data or software; not shall SpotIT be liable for claims filed by third parties, regardless of whether SpotIT was informed on the possibility of the claim.
11.4 This limitation prevails over different provisions in separate agreements, unless expressly decided otherwise.
12. ACQUISATION OF PERSONNEL
12.1 During and one year after the termination of the Agreement, Customer will not hire or employ employees of SpotIT without prior consultation of SpotIT.
12.2 A violation of this article will give rise to a compensation equal to applicable daily rates (based on contractual agreements between Customer and SpotIT) * 110 days.
13. TERM AND TERMINATION
13.1 The duration of the assignment is determined in the offering.
13.2 Early termination can only be accepted after a written notice of default, whereby a period of two (2) months is foresee to remediate the shortcoming.
13.3 In addition, early termination gives rise to compensation for losses caused by the early termination and full payment of all performances until the moment of receival of written notice of early termination.
14. FORCE MAJEURE
14.1 Force majeure means any causes beyond the reasonable control of a Party, such as but not limited to, acts of God, acts of government, terrorist activity, sabotage, expropriations, riots, wars, natural disasters, civil commotion, power shortage, explosion, equipment failure, widespread material shortages, breakdown of facilities or materials by fire, earthquake, flood, storm, labour disturbances and strikes external to a Party, and failure of public utilities.
14.2 Under the condition that all reasonable actions to avoid Force Majeure are taken, the failure to perform any obligation under this Agreement, solely by reason of Force Majeure, shall not be considered as a breach of this Agreement. If such event causes or can reasonably be assumed to cause a delay in performance for more than three (3) months, then either Party may terminate the relevant Agreement, effective upon written notice to the other Party.
14.3 Force majeure does not give the right to postpone payments or terminate the Agreement unilaterally.
15.1 If any provision of the agreement concluded between parties, including these terms and conditions, is considered to be contrary to legal provisions, or is annulled by the court, this does not mean a complete invalidity of the agreement. Parties must interpret the invalid provision(s) in the spirit of the Agreement.
15.2 SpotIT preserves the right to changes these terms and conditions whereby these shall be applicable after notification to the Customer.
15.3 This Agreement is established under and shall be governed and interpreted in accordance with the laws of Belgium, with the exclusive jurisdiction of the Courts of Ghent, Belgium.