General Terms and Conditions
Last updated 11/04/2024
1. Definitions
Activation fee: the one-off cost to configure the cloud application and activate access to the cloud application.
APPs: mobile applications (Android, iOS,…) which interact with the cloud application.
Cloud application: the application specified in the offer, developed by PHRONESYSS and made available online. Not restricted to Phronesys or VCA-Online.
User: employee or self-employed service provider linked to the Customer by a contractual relationship and who uses the Cloud Application or associated APPs for the purpose of performing that contract.
Usage Fee: reference to the set of fees, in particular the cloud application usage fee and the APPs usage fee, both defined below.
Cloud Application Usage Fee: the annual licence fee for the use of the cloud application.
APPs Usage Fee: the annual licence fee for the use of the APPs, based on the number Users.
ISO27001: the ISO certificate on information security, for which PHRONESYSS is certified.
Customer: the contracting party who obtains permission from PHRONESYSS to use a cloud application developed by it.
Training: cloud application training, which is based on the 'train the trainer' principle. It is given by default in Dutch, French or English - as mutually agreed between PRHONESYSS and the Customer - and the duration depends on the package selected and is specified in the quotation.
Agreement: the accepted quotation and these general terms and conditions, to the exclusion of all provisions added unilaterally by the Customer and not explicitly accepted by PHRONESYSS.
PHRONESYSS: PHRONESYSS BV, with its registered office at Hannekenshoek 15, 2200 Herentals, RPR Antwerp, Turnhout division and company number 0808.410.074.
All references in these general terms and conditions to the terms defined in this article 1 shall have the scope stipulated by the definition, whether written with or without a capital letter.
2. Scope
These general terms and conditions apply to the relationship between PHRONESYSS on the one hand and the Customer on the other. These terms and conditions must be accepted by the Customer by signing at the bottom of this document and they, together with the offer accepted by the Customer, constitute the Agreement between the parties, to the exclusion of all provisions added unilaterally by the Customer and not explicitly accepted by PHRONESYSS. If the offer differs from the general terms and conditions, the offer will prevail.
This Dutch-language version of the general terms and conditions is the original version and, in case of discrepancies, will always take precedence over any translation provided for information purposes.
The Customer may transfer the Agreement and any rights or obligations arising therefrom to third parties only with the prior written consent of PHRONESYSS.
2.1 Amendment of the general terms and conditions
At any time, PHRONESYSS may issue a new version of its general terms and conditions. This new version is binding on the Customer once the latter has been informed of and accepted it. The Customer acknowledges that it may be informed of a new version of the general terms and conditions in a notice sent by PHRONESYSS to the Customer, including by email to an email address commonly used by the parties with the new version of the general terms and conditions attached. All of the Customer's Users will be informed of any new version of the general terms and conditions via the Cloud Application and will be able to access them. No later than seven (7) days after notification of the amendments, the Customer may object thereto providing reasons for any objections, failing which the latter shall be deemed to have accepted the amended general terms and conditions.
3. Licences - description of right of use
3.1 Intellectual property rights of PHRONESYSS and licence
PHRONESYSS is and shall at all times remain the owner of all intellectual and other (property) rights in the broadest sense (including copyrights) at its disposal or over which it has concluded a legal right of use, in relation to the cloud application and the APPs. The Customer can never assert any rights to adjustments that PHRONESYSS makes to the software, neither to modifications at the Customer’s request. These property rights also include all trade secrets to which the Customer may become privy during the Agreement. All documents, materials, intellectual property rights, ideas and working methods developed during and for the purpose of performing the Agreement are and shall remain the property of PHRONESYSS.
PHRONESYSS grants the Customer a licence to the cloud application and/or APPs. This licence includes the personal, non-exclusive, temporary and non-transferable right to use the cloud application and/or APPs, for the duration specified in the offer and for Users specified in the offer.
More specifically, the Customer shall refrain from any use other than that to which it is entitled in accordance with the offer and these general terms and conditions. The Customer shall thus refrain from any registration, deposit, or any other protection of the Cloud Application or parts thereof, from making it available to third parties, directly or indirectly, for a fee or free of charge, commercialising it, copying, duplicating or distributing it in whole or in part, in any form, translating, editing, arranging or otherwise modifying it.
The Customer shall refrain from using the cloud application to process data whose possession is illegal (including Users unlawfully processing data that violates intellectual property rights or trade secrets). Upon termination of the Customer's cooperation with its Users or other collaborators, such as its directors, employees, external consultants or appointees in the broadest sense, they shall not retain any intellectual property rights in their (personal) possession. Upon terminating the use of the Cloud Application, the Customer shall destroy all associated documentation and manuals. In such event, it also undertakes not to make any further use of the Cloud Application in any way whatsoever. The Customer shall ensure and bear the burden of proof that its Users and, in general, all its directors, employees, external consultants or appointees in the widest sense will respect these provisions, and will take the necessary measures to this end.
Unless with the express written consent of PHRONESYSS, the Customer shall not disseminate any information including trade secrets to anyone other than its employees or (sub)contractors who need to know such information in order to perform their obligations under this Agreement. The Customer undertakes to submit any documents or complete any formalities necessary or conducive to enabling PHRONESYSS to exercise its rights under this clause, including but not limited to the formalities to obtain or maintain patents, designs, copyrights and/or other intellectual rights.
3.2 Intellectual property rights of the Customer
The data uploaded and downloaded by the Customer shall at all times remain its exclusive property and responsibility, subject to third-party rights.
3.3 Restrictions on the right of use
User management is performed via an interface developed for this purpose. A User's access to the cloud application is via a username and password and is strictly personal; under no circumstances may a password be passed on to (and/or used by) another person. The username enables identification of the User. For each User, it is specified whether the latter is internally or externally connected to the Customer. This information must always be correctly entered via the appropriate interface by the Customer and under the latter's responsibility.
3.4 Exercise of the right of use and functionality offered
PHRONESYSS provides access to the cloud application through a secure web page and personalised identification system.
The Customer declares that it has sufficient knowledge of the application, capabilities and technical specifications of the cloud application as described in the offer and does not require any further description thereof.
3.5 Training and helpdesk
The training will be scheduled ASAP by PHRONESYSS, upon receipt of payment of the User Fee and Activation Fee see article 5.2. This training is open to a maximum of two people.
During the contract period, an online helpdesk is available free of charge for the main User designated by the Customer, where he/she can ask questions of a technical and functional nature regarding the operation and use of the cloud application. This support is available in Dutch, French or English, as desired by the Customer, via a built-in functionality in the Cloud Application. All Users can search for their own explanations in a wiki available within the application.
4. Duration of the Agreement
The duration of the Agreement is one (1) year from acceptance of the offer by the Customer and is tacitly renewed every year for the same period, except in the event of notice of termination given by either party by registered mail at the latest three months before the annual renewal date.
4.1 Activation
The activation date is determined by mutual agreement between the Customer and PHRONESYSS. Assuming a normal and system requirements-compliant configuration at the Customer's premises, activation takes approximately five (5) working days (indicative). To meet the activation deadline, the Customer must provide PHRONESYSS with the requested documentation and information in the requested format in a timely manner. PHRONESYSS undertakes to bring the cloud application in line with the system requirements or configuration included in the offer. PHRONESYSS reserves the right not to activate access until it has received payment of the User Fee and the Activation Fee, without this entitling the Customer to any compensation whatsoever.
4.2 Suspension, termination of contract
PHRONESYSS shall be entitled to suspend the performance of the Agreement (and consequently access to or interaction with the APPs and the Cloud Application) in the event of late payment exceeding 15 calendar days and this at the time when the Customer has paid all its outstanding past due invoices towards PHRONESYSS. No prior notice of default is required for such suspension. Suspension in no way suspends the Customer's contractual obligations. More specifically, all payment obligations must continue to be met during the period of suspension.
PHRONESYSS has the right to suspend performance of the Agreement, and more specifically to suspend access to or interaction with the APPs and the cloud application, for a User in the event of breach of the right of use as described under Article 3. For such suspension, the Customer shall be given prior notice of default with a deadline of five (5) working days to remedy the breach. Should the User fail to remedy the breach, access may be suspended. Should the Customer fail to respond to breaches that have been identified and to cooperate in bringing such breaches to an end, PHRONESYSS may suspend access for all Customer Users. Suspension in no way suspends the Customer's contractual obligations. More specifically, all payment obligations must continue to be met as normal during the period of suspension.
All this is without prejudice to all rights of parties to take all steps in the event of a breach of contract (including misuse of the right of use) to, among other things, obtain damages, rescind the contract, or demand that performance thereof be enforced.
5. Fees and payment terms
5.1 Object
The agreed price includes the activation and licences to use the cloud application and APPs as per quotation. The activation fee stated in the offer must be paid once and before start-up by the Customer.
5.2 Billing
The usage fee and activation fee shall be invoiced immediately, after acceptance of the offer, and shall be paid no later than seven (7) calendar days, failing which PHRONESYSS shall be entitled to suspend activation of the application. The usage fee is always due on an annual basis and is payable in full in advance, unless paid monthly in in line with the offer. The Usage Fee is payable in full for every year commenced, even if the Agreement should be terminated during that year.
All PHRONESYSS invoices, unless otherwise stipulated, are payable within 15 (fifteen) calendar days from the date of receipt of the invoice. Invoices are sent to the Customer by email, the date of receipt is therefore deemed to be the same as the date on which the invoice is sent by PHRONESYSS. If the invoice has not been paid (in full) by a Customer by the due date, interest of 10% per month shall be payable automatically and without any notice of default being required, starting from the due date of the invoice, it being understood that the applicable interest rate can never be lower than the interest rate applicable at that time on the basis of the Act of 2 August 2002 on combating late payment in commercial transactions. The invoice will also be increased by a flat rate late payment penalty should the Customer fail to make payment within one month from the due date of the invoice, equal to 10% of the invoice amount, with a minimum of EUR 50 per invoice. All this is without prejudice to PHRONESYSS's right to demonstrate and seek compensation for higher damages.
5.3 VAT
All Prices are exclusive of VAT.
5.4 Price revision
The User Fee is subject to annual indexation based on the health index with the base year being 2004 and is the result of the following formula: (basic fee x new index) / starting index. The basic fee is the stipulated Usage Fee. The new index is the health index of the month preceding the anniversary of the contract. The initial index is the health index of the month preceding the month in which the offer was signed.
6. Warranty - service level
The cloud application which is developed by PHRONESYSS supports certain Customer business processes. PHRONESYSS has obtained ISO 27001 certification (information security) in this area. PHRONESYSS therefore also makes all commercially reasonable efforts to ensure high availability (uptime) and integrity of the application and database. At regular intervals, incremental and full backups are taken by PHRONESYSS and kept in different locations.
PHRONESYSS has the necessary expertise and undertakes to do everything possible to solve this as soon as possible in the event of malfunction or failure of (one of) the servers (resource commitment). PHRONESYSS may also offer a workaround should it turn out that a final solution to the problem is not feasible in the short term. It shall make all reasonable efforts to make the cloud application and APPs available to the Users at all times and this free from viruses, bugs and other spyware.
Planned maintenance or repair work will be scheduled outside working hours (8 AM to 8 PM during the week) in as far as this is possible. Customers will be informed in advance of this work, including the expected downtime of the APP.
Any use is always at the User's own risk.
Following a reasoned request from the Customer, PHRONESYSS may restore an available backup of its data to the server (average time: one working day).
Unless it results from wilful misconduct or gross negligence, or unless PHRONESYSS and the Customer have agreed in advance regarding the business-critical nature of certain of the Customer's processes, downtime due to operational problems referred to herein shall not give rise to any damages other than those specified in the following section.
7. Liability
PHRONESYSS shall not be liable for damage of any kind except direct damage resulting from wilful misconduct or gross negligence on the part of PHRONESYSS or its appointees.
PHRONESYSS' liability shall be limited to the direct damage suffered by the Customer due to a defect or fault in the Cloud Application that can be attributed to Phronesyss. Such direct damage due to minor errors include only:
- Reasonable costs that the Customer would have to incur to have PHRONESYSS's performance comply with the Agreement; however, compensation for such damage shall not be paid if the Agreement is rescinded by or at the Customer's request;
- Reasonable costs incurred by the Customer for having to keep its legacy system operational longer due to PHRONESYSS' failure to activate the application on time, less any savings resulting from the delayed delivery;
PHRONESYSS' liability in all cases only arises if the Customer immediately and properly gives PHRONESYSS notice of default in writing, with a detailed description of the failing that has been established, setting a reasonable time limit for remedying the failing, and PHRONESYSS remains culpably in breach of its obligations even after that time limit.
Subject to mandatory legal limitations, the total liability and any compensation due in all circumstances is limited to a maximum of the usage fee for one year. However, if PHRONESYSS is insured for the relevant claim, the compensation will in no case exceed the amount paid by PHRONESYSS's insurer in this regard.
The Customer undertakes, within legal limits, not to invoke the extra-contractual liability of the directors, employees and/or assistants of PHRONESYSS at any time.
PHRONESYSS shall in no way be liable for any damage allegedly arising from the use of the cloud application or APPs or for any damage arising from failures, interruptions, harmful elements or defects, as long as the cause is not due to its own gross fault or intent, or that of its agents.
Liability of PHRONESYSS for indirect damage including consequential damage, loss of profit, lost savings, diminished goodwill, damage due to business stagnation, damage resulting from claims of customers of the Customer, corruption or loss of data, damage related to the use of goods, materials or software of third parties prescribed by the Customer, damage related to the engagement of suppliers prescribed by the Customer to PHRONESYSS, as well as damage due to force majeure is excluded.
The Customer acknowledges that the repair of damage caused by PHRONESYSS's failure to comply with a contractual obligation contained in these general terms and conditions shall be governed, within the legal limits, exclusively by the rules of contract law, even if the event at the origin of the damages also constitutes a tort.
8. Other provisions
8.1 Confidentiality
PHRONESYSS undertakes to make all reasonable efforts to correctly maintain the confidentiality of the data (including trade secrets) provided by the Customer and not to disclose them to third parties, unless expressly authorised or required by law.
8.2 Recruitment of PHRONESYSS' employees, contracting with consultants connected to PHRONESYSS
The Customer undertakes and warrants that during the term of the Agreement between the Customer and PHRONESYSS as well as for two (2) years following the termination of the Agreement, it, its affiliated companies, its directors, shareholders as well as beneficial owners shall refrain from inducing or attempting to induce any person, who at any time during the Agreement is or was an employee, consultant, supplier, customer, prospect or business relation of PHRONESYSS (i) to cease doing business with PHRONESYSS; (ii) to materially reduce its business with PHRONESYSS; (iii) to do business with PHRONESYSS on less favourable terms and/or (iv) to disrupt in any way the relationship between PHRONESYSS and any employee, consultant, client, supplier or other business relation.
As each individual case may be different, PHRONESYSS and the Customer agree that before any recruitment or contract offer, they will seek a solution in good faith, respecting the interests of PHRONESYSS and the Customer, the comparability of the activities affected and the length of time the employee or independent consultant in question worked for PHRONESYSS. If no solution is found, the Customer accepts that lump sum compensation of €100,000, or 200 times the daily fee if a daily fee arrangement is in place, per employee, consultant, supplier, customer, prospect or business relation recruited is reasonable compensation for PHRONESYSS and this compensation will be due proportionally, without prejudice to the possibility of claiming actual damages should they be higher.
8.3 Customisation
Should the Customer request PHRONESYSS to make special changes to the cloud application or its configuration, such customisation shall be invoiced as specified in the offer. If the Customer terminates the Agreement with regard to customisation, the cancellation fee shall be set at 50% of the price, without prejudice to compensation for services already rendered and costs incurred, which shall be reimbursed in full by the Customer.
8.4 Governing law and dispute resolution
The relationship between the Customer and PHRONESYSS is governed by Belgian law. Disputes relating to the interpretation, validity, or performance of the Agreement are subject to the exclusive territorial jurisdiction of the courts of first instance Antwerp, Antwerp division and the Antwerp Commercial Court, Antwerp division. The Parties shall elect domicile at their registered office or domicile and, in the absence of a Belgian registered office for the Customer, at the address of the Customer's Belgian branch, as listed in the Central Database of Enterprises, where there is one.
8.5 GDPR
The Customer expressly confirms that, when processing personal data, it will act in accordance with the obligations set out in the General Data Protection Regulation and the national regulations on the protection of personal data, and that all data it transmits to PHRONESYSS were collected in accordance with the aforementioned legislation. Further details on the obligations of the Customer and PHRONESYSS are set out in the Data Processing Agreement concluded between the parties.
Consequently, the Customer shall indemnify PHRONESYSS should the latter receive any claim from a natural person whose data were collected and/or processed for the purposes of performing the Agreement and subsequently transferred to PHRONESYSS.
A Customer who agrees to the general terms and conditions is deemed to have agreed to the Data Processing Agreement as well.
9. Amendments to the Agreement
Amendments to the Agreement between PHRONESYSS and the Customer may only be made in writing. PHRONESYSS's failure to claim a right or apply a sanction shall in no way constitute a waiver of rights. Should one or more provisions of this Agreement be deemed void, unenforceable or otherwise non-binding by the competent court, the remaining provisions of this Agreement shall remain in full force and effect. The parties undertake to replace the void provision with a provision that is valid and reflects the intention of the parties when concluding the contract.