Terms & conditions

Last update: 13/01/2025

  1.  Definitions 

A.1. “Service” means an installation, maintenance, support, consulting, specialist, training or software service or other service that is the object of the contract. 

A.2. “Object of Delivery” means products and services that are the object of the contract. 

A.3. “Product” means a device, instrument, software, information system or other corresponding product that is the object of the contract, as well as related user instructions or other documentation. 

A.4. “Contract” or “Service Contract” means the actual Contract to which these contractual terms have been appended. 

  1. General duties of the Provider

B.1. The Provider is responsible for the Service being carried out per contract, carefully and with the professional skill required by the task. 

  1. General duties of the Client

C.1 The Client is responsible for providing the Provider with accurate and sufficient information, as required under the contract, to facilitate the delivery of the agreed services. The Client accepts liability for the accuracy and completeness of the information and instructions it provides.

  1.  Pricing 

D.1. Pricing for the services shall be in accordance with the terms outlined in the Sales Order, Statement of Work, or any other governing document mutually agreed upon by the parties.

D.2. If the price of a product or service is subject to adjustments based on specific criteria, it will be revised to reflect those changes. The baseline for such adjustments will be the value or rate applicable on the date the contract was signed.

D.3. The Provider is entitled to change the recurring price for a product or service by notifying the Client about the change or basis for the change in writing no later than 30 days before the change enters into force. In such a case the Client is entitled to terminate the relevant portion of the contract with an end date of the date of entry of the change into force by giving written notice of this no later than 15 days before the change enters into force. In such a case, the Client is entitled at the same time to terminate the contract in question for such products or services as the Client may not, to a substantial extent, gainfully use due to the aforementioned termination. The price change has no effect on payments for billing periods before it comes into effect. 

D.4. Prices include public payments set by the authorities in force on the day of signature of the contract, with the exception of value added tax (VAT). VAT is added to prices in accordance with regulations in force at the time. If the sise or basis of the public payments set by the authorities changes because of a change to regulations or taxation practices, prices shall change accordingly. 

D.5. The Provider is entitled to invoice for travel time based on the agreed billing method, with the shortest one-way journey serving as the basis for calculation. Other travel arrangements will be agreed upon separately.

D.6 All project tasks, whether initially scoped or added later, are considered estimates and serve solely as an indication of expected work. The Provider will invoice for all work in accordance with the agreed billing method. This includes tasks that exceed the initial estimates as well as any additional tasks that arise during the project. The Provider will inform the Client of any anticipated exceedances or additional tasks as soon as they become apparent and will continue with the work only upon ongoing project alignment, without requiring separate approval for each task.

D.7 Due to Client-Supplied Information The Provider is entitled to invoice the Client separately for additional costs that arise due to incorrect or incomplete information provided by the Client. This includes additional time spent correcting or compensating for such issues, invoiced in accordance with the agreed billing method.

  1. Payment terms

E.1 Payment terms and installments are to be agreed upon in writing between the parties. In the absence of specific agreements, standard billing practices as detailed below will apply.

E.2 Unless otherwise agreed upon in writing, services will be invoiced at the end of each month based on actual hours worked, supported by an itemised statement detailing the tasks performed and corresponding hours.

E.3 The Provider commits to providing regular updates on project progress. Any tasks that extend beyond the scope of the initial estimates will be continuously communicated, and the billing will reflect the actual time spent on these tasks without requiring further Client approval unless specifically requested by the Client.

E.4 Given the agreement that all work is billed on an agreed billing method, separate approval for work outside the original scope is not required. The Provider will keep the Client informed about any new requirements or additional tasks and incorporate them into the ongoing work and billing cycle.

E.6 The Client must notify the Provider of any discrepancies or disputes related to billing within 14 days of receipt of an invoice. The Provider commits to resolving any such issues promptly and transparently.

E.7 Payments not made by the due date will incur a late fee of 2% of the outstanding amount per week of delay. If a payment is delayed beyond 15 days, the Provider reserves the right to pause or terminate ongoing services until the outstanding balance is cleared.

  1. Service guarantee

F.1 The Provider commits to delivering high-quality services that meet the agreed-upon specifications and industry standards. All services, including those provided during the warranty and guarantee periods, are executed on an agreed billing method, with all hours worked billed at the agreed pricing terms.

F.2 Prior to any go-live events, the Client must conduct thorough testing of all delivered services and systems. This testing is crucial to ensure that the systems function as expected in the Client’s operational environment. The Provider will assist in the testing phase by providing necessary support and guidance. The Client's proactive engagement in the testing process is essential for the successful deployment of services.

F.3 Recognising the importance of critical go-live moments, the Provider commits to providing enhanced support during these periods. While not committing to specific outcomes, the Provider pledges to allocate appropriate resources to monitor, assist, and address any issues that arise during the go-live period promptly.

F.4 The Client is responsible for providing timely feedback and information throughout the service delivery process. This includes promptly notifying the Provider of any issues encountered during testing or operation, allowing for swift resolution. The effectiveness of the services rendered is dependent on the timely and collaborative effort of both parties.

F.5 In the event of service issues, the Provider will make every effort to resolve the problems promptly and efficiently, consistent with the high standards of service quality set forth in this agreement. Issue resolution processes will be initiated immediately upon receiving written notification from the Client, detailing the nature of the issue.

F.6 This Service Guarantee does not cover issues that arise due to improper use of the services, external interference, or client modifications made without the Provider’s written consent. Additionally, while the Provider commits to rapid response and issue mitigation, the guarantee does not imply liability for issues that are beyond the Provider’s reasonable control.

  1.  Subcontractors 

G.1. Unless otherwise agreed in writing, a party is entitled to have contractual tasks carried out by a subcontractor. A party must give the other party, upon request, necessary information about its subcontractors who are carrying out tasks related to the object of the delivery. 

  1. Data security & backups

H.1. A party and its subcontractors must ensure data security and backup copying by following arrangements agreed in writing by the parties and the legislation binding the party in question. In so far as the parties have not agreed upon data security and backup copies in writing, the terms terms per paragraphs H.2–H.4 are applied.

H.2. A party must ensure that a part of the object of delivery and the party’s own environment that is its responsibility per the contract, such as devices, communication network, service delivery premises and working premises that are the party’s responsibility, are secured against data security risks per appropriate data security practices observed by the parties and that the processes related to protection and data backup are observed. Neither party is responsible for general communication network data security or disturbances possibly arising therein. 

H.3. A party is obliged to notify the other party without undue delay about significant data security risks, data security breaches, or suspicions thereof, endangering the object of the delivery which it notices. A party must, for its part, immediately take measures to remove or mitigate the effect of a data security breach. A party is obliged to facilitate the investigation of data security breaches. 

H.4. A party is responsible for backing up its own data and files as well as for checking their functionality.

  1. Intellectual property rights

I.1. Nothing in this contract will function to transfer any of either Party’s pre-existing Intellectual Property rights.

I.2. Unless otherwise agreed in writing, the Client and a company in the same group as the Client at the time pursuant to the Accounting Act is entitled to use documents created as a result of the specialist service and other results in its internal operations. Within the framework of the usage right, the Client has the right to copy freely and the right to use documents arising as a result of the specialist service and other results as a basis for further work, as well as the right to do or have done changes to them in other respects excluding the Applications developed by the Provider. The Client is not entitled to sell or in other ways disclose documents created as a result of the specialist service or other results to third parties in any way other than for the aforementioned purpose. 

I.3. The contract does not affect rights to materials which the parties disclose to each other for the delivery of the specialist service. 

I.4 The Client has the right upon ending the collaboration to request administration access to the source code repository, hosting environment, and any associated project database required for ongoing operations. The Provider will transfer access within 5 working days, ensuring all necessary credentials and files are provided to support continued use.

  1.  Applications developed by the Provider

J.1. The Provider specialises in application development. During the development phase, applications may be made available to the Client for testing and feedback. These applications may be further developed either free of charge or for an additional cost, with any charges communicated to the Client in advance.

J.2. Applications developed by the Provider may be distributed directly by the Provider or through third-party platforms, including but not limited to app marketplaces. When available through a third-party platform, terms, service descriptions, and pricing will be displayed on the respective platform.

J.3. If the Contract includes specific provisions related to applications, those provisions will take precedence and be applied in the first instance.

J.4. All intellectual property rights to applications developed by the Provider shall remain the property of the Provider.

  1.  Non-disclosure

K.1. A party commits to keep materials and information received from the other party which are marked as confidential, or which are to be understood as such, as confidential, as well as not to use them for purposes other than those pursuant to the contract. However, the non-disclosure obligation does not extend to materials or information (a) which is generally available or public in another way, (b) which the receiving party has received from a third party without a non-disclosure obligation, (c) which was at the disposal of the receiving party without an applicable non-disclosure obligation before receiving them from the other party, (d) which the receiving party has independently developed without the use of materials or information received from the other party, or (e) which the receiving party is obligated to disclose pursuant to law or an order from an authority. 

K.2. A party is obligated immediately to stop using confidential material and information received from the other party and, upon request, to return or destroy the said material and all copies in a reliable fashion when the contract ends or when the parties no longer need the said material or information for contractual purposes. A party is nevertheless entitled to retain materials pursuant to law or orders of authorities. 

K.3. A party is entitled to leverage its expertise for service delivery. 

K.4. Unless otherwise agreed in writing, these rights and obligations end 5 years after the termination of the contract. All information and materials, excluding the custom code, must also be destroyed after these 5 years.

K.5 The above-mentioned NDA terms (K.1,K.2,K.3 and K.4) also apply on any materials and information that were received during the discovery and analysis part of the project. 

K.6 The confidentiality obligations outlined in this agreement will remain in effect for a period of 5 years following the termination or expiration of this agreement.

  1. Personal data processing

L.1 Roles and data processing 

12.1.1. The Provider acts, in the cooperation, as a data processor pursuant to the EU General Data Protection Regulation (679/2016, GDPR) and the Client as the data controller. 

L.1.2. The Provider will act in accordance with GDPR as described in this paragraph 12., unless separately agreed to act in accordance with any other regulation or Client introductions; in that case, the written agreement will be added as an appendix to the Contract. 

L.1.3. Any personal data processing occurs by order of the Client and on the Client’s behalf. The Provider must take the appropriate technical and organisational measures to tackle and prevent the unauthorised and illegal processing of personal data as well as to tackle the unintended loss, modification, destruction or damage to personal data. 

L.1.4. The Provider must ensure that persons processing personal data have committed to a non-disclosure obligation or that they are covered by appropriate statutory non-disclosure obligation and that personal data are only processed in conjunction with work tasks for the necessary usage purposes.

L.1.5. The Client is entitled to give the Provider binding written instructions on the processing of personal data, and the Provider commits to following them. The Provider shall immediately notify the Client if the Provider thinks that the Client’s instructions break data protection legislation. 

L.1.6. The Client must, as data controller, take the necessary measures to ensure that the processing of data being transferred to the Provider is, as far as the Client is concerned, in accordance with data protection legislation. 

L.1.7. The Provider shall inform the Client, without undue delay and in writing, of all data protection breaches concerning personal data, and of other events on the basis of which the data security of personal data processed on behalf of the Client has been compromised, or when the Provider has reason to believe that data security may have been compromised. Upon request of the Client, the Provider must offer the Client all appropriate information on the data security breach. The Provider must also inform the Client of actions taken on the basis of a data security breach. 

L.1.8. The Provider must, without delay, upon receipt of a request from the Client, offer the Client all information which the Client may need to honour data subjects’ rights, including the rights of access, or to fulfil data protection requirements or instructions. The Provider shall without delay inform the Client of all requirements or inquiries from data subjects, the data protection ombudsman or other authorities. The Provider is entitled to charge for these tasks in accordance with the parties’ contract, or, if the price has not been agreed, in accordance with the Provider’s general price list. 

L.2. Location of personal data 

L.2.1. The Provider is entitled, for the provision of the service, to transfer data freely within the European Union and European Economic Area. Unless otherwise agreed in writing, the Provider is also entitled to transfer personal data outside the European Union or European Economic Area in accordance with data protection legislation, recognising that compliance is an ongoing process and the Provider is actively working towards ensuring full compliance. The Client is entitled at any time to receive from the Provider information on the location of processing of personal data and the measures taken towards full compliance.

L.3. Use of third parties in processing personal data 

L.3.1. Unless otherwise agreed in writing, the Provider is entitled to use another data processor as its subcontractor when processing personal data. 

L.4. Deletion and return of personal data

12.4.1. During the validity of the contract, the Provider may not delete personal data it processes on the Client’s behalf without the Client’s explicit request. 

L.4.2. When the Contract ends, the Provider shall, in accordance with the Client’s choice, remove all personal data processed on the Client’s behalf or return them to the Client, as well as delete all copies thereof, unless legislation requires the Provider to retain the personal data. If the Client does not request the deletion or return of personal data processed on its behalf, the Provider shall retain personal data processed on behalf of the Client for six (6) months after the end of the contract, after which the Provider must remove all copies thereof, unless legislation requires the Provider to retain the personal data. 

  1. Delays, annulment and termination of the contract 

M.1. If a party notices that a delay occurs or is likely, the party must without delay inform the other party in writing of the delay and its impact on the delivery schedule. 

M.2. If it has become clear that fulfilment of the contract will be delayed by over 90 days because of a force majeure obstacle, the party which is not facing a force majeure obstacle shall be entitled to annul the contract wholly or partially without either party being entitled to compensation for damages. 

M.3. If delivery is delayed because of a reason not due to the other party and does not occur within a reasonable extra period, of no less than 30 days, set by the other party in writing, the party shall have the right to annul the contract with regard to the products and services the delivery of which has been delayed, provided that the delay is substantially significant for the party and that the other party understood or should have understood this. 

M.4. A party is entitled to annul the contract wholly or partially when the other party substantially breaches the contract in some other respect and the breach is materially significant to the first party. However, annulment of the contract requires that the aggrieved party must first provide two written confirmations detailing the substantial problems caused by the breach and the expected resolutions. The party in breach must then fail to repair the contractual breach within a reasonable period, which shall not be less than 15 days but no more than 30 days, after receiving these written confirmations. This process ensures that both parties have adequate notice of the issues and sufficient time to address them, thereby promoting fairness and diligence in rectifying contract breaches.

M.5. The Provider is also entitled to annul the contract wholly or partially when the Client does not make a due and correctly charged payment within 15 days of a written notice of the payment falling due, and the Client has not given the Provider acceptable assurance of the completion of contractual payments. 

M.6. If the Client annuls the contract with regard to a product or service, the Client has the right to annul contracts between the parties at the same time for products and services relating to the same delivery entity for which the Client may no longer use for its benefit because of the aforementioned annulment. 

M.7. A party must inform the other party in writing of the annulment of the contract for the annulment to be valid.

M.8. If a party is entitled to annul the contract, the party is also entitled to withhold performance by informing the other party of this in writing. The party’s right to withhold performance ends if the other party, without delay upon receipt of the annulment notice, either provides acceptable assurance of the fulfilment of the contract or gives another reliable explanation of fulfilment of the contract. 

M.9. The notice period for terminating a contract are two (2) calendar months. The notice period is calculated from the end of the month during which notice has been given. The Client may use the Service normally during the notice period. A normal monthly fee is charged during the notice period. If the contract is fixed-term, then notice must be given one (1) month before the fixed term period ends, otherwise, the contract will be renewed automatically. No refunds of prepayments will be made if termination is made by the Client. The Client must give written notice of termination of the contract to info@deardigital.com. 

  1. Force Majeure

N.1. A party is not responsible for a delay or damage which arises from an obstacle beyond the influence of the party which the party could not reasonably have been expected to consider at the moment of signing the contract and the consequences of which the party could not reasonably have been expected to avoid or overcome. Unless otherwise proven, a force majeure obstacle shall be considered, for example, war or rebellion, earthquake, flood or another comparable natural disaster, interruption to general traffic, general data traffic or general electricity supply, prohibition or imports or exports, strike, work stoppage, boycott or other comparable labour struggle measures. Unless otherwise proven, a strike, work stoppage or boycott or other comparable labour struggle measures shall also be considered force majeure obstacles when a party is itself the object or a participant. 

N.2. A force majeure obstacle facing a party’s subcontractor is also considered a party’s force majeure obstacle if the subcontracted performance cannot be done or sourced from elsewhere without unreasonable costs or a substantial delay.

N.3. A party must without delay and in writing inform the other party about a force majeure obstacle and its cessation. 

  1. Compensation obligation and liability limitations

O.1. A party’s contractual damage compensation obligation to the other party is, excepting possible delay, service level or other contractual fines or credits, no more than 10% of the total VAT-free price of the object of the delivery. If the object of the delivery is a product or service that is totally fixed-term or invoiced with recurring payments with validity until further notice, the damage compensation obligation is, however, excepting possible delay, service level or other contractual fines or credits, no more than 10% of 6 times the total VAT-free monthly fee of the said product or service at the moment of the breach. If a party is obligated to pay delay, service level or other contractual fines or credits, the party is additionally obligated to pay compensation obligation only to the extent that the amount of damage exceeds the delay, service level or other contractual fines or credits. 

O.2. A party is not responsible for indirect damage nor the destruction, loss or changes to the other party’s data or files, or for damage and costs arising from this, such as costs for recreating files. 

O.3. Liability limitations do not apply to damage caused a) by the illegal or non-contractual disclosure, copying or usage of the object of the delivery, b) through willful or gross negligence.

  1. Applicability of terms

P.1. If any of the circumstances included in these terms is deemed inapplicable through a legal decision, that shall have no effect on these terms as a whole. The term deemed inapplicable shall be replaced with a term more appropriate for the meaning of the term by the Provider.

R. Hiring limitation

R.1. A party may not hire a current or former employee of the other party, who performs or has performed crucial tasks related to the Contract or Service, nor may it conclude another contract or otherwise agree upon arrangements that intend to acquire said person’s working contribution, before 12 months have passed since the end of the said specialist service or employment, whichever is earlier. If a party breaches the hiring limitation mentioned in this section, the party shall be obligated to pay the other party, as a contractual fine, a sum equal to the said person’s 12 months’ taxable gross salary. 

R.2. However, the hiring limitation shall not be applied if the said person’s employment ended because of a reason due to the employer. 

S. Transfer and amendment of the contract

S.1. A party shall not have the right to transfer even a part of the contract without the other party’s written consent. Consent may, however, not be denied without a justified reason, if the recipient of the transfer commits in writing to fulfil the contractual terms and the transfer is made to another company in the same group, pursuant to the Accounting Act, as the party, or in conjunction with a business transfer. 

S.2. The Provider, however, is entitled to transfer its contractual receivables to a third party. 

S.3. Changes or additions to the contract must be agreed upon in writing to be valid. 

T. Right to use as a reference 

T.1. By entering into this agreement, the Client grants the Provider the right to reference the Client's name and the collaboration as a case study or reference in marketing materials, subject to prior notification. 

U. Validity of the contract

U.1. Unless otherwise agreed, this agreement takes effect upon mutual acceptance of the Sales Order and will remain in force until terminated in accordance with the agreed terms.

V. Applicable law and dispute resolution

V.1 Belgian Law is applied to the contract. 

V.2. Disputes arising from the Contract shall be resolved conclusively through arbitration in accordance with the arbitration rules of the Belgian Chamber of Commerce. The arbitration court shall contain one member.