General conditions
1. DEFINITIONS
1.1. Dataline Solutions plc (hereafter referred to as DLS plc) with company number BE.0461.602.808: the service provider/seller/lessor/licenser.
1.2. The customer: the natural person or legal entity that enters into an agreement with DLS plc with respect to the granting of a user licence on a standard software package or on a customised software package to be created by DLS plc, with the accompanying installation, training and services, or any other legal act.
1.3. Software: the standardised application software and the accompanying installation, training and services, used for the management and processing of the information of a company from the graphic communication industry.
1.4. Hardware: the hardware, including the operating systems on which the software is run, as described in the specific provisions.
1.5. Installation: the initial preparation of the software for use, including a temporary activation, but excluding the upload of databases and the adjustment maintenance.
1.6. Activation: unblocking the software, e.g. by means of an activation key.
1.7. Defect: a serious anomaly, in all respects, in the operation or functionality of the software, which is inherent in the software installed and considerably affects its normal use as prescribed by the licensor, on the understanding that the software must be used in accordance with the instructions of the licensor and the required hardware must be used in accordance with the instructions of the licensor and the hardware manufacturer.
An anomaly is not regarded as a defect if it results from:
a. incorrect manipulation of the software or hardware, or improper or incorrect use thereof;
b. power failures, fire, natural disasters, accidents;
c. the disruptive, inadequate or defective operation and/or installation of hardware and/or software, although the hardware and/or software itself is not defective;
d. damaged data files.
A remark is in any case not regarded as a defect, either, if it relates to:
a. the speed at which the software is running on the hardware, unless a specific speed was explicitly guaranteed within the context of a predetermined hardware configuration that is described in detail
b. the layout on which the software and/or the hardware visualises the data, the forms and/or objects and presents them to the user, either via a screen or via a printer output.
1.8. Maintenance (software development): the delivery to the licensee of a revised version of the software, in which not only known errors were corrected, but also the existing operation and functionality of the software was improved and new functions were added if necessary.
1.9. Customer support: the provision of information to the licensee within the business hours of DLS plc, either by telephone (+32 50 83 20 02) or by fax and/or e-mail, with a view to solving any reported usage and/or technical problems.
1.10. Anniversary of the activation: the anniversary of the activation coincides with the start of a new calendar year. Only during the year in which the agreement is concluded, the activation takes effect on the first day of the month following the date on which the agreement is signed and expires at the end of the current calendar year.
2. AGREEMENT
2.1. Unless explicitly agreed otherwise in writing, the present General Terms and Conditions are applicable to all agreements concluded by DLS plc
NV and supersede all previous other agreements between the parties.
2.2. Acceptance:
2.2.1. The present General Terms and Conditions apply to agreements relating to the granting of a user licence for a standard software package
or for a customised software package to be created by DLS plc, with the accompanying installation, training and services and all resulting obligations,
unless stated otherwise in the Specific Terms and Conditions, if any. These Specific Terms and Conditions are laid down in the quotation
and in the agreements or documents explicitly referred to therein.
2.2.2. The customer is deemed to have knowledge of these General and Specific Terms and Conditions upon entering into an agreement with
DLS plc and to have accepted them, unless an explicit written rejection of the terms and conditions by the customer is communicated within 24
hours after the conclusion of the agreement. Both documents constitute the entire agreement, to the exclusion of any other documents.
2.2.3. The above-mentioned acceptance implies the waiver by the customer of any contradictory provision of the customer’s own General Terms
and Conditions, if any.
2.2.4. Changes, supplements and/or additional agreements will only be valid if they are laid down in a written document signed by both parties,
which will be an integral part of the agreement.
2.3. DLS plc undertakes to keep all business information of the customer confidential.
3. OFFERS AND QUOTATIONS
3.1. Offers and quotations in any form are free from obligations and not binding for DLS plc as long as they have not been written down and
signed and are therefore part of the Specific Terms and Conditions. Offers and quotations are limited to the elements explicitly stated therein.
3.2. They always include delivery at the customer’s address and are valid for a period of two months as from the date on which they were drawn
up.
3.3. The VAT and other taxes/levies are stated separately; if not, the offers and quotations are exclusive of VAT or other taxes or levies.
4. GUARANTEE
4.1. If justified by the customer’s financial position or the status of payments of the invoices, DLS plc can, before starting or continuing the performance
of the agreement, demand a guarantee. DLS plc can suspend the performance of the agreement until an adequate guarantee is
provided. DLS plc is entitled to stop the use of the software after having sent a formal notice of default, until the customer meets their payment
obligation.
4.2. If the request for a guarantee is not complied with within a period of three months, DLS plc is entitled to dissolve the agreement, without
prejudice to a compensation - exclusively in favour of DLS plc - if justified.
4.3. The customer can never derive any right to a compensation from a suspension of performance resulting from the nonprovision of a guarantee.
5. RIGHT OF CANCELLATION
5.1. By the customer:
5.1.1. If the customer unilaterally cancels the agreement, DLS plc is entitled to a compensation for all the work performed, their expenses and
the possible gains they might have obtained from this agreement. Any payments made until that moment will in any case remain acquired by way of advance on this compensation.
5.1.2. If a service contract or a special modalities contract (cf article 12) is cancelled by the customer, the full amount for the remaining contract
period remains acquired by DLS plc. Service contracts are concluded for periods of 12 (twelve) months.
5.2. By DLS plc:
5.2.1. DLS plc is at all times entitled to cancel the agreement on account of manifest non-compliance of the contractual provisions by the customer,
making it impossible for DLS plc to perform the agreement with the customer. In that case DLS plc is entitled, regardless of the status of
performance of the agreement, to a compensation equalling the difference between the amount already paid on the one hand and 75 (seventy-
five) % of the contractual amount on the other hand. If more than 75 (seventy-five)% is paid at that moment, DLS plc will retain the amount received.
5.2.2. If the agreement is cancelled for reasons other than those mentioned above or as a result of force majeure, DLS plc will simply reimburse the amounts already paid; in that case the customer is not entitled to claim an additional compensation.
6. DELIVERY
6.1. In general:
6.1.1. The terms or times of delivery as stated in the Specific Terms and Conditions are given by way of indication only. DLS plc will employ
every possible effort in order to respect these terms or times, but will be entitled to change them at any time. Delivery terms start at the moment on which the advance is received.
6.1.2. However, if the delivery takes place after the scheduled time of delivery through the fault of the customer, DLS plc is entitled to cancel the agreement.
Exceptions are only possible with the prior written consent of DLS plc.
6.1.3. The risks are transferred to the customer upon delivery of the equipment.
6.2. Subject:
6.2.1. Standard software packages
6.2.1.1. Products – are the products explicitly contained and described as such in the Specific Terms and Conditions.
6.2.1.2. Installation – For an optimal installation, the customer must provide a detailed description of their existing hardware and software in advance. With a view to the optimal operation of the products of DLS plc, the latter will inform the customer of the minimum requirements that must be met in order to guarantee the proper operation of the DLS plc products. DLS plc will at all times fulfil their obligation to provide information, as described herein, but can in no case be held liable for any problems with hardware/software other than that put at the customer’s disposal by DLS plc.
6.2.1.3. Training – The customer has the obligation to give a detailed description of the relevant training level of the staff that will have to work with the products. The training package is described in the offer. The training is in principle not obligatory, but can be made obligatory if the customer is clearly insufficiently prepared. The customer undertakes to have new employees who are unable to present a DLS plc training certificate follow a training course. For educational purposes, remote training sessions can be recorded. If desired, these recordings can be made available to customers by means of a private link as a reference work. If this is not desired, this must be indicated by e-mail before the start of the training.
6.2.1.4. Maintenance – A service agreement implies that DLS plc provides services relating to the software delivered, in order to enable an optimal use of the latter; it also implies rights to the upgrades and new releases, always at the customer’s explicit request.
Any data conversion that may be possible will be at the customer’ expense and will be invoiced separately. This contract does not include travel expenses or the cost of installation. The purchase of one or several of the products of DLS plc automatically leads to the conclusion of a service contract, without any further formalities, for a period starting after the date of the installation and ending at the end of the same year. The service contract is automatically renewed unless the customer explicitly cancels the use of the software by means of a registered letter addressed to DLS plc, at the latest 3 months prior to the anniversary of the activation. A cancellation implies that the customer waives all rights/claims they might have on the software on a permanent basis. This provision applies during the remainder of the term of the commercial relationship between DLS plc and the customer. Specific details with regard to prices etc. are explicitly laid down in the Specific Terms and Conditions.
6.2.1.5 Helpdesk – The service contract offers the customer the advantages described in the signed Service Level Agreement (SLA) of DLS plc.
6.2.2. Customised development
6.2.2.1. Products – The customised development always takes place on the basis of a project analysis, which will result in a concrete proposal describing the different phases and indicating the corresponding price. Invoices will drawn up on a monthly basis and for each completed phase separately. Any additional work requested will give rise to an adjustment of the price and the execution period.
6.2.2.2. Installation – The provisions of article 6.2.1.2. apply.
6.2.2.3. Training – The provisions of article 6.2.1.3. apply.
6.2.2.4. Maintenance – Details relating to maintenance are explicitly laid down in the Specific Terms and Conditions.
6.2.3. Exclusions
6.2.3.1. DLS plc does not intervene for the solution of hardware problems nor with respect to operating systems, nor do they provide advice in this respect.
6.2.3.2. They exclusively support the software referred to in the Specific Terms and Conditions.
6.2.4. Property rights and the granting of rights are subject to the provisions of article 8 below.
6.3. Nature of the obligations
6.3.1. DLS plc will in all cases exclusively assume best effort obligations.
6.3.2. DLS plc can in no case be held liable for losses, including but not limited to loss of profits, business interruption, loss of business information or any other financial or other loss caused by the use or receipt of the product of DLS plc, even if DLS plc was informed of the risk of such losses. The customer confirms that they have a recent back-up of the data carrier on which the installation will take place.
6.3.3. DLS plc cannot be held liable for damage due to any cause other than those directly relating to the product sold by DLS plc. Under no circumstance can DLS plc be held liable for hardware problems of any kind, nor for software problems caused by products other than those purchased by the customer from DLS plc.
6.3.4. Furthermore, the liability of DLS plc – should the latter be held liable after all – can never exceed the amount of the global contract or of the current contract period paid in accordance with the Specific Terms and Conditions, limited to the fees payable for the licence.
6.4. All costs of delivery, including the travel expenses, are payable by the customer; they are explicitly mentioned in the Specific Terms and Conditions, but this is not a prerequisite.
6.5. Refusal of acceptance and return of goods
6.5.1. The customer must communicate his refusal to accept the goods in writing and within indication of their motives within 48 hours after the delivery.
6.5.2. After DLS plc accepts the return in writing, the customer can return the goods at the risk and expense of DLS plc.
6.5.3. Goods wrongfully returned remain at the disposal and at the expense of the customer; other costs, e.g. for return of the goods, are to be borne by the customer.
6.6. Force majeure
DLS plc can in no case be held liable in case of force majeure. Force majeure includes but is not limited to the following facts/events: possible imperfections/bugs in the software written by DLS plc, possible errors/bugs in software supported by DLS plc and transfer of viruses on carriers supplied by DLS plc.
7. LICENCES
7.1. Subject matter The licensor grants the licensee a non-exclusive and non-transferable right of use on the software as well as on any adjustments thereof made during maintenance. At least once a year, the licensor will carry out a maintenance by providing a revised version. The use of the software on a network is permitted provided that the software is installed or can be put into use on a number of PCs that does not exceed the number explicitly permitted in writing in accordance with the specific provisions of the present agreement. The software is put into use if it is loaded in the RAM or virtual memory.
7.2. One-off licence fee and an annual upgrade subscription fee for revision and maintenance. The licensee owes a one-off licence fee equalling the amount determined and calculated on the basis of the elements of the software to which the licensee subscribes. In addition, on account of the investment in the software, the licensee owes a subscription fee for revision and maintenance/service on the anniversary of the activation. The licensor is entitled to adjust the subscription fee depending on the evolution of the cost price elements, the inflation and index adjustments. The increase or decrease of the subscription fee cannot exceed 15 (fifteen) % per year.
7.3. Installation. Unless agreed otherwise in writing, the licensee installs the software, but always in accordance with the instructions of the licensor. In that case the software is delivered on a standard data carrier or through the internet. The licensee will ensure that the hardware on which the software will be installed meets the system requirements indicated by the licensor.
7.4. Term, termination and suspension. Without prejudice to the right to demand cancellation and a compensation from the licensee on account of non-performance, the licensor can at all times terminate the present agreement as a whole or in part without having to provide any justification, by means of a registered letter and with six months' notice. Except in the specific cases stated below, the licensor undertakes not to terminate the present agreement in the above-mentioned manner earlier than upon expiration of a period of five years after the initial activation of the software. The licensor is entitled at all times, even before five years have passed since the activation, to terminate the agreement in case of:
a. bankruptcy of the licensee;
b. voluntary liquidation of the licensee;
c. application for judicial composition by or by order of the licensee;
d. application for collective debt settlement by or by order of the licensee;
e. violation of intellectual rights on the software;
f. acts of the licensee facilitating the violation of intellectual rights;
g. introduction of a completely new software, from a technical point of view, by the licensor.
h. The licensee can also terminate the licence agreement by means of a registered letter by the anniversary of the activation, provided that a 3 months' notice period is observed.
The licensor is entitled at all times, without a formal notice of default being required, to suspend performance of their obligations resulting from the license agreement or any accessory agreements in case of non-payment of invoices of the licensor that have become due. The right to use the software will in particular be suspended automatically and without a formal notice of default being required in case of:
a. non-payment of the licence fee within one month after the installation;
b. non-payment of the annual service agreement within 180 days following the anniversary of the most recent activation.
The performance of the licensor's obligations will remain suspended until the licensee in turn will have performed their obligations.
In all of the cases stated above, the licensor is entitled to guarantee observance of these provisions by blocking the software, for instance through the use of activation keys.
7.5. Warranty.
7.5.1. Recourse to the warranty. Upon completion of the installation, the licensee and/or the licensee’s representatives will test the software installed. This test will include the verification whether all elements of the software that must be installed were actually installed, whether the software installed is ready for use and whether the software installed is able to perform the standardised functions and tasks. Any remarks of the licensee relating to the installation and the above-mentioned tests must be communicated to the licensor within eight days, either by registered letter or by fax.
7.5.2. The licensee is not entitled to demand observance of the warranty obligations by the licensor if:
a. the licensee failed to pay all or part of the license fee, regardless of whether or not they received a formal notice of default
b. the licensee does not have a recent back-up of the data files;
The licensee can only demand repayment of the license fee if the licensee provides proof of all of the facts listed below:
a. that the defect or defects cannot be eliminated;
b. that the defect(s) is/are such that the entire software becomes unusable;
c. that the defect(s) is/are not the result of customised service provided at the licensee’s sole risk;
d. that the licensor was given the opportunity to establish the fact that the software was irrevocably deleted from any data carrier or any memory in the possession of the licensee, or that these data carriers and/or memories were delivered free of charge to the licensor. In no case can the licensee be held liable for the consequential damage resulting from any defect or deficiency whatsoever, e.g. for loss of profit, even if the defect and/or deficiency results in loss of data.
7.6. Customised services. Unless a special written agreement for the provision of customised services is entered into, the licensor will only comply with individual requests to provide the software installed on the licensee’s hardware with additional and/or adjusted functionalities to the best of their abilities and always at the exclusive risk of the licensee, who must test the individual adjustment(s). In that case the licensor cannot be held liable for any loss of functionalities in the software, nor for any defects reported after the adjustments made to the software with a view to compliance with such an individual request by the licensee, nor does the licensor guarantee the proper functioning of the adjustments made. The licensor reserves in any case the right to invoice such customized services and the follow-up of the tests separately and in addition to the license fee and the development fee. In the absence of a written functional specification, Dataline cannot be held liable for any particular purpose that the customer may have with regard to the project. Moreover, in that case Dataline is completely free to provide the services in the way it deems appropriate.
7.7. Customer support. During the term of the service agreement and subject to correct payment of the invoices, the licensee may call upon the customer support clearly mentioned on each contract. This customer support does not include on-site interventions and travel expenses.
7.8. Property rights. All intellectual property rights relating to the software are vested in the licensor or in the latter's suppliers.
The licensee and, as the case may be, third parties are not authorised, without the licensor’s written consent or pursuant to mandatory legal provisions:
a. to copy the software, except for back-up and archiving purposes. The licensee is entitled to make two back-up copies;
b. to translate, edit, arrange, decompile, disassemble or otherwise modify the software;
c. to carry out any maintenance of the software, even corrective maintenance;
d. to assign the rights or obligations resulting from this agreement to third parties;
e. to put the software at the disposal of third parties for any purpose and in any manner, either directly or indirectly and either against payment or free of charge.
Upon termination of this agreement, the licensee will destroy all copies of the software by irrevocably deleting the relevant data carriers and/or memories and providing the licensor with proof of the destruction, or by delivering these data carriers and/or memories to the licensor free of charge. Subject to proof of the actual losses incurred, one or several violations of the licensor's property rights will give rise to a fixed compensation of € 3,500.00 per data carrier and/or memory on which a copy of the software or part thereof is found in violation of the licensor’s intellectual property rights and/or as a result of a breach of these intellectual property rights.
8. VALIDITY
8.1. The rights granted do not acquire validity as long as the customer has not paid the full price of the deliveries.
8.2. As long as the rights have not acquired validity, the customer holds DLS plc harmless against any losses that may result from the use of the software.
9. COMMUNICATION
Dataline or one of the affiliated companies is authorised to refer to the cooperation in a respectful manner in their communication with other companies. The texts can be provided in advance by way of information.
10. COMPLAINTS
10.1. In order to be admissible, complaints relating to the deliveries or the performance of the agreement in general must be communicated to DLS plc in writing at the latest 8 (eight) working days after delivery or after the establishment of the defect.
10.2. In case of well-founded complaints that are communicated in time, DLS plc will use their best efforts to make the necessary repairs free of charge or to deliver new products within a reasonable period of time. This does not give rise to any right to compensation for the customer.
11. DATA PROCESSING
11.1 Scope and purpose
In connection with and for the delivery of the services in accordance with the agreement, the customer transfers personal data to SD Worx and gives SD Worx the authorisation and the instructions to process such personal data in accordance with the provisions of the present agreement. The personal data can be processed for the purpose of delivering the services stipulated in the agreement, including the following purposes:
a) Personnel administration
b) Management of wages/salary and of other working conditions
c) Meeting the requirements of social and fiscal legislation and regulations
d) Management of competencies and training
e) Management of personal development and evaluation of employees
f) Planning, distributing and classifying work and jobs
g) Scientific studies and research
h) Benchmarking activities
i) Granting access to information systems or buildings
j) Continuous improvement of the services
k) Compliance with the applicable legislation regarding Data protection, requirements regarding information security and Service Levels
l) Claim management with and between the customer, SD Worx, the person(s) concerned and/or third parties, also after the termination of the agreement for whichever reason
m) Any other category of purposes for the processing of personal data as agreed between parties in the relevant agreement, purchasing order or any other document of the agreement For the purpose of clarity, personal data will be processed after the termination of the agreement according to the goals determined in (c), (g), (h) and (l).
11.2 Specification of the data processing
Any processing of personal data under the agreement shall be performed in accordance with the applicable Data Protection Legislation ((A) (i) until 24 May 2018, Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and the transposition thereof in the relevant national legislation, and (ii) as from 25 May 2018, EU Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“General Data Protection Regulation” or “GDPR”), (B) together with any other Laws resulting from such Directive or Regulation (A and B together “EU Data Protection Laws”) and/or (C) all other applicable laws of any other country with regard to the protection of personal data or privacy, as amended or replaced from time to time). However, unless explicitly agreed otherwise, DLS plc is not responsible for compliance with any laws and regulations applicable to the customer or the customer’s industry that are not generally applicable to DLS plc as a service provider. For the performance of the services, DLS plc is a data processor acting on behalf of the data controller, in particular the customer. As a data processor, DLS plc will only act upon customer’s instructions. The agreement is customer’s complete instruction to DLS plc with regard to the processing of personal data. Any additional or alternate instructions must be jointly agreed by the parties in writing. The following is deemed an instruction by DLS plc to process personal data: (1) processing in accordance with the agreement and (2) processing initiated by customer users in their use of the services. The processing relates to personal data of present and former job candidates, employees, contractors, agents and other collaborators of the customer, as well as third parties who are appointed by the aforementioned persons as family members or contact persons, and concerns the following categories of personal data:
a) Personal details such as name, birth date, etc.
b) Contact details such as address, e-mail address, telephone number, etc.
c) Marital status and information on partner and children
d) Payment details, including bank account number
e) Employee number
f) Job (description)
g) Employee contract data including but not limited to gross salary, compensations and other employee benefits
h) Social security number (if required for government declarations), such as Rijksregisternummer (INSZ) in Belgium
i) Expenses
j) Time registration and absence information
k) Qualifications, including CV and references
l) Information regarding education, training, etc. the data subject has received or will follow
m) Information regarding personal development and evaluations
n) Authentication credentials to use the services, such as username, IP address, PC Name, etc.
o) Activities performed by customer users in their use of the services
p) Any other category of personal data agreed upon between Parties in the relevant order form or any other document of the agreement.
DLS plc may direct to the customer any requests of data subjects, personal data breach notifications, requests for audit or investigation or any other requests. The customer shall subsequently internally distribute such request or notifications to the relevant data controller, and DLS plc reserves the right to direct any such requests and notifications to the relevant data controller directly.
11.3 Data subject’s rights
Insofar as this is possible, DLS plc shall cooperate with and assist the customer for the fulfilment of the customer's obligation to respond to requests from data subjects exercising their rights.
11.4 Disclosure
11.4.1 DLS plc will not disclose personal data to any third party, except (1) as the customer directs, (2) as stipulated in the agreement or (3) as required for processing by approved sub-processors in accordance with Article 19.6 or (4) as required by law. If the customer instructs DLS plc to transfer personal data to a third party stakeholder, the customer is and remains solely responsible to enter into written agreements with such third party stakeholder regarding the protection of such personal data, including as the case may be the obligations imposed by the Standard Contractual Clauses, and the customer shall indemnify, defend and hold DLS plc harmless against any and all losses arising from a transfer of personal data between DLS plc and such third party stakeholder, unless and to the extent such losses are attributable to proven defaults of DLS plc.
11.4.2 DLS plc represents and warrants that persons acting on behalf of DLS plc that are authorized to process personal data, have committed themselves to maintain the security and confidentiality of personal data in accordance with the provisions of the present agreement. To this end, DLS plc shall inform the persons acting on its behalf and having access to personal data about the applicable requirements and ensure their compliance with such requirements through contractual or statutory confidentiality obligations.
11.5 Deletion and return of personal data
Upon termination of the agreement, DLS plc shall delete or anonymize all personal data on its systems (without prejudice to any backup archives) after expiration of all relevant legal and regulatory retention requirements. In case DLS plc is required to keep data used to verify proper data processing in compliance with the assignment or data to comply with relevant legal and regulatory retention requirements, DLS plc is authorized to keep this data according to the respective retention periods beyond termination or expiry of the agreement and shall keep this data in a secure way upon expiry of the related retention requirements.
11.6 Use of sub-processors
11.6.1 The customer acknowledges and expressly agrees that DLS plc may transfer personal data to third party sub-processors for the provision of the services if such transfer is done in accordance with the terms of the present Article 19.6.
11.6.2 Any such sub-processors to whom DLS plc transfers personal data will be permitted to obtain personal data only to deliver the services DLS plc has entrusted them with and will be prohibited from using such personal data for any other purpose. DLS plc remains responsible for any such sub-processor’s compliance with DLS plc’ obligations under the agreement.
11.6.3 DLS plc will inform the customer in advance about all sub- processors that will process personal data in connection with the performance of the services and will provide a notice mechanism to inform the customer about changes relating to the sub- processors. Upon signature of the present agreement, the customer authorises the use of the sub-processors on the list of sub-processors as provided to the customer or as available on the DLS plc website on the effective date. DLS plc will enter into written agreements with any such sub-processor which contain obligations no less protective than those contained in this agreement, including the obligations imposed by the Standard Contractual Clauses, as applicable. The customer hereby explicitly grants DLS plc a mandate to execute and enforce the Standard Contractual Clauses on its behalf against DLS plc’ relevant sub-processors, such Standard Contractual Clauses being governed by the present agreement. “Standard Contractual Clauses” means the standard contractual clauses of which the European Commission on the basis of Article 26 (4) of Directive 95/46/EC decided that these offer sufficient safeguards for the transfers of personal data to a third country, or the data protection clauses adopted by the European Commission or by a supervisory authority and approved by the European Commission in accordance with the examination procedure referred to in Article 93(2) of the GDPR. Data protection clauses adopted in accordance with the GDPR shall replace and prevail over any standard contractual clauses adopted on the basis of Directive 95/46/EC to the extent that they intend to cover the same kind of data transfer relationship.
11.7 Technical and organizational measures
DLS plc has implemented and will maintain appropriate technical and organizational measures intended to protect personal data. During the term of this agreement, the customer may request DLS plc to provide the customer within a reasonable period of time with a then-current description of the implemented technical and organizational protection measures.
11.8 Privacy and data protection representative
DLS plc shall appoint a “Data Protection Officer” responsible for privacy and data protection matters. This Data Protection Officer can be reached at the following address:
DLS plc Group, Attn. Data Protection Officer, Brouwersvliet 2, 2000 Antwerp, Belgium,
dataprotectionofficer@dataline.eu
11.9 Personal data breach
In the event of a personal data breach and irrespective of its cause, DLS plc shall notify the customer without undue delay after having become aware of such personal data breach. Both Parties agree to fully cooperate with an investigation into a personal data breach and to assist each other in complying with any notification requirements and procedures.
11.10 Data protection impact assessments
Where the customer is obligated to execute a data protection impact assessment (DPIA), DLS plc shall provide cooperation and assistance to the customer for the execution of the DPIA to allow the customer to comply with its obligations.
11.11 Customer responsibilities
11.11.1 The customer is solely responsible for the lawfulness of personal data and the processing thereof under the agreement.
11.11.2 The customer represents and warrants that, where it provides any personal data to DLS plc for processing by DLS plc:
it has duly informed the relevant data subjects of their rights and obligations, and in particular has informed them of the possibility of DLS plc (or a category of service providers to which DLS plc belongs) processing their personal data on the customer’s behalf and in accordance with its instructions;
it has complied with all applicable data protection Legislation in the collection and provision to DLS plc of such personal data;
the processing of such personal data in accordance with the instructions of the data controller is lawful;
11.11.3 The customer shall take reasonable steps to keep personal data up to date to ensure the data are not inaccurate or incomplete with regard to the purposes for which they are collected. With regard to components that the customer provides or controls, including but not limited to workstations connecting to DLS plc services, data transfer mechanisms used and credentials issued to customer personnel, the customer shall implement and maintain the required technical and organizational measures for data protection.
11.12 Notifications
Unless legally prohibited from doing so, DLS plc shall notify the customer as soon as reasonably possible if it or any of its sub- processors, with regard to the customer’s personal data: receive an inquiry, a subpoena or a request for inspection or audit from a competent public authority relating to the processing.Receive an instruction that infringes the Data Protection Legislation and/or the obligations of this agreement.
11.13 Compliance
DLS plc will assist the customer in demonstrating compliance with the applicable Data Protection Legislation by making available upon request of the customer all information necessary to demonstrate such compliance.
12. WARRANTY
12.1.1. The warranty for the software is regulated in article 7.5.
12.1.2. The warranty implies that DLS plc will, at their discretion, use their best efforts to repair the reported defects or to have them repaired.
12.1.3. With respect to the packages and the accompanying documents, DLS plc does not provide an explicit, nor an implicit guarantee as to, for instance, the quality or the suitability and/or the appropriateness for a specific application.DLS plc does not guarantee, either, that the packages can be used without failures or defects.
12.1.4. In order to avoid forfeiture of this right, claims in this respect must be notified to DLS plc in writing and by registered post without delay, i.e. within 48 hours after detection of the failure or defect.
No compensation can be claimed from DLS plc for any additional losses resulting from late notification.
12.2. Term and loss of warranty
12.2.1. The warranty described in article 10.1.1. is valid during a period of 1 month after the last installation activities; after this period, operational safety is only guaranteed by a maintenance contract.
12.2.2. Any rights on a warranty lapse if the customer has had third parties perform repairs or other works, unless DLS plc gave their prior written consent.
13. USER GROUPS
Any extensions and modifications of the characteristics of the packages are determined in consultation with the user groups.
Each customer is entitled to be part of the specific user groups.
Statements made by these groups are only binding for DLS plc to the extent that the latter has to take them into account as much as reasonably possible.
14. SPECIAL MODALITIES
14.1. By way of exception, DLS plc can permit a customer to acquire a time-limited licence or to pay the fees for an unlimited licence or the service contract by means of monthly payments.
For that purpose a percentage is calculated on the amount of the investment for the package (delivery and licence) and/or on the amount of the recurring costs; this percentage is the monthly fee.
In case of payment by instalments, the customer agrees, if necessary, to provide a personal guarantee for the investment amount/to present the required financial documents if explicitly requested by the financial institution.
The recurring costs, increased by interests at a minimum rate for payment by instalments, are paid by means of a European direct debit order.
The customer is in default if the collection of the amount payable fails as a result of a lack of sufficient funds and/or the unjustified reversal of payment by the customer or by any other cause that cannot be attributed to DLS plc.
For every invoice with regard to which the customer is in default, administrative costs are charged for an amount of 50 euros.
14.2. In that case the costs of installation, setting and training must be paid in cash and cannot be included in the monthly amount.
14.3. This option implies a commitment on the part of the customer for a period of at least three consecutive years.
14.4. However, the customer is at all times authorised to switch to the normal purchase and licence relation.
In that case half of the amount already paid, exclusive of the costs of installation, setting and training, is deducted from the total software investment.
14.5. The customer undertakes not to recruit any employees of DLS plc, either directly or through third parties, either immediately or with observance of a transition period.
Should the customer fail to comply with this provision, they will pay DLS plc a fixed compensation equalling 18x the monthly salary of the employee recruited.
15. PAYMENT
15.1. The customer accepts the use of pro forma invoices.
The customer will receive the original invoice after payment of the pro forma invoice.
15.2. An advance of 35 (thirty-five)% will be payable at the moment on which the Specific Terms and Conditions are signed. Another amount of 40 (forty) % will be payable at the moment of the installation and the balance is payable at the latest 15 days after the installation.
15.3. All invoices are payable at the latest 10 (ten) days after the date of the invoice.
In case of late payment, DLS plc owes interests on overdue payment at a rate equalling the legal interest rate increased by 3 (three) %.In addition, a fixed compensation is payable equalling 10 (ten) % of the unpaid amount, with a minimum of € 75.00 and a maximum of € 75,000.00. The interests on overdue payment and the compensation are payable by operation of law as from the due date of the invoices and without a prior formal notice of default.
15.4. The right of retention in favour of DLS plc is explicitly acknowledged by the customer.
15.5. Modes of payment other than payment into/transfer to the account of DLS plc can never give rise to novation of debt.
16. AVAILABILITY
16.1. The customer undertakes to put all required facilities at the disposal of DLS plc, as to staff, logistics, space etc., in order to allow the latter to properly perform their obligations. This will take place in accordance with a joint planning.
16.2. Any non-observance of this planning may give rise to cancellation of the agreement on account of non-performance.
17. INVALIDITY
17.1. The invalidity of a specific provision of the General Terms and Conditions does not give rise to the invalidity of the entire agreement.
17.2. After consultation between the parties, any invalid provision is replaced by a valid provision with the same scope.
18. APPLICABLE LAW AND JURISDICTION
18.1. The obligations resulting from this agreement are exclusively governed by Belgian law.
18.2. The courts of the place where the registered office of DLS plc is established have jurisdiction.