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    General conditions

    Article 1. Applicability

    1.1 These Terms and Conditions apply to all commercial transactions of BUILD-SOFTWARE BV, with registered office at Begijnendijksesteenweg 59, 2230 Ramsel (Herselt), Belgium, VAT-BE-0460.975.573 – RPR Leuven (hereinafter referred to as “BUILD-SOFTWARE”).

    1.2 Together with any accepted orders, special conditions and applicable license terms, they constitute the agreement between the parties. Any terms and conditions of the customer do not apply.

    1.3 BUILD-SOFTWARE shall be entitled to amend these Terms and Conditions upon notice to the Customer. Notification includes publication on the website www.build-software.eu/bedrijf/algemene-voorwaarden, on the invoice or via e-mail. These amendments will then take effect one (1) month after notification, unless a later date is specified.

    Article 2. Application documents

    2.1 The service(s) and/or license(s) that BUILD-SOFTWARE will provide are described in the application document. Unless otherwise stated, an application document has a thirty (30) day validity period. An order placed based on an application document shall be deemed accepted if BUILD-SOFTWARE does not refuse the order within eight (8) days.

    2.2 Solicitation documents are always estimates in the sense that they are based on information available at the time the solicitation document is prepared and, where applicable, third-party prices. Incorrect or new information, or price changes by third parties may result in changes to the terms and/or price.

    Article 3. Prices

    3.1 All prices quoted are exclusive of VAT, accommodation and travel costs, and are valid in Belgium and during office hours.

    3.2 For services outside Belgium, the rates stated in the application document are increased by 25% within the EU and 35% outside the EU, respectively.
    3.3 Outside normal business hours, the rates stated in the application document are increased by;

    • 25%; weekdays until 9 p.m.
    • 50%; weekdays after 9 p.m.
    • 50%; Saturdays until 5 p.m.
    • 100%; Saturdays after 5 p.m.
    • 100%; Sundays

    3.4 Travel costs within Belgium will be charged at €0.80 per km, with a minimum of €100. If the customer does not provide parking, parking fees will be charged at actual cost.
    3.5 For services outside Belgium, expenses will be charged as follows; travel, parking and hotel expenses = actual cost; travel time (both directions) at 70% of the hourly rate; “out of pocket” expenses = flat rate per person per day at the latest rate “daily flat rate compensation for Personnel Headquarters” as published in the Belgian Official Gazette. In addition, an administrative fee of €50 will be charged for arranging flight and hotel (per booking), unless if the customer undertakes this. In that case, the customer should make sure to coordinate with BUILD-SOFTWARE so that everything is in place in a timely manner (visa etc.).

    3.6 All prices, rates and charges will be adjusted annually at the beginning of the year based on the formula Tn = To (0.2 + 0.8 (Sn/So)) (where Tn = new rate; To = old rate; Sn = reference hourly wage costs (national average – wages and social charges) published by Agoria, valid the month prior to the price adjustment; So = reference hourly wage costs (national average – wages and social charges) published by Agoria, valid the month prior to the conclusion of the contract.

    Article 4. Billing

    4.1 The probable quantities, included in the application document accepted by Build-Software are an estimate of the deliverables and services, taking into account the parameters known at the time of acceptance of the application document.

    4.2 Licenses are billed in advance based on the accepted application document. There will be no credit or refund for prepaid licenses that were not used.

    4.3 Cloud computing services are billed monthly in advance.

    4.4 Services are invoiced after delivery.

    4.5 Complaints regarding invoices must be notified to BUILD-SOFTWARE by registered mail within eight (8) days of receipt.

    4.6 Payment will be made within fifteen (15) days of the invoice date. Failing this, the amounts due will be increased, ipso jure and without prior notice of default, at the interest rate stipulated in the Law of August 2, 2002 on combating late payment in commercial transactions from the due date. In addition, the amount due will be increased by 10%, with a minimum of €150. Court costs and costs of execution are not included in this amount. Non-payment of a single invoice makes all other invoices, even those not due, immediately due and payable by operation of law. BUILD-SOFTWARE reserves the right in such case to suspend further performance and can therefore no longer be held liable for any agreed schedule etc.

    4.7 If there are reasonable grounds to doubt the Customer’s creditworthiness, BUILD-SOFTWARE shall be entitled to demand additional security for payment and until such time to suspend the further execution of the contract.

    Article 5. Implementation

    5.1 BUILD-SOFTWARE shall use its best efforts to provide the license(s) and/or service(s) in accordance with the agreement.

    5.2 Stated delivery and execution deadlines are approximate and shall only take effect when all (technical) details have been agreed upon and after all data or materials useful for the execution are in BUILD-SOFTWARE’s possession and BUILD-SOFTWARE has received any advance payment. The time periods specified have always been set with the expectation that BUILD-SOFTWARE can continue to operate as anticipated at the time of the application document.

    5.3 Customer shall ensure that the necessary delegates are available to provide BUILD-SOFTWARE with the required clarifications regarding Customer’s existing hardware and software. The Customer shall also provide the necessary facilities including, parking, adequate work space (adequately lit and ventilated), power supply, communication facilities (including a connection capability to BUILD-SOFTWARE’s server(s)), access to the Customer’s work environment (limited, of course, to and for the performance of the Agreement) and the like. Where necessary, BUILD-SOFTWARE shall be granted permission and access to perform work outside normal business hours.

    5.4 The customer is aware that the execution of the agreement may in certain cases lead to a temporary unavailability of parts of the work environment. BUILD-SOFTWARE will consult with the customer in such case.

    5.5 Customer shall provide BUILD-SOFTWARE in writing with all necessary information in a timely manner to enable BUILD-SOFTWARE to correctly estimate and perform the services to be provided.

    5.6 In order to obtain a favorable outcome, the customer will assign sufficient qualified personnel. Such personnel will not be replaced during the term of the agreement except in the event of layoff, extended illness or force majeure, or subject to written agreement between the parties. If the personnel assigned to the contract are nevertheless replaced, the new employees will have equivalent qualifications. The customer accepts that substitutions or unavailability of those in charge in its project organization may result in a longer project execution time and, therefore, a higher cost.

    5.7 In the event of additional work, BUILD-SOFTWARE will transmit a request document to the customer.

    Article 6. Completion

    6.1 Standard software (being generally available and not specially developed within the framework of the agreement, even if modifications or extensions have been made for the benefit of the customer, but within the basic capabilities of this software) shall be deemed delivered as soon as delivered, installed if necessary, in performance of the agreement. The maintenance agreement and cloud computing services take effect from the signing of the order.

    6.2 Tailor-made software (being software implemented by BUILD-SOFTWARE within the framework of the agreement including in particular: integrated code and functional objects in the standard software, integral add-ons, being functional-technical wholes that together form a system or subsystem, additionally added to the standard software in order to meet the specific computerization needs and wishes of the customer as defined in the agreement and which are not contained in the standard software on the contract date) shall be considered delivered and accepted as soon as it has been installed and is functioning in a test environment at the customer’s premises and with the customer’s consent transfers to the working environment (“live”). The same applies if the whole or any part of the tailor-made software was in any way put into use by the customer and thus installed in the working environment.

    Article 7. Right to use

    7.1 Customer agrees to the license agreement(s) applicable to the delivered software. To the extent not already governed by the applicable license agreement of the software in question, the following provisions apply.

    7.2 The customer is granted only a non-transferable and non-exclusive right of use on the software (both standard and tailor-made).

    7.3 This right of use includes the right for the customer to use the delivered software on the indicated or specified devices for the needs of his company, i.e. internal use, together with the corresponding documentation, and to make copies of the software. These copies will not be used by the customer but will only be used to replace the original material that has become unusable; they are subject to the provisions of the license and can only be used within that framework.

    7.4 A separate license is required for each device on which the customer uses the software (unless otherwise determined by the software owner). However, the customer may use the software on a fallback machine (other hardware) on a temporary basis and for a maximum of a one-time period of one month, when the specified device is temporarily unusable.

    7.5 Customer is not permitted to sell, lease, dispose of or transfer by way of security any part of the software or to apply it other than for its own use and business as provided in the agreement

    7.6 If the customer transfers to third parties, without BUILD-SOFTWARE’s prior written consent, any part of the software delivered or performed in execution of the agreement, he shall be liable to BUILD-SOFTWARE for liquidated damages calculated as follows (higher of the following amounts): either the sums originally charged by BUILD-SOFTWARE for performance of the agreement as well as additional interventions, increased by 30%, or the price charged by BUILD-SOFTWARE to other customers, according to contracts or tariffs to be submitted at the time of the infringement, for similar licenses and/or services, also increased by 30%

    7.7 The above applies without prejudice to any damages or amounts that the customer will have to pay on account of infringements of license agreements or property rights of third parties.

    Article 8. Warranty

    8.1 BUILD-SOFTWARE shall use its best efforts to ensure that the delivered software complies with the included specifications provided that it is used by the customer in an appropriate environment in accordance with the instructions and that the customer has provided BUILD-SOFTWARE with the appropriate information regarding its system, mode of operation and objectives

    8.2 If the Software fails to function in accordance with the warranty provided during the first fifteen (15) days following delivery, and if BUILD-SOFTWARE is unable to remedy the same, the Customer may return the Software, upon which BUILD-SOFTWARE will refund the same.

    8.3 BUILD-SOFTWARE undertakes to perform the service(s) with care, and in accordance with the agreement.

    8.4 The above warranties shall not apply in the event of improper use, accident, modification, use in an inappropriate physical or operational environment, or in any other than the intended operating environment, improper maintenance by the Customer, or defect caused by any software or product for which BUILD-SOFTWARE is not responsible.

    Article 9. Support

    9.1 Support: upon payment of the “Support fee”, BUILD-SOFTWARE shall provide telephone support for problems/questions related to the contracted software. The customer can contact the helpdesk by telephone and e-mail during normal working hours (Monday to Friday, excluding Belgian legal holidays, from 08:30 to 17:30), at the following telephone number; +32 16 36 36 01, and by e-mail at Support@Build-Software.eu.

    9.2 The Support fee is invoiced annually in advance and the amount depends on the contracted software.

    9.3 The reporting and handling of support questions is subject to well-defined procedure.

    9.4 Update/Maintenance: upon payment of the “Update/Maintenance fee”, BUILD-SOFTWARE shall make available to the Customer the versions released by the relevant software manufacturer under the update or maintenance service. All related services (such as installation, implementation, training, etc.) related to these versions are not included in the Update/Maintenance Fee.

    9.5 If the Customer requires support while he has not paid the Support Fee or the Update/Maintenance Fee, respectively, BUILD-SOFTWARE will invoice on a direct debit basis. Support will then be scheduled on a project basis.

    9.6 Services not covered by the Support Fee will be invoiced separately, if applicable:

    • on-site support at the customer’s premises;
    • maintenance and reorganization of disks, files or databases, setting up security;
    • installation of Build.NET on the client or on the server;
    • Installation, implementation and/or training regarding “Hot Fixes”, “Service Packs” and “New Releases”;
    • support regarding operational or technical problems due to the hardware, improper maintenance, incorrect manipulation or modification of the software by the customer or a third party, improper use, accident, use in an unsuitable physical or operational environment, or in a working environment other than the intended one, or defect caused by the software or product for which BUILD-SOFTWARE is not responsible;
    • support on unsupported version of software;
    • Microsoft SQL maintenance and monitoring;
    • requests to add or change to properly working software, consulting, lookup, project management, integration and migration, roll-out, acceptance testing, batch scheduling, reporting, training and in general any performance not directly related to solving operational or technical problems.

    Article 10. Liability of Build-Software

    10.1 The exploitation damages or damages resulting from media risks, failures and/or professional misconduct on the part of BUILD-SOFTWARE shall in all cases be limited to compensation for actual and personal damages and shall be limited to the lesser of the following amounts:

    • the invoiced price of the software or service (the twelve (12) last monthly amounts in case of periodic prices) that caused the damage (minus the amounts charged for standard software (licenses) or third-party packages; as these were also paid by BUILD-SOFTWARE to third parties);
      or
    • in the event of exploitation damages caused by BUILD SOFTWARE:
      for bodily and property damage mixed maximum € 1,500,000.00 per claim per year: Including, but limited to:
      • intangible damages maximum €375,000.00 per claim and per year;
      • accidental pollution maximum €500,000 per year;
      • neighbor nuisance maximum €500,000 per year;
    • in the event of damages arising from professional misconduct by BUILD-SOFTWARE:
      • for physical, material and immaterial damages mixed maximum € 500,000.00 per claim and per year;
    • in case of damage caused by BUILD-SOFTWARE to entrusted goods maximum €25,000.

    Intangible damages are limited to 25% of the capital provided for material damages, with no amount less than €250,000. If the capitals for physical and material damages are commingled, the intangible damages will be limited to 25% of the commingled capital.

    BUILD-SOFTWARE shall only be liable for pure non-material damage to the extent that it is due to professional misconduct.

    10.2 Liability for professional misconduct means: Liability for any breach of undertakings, any negligence, error, inaccuracy, misleading statement, any omission committed by BUILD-SOFTWARE in the performance of intellectual performances (including studies, designs, advice, guidelines,.) within the scope of BUILD-SOFTWARE’s professional activities.

    10.3 Media risk liability means liability for risks associated with the design of websites and/or web pages and/or the management of the content with which they are furnished. These include:

    • the infringement of intellectual and industrial property rights such as, among others, the infringements of copyright, trademark, trade and domain name rights, database rights excluding portrait rights as well as the right to protection of privacy;
    • loss of image or reputation, libel, slander, violations of public order and morals (including pornography, racism, discrimination of any kind, subversive propaganda);
    • the violation of regulations on economic dominance, price fixing, unfair competition, consumer protection.

    10.4 BUILD-SOFTWARE is not liable for media risks when it has not itself determined the content and/or design of the site/webpage. Liability as a result of failure to remove information or to remove it in a timely manner when imposed/ordered by an administrative or judicial authority is the responsibility of the customer.

    10.5 Liability for failures means: Liability for the total or partial failure, malfunction and/or delay of systems. BUILD-SOFTWARE shall only be liable for failures attributable to a professional error and/or defect in the products delivered and/or work performed by it. Excluded is damage resulting from:

    • a shortage in the memory capacity reserved by the customer;
    • failure of information to be or become available electronically.

    6. BUILD Software shall only be liable for damages resulting from computer viruses or from any
    Act of computer crime when caused by:

    • a defect in the security software or system developed and/or provided by BUILD-SOFTWARE;
    • the faulty installation of a security system performed by BUILD-SOFTWARE;
    • erroneous advice and/or the wrongly recommended choice by BUID-SOFTWARE in the field of security systems, except when such system, for any person versed in the subject matter, unmistakably fails to meet a level of security acceptable at the time of performance;
    • an improperly performed maintenance and/or update of a security system except when the result thereof, to any person knowledgeable in the subject matter, unmistakably fails to meet an acceptable level of security at the time of such maintenance and/or update. BUILD-SOFTWARE shall not be liable for any failure to request maintenance and/or update in a timely manner.

    7. BUILD-SOFTWARE’s liability is excluded in the non-exhaustive cases listed below:

    1. the damage caused by war, civil war and facts of the same nature;
    2. damage caused during a strike, lockout, riot, terrorism, sabotage and acts of violence with a collective impact and damage caused by radioactive, toxic, explosive or other dangerous properties of substances;
    3. the costs of research, investigation and withdrawal from the market of products or works that are or are presumed to be defective, including compensation due to third parties in this regard;
    4. the damage resulting from a visible defect in delivery or a defect known to the customer before the damage occurred, unless the customer proves that the damage was impossible to prevent;
    5. any damage resulting from a repetition of the technical failure of the system when the fault underlying the first failure could not be detected and/or has not been remedied;
    6. the commitments related to the achievement of a result that exceed the commitments usually applicable in the exercise of the profession as well as any damage resulting from the fact that the products or works, although not defective, do not have the promised effectiveness or efficiency;
    7. the personal liability of BUILD-SOFTWARE’s subcontractors;
    8. any damage resulting from BUILD-SOFTWARE’s recommended choice of equipment or software that any person knowledgeable in the subject matter would deem to unmistakably meet the objectives and needs of the customers;
    9. any damage arising from an insufficiency in the capacity of the system memory provided by the customer given the current or future information to be processed;
    10. any damage that could have been avoided with a simple backup (of the specific software or configuration) before the start of the work;
    11. any damage resulting from disclosure of trade secrets, confidential information, unauthorized use of information processing systems, falsification or misuse of computer programs, use of insufficient safeguards in computer programs, unlawful use of the computer for personal purposes by the customer.
    12. consequential damages such as loss of profit, even if it is the immediate consequence of the event giving rise to the damage; commercial loss, rising costs, disruption of schedule, a claim by a third party;
    13. indirect damages, even if they were foreseeable or if BUILD-SOFTWARE was informed in advance of the possibility of such damages;
    14. loss of or damage to data;
    15. loss of business, income, clientele (including damage to reputation or image) or anticipated profits or savings;
    16. if BUILD-SOFTWARE is requested to provide services with respect to software not installed by BUILD-SOFTWARE, BUILD-SOFTWARE shall not be held liable for any deficiencies in such software or due to the installation, programming or previously provided services with respect to such software.

    10.8 In addition, if the Customer uses the cloud computing services, BUILD-SOFTWARE is released from all liability because of one or more of the following reasons (the enumeration is not exhaustive):

    • the inability to install the software on the remote server (cloud) due to the modification of the list of compatible software by the remote server provider;
    • decline in quality of the remote server because of non-compliance with advice given;
    • misuse of servers and software;
    • total or partial destruction of the information transmitted or stored due to errors directly or indirectly attributable to the Customer;
    • in case of total or partial non-compliance by the customer (or his appointees) with his obligations and/or in case of failure of the Internet and/or the Internet supplier;
    • the cloud computing services provided are dependent on other technical operators, BUILD-SOFTWARE cannot be held liable for the consequences of the failure of those technical operators;
    • in case of force majeure;
    • due to the characteristics of the Internet, which are known to the Customer, BUILD-SOFTWARE shall also not be held liable for, inter alia.
      • the content of the information,
      • misuse of passwords,
      • unauthorized disclosure of confidential information due to system malfunction or piracy.

    10.9 Any claim directed against BUILD-SOFTWARE within the framework of the cloud computing services, must be declared by registered letter in any event within 48 hours of knowledge of the harmful event giving rise to any liability.

    10.10 The limitations of liability in this article shall not apply in case of fraud on the part of BUILD-SOFTWARE.

    Article 11. Customer responsibility

    11.1 The customer must guarantee the security of the system (devices, hardware and software and, where applicable, the cloud provided). In case the customer does not use the cloud computing services, the customer shall take physical copies of the programs and data for this purpose and keep them separately, so that no loss of data or other data is possible and therefore BUILD-SOFTWARE is not responsible for this. Customer shall keep an accurate record of the number of copies and their location, and notify BUILD-SOFTWARE if any of the copies are kept in a location other than where the designated devices or hardware are located. If the customer uses the cloud computing services, the copies will be kept through that system.

    11.2 When using devices or other hardware, the customer will provide each device or hardware with a virus scanner. BUILD-SOFTWARE is not responsible for any damage caused to the customer by viruses. In addition, Customer warrants that all devices, hardware, equipment, software, software and other operating assets employed by it have been validly acquired and used by it. He shall have all rights thereto and he shall indemnify BUILD-SOFTWARE in this regard.

    11.3 Before disposing of any data carrier or designated devices, the customer shall ensure that all software contained therein has been wiped or destroyed.

    11.4 The customer is obliged to keep its database technically up-to-date. All BUILD-SOFTWARE objects with changes must be consistently read in. The customer must confirm to BUILD-SOFTWARE when an object is put live. Only in this way can new objects be delivered. Customer must provide a copy of the database to BUILD-SOFTWARE at regular intervals, unless BUILD-SOFTWARE has access via Remote Support (optional service).

    11.5 The customer using the cloud computing services is liable for the content of the stored data and shall use the remote cloud only for the application of the BUILD SOFTWARE provided, to the exclusion of any other application. The customer is responsible for the content of the information stored on the remote cloud via BUILD-SOFTWARE and undertakes to respect the rights of third parties.

    Article 12. Duration of the agreement

    12.1 By signing an application document, the customer commits to the full intended purchase, Each party can dissolve the agreement:

    • without notice of default, if the other party files for bankruptcy or is declared insolvent or in case of manifest insolvency of that party;
    • if the other party fails to comply with its obligations within thirty (30) days after being summoned to do so.

    12.2 The agreements relating to the “Update Fee”, “Support Fee” and “Cloud Computing” have a duration of one (1) year from acceptance of the application document and are tacitly renewed for periods of one (1) year unless terminated by registered letter by one of the parties no later than three (3) months before the end of the current period.

    Article 13. Duty to cooperate

    13.1 The parties undertake to inform each other immediately of any difficulty that may disrupt the punctual performance of the services and to provide each other with any explanation that may facilitate it.

    Article 14. Force majeure

    14.1 If, as a result of force majeure, one of the parties is unable to fulfill its obligations under the agreement for a period of more than three (3) months, the other party shall have the right to terminate the agreement by registered e letter without judicial intervention, with immediate effect, without prejudice to the rights to indemnification that remain applicable to the indemnitee.

    Article 15. Generalities

    15.1 The Customer undertakes to treat as confidential and not to disclose to third parties all information, which he comes to know about BUILD-SOFTWARE on the basis of an application document or within the framework of the agreement. If necessary, necessary procedures will be issued for this purpose, and necessary obligations will be imposed on staff.

    15.2 The Customer undertakes not to directly or indirectly employ employees or former employees of BUILD-SOFTWARE. This provision applies both during the agreement and for two (2) years after its termination. Nor will the client directly or indirectly entrust certain contracts to these people. In the event of breach of this clause, Customer shall pay to BUILD-SOFTWARE damages equal to 24 months of gross wages of the employee or former employee, as last paid by BUILD-SOFTWARE.

    15.3 BUILD-SOFTWARE shall be entitled, subject to notice to the Customer, to mention the system to the Customer and to use the Customer’s name hereby in its brochures and publicity.

    15.4 The parties shall submit all disputes concerning performance and interpretation of the agreement to the courts in Turnhout and only they shall have jurisdiction to adjudicate them.

    15.5 This agreement is subject to Belgian law.

    Article 16. Special conditions regarding cloud computing services

    16.1 If the customer enters into an agreement including cloud computing services, the following special terms and conditions shall apply in addition.

    16.2 The cloud computing services are provided for a minimum period of 12 months and are billed in advance.

    16.3 The cloud computing services involve the maintenance and storage of the customer’s data for the application of the BUILD SOFTWARE, within the limits of the special terms and conditions, with the possibility of having a specific storage restored.

    16.4 The storage (backup) and fee payable depends on the subscription and usage chosen by the customer (see Cloud price list), and is payable by direct debit. The retention period of the data is limited to 7 calendar days (barring explicit contractual deviation), after which the data will be destroyed/deleted without further notice.

    16.5 BUILD-SOFTWARE will use its best efforts to provide access to the infrastructure 24/7. However, access may be temporarily suspended, including as a result of a technical intervention to improve the system, or for maintenance, always aiming for the least possible suspension of services. The targeted availability level is 99.5%.

    16.6 Malfunctions or defects in the cloud system must be reported immediately to BUILD-SOFTWARE (by email or telephone), after which BUILD-SOFTWARE will use all its human and technical resources to effect the continuation of services. Outside the normal hours of accessibility between 9am and 6pm, any intervention or support under this article shall be subject to a minimum of €75 in addition to the normal hourly base rate plus 50%, unless the intervention is caused by an act of BUILD-SOFTWARE or its cloud services provider.

    16.7 Upon termination of the agreement, the customer may request the entirety of the stored data by registered mail within the 2 months after the expiration of the agreement, regardless of the cause. In its absence, the customer is deemed to have waived the data. The cost of transferring the data is fixed at €500.00 per transfer.

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