ITAF’s general terms and conditions of sale and delivery
ARTICLE 1 – APPLICABILITY
Except for derogations expressly laid down in writing between ITAF bv, with its registered office at Industrieweg 114H, 9032 Ghent, Belgium, and registered in the Crossroads Bank for Enterprises under number 0466.006.806 (hereinafter ‘ITAF’) and the customer, these general terms and conditions apply to all folders, price lists, advertisements, offers, quotes as well as to all agreements concluded with the customer and to all (legal) acts that execute them. These terms and conditions apply to the absolute exclusion of the terms and conditions stated on order forms, invoices or other documents emanating from the customer.
ARTICLE 2 – OFFERS AND ORDERS OF HARDWARE & SOFTWARE
1. Orders are accepted in writing, via the internet, phone, or fax, but are only binding if accepted by ITAF through a written order confirmation (e-mail or ticket). Failure to provide such written order confirmation does not entitle the customer to any compensation. The customer has 8 calendar days to notify ITAF in writing of any discrepancies in the order confirmation. After these 8 days, the order confirmation applies to this agreement.
2. All images, drawings, information concerning weights, dimensions, and colours, and information concerning the applicability of the equipment for new technologies, shown in advertisements and other communications, including offers, are approximate only. Minor derogations from the information communicated in a quote are allowed. Such minor derogations do not entitle the customer to invoke the dissolution of the agreement, nor any right to compensation. The parties take into account that only minor derogations are allowed, as well as the impact of this clause on the agreed price. They expressly acknowledge that, for these reasons, the present clause does not constitute an unlawful term within the meaning of art. VI.91/5, (1) of the Belgian Economic Law Code.
3. Prior to ordering, the customer must obtain the necessary information and ensure that the hardware and/or software they intend to acquire from ITAF corresponds to their needs and expected use. ITAF cannot be held liable if the customer chooses the wrong hardware or software or makes a faulty evaluation.
ARTICLE 3 – DELIVERY OF MATERIAL
1. Delivery dates are only a non-binding indication, with no guarantee of delivery on the specified date. The place of delivery will be specified in the order confirmation. The parties declare that this delivery date is not an essential part of this agreement, in that it is communicated only as a non-binding indication. They expressly acknowledge that, for that reason, the present clause does not constitute an unlawful term within the meaning of art. VI.91/5, (1) of the Belgian Economic Law Code.
2. The material is and travels at the customer’s risk and is thus delivered ‘ex works’. The material will be shipped by bpost, EMS/Taxipost or any other express carrier of ITAF’s choice.
3. ITAF is entitled to make partial deliveries.
4. The customer must send ITAF any complaint concerning the material delivered within 8 calendar days of receipt, in writing by registered letter and/or e-mail, stating the reasons, with reference to the number of the shipping note or invoice. Once this period has expired, the material will be deemed accepted by the customer and any complaints will not be taken into consideration. Timely submission of a complaint does not release the customer from their payment obligation.
5. Complaints relating to damage to shipped material must be sent within 3 working days in writing by registered letter, fax and/or e-mail, stating the reasons, to the company that made the delivery and, for informative purposes, to ITAF.
6. No returned material will be accepted unless ITAF has given prior written agreement, and the material is returned in good condition and in its original packaging. The customer must pay the return costs.
ARTICLE 4 – RETURN POLICY/RIGHT OF WITHDRAWAL
1. With regard to customers who do not exclusively place orders with ITAF in a professional capacity, online orders and purchases are considered a ‘distance agreement’ (overeenkomst op afstand) within the meaning of art. VI.45. et seq. of the Belgian Economic Law Code.
2. Upon delivery or collection of the material, the customer will receive an invoice. From that moment, the customer, as a consumer, has a cooling-off period of 14 calendar days during which they can cancel the order. The agreement is therefore only final after the cooling-off period of 14 calendar days from the day following that of delivery or collection. If the customer wishes to change their mind about the order within that period, they must notify ITAF in writing by sending an e-mail to: info(at)itaf.eu. The customer must then return the material to ITAF at their own expense.
3. The material must be returned in its original packaging. The customer is also expressly prohibited from breaking existing seals. If these terms and conditions are not met, it is presumed that the material in question was used and consequently accepted.
4. The returned material is accepted subject to all reservations and without any adverse acknowledgement, with ITAF entitled to examine the condition of the material within a period of two weeks.
5. If the material is returned in its original packaging without any damage and without having been used by the customer, the customer will be credited, minus the initial transport costs.
6. If the customer is found to have used the material in question or to have damaged the material, the agreement shall remain in full force and effect and the customer shall be deemed to have accepted the goods delivered and to have waived the right to make use of the right of withdrawal provided for by article VI.47 of the Belgian Economic Law Code.
ARTICLE 5 – WARRANTY ON MATERIAL
1. ITAF is not responsible for the use and further sale of ITAF material. ITAF applies the manufacturer’s warranty, on the same terms and conditions and for the same period.
2. If hardware is supplied, this manufacturer’s warranty is a contractual guarantee against manufacturing defects and defects in concept or design. The customer acknowledges and confirms to have been informed of the warranty conditions and the extent of warranty coverage given by the manufacturer of the supplied hardware. Insofar as the customer is a company, ITAF does not under any circumstances provide its own warranty for defects, hidden or otherwise, which might affect the goods delivered. If the customer is a consumer within the meaning of art. I.1, (2) of the Belgian Economic Law Code, then they will be able to make claims under the statutory warranty.
3. If the customer wishes to make a claim under the commercial/factory warranty of the manufacturer of the supplied hardware, they may contact the manufacturer directly or choose to have this done through ITAF. To the extent that ITAF assists the customer in exercising a warranty claim against the manufacturer, the customer must reimburse in full the costs and working hours incurred by ITAF.
4. Under no circumstances can ITAF be held responsible for direct or indirect damage of any kind that may be caused by the material to the customer or to a third party.
5. The guarantee is valid only when the material is used in an appropriate and suitable working environment.
6. Under no circumstances is ITAF liable for defects or changes in the computer network(s) into which the material is incorporated or in the electricity grid or telephone network.
7. The guarantee lapses if the customer is personally responsible for the damage caused by rough or inexpert handling, incorrect power supply voltage, voltage peaks, incorrect installation or repairs carried out without the intervention of ITAF.
8. ITAF’s service is fully available to the customer for all repairs beyond the guarantee period, for which a separate repair fee will be charged to the customer.
ARTICLE 6 – PRICES
1. The agreed prices exclude VAT, delivery, information, and other ancillary services. The customer chooses the shipping method, and the associated packaging costs must be paid by the customer.
2. ITAF’s invoices are always payable at its registered office or by transfer to the account number indicated on the invoice. Unless otherwise agreed in writing, all payments must be made within 15 calendar days of the invoice date.
3. In the event of non-payment or if the aforementioned term of payment is exceeded, the invoices will be increased by operation of law and without prior notice of default by interest of 1% per month from the due date and flat-rate compensation of 10% of the principal amount, with a minimum of € 75.00.
If the Customer is a consumer, as stated in article I.1, (2) of the Belgian Economic Law and an invoice on expiration date is not or only partially paid, then ITAF will claim a fixed compensation after sending a notice of default that takes the form of a first free reminder and after the expiry of a period of at least 14 calendar days starting on the third day after the sending of the reminder to the Customer. In case the reminder is sent electronically, the period of 14 calendar days starts on the calendar day following the day on which the reminder was sent to the Customer.
The fixed compensation referred to in the previous paragraph is: (a) 20€ if the balance due is less than or equal to 150€; (b) 30€ plus 10% of the amount due on the tranche between 150.01€ and 500€ if the balance due is between 150.01€ and 500€; (c) 65€ plus 5% of the amount due on the tranche above 500.01€ with a maximum of 2,000€ if the balance due exceeds 500€.
In addition, in the event of late payment by the Customer, interest is due from the calendar day following the day on which the reminder is sent, at the rate specified in the Law of 2 August 2002 on Late Payments in Commercial Transactions (Wet van 2 augustus 2002 inzake de Betalingsachterstand in Handelstransacties).
If ITAF does not comply with its obligations, the Customer-consumer is entitled to an equivalent compensation and interest as aforesaid calculated on the value of the order, subject to compliance with the same conditions.
4. ITAF is entitled to ask the customer for advance payments or to provide security.
5. ITAF also has the right to suspend delivery, missions and/or service until payment is settled in full.
ARTICLE 7 – PRICE REVISIONS/ADJUSTMENTS
1. Unless otherwise agreed in writing, ITAF reserves the right to periodically adjust the prices of its recurring services in the broadest sense according to wage and material price trends (i.e., equipment, parts, transport costs, energy, etc.). The following price review formula will be used in this respect:
P = p {a + b (S/s) + c (I/i)}
In which:
• P = the new price
• p = the original price in the quote
• a = the percentage of the price not eligible for revision
• b = the percentage of labour costs in the total price
• S = the new wage index (order execution period or invoice date)
• s = the original wage index (the month preceding the date of the quote/agreement)
• c = the percentage of material costs in the total price
• I = new price of material at the time of supply or invoicing
• i = original price of material at the time of the quote/agreement
• a + b + c = 1
This price revision refers to the total base price. The Customer cannot rely on art. 5.74 et seq. of the Dutch Civil Code to obtain a revision of the price or of any other contractual clause.
ARTICLE 8 – RETENTION OF TITLE
1. Until the payments owed by the customer have been made in full, ITAF will retain ownership of all material it has delivered as security for payment of everything ITAF is entitled to under the agreement. Until the delivered material has been paid in full, the customer must not alienate, pawn, pledge, mortgage, rent or lend the material.
2. If payment is not made in accordance with article 6 of these terms and conditions, the customer undertakes to return the material to ITAF at the first request. The customer is liable for any associated costs incurred by ITAF, without prejudice to ITAF’s right to recover any damage to the material from the customer.
ARTICLE 9 – INTELLECTUAL/INDUSTRIAL PROPERTY RIGHTS
1. All intellectual or industrial property rights to all material and/or services developed, used and offered by ITAF, including but not limited to software, programme code, scripts, texts, drawings, sketches, graphic designs, diagrams, tables, models, etc., are and will remain the exclusive property of ITAF or its licensor, and may not, in whole or in part, be copied, published or shared with third parties for anything other than purely internal use, unless ITAF gives prior written consent. The customer only acquires a limited right of use during the term of the agreement with ITAF to use the said materials and services internally, without communicating, copying, or sharing them with third parties in any way.
2. Furthermore, the customer is not allowed to remove or modify in any way any indication concerning copyright, brands, logos, trade names or other intellectual or industrial property rights from the material, programme code, scripts, texts, designs, software, or other materials supplied by ITAF.
3. Violations of the obligations described in this article by the customer will give rise, by operation of law and without prior notice of default, to flat-rate compensation of € 5,000.00 per established breach, payable at ITAF’s first request, without prejudice to ITAF’s right to demonstrate and claim higher damages.
4. If the agreement with ITAF is terminated and ITAF’s intellectual and/or industrial property (including the software or scripts) is located on the customer’s systems, the customer must immediately grant ITAF access to these systems to remove the intellectual and/or industrial property.
ARTICLE 10 – HOSTING
1. The customer who uses ITAF’s hosting, housing or collocation services must never use the services or facilities offered, including the storage space provided, to commit legal infringements or cause damage and/or nuisance in respect of ITAF. The customer’s activities must also not give rise to this. For example, ITAF does not allow illegal or pornographic material on its servers, nor does it allow illegal video sites or sites offering content or information contrary to public order or morality, or which constitute an unlawful practice.
2. Neither may activities be carried out on ITAF’s servers that infringe protected works and/or which are punishable by the Belgian Computer Crime Act (Wet op de Informaticacriminaliteit).
3. The customer expressly agrees to the special provisions concerning hosting, which the customer has been able to take note of on the ITAF website concerning hosting.
ARTICLE 11 – DOMAIN NAMES
1. The customer may engage ITAF as a registrar or intermediary for the registration of domain names. ITAF will endeavour to register the desired domain names for the customer in such cases, provided that the customer has met all terms and conditions necessary.
2. Domain names with the country code TLD ‘.be’ (ccTLD.be), ‘.brussels’ or ‘.vlaanderen’ are registered according to the rules of the VZW DNS BELGIUM. The customer accepts the general terms and conditions of domain name registration and declares to have been informed by ITAF that these general terms and conditions are available at www.dns.be.
3. To register ccTLD.nl domain names, the customer must accept under the same terms and conditions the rules set out at www.nic.nl.
4. Domain names with the TLDs .com/.org/.net/.biz/.nu/.info/.tv/etc. are registered according to the terms and conditions on ITAF’s website (www.itaf.eu). The customer accepts these terms and conditions.
5. ITAF is in no way liable for the registration of domain names carried out in bad faith, for the unlawful registration of domain names or in general for the indication of domain names that infringe the rights of third parties, etc. The customer must always indemnify ITAF against any third-party claims following the registration of such domain name(s).
ARTICLE 12 – LIABILITY
1. ITAF only enters into an obligation of means in all cases, unless expressly agreed otherwise. ITAF is never liable to the customer and/or third parties for loss, damage, or destruction of information and/or software; network problems and attacks by hackers and/or computer viruses; loss of profits or turnover; financial losses; business interruption; loss of business information, indirect, consequential, or incidental damage from any cause whatsoever, regardless of whether ITAF was informed of the possibility of such losses or damage.
2. ITAF can only be held responsible for direct damage resulting from serious errors or intentional mistakes made by ITAF, its employees or the persons engaged by ITAF to execute the agreement. ITAF can also only be held responsible for the non-execution of the essential commitments that are the subject of the agreement. The total and cumulative liability of ITAF and its employees and/or persons engaged by it for all direct and provable damage is always limited to a maximum of the invoice amount of the delivery concerned. The parties acknowledge that this provision was part of the negotiations concerning the price and other clauses. ITAF also accepts that it may be held responsible in some well-defined cases. The parties expressly acknowledge that, for these reasons, the present clause does not constitute an unlawful term within the meaning of art. VI.91/5, (6) of the Belgian Economic Law Code.
3. The customer indemnifies ITAF in this regard against all third-party claims.
4. The customer remains responsible for backing up their data even if ITAF provides the necessary software, hardware and/or services for this purpose. Under no circumstances may ITAF be held liable for any loss of programme information or data due to (i) insufficient backup, (ii) limitations of the files that have been backed up, (iii) defects in the backup files, (iv) insufficient testing of the backups performed or (v) defects in or delays in restoring backed-up files.
5. ITAF is never liable to the customer and/or third parties due to the destruction of the customer’s information/data at the end/termination of the agreed service(s)/agreement or in the event of its early termination/dissolution (see, for example, article 15 of these general terms and conditions and article 4 of the cloud computing policy).
ARTICLE 13 – EXPORT CONTROL
1. The customer acknowledges that the material may contain technology, data, services, components, and software subject to US and EU export control laws and laws of the country where it is supplied or used. The customer must comply with all the aforementioned legislation. Products must not be sold, leased, or transferred to end users or countries subject to restrictions under the aforementioned legislation, or to any user involved in weapons of mass destruction or genocide. The customer must therefore comply with applicable US and EU regulations.
2. In the event of any breach or claim against ITAF pursuant to this section, the customer must indemnify and hold harmless ITAF against all damages and costs paid or incurred by ITAF in connection with such breach or claim.
ARTICLE 14 – FORCE MAJEURE
1. ITAF is not liable for the non-execution of its obligations (including delivery or service) caused by circumstances beyond ITAF’s control that make the execution of its commitments under the agreement impossible or only permit execution subject to unreasonable efforts or costs, and which could not have been reasonably foreseen when the agreement was concluded. Force majeure means strikes, problems with suppliers/transport/production/energy, fluctuations in exchange rates, governmental or regulatory action, fire, labour shortage, destruction of machinery, natural disasters, etc. This list is not exhaustive.
2. In the event of force majeure, the agreement will be suspended in whole or in part for the duration of the force majeure, without the parties being mutually liable for any compensation in this respect for any damage or loss suffered. After the force majeure situation has lasted for two months, ITAF is entitled to dissolve the agreement without any right to compensation.
ARTICLE 15 – SUSPENSION OF SERVICE DELIVERY
1. If the customer fails to meet its contractual commitments as agreed between the parties, ITAF reserves the right to suspend the execution of its own commitments until the customer meets its commitments.
2. If the customer fails to meet its contractual commitments, the customer is automatically in default without the need for any further deed/reminder/notice of default. This means the customer is always in default by the mere failure to pay any of ITAF’s invoices by the due date, among other possible reasons.
ARTICLE 16 – TERMINATION OF SERVICE DELIVERY IN CASE OF DEFAULT
1. In case of a contractual default by the customer and without prejudice to the previous article regarding the suspension of service delivery, ITAF reserves the right to unilaterally terminate definitively any ongoing agreement(s) and/or service(s) between the same contracting parties, without judicial intervention/by operation of law and without notice of default, even if the other services are not related to the agreement or services in the context of which the customer is in default and even if the term of those agreements or services has not yet expired.
2. Non-payment of at least two of ITAF’s invoices (not necessarily consecutive) at the latest by their due date by the customer may always be considered a contractual default, among other possible reasons.
3. ITAF may terminate the agreement(s) and/or service(s) by simple written declaration of this to the customer, without this being interpreted as a contractual default on ITAF’s part. Such unilateral termination can in no way give rise to the dissolution of any agreement at the expense of ITAF.
4. This provision applies as an express resolutive clause regarding all agreements and/or services agreed between ITAF and the customer.
ARTICLE 17 – DESTRUCTION OF CUSTOMER DATA/INFORMATION
1. At the end/termination of the agreed service(s)/agreement, or in the event of its early termination/dissolution (see, for example, article 15 of these general terms and conditions), ITAF is entitled to immediately destroy the customer’s data on ITAF’s servers.
2. Only upon the customer’s express written request and upon payment of the associated costs by the customer, ITAF may agree to retain such data for a certain period of time after termination. However, ITAF is not obliged to do so and may refuse such request or simply leave it unanswered, in which case the customer shall have no claim/further claims against ITAF in this regard.
ARTICLE 18 – PRIVACY POLICY
1. The customer’s information will be stored and/or transferred in strict compliance with applicable data protection laws. ITAF’s privacy policy means that all information relating to orders and material supplied will not be shared with other organisations for marketing purposes, unless the customer expressly agrees in advance.
2. The customer must always provide ITAF promptly with any useful information. This information may be requested by ITAF. The customer expressly authorises ITAF to use this information, and if necessary the personal data (in accordance with art. 4.1 of the General Data Protection Regulation), as well as any special categories of personal data (in accordance with art. 9.1 of the General Data Protection Regulation) of which it might be composed, to be processed for one or more specified purposes, as defined in the object of the service delivery and ITAF’s task pursuant to this agreement.
3. The customer has the right to contact ITAF with a request for access, correction, deletion, or transfer of their personal data, and to withdraw their consent or object to the processing of their personal data (in accordance with art. 12 et seq. of the General Data Protection Regulation).
4. ITAF undertakes to provide the customer with a reasoned response to their request within one month. Depending on the complexity of the request and the number of requests, that deadline may be extended by a further two months if necessary. This response must state, with reasoning, why ITAF will (not) respond to the customer’s request(s).
5. If necessary, ITAF reserves the right to charge a reasonable fee in light of the administrative costs involved in granting the request(s).
6. If the customer believes that ITAF has acted unlawfully with regard to the processing of personal data or has not or not adequately complied with (a) request(s) addressed to ITAF, the customer may lodge a complaint with the Belgian Data Protection Authority. Address: Data Protection Authority, Drukpersstraat 35, 1000 BRUSSELS (Belgium). Phone: +32 2 274 48 00 or e-mail: contact(at)apd-gba.be.
ARTICLE 19 – OTHER PROVISIONS
If one or more clauses or part of a clause are void or an express derogation is allowed, it will not affect the validity and applicability of the other provisions.
ARTICLE 20 – APPLICABLE LAW
1. All agreements with ITAF are governed by Belgian law.
2. The courts of the judicial district of ITAF’s registered office have exclusive jurisdiction to decide any disputes.
