TECH CONSULTANCY PRO, with registered office at Antoine Coppenslaan 3 B001, 2300 Trunhout, Belgium and registered with the Crossroads Bank for Enterprises under number 0889.844.643, duly and validly represented Erik Willems, manager (hereinafter referred to as “TECH CONSULTANCY PRO”), is a software firm specialized in the design, development and operation of software applications.
TECH CONSULTANCY PRO has developed and commercializes a plugin called DIAMOND CONNECT (the “Plugin”) that adds additional features and functionality to the IDEX application (the “Application”) , a software tool to which the rights are owned by IDEX Online ec BV, with registered office at Hoveniersstraat 51, 2018 Antwerpen, and registered with the Crossroads Bank for Enterprises under number 0477.696.789 (“IDEX”).
The Plugin is not a standalone software Plugin and requires end users to have (i) a subscription to the Application and (ii) a subscription to the Plugin in order to be able to use the Plugin.
The client may be any natural person or legal entity which enters into a contractual relationship of whichever nature with TECH CONSULTANCY PRO in connection with his or its trading, business, artisanal or professional activity (hereinafter referred to as the “Client”).
The conclusion of an agreement with TECH CONSULTANCY PRO shall entail the full and unconditional acceptance of these Terms and Conditions.
The application of the Terms and Conditions of TECH CONSULTANCY PRO shall exclude the application of any other (general or particular) terms and conditions of the Client.
An agreement shall be concluded by and between TECH CONSULTANCY PRO and the Client following a registration on the website diamondplugin.com (the “Website”).
On receipt of successful payment, the Client will be able to access the Plugin directly from the order confirmation page.
The Client will also receive an email with this information and will be able to access the Plugin throught the Client account for as long as the Client has a subscription.
A subscription is provided for periods of 1 month or 12 months (the “Term”), and will be tacitly renewed for the same period unless the subscription is terminated by either party before expiry of the then current period.
In the control panel in the Client account, the Client can decide to terminate the subscription at any time. The subscription will then run until the end of the then current period. In no case, TECH CONSULTANCY PRO will refund any fees.
The fee will be charged upfront through a payment method provided on the Website and will be subject to the acceptance of the third party payment service provider terms and conditions.
These Terms and Conditions contain the general contractual framework for the services that may be provided by TECH CONSULTANCY PRO to the Client with regard to the Plugin, consisting of:
- A right to use the Plugin (the “Plugin Subscription”);
- A right to receive services in relation to the Plugin.
TECH CONSULTANCY PRO grants to the Client a non-exclusive and non-transferable right to use the Plugin during the Term, in accordance with these Terms and Conditions and for the Client's own internal purposes and business operations exclusively.
Client restrictions
The Client may not:
Title and Ownership
Nothing in these Terms and Conditions will create the transfer of title or (intellectual) property rights to the Plugin and related objects by TECH CONSULTANCY PRO to the Client.
Protection & modifications
TECH CONSULTANCY PRO is authorized to take technical measures to protect the Plugin against unauthorized use and/or copying.
TECH CONSULTANCY PRO is authorized to replace or modify the source code of the Plugin in order to adjust it to the evolution of the Plugin.
TECH CONSULTANCY PRO and the Client may agree that TECH CONSULTANCY PRO shall design, develop and implement a customisation or customisations in accordance with a separate offer of BITWORKZ, subject to the payment of additional fees.
All Intellectual Property Rights in the customisations shall, as between the parties, be the exclusive property of TECH CONSULTANCY PRO.
The Client acknowledges and agrees that TECH CONSULTANCY PRO is the only party who is allowed to design, develop and implement customisations to the Plugin.
TECH CONSULTANCY PRO shall provide support services in accordance with the standards of skill and care on a best effort basis.
Support services shall include services in relation to the identification and resolution of bugs and errors in the Plugin, but shall not include the provision of training services or the correction of any bugs and errors that can not be qualified as such.
A bug or error in the Plugin requiring support services shall include bugs and errors having a material adverse effect on the operation, functionality or performance of the Plugin, but excluding any bug or error caused by or arising as a result of:
The support services shall be provided remotely, save to the extent that the parties agree otherwise in writing.
The support services shall be provided during Business Hours, on Business Days.
In order to respect the provision of services under these Terms and Conditions, the Client will:
The fees for the Plugin Subscription and related services are listed on the Website.
The fees are payable upon registration and at renewal of the Term.
Payment of the fees is performed using the payment methods provided on the Website.
In case of non-payment the Plugin Subscription will be terminated and the Client will have no right to use the Plugin.
Unless explicitly agreed otherwise, all amounts are net of taxes. All taxes which are or may be levied in the future by a government authority in respect of the services provided by TECH CONSULTANCY PRO under these Terms and Conditions, will be borne by the Client.
TECH CONSULTANCY PRO warrants that the Plugin conforms in all material respects to the specifications as listed on the Website.
TECH CONSULTANCY PRO provides no other warranty, whether express or implied, in relation to the Plugin, except for the mandatory legally provided warranties. In particular, BITWORKZ provides no warranties of any kind in relation to:
Without prejudice to their other rights or remedies, the parties are entitled to terminate the agreement at any time and with immediate effect by notice by registered letter to the other party if (“termination for cause”):
said party is in breach of any of its obligations under the agreement and either that breach is incapable of remedy or the concerning party has failed to remedy that breach within thirty (30) days after receiving written notice requiring it to do so; or
a court order is made for the winding up of said party;
an effective resolution is passed for the winding up of said party (other than for the purposes of amalgamation or reconstruction);
said party has a receiver, manager, administrative receiver or administrator appointed in respect of it; or
said party is unable to pay its debts as they fall due or its assets are worth less than its liabilities on a balance sheet basis.
Upon early termination of the agreement a) by TECH CONSULTANCY PRO due to the Client’s breach or b) by the Client in breach of the agreement, TECH CONSULTANCY PRO may require the payment of damages proportionate to the remaining fees, without prejudice to any other indemnity exceeding this amount.
Upon expiry or termination of the agreement the Client’s right to receive and use the Plugin and/or services under the agreement will cease automatically.
The relationship between the parties is that of independent contractors. Nothing in these Terms and Conditions will constitute, create or give effect to a joint venture, employer/employee relationship, partnership or other co-operative entity between the parties.
TECH CONSULTANCY PRO will not be liable to the Client or any other party for any indirect or consequential economic losses or damages, including, but not limited to, loss of profits, loss of revenue, loss of data or loss of goodwill, howsoever arising out of or in connection with the performance of services under these Terms and Conditions.
To the full extent permitted by applicable law, TECH CONSULTANCY PRO’s total liability for direct damages to the Client in respect of these Terms and Conditions will not exceed the amount of the Fees paid by the Client for the last six (6) months, but never exceeding a total amount of EUR 5.000 (five thousand Euros).
All Intellectual Property Rights in either party’s materials, information or data provided by that party to the other party under these Terms and Conditions will be and remain vested in that party. The other party will have no rights in respect thereof save for any rights granted to it by that party under these Terms and Conditions.
All Intellectual Property Rights in the Plugin, the TECH CONSULTANCY PRO trademarks and all signs and logos used on the Website or in the Plugin will be and remain vested in TECH CONSULTANCY PRO at all times. The Client will have no rights in respect thereof save for any rights granted to it by TECH CONSULTANCY PRO under these Terms and Conditions.
All Intellectual Property Rights created in the delivery of services will, as between the parties, be the exclusive property of TECH CONSULTANCY PRO.
The Client acknowledges that TECH CONSULTANCY PRO may make the result of any services available to any of its other clients or any other third party.
The Application and all the Intellectual Property Rights therein are and will remain the sole and exclusive property of IDEX.
Without prejudice to the limitation of liability under these Terms and Conditions (clause 12 above), TECH CONSULTANCY PRO will indemnify the Client against any direct damages which may be awarded against it by an enforceable court decision, as a result of the Plugin being held to infringe an Intellectual Property Right of a third party, but only if:
If a claim, as described in this clause, may be or has been asserted, the Client will permit TECH CONSULTANCY PRO, at the latters option and expense, to:
TECH CONSULTANCY PRO will have no indemnity obligation whatsoever to the Client under this clause if the Intellectual Property Rights infringement claim results from:
The parties acknowledge that they may become privy to Confidential Information which is disclosed by the other party.
The Receiving Party will keep all Confidential Information confidential. The Receiving Party will not disclose Confidential Information to any other person, and will not use Confidential Information for any purposes other than for the purposes of the agreement. The Receiving Party will safeguard the Confidential Information to the same extent that it safeguards its own confidential and proprietary information and in any event with not less than a reasonable degree of protection.
The Receiving Party agrees to disclose Confidential Information only on a "need-to-know" basis to employees and independent contractors.
The Receiving Party agrees that before any of its subcontractors and/or agents may be given access to Confidential Information, each such subcontractor and/or agent will agree to be bound by a confidentiality undertaking comparable to these Terms and Conditions. Notwithstanding the return of any Confidential Information, the Receiving Party and its subcontractors and/or agents will continue to hold in confidence all Confidential Information, which obligation will survive any termination of the agreement.
In the event the Receiving Party is requested or required to disclose, by court order or regulatory decision, any of the other party’s Confidential Information, the Receiving Party will provide the other party with prompt written notice so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of these Terms and Conditions. The Receiving Party will furnish only that portion of the Confidential Information which is legally required.
Within ten (10) Business Days upon (i) the termination of the agreement or (ii) the Disclosing Party’s reasonable earlier request at any time, the Receiving Party will destroy or return to the Disclosing Party (at its option) any and all of Disclosing Party’s Confidential Information, and will purge all copies and traces of the same from any storage location and/or media.
Confidential Information will not include any information that the Receiving Party can establish:
Any infringement by the Receiving Party of its confidentiality obligations will entitle the Disclosing Party to claim payment of a EUR 50,000.00 (Fifty Thousand Euros) lump sum, without prejudice to the Disclosing Party’s right to claim higher damages if the Disclosing Party can prove the existence of such higher damages.
Each party shall, at all times, comply with its respective obligations under the General Data Protection Regulation 2016/679, as amended, and any further implementation or replacement of that law (“Data Protection Legislation”). The word "Process" and the expression "Personal Data", when used in this clause shall have the meaning assigned thereto in the Data Protection Legislation.
TECH CONSULTANCY PRO shall process Personal Data provided to it pursuant to these Terms and Conditions and the Data Processing Addendum (Attachment 1) in accordance with the Data Protection Legislation.
In order for the Plugin to function properly and for TECH CONSULTANCY PRO to provide services to the Client, Personal Data will be shared with IDEX.
TECH CONSULTANCY PRO will be entitled to use the services of subcontractors for the performance of any services under these Terms and Conditions. In such case, TECH CONSULTANCY PRO will remain liable towards the Client for the performance of these services.
Neither party will be entitled to assign any right or obligation under these Terms and Conditions without the prior written consent of the other party, which will not be unreasonably withheld or delayed.
If the performance of the agreement by either party, or of any obligation thereunder (with the exception of payment obligations), is prevented, restricted or interfered with by reason of war, revolution, civil commotion, riot, fire, flood, disaster, acts of public enemies, blockade or embargo, strikes, any law, order, proclamation, regulation, ordinance, demand or requirement having a legal effect of any government or any judicial authority or representative of any such government, or any other act whatsoever, which is beyond the reasonable control of the party affected, such party will, upon giving prior written notice to the other party, be excused from such performance to the extent of such prevention, restriction, or interference, provided that the party so affected will use its best efforts to avoid or remove such causes of non-performances, and will continue performance thereunder with the utmost dispatch whenever such causes are removed; provided, however, that the non-excused party may terminate the agreement if such non-performance continues uncured for thirty (30) calendar days.
Compliance with laws and regulations
Both parties will, for their own accounts, comply with the laws and regulations of the public authorities relating to these Terms and Conditions and pay all fees or other expenses in this respect.
Waiver
The failure of either party at any time to insist upon strict performance of any of the provisions under these Terms and Conditions will not be deemed a waiver of its right at any time thereafter to insist upon strict performance.
Notices
All notices, demands or consents required or permitted under these Terms and Conditions will be in writing. Notice will be sent to the parties at the addresses set forth on the SOW, or at such other address as will be given by either party to the other in writing.
Headings
Section headings used herein are for reference only and will not be used to construe the provisions of these Terms and Conditions. The plural will be deemed to include the singular, and the singular will be deemed to include the plural.
English language
All communications by TECH CONSULTANCY PRO under these Terms and Conditions, will be in English.
Applicable law and jurisdiction
The agreement and these Terms and Conditions will be governed by and construed under the laws of Belgium. Each party submits to the exclusive jurisdiction of the competent courts of Antwerp for the purposes of any dispute arising hereunder.
For the purposes of these Terms and Conditions, the following terms will have the meanings specified or referred to in this clause:
“Attachment” will mean any attachment to these Terms and Conditions, forming an integral part thereof.
“Business Day” will mean Monday through Friday, excluding public holidays in Belgium.
“Business Hours” will mean 9:00 a.m. – 5:00 p.m. on a Business Day.
"Confidential Information" will mean any and all information that is disclosed (orally, in writing, by electronic delivery, or otherwise) by one party (“Disclosing Party”) to the other party (“Receiving Party”) prior to or during the term of the agreement (or to which the Receiving Party otherwise gains access as a result of the agreement) relating to the business of the Disclosing Party, including without limitation business plans and models, financial information, market research, Client and supplier information, proprietary software and methods, and information concerning proprietary inventions and technologies. The Plugin and these Terms and Conditions, including the amount of fees to be paid hereunder, are agreed to be Confidential Information of TECH CONSULTANCY PRO.
“Intellectual Property Rights” will mean all patent rights, trademarks, designs and models, copyrights, softwarerights, rights in databases, proprietary rights in know-how, including trade secrets and other confidential information, and any other form of legally protectable intellectual or industrial property rights under any jurisdiction whatsoever.
“Terms and Conditions” will mean the general Terms and Conditions of TECH CONSULTANCY PRO as set out herein and applying to all services provided and the Plugin Subscription granted by TECH CONSULTANCY PRO.
The Attachments to the Terms and Conditions form an integral part thereof and any reference to the Terms and Conditions includes the Attachments and vice versa.