1. Definitions & Interpretation.
Where used in this agreement:
'Terms and Conditions”
Means those terms and conditions including any Schedules.
'Authorized Representative’
Means any person who holds the job title and office of General Manager, Finance Director or Vice-President.
‘Article’
Means one article of those Terms and Conditions.
'Customer'
Means any individual, person, entity, company, firm, partnership, or organization that orders IT Services from ABOUTIT.
‘Customer Environment’
Means all hardware or software, including any source code for such programs, platform, website, (i) that the Customer or its Users provide and load onto, or create while using the Remote Desktop or (ii), through which the Customer get access to the Remote Desktop or (iii) interacting with the IT Services.
Business Day
Means a day other than a Saturday, Sunday or public holyday in Belgium when the banks in Brussels are open for business.
'Contract'
Means any contract for the providing of IT Services by ABOUTIT to the Customer and or its Users which result from a Purchase Order submitted to and accepted by ABOUTIT subject to the Terms and Conditions.
'Contract Date'
Means the date upon which a Purchase Order is accepted by ABOUTIT.
‘Content’
Means all text, files, images, graphics, illustrations, information, data (including Personal Data as that term is defined in the Data Processing Agreement, audio, video, photographs and other content and material in any format, provided by the Customer or the User that reside in, or run on or through, the Third-Party Components
‘DPA’
Means the Data Protection Agreement to be attached in Schedule A.
'Force Majeure'
Means, without limitation, any acts of God, government, war, terrorism, riot, fire, floods, earthquakes, explosions, strikes, lockouts, cessation of labor, trade disputes, breakdowns, accidents of any kind or any other causes which are beyond the reasonable control of ABOUTIT (including delay by its Suppliers).
'IT Services'
Means the various IT services as presented on the Website which are supplied by ABOUTIT to Customer and its respective Users as provided in the Purchase Order. The IT services may namely include: setting up of hardware and Third-Party Components; IT management services; proactive maintenance and corrective support ; cyber-security ; data backups & recovery ; optimization of IT Processes.
“Marks”
Means trade names, logos and other trademarks or service marks.
'Purchase Order'
Means Customer's written or electronic order for subscription and shall include any order that Customer places online through the Website or transmits via email.
“Period”
Refers to the period of time for which the Customer have ordered the IT Services as specified in the Purchase Order.
“Personal Data”
Has the meaning given to it in Art. 13/14 of the Regulation (EU) 2016/679 (General Data Protection Regulation);
‘Remote Desktop’
Means the Microsoft Azure virtual desktop which offers a fully managed desktop virtualization solution on the cloud.
‘User’
Means those employees, contractors, end users, and customers of the Customer as applicable, authorized by the Customer to use the IT Services in accordance with the Contract.
Third-party Components
Means certain equipment, components, cloud services, accessories, license, sublicense of third-party computer software including the following: Microsoft Azure ; Microsoft 365 ; etc.
SLA
Means the service level agreement defined int the Purchase Order.
'Supplier'
Means any supplier, licensor, publisher, manufacturer or other third-party provider of a Product as part of the IT Services under the responsibility of ABOUTIT.
“Website”
Means the ABOUT IT’s website https://www.aboutit.be
2. General Terms of Order & Sale.
2.1. Those Terms and Conditions sets out theterms upon which ABOUT IT srl, a company incorporated in Belgium (registrationnumber BE0597728054) having its registered office at 1050 Brussels (Belgium)Avenue Louise 367 (‘ABOUTIT’ or ‘We) has agreed to providethe IT Services to the Customer and its Users to use the IT Services. ABOUTITand the Customer collectively referred to as the Parties or each a Party.
2.2. Those Terms and Conditions is binding onany Purchase Order submitted by the Customer to ABOUTIT in connection with theproviding of the IT Services and shall apply to any modification, amendment, increaseof the original IT Services ordered or any renewal thereof.
2.3. The Contract between the Parties consistsof the Purchase Order, those Terms and Conditions, the SLA and the DPA. Noadditional or alternative terms or conditions or any alteration to those Termsand Conditions proposed by the Customer contained or referred to in a PurchaseOrder or other form submitted to ABOUTIT shall be deemed to apply unless theyare expressly accepted in writing by an Authorized Representative of ABOUTITwith respect to that Purchase Order.
2.4. Customer shall be deemed to have accepted thoseTerms and Conditions by submitting a Purchase Order to ABOUTIT.
2.5. Notwithstanding the foregoing, Customeragrees that ABOUTIT's provision of a price quotation, price list or any otherinformation shall not be considered an offer by ABOUTIT to provide the ITServices to any other terms and conditions. Only a Purchase Order submitted by Customershall constitute an offer to contract subject to those Terms and Conditions,however, a Purchase Order shall not be deemed a Contract unless and until theearlier date upon which:
2.5.1. written confirmation is provided by ABOUTIT by written,
2.5.2. a Purchase Order placed through theWebsite is confirmed by ABOUTIT via email, or
2.5.3. ABOUTIT proceeds with the fulfilment ofthe Purchase Order.
2.6. Notwithstanding the foregoing, ABOUTIT sreserve the right to make any changes in the specifications of the IT Services,without notice to Customer, which are required in order to conform to anystatutory or other legal requirements, or which do not materially affect theperformance of the IT Services.
2.7. Any IT Services which are subject toguidelines, restrictions or provisions imposed by a Supplier are supplied anddelivered to Customer subject to any such guidelines, restrictions orprovisions.
3. Cancelling & Rescheduling PurchaseOrders.
3.1. No Purchase Order which has been acceptedby ABOUTIT may be cancelled or rescheduled by Customer except with writtenagreement by ABOUTIT and on the condition that Customer shall indemnify ABOUTIT,in full, against all loss (including loss of profit), costs (including the costof all labor and materials used), damages and expenses incurred by ABOUTIT as aresult of a cancellation, subject to a minimum of 5% of the total value of acancelled Purchase Order (which amount Customer agrees represents a genuinepre-estimate of ABOUTIT's loss).
4. IT Services.
4.1. Subject to those Terms and Conditions andthe payment obligations of the Customer, ABOUTIT will provide to Customer the ITServices ordered in the Purchase Order.
4.2. Should the Purchase Order include accessand/or use of Third-Party Components, the rights granted to the Customer underArticle 4.1 includes the right of the Customer to:
4.2.1. Grant access and use to the Third-PartyComponents to the maximum number of Users agreed in the Purchase Order providedthat:
§ ABOUTIT warrants to the Customer that the Third-PartyComponents will incorporate security features reflecting the requirements ofgenerally accepted industry standards.
§ The Customer is solely responsible togrant this access to its Users by creating a personal user-account dedicated toeach User.
§ The Customer shall use reasonableendeavours, including reasonable security measures relating to User accountaccess details, to ensure that no unauthorised person may gain access to the Third-PartyComponents using an User account.
4.2.2. Integrate the IT Services in its own CustomerEnvironment as a part of the services offered by the Customer to its Users, namelyin order to allow its Users to interact with the Customer.
4.3. The rights granted to the Customer underArticle 4.1 are subjectto the following limitations:
4.3.1. The Customer acknowledges that theCustomer Environment is under its own control at all times and that, except asotherwise agreed, the IT Services will not include physical security of theCustomer Environment from casualty loss, physical intrusion, theft, vandalism,consequences arising from the failure to observe ABOUTIT or Supplier-prescribedoperating procedures and protocols, or abuse or neglect by Customer or its Users.
4.3.2. ABOUTIT may enhance and/or change thefeatures of the IT Services at its discretion as long as ABOUTIT does notmaterially reduce the core functionality of the IT Services.
4.3.3. The Customer does not acquire under theContract any right or license to use the IT Services, in excess of the scopeand/or duration of the IT Services stated in the Purchase Order. Upon the endof the Period ordered, the right to access and use the IT Services willautomatically terminate.
4.3.4. The Customer must not make any alterationto the Third-Party Components, except as permitted by the Documentation.
4.3.5. ABOUTIT has no delivery obligation for ABOUTITProgram and will not delivery any material copies of such programs to theCustomer as part of the IT Services.
4.3.6. The Customer understands that ABOUTIT shall cloud-host, operate andmaintain the IT Services offered to the BUYER using a cloud provider (such as Microsoft)whose servers are located in the European Union.
4.4. Subject to the SLA, ABOUTIT shall use reasonable efforts consistentwith prevailing industry standards to maintain the availability of the ITServices to the Customer and its Users, being specified that:
4.4.1. ABOUTIT's commitments in terms of availability and functionality ofservices are set out in the SLA.
4.4.2. The Customer acknowledge that the IT Services may be temporarilyunavailable for scheduled maintenance or for unscheduled emergency maintenance,either by ABOUTIT or by third-party Suppliers, or because of other causesbeyond ABOUTIT’s reasonable control. ABOUTIT shall provide the Customer withreasonable advance notice in writing or by e-mail of its scheduled servicedisruption.
4.4.3. ABOUTIT does not warrant that the IT Services will be uninterrupted orerror free; nor does it make any warranty other than those given in the SLA.For the avoidance of doubt and notwithstanding anything to the contrary in theSLA, downtime caused by any of the following shall not be considered a breachof the Contract by ABOUTIT:
§ Force Majeure Event;
§ Fault or failure of the internet or anypublic telecommunications network;
§ Fault or failure of the Customer Environment;
§ Breach by the Customer of the Contract; or
§ Scheduled maintenance carried out inaccordance with the Contract;
§ Failure, error, or bug of a Third-PartyComponent out of the control of ABOUT IT.
4.5. The Customer grant to ABOUTIT the right to use, process and transmit, inaccordance with those Terms and Conditions and the DPA, the Content and theCustomer Environment in order to provide to the Customer and its Users the ITServices for the duration of the Period plus any post-termination period duringwhich the Customer is provided with access to retrieve an export the Content.
4.6. In addition to the Customer’s other obligations set forth in thoseTerms and conditions, the Customer shall be solely responsible for thefollowing items:
4.6.1. Providing a Customer Environment equipped andconfigured to be compatible with the specifications required by ABOUTIT fromtime to time;
4.6.2. Providing high-speed internet connectivity, with datatransmission speeds of no less than ten (10) MB per second, and all otherreasonably necessary utilities and the services of third parties;
4.6.3. Allowing ABOUTIT a remote (o be provided by ABOUT IT)and on-site access to the Customer Environment in order to allow ABOUTIT toprovide the IT Services in a manner that is acceptable to ABOUTIT;
4.6.4. Agreeing and complying with all license or otheragreements applicable to Third-party Components, which licenses or agreementsmay be included with the Third-party Components and/or the documentationprovided therewith, all of which are incorporated herein by this reference;
4.6.5. Maintaining the Customer Environment (including all ofits software and hardware systems) in current compliance with ABOUTIT’s thenpublished minimum system standards and requirements;
4.6.6. Be responsible for the physical security of Customer’sfacilities, assets, and information and, unless specifically included as partof the IT Services.
4.6.7. Contacting ABOUTIT only via the officials channels inorder to be provided with support:
Tel : 02/882.16.26
E-mail : sos@aboutit.be
Or the Helpdesk application
5. Term and termination
5.1. Except as otherwise agreed int the Purchase Order, the subscription ofthe IT Services shall be initially effective for an undetermined period.
5.2. The Customer may terminate this Contractby giving a 1-month prior written notice of its intention to terminate theContract.
5.3. ABOUT IT may terminate this Contract by given a 6-months prior writtennotice to the Customer of its intention to terminate the Contract on the anniversary date of the Contract.
5.4. Either Party can terminate this Contract with immediate effect upongiving written notice to the other Party and without paying any indemnityinstead of notice, if the other Party fails to perform any material obligation(including non-payment of the Fees) to be performed under this Contract for aperiod of 60 (sixty) days after having been given notice to cure such failure.
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6. Fees.
6.1. The buyer shall pay a fixed subscriptionfee (the Fee) based on the maximum number of Users of the ITServices agreed in the Purchase Order. The Customer shall order an additionalpackage prior to grant access to the IT Services to a higher number of usersthan agreed in the Purchase Order. The Fee is payable in EUROS. All Fees areexclusive of applicable value added tax (VAT), sales, use, consumption, grosssales tax (GST) and other taxes (other than taxes based upon ABOUTIT's netincome) for which the Customer shall be additionally liable for paying to ABOUTIT.Customer shall make all payments to ABOUTIT without reduction for anywithholding taxes, which shall be Customer's sole responsibility. All taxesshall be paid by Customer to ABOUTIT unless Customer provides ABOUTIT with avalid certificate of exemption acceptable to the appropriate taxing authority.
6.2. The Fee may be revised at the request ofABOUTIT on each anniversary date of the Contract to take into account of theactual costs incurred by ABOUTT (cost of Third-Party Components and laborcosts) and in proportion to their share in the overall Fee. The new revisedprice will be determined by using the following formula: New Fee = Old Fee x(0.2 + (Ln/Lo) x 0.4 + (Mn/Mo) x 0.4), where L = new or old Third-PartyComponents costs and M = new or old labor costs. In such an event ABOUTIT will notifythe Customer by given a2-months prior written notice to the Customer of its intention to revise the Feeas provided by this Article 6.2.
7. Payment.
7.1. Customer's payment shall be due withinthirty (30) days from the date of the invoice which shall be issued monthly inadvance for the following month. If payment is made by credit or debit cardthen Customer agrees to pay all fees and service charges incurred by ABOUTIT inhandling such transactions, including fees charged by the credit or debit cardcompany.
7.2. If Customer fails to make any payment whendue ABOUTIT shall be entitled to take any or all of the following courses ofaction:
7.2.1. Charge Customer interest, both pre- andpost judgment, on any unpaid amount past due, at the rate of 1% per month untilfull payment is made. For clarity, a part of a month shall be treated as a fullmonth for the purpose of calculating interest; Five percent of the total amountpast due, with a minimum amount of 150 €, will be added to cover recoverycosts; irrespective of the right to claim additional damages.
7.2.2. Set-off any amounts due against any creditnote, balance or other liability issued by ABOUTIT to Customer.
7.2.3. In the event the Customer is more than 30days late in paying an invoice, suspend the provision of the IT Serviceswithout liability with an additional 5 days advance written notice.
8. Publications & Specifications.
8.1. Any and all specifications, descriptions,photographs, measurements, capacities or illustrations contained in anycatalogues, price lists, brochures, leaflets, proposals, advertising matter,publications of ABOUTIT or a Supplier are intended to be illustrative andapproximate only and shall not form part of the Contract or constitute arepresentation, warranty or condition regarding any IT Services unlessspecifically agreed by written agreement between the Customer and ABOUTIT. Noemployee or agent of ABOUTIT has any authority to make any representationregarding the IT Services. Customer acknowledges that it has not been inducedto accept those Terms and Conditions by any representations or statement, oralor written, not expressly contained herein.
9. IntellectualProperty Rights.
9.1. Customer acknowledges that the Third-PartyComponents and the IT Services are the intellectual property of ABOUTIT and/orits Suppliers and licensors to the exclusion of the Customer. This ownershipextends to all copies and portions of these items, and all improvements,enhancements, modifications and derivative works to these items. The rights touse the IT Services as provided by Article 4.2 is a limitedright to use, not a transfer of ownership and nothing contained herein shall bedeemed to grant any right or title to such intellectual property to Customer. Customerfurther agrees not to translate, reverse compile or disassemble any ABOUTITProgram nor any part of the IT Services. Customer will not remove, alter ordestroy any form of copyright notice, proprietary markings, serial numbers, orconfidential legends placed upon or contained within any IT Services.
9.2. Customer understands and agrees that ABOUTITwill not and has no duty to indemnify, defend or hold Customer or a third partyharmless from or against any claims, losses, liabilities, damages, costs andexpenses, judgments or settlement amounts arising out of or in connection withthe actual or alleged infringement of a third party's intellectual propertyrights, except and only to the extent that a Supplier has expressly agreed tooffer such indemnification and defense to Customer on a pass through basis.
9.3. Nothing contained herein shall beconstrued as authorizing or granting to Customer any right or license to useany logo, trademark or trade name of ABOUTIT or any Supplier, any license ofwhich shall be subject to separate agreement including any then currentpolicies of ABOUTIT or its Suppliers, as appropriate.
10. Content.
10.1. ABOUTIT acknowledges that the Content remainsthe sole property of the Customer and/or the User. ABOUTIT makes no claim orrevendication to the Marks of the Customer and the Content and will not sell yourContent to third parties.
10.2. The Customer is solely responsible for theContent and the use of the IT Services by the Customer and/or its Users. ABOUTITdoes not endorse and have no control over the Content that Users submit to the RemoteDesktop Site. ABOUTIT cannot guaranteethe accuracy of any Content provided by the Customer or its Users.
10.3. The Customer grant to ABOUTIT aworld-wide, royalty-free, sub-licensable license to use, modify, reproduce anddistribute the Content, only as reasonably required to provide the IT Services.The Customer represents and warrants warrant that it has sufficient, lawfulnon-infringing rights to the Content and to grant the license contained in thisArticle.
11. Force Majeure.
11.1. ABOUTIT shall not be liable to Customer orbe deemed in breach of the Contract by reason of delay or failure to perform ifsuch delay or failure to perform was caused by Force Majeure. In the event of aForce Majeure event:
11.1.1. ABOUTIT shall, as soon as commerciallypracticable, notify Customer of such Force Majeure event provided ABOUTIT shallincur no liability for its failure to give such notice;
11.1.2. ABOUTIT's duty to perform shall besuspended for the duration of the Force Majeure event;
11.1.3. The time of ABOUTIT's performance shall beextended by a period equal to the duration of said Force Majeure event.
12. Warranty.
12.1. All of the Parties' warranties andrepresentations in respect of the subject matter of the Contract are expresslyset out in those Terms and Conditions. To the maximum extent permitted byapplicable law, no other warranties or representations concerning the subjectmatter of those Terms and Conditions will be implied into the Agreement or anyrelated contract.
12.2. The Customer acknowledges that complex ITsolution is never wholly free from defects, errors, bugs and securityvulnerabilities and subject to the other provisions of those Terms andConditions and the SLA, the Provider gives no warranty or representation thatthe IT Services will be wholly free from defects, errors and bugs or will beentirely secure.
12.3. The Customer acknowledges that the ITServices are designed to be compatible only with that software and thosesystems communicated by ABOUTIT. ABOUTIT does not warrant or represent that theIT Services will be compatible with any other software or systems of theCustomer Environment.
12.4. The Customer acknowledges that the Third-PartyComponents (EG: Microsoft Azure, or Microsoft 365) to which access is given as partof the IT Services are developed, maintained and updated out of the control ofABOUT IT. In consequence, should a defect, error or bug alter the performanceof such Third-Party Components, the responsibility of ABOUT IT shall be limitedto a best-efforts obligation to the extent of the ABOUT IT’s technicalpossibilities.
12.5. ABOUTIT shall not be liable or responsiblefor administering any defect or other claim which arises from misuse,negligence, accident, abuse, modification or alteration not authorized of the ITServices.
13. Limitation of Liability.
13.1. The maximum aggregate liability of a Partyto the other Party with respect to any and all claims at any and all timesarising from or related arising from or related to the subject matter of theContract, from all causes of action of any kind, including tort, contract,negligence, strict liability and breach of warranty, shall in no event exceedthe lesser of either he total amount of Fees invoiced by ABOUTIT and paid bythe Customer during the 12 months preceding the notification by the Customer toABOUTIT of the first event giving rise to any claim or damages.
13.2. Without prejudice to the foregoing, theliability of the Parties shall be limited to direct losses incurred due tobreach by the other Party of the obligations and warranties of the Contract.Direct loss is understood as the foreseeable consequence of a breach.
13.3. In no event shall either party be liablefor following damages:
13.3.1. Loss of profits,
13.3.2. Loss or damage to goodwill,
13.3.3. Loss of business opportunities,
13.3.4. Business interruption.
13.4. Notwithstanding anything to the contrary,it is clarified however that the limitations of liability set forth in thisArticle 13 shall not apply with respect to indemnification claims relating to:
13.4.1. Willful misconduct of a Party or willfulmisconduct of a person acting on behalf of a party in the performance of the Agreement,whether as employee, consultant, advisor, service provider, subcontractor,shareholder, director, officer or otherwise.
13.4.2. Injury to life, physical integrity orhealth of a person.
13.5. Except for actions brought by ABOUTIT for non-payment, no claim forlosses or damages whatsoever in connection with the Contract shall be made morethan six (6) months after the date of the event giving rise to such damages isknown or reasonably should have been known to the party making such claim.
14. Miscellaneous.
14.1. Waiver. Failure of ABOUTITto enforce any provision of those Terms and Conditions shall not be deemed awaiver of the right to thereafter enforce that or any other provision of thoseTerms and Conditions.
14.2. Severability. If anyprovision of the Agreement, or part thereof, is declared void, this will nothave any effect on the remaining provisions, or parts thereof, of theAgreement. Both parties will in such case replace the provision(s) or partsthereof which were declared void by a new provision(s) or part thereof whichwill be as similar as possible to the original meaning of the parties and ofthe Agreement.
14.3. Pesonal Data. Any Personal Data processed under theAgreement shall be done in accordance with the DPA.
14.4. Notice. Any noticeor request required or permitted to be given under or in connection with thisContract shall be deemed to have been sufficiently given if in writing and sentby registered or certified mail (return receipt requested), e-mail, expresscourier service (signature required), prepaid, to the Party for which suchnotice is intended, at the address set forth for such Party below:
14.4.1. If to ABOUTIT, to :
367 AvenueLouise 1050 Brussels ;
Tel : 02/882.16.26
E-mail : sos@aboutit.be
14.4.2. If to the Customer, toits registered office or to any such other address (including e-mail address)as it shall have been specified in the Purchase Order.
14.4.3. Or to such other address for such Party as it shall have specified bylike notice to the other Party, provided that notices of a change of addressshall be effective only upon receipt thereof.
15. Applicable Law and Jurisdiction
15.1. All issues, questions and disputes concerning the validity,interpretation, enforcement, performance and termination of the Contract shallbe governed by and construed in accordance with Belgian law (referred to as the"Applicable Law"),and no effect shall be given to any other choice-of-law or conflict-of-lawsrules or provisions (Belgian, foreign or international, including the UNConvention on the Sale of Goods (if applicable), that would cause the laws ofany other jurisdiction to be applicable.
15.2. The Parties agreethat they shall use their best efforts to settle amicably any disputes,differences or controversies arising between them out of or in connection withthis Contract.
15.3. All disputes concerning the validity, interpretation, enforcement,performance and termination of the Contract shall be submitted to the exclusivejurisdiction of the French Speaking Brussels Courts.
