Terms and conditions

Activation fee: the one-off cost of configuring and activating access to the Cloud Application

Apps: apps developed for the smartphone and tablet and connected to the application server and database, which interact with the Cloud Application.

Cloud Application: the application mentioned in the offer, developed by PHRONESYSS and made available online. It is not limited to Phronesys or VCA-Online.

User: employee or self-employed service provider who has a lasting relationship with the Customer, who is internally and primarily employed there and who uses the Cloud Application or the associated apps in that context.

Usage fee: includes the usage fee for the Cloud Application and the usage fee for the apps

Usage fee for the Cloud Application: the annual license fee for the use of the Cloud Application for one year

Usage fee for the Apps: the annual license fee for the use of the Apps for one year

ISO27001: the ISO certificate on information security, which PHRONESYSS foresees to obtain in the course of 2021.

Customer: the contracting party that obtains permission from PHRONESYSS to use the Cloud Application.

Training: the cloud application training is provided according to the Train the Trainer principle, is normally given in Dutch and the duration depends on the selected package and is specified in the quotation.

The contract: the accepted quotation and general terms, excluding all terms added unilaterally by the Customer and not explicitly accepted by PHRONESYSS.

PHRONESYSS: PHRONESYSS BV, with company number 0808.410.074

The general terms apply to the relation between PHRONESYSS on the one hand and the Customer on the other, to the exception of his general terms. These general terms as well as the offer accepted by the Customer constitute the contract between the Parties, to the exception of all terms added unilaterally by the Customer and not explicitly accepted by PHRONESYSS. In the event that the offer differs from one of the general terms the offer shall prevail.
2.1 Changes to the general terms
PHRONESYSS may issue a new version of its general terms at any time. This new version shall be opposable to the Client after consultation and acceptance by the Client. The Parties agree that the Customer is aware of a new version of the general terms if it is explicitly referred to on an invoice or in a message to the Customer, including an email to a commonly used email address between the parties. No later than seven (7) days after notification of the amendments, the Customer may lodge a reasoned objection, failing which he will be deemed to have accepted the amended general terms.
3.1. INTELLECTUAL PROPERTY RIGHTS OF PHRONESYSS AND LICENSE
PHRONESYSS shall remain at all times the owner of all copyright, intellectual and other (property) rights in the broadest sense, with respect to the Cloud Application and the Apps, as well as with respect to all adjustments it makes to the software, even if the adjustments are made at the request of the Client. These property rights also include all trade secrets and business secrets that the Customer may become aware of during the contract. PHRONESYSS grants the Client a license to the Cloud Application and/or Apps. This license includes the personal, non-exclusive and non-transferable right to use the Cloud Application and/or Apps, for the term specified in the quotation and for the Users specified in the quotation. In particular, the Customer shall refrain from any use other than that to which he is entitled to according to the quotation and the present terms. For example, the Customer shall refrain from any registration, filing, or any other protection of the Cloud Application or parts thereof, from making it available to third parties, directly or indirectly, against payment or free of charge, from commercializing it, from copying, duplicating or distributing it in whole or in part, in any form whatsoever, from translating, adapting, arranging or otherwise changing it. The Client shall refrain from using the Cloud Application to process data, of which the possession is illegal. Upon termination of the Customer’s cooperation with its directors, employees, external consultants or appointees in the broadest sense, they will not retain any intellectual property in their (personal) possession. Upon termination of the use of the Cloud Application, the Customer shall destroy all related documentation and manuals. In that case, the Customer undertakes to refrain from making any further use of the Cloud Application in any way whatsoever. The Customer undertakes to do so and bears the burden of proof that its directors, employees, external consultants or appointees in the broadest sense shall respect these conditions, and shall take the necessary measures to this end. Except for the explicit written authorization given by PHRONESYSS, the Customer shall not disseminate any information, including trade secrets and business secrets, to persons other than his employees or (sub)contractors, which have to be informed by the Customer so as to fulfil their obligations under this contract. The Customer undertakes to submit any documents or formalities necessary or conducive to enabling PHRONESYSS to exercise its rights under this clause, including but not limited to the formalities for obtaining or maintaining patents, models, copyrights and/or other intellectual rights.
3.2. RESTRICTIONS ON THE RIGHT OF USE
User management is done via an interface developed for this purpose. A user’s access to the Cloud Application happens via a user name and password and is strictly personal; under no circumstances may a password be passed on to another person. It is specified for each user whether he is internal or external to the Client. This information is entered via the interface available for this purpose.
3.3. EXERCISE OF THE RIGHT OF USE AND OFFERED FUNCTIONALITY

PHRONESYSS provides access to the Cloud Application through a secure webpage and personalized identification system.

The Client declares to have sufficient knowledge of the application, capabilities and technical specifications of the Cloud Application as described in the quotation and does not require a more detailed description of it.

3.4. TRAINING AND HELPDESK

Training shall take place within thirty calendar days after activation. This training is open to a maximum of two persons.

During the contract period the principal user shall be able to address technical and functional questions pertaining to the functioning and use of the Cloud Application to a helpdesk made available free of charge within the application. This support is available in Dutch via a built-in functionality in the Cloud Application. All users can search for explanations themselves in a wiki available within the application.

The duration of the contract is at least one (1) year from the acceptance of the quotation and is tacitly renewed with the same term each time, unless the contract is cancelled by either party by registered letter at the latest three months before the annual due date.

4.1. ACTIVATION

The activation date is determined by the Client and PHRONESYSS in consultation. Assuming a normal configuration at the Client in accordance with the system requirements, the activation takes approximately five (5) working days (indicative). In order to meet this activation date, the Customer must provide PHRONESYSS with the requested documentation and information in the requested format in good time. PHRONESYSS undertakes to bring the Cloud Application into line with the system requirements or configuration included in the quotation. PHRONESYSS reserves the right not to activate access until after receipt of payment of the usage fee and activation fee, without the Customer being entitled to any compensation whatsoever as a result. The access shall be active for 365 days from the activation.

4.2. SUSPENSION AND DISSOLUTION OF THE CONTRACT

PHRONESYSS shall be entitled to suspend performance of the contract in the event of one month’s delay in payment until there are no more outstanding due invoices. No prior notice of default is required for this suspension. This suspension in no way suspends the contractual obligations of the Customer. More specifically, the payment obligations continue during the period of suspension.

All this is without prejudice to all rights of both parties to take all necessary judicial and/or legal steps in the event of a breach of contract (including abuse of the right of use) in order to, among other things, obtain damages, to dissolve the contract, or to claim its forced execution.

5.1. SUBJECT

The agreed price includes the activation and the licenses for the use of the Cloud Application and Apps according to the quotation.

5.2. BILLING

The usage fee and the activation cost will be invoiced immediately after acceptance of the quotation and must be paid no later than seven (7) calendar days, failing which PHRONESYSS will 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 it is paid monthly in accordance with the quotation. The usage fee is payable in full for each year started, even if the contract is terminated in the course of that year.

5.3. VAT

All prices are excluding VAT.

5.4. INDEXATION

The usage fee is annually subject to indexation on the basis of the consumer price index  with basic year 2004 and is calculated by the following formula: (basic fees x new index) / initial index. The basic fees are the usage fees agreed upon. The new index applied is the health index of the month preceding the expiry date of the contract. The initial index is the health index of the month preceding the month in which the quotation was signed.

The Law of 2 August 2002 on combating late payment in commercial transactions shall apply, in particular Articles 5 and 6 thereof. The reasonable compensation referred to in Article 5 is fixed at a flat rate of 10% of the invoice amount (with a minimum of €50.00 and a maximum of €2,500.00) and serves to cover the administrative costs of reminder and amicable recovery. This compensation can be combined with the legal compensation in the event of legal recovery.

The Cloud Application developed by PHRONESYSS supports certain business processes of the Customer. PHRONESYSS is therefore aiming for ISO27001 certification (information security) in the course of 2021. PHRONESYSS is therefore also making all commercially reasonable efforts to ensure high availability (uptime) and the integrity of the application and the database. For these reasons, PHRONESYSS entrusts the management of its dedicated servers to a renowned European hosting provider. This hosting provider manages PHRONESYSS’ various production servers in 2 different countries. At regular intervals, incremental and full backups are taken by PHRONESYSS, which are stored in different locations.

PHRONESYSS has the necessary expertise and, in the event of malfunctioning or failure of (one of) the servers (commitment of resources), undertakes to do everything possible to solve this as soon as possible. PHRONESYSS can also offer a workaround if it turns out that a definitive solution to the problem is not feasible in the short term.

Maintenance or repair work is planned outside working hours (8h-20h during the week) as much as possible. Customers will be informed in advance of these activities, including the expected downtime of the application.

At the justified request of the Customer, PHRONESYSS will restore an available backup of the Customer’s data to the server (average time 24 hours).

Unless they are the result of intent or gross negligence (including frequent recurrence of the same minor problem), or unless PHRONESYSS and the Customer have agreed in advance on the business criticality of certain processes of the Customer, the downtime mentioned herein due to operational problems cannot give rise to any damage other than that mentioned under the following point.

PHRONESYSS’ civil liability is limited to the direct damage suffered by the Customer as a result of the defect or error in the Cloud Application. Direct damage shall be understood exclusively as:

  • Reasonable costs that the Customer would have to incur in order for PHRONESYSS’ performance to comply with the agreement; however, this replacement damage will not be compensated if the agreement is dissolved by or at the request of the Customer;
  • Reasonable costs incurred by the Customer to keep his old system operational longer because PHRONESYSS did not activate the application on time, less any savings resulting from the delayed delivery;
  • Reasonable costs incurred to determine the cause and extent of the damage, insofar as the determination relates to direct damage within the meaning of these terms and conditions;
  • Reasonable costs incurred to prevent or limit the damage, insofar as the Customer demonstrates that these costs have led to limitation of direct damage within the meaning of these terms and conditions.

In all cases, PHRONESYSS’s liability for attributable failure to perform the agreement shall only arise if the Customer immediately and properly notifies PHRONESYSS in writing of the breach of contract, with a detailed description of the breach found, setting a reasonable period for remedying the breach, and PHRONESYSS continues to be in attributable breach of its obligations even after that period.

Subject to mandatory legal restrictions, the total liability per year for culpable shortcoming is limited to the compensation of the direct damage and this up to a maximum of the amount of the license fee of one year.

Phronesyss’ liability for damage due to material damage to goods shall never exceed the one-year license fee.

Liability on the part of PHRONESYSS for indirect damage including consequential damage, loss of profit, missed savings, reduced goodwill, damage due to business stagnation, damage resulting from claims by the Customer’s clients, mutilation 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 restrictions referred to in the preceding paragraphs of this article shall lapse if and insofar as the damage is the result of intent or gross negligence on the part of PHRONESYSS or its managers.

8.1. INTELLECTUAL PROPERTY RIGHTS OF THE CUSTOMER AND SECRECY

The data uploaded and downloaded by the Customer remain at all times his exclusive property and responsibility, except for rights of third parties.

PHRONESYSS undertakes to make all commercially reasonable efforts to preserve the confidentiality of the information provided by the Customer (including trade and business secrets) and not to disclose it to third parties, unless expressly permitted or required by law.

8.2. RECRUITMENT OF EMPLOYEES OF PHRONESYSS, CONTRACTING CONSULTANTS ASSOCIATED WITH PHRONESYSS

The Customer undertakes and warrants that he, his affiliated companies, his directors and ultimate beneficiaries shall refrain from recruiting or offering, directly or indirectly, employees, former employees or self-employed consultants who are or were contractually bound to PHRONESYSS:

  • During the term of this agreement,
  • For a period of two years after the end of this agreement.

Since each individual case may be different, PHRONESYSS and the Customer agree that, prior to any recruitment or contract offer, they will seek a solution in good faith, while respecting the interests of PHRONESYSS and the Customer. In the absence of a solution, the Customer shall be liable to pay a flat-rate compensation of €30,000 per staff member or consultant recruited, without prejudice to the possibility of claiming the actual damages if they are higher.

8.3. CUSTOMIZATION

In the event that the Customer requests PHRONEYSS to perform special adaptations to the Cloud Application or its configuration, the following agreement applies. The customization is invoiced according to the terms mentioned in the quotation. In the event of cancellation of the customization agreement by the Customer, the cancellation compensation is fixed at 50% of the price of acceptance, without prejudice to the compensation for services already rendered and expenses made. The cancellation fee and the compensation for services already rendered and expenses made together cannot exceed the price of acceptance.

8.4. APPLICABLE LAW AND DISPUTES

The relation between the Customer and PHRONEYSS is subject to Belgian law. Disputes pertaining to the interpretation, validity or execution of the present contract shall come under the exclusive territorial jurisdiction of the courts of first instance Antwerp, section Antwerp and the Antwerp Business Court, section Antwerp, without prejudice to PHRONESYSS’s right to institute proceedings before the court of the Customer’s domicile/seat. 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 Customer’s Belgian branch office, as listed in the Crossroads Bank for Enterprises, if any.

Changes to the special terms and conditions of the agreement between PHRONESYSS and the Customer can only be made in writing. The failure of one of the parties to claim a right or apply a sanction does not constitute a waiver of any right. In the event that one or more provisions of this agreement are deemed null and void, unenforceable or otherwise non-binding by the competent court, the other provisions of this agreement shall remain in full force and effect. Parties undertake to replace the void provision with a provision that is valid and reflects the intention of the parties at the time of conclusion of the contract. Each sentence of these general terms and conditions should be regarded as a separate article.