Terms and conditions
iVisual BV (KBO1002.489.258)
iVisual BV - Hereinafter referred to as ‘IV’
Meir 78
2000 Antwerpen
KBO 1002.489.258
Art. 1 Applicability of these terms and conditions
Art. 1.1 - These terms and conditions apply to any agreement between IV and Customer (be it a non-merchant, or a merchant), as well as to any other (legal) act (including an offer) carried out by these party(ies), irrespective of whether it leads to or relates to an agreement.
Art. 1.2 - Applicability of general and/or special terms and conditions of the Client is expressly rejected, both at the conclusion of the agreement and during the course of the previous and further business relationship, even if these terms and conditions had not previously been expressly rejected and had become/are opposable in the past. By entering into a contract with IV, the Customer expressly waives the opposability of its terms and conditions.
Art. 1.3 - Deviations from these terms and conditions shall only be valid if and insofar as they have been expressly agreed with the intention to deviate and in writing.
Art. 1.4 - Should any provision, or part of a provision, of the agreement and/or these terms and conditions be void, invalid or unenforceable, the other provisions, or parts of the provision, shall remain in full force and effect and the parties shall be deemed to have agreed that which most closely approximates the scope of the void, invalid and/or unenforceable provision.
Art. 1.5 - In case of differences between different translations of the agreement/conditions, the Dutch text and its intentions shall always prevail.
Art. 1.6 - No enumeration within the text of the general terms and conditions and agreement, should be understood to be exhaustive, unless otherwise indicated and/or should prove otherwise.
Art. 2 Conclusion of agreements
Art. 2.1 - Any offer made by IV has a maximum acceptance period of 30 days, but is always without obligation. IV is authorised at all times to withdraw an offer it has made without giving reasons. After acceptance of an offer by the Client, this acceptance should still be expressly accepted by IV in order to conclude an agreement.
Art. 2.2 - Products and services, product information, prices, etc. as stated on the IV website are not binding and are always subject to errors, mistakes and changes yet to be made. IV cannot guarantee that its website will be complete and correct at all times, which it does however maintain as its objective.
Art. 2.3 -IV can only be linked by express agreement of its authorised representatives.
Art. 2.4 - IV offers no guarantee as to the result intended by Customer, even if this result is known to it.
Art. 3 Undertakings of IV
Art. 3.1 - IV’s commitments and performances are to be regarded at most as obligations of means and never as obligations of result.
Art. 3.2 - IV is entitled to transfer the performance of its undertakings and all its rights and obligations arising therefrom to third parties to the extent that such transfer does not adversely affect the proper performance of the performance and services. In case of transfer by IV, IV shall be relieved of any obligation towards Customer, its rights and obligations shall be transferred to the transferee.
Art. 4 Prices
Art. 4.1 - All (initial) prices are always in euros and exclusive of VAT and other taxes. IV may (on its website etc.) also indicate prices in other currencies. However, in case of differences etc., the prices in euro shall always take precedence over the prices in foreign currency.
Art. 4.2 - The licence fees are applicable for an annual licence effective on the start date determined by the parties. The first licence fee will be due immediately and invoiced upon commissioning of the software(s). The annual licences of any additional users will be charged once per quarter following commissioning. The number of users is the total number of different users who had an active contract during the reference period.
For subsequent years, the licence fee will always be invoiced for all active users at the beginning of the month in which the 12-month term comes to an end.
All costs relating to access to the software(s), both the costs for hardware, software(s)other than those that are the subject of the agreement, as well as costs forInternet access, shall be borne solely by the licensee. He alone is responsible for the proper functioning of his own computer hardware and internet access.
Art. 5 Licences
Art. 5.1 - IV is active as a licensor in the development and distribution of applications, the content of which is available as application software based on the principle of SaaS. SaaS stands for "Software as aService", where the licensor provides applications over the Internet including the necessary support and control of the system.
Customer wishes to obtain a licence as Licensee for itself and/or its subsidiaries to use the software(s) provided by IV, including related services.The Licensee has ongoing access to future upgrades of the software(s).
Art. 5.2 - IV will set up and configure the licensed software(s). These technical set-up costs are included in the annual licence for the set-up and configuration of the licensed software(s). Costs related to setting up interfaces, SSO, ... or new processes are not included.
The Client shall fully comply with IV’s reasonable requests for information and data necessary for the realisation of the work. All information received by IV from the Client, i.e.personnel data, texts or any other documents, shall be considered final, complete and correct. Any extra work to be carried out because of incomplete or incorrect data will be charged at the applicable hourly rate. If for any reason the Client is unable to meet the delivery dates, IV cannot guarantee the commissioning date and cannot be held liable for any late commissioning.
Subject to these terms and conditions, IV grants Customer a non-exclusive licence to (i) use and run the licensed software(s) located on IV’s application server or that of a party contractually associated with IV as licensor over the Internet and (ii) provide data relating to Customer's use of the licensed software(s) over the Internet.
Art. 5.3 - Licences are always concluded for an initial term of 12 months from the start date or date of commissioning of the software(s) determined by the parties.
After this term, the licence agreement will be automatically renewed for successive 12-month terms, unless written notice of non-renewal is given by either party at least ninety (90) days before the end of the term, except if the agreement is terminated earlier under the conditions set out in these general terms and conditions.
Either party may terminate the licence agreement for a material breach, provided the terminating party gives the other party at least 45 days' written notice and an opportunity to remedy. Termination of the licence agreement for breach shall not prevent the terminating party from taking other remedial action to remedy the breach.
Art. 5.4 - For the use of the Software(s) for their intended purpose and in accordance with the specifications contained in any documentation communicated by Licensor regarding the Software(s), Customer and any existing and future business, wholly or partly owned by Customer or its subsidiaries, may use Licensor's Software(s) and application server(s) subject to the use restrictions set forth herein. Such use and access will be continuous 24 hours a day, except in the case of maintenance interruptions, provided they do not exceed 1 working day per month or in case of a failure beyond the reasonable control of the Licensor. In this case, the Licensor shall notify Customer as soon as it has knowledge of the day when access is not possible.
Customer shall only use the software(s) for internal business activities and shall not allow them to be used by or for the benefit of persons other than Customer. Unless expressly agreed, Customer shall not have the right to transfer the licences or sell or assign rights to access or use the Licensed Software(s). Customer may not modify, translate, reverse engineer, decompile or create derivative works from the Licensed Software(s). Customer agrees to use the Licensed Software(s) in a manner consistent with applicable laws including intellectual property and copyright laws. Licensor expressly reserves all rights not expressly granted to Customer in these terms and conditions.
Customer will: (i) not transfer or communicate the identification or password codes to persons other than the authorised users, (ii) not allow the identification or passwordcodes to be stored in the cache of the proxy server and accessible by persons who are not authorised users, or (iii) not allow the licensed software(s) to be accessed via a single identification or password code made available to multiple users on a network.
Only the Customer is responsible for the use of identification or password codes and for the management of its account and all (trans)actions via these. IV bears no responsibility in this respect.
IV shall be entitled to deny the Customer access to the software(s) in case of breach of the licence, negligence, bankruptcy, cessation of payments or any other cause that seriously jeopardises its rights.
IV bears no responsibility for the operation of the software on Customer's hardware.
At most, the content of the software(s) can be understood as non-binding advice.
IV is not responsible for Customer's use of the software(s), nor for the result intended by Customer, nor for any damage resulting from the use.
Art. 5.5 - During normal business hours on weekdays (Monday to Friday between 09:00 and 17:00 GMT+1), except for Belgian legal holidays, IV will, on a reasonable and necessary basis, provide support regarding the Licensed Software(s) to Customer. If necessary and within 24 hours following the receipt of the request for support, IV will provide reasonable support to Customer via electronic and/or written correspondence.
IV will provide e-mail support to Customer regarding access to the server 24 hours a day, seven days a week.
Art. 5.6 - During the term of the licence and for a period of three (3) years from the date on which the licence was terminated, IV or its representative shall have a right of inspection of all materials, documents, systems and infrastructure of Customer, for the purpose of verifying Customer's compliance with its obligations under the general terms and conditions. The licensor undertakes to observe as much confidentiality as reasonably required by the Customer. The Customer shall bear the costs arising from the application of the right of inspection in the event that the audit reveals infringements of the general terms and conditions.
Art. 6 Training
Art. 6.1 - IV organises, for a fee, training/performances.
Art. 6.2 - In the case of on-site training, the Customer shall provide all normal and reasonably expected necessary facilities (including: internet access, a projector and projection screen, etc.).
Art. 6.3 - The maximum number of participants and the duration shall be determined between the parties in advance. At least 24 hours before the training course/presentation, the Client shall provide IV with a list of participants stating their name, first name, capacity and company. If the maximum number of participants is exceeded, an additional fee shall be payable per additional participant (if the availability of space allows such participation) in accordance with the previously determined arrangements. A lower number of participants will not lead to a reduction in fee.
Art. 6.4 - Cancellation and/or modification of a training course/course is only possible up to 7 days before the day on which it would take place. Failing timely cancellation, a full fee is due.
Art. 6.5 - IV reserves the right to cancel and/or change the training/performance up to 7 days before the start. In this case, the fee already paid will be refunded to Customer within 14 days of notification of cancellation.
Art. 7 Invoicing and payment
Art. 7.1 - All payments must be made by the Customer in euros, and within 15 days of the invoice date in the manner indicated by IV. IV may at any time and without any justification demand full or partial payment at the time of the order. If different, broader payment terms are agreed, this should always be understood as a one-off and per exception. Any possible bank and exchange charges at the expense of IV will be invoiced to the Customer.
In case payment in foreign currency is possible, Customer also guarantees the costs associated with payment other than in euro.
Art. 7.2 - All invoices which remain unpaid on their due date shall, ipso jure and without notice of default, give entitlement to interest on arrears at the rate of 10% per annum from the due date of the invoice on the unpaid invoice amount, as well as to a compensation clause of 10% of the invoice amount (without partial payments being able to lead to a reduction of the compensation clause), with a minimum of EUR 60.00.
In case of payment in foreign currency, Customer is also obliged to reimburse the minus value due to difference in exchange rate.
If the Customer would regularly and/or systematically pay invoices late, this can never be considered an acquired right, even if IV would opt, for whatever reason, not to pass on the fees referred to in this article.
Art. 7.3 - Every invoice is deemed to be accepted unless a complaint concerning the invoice has been notified in a motivated, registered letter within 7 days of the invoice date or receipt date of the digital invoice.
Art. 7.4 - A complaint by the Customer (regarding the invoice or otherwise) will never result in the suspension of the Customer's payment (or other) obligations.
Art. 7.5 - The Customer shall never be entitled to invoke set-off against IV.
Art. 7.6 - In case IV will have to make a refund, it will never be obliged to pay any interest.
Art. 7.7 - Any payment received from the Client shall first be applied to settle any claims which IV may have on the Client, then to settle claims relating to interest, damages, (procedural etc.) costs and (damage)compensation, and then to settle its invoices, in each case the oldest invoices first and this notwithstanding the assignment of the Client and/or his mentions in the payment.
Art. 8 Intellectual property
Art. 8.1 - All intellectual property rights of the services, software(s), etc. offered by IV are and will remain the sole property of IV or a third party as licensor. The Customer, as licensee, will own all content created and posted by it and its users. The texts, images and other items on IV’s website are protected by copyright or other intellectual rights. There production, distribution, ... of these items is not permitted.
Art. 8.2 - Without prejudice to the rights of third parties, the Customer acknowledges and accepts that IV or a third party as licensor is the sole holder of the intellectual property rights specific to the software(s),documentation, trademarks and software(s) used. The elements meant by this and forming part of the intellectual property rights are broadly referred to as intellectual property. Any copy, extract, composition, addition and adaptation of the software(s) by the Customer or by the association of Customers also form part of the intellectual property.
Art. 8.3 - No rights other than those expressly granted by IV in the general terms and conditions are transferred or granted to Customer, notwithstanding anything that may be mentioned in the quotation or any other document originating from IV or from a third party as licensor.
Art. 8.4 - Except as expressly authorised by IV or a third party licensor, Customer shall refrain from (i) renting, distributing, publishing, selling, sub licensing, commercialising, transferring, duplicating, copying, modifying, reproducing, decompiling or de-assembling all or any part of theIntellectual Property reverse engineering the whole or any part of the intellectual property, attempting to discover the source code or underlying ideas or algorithms, engaging in activities aimed at reproducing the whole or any part of the intellectual property; (ii) using all or any part of the intellectual property for the account or benefit of third parties, or to make improvements or modifications to other products or services; (iii) creating derivative works based on the intellectual property; (iv) taking any action that could compromise, limit or affect the licensor's intellectual property rights, reduce the value of the intellectual property rights or seek to acquire the rights to all or any part of the intellectual property, in any jurisdiction. This applies to any part of the intellectual property; (v) contesting (or cooperating with a third party with a view to contesting) the trademarks or their registration, or filing or attempting to file a similar trademark or other feature that may cause confusion due to their similarity to the trademarks. This applies both during the term of the contract and after its termination; (vi) the removal, masking or modification of any mention of the copyrights or copyright, the trademarks, or any other intellectual right displayed on the media forming part of the contract (magnetic media, software, paper, listings, documentation, etc.). Customer guarantees the respect of this clause by any person authorised by it to use or consult all or part of the software(s).
Art. 8.5 - Customer shall immediately inform IV or a third party as licensor in case of infringements by third parties.
Art. 9 - Confidentiality
Art. 9.1 - Customer acknowledges that IV, the software(s) and the other data residing on IV’s or a third party licensor's application server include a methodology of logic, design and coding that constitutes valuable confidential information and is the property of IV or a third party licensor. Customer undertakes to use and protect the software(s) on the application server of IV or of a third party as licensor, whereby Customer shall apply the same degree of care as it does with its own confidential data.
Art. 9.2 - All data related to Customer that have been revealed to IV in the context of the performance of an agreement and that are located on the application server of IV or of a third party as licensor shall not, except with the prior written approval of Customer, be disclosed to third parties or used for any purpose other than the performance of this agreement. IV assures that such data will remain confidential, with IV exercising the same degree of care as it does with its own confidential data. This obligation does not apply to data that is encrypted or that is or becomes generally known or available without IV’s intervention.
Art. 9.3 - IV undertakes to comply with the terms and conditions and to ensure from time to time that its employees and agents comply with the provisions and all relevant legislation in all respects.
Art. 9.4 - IV warrants that it has in place at all times technical and organisational measures and procedures to secure the data in case of unlawful use or unlawful processing, disclosure, accidental loss, destruction or damage of personal data, in particular personal information relating to Customer's employees, agents and customers, collected, received or processed by IV in the context of the execution of the rights and fulfilment of the obligations under the agreement.
Art. 9.5 - IV assures that only its employees and agents (data centres and independent ICT experts), who may be required to help fulfil the obligations under the Agreement, will use the data and will not disclose such data to third parties, except with the prior written consent of Customer. IV guarantees that all its employees and agents will only use the data for the performance of the obligations under the Agreement. It is hereby agreed that the data shall at all times remain the property of Customer and, furthermore, that the data shall only be used by IV as described above.
Art. 9.6 - IV agrees that, in the event of termination of the agreement and unless otherwise decided by Customer, it will destroy all data on its database that it obtained and handled during the term of the agreement through software(s) for the benefit of Customer. Prior to termination, Customer will have the opportunity to download all data on its database from the software(s).
Art. 9.7 - The confidentiality obligation remains valid for 5years after the term of the agreement for whatever reason.
Art. 9.8 - Customer undertakes to remove all elements and documents relating to the software(s) from all portable devices, hard drives and other storage media that have not been returned to IV or a third party as licensor and to destroy all copies of documents relating to the software(s) that remain in its possession or under its control.
Art. 9.9 - The terms and conditions, including prices, will not be passed on to third parties unless otherwise required by law or by an audit of the acquisition of any of the parties or by a similar transaction or by legal proceedings relating to the parties.
Art. 9.10 - IV and Customer agree that their trade names (and associated logos) and quality may be mentioned on their websites, in press releases and marketing materials. Any other use of the parties' trade name, logo, distinctive features or trademarks is subject to their prior written approval.
Art. 10 Absenteeism and liability
Art. 10.1 - Any failure by the Client, whether serious or not, to comply with obligations, and/or if IV has good reason to fear that the Client will fail to comply with its obligations towards IV, the Client shall immediately, and without prior notification or notice of default being required, be in default.
Art. 10.2 - Without prejudice to IV’s other rights, in case of negligence by Customer, as well as if Customer's assets are seized, Customer is granted suspension of payment or Customer is declared bankrupt, and/or Customer's business is fully or partially - temporarily or permanently - shut down and/or liquidated:
- all that the Client owes IV for whatever reason and any other kind of obligation to IV becomes immediately due and payable, irrespective of whether an invoice, where applicable, has already been drawn up and/or sent and irrespective of any agreements to the contrary;
- IV shall be entitled to dissolve the Agreement in whole or in part and/or to suspend compliance with any obligation - and in that case to make compliance subject, if it so wishes, to the provision of security within a period to be determined by it - until the Customer has fully complied with all its obligations towards IV, irrespective of whether those obligations of IV are related to the obligation that the Customer has failed to comply with or has failed to comply with properly;
Art. 10.3 - If the Agreement between IV and the Customer is terminated and/or dissolved in any way due to a circumstance that can be attributed to the Customer, IV shall be entitled to compensation immediately payable by the Customer amounting to 20% of the amount of theAgreement. IV shall at all times be entitled to compensation for a higher damage actually suffered.
Art. 10.4 - IV shall at most and only be liable, contractually and/or extra-contractually, for direct damage and this limited to the amount covered by its insurance. If no cover is available, for whatever reasons, IV’s said liability shall be limited to an amount of EUR 5,000.00.
Art. 10.5 - IV shall never be liable for trading losses, lost profits or other indirect and consequential damages and losses.
Art. 10.6 - IV is not liable for hidden defects.
Art. 10.7 - Customer shall in no way be entitled to dissolve or annul the agreement in whole or in part, to claim or invoke its dissolution or annulment in court or to suspend the fulfilment of obligations.
Art. 10.8 - Regarding the use of the licensed software(s), IV can never be held liable for the loss of data, ...
Art. 10.9 - The parties shall not be liable to each other for any special, indirect or consequential loss or damage incurred or suffered by the other party resulting from or relating to the use of the software(s), whether of a contractual, delictual or other nature, even in the event that the other party was advised of the possibility of such loss or damage. Customer shall indemnify and hold IV or a third party as licensor harmless from any claim received by IV or by a third party as licensor, directly or indirectly resulting from a breach of the Agreement by Customer. The latter shall also bear the related reasonable costs, expenses and attorneys' fees. Conversely, IV shall indemnify and hold Customer harmless from any claim received by Customer, directly or indirectly arising from a breach of the Agreement by IV. The latter shall also bear the related reasonable costs, expenses and attorneys' fees.
Art. 10.10 - The total liability of IV or any third party as licensor in respect of the agreement, regardless of the cause or theory of recovery, shall not exceed 50% of the total amount of fees invoiced to Customer and paid by Customer during the 12 months immediately preceding the event, actor omission that led to the claim.
Art. 10.11 - Customer agrees that IV or a third party as licensor may assign all rights and obligations of the Agreement to third parties to the extent that such assignment does not adversely affect the proper performance of the performance and services covered by the Agreement. In case of assignment by IV, it shall be relieved of any obligation towards Customer, its rights and obligations shall be transferred to the assignee.
Art. 11 Force majeure
Art. 11.1 - Force majeure for IV includes all facts and circumstances, which hinder, delay or prevent the fulfilment by IV of its obligations, including, but not limited to, strikes and/or lock-outs, illness, staff shortages, fire, natural or other disasters, war, riots, unavailability of utility supplies (electricity, internet, ...), measures and/or restrictions of any nature taken by local, national or supranational authorities.
Art. 11.2 - The above also applies when the force majeure occurs with suppliers or other third parties.
Art. 11.3 - In the event of force majeure, IV shall have the option either to suspend its commitments (in part or in full), in particular to extend the delivery period by the period of force majeure plus the period required for restart, or to declare the agreement (in part or in full)dissolved, without being liable for any compensation or other obligation in this respect.
Art. 11.4 - The parties will not be held liable for any delay or non-performance of any part of the contract to the extent that such delay is the result of force majeure.
Art. 12 GDPR
Art. 12.1 - The licensor and the licensee undertake to comply with European data protection legislation (based on the European Directive 95/46/EC and the General Data Protection Regulation (GDPR) - in accordance with EU Regulation 2016/679 of 27 April 2016).
Art. 12.2 - Customer acknowledges, takes note of and expressly consents to his personal data being stored and processed. The law of 08/02/1992 on the protection of privacy is applicable.
Art. 12.3 - The data may be used for the following purposes:
- To leave information about IV’s products;
- the creation of a database of persons willing to participate in surveys;
- evaluating potential participants per study;
- the processing of research answers;
- summarising research findings;
- conducting investigations in-house or for third parties and/or providing consultancy to third parties;
- pass on to third parties conducting research and/or providing advice on behalf of and under the direction of IV;
- transferring personal data to a subsidiary or group company;
- compliance with statutes and regulations;
- the (direct) marketing of products of IV, including those of its affiliates, and third parties;
- transferring to third parties providing services to IV;
- contacting by e-mail to invite to participate in surveys;
- achieving IV’s overall goals;
Art. 12.4 - Customers may object to the processing and/or use of their personal data for the aforementioned purposes at any time, free of charge, by writing to the aforementioned controller.
Art. 12.5 - Customer may at any time request inspection and/or correction and/or deletion of data free of charge.
Art. 12.6 - Data relating to racial or ethnic origin, political views, religious or philosophical convictions, membership of (professional) associations, physical or mental health or sexual life may be requested and/or processed, but only with the Customer's express consent.
Art. 13 Applicable law and competent court
Art. 13.1 - The legal relations with IV and Customer, which also includes these terms and conditions, are exclusively governed by Belgian law.
Art. 13.2 - The parties agree that they will make every effort to resolve amicably any dispute that may arise from the implementation or interpretation of the Agreement and any contract or document covered by it. To this end, in case of a disagreement between the parties, they will initially identify the differences and exchange in writing the elements of the dispute and this within a period of fifteen (15) working days from the moment it was decided to initiate the procedure to reach an amicable agreement. This document consists of four separate sections (this does not include the annexes that contain the documents added by the parties to clarify their position): (i) the facts, (ii) the analysis of the cause of the dispute, (iii) the description of the actions or measures taken by the parties or by one of the parties to resolve the dispute and their effects and (iv) the description of the proposals made to reach a resolution of the dispute.
Based on the foregoing, the parties shall meet (with or without an external mediator) withint he fifteen (15) days following the written exchange of this proposal and jointly or separately prepare a document containing the points of convergence (with any agreed solution to the conflict) or the points of divergence.
Art. 13.3 - In case of disputes between IV and the Customer, which cannot be settled amicably, the court of IV’s principal place of business shall have jurisdiction to the exclusion of any other court. Nevertheless, IV is also authorised to bring the dispute before the court of the Client's principal or secondary place of business.
