Terms & Conditions

Definitions

"General Terms and Conditions": these general terms and conditions of KDENZA as attached as Annex 1 to the Agreement.

"Creation": any creation, work, effort, concept, idea, improvement, modification, solution, system, product, invention, method, method, research, development, process, study, diagram, analysis, document, report, research, realization, know-how, database, (value) strategy, Service, drawing, sketch, plan, design, design, PowerPoint presentation(s), training material, course, text(s), videos, audiovisual creations (with or without sound), photos, any other content or information  or any intellectual achievement or result of any intellectual or creative activity, of any kind, in any form of expression or on any medium whatsoever.

"Services": the services offered by KDENZA and/or performed on behalf of the Customer as further described in Appendix 2 to the Agreement, including, but not limited to, consultancy, interim management, coaching and training, administrative and commercial support and/or other support activities and services in this regard.

"Customer": the natural or legal person acting for professional or non-professional purposes.

"Intellectual Property Rights": all current or future (intellectual property) rights and claims, in the broadest sense, including but not limited to copyright and related rights software protection, database protection, design and design rights, trademark rights, patent rights, trade names and domain names, including (the right to) request the grant of such rights.

"Agreement": the (framework) agreement(s) concluded between KDENZA and the Customer in connection with the Services, including the present General Terms and Conditions and the other Annexes to this Agreement that form an integral part thereof.

"Force majeure": the event that makes the fulfilment of KDENZA's obligation reasonably impossible, particularly difficult or particularly costly. Without being exhaustive, the following events are deemed to constitute a foreign cause or case of Force Majeure for KDENZA: failure of internet connections or electronic communication networks, problems with or malfunctions or defects in hardware or software, strike, lock-out, war, government obligation, requisition, occupation of the territory, riot, attack, robbery, sabotage, epidemic, pandemic, disease, the coercive government measures resulting from epidemics,  pandemics or diseases, fire, flood, snowfall, storm, earthquake, natural disaster, change of transport tariffs, change of customs tariffs, shortage of labour, shortage of fuel, defect of machinery, equipment or hardware, traffic disruption, late delivery by suppliers, service providers, partners or subcontractors, insolvency of suppliers, service providers, partners or subcontractor and any foreign cause of suppliers, service providers, partners or  Subcontractors. The aforementioned events are deemed to be unforeseeable and unavoidable for KDENZA.

"Compensation" means the fee(s) (and prices) set out in Annex 3 to the Agreement.

"Affiliated Company": a company within the meaning of Article 1:20 of the Companies and Associations Code.

Scope

The Customer expressly confirms to have read and accepted these General Terms and Conditions.

These General Terms and Conditions apply in full and exclusively to every quotation of, every Agreement with, every provision or performance of Service(s) by, every invoice of, and, in general, every performance or service of KDENZA, unless otherwise agreed in writing.

A binding Agreement is only concluded between KDENZA and the Customer when KDENZA receives an order form dated and signed by the Customer (or its agent) and KDENZA subsequently accepts the order in writing or by execution thereof or by signing the Agreement. Unless otherwise stated on the offer, KDENZA's offers are purely informative, only constitute a non-binding proposal to contract (and no offer) and are only valid for a maximum of six (6) months. Changes made to KDENZA's offers are only valid if the latter has accepted them in writing.

The Agreement and/or these General Terms and Conditions do not in any way cover the use policy or conditions of other service providers, partners, suppliers or companies that KDENZA and/or the Customer rely on (whether or not subcontracted).

The provisions of this Agreement only apply to (the parts of) the Services that are the subject of the Agreement. KDENZA is in no way liable for and/or cannot provide any guarantee for services of or by third parties and/or changes or extensions to or relating to the Services made by third parties.

The text of these General Terms and Conditions can also be consulted at any time under the heading 'General Terms and Conditions' on the KDENZA website(s).

Services

KDENZA will make all necessary efforts to provide the Services to the Customer in accordance with the Agreement, without this in any way being considered as an obligation of result on the part of KDENZA.

Unless otherwise agreed in writing, the implementation periods communicated by KDENZA are purely indicative. Exceeding these periods will under no circumstances give rise to compensation or price reduction or to termination of the Agreement.

KDENZA has the right to call on subcontractors, external suppliers, developers, partners or service providers for the performance of the Services, without the Customer having to be informed in advance.

KDENZA is entitled to execute the Agreement in several phases and to invoice the part thus executed separately to the Customer.

The Customer is always and solely responsible for all permits and authorizations required for the Services, which may be submitted to KDENZA before the start of the Services. The Customer is obliged to use the Services exclusively for legitimate purposes. Any compensation or fines resulting from the foregoing shall be borne in full by the Customer.

The Customer shall provide KDENZA with all information and provide the necessary cooperation to perform the Services (properly), to facilitate their performance or to avoid or limit risks. If the Services are to be performed at the Customer's location or establishment, the Customer shall provide, free of charge, all necessary resources and infrastructure (e.g. internet and telephony) and availability of resources (e.g. assistance of personnel) to perform the Services. Any delay caused by a non-delivery, defective or delayed delivery of necessary information (or by the provision of incorrect or incomplete information) or resources / infrastructure by the Customer or third parties, is not the responsibility of KDENZA. If necessary, KDENZA is in no way liable for any (direct or indirect) damage that the Customer or third parties would suffer as a result.

By accepting the Services provided, the Customer acknowledges that KDENZA has performed the Services properly. The Customer expressly waives any other remedy, including any form of compensation.

The Customer acknowledges and accepts that KDENZA may, unless otherwise agreed in writing, mention and/or use the (company, trade, brand and/or domain) name(s), (brand) sign(s) or logo(s) of the Customer, as well as the Services performed on behalf of the Customer, in its reference portfolio and/or for its own marketing purposes (including mention and/or use on the website(s) or social media pages of KDENZA).

Changes – additional works

All requests for modification or extensions of Services or additional works must be addressed in writing to KDENZA. All such changes, extensions or additional works requested by the Customer, as well as the determination of the Fee and/or price thereof, always require the prior agreement of both the Customer and KDENZA and can be proven by all legal means, for example by the undisputed execution thereof by KDENZA.

Any changes or extensions to the Services, additional works or additional work or Services, requested during or after the Agreement, and the resulting costs, are entirely at the expense of the Customer and will be additionally invoiced by KDENZA (under control) in accordance with the rates determined in the Agreement at that time, unless otherwise agreed in writing.

Prices – payment

Unless otherwise agreed in writing, the Fees and Prices for the Services are determined in the quotation and/or in Appendix 3 to the Agreement.

All prices and other rates used by KDENZA are always exclusive of VAT and exclusive of any other government levies that are fully borne by the Customer.

KDENZA has the right to revise the price annually and in accordance with the legal provisions in the event of (i) an increase in one or more real cost factors (including exchange rates) or (ii) an increase in government levies. At KDENZA's request, the price can be revised according to the following formula: p = P [a x (M/M°) + b x (S/S°) + c] . The signs used represent the following price elements: p = the revised price, P = the price as initially determined, S = the index of labour costs determined during execution (index Agoria), S°= the index of labour costs in force at the time of signing the Agreement (index Agoria), M = the index of material costs established during execution (index Agoria) and M° = the index of material costs,  in force at the time of signature of the Agreement (index Agoria). In the above revision formula, the coefficients a, b and c have respectively the fixed values given below: a=0,40; b=0.40; c=0.20. If the Customer has not notified KDENZA in writing of his opposition to the new price at least within seven (7) calendar days after notification of the price increase, the Customer will be deemed to agree to the new price.

Prices of the Services can also be changed by mutual agreement.

Unless otherwise agreed in writing, all invoices from KDENZA must be paid by the Customer within thirty (30) calendar days of the invoice date.

The Customer accepts, to the extent necessary, that he receives electronic invoices from KDENZA.

KDENZA has the right to first attribute payments on any costs due, conventional fixed compensation(s) and default interest, before attributing them to the outstanding principal.

KDENZA has the right to offset all amounts that it would owe to the Customer for whatever reason with the amounts that the Customer owes KDENZA, regardless of whether these amounts are due or not. However, compensation by the Customer is not permitted.

If the Customer consists of several persons (natural or legal persons), they are jointly and severally liable for the payments to which the Agreement obliges them.

Default

In the absence of payment on the due date, KDENZA is entitled by operation of law and without notice of default (i) to the payment of default interest at a conventional interest rate of 10% per annum or, whichever would be higher, at the interest rate provided for in Article 5 of the (Belgian) Law of 2 August 2002 on combating late payment in commercial transactions,  from the due date of the invoice until the date of full payment and (ii) the right to the payment of a fixed compensation of 10% of the invoice amount not paid on time with a minimum of EUR 250 per invoice and this without prejudice to KDENZA's right to reimbursement of court costs (including court fees) in the event that a judicial recovery procedure has to be conducted and always without prejudice to KDENZA's right to demand a higher compensation  provided evidence of higher actual damage.

In the absence of payment on the due date of one or more invoices, all outstanding but not yet expired invoices that have been postponed by KDENZA to the Customer become due and payable by operation of law and without notice of default. The invoices thus due and payable also entitle you to the default interest and the fixed compensation referred to in Article 6.1 above from the date of due and payable.

Duration and termination of the Agreement - breach of contract

The Agreement may be an expiring agreement limited to one or more or more or certain Services. The Agreement may also be entered into (i) or for an indefinite period in which case either of the Parties may terminate the Agreement by registered letter subject to respect for a notice period of two (2) months; (ii) or for a duration of one (1) year, whereby the Agreement is automatically and automatically renewed successively for a (new) term of one (1) year, unless one of the Parties has terminated the Agreement by registered letter addressed to the other Party no later than two (2) months before the expiry of the contractual term. Notice of termination shall always be given by registered letter indicating the beginning and end of the notice period. The aforementioned registered letter has effect the third working day after the date of dispatch.

KDENZA has the right to suspend its obligations (to perform the Services) with immediate effect and without prior notice of default (including the interruption of the performance of each Service), without being liable for any compensation, in the event that the Customer fails to fulfil its obligations under the Agreement, including but not limited to the lack of full payment on the due date of one or more invoices,  even in the context of an agreement with KDENZA other than the one to which the breach of contract relates or when KDENZA has justified doubts about the creditworthiness and solvency of the Customer and it would be plausible that the Customer will not or will not be able to meet its obligations under the Agreement. In the event of suspension (of suspension), KDENZA is in no way liable for any (direct or indirect) damage that the Customer, its customers, or other third parties would suffer as a result.

If the Customer fails to fulfil one or more of its contractual obligations, KDENZA is also entitled to terminate the Agreement with the Customer without prior judicial intervention at the expense of the Customer. KDENZA can only dissolve the Agreement with the Customer out of court in accordance with this article 7.3 if KDENZA has given the Customer notice of default by registered letter and the Customer has failed to fulfil its contractual obligations within a period of ten (10) calendar days after the postmark of the aforementioned notice of default.

In the event of dissolution of the Agreement by KDENZA at the expense of the Customer in accordance with Article 7.3 above, KDENZA shall be entitled, where applicable, to (additional) compensation at the expense of the Customer, estimated at a flat rate of 30% of the agreed total price of the agreed, but (whether or not) not performed Services, the foregoing without prejudice to KDENZA's right to claim higher compensation subject to proof of higher actual damage. The foregoing does not affect the Customer's obligation to proceed to full payment of all Services performed.

KDENZA may consider the Agreement terminated by operation of law and with immediate effect, provided that written notice is given to the Customer if the Customer files for bankruptcy, has been declared bankrupt, the bankruptcy conditions have apparently been fulfilled, would have applied for protection against its creditors (with regard to the latter subject to exclusion of this possibility by the relevant legislation) or a decision is taken to (judicial  or extrajudicial) dissolution and liquidation of the Customer.

In the event of premature termination of the Agreement by the Customer, the Customer shall owe KDENZA compensation equal to 30% of the agreed total price of the Services agreed but not performed, the foregoing without prejudice to KDENZA's right to claim higher compensation subject to proof of higher actual damage. The foregoing does not affect the Customer's obligation to proceed to full payment of all Services performed.

Complaints - liability

Any complaint regarding the (performance of the) Services must be communicated to KDENZA, duly reasoned and by registered letter no later than fourteen (14) working days after execution or invoicing or after finding out of any damage, without prejudice to article 3.7 above. In the absence of such a complaint, the complaint will not be accepted and will be considered lapsed and inadmissible and the Customer will be deemed to have definitively accepted the Services and to waive any (claim) right against KDENZA.

Complaints as referred to in Article 8.1 above do not suspend the Customer's obligations under the Agreement (including but not limited to his payment obligations).

However, a complaint does not grant the Customer the right to terminate the Agreement, nor the right to refuse receipt or payment of a Service or the Services, nor the right to claim compensation.

The right to compensation against KDENZA irrevocably expires six (6) months after the alleged error has occurred. The Customer must send a written notice of default to KDENZA within the aforementioned period with a reasoned description of the alleged error.

Limitations of liability

Except in the event of fraud, intentional or intentionally equivalent to gross negligence, KDENZA is in no way liable for indirect damage or consequential damage, for example but not limited to loss of time, loss of customers, loss of profit, loss of income, increase in general costs, disruption of a trading activity, claims of third parties (for example but not limited to customers of the Customer),  late VAT or tax returns, reputational damage, loss of future savings, personnel costs, loss of opportunities or business opportunities, loss of goodwill or any other form of economic damage.

Furthermore, KDENZA does not accept any liability above or other than the liability that the possible (external) supplier, service provider, partner or subcontractor in question is willing to accept with regard to their services.

The Customer must fully indemnify KDENZA in principal, interest and (court or lawyer) costs for any recourse from third parties in connection with the Services or in any way arising from or in connection with the Agreement and/or these General Terms and Conditions.

In any case, KDENZA's liability towards the Customer, both for direct and indirect damage, even in the event of material damage, is limited to the lower of the following amounts: (i) the fees received by KDENZA within the framework of the Agreement for the Services or (ii) the amount for which KDENZA is insured with its civil liability insurer(s) under the relevant insurance policy(es) taken out by KDENZA. The same limitations shall apply if the exclusions of liability contained in this Section 9 would ever be held by a court or arbitrator to be invalid or unenforceable.

Force majeure

KDENZA is not liable for the non-performance, the late performance or the improper fulfillment of (one of) its obligations, which is the result of a foreign cause, such as coincidence or Force Majeure, which cannot be attributed to it.

In the event of Force Majeure, the Customer is not entitled to any compensation for any reason whatsoever at the expense of KDENZA.

If a case of Force Majeure results in an interruption of the performance of the Services, the execution period will be suspended by operation of law for the duration of the interruption, plus the time necessary to restart the performance of the Services, without KDENZA owing any compensation to the Customer. Additional costs as a result of this are always and integrally at the expense of the Customer.

Confidentiality

The parties undertake, both during the term of the Agreement and for a period of five (5) years from the termination of the Agreement, not to provide confidential business information, commercial information, know-how or other information, of whatever nature, of which the receiving Party has become or becomes aware of the other Party in the context of the execution of the Agreement,  disclose or communicate to third parties. The aforementioned obligation applies to all information that has been designated as confidential or that is reasonably recognizable as confidential. In case of doubt, the confidentiality of information should be assumed.

Privacy - processing of personal data

KDENZA is responsible for the processing of personal data of the Customer or of other data subjects within the framework of the Agreement. KDENZA takes all appropriate technical and organizational measures to ensure that the processing of personal data is in accordance with the applicable data protection legislation, including the General Data Protection Regulation (EU) 2016/679 of 27 April 2016 (hereinafter: "GDPR").

The privacy policy of KDENZA applies to the processing of personal data, which can be consulted on its website.

If and insofar as KDENZA qualifies as a processor of personal data with regard to the Customer, whereby it processes personal data of certain data subjects (e.g. customers, employees, employees, service providers or suppliers of the Customer) on instructions and on behalf of the Customer within the framework of the Agreement, the provisions of the Data Processing Addendum attached as Annex 4 to the Agreement apply,  which counts as a data processing agreement within the meaning of Article 28.3 GDPR.

In any case and insofar as the Customer is responsible for the processing of personal data within the framework of the Agreement, the Customer shall comply with the applicable data protection legislation, including the GDPR, and take all appropriate technical and organizational measures to ensure that the processing of personal data is in accordance with the aforementioned legislation.

Intellectual property rights

Unless otherwise agreed in writing, all Intellectual Property Rights in or linked to Creations that (any representatives, appointees, employees, personnel or service providers of) KDENZA have developed in the context of the execution of the Agreement, including but not limited to the performance of Services, belong to the exclusive property of KDENZA or its licensors.

No provision in the Agreement shall be construed as a full or partial transfer of these Intellectual Property Rights to the Customer.

The Customer is not permitted to change, remove or make unrecognizable any indication(s) of the Intellectual Property Rights of KDENZA.

The Customer is not permitted to use or register any trademark, design or domain name of KDENZA or any corresponding sign in any country, anywhere in the world.

The Customer guarantees that he is entitled to use and/or store any (hardware or software) products, services, Creations, software and/or data of third parties that he uses in any way in the context of the Services (e.g. as licensee or holder of the Intellectual Property Rights relating to them). KDENZA is in no way liable for this.

Without prejudice to article 13.1 above and subject to full payment by the Customer to KDENZA of all fees under the Agreement, KDENZA grants the Customer, who accepts, a non-exclusive, non-transferable and non-(sub)licensable license to use the Creations protected by KDENZA's Intellectual Property Rights in the context of its economic activities. The aforementioned license applies exclusively to the use of the relevant Creation(s) by the Customer himself and, if several Creations have been created by KDENZA in the context of a Service, only to the Creation chosen by the Customer.

General provisions

The Customer guarantees, to the extent necessary in the event of reinforcement, to have the provisions of the Agreement respected by its representatives and appointees.

The parties are independent companies and are in no way in a subordinate relationship or in a relationship of authority with each other. Each Party shall be responsible for the fulfilment of all formalities and legal obligations, in particular with regard to social security and taxation, linked to its status as an independent enterprise.

The Agreement constitutes the full agreement of the Parties with regard to the subject matter to which it relates and supersedes all previous agreements, understandings and discussions, both written and oral, between the Parties, their appointees and their advisers. Annexes to this Agreement form an integral part thereof and form a whole with the Agreement.

The nullity, invalidity or unenforceability of one or more provisions of the Agreement shall in no way result in the nullity, invalidity and/or unenforceability of the other provisions of the Agreement. In the event that any provision exceeds any legal restriction, the provision or part thereof in question shall not be null and void, but the parties shall be deemed to have agreed that this provision or its conflicting portion shall be reduced or limited to the maximum permitted under applicable law and any provision or portion thereof exceeding such limits,  be amended or replaced by operation of law by a valid clause that is as close as possible to the intention of the Parties.

The Parties are not entitled to transfer all or part of their rights and obligations under the Agreement to third parties without the written consent of the other Party.

Amendments and additions to this Agreement are only valid and mandatory after written agreement with signature by both Parties.

The Customer guarantees to have the provisions of the Agreement respected by its appointees and/or agents.

Notices relating to this Agreement should be sent by registered letter to the addresses of the Parties as stated in the preamble to this Agreement or to the addresses provided by the Parties therefor, cfr. present article, notify the other party. A copy of each notification must always be sent by e-mail to the last known e-mail addresses of the director(s) of the Party to whom the notification is addressed. Notifications shall be deemed to have been received no later than three calendar days after their dispatch (as may be evidenced by the proof of registered mail provided by the postal services).

Applicable law and competent courts

The Agreement is exclusively governed by Belgian law.

For any dispute that may arise between KDENZA and the Customer regarding the conclusion, interpretation, execution, suspension or termination of the Agreement, only the courts of Ghent are competent.