General terms and conditions
General terms and conditions
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General terms and conditions
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1.1. These general terms and conditions apply exclusively to all professional and contractual relationships, every quote, order, invoice, transaction and/or any agreement between the professional and the client (hereinafter also referred to as “Party” or “Parties”), including the assignment letter or assignment letters and the general or special terms and conditions included therein, or any other applicable terms and conditions (hereinafter collectively referred to as the “Agreement”) and irrespective of which company within the PIA Group the professional carries out or organises his work. These general terms and conditions form an integral part of the Agreement. The client confirms by signing or accepting the Agreement and accepting these general terms and conditions or any other contract documents that each user is authorized by him to validly accept in the aforementioned sense on behalf of the client (if applicable). 1.2. These terms and conditions are an integral part of the Agreement. In the event of contradiction between the content of these general terms and conditions and the Agreement, the Agreement shall prevail. 1.3. In accordance with common law, the liability of the professional can only be invoked for assignments that can be proven to have been accepted by him. 1.4. The client acknowledges and accepts that the Agreement and the rights and obligations provided for within it may be transferred by the professional to another (legal) person, entity or company. It is up to the professional to organise his activities from the company that he deems most appropriate for this purpose. In the event that the Agreement with the client also relates, directly or indirectly, to other companies affiliated with the client within the meaning of Article 1:20 CCA, these affiliated companies shall also be bound by the provisions of the Agreement and the client shall undertake to ensure compliance by these affiliated companies with the Agreement. If the professional concludes an Agreement with more than one person or legal entity, “client” shall include all persons or legal entities and they shall be jointly and severally liable to the professional. A reference to the “client” also implies a reference to all his legal successors. 1.5. The client acknowledges and accepts that the application of his own general or special (invoice) terms and conditions, if any, is expressly excluded. 1.6. These general terms and conditions were last amended on the (version) date indicated on this document. The professional expressly reserves the right to unilaterally modify or update the provisions of the general terms and conditions. Adjusted, updated or new versions of these general terms and conditions will always be brought to the client's attention by any means the professional deems appropriate, such as, in particular but not limited to, a notification via a mention of the changes on the client's invoice or a notification via the services where they can be accepted digitally by the client or a user of the latter. By signing or accepting the Agreement and accepting the general terms and conditions or any other contract documents, the client confirms that any user of the client is authorized by him to validly accept future amendments in the aforementioned sense on behalf of the client. However, the following shall not be considered as modifications to the provisions of the Agreement: modifications to the contractual conditions pursuant to a decision, ruling or obligation taken or imposed by Belgian, European regulatory or judicial authorities or by a Belgian or European law or regulation which imposes such modifications in a mandatory manner. In the event that such a decision, ruling, obligation, law or regulation materially aggravates or renders impossible the contractual obligations on the part of the professional, the professional shall be entitled to terminate the assignment(s) or services in question with immediate effect upon mere notice, without owing the client any severance or termination indemnity.
2.1. Recurring work: ‘Recurring work’ shall mean the assignments consisting of successive performances of the same nature that must be performed at certain deadlines that are known in advance. Unless a period is stated in the Agreement, the Agreement for recurring assignments is deemed to have been concluded for an indefinite period. Either party may, if necessary, terminate the Agreement at any time as provided in the Agreement and under the following conditions: (i) the termination must be notified to the other party by registered letter; (ii) a notice period of three months must be observed. The period of notice shall commence on the third day of the month following the date of posting of the registered letter. If a party fails to respect the notice period as stipulated in the Agreement, the party in question shall pay a termination fee corresponding to the fees due for the duration of the notice period. The termination fee shall be calculated pro rata on the basis of (i) twelve (12) months' fees or (ii) three (3) months' lump sum of either the last calendar year or the average of the last three calendar years. The foregoing is without prejudice to what is provided below in case the monthly advances / lump sums prove to be insufficient, without prejudice to compensation for services provided following or after the termination of the Agreement, including transfer(s) of documents, books and records to another professional. The provisions of the Agreement and these General Terms and Conditions shall remain in full force during the notice period. A separate agreement can be concluded for services to be provided as a result of or after the termination of the Agreement, but which relate to the period in which the Agreement was still in force. If a monthly advance / lump sum, as specified in the Agreement, has been agreed upon between the parties, which the client acknowledges and confirms is based on the usual recurring Assignments to be carried out under the Agreement, both during the fiscal year consisting of twelve months, and after its expiration for the purpose of closing this fiscal year, the professional, each time at the closing of the preceding fiscal year or at the time of the termination of the assignments or the Agreement, regardless of the party terminating and regardless of the reason or manner of termination, the aforementioned monthly advances / lump sums prove to be insufficient for the assignments effectively carried out as stipulated in the Agreement, shall be entitled to draw up a final invoice and additionally invoice the difference for the period concerned to the client at an hourly rate (on a directional basis) as further stipulated in the Agreement. The professional will include in this final invoice a detail of the (additional) assignments delivered that give rise to this final invoice. 2.2. Non-recurring work: Non-recurring work shall mean the assignments that do not fall under the definition given in Article 2.1 above. Unless proven otherwise or provided otherwise in the Agreement, the Agreement relating to a non-recurring work is deemed to be concluded for a fixed term. It ends after the execution of the assignment and, if this is applicable given the nature of the assignment, with the delivery of the agreed performances. In application of art. 1794 of the Old Civil Code, and if applicable, in deviation from art. 2004 of the Old Civil Code, the client has the right to terminate the Agreement early at the expiry of the non-recurring work. The client must terminate the Agreement early, if necessary, by means of a registered letter, which will take effect on the third day following the postmarked date of the registered letter. In that case, the professional is entitled to payment of the fees and expenses related to the work already carried out, increased by a lump-sum compensation that is equal to the fees and expenses still due for the assignments to be carried out.
In the event of non-compliance, incorrect or late performance of his obligation(s )by the client, for example in the event of non-payment of fees, remunerations, costs or lump sums in accordance with Article 5 below, the professional is entitled to suspend the performance of his obligations with immediate effect (unless the client is a consumer, in which case the suspension is only possible in accordance with Article 5.2 below), without prior notice and without any right to compensation on the part of the client. The professional shall inform the client in writing. If, legal actions for which the professional was instructed need to be taken urgently and necessarily after the start of the suspension or postponement of the execution in order to safeguard the client's rights, the professional shall inform the client accordingly. The professional may demand securities or guarantees from the client for the proper execution of all his obligations (the cost related to the establishment of these securities or guarantees are always at the client’s expense). The professional reserves the right to terminate the Agreement in case of refusal by the client to provide the requested guarantees, in accordance with Article 2.3 above. The performances of the professional shall remain suspended for as long as the client fails to perform his obligations, unless the Parties agree otherwise. In such a case, the professional cannot be held liable for any adverse consequences or damage (direct or indirect) that the client or third parties would suffer as a result of the suspension of his services. All costs and expenses arising from the suspension or postponement shall be borne by the client. The professional shall in all circumstances be entitled to payment of the fees and expenses relating to the work already carried out. The suspension in the sense of this article does not affect the right of the professional to immediately terminate the Agreement in accordance with Article 2.3 above.
4.1. Confidentiality: All information, files and data, regardless of the nature and mode of communication, both oral and in writing or made available on a durable medium (analog or digital) and including business information, financial information and/or technical information know-how, trade secrets, business plans, information related to strategies, projections, fees, intellectual property rights, inventions or other creations, processes, software, personal data, client data, etc., as well as well as any other information, data and details about a Party or relating to a Party or its business, including confidential information relating to (the conclusion, performance and/or termination of) the Agreement, transmitted by either party in the context of the Agreement is and shall remain strictly confidential, and shall not be passed on to third parties without the written consent of the other party. The aforementioned confidentiality obligation for the Parties shall apply both during the term of the Agreement and for at least a period of ten (10) years after its termination. Confidential information may only be disclosed under the Agreement to personnel, appointees and/or subcontractors of either Party who are reasonably believed to need access to such information for the purpose of executing the Agreement. All documents realized by a Party or entrusted to the other Party with respect to the Agreement or assignment(s) shall be and remain the exclusive property of such Party. The other Party may only make a copy of these documents for use solely in connection with the Agreement. The party in question may demand the return of the documents and data at any time. In any event, the documents and data shall be returned to that party no later than one (1) month after termination of the Agreement, in any manner or for any reason. Without prejudice to the confidentiality obligations in this Article 4.1, the professional shall be entitled to mention the (company of the) client as a reference. However, the professional shall always seek the client's prior consent for any mention of the client in connection with marketing or publicity. 4.2. Rights and obligations of the professional: The professional shall carry out the assignments and services with due care and in complete independence. Unless expressly agreed otherwise, the professional does not undertake to fulfil any of the client's legal or contractual obligations or to assume any responsibility for the client's activities or transactions. The obligations of the professional are a best-effort obligation. He shall ensure that the assignments and services performed are in accordance with deontological and other applicable professional standards of the Institute, taking into account the applicable relevant legislation and regulations in force at the time of performance of the Agreement. The client and/or his appointee(s) are responsible for the accuracy and completeness of the documents and/or information provided by them. The professional is not obliged to verify the accuracy and completeness of the information provided by the client and/or his appointee(s), nor the reliability of the documents, deeds, contracts, inventories, invoices and supporting documents of all kinds that are entrusted to him or presented to him by the client as evidence, or as documents to be used as evidence. Unless expressly agreed otherwise, the performance of the professional's assignment(s) is not specifically aimed at discovering or checking for fraud, forgery or other crimes, unlawful acts or illegalities. All documents or information supplied by the client shall be deemed to be complete and accurate. The professional may be assisted by employees or experts of his choice and may have the assignments resulting from the Agreement carried out in whole or in part by (an) appointee(s) or expert(s), in which case the professional is entitled to make the information and documents he has received from the client available to this appointee(s) or third party expert(s). The professional, as well as his authorised representative(s) or appointee(s), shall be bound by professional secrecy, subject, however, to the application of the provisions of the legislation and regulations for preventing the use of the financial system for money laundering and the financing of terrorism.
5.1. Determination of fees and costs: The fees and costs shall be determined in the Agreement in accordance with the statutory and regulatory provisions applicable to the professional, without prejudice to the provisions of these General Terms and Conditions, which form an integral part of the Agreement. All fees are always exclusive of VAT and any other government levies, of whatever nature, including new taxes, duties or levies introduced after the conclusion of the Agreement, which are always fully borne by the client. Fees and costs shall become due as the work is performed for the client, even if the assignment is not necessarily terminated. The professional shall periodically charge advanced costs and costs to be passed on that are generally fully borne by the client, to the client as the work progresses and in accordance with the applicable fiscal legislation, by means of an invoice. The professional may request one or more advance payments, without prejudice to the charging of possible fixed fees. These advances (other than flat rates) shall be settled in the final statement of expenses and fees. The professional is entitled to charge additional fees in the case of events beyond his control (including any act or omission by the client) that affect his ability to carry out the services as originally planned or agreed, or if the client requires additional work from the professional, all without prejudice to the provisions of Article 2.2 above regarding recurring assignments. Finally, the professional is entitled to adjust his fees as a function of the complexity and scope of the assignment, the special qualifications of the professional and the general costs of his business. Furthermore, the fees, lump sums, allowances and tariffs are automatically indexed to the health index or the consumer price index, or any other applicable price index at least once a year and as stipulated in the Agreement, using the usual formulas. The fees, lump sums, allowances and tariffs will be automatically adapted to the index without prior notice. Regardless of the circumstances, the amounts after indexation may never be lower than the previously indexed amounts and/or the amount applicable on the starting date of the Agreement. If the calculation basis of the health index or consumer price index or any other applicable price index is modified or ceases to exist, the basic amount will be adapted according to the conversion rate as described in the Belgian Official Gazette, or according to any other system that would replace the health index or consumer price index, or any other applicable price index. If such a system no longer exists, the basic amount will be adjusted on the basis of the increase in the cost of living. However, the adjusted amounts will never be lower than the indexed amounts. Finally, the non-payment of indexations cannot be considered as a waiver of rights on the part of the professional. The latter reserves the right to retroactively claim the adjustments resulting from the indexation at any time if, regardless of the anniversary or periodicity, these have not been paid by the Client. Any further conditions, modalities and agreements on the fees, costs, rates and lump sums are determined in the Agreement.
6.1. Limitation(s) of liability: The liability of the professional is always strictly limited to the tasks and obligations defined in the Agreement. The liability of the professional shall, within the legal limits, and without prejudice to the provisions contained herein, be governed exclusively by the rules of contract law and contractual liability (i.e., Book 5 Civil Code), even when the fact or event causing liability also constitutes a tort. Consequently, the professional cannot be held extra-contractually liable in application of Article 6.3 Civil Code. The professional shall not be liable for corporate and/or other damage to company property, or for direct or indirect damage incurred through the use of the services provided, and in particular loss of data, disassembly and/or decompilation of data, loss of business time or financial loss, recovery costs, loss of goodwill, reputational damage, loss of customers, savings, loss of profits or lack of profit improvement, costs for backup, data recovery procedures and reversion to manual procedures. Except in cases of fraud or intent, any liability of the professional for loss, damage (direct or indirect), costs or expenses arising in connection with the performance of the Agreement shall, in any case, be limited to the amount of the fees and expenses received by the professional from the client in connection with the Agreement. Under no circumstances can any performing agent or assistant of the professional (including, without limitation, any staff member, director (including his permanent representative, if any), shareholder, service provider, (self-employed) employee or appointee of the professional) be held directly or in solidarity with the professional in liability for the assignments and obligations set forth in the Agreement. Moreover, damages resulting from the act or omission to act by such performing agent or assistant, within the legal limits, shall only constitute grounds for a contractual liability claim against the professional in accordance with the provisions of the Agreement and not grounds for an extra-contractual liability claim against the aforementioned persons, even if the event giving rise to the damages also constitutes a tort. The client furthermore undertakes to stipulate with respect to its own client(s) the obligation to (i) also waive Article 6.3 of the Civil Code and (ii) also stipulate this waiver with respect to its own client(s). If the client has not stipulated such a waiver, the client will be obliged to fully indemnify the professional against any extra-contractual claim. The client undertakes and accepts that he may only pursue any liability claims against the professional arising from this Agreement by issuing a registered notice of default with a motivated description of the alleged fault, and this within a period of one (1) month from the day the client discovers, or should have discovered, the fault of the professional (after which the right to damages against the professional lapses irrevocably). If the professional is liable to the client (or to others for whom services are provided) on the basis of the Agreement, or otherwise in connection with the services, for damage to which other persons have also contributed, the professional shall not be jointly and severally liable for this. In that case, the liability of the professional shall always be limited to that part of the total damage that can be attributed to the professional, based on the extent to which the circumstances attributable to the professional contributed to the damage, without prejudice to the limitation of liability provided for this. If, notwithstanding the foregoing limitation of liability, the liability insurer does not pay out for any reason whatsoever, and the professional would still be required to pay damages, all liability shall in any event be limited to a sum equal to the fee received for the execution of the agreement. In case of a recurring work, the damages shall be equal to the amount of the fees invoiced to the client and paid by the client during the twelve months preceding the event causing the damage, or from the beginning of the execution of the assignments if this period is less than one year. Should it appear that two or more cases of damage result from one and the same fault, they shall be regarded as a single case of liability, and the liability shall therefore be limited to the highest amount applicable to the assignments or agreements concerned. Unless stipulated otherwise by mandatory legal provisions, the damage arising from (1) the loss of profits, opportunities, goodwill, business opportunities or anticipated savings or benefits, (2) the loss or corruption of data, or (3) indirect or consequential loss or damage, also including loss of time, loss of customers, loss of profit, loss of income, increases in costs, disruption of a (commercial) activity, claims by third parties, damage to reputation, loss of future savings, staff costs and or any other form of economic loss, shall in no event provide the right to compensation.
The professional is responsible for the processing of personal data of the client (or his representatives, appointees or staff) or other data subjects within the context of the Agreement. The professional shall take all appropriate technical and organisational measures to ensure that the processing of personal data complies with the applicable data protection legislation (including the General Data Protection Regulation (EU) 2016/679 of 27 April 2016 (the “GDPR”)). The processing of personal data by the professional is subject to his privacy policy, which can be viewed on his webiste. As a rule, the professional acts as the individual data controller who processes the personal data within the context of the Agreement or on the basis of a legal obligation. If and insofar as the professional should process the personal data of the data subject on the instruction of, and for the benefit of the client as the "processor" of the latter, the Parties shall conclude a separate data processing agreement within the meaning of Article 28.3 of the GDPR, which shall be attached to the Agreement. The foregoing is without prejudice to the client's obligations as an individual data controller under applicable data protection legislation with respect to the personal data he processes in the course of his activities and/or transmits to or makes available to the professional.
The client acknowledges and accepts that the professional is always entitled to communicate electronically or digitally, via the electronic address or other electronic means of communication usually used by the professional. The software, systems and services used for this purpose by each of the parties shall be secured to the fullest extent reasonably practicable in light of the current state of the art and (security and cyber) risks by such party, including firewalls, software updates, secure login procedures, strong access control and password management, virus protection and critical data security, increased internal awareness with respect to employees or other appropriate or (cyber) security measures required by applicable law. The foregoing is without prejudice to security obligations under applicable data protection and information security or cybersecurity laws as well as the fact that that no system or procedure can fully exclude possible security risks. The client also acknowledges and accepts that the professional is entitled to electronically process and store all data he possesses within the context of the Agreement. Each party is, however, responsible for the security and protection of its own systems and interests with respect to electronic communication and/or data retention. The client acknowledges and accepts that the professional shall not be liable for any damage or loss resulting from the client's failure to take or inadequate appropriate security measures or as a result of imprudent or erroneous actions or inactions by the client and/or its employees or appointees. The client commits to strict confidentiality of its account details and passwords relating to software, systems or services used in the context of the Agreement, including those of its users. Only the client (and its users) is (are) responsible for the account details and passwords and for all actions taken with them, without prejudice to the provisions of applicable terms of use applicable with respect to such software, systems or services. In any event, the professional is not responsible for misuse of any security measures. The professional is furthermore entitled to use an electronic signature system, without prejudice to the applicable legislation in this regard, and may unilaterally determine the extent to which electronic signatures are used within the context of the Agreement. The professional may be granted remote access to the local network of the client in order to establish connections to the network of the professional. Appropriate security measures shall be taken in this respect, but, without prejudice to the applicable data protection legislation and information security legislation, any liability of the professional resulting from the remote access shall be excluded.
All intellectual property rights (in the broadest sense, including, but not limited to copyrights, software protection, database protection, drawings and models, trademarks, patent rights, trade names, know-how, trade secrets and domain names, including the (right to request) the granting of such rights) to or connected with creations that the professional or his appointees have developed in the context of the Agreement or the execution of the assignment(s) are always the exclusive property of the professional or his licensors. No provision in these general terms and conditions or in the Agreement can be construed as a full or partial transfer of these intellectual property rights to the client. The reports and/or documents or creations in the aforementioned sense prepared by the professional may only be used by the client after full payment of all fees and expenses due under the Agreement, and this within the limits of the specific assignment for which they were prepared. The professional may, in any case, make use of the data provided by the client for internal analyses and/or benchmarking. Furthermore, working documents remain the exclusive property of the professional at all times during the work. After the termination of the Agreement, in whatever way or for whatever reason, the professional shall retain the relevant documents and files for the applicable statutory retention periods, after which the professional shall be entitled to remove and/or destroy the documents, data and files in his possession, unless otherwise agreed in advance and in writing. The client is responsible for the safekeeping of the (accounting) documents and records sent to him by the professional during the applicable statutory periods. Unless expressly agreed otherwise, or unless required by law, the professional shall have no preservation or archiving obligation with respect to client documents, communications, information or data and the professional shall not be required to preserve original documents or records or any other information or data for the client. Also, and except as otherwise agreed in writing, upon termination of the Agreement, the professional shall not be required to perform any transfer of data and/or client data, relocation, migration or data conversion. The foregoing is without prejudice to the obligations under applicable data protection legislation and the provisions of the data processing agreement between the professional and the client (the data processing addendum forming part of the Agreement).
The client acknowledges and accepts that (i) the professional may, with the approval of the aforementioned, activate Peppol via a company affiliated with the professional that is a recognized Peppol service provider, namely Comax plc, with company number 0738.443.182 and registered office at Churchillaan 29-31, 2900 Schoten (“Comax”), which has entered into an agreement for this purpose with FPS Policy and Support (the Belgian Peppol authority); (ii) Comax is entitled to perform the Peppol services, including the receipt and/or transfer of Peppol data, on behalf of or for the benefit of the client; (iii) the client remains fully responsible for the (business) content of the exchanged data sets, including compliance with the applicable legislation and the resulting obligations of the client; and (iv) the client will be denied access to the Peppol network in the event of fraud, spam, or other criminal acts by or on behalf of the client. The client also acknowledges that it has received all necessary information from the professional about electronic invoicing and the existence and role of the Peppol network, which enables electronic documents to be exchanged flexibly and efficiently. More information on this can be found on the website of the Belgian Peppol authority (FPS Policy and Support): https://bosa.belgium.be/en. FPS Policy and Support can be contacted by sending an email to peppol@bosa.fgov.be. Comax can be contacted by email at support@comax.be.
The interpretation and execution of these general terms and conditions and the Agreement are governed exclusively by Belgian law. Any challenge or dispute relating to the conclusion, interpretation, performance, suspension or termination of the Agreement, of whatever nature, shall fall under the exclusive jurisdiction of the courts that have jurisdiction over the professional's registered office. D
12. General provisions
12.1. Except where otherwise expressly provided in the Agreement, the provisions of the Agreement shall be valid and enforceable against the Parties' successors in title. However, this Agreement and the rights and obligations attached thereto may not be assigned by the client without the prior written consent of the professional.
12.2. The Agreement contains the entire agreement between the Parties concerning its subject matter and integrally supersedes any previous agreements between the Parties. No Party shall bear any responsibility regarding (alleged) guarantees or obligations not expressly stated in the Agreement.
12.3. The nullity, invalidity or unenforceability of one or more provisions of the Agreement shall in no way entail the nullity, invalidity and/or unenforceability of the remaining provisions of the Agreement. In case any of the provisions exceeds any legal limitation, the provision or portion thereof in question shall not be null and void, but the parties shall be deemed to have agreed that such provision or the conflicting portion thereof shall be reduced or limited to the maximum permitted under applicable law and any provision or portion thereof which exceeds such limits shall be amended or replaced by operation of law with a valid clause as close as possible to the intention of the parties.
12.4. The Agreement may be amended or supplemented only by written confirmed agreement of the Parties. Any waiver of rights under the Agreement must be in writing, express and unambiguous.
12.5. No delay or failure by a Party in exercising any rights or remedies in respect of a breach by any other Party shall deprive the former Party of its right to exercise such rights and shall not be construed as a waiver by such Party.
12.6. The Agreement may be signed in one or more copies, each of which shall be deemed an original, and which together shall constitute one and the same instrument. The Parties expressly agree that a Party's signature by qualified or advanced electronic signature shall have the same binding force and effect as an original signature for purposes of validity, enforceability and admissibility. Each Party shall receive a signed copy of the Agreement. Delivery of a signed copy via an electronic signature system will have the same binding force and effect as the delivery of an original physical copy.
12.7. The representatives of Parties signing the Agreement expressly declare on their own responsibility that they have the required capacity and authorization to bind the Party they represent under the Agreement.