Article 1: General
The following definitions are used in these general terms and conditions:
-Track42: Track42 BV, Handelskaai 48 Brussels, BE0733.762.636
-Client: a party placing an order with Track42.
These conditions apply to every offer, quotation and agreement between Track42 and the client. Terms and conditions to the contrary shall form part of a concluded agreement only if and insofar as this has been expressly agreed upon in writing by both parties. The client’s unreserved acceptance of an offer or quotation shall be deemed to be consent to its application. The possible inapplicability of any part of these general conditions shall not affect the applicability of the remaining conditions. Track42 can and may engage third parties for the execution of an agreement without consulting the client. These general conditions remain in full force and effect.
Article 2: Offers and tenders.
A quote on specifications is without commitment.
A quotation will not be binding if only part of the order may be executed. No rights can then be derived from the quotation made.
Cancellation of the order by the client is possible only on the condition that the latter has not yet begun to carry out the order. If the assignment has already been scheduled, cancellation fees may be charged.
Unless otherwise specified in the quotation/contract, all agreed prices will be adjusted annually to cover increasing operating costs. On an annual basis, this increase may not exceed the adjustment to the consumer price index + 1%.
Article 3: Information
Track42 provides the services within the limits of the information provided by the client. In doing so, Track42 is entitled to rely on the accuracy and completeness of the information provided by the Client. Track42 cannot be held liable for the incorrect performance of the services if such incorrect performance was caused by incorrect, incomplete or late provision of information by the client.
Article 4: Delivery
The client must ensure that Track42 is given access to place(s) and equipment where(s) the work is to be performed on the agreed upon day and time. Track42 shall perform delivery of goods and/or services to the best of its knowledge and ability and in accordance with the requirements of good workmanship. This is based on the current state of the art. Goods are transported at the client’s expense and risk. The Client shall ensure that all data necessary for Track42 to carry out an assignment shall be provided to Track42 in a timely manner. If, in Track42’s judgment, this has not been done sufficiently, Track42 may suspend delivery. Costs already incurred will be charged. The risk of theft, loss by fire or water damage et cetera, of goods of the Client located at Track42 shall remain with the Client. The client is obliged to insure them properly and adequately. Track42 is authorized to require advance payment from the Client prior to delivery.
Article 5: Liability
The final responsibility for a complete and recent backup of data and programs always rests with the client. Track42 discharges its duties as would be expected of a company in its industry. Doch does not accept any liability for damages, including consequential damages, resulting from his actions or omissions in the broadest sense of the word, unless such damages were caused by his gross negligence, gross negligence and/or willful misconduct. Without prejudice to the provisions of the other paragraphs of this article, Track42’s liability shall be limited to the amount of the net prices of the relevant items delivered and/or relevant work performed. Satisfaction of this provision shall constitute sole and full compensation. Without prejudice to the provisions in the previous paragraph of this article, Track42 shall never be obliged to pay compensation that exceeds the insured amount, insofar as the damage is covered by an insurance policy taken out by Track42. The Client loses its rights against Track42 and is itself liable for all damages and indemnifies Track42 against any third party claims for damages if such damages have occurred:
-due to improper use by the client and/or
-because the Client has not acted in accordance with Track42’s advice or instructions and/or
-because the Client has provided incorrect and/or incomplete and/or untimely information to Track42 and/or
-because the client itself or a third party has performed or added maintenance or work to the delivered item on behalf of the client, without having received prior permission from Track42 via email.
Article 6: Force Majeure
Neither party shall be liable to the other for any delay or non-performance of its commitments if it is due to force majeure. Examples of force majeure include war, riots, riots, explosions, strikes or social conflicts, defects in the equipment of the other party, defects in the telecommunications and IT equipment of third parties or the immediate termination by a supplier of the cooperation between Track42 and such supplier, without such termination being the result of a material breach by Track42. If force majeure prevents a party from performing its obligations under this Agreement for a continuous period of more than three (3) months, the other party may terminate the cooperation without compensation.
Article 7: Data protection
Each Party shall, at all times, comply with its respective obligations under each applicable data protection law in connection with any personal data processed under this Agreement. The client remains solely responsible for determining the purposes for which Track42 processes personal data under the agreement. For the avoidance of doubt, the parties acknowledge that, where data protection legislation applies, the client shall act as the controller and Track42 shall act as the processor of the personal data to be stored, used or otherwise processed under this agreement as those terms are defined in data protection legislation. The client expressly accepts Track42’s right to process personal data for the performance of this agreement. The client will inform its employees that their personal data will be processed for the purpose of executing this agreement. The client and its respective employees have the right to inspect, correct and delete their data as established by applicable Data Protection Legislation. Track42 will not share personal data with other third parties (i) than to subcontractors or third parties to whom such disclosure is necessary for the provision of the services or (ii) unless and to the extent required by a competent authority. If Track42 is required to disclose personal data to one or more of its subcontractors, it shall take appropriate contractual protection measures with those subcontractors to provide adequate protection for the personal data they process under this agreement. In any case, Track42 will take the appropriate technical and organizational measures to prevent the unauthorized use or communication of personal data.
Article 8: Complaints
The client is obliged to check goods for visible defects immediately after receiving them. If visible defects or imperfections are found, they must be reported to Track42 via email within 24 hours. Track42 will promptly acknowledge receipt of a complaint via email. Other complaints should be reported to Track42 via e-mail within two business days of delivery. If complaints are not reported to Track42 within the aforementioned time periods, then the delivery is assumed to have been properly carried out. Complaints do not entitle you to a reduction and/or postponement of payment. If the goods and/or services have changed in nature or composition after delivery, have been wholly or partially processed, damaged or repacked, then any right to complain shall lapse. Return shipments to Track42 are permitted only if Track42 has given prior written approval.
Article 9: Payment
Payment shall be made in accordance with the payment terms of the invoice.
For consumers: any unpaid invoice shall accrue interest at the rate of 12% per annum from the due date, after notice of default. If an invoice remains unpaid, seven days after the registered dispatch of a reminder, the debt will be increased by 10% of the invoice amount, with a minimum of €50. This applies as liquidated damages for expenses other than interest loss and actual court costs. For business customers (any natural or legal person who acquires or uses products or services for professional purposes): if the client does not pay on time, then:
-all sums due shall be clearly due and payable by operation of law, notwithstanding all earlier terms granted.
-the client shall automatically and without any notice of default, owe default interest of 1% per month with a minimum of €20 per month. A month started is considered a full month. -Track42 has the right to charge a €30 administrative fee for each special reminder.
-the Client is obliged to reimburse the extrajudicial costs to Track42, with a minimum of €75.
-has the right, at Track42’s discretion, to suspend or terminate the agreement in whole or in part without notice of default, with or without demand for compensation.
-will retain Track42’s ownership rights to the delivered item until such time as all outstanding claims are paid.
All invoices submitted by Track42 must be paid within 14 days from the invoice date, unless otherwise specified on the invoice.
Article 10: Confidentiality
Both the client and Track42 each designate one or more contact persons. Requesting and/or providing data is done only through these individuals. The Parties undertake not to disclose to third parties the data to which they have access, not to use such information for purposes other than for the performance of the Agreement and to disclose such data to employees, appointees and representatives only to the extent necessary for the performance of the Agreement and provided that such parties are bound by confidentiality obligations substantially similar to this provision. The parties shall provide the necessary security to ensure the confidentiality of the data.
Article 11: Personnel
Track42 reserves the right to determine which consultant will be assigned to an assignment, as well as to change this consultant during the assignment. Track42’s consultants can never be considered employees of the client. In accordance with Article 31 § 1 of the Law of July 24, 1987 on temporary work, temporary employment and the posting of workers to users, the client, its employees or agents must not give instructions to Track42 employees and must refrain from exercising any form of authority over Track42 employees. The consequences of a violation of this prohibition shall be borne by the client. The parties expressly accept and acknowledge that the relationship established between them is a relationship of two independent legal entities. The parties shall observe all legal, social, fiscal and commercial obligations applicable to independent enterprises. Each party undertakes, during the term of the agreement and for one (1) year after its termination, without the prior written consent of the other party, not to employ, directly or indirectly (e.g., as a consultant, independent advisor, through a company, etc.), any employees of such other party who were involved in the performance of the agreement. In case of violation of this provision, the party that violated this provision shall be liable to pay damages to the other party in the amount of the gross annual salary (including all benefits to which the employee in question was entitled and employer contributions) that respectively the annual value of the fees that this other party was due for the employee in question at the time of the termination of the labor agreement or cooperation agreement.
Article 12: Intellectual rights
Each party must respect all intellectual property rights of the other party or any third party. Nothing in this Agreement shall be construed or interpreted as transferring the intellectual property rights of one party to the other. It is prohibited to alienate, pledge or transfer a party’s intellectual property rights to third parties without that party’s express consent. To the extent applicable, Track42 does grant to the client by way of service for the duration of the agreement a limited, non-exclusive and non-transferable right to use the said application for his or their own internal business purposes (“Right of Use”). Upon termination of the agreement, the Right of Use shall expire. The principal shall refrain from (i) use the application for purposes other than for which the Right of Use was obtained, or to (ii) use the application in a manner inconsistent with the normal use of the application. Finally, Track42 reserves the right to (i) implement updates, upgrades and new versions of the Software, if necessary, upon payment of applicable prices and to (ii) without compensation, suspend access to the application for a reasonable period of time for maintenance or installation purposes, preferably outside business hours. In the latter case,
Track42 inform the client in a timely manner and minimize the impact as much as possible.
Article 13: Competent court
All agreements are governed by Belgian law. The court in Brussels has jurisdiction.
Article 14: Signature
In the event a signed copy is communicated via e-mail with a “.pdf” or “.jpeg” data file or via any other exact copy, the signature contained therein will create a valid and binding commitment on the part of the signatory (or in whose name and on whose behalf the signature was placed) with the same value, force and effect as if it were original.
Article 15: Entire agreement
This Agreement constitutes the entire agreement and supersedes, cancels and/or voids all prior agreements between the parties with respect to the matters addressed herein.
