Article 1. Definitions
In these Terms & Conditions:
- 1.1 Premium Plus: Sint-Pietersvliet 7, 2000 Antwerp – BTW 0844.776.562 – [email protected]
- 1.2 Client: the natural person or legal person who has entered into an Agreement with Premium Plus or to whom Premium Plus has submitted a quotation for this, or who takes a downloaded application/software application into use.
- 1.3 Terms and conditions: the provisions from this document.
- 1.4 Service: the services Premium Plus performs on behalf of the Client, as described in the Agreement.
- 1.5 Agreement: an electronic agreement between Premium Plus and the Client that forms an agreement by virtue of an electronic notification and/or submission by the Client, any amendment or addition thereto, as well as all (legal) acts in preparation for and in execution of that agreement.
- 1.6 Electronic notification: e-mail, provided that the identity of the sender/addressee and the integrity of the message is sufficiently established.
Article 2. Applicability
- 2.1 These Terms and Conditions apply to all quotations, offers, (legal) acts, Agreements and other legal relationships, even if these goods or services are not (further) described in these Terms and Conditions, unless expressly agreed otherwise.
- 2.2 Applicability of Terms and Conditions used by the Client is explicitly excluded.
- 2.3 These Terms and Conditions also apply to additional assignments and subsequent assignments from the Client.
Article 3. Changes and additions to Terms and Conditions
- 3.1 Premium Plus reserves the right to unilaterally amend or supplement these Terms and Conditions.
- 3.2 Amendments and additions also apply to Agreements already concluded with due observance of a term of thirty (30) days after announcement of the amendment and/or addition on the Premium Plus website, without Premium Plus having to demonstrate that the Client has effectively taken note of the amendment and/or addition. Amendments and additions of minor importance can be made at any time.
- 3.3 If the Client does not wish to accept an amendment and/or addition to these terms & conditions, the Client may terminate the Agreement by registered letter with acknowledgment of receipt at the latest on the last day of the period of thirty (30) days as stated in paragraph 3.2. Failing to do so, the Client is suspected of agreeing with the amendment and/or addition to the terms & conditions.
Article 4. Quotation, offer and acceptance
- 4.1 A quotation is non-binding and valid up to 14 days after transmission by Premium Plus, unless stated otherwise in the quotation.
- 4.2 Premium Plus will draw up a quotation in which it indicates what is included with the Service and which amount the Client will owe upon acceptance.
- 4.3 Premium Plus cannot be held to its quotation or offer if the quotation or offer, or a part thereof, contains a manifest mistake or error.
- 4.4 If it appears that the information provided by the Client is incorrect or incomplete, Premium Plus has the right to adapt the prices accordingly and to postpone the (indicative) delivery/completion term (if indicated).
- 4.5 The client must accept the quotation per electronic message. The Agreement is entered into at the moment the quotation is accepted by the Client. If the Client fails to do so, but nevertheless explicitly or tacitly agrees permits, or at least gives the impression, that Premium Plus performs (preparatory) work within the framework of the quotation/offer/Agreement, the quotation shall be regarded as accepted.
- 4.6 An Agreement is equally entered into at the time that Premium Plus confirms an assignment from the Client who has already accepted the Terms and Conditions in the context of a different assignment.
- 4.7 In case the Service concerns an application/software application, the moment of downloading the application will be considered to be the conclusion of the Agreement.
- 4.8 Only the description of the Service indicated in the Agreement is binding.
Article 5. Execution of the Service
- 5.1 After the conclusion of the Agreement, Premium Plus will execute the Service within a reasonable period in accordance with the Agreement.
- 5.2 Insofar as not (electronically) agreed otherwise, Premium Plus guarantees that the Service will be executed to the best of its ability, with due care and skill. This concerns an obligation of means whereby Premium Plus will in no way be liable for not achieving the result that the Client intended.
- 5.3 If and insofar a proper execution of the Service requires this, Premium Plus has the right to have certain work carried out by third parties. Premium Plus will inform the Client about this in a timely manner. Any related additional costs are at the expense of the Client, unless agreed otherwise.
- 5.4 The Client is obliged to do everything that is reasonably required and desirable to enable the timely and correct execution of the Service. In particular, the Client shall ensure that all data, of which Premium Plus indicates that they are required or of which the Client should reasonably know that they are required for the execution of the Service, are correct and lawful, and will be timely and fully provided to Premium Plus.
- 5.5 If the Client does not fulfill a contractual obligation towards Premium Plus or acts contrary to these terms & conditions, Premium Plus has the right to (temporarily) decommission the delivered products and services and/or to limit their use, or to not deliver them or merely to a limited extent, without any prior notice of default being required.
Article 6. Commissioning and acceptance
- 6.1 If a Service implies the creation or adaptation of a work or product, the Client must evaluate the result within fourteen (14) days of commissioning and approve or reject it.
- 6.2 If the Client does not reject the Service within this period, it will be deemed to have been approved. In the event of rejection, the Client must state the reason for rejection as detailed as possible, failing which the rejection cannot be accepted and the Service is deemed to have been approved.
- 6.3 If the Client rejects the result in whole or in part in accordance with paragraphs 1 and 2, Premium Plus will endeavour to remove the reason for rejection as quickly as possible. This can be done by either revision of the result or by motivating why the reason does not apply. The Client then has the same period of fourteen (14) days to approve or reject the revision or motivation.
- 6.4 If the Client continues to reject the result after a reasonable number of revisions or motivations, Premium Plus is entitled to cancel the Agreement. In that case, the Client will receive a refund of only the price paid for the rightfully rejected results. In the event of cancellation or dissolution by Premium Plus, in whichever phase and for whatever reason, Premium Plus will not owe any compensation for any damage on the part of the Client.
- 6.5 If a Service is performed in phases, the Client must give approval or rejection of the result of that phase after completion of each phase. The Client may not base a rejection of the result of a later phase on matters that have been approved at an earlier stage. If the Client rejects a Service or a refund in accordance with the previous paragraph at a later stage, no refund will be given for the already approved Service(s) in (a) previous/other phase(s), even if these are related to each other.
- 6.6 This article does not apply to applications that are purchased on a subscription basis and that are not created and written on the basis of an individual assignment.
Article 7. Changes to the Service
- 7.1 Any changes to the Service, either at the request of the Client or as a result of the fact that, due to whatever circumstance, a different execution is required, will be considered additional work if additional costs are involved. These are invoiced additionally to the Client.
- 7.2 If Premium Plus, due to circumstances that were not known to it at the time of the Agreement, has to perform more work than agreed, or has to perform activities under mitigating circumstances, Premium Plus will inform the Client of this (electronically) and Premium Plus is entitled to charge the Client for the resulting additional costs. In case of reduced work, the restitution of already reserved and calculated time and fee is excluded.
- 7.3 The Client accepts that any change in the Service (additional/reduced work) may have consequences for the (indicative) delivery period.
Article 8. Prices / payment conditions
- 8.1 Unless agreed otherwise , the Client, upon acceptance of the Agreement, owes 50% of the total price as stated in the Agreement to Premium Plus in advance.
- 8.2 All Premium Plus prices are expressed in Euros (unless indicated otherwise ) and exclude VAT and any other government taxes. All prices on the Premium Plus website are subject to programming and/or typing errors. Premium Plus is not liable for the consequences of such errors.
- 8.3 If the Agreement is renewed tacitly, Premium Plus is entitled to increase the tariffs applied by an electronic message by a maximum of 10% annually upon renewal of the Agreement. In the case of subscriptions, the price adjustment may also be higher. Price adjustments are announced at least two months before the start date.
- 8.4 All costs resulting from the Agreement for Premium Plus are for the account of the Client, unless agreed otherwise.
- 8.5 Premium Plus will send an invoice to the Client for the amount owed by the Client. The payment term of this invoice is thirty days after the date of the invoice, unless stated otherwise on the invoice or agreed otherwise in the Agreement.
- 8.6 Notwithstanding the previous paragraph, Premium Plus is not obliged to send an invoice if the Agreement is a continuing performance agreement. The Client will pay monthly or in another agreed term, in advance payment the amount due for that period to Premium Plus.
- 8.7 Contrary to the foregoing, payments of Agreements that are entered into on a subscription/license basis must be done in advance. Only when the amount due has been paid will Premium Plus activate the subscriptions or licenses for the Client.
- 8.8 If the Client does not pay on time, he is in default from the due date of the invoice by operation of law and without any notice of default being required, and is obliged to pay a default interest at the statutory interest rate.
- 8.9 In the event of late payment, the Client shall be obliged to pay, in addition to the amount owed in principal and the default interest due thereon, a flat-rate compensation of 10% of the principal sum and a full compensation for both extrajudicial and judicial collection costs, including the costs for lawyers, bailiffs and collection agencies, with a minimum of € 250.00.
- 8.10 The claim for payment is immediately due and payable in full (including all future stages and installments) in case the Client is declared bankrupt, applies for suspension of payment or if attachment orders are placed on assets of the Client, if the Client dies and furthermore, if it goes into liquidation or is dissolved.
- 8.11 In the event of late payment Premium Plus has the right to suspend the entire or partial execution of the Agreement without further notice. If applicable, Premium Plus can also terminate the Agreement without further notice of default or judicial intervention with additional compensation owed by the Client and without the right to compensation of damage for the Client that may arise as a result.
Article 9. Development of specific work
- 9.1 If the Service (partly) extends to the development of software, documentation, advice, reports or other specific work, the Parties shall specify by means of electronic reporting which works will be developed, which requirements they must meet and the manner in which this will be executed.
- 9.2 Premium Plus will carry out the development with due care on the basis of the information provided by the Client. The Client guarantees the correctness, completeness and consistency of its instructions and data. Premium Plus will carry out the development to the best of its ability, yet can in no way be held liable for not achieving the result intended by the Client.
- 9.3 Premium Plus is entitled, but not obliged, to investigate the correctness, completeness or consistency of the source materials, requirements or specifications made available to it. If Premium Plus in doing so identifies any shortcomings, it can suspend the agreed work until the Client has removed the defects in question to the satisfaction of Premium Plus.
- 9.4 If the source materials provided by the Client to Premium Plus are protected by any intellectual property right, the Client guarantees at all times that they have all the licenses/permits/permissions/authorizations required for the provision to and intended use by Premium Plus under the Agreement.
- 9.5 Unless agreed otherwise , Premium Plus has the right to use images, software and components from third parties, including open source software, in the development of the work. After delivery, the responsibility for correct compliance with the relevant licenses of third parties lies with the use of the developed works at the Client.
- 9.6 If and only to the extent that this has been expressly agreed upon (electronically), the source code of developed software and the technical documentation produced in the development of the software can be made available to the Client and the Client is entitled to make changes in this software.
- 9.7 The Client is not permitted to sell, lease, sublicense, alienate or grant limited rights to the developed works or to make them available to a third party in any way or for any purpose whatsoever, not even if the third party concerned uses the software exclusively for the benefit of the Client, unless expressly agreed otherwise by (electronic) communication between the Parties or in case of and in combination with a sale of the relevant business units or activities of the Client. Article 11.5 applies to a violation of the prohibition contained in this article.
Article 10. Installation and maintenance of software
- 10.1 If the Service (partly) extends to the installation, configuration and/or maintenance of software, the provisions of this article equally apply.
- 10.2 Premium Plus will install and configure the software on hardware and networks to be designated by the Client. The Client is at all times obliged to properly secure its systems and software and to keep it secure, among other things, but not exclusively by means of virus scanners, firewalls, etc.
- The Client is obliged to do everything that is reasonably required and desirable to enable the timely and correct installation of the software. In particular, the Client shall ensure that all data, of which Premium Plus indicates that they are required or of which the Client should reasonably know that they are required for the installation of the software, will be timely and fully provided to Premium Plus.
- 10.3 At the request of Premium Plus, the Client shall provide Premium Plus with all necessary access to the computer systems in question to enable the installation, configuration, maintenance and adjustments of the software.
- 10.4 The choice, purchase and management of the hardware and networks to be used is solely and entirely the responsibility of the Client. Premium Plus will provide instructions on the desired configuration. If the designated hardware and networks do not meet the requirements of Premium Plus, Premium Plus is entitled to refuse installation or configuration.
- 10.5 If licenses for third parties are required for the use of the software, the Client will purchase these licenses and ensure that the provisions contained therein are strictly complied with. The Client indemnifies Premium Plus against claims by third parties concerning the installation and maintenance of the software.
- 10.6 Premium Plus will endeavour to update the software at the appropriate time in order to improve functionality and to correct errors. In the event of new functionality or changes that could substantially change the functioning of the software, Premium Plus will discuss this with the Client in advance.
- 10.7 Premium Plus will endeavour to keep the software up-to-date. However, it is dependent on its supplier(s) and third parties for this. Premium Plus is entitled to not install certain updates or patches if, in its opinion, the operation of the software does not benefit from this or if it is not in the interest of the Service.
- 10.8 If, in the opinion of Premium Plus, a change or adjustment requested by the Client may negatively affect the functioning or the security of the software, Premium Plus will report this to the Client via an electronic message. If the Client nevertheless insists on pursuing the change or adjustment, Premium Plus can implement these at the sole risk of the Client and without any liability for Premium Plus to be withheld.
- 10.9 If the Client wishes to make a change to the software himself, this will take place entirely at the Client’s own risk and responsibility, unless the Client has notified the desired change in advance to Premium Plus and Premium Plus has expressly approved this (via an electronic message). Premium Plus may associate conditions to this approval.
Article 11. Intellectual property rights
- 11.1 All intellectual property rights to all materials, software, analyzes, designs, documentation, advice, reports, quotations, as well as preparatory material thereof developed or made available within the framework of the Service are exclusively vested in Premium Plus or its Service Providers/suppliers. Source codes will not be transferred at any time, unless explicitly agreed otherwise by means of an electronic message.
- 11.2 The Client will only acquire the rights of use and powers that are explicitly stipulated in the Agreement and otherwise the Client will not multiply, transfer, publish or make available to third parties the software or other materials in any way whatsoever.
- 11.3 The Client is not permitted to remove or change any designation concerning copyrights, brands, trade names or other intellectual property rights from the materials, including indications concerning the confidential nature and secrecy of the materials.
- 11.4 Premium Plus is allowed to take technical measures to secure the materials. If Premium Plus has secured the materials by means of technical protection, the Client is not permitted to remove or circumvent this security.
- 11.5 Any use, reproduction or disclosure of the materials that falls outside the scope of the Agreement is considered to be a violation of copyright. The Client shall pay an immediately due and payable penalty of 5,000 euros per infringing action to Premium Plus without prejudice to the right of Premium Plus to have its damage fully compensated or to take other measures in order to terminate the infringement.
Article 12. Availability of systems
- 12.1 If the Service is (partly) delivered via systems and/or networks of Premium Plus, Premium Plus will endeavour to ensure the availability of these systems and networks, and to allow access to data stored by Premium Plus, subject to the provisions stated in Article 16. This concerns a mere obligation of means in respect of Premium Plus, which does not have to guarantee uninterrupted availability.
Article 13. Service Level Agreement
- 13.1 The Client has the choice of several Service Level Agreements that may or may not be delivered against payment.
- 13.2 Whatever is stipulated in Articles 14, 15 and 16 regarding confidentiality, liability and force majeure applies to the Service Level Agreement services.
Article 14. Confidentiality
- 14.1 The Parties shall treat information that they provide to each other before, during or after the execution of the Agreement confidentiality when this information is marked as confidential or when the receiving party knows or can reasonably suspect that the information was intended to be confidential. Parties also impose this obligation on their employees as well as on third parties engaged by them in preparation for or in the execution of the Agreement.
- 14.2 In addition to what is required in the context of the Agreement, Premium Plus will not take cognizance of data that the Client has made available to Premium Plus in any way whatsoever, nor will Premium Plus use this information outside the framework of the Agreement in any way whatsoever, unless this is required for the proper execution of the Agreement or if Premium Plus is obliged to do so by virtue of a statutory provision or court order.
- 14.3 This obligation also continues after termination of the Agreement for whichever reason, and for as long as the providing party can reasonably claim the confidential nature of the information in question.
Article 15. Liability
- 15.1 Premium Plus is not liable:
- For damage incurred by the Client or third parties as a result of the provision of incorrect or incomplete data or information by or on behalf of the Client to Premium Plus, or otherwise resulting from an act or omission by or on behalf of the Client;
- For damage incurred by the Client or third parties for which the Client has insured itself;
- In the event of damage caused by incorrect or improper use by the Client or its employees/assistants of the service provided by Premium Plus.
- 15.2 The Client is obliged to consult Premium Plus in case of damage in order to reach an amicable arrangement or mediation, before proceeding to liability. In that case, Premium Plus must be given the opportunity to repair or limit the damage within a reasonable period of time.
- 15.3 The total liability of Premium Plus due to attributable shortcoming in the fulfillment of the Agreement is limited to what a possible liability insurance of Premium Plus pays in a given case (possibly to be increased by a excess, if applicable). If a claim is not covered by a liability insurance, but it has irrevocably been established that Premium Plus is nonetheless liable, the liability is limited to the compensation of the direct damages up to the amount of the price stipulated for that Agreement (excl. TVA). If the Agreement is mainly a continuing performance contract with a duration of more than three months, the price stipulated for the agreement is set at the total of the fees (excl. VAT) for the last three months.
Direct damage means:
- The necessary costs for determining the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these terms & conditions;
- The necessary costs incurred to have the defective performance comply with the Agreement, unless these cannot be attributed to Premium Plus;
- The necessary costs incurred to prevent or limit damage, insofar as the Client demonstrates that these costs have led to the prevention or limitation of direct damage as referred to in these Terms & Conditions.
When exposing these costs, the Client must at all times proceed to limit damage and costs, and always act in consultation with Premium Plus.
- 15.4 Premium Plus’s liability for indirect damage including (but not limited to) consequential loss, loss of profit, missed savings, loss of goodwill, damage due to business stagnation, damage due to third-party claims, mutilation or loss of other materials, damage related to the engagement of third parties and all other forms of damage referred to in this paragraph, is excluded.
- 15.5 The limitations of liability mentioned in this article will lapse if and insofar as damage is the result of malicious intent or deliberate recklessness by Premium Plus.
- 15.6 Liability of Premium Plus due to imputable shortcoming in the fulfillment of an Agreement arises in all cases only if the Client immediately gives Premium Plus notice of default, in which case a reasonable period of time is granted to Premium Plus, and if Premium Plus after that term continues to not fulfill its obligations. The notice of default must contain as complete and detailed a description of the shortcoming as possible, allowing Premium Plus to respond adequately.
- 15.7 Any claim for damages against Premium Plus expires by the mere lapse of 4 (four) weeks after the damage occurred.
- 15.8 Premium Plus is not liable for damage to or defects in the delivered service/product, if this relates to work, errors or other of the Client or a third party.
- 15.9 Without prejudice to the foregoing, Premium Plus is not liable for the consequences of events at the Client on which Premium Plus cannot exert influence, including (but not limited to) external causes such as hacking.
- 15.10 The Client indemnifies Premium Plus against all third-party claims due to liability as a result of a defect in a product or a system supplied by the Client to a third party and which also consisted of items, materials or results delivered by Premium Plus, except if and insofar as the Client proves that the damage was caused exclusively by said items, materials or results.
- 15.11 Premium Plus is not liable for (the consequences of) printing or typing errors in manuals, in instructions for use, images, etcetera.
- 15.12 If Premium Plus makes Zendesk licenses available to the Client, the Terms and Conditions of Zendesk will also apply. More info at https://www.zendesk.com/company/terms/
Article 16. Malfunctions and force majeure
- 16.1 At all times, Premium Plus has the right to put the Service or parts thereof temporarily out of use for the purpose of maintenance, updates or improvements. Premium Plus will endeavour to have such a decommissioning take place outside of office hours as much as possible and, as far as possible, inform the Client in due time of the planned decommissioning. Premium Plus is never liable for compensation for damage in connection with such decommissioning.
- 16.2 If an adjustment leads to a significant change in the functionality, Premium Plus will endeavour to inform the Client thereof. In case of adjustments that are relevant to several Clients, it is not possible to waive a specific adjustment for the Client alone. Premium Plus is not obliged to pay any compensation for damage caused by such adjustment.
- 16.3 Premium Plus will endeavour to inform the Client of the nature and the expected duration of the interruption in case of non-availability of the Service due to malfunctions, maintenance or other causes.
- 16.4 In the event of force majeure, including in any case but not limited to interference or failure of the internet, the telecommunications infrastructure, power failures, internal disturbances, mobilization, war, traffic jam, strike, exclusion, company disturbance, stagnation in delivery, fire, flood, import and export barriers and in the event that Premium Plus is not enabled by its own suppliers, irrespective of the reason, to deliver, the execution of the Agreement will be suspended, or the Agreement will be terminated when the force majeure situation lasts longer than ninety (90) days, all without any obligation for compensation payment by Premium Plus.
Article 17. Staff
- 17.1 The Client shall provide employees of Premium Plus who perform work for the delivery of products and/or services at the offices of the Client with all the necessary support for the performance of their work.
- 17.2 As long as the relationship between the Client and Premium Plus lasts, as well as one year after the end thereof, the Client is not permitted to employ employees of Premium Plus or otherwise, directly or indirectly, to haven them work for them, without prior express permission of Premium Plus. In this context, employees of Premium Plus are understood to mean persons who are employed by Premium Plus or one of the companies affiliated with Premium Plus or who have been out of service with Premium Plus for less than six (6) months or from one of the Premium Plus affiliates.
Article 18. Duration and cancellation
- 18.1 If the Service extends to the provision of licenses (Zendesk, Freshbooks, Teamwork, …) for a certain period, including on a subscription basis as well, the Agreement shall be deemed to have been entered into for a minimum period of twelve (12) months and it must be cancelled by registered letter with acknowledgment of receipt no later than two (2) months before the expiry of the end date. In the absence of a timely and legitimate cancellation, the Agreement will be extended tacitly for a period of one (1) year.
- 18.2 If the Service extends to the development of software or other works, the Agreement shall be deemed to have been entered into for the duration specified in the Agreement or until the work has been developed and accepted. Unless agreed otherwise, the Agreement cannot be cancelled prematurely.
- 18.3 Upon cancellation, termination or dissolution for any reason whatsoever, Premium Plus is entitled to immediately delete the stored data or make it inaccessible and to cancel all Client’s accounts as soon as the Agreement terminates. Premium Plus is not obliged to provide the Client with a copy of this data.
- 18.4 Periods specified by Premium Plus in the Agreement, including delivery, always have a purely indicative non-binding effect, unless explicitly stated by Premium Plus as it being a final deadline. Premium Plus is, in the event of an agreed final deadline too, in default after the Client has given notice of default by registered letter with acknowledgment of receipt giving Premium Plus a reasonable period of time to do the necessary, and Premium Plus fails to do so.
- 18.5 The exceeding, for whatever reason, of agreed delivery times does not give entitlement to compensation, unless expressly agreed otherwise.
- 18.6 If the Client fails to fulfill any of its obligations under the Agreement or as a result thereof, Premium Plus shall be entitled to suspend the execution of all Agreements concluded with the Client concerned without prior notice of default or judicial intervention being required and without prejudice to Premium Plus’s right to full compensation for damage, lost profits and interest.
Article 19. Final provisions
- 19.1 Belgian law applies to these Terms and Conditions and the resulting Agreements and they must be interpreted in accordance with Belgian law.
- 19.2 Insofar as the rules of mandatory law do not prescribe otherwise, all disputes that may arise shall exclusively be settled by the court of the district of the registered office of Premium Plus.
- 19.3 If any provision proves to be invalid, this does not affect the validity of the other provisions. The parties will in that case determine (a) new provision(s) as a replacement, with which the intention of the original Agreement and Terms and Conditions is given shape as much as possible.
- 19.4 Information and announcements on the Premium Plus website are subject to programming and typing errors. In the event of any inconsistency between the website, the Terms and Conditions and the Agreement, the Agreement always prevails.
- 19.5 The version of any communication received or saved by Premium Plus is deemed to be authentic, subject to proof of the contrary to be provided by the Client.
- 19.6 Parties shall always inform each other via electronic notification of any changes in name, postal address, email address, telephone number and bank account number or giro number.