General terms and conditions
Applicable as from 1 March 2015
1. GENERAL PART
Article 1 - Scope
1.1 These General Terms and Conditions apply to any agreement that Intracto Group nv (Intracto) – which has its registered office at Zavelheide 15, 2200 Herentals, and which is registered at the Crossroads Bank for Enterprises with number RPL Antwerp 0861.085.232 – including all its branches, concludes with its clients for service provision.
1.2 The client expressly accepts that he, she or it has taken due note of the contents of these General Terms and Conditions, as these can be consulted on the Intracto website (www.intracto.com), and thereby accepts that he, she or it is bound by his, her or its contractual relationship with Intracto, to the exclusion of any other (General) Terms and Conditions, such as the client's own purchasing or invoicing terms and conditions.
1.3 These General Terms and Conditions consist of a General Part, which applies to every agreement, and to a Specific Part which, depending on the type of services provided by Intracto, can apply additionally to (parts of) the agreement between the client and Intracto. If there is any contradiction between the terms and conditions provided in the Specific Part and those from the General Part, the former shall prevail.
Article 2 – Amendment to the General Terms and Conditions
2.1 Intracto expressly reserves the right to amend these General Terms and Conditions from time to time and to subsequently make them available on its website at www.intracto.com, whereby Intracto shall always indicate when the amended General Terms and Conditions take effect by referring to a date. At the earliest, the date of effectuation can be the date on which the amended General Terms and Conditions are put on the Intracto website.
2.2 The client is presumed to agree with the amended General Terms and Conditions if he, she or it has not objected to the effectuation of the amended General Terms and Conditions within 30 days after the date on which they took effect. In the event of objection, the previous version of the General Terms and Conditions continues to apply to the contractual relationship between said client and Intracto but Intracto has the option of immediately putting a stop to the collaboration with the client within 30 days after it has received the client's objection, with the right to invoice the services already provided at that point in time and without owing the client any compensation for damages.
Article 3 - Formation of the agreement
3.1 An agreement between Intracto and the client is formed when the client has accepted a price quotation drawn up by Intracto, by signing it or confirming by email, for example. The offer to contract and the specific conditions for this purpose stated in the price quotation are only valid and can only be accepted within the period provided in the price quotation, failing which, in any event, within 60 days after Intracto has transmitted the price quotation to the client.
3.2 Any amendment which the client were to propose or were to request to be made to a price quotation issued by Intracto must be regarded as a waiver of the price quotation and as a new offer to contract issued by the client. Such offer to contract shall only lead to a contractually binding agreement for Intracto if it has expressly accepted it.
3.3 If Intracto were not to offer the client a price quotation to provide certain services, the agreement is formed at the moment at which Intracto commences the works at the client's request.
Article 4 - Execution of the agreement
4.1 Any obligation that Intracto undertakes vis-à-vis the client concerns an obligation to perform to the best of its ability, unless there is a written agreement to the contrary. If Intracto has agreed to provide certain services to the client within a deadline, then this is not binding for Intracto, yet it shall do its utmost to provide the agreed services within said deadline.
4.2 Unless there is an agreement to the contrary, Intracto's services are paid for at a fixed hourly rate per category of employees deployed. Services for a Project Manager or (Strategic) Consultant are paid at EUR 105 per hour (excluding VAT) and services for other employees are paid at EUR 85 per hour (excluding VAT). Intracto reserves the right to charge a supplement for services requested to be provided outside normal office hours (before 8 a.m. or after 7 p.m.), at the weekend, on public holidays or in cases of particular urgency.
Article 5 – Duration and termination of the agreement
5.1 Unless there were to be a written agreement to the contrary between Intracto and the client, any agreement which Intracto and the client conclude has an initial duration of one year. The agreement is automatically renewed for a new period of one year unless Intracto or the client terminates the agreement three months before the end of the initial period or one year. The same rules subsequently apply for further renewals for periods of one year.
5.2 Any agreement which Intracto and the client include is terminated ipso jure in the case of the other party's bankruptcy.
5.3 Intracto has the right to terminate the agreement in accordance with Article 9.4 of these General Terms and Conditions if its invoices are not paid.
Article 6 – Liability restriction
6.1 Subject to a wilful or serious error on its part, Intracto is not liable for any error or negligence in executing agreements with the client.
The client is the sole person responsible for providing its own information correctly and in good time, and it indemnifies Intracto against third-party claims arising from the client's use of the services provided by Intracto and/or from the client's non-compliance with any obligation arising from the agreement between Intracto and the client. This indemnification obligation also continues to apply after the agreement is terminated.
6.2 Intracto shall only be liable vis-à-vis the client for the actual and proven damage arising from obligations for the services provided, to the exclusion of any other implicit or unwritten obligations.
6.3 Intracto is in no case whatsoever liable for indirect damage to the client such as, but not restricted to, loss of turnover or profit, loss of customers or clients, loss of market value and reputation, loss of information and data, etc.
6.4 In any event, Intracto's liability is restricted to the amount equal to the value of the invoices for the last three months, excluding VAT. This restriction applies per case of damage or per series of cases of damage arising from the same cause but shall in any event not exceed the limits of the liability insurance taken out by Intracto, which is (in the amount of )EUR 2,500,000.
6.5 Intracto shall not be liable if it is prevented from fulfilling its obligations in the event of force majeure. Force majeure is understood to mean matters such as, although not exclusively: social conflicts, power network failures (including black-outs), telecommunication network failures, unavailability of social media web hosts, etc.
6.6 Any of the client's legal claims against Intracto, including claims for compensation for damages, lapse one year after the respective claim arose.
Article 7: Intellectual property rights
7.1 All intellectual property rights regarding the services which Intracto provides to the client, such as drafts, design, texts, lay-out, software, source codes, programs, documentation and any other matters that are developed and/or used by Intracto in executing the agreement with the client or that are pursuant thereto, accrue exclusively to Intracto or to a supplier with whom Intracto has made an arrangement in this regard.
7.2 The client acknowledges that Intracto's service delivery does not entail any transfer of any intellectual property rights, unless there were to be a prior written agreement to the contrary. The client acknowledges that it only obtains a non-exclusive and non-transferable user's right regarding objects created by way of the services for the objectives arising from the agreement with Intracto. The client shall adhere strictly to the terms and conditions as Intracto communicates these to him, her or it, where appropriate.
7.3 Intracto guarantees the client that it is entitled to grant this user's right and fully indemnifies the client against any claims which third parties might enforce against the client in this regard.
7.4 Subject to Intracto's prior written permission, the client undertakes to refrain from fully or partly divulging, making available to a third party or in any manner reproducing or commercialising, objects that were created by way of providing services in which intellectual property rights are vested.
Article 8 – Processing personal data
8.1 The client may make personal data (e.g. email lists) available to Intracto within the scope of the services which Intracto provides to the client, which data are protected in accordance with the Law of 8 December 1992 on the Protection of Privacy in relation to the Processing of Personal Data (or similar foreign legislation). The client acknowledges that it is the sole person responsible for processing these personal data in the sense referred to in this Law and that he, she or it shall indemnify Intracto for any claims which the person in question were to lodge against Intracto or for any sanctions which any government authority were imposed on Intracto regarding the personal data processed by the client.
8.2 Intracto expressly undertakes to keep strictly confidential the personal data which the client were to make available to it to provide its services, and to take the greatest care that these are stored safely. Intracto shall also not use the personal data made available by the client in any other way whatsoever.
Article 9 – Payment terms and conditions
9.1 Unless there was an agreement to the contrary, invoices are payable within 30 days after invoice date. Invoices are sent to the client electronically but can also be transmitted by post if such request is made.
9.2 If the client does not communicate its contestation regarding an invoice to Intracto within 7 working days after it was sent, he, she or it irrevocably and fully accepts the invoice and the amounts and provided services stated therein.
9.3 If the invoice has not been paid on the due date, the client owes delayed payment interest at the interest rate provided by the Minister for Finance in implementation of Article 5 of the Law of 2 August 2002 on combating late payment in commercial transactions, ipso jure and without notice of default. In such a case the client also owes a fixed amount of 10% of the invoice amount, with a minimum of EUR 50 as compensation for damages.
9.4 All invoices, including those for which the due date has not yet been reached, become immediately due and payable from the moment that one invoice is not paid on the due date. In the case where an invoice is not paid on the due date, Intracto is also entitled to suspend performing all its services until all due and payable invoices have been paid and, where appropriate, it can immediately terminate the agreement without owing any compensation for damages to the client if the late payment continues for more than 30 days.
Article 10 - Non-exclusivity and non-poaching
10.1 Unless there is an agreement to the contrary between Intracto and the client, the fact that Intracto and the client conclude an agreement does not signify that Intracto is allowed to provide the client exclusively with services within the client's field of activity. The client expressly acknowledges that Intracto is at liberty to provide services to the client's competitors (even direct competitors). Where appropriate and before concluding an agreement with Intracto, the client is exclusively responsible to check whether Intracto also provides services to competitors to be identified by the client.
Article 11 – Agreement transfer
The client is not allowed to either fully or partially transfer its contractual obligations vis-à-vis Intracto to a third person without Intracto's prior permission.
Article 12 – Nullity of a proviso
If one or more provisions of these General Terms and Conditions were to be null and void, this does not prejudice the other provisions of the General Terms and Conditions, which remain in full force.
Article 13 – No waiver
If Intracto were not to immediately invoke one or more of the optional remedies which these General Terms and Conditions or the applicable legislation were to offer it, this does not mean that it waives such option.
Article 14 – Notifications
14.1 Any notification or communication provided for in these General Terms and Conditions can be validly served in writing (e.g. by ordinary or certified post, by fax or by means of a carrier) or electronically by email. Notifications for Intracto can be served validly by email if they are sent to email@example.com. Notifications to any other email address (such as an Intracto employee) are only valid to the extent that the recipient has expressly acknowledged receipt thereof. Notifications for the client can be made validly by email if they are sent to the email address which the client has communicated to Intracto for this purpose or by way of the email address which Intracto normally uses for its contacts with the client.
14.2 The client undertakes to always immediately notify Intracto of any change of name, legal form, postal address, email address and the like. Intracto can validly serve notifications at the client's previous data known to Intracto as long as there has not been any such notification.
Article 15 – Applicable law and competent Courts
15.1 The contractual relationship between Intracto and the client is exclusively governed by Belgian law.
15.2 The Tribunals and Courts of the Judicial Area in which the registered office of Intracto is located have exclusive jurisdiction to pronounce judgement regarding any dispute relating to the contractual relationship between Intracto and the client.
2. SPECIFIC PART
A. Website development, management and maintenance
Article 16 – Liability
16.1 The client recognises that Intracto must rely on an external hosting services provider to host websites developed by it or for websites which the client introduces and which were developed by third parties. Intracto is not liable for any hosting unavailability or any other error or negligence by said external provider, as a result of which the client's website becomes unavailable or might no longer function, or which would cause the client to suffer any damage.
However, Intracto does transfer any right to indemnification which it might have against the external provider to the client, which means that, where appropriate, the client can hold the external provider directly to account. At the client's request, Intracto informs him, her or it of the terms and conditions applicable to the services provided by the external provider.
16.2 At the client's request, Intracto can take over the management of the website that was developed by a third party. In that case, Intracto is not liable for any errors (e.g. programming errors) which said third party made in developing such website, and which were to lead to defective website functioning during the management performed by Intracto (e.g. loss of data, security leaks and error messages).
16.3 At the client's request, Intracto can link a web project to an existing system belonging to a third party (e.g. an ERP – Enterprise Resource Planning – or stock management system). Intracto undertakes to make this link at the moment at which the project is delivered, on condition that it has adequate information at its disposal to secure said link.
Intracto shall not be liable if, at a later point in time, the link between the web project and the third party's system does not function properly due to a change to this system, of which it was not notified in good time. In any event, Intracto shall not be liable if the web project cannot function because the third party's system is unavailable for any reason whatsoever.
16.4 Intracto shall comply with the standards of good practice when developing websites in order to provide the necessary safety measures. Intracto shall not be liable if the website is nevertheless unavailable or were to stop functioning due to (an attempt at) hacking. The client recognises that, where appropriate, he, she or it must take out insurance to cover the harmful consequences which such (criminal) incidents were to cause to its business processes, managed client, personal and other data.
B. Marketing and media
Article 17 - Confidentiality
17.1 Besides what was already been provided in the General Part regarding keeping personal data confidential, Intracto undertakes to keep strictly confidential the confidential information which it were to receive from its client regarding said client's vital business processes and strategies. The client undertakes to clearly inform Intracto when the information which it communicates to Intracto constitutes such confidential information, which must be treated with particular care.
17.2 In addition, if Intracto were also to act for one of the client's competitors, Intracto shall ensure that – to the greatest extent possible – other persons work for both clients.
Article 18 - Liability
18.1 At the client's request, Intracto can manage the client's presence on social media (e.g. Twitter and Facebook) by putting messages on them according to agreed arrangements. The client recognises that, in this regard, Intracto depends on the conditions and availability of such social media, for which it cannot bear any responsibility whatsoever.
Intracto places such messages with the greatest diligence and care but is not liable for any consequences of (briefly) incorrectly placed messages, such as damage to image or third-party claims.
18.2 Intracto does its utmost to perform with the greatest diligence and care the assignments which it performs and organises for the client within the scope of e-commerce or email assignments. However, Intracto is not liable for any consequences or any possible errors made or negligence in performing said assignments.
Article 19 - Advance payment
19.1 At the client's request, Intracto can raise its online visibility by purchasing media space from various servers (e.g. through Google Advertisements). In derogation from the normal payment rules, the client undertakes to fully pay the estimate which is made available to Intracto for providing these services in advance, in view of the fact that Intracto must pay said media space to various servers immediately.
Previous general terms and conditions (until 28 February 2015)